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VRpatients END USER LICENSE AGREEMENT
This END USER LICENSE AGREEMENT (“AGREEMENT”) governs your use of our VES, LLC Products and Services.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES VES, LLC PRODUCTS OR SERVICES, YOU AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE VES, LLC PRODUCTS OR SERVICES.
You may not access VES, LLC Products or Services if You are our direct competitor, except with our prior Written consent. In addition, You may not access VES, LLC Products or Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 31, 2018. It is effective between You and Us as of the date of Your acceptance of this Agreement.
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"VES, LLC Products or Services" means the online, Web-based VES, LLC service provided by Us as described in this Agreement, plus any associated Products or Services, that You order through https://www.vrpatients.com or under an Order Form.
"Order Form" means any ordering documents for Your subscriptions to the VES, LLC Products or Services, including addenda thereto, that are entered into between You and Us or You and an authorized Reseller. Order Forms shall be deemed incorporated herein by reference.
“Pre-Written Cases” or “Template cases” means a training scenario that is created by Us and that operates within VES, LLC Products or Services.
"Third-Party Application" means a web application that is provided by a third party and interoperates with the VES, LLC Products or Services.
"User" means an individual who is authorized to use the VES, LLC Products or Services, for whom a subscription to the VES, LLC Products or Services has been acquired pursuant to this Agreement, and who have been supplied a user identification and password by Us.
“User Generated Cases” means a training scenario that You (or a third party acting on Your behalf) create and that operates within the VES, LLC Products or Services, including training scenarios created by Us specifically for You per an Order Form.
"User Guide" means any online user guide for the VES, LLC Products or Services, which may be accessible via https://www.vrpatients.com as updated from time to time.
"We," " Us" or " Our" means VES, LLC, an Ohio Limited Liability Company with a principal place of business at 70 Weil Way, Wilmington, OH 45177 United States of America.
"You" or "Your" means the individual, company, or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2. PROVISION AND USE OF VES, LLC PRODUCTS OR SERVICES
2.1 Provision of VES, LLC Products or Services. We will (a) make the Services and Pre-Written Cases available to You pursuant to this Agreement and any applicable Order Forms, (b) provide applicable and reasonable support for the VES, LLC Products or Services to You at no additional charge, (c) use commercially reasonable efforts to make the online VES, LLC Products or Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
2.2 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) VES, LLC Products or Services and access to Pre-Written Cases are purchased as subscriptions, (b) additional per seat subscriptions for VES, LLC Products or Services may be added during a subscription term at the same pricing as the underlying subscription pricing, (c) an annual enterprise license may be upgraded to a higher tier, prorated for the portion of that subscription term remaining at the time the license tier is upgraded, and (d) any added subscriptions will terminate on the same date as the underlying subscriptions.
2.3 Usage Limits. VES, LLC Products or Services and Pre-Written Cases are subject to usage limits, including, for example, the quantities specified in Order Form. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the VES, LLC Products or Services or Pre-Written Cases may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the VES, LLC Products or Services or Pre-Written Cases. If You exceed a contractual usage limit, We will work with you to identify the additional quantities of users you will need. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with terms of the Order Form.
2.4 Violation of User Restrictions. You understand that the limitations in sections 2.3 (User Limits) are contractual in nature. You therefore agree to strictly monitor Your Users’ use of the VES, LLC Products or Services subscription and enforce the limitations of the VES, LLC Products or Services subscription. We may audit Your use of VES, LLC Products or Services subscriptions at any time through the VES, LLC Products or Services service. Should any audit reveal any use VES, LLC Products or Services subscriptions in violation of the User restrictions, We may terminate your User account(s) unless the violations are corrected with (10) calendar days of notice.
2.5 Other Usage Limitations. The VES, LLC Products or Services may be subject to other limitations, such as, for example, limits on disk storage space, and on the number of calls You are permitted to make against Our application programming interface. The VES, LLC Products or Services provides real-time information to enable Us to monitor Your compliance with these limitations.
2.6 Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the VES, LLC Products or Services or Pre-Written Cases, and notify Us promptly of any such unauthorized access or use, and (iii) use the VES, LLC Products or Services only in accordance with this Agreement and applicable laws and government regulations. You shall not (a) make the VES, LLC Products or Services available to anyone other than a User, (b) sell, resell, rent or lease the VES, LLC Products or Services, (c) use the VES, LLC Products or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the VES, LLC Products or Services to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity, (e) interfere with or disrupt the integrity or performance of the VES, LLC Products or Services or third-party data contained therein, (f) attempt to gain unauthorized access to the VES, LLC Products or Services or Our systems or networks, or (g) permit direct or indirect access to or use of any VES, LLC Products or Services in a way that circumvents a contractual usage limit.
3. THIRD-PARTY PROVIDERS
3.1 Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale via the VES, LLC Products or Services. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of information or data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified stated. No purchase of third-party products or services is required to use the VES, LLC Products or Services.
3.2 Third-Party Applications and User Generated Cases. If You install or enable a Third-Party Application for use with the VES, LLC Products or Services, You acknowledge that We may allow the provider of that Third-Party Application to access User Generated Cases as required for the interoperation of such Third-Party Application with the VES, LLC Products or Services. We shall not be responsible for any disclosure, modification or deletion of User Generated Cases resulting from any such access by a Third-Party Application provider.
4. FEES AND PAYMENT
4.1 Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on VES, LLC Products or Services and Pre-Written Cases subscriptions purchased and not actual usage, (ii) payment obligations are noncancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2 Invoicing and Payment. You shall pay for the VES, LLC Products or Services and Pre-Written Cases in U.S. dollars in immediately available funds using a business check, by wire transfer or by Visa/MasterCard credit card, or in such other manner as VES may approve. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 15 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5. LICENSES
5.1 Our License to You.
• License. We grant you a worldwide license during the term of Your subscription to use (i) the VES, LLC Products or Services and Pre-Written Cases, (ii) User Generated Cases, and (iii) Modifications of the Pre-Written Cases.
• Restrictions. You shall not (i) permit any third party to access the VES, LLC Products or Services except as permitted herein or in an Order Form, (ii) modify, copy, or create derivative works based on the VES, LLC Products or Services or Pre-Written Cases, (iii) copy, frame or mirror any part or content of the VES, LLC Products or Services or Pre-Written Cases, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) disassemble, reverse engineer, or decompile any part of the VES, LLC Products or Services or Pre-Written Cases to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement or the Order Form, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
5.2 Your License to Us.
• Upon separate written agreement, You may grant us a worldwide license to use, reproduce, transmit, display and adapt User Generated Cases, and any software You create that integrates with the VES, LLC Products or Services, solely as necessary for Us to provide an enhanced experience for other Users of the VES, LLC Products or Services in accordance with this Agreement.
• You grant us a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into our services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of our services.
5.3 U.S. Federal Government End Use Provisions. We provide the VES, LLC Products or Services, including related software and technology, for ultimate federal government end use solely in accordance with the following:
Government technical data and software rights related to the VES, LLC Products or Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under this Agreement, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable Written addendum specifically conveying such rights must be included in any applicable contract or agreement.
6. PROPRIETARY RIGHTS
6.1 Our Proprietary Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the VES, LLC Products or Services and Pre-Written Cases, including all related intellectual property rights subsisting therein. We grant no rights to You hereunder other than as expressly set forth herein.
7. EXCLUSION OF WARRANTIES
WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF THE VES, LLC PRODUCTS OR SERVICES OR PRE-WRITTEN CASES WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE VES, LLC PRODUCTS OR SERVICES OR PRE-WRITTEN CASES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
8. INDEMNIFICATION
You shall defend Us against any claim, demand, suit, or proceeding ("Claim") made or brought against Us by a third party alleging that User Generated Cases or other materials developed by You (or by a third party on Your behalf) using the VES, LLC Products or Services infringe or misappropriate the intellectual property rights of a third party or violate applicable law (to the extent such infringement, misappropriation or violation does not arise from the VES, LLC Products or Services) or caused harm (physical or otherwise) to any individual and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You Written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, REVENUE OR DATA OR FOR INTERRUPTIONS IN SERVICE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1 Term. This Agreement commences on the date You accept it and continues until terminated in accordance with Section 10.2 (Termination).
10.2 Termination. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. We may terminate Your VES, LLC Products or Services service (a) at any time without cause upon 30 days’ Written notice to You, or (b) upon 10 days’ Written notice to You of a material breach of this Agreement if such breach remains uncured at the expiration of such period. Upon any termination of Your VES, LLC Products or Services service, this Agreement shall also terminate, subject to Section 10.4 (Surviving Provisions).
10.3 LOSS OF APPLICATIONS AND MATERIALS. UPON ANY TERMINATION OF YOUR VES, LLC PRODUCTS OR SERVICES SERVICE, ALL USER GENERATED CASES AND OTHER MATERIALS DEVELOPED BY YOU USING THE VES, LLC PRODUCTS OR SERVICES WILL BE PERMANENTLY LOST WITH ALL RIGHTS TO OWNERSHIP BEING TRANSFERRED TO US.
10.4 Surviving Provisions. Sections 6 (Proprietary Rights), 7 (Exclusion of Warranties), 8 (Indemnification), 9 (Limitation of Liability), 11 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
11. NOTICES, GOVERNING LAW, VENUE, AND WAIVER OF JURY TRIAL
11.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of material breach or an indemnifiable claim). Notices to Us shall be addressed to the attention of VES, LLC, 70 Weil Way, Wilmington, OH 45177, U.S.A. Notices to You shall be addressed to the address You provided Us in the VES, LLC Products or Services account.
11.2 Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Ohio and controlling United States federal law, without regard to their conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
11.3 Venue; Waiver of Jury Trial. The state and federal courts located in Hamilton County, Ohio shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. CHANGES TO TERMS
We may make changes to this Agreement from time to time. When these changes are made, We will make a new copy of the Terms available to you via electronic notification or via our website. You understand and agree that if you use the VES, LLC Products or Services after the date on which this Agreement has changed, We will treat Your use as acceptance of the updated Terms.
13. GENERAL PROVISIONS
13.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the VES, LLC Products or Services. Without limiting the foregoing, (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) it shall not permit Users to access or use the VES, LLC Products or Services in violation of any U.S. export embargo, prohibition or restriction.
13.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior Written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in their entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon Written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7 Entire Agreement. This Agreement, including all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, Written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
This END USER LICENSE AGREEMENT (“AGREEMENT”) governs your use of our VES, LLC Products and Services.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES VES, LLC PRODUCTS OR SERVICES, YOU AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE VES, LLC PRODUCTS OR SERVICES.
You may not access VES, LLC Products or Services if You are our direct competitor, except with our prior Written consent. In addition, You may not access VES, LLC Products or Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 31, 2018. It is effective between You and Us as of the date of Your acceptance of this Agreement.
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"VES, LLC Products or Services" means the online, Web-based VES, LLC service provided by Us as described in this Agreement, plus any associated Products or Services, that You order through https://www.vrpatients.com or under an Order Form.
"Order Form" means any ordering documents for Your subscriptions to the VES, LLC Products or Services, including addenda thereto, that are entered into between You and Us or You and an authorized Reseller. Order Forms shall be deemed incorporated herein by reference.
“Pre-Written Cases” or “Template cases” means a training scenario that is created by Us and that operates within VES, LLC Products or Services.
"Third-Party Application" means a web application that is provided by a third party and interoperates with the VES, LLC Products or Services.
"User" means an individual who is authorized to use the VES, LLC Products or Services, for whom a subscription to the VES, LLC Products or Services has been acquired pursuant to this Agreement, and who have been supplied a user identification and password by Us.
“User Generated Cases” means a training scenario that You (or a third party acting on Your behalf) create and that operates within the VES, LLC Products or Services, including training scenarios created by Us specifically for You per an Order Form.
"User Guide" means any online user guide for the VES, LLC Products or Services, which may be accessible via https://www.vrpatients.com as updated from time to time.
"We," " Us" or " Our" means VES, LLC, an Ohio Limited Liability Company with a principal place of business at 70 Weil Way, Wilmington, OH 45177 United States of America.
"You" or "Your" means the individual, company, or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2. PROVISION AND USE OF VES, LLC PRODUCTS OR SERVICES
2.1 Provision of VES, LLC Products or Services. We will (a) make the Services and Pre-Written Cases available to You pursuant to this Agreement and any applicable Order Forms, (b) provide applicable and reasonable support for the VES, LLC Products or Services to You at no additional charge, (c) use commercially reasonable efforts to make the online VES, LLC Products or Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
2.2 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) VES, LLC Products or Services and access to Pre-Written Cases are purchased as subscriptions, (b) additional per seat subscriptions for VES, LLC Products or Services may be added during a subscription term at the same pricing as the underlying subscription pricing, (c) an annual enterprise license may be upgraded to a higher tier, prorated for the portion of that subscription term remaining at the time the license tier is upgraded, and (d) any added subscriptions will terminate on the same date as the underlying subscriptions.
2.3 Usage Limits. VES, LLC Products or Services and Pre-Written Cases are subject to usage limits, including, for example, the quantities specified in Order Form. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the VES, LLC Products or Services or Pre-Written Cases may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the VES, LLC Products or Services or Pre-Written Cases. If You exceed a contractual usage limit, We will work with you to identify the additional quantities of users you will need. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with terms of the Order Form.
2.4 Violation of User Restrictions. You understand that the limitations in sections 2.3 (User Limits) are contractual in nature. You therefore agree to strictly monitor Your Users’ use of the VES, LLC Products or Services subscription and enforce the limitations of the VES, LLC Products or Services subscription. We may audit Your use of VES, LLC Products or Services subscriptions at any time through the VES, LLC Products or Services service. Should any audit reveal any use VES, LLC Products or Services subscriptions in violation of the User restrictions, We may terminate your User account(s) unless the violations are corrected with (10) calendar days of notice.
2.5 Other Usage Limitations. The VES, LLC Products or Services may be subject to other limitations, such as, for example, limits on disk storage space, and on the number of calls You are permitted to make against Our application programming interface. The VES, LLC Products or Services provides real-time information to enable Us to monitor Your compliance with these limitations.
2.6 Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the VES, LLC Products or Services or Pre-Written Cases, and notify Us promptly of any such unauthorized access or use, and (iii) use the VES, LLC Products or Services only in accordance with this Agreement and applicable laws and government regulations. You shall not (a) make the VES, LLC Products or Services available to anyone other than a User, (b) sell, resell, rent or lease the VES, LLC Products or Services, (c) use the VES, LLC Products or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the VES, LLC Products or Services to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity, (e) interfere with or disrupt the integrity or performance of the VES, LLC Products or Services or third-party data contained therein, (f) attempt to gain unauthorized access to the VES, LLC Products or Services or Our systems or networks, or (g) permit direct or indirect access to or use of any VES, LLC Products or Services in a way that circumvents a contractual usage limit.
3. THIRD-PARTY PROVIDERS
3.1 Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale via the VES, LLC Products or Services. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of information or data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified stated. No purchase of third-party products or services is required to use the VES, LLC Products or Services.
3.2 Third-Party Applications and User Generated Cases. If You install or enable a Third-Party Application for use with the VES, LLC Products or Services, You acknowledge that We may allow the provider of that Third-Party Application to access User Generated Cases as required for the interoperation of such Third-Party Application with the VES, LLC Products or Services. We shall not be responsible for any disclosure, modification or deletion of User Generated Cases resulting from any such access by a Third-Party Application provider.
4. FEES AND PAYMENT
4.1 Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on VES, LLC Products or Services and Pre-Written Cases subscriptions purchased and not actual usage, (ii) payment obligations are noncancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2 Invoicing and Payment. You shall pay for the VES, LLC Products or Services and Pre-Written Cases in U.S. dollars in immediately available funds using a business check, by wire transfer or by Visa/MasterCard credit card, or in such other manner as VES may approve. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 15 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5. LICENSES
5.1 Our License to You.
• License. We grant you a worldwide license during the term of Your subscription to use (i) the VES, LLC Products or Services and Pre-Written Cases, (ii) User Generated Cases, and (iii) Modifications of the Pre-Written Cases.
• Restrictions. You shall not (i) permit any third party to access the VES, LLC Products or Services except as permitted herein or in an Order Form, (ii) modify, copy, or create derivative works based on the VES, LLC Products or Services or Pre-Written Cases, (iii) copy, frame or mirror any part or content of the VES, LLC Products or Services or Pre-Written Cases, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) disassemble, reverse engineer, or decompile any part of the VES, LLC Products or Services or Pre-Written Cases to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement or the Order Form, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
5.2 Your License to Us.
• Upon separate written agreement, You may grant us a worldwide license to use, reproduce, transmit, display and adapt User Generated Cases, and any software You create that integrates with the VES, LLC Products or Services, solely as necessary for Us to provide an enhanced experience for other Users of the VES, LLC Products or Services in accordance with this Agreement.
• You grant us a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into our services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of our services.
5.3 U.S. Federal Government End Use Provisions. We provide the VES, LLC Products or Services, including related software and technology, for ultimate federal government end use solely in accordance with the following:
Government technical data and software rights related to the VES, LLC Products or Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under this Agreement, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable Written addendum specifically conveying such rights must be included in any applicable contract or agreement.
6. PROPRIETARY RIGHTS
6.1 Our Proprietary Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the VES, LLC Products or Services and Pre-Written Cases, including all related intellectual property rights subsisting therein. We grant no rights to You hereunder other than as expressly set forth herein.
7. EXCLUSION OF WARRANTIES
WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF THE VES, LLC PRODUCTS OR SERVICES OR PRE-WRITTEN CASES WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE VES, LLC PRODUCTS OR SERVICES OR PRE-WRITTEN CASES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
8. INDEMNIFICATION
You shall defend Us against any claim, demand, suit, or proceeding ("Claim") made or brought against Us by a third party alleging that User Generated Cases or other materials developed by You (or by a third party on Your behalf) using the VES, LLC Products or Services infringe or misappropriate the intellectual property rights of a third party or violate applicable law (to the extent such infringement, misappropriation or violation does not arise from the VES, LLC Products or Services) or caused harm (physical or otherwise) to any individual and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You Written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, REVENUE OR DATA OR FOR INTERRUPTIONS IN SERVICE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1 Term. This Agreement commences on the date You accept it and continues until terminated in accordance with Section 10.2 (Termination).
10.2 Termination. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. We may terminate Your VES, LLC Products or Services service (a) at any time without cause upon 30 days’ Written notice to You, or (b) upon 10 days’ Written notice to You of a material breach of this Agreement if such breach remains uncured at the expiration of such period. Upon any termination of Your VES, LLC Products or Services service, this Agreement shall also terminate, subject to Section 10.4 (Surviving Provisions).
10.3 LOSS OF APPLICATIONS AND MATERIALS. UPON ANY TERMINATION OF YOUR VES, LLC PRODUCTS OR SERVICES SERVICE, ALL USER GENERATED CASES AND OTHER MATERIALS DEVELOPED BY YOU USING THE VES, LLC PRODUCTS OR SERVICES WILL BE PERMANENTLY LOST WITH ALL RIGHTS TO OWNERSHIP BEING TRANSFERRED TO US.
10.4 Surviving Provisions. Sections 6 (Proprietary Rights), 7 (Exclusion of Warranties), 8 (Indemnification), 9 (Limitation of Liability), 11 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
11. NOTICES, GOVERNING LAW, VENUE, AND WAIVER OF JURY TRIAL
11.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of material breach or an indemnifiable claim). Notices to Us shall be addressed to the attention of VES, LLC, 70 Weil Way, Wilmington, OH 45177, U.S.A. Notices to You shall be addressed to the address You provided Us in the VES, LLC Products or Services account.
11.2 Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Ohio and controlling United States federal law, without regard to their conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
11.3 Venue; Waiver of Jury Trial. The state and federal courts located in Hamilton County, Ohio shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. CHANGES TO TERMS
We may make changes to this Agreement from time to time. When these changes are made, We will make a new copy of the Terms available to you via electronic notification or via our website. You understand and agree that if you use the VES, LLC Products or Services after the date on which this Agreement has changed, We will treat Your use as acceptance of the updated Terms.
13. GENERAL PROVISIONS
13.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the VES, LLC Products or Services. Without limiting the foregoing, (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) it shall not permit Users to access or use the VES, LLC Products or Services in violation of any U.S. export embargo, prohibition or restriction.
13.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior Written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in their entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon Written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7 Entire Agreement. This Agreement, including all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, Written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.