IMPORTANT: PLEASE READ THIS CUSTOMER AGREEMENT CAREFULLY AND PRINT IT OR GO TO HTTP://WWW.V5SYSTEMS.US/LEGAL TO OBTAIN A DOWNLOADABLE COPY OF THE CURRENT VERSION OF THE CUSTOMER AGREEMENT TO MAINTAIN A COPY FOR YOUR RECORDS.
BY ORDERING, RECEIVING, INSTALLING OR OTHERWISE USING V5 PRODUCTS OR SERVICES, OR BY CLICKING THE “ACCEPT” BUTTON OR CHECK BOX DISPLAYED AS PART OF THE QUOTE, PROCUREMENT, INSTALLATION, UPGRADE OR UPDATE PROCESS, YOU ACCEPT AND AGREE TO BE BOUND BY THIS CUSTOMER AGREEMENT, THE DOCUMENTATION, AND THE OTHER ITEMS REFERENCED HEREIN AND THEREIN (COLLECTIVELY, THE “AGREEMENT”), ALL OF WHICH ARE INCORPORATED INTO AND FORM PART OF THE AGREEMENT. YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THE AGREEMENT.
V5 OFFERS PRODUCTS AND SERVICES ONLY SUBJECT TO THE AGREEMENT AND THEREFORE YOU MUST ACCEPT THE AGREEMENT BEFORE YOU CAN ORDER, RECEIVE, INSTALL OR OTHERWISE USE V5 PRODUCTS OR SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN V5 IS UNWILLING TO OFFER, LEASE, LICENSE OR SELL THE V5 PRODUCTS OR SERVICES TO YOU AND YOU MAY NOT DOWNLOAD, COPY, INSTALL, ORDER, RECEIVE OR USE THEM.
THE AGREEMENT IS BETWEEN THE V5 ENTITY THAT ACCEPTS THE QUOTE (OR PORTION THEREOF) FOR THE APPLICABLE PRODUCT OR SERVICE (“V5,” “WE,” OR “US”) AND THE INDIVIDUAL OR LEGAL ENTITY ORDERING, RECEIVING, INSTALLING OR USING V5 PRODUCTS OR SERVICES, OR THAT CLICKS THE “ACCEPT” BUTTON OR CHECK BOX DISPLAYED AS PART OF THE QUOTE, PROCUREMENT, INSTALLATION, UPGRADE OR UPDATE PROCESS (“CUSTOMER,” “YOU,” OR “YOUR”). YOU MAY ENTER THE AGREEMENT WITH MULTIPLE V5 ENTITIES WITH RESPECT TO DIFFERENT PRODUCTS AND SERVICES AND NO V5 ENTITY HAS THE RIGHT TO ENTER ANY CONTRACT ON BEHALF OF OR AS AGENT FOR ANY OTHER V5 ENTITY. IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERMS “CUSTOMER,” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
DEFINITIONS: All capitalized terms defined in the Agreement have the meanings as defined herein. In addition, as used in the Agreement the following terms shall be defined as set forth below:
“Affiliates” means any legal entity that a party owns, which owns the party, or which is under common ownership with the party. “Ownership” means, for the purposes of this definition, more than 50% ownership. 1.2
“Confidential Information” means the proprietary and non-public: technical, financial, marketing, staffing and business information; business strategies, marketing plans, industry and competitive information; technology and pricing information; employee and personal information; and the trade secrets of the V5 Entities on the one hand or the Customer and its Third Party Clients on the other hand. Confidential Information does not include information that: (a) was or becomes publicly available or in a party’s possession without breach of the Agreement; (b) is developed by a party independently of and without reference to the other’s Confidential Information; or (c) is rightfully obtained by a party from third parties authorized to make such disclosure. 1.3
“Documentation” means written information (whether contained in catalogs; warranty, maintenance or support policies; user or technical or training manuals, specifications, copyright attributions or otherwise) pertaining to the Products or Services and made available by V5 with the Products or Services in any manner (including via email, on the Website or other on-line format) as updated or amended by V5 from time to time and includes V5’s Customer Agreement set forth at http://www.V5systems.us/legal and Quote(s) and SOW(s). 1.4
“Leased Products” means Products acquired by Customer on a Term based lease. 1.5
“Marks” means V5 or V5 licensed trademarks, logos, symbols, and names. 1.6
“Products” means the V5 and Third Party Products. 1.7
“Purchased Products” means Products acquired and Customer obtains full title to the Products upon full payment for such Products. 1.8
“Quote” means the V5 form evidencing the Customer order, and which may specify, among other things, the number and type of Products and Services purchased, the applicable fees, the billing and payment terms, the Term for Leased Products and Services and other items, each such Quote to be incorporated into and to become a part of the Agreement; and depending on the Products or Services ordered, the Quote may be completed online, may be the V5 invoice or billing statement, or may be an SOW. 1.9
“Service(s)” means the V5 or V5-provided services set forth in the applicable Documentation and also includes such Documentation. 1.10
“Software” means the computer programs provided to Customer by V5. Software includes any bug fixes, updates, upgrades and new releases provided to Customer but does not include any Services, Third Party Products or open source software which cannot be licensed under this Customer Agreement and is therefore subject to its own license. 1.11
“SOW(s)” means a statement of work, work order, or other similar document executed by V5 and Customer which sets forth Services to be performed by V5. 1.12
“Third Party Products” means products, software and documentation supplied or manufactured by third parties that V5 is authorized to resell or distribute under this Agreement, and the warranties and terms supplied by such third party and all updates to the foregoing. 1.13
“Trial Products and Services” means any Products or Services that are not generally released to the public for purchase such as alpha or beta releases or other trials. 1.14
“V5 Entities” means V5 and any licensors and suppliers providing any part of the Products or Services; and all subsidiaries, Affiliates, officers, employees, consultants, and agents of any of the foregoing. 1.15
“V5 Products” means V5 products including any associated Software and Documentation provided by V5 and all updates to the foregoing but does not include any Services or Third Party Products. 1.16
“Website” means http:/www.V5systems.us and related V5 micro-site(s), or regional or in country websites applicable to Customer or the applicable Products or Services.
ORDERS, DELIVERY, PACKAGE, SHIPPING, TITLE AND LEASE TERMS.
General. All Products and Services shall be ordered and accepted via Quote acceptance. 2.2
Delivery And Packaging. All dates of delivery of Products in the Quote are approximate and assume prompt receipt of all necessary information and reasonable cooperation from Customer. Any charges including, without limitation, storage charges, resulting from requested delays in shipment shall be paid by Customer. All packaging shall be in accordance with V5’s specifications. 2.3
Shipping. Delivery of all Products shall be FOB V5’s designated facility using V5’s standard ground shipping. V5 will use reasonable efforts to accommodate non-standard shipping requests by Customer; provided Customer must direct pay the carrier for any and all charges caused by such change and V5 will not ship until such charges are satisfactorily paid. Accordingly, Customer shall bear the risk of loss or damage to all Products from any casualty after delivery FOB to either Customer or carrier. Customer assumes all liability for any damage to property or any Products caused during unloading, installation or ongoing usage. 2.4
Purchased Product Terms. Title to the Purchased Products shall pass to Customer as set forth above. However, V5 shall retain a lien on Purchased Products until payment in full is made to V5 including all applicable Installments. 2.5
Leased Product Terms. Title to Leased Products shall remain with V5 and V5 shall retain a lien on Leased Products at all times unless and until such Leased Products become Purchased Products. Customer, at its own cost and expense, shall keep the Leased Products in good repair, condition and working order. Customer hereby assumes and shall bear the entire risk of loss and damage to the Leased Products from any and every cause whatsoever. No loss or damage to the Leased Products or any part thereof shall impair any obligation of Customer, which shall continue in full force and effect through the Term. Customer shall procure and continuously maintain and pay for all risk insurance against loss of and damage to the Leased Products for not less than the full replacement value of the Leased Products. Customer shall keep the Leased Products free and clear of all levies, liens and encumbrances. Upon the expiration or earlier termination of this lease Term, Customer shall return the Leased Products to V5 in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted, by delivering the Leased Products at Customer’s cost and expense to V5’s shipping headquarters. 2.6
Possession. If Customer fails to pay any fees due for Products within ten (10) days after written notice, V5 shall have the right to peaceably repossess the Products, without demand or notice, wherever same may be located, without any court order or other process of law. Customer hereby authorizes V5 to perfect its security interest in the applicable Products, any proceeds from the disposition thereof and proceeds from insurance covering such Products, including filing UCC-1 financing statements. Customer hereby waives any and all damages occasioned by such taking of possession or filing UCC statements. Notwithstanding any repossession or any other action which V5 may take, Customer shall be and remain liable for the full performance of all obligations on the part of the Customer to be performed including making all Installments. All of V5’s remedies under the Agreement are cumulative, and may be exercised concurrently or separately. The right of repossession shall also apply if there are any outstanding payments due for any Product and any proceeding under the Bankruptcy Act, as amended, is commenced by or against the Customer, or if the Customer is adjudged insolvent, or if Customer makes any assignment for the benefit of his creditors, or if a writ of attachment or execution is levied on such Products and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action to which the Customer is a party with authority to take possession or control of the Leased Products, and in such case at the option of the V5, without notice, immediately terminate and shall not be treated as an asset of Customer after the exercise of said option.
CHARGES AND PAYMENT.
General Requirement. Customer agrees to pay V5 when due the applicable amounts in accordance with the Quote and Documentation. For Leased Products and Services, Customer agrees to be responsible for paying for all fees for the entire Term, regardless of whether such Leased Products or Services are actively used. Except as otherwise set forth in the Agreement, all payment obligations are non-cancelable and all amounts paid are nonrefundable. This section 5 and all of its subsections apply in all situations in which you directly pay V5. If you pay a company other than V5, then the charges and billing terms may be stated by the other company to the extent different then set forth herein. Customer is responsible for all incidental charges related to using the Products or Services including, for example, charges for electricity, Internet access, third party software licenses, or other data transmission. All pricing terms are Confidential Information of V5. Customer will be billed in the currency and under pricing schemes applicable to the territory for the Products or Services. 3.2
Late Payments. xcept to the extent prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1.5% of the unpaid amount each month or the maximum rate that is permitted by law. We may use a third party to collect any amounts. You must pay for all reasonable costs we incur to collect any past due amounts which costs may include reasonable attorneys’ fees and other legal fees and costs. Any V5 Entity may suspend, cancel or otherwise terminate your rights in whole or in part with respect to all Products or Services if you fail to pay in full on time for any Product or Service purchased from any V5 Entity, including any failure to make any Term based payment. 3.3
Pricing. If, pursuant to the Documentation, Customer is paying “Upfront” for Products or Services, no refunds, opt outs or conversions are available and Customer agrees to pay all applicable fees for the Products in full and for Services for the full Term upon acceptance of the Quote by V5. If, pursuant to the Documentation, Customer is paying in installments under a purchase plan for Purchased Products, or deposits and rent over a Term for Leased Products, or Service fees over a Term for Services (all such payments collectively referred to as “Installments”), except as required by law or as otherwise set forth in the Agreement, no refunds, opt outs or conversion are available and upon acceptance of the Quote by V5, Customer agrees to pay all Installments for the full purchase plan schedule or applicable Lease or Services Term in accordance with the Quote. 3.4
Pricing Changes for Term based items. With respect to Leased Products and Services acquired on a Term basis, Customer agrees that V5 may from time to time either increase or decrease the fee(s) for all or any portion thereof, and that any such adjustment, when made by V5, shall apply effective at the expiration of the current Term to the applicable fees that Customer must pay. Customer’s sole remedy in such a case, if it does not wish to pay the adjusted fees, is to elect to terminate the Leased Product or Service at the expiration of the current Term. Any one time, ongoing, or related account or other fees are non-refundable and nontransferable even if prices for related Products or Services are changed. 3.5
Payment method; Credit Card Authorization. If paying by credit card, you must provide V5 with an approved valid credit card or other electronic or standard purchase order and payment processing information. Until all amounts due have been paid in full, you hereby authorize V5 to charge any credit card provided by you to V5, all amounts due under the Agreement from time to time, including without limitation, ongoing Installments, taxes, and additional fees. You agree to update your payment information to keep it current at all times and agree that V5 may submit charges for processing even if the payment information appears to have expired. All prices are given and must be paid in the currency listed. 3.6
Taxes. V5’s fees are exclusive of all taxes, fees, levies, duties, VAT, GST, sales tax, use tax, withholding taxes, assessments, liens or any other similar charges levied upon V5 or the Products or arising out of the Agreement by any governmental body or political subdivision thereof, and you agree to pay or reimburse all such amounts in addition to the fees for the Products and Services, excluding only taxes based solely on V5’s income. 3.7
Conversion of Trial Period Offers. Unless we notify you otherwise, if you are participating in any trial period offer, you must cancel the service by the end of the trial period or you hereby authorize us to charge your payment method for the Products or Services at standard rates. 3.8
Invoices : Errors. We may only provide you with a single invoice and we may provide it via electronic means including via an online billing statement. This may be the only billing statement that we provide. If you request a paper copy, we may charge you a retrieval fee. If we make an error on your invoice, we will correct it promptly after you tell us and we investigate the charge. YOU MUST TELL US WITHIN NINETY (90) DAYS AFTER AN ERROR FIRST APPEARS ON YOUR INVOICE (WHETHER IN YOUR ONLINE BILLING STATEMENT OR IF SENT TO YOU). YOU RELEASE US FROM ALL LIABILITY AND CLAIMS OF LOSS RESULTING FROM ANY ERROR THAT YOU DO NOT REPORT TO US WITHIN (90) DAYS AFTER THE ERROR FIRST APPEARS ON YOUR INVOICE (WHETHER IN YOUR ONLINE BILLING STATEMENT OR IF SENT TO YOU). If you do not tell us within this time, we will not be required to correct the error. We can correct billing errors at any time.
INTELLECTUAL PROPERTY, LICENSES, AND RESTRICTIONS
Intellectual Property. You acknowledge that V5 is the exclusive owner of all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other proprietary rights relating to the Products and Services. You acknowledge that the Products and Services contain trade secrets of V5 or its suppliers or licensors. You agree not to disclose, provide, or otherwise make available trade secrets contained within the Products and Services in any form to any third party and you further agree to implement reasonable security measures to protect such trade secrets. You agree not to reverse engineer, decode, decompile, disassemble, modify or create any derivative works of any of the Products or Services. You shall not reverse engineer or use, access or analyze the Products or Services in order to or to assist in (a) building a competitive product or service, (b) building a product using similar ideas, features, functions or graphics of the Products or Services, or (c) copying any ideas, features, functions or graphics of the Product or Services. You may not remove from the Products or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings. 4.2
License. The Software and Services are the property of V5 or its licensors, and are protected by law, including applicable copyright law. Although V5 or its licensors continue to own the Software and Services, after Customer’s acceptance of the Agreement, Customer has license rights to the Software and access rights to the Services during the applicable Term all as set forth in the Agreement. Conditioned upon compliance with the terms and conditions of the Agreement, V5 grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicenseable and non-assignable license to use the Software and Documentation for which the required fees have been paid solely in connection with Customer’s use of the Products for their intended business purposes. All right, title and interest in and to all Software and Documentation shall remain with V5, subject to the limited license granted to Customer. 4.3
Restrictions. Without prior written consent of V5: (a) no right to copy any Software or Documentation in whole or in part is granted; and (b) Customer shall not sell, rent, lease, assign, or sublicense to any third party, directly or indirectly, the Software, Documentation or any license or right granted hereunder, in whole or in part. The foregoing restrictions do not prohibit transfer of the Product and in such case, all terms of this Agreement including the foregoing license shall be transferred to any subsequent acquirer of the Products. Customer shall not combine the Software or Documentation with any other software or documentation. Your license to the Software and Documentation are and shall at all times remain subject to your compliance with all of the terms and conditions of the Agreement, and shall terminate without notice by V5 to you in the event of a breach by you of any of your obligations under this Section. 4.4
Export Requirements. Customer shall not: (a) export or re-export the Software/Products, in whole or in part, without the prior written consent of V5 and first securing the appropriate approvals, clearances, and licenses required by all applicable laws and regulations; or (b) move any Products/Software outside of the United States of America without the prior written consent of V5 and compliance with all applicable export control laws and regulations. 4.5
Governmental Licensing Matters. The Products were developed at private expense, is commercial, and is published and copyrighted. The Products may be transferred to the U.S. government only with the prior written consent of an officer of V5 and solely with “Restricted Rights” as that term is defined in FAR 52.227-19(c)(2) (or DFAR 252.227-202.32 (c)(1) if the transfer is to a defense-related agency) or subsequent citation. If Customer is an agency of the United States government or acquiring the Products for operation on behalf of the United States government, then the Product is licensed to Customer with rights no greater than those set forth in Federal Acquisition Regulation 52.227-19(c)(2) (or DFAR 252.227-7202.32 (c)(1) if Customer is a defense-related agency) or subsequent citation. 4.6
No Competitors. You may not access or use the Products or Services if you are a competitor of V5 or if you are working in conjunction with or on behalf of a competitor. In addition, you may not access or use the Products or Services for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
TERM AND TERMINATION.
Term and Auto-Renewal. This Agreement applies generally with respect to all Products and Services. For Services and Leased Products, the initial term shall be as set forth in the Quote and may be different for each such Service or Leased Product. Upon the expiration of the initial term, each Service and Lease will automatically renew for successive renewal terms equal in duration to the initial term at and the current term for each Leased Product or Service item, shall be referred to as the “Term.” Either party may terminate any Service Term or Leased Product Term, effective only upon the expiration of the then current Term, by notifying the other party in writing at least thirty (30) days prior to the expiration date of the current term and such termination shall not affect the duration, validity or obligations under any other Service Term or Leased Product Term. 5.2
Termination. In the event of a material breach by Customer of the Agreement or any of its obligations to any V5 entity, in addition to the rights otherwise set forth in the Agreement and not in limitation thereof, V5 may terminate the Agreement, all Terms for Leased Products and Services and the rights granted herein in whole or in part with respect to all Products or Services purchased by Customer upon written notice to Customer; provided that if the breach is curable, the termination shall be effective only if the breach is not cured within ten (10) days following the Customer’s receipt of such written notice. Customer may terminate the Agreement with respect to the affected Products or Services upon written notice to V5 in the event of a material breach by V5 of the Agreement with respect to such Product or Service, provided that if the breach is curable, the termination shall be effective only if the breach is not cured within ten (10) days following the V5’s receipt of such written notice. Any free, beta or Trial Products or Services may be terminated by either party at any time with or without notice to the other. V5 will have no responsibility to notify any third party, of any termination or suspension of the Agreement, nor will V5 have any liability for any consequences resulting from any termination, suspension or lack of notification. 5.3
Effect of Termination. In the event of termination, cancellation, or expiration: (a) of the Agreement, Customer shall immediately cease making any use of all Products, Services and Documentation; and (b) of an Installment purchase, Customer shall immediately cease making any use of the applicable Products, Services and Documentation; and (c) in all cases, pay V5 for all amounts due through the effective date of termination, cancellation, expiration. In addition: (x) if this Agreement terminates as a result of any breach by Customer then Customer shall immediately, upon the request of V5, return such Products to V5 at Customer’s sole cost and expense; and (y) except where Customer terminates for V5’s breach, Customer agrees to pay any future Installments due for the full Installment schedule in accordance with the Quote, as applicable, as consideration for pricing accommodations and other consideration and as a fair approximation of damages and not as a penalty. Any payments due hereunder will be immediately due and payable and can be charged by V5 against any Customer card on file or other payment means previously used by Customer without further prior authorization from Customer and Customer agrees not to dispute any such charges. All sections of the Agreement other than Section 7.1 (limited warranty) and Section 10 (indemnity) shall survive.
CONFIDENTIALITY, PRIVACY AND SUBMISSIONS.
Each party agrees to hold the other party’s Confidential Information in confidence and not to use it for any purpose other than to provide or receive the Products and Services under the Agreement as applicable. Each party agrees to use the same standard of care to protect Confidential Information as it uses to protect its own similar confidential and proprietary information, but not less than a reasonable standard of care. 6.2
Confidential Information may only be disclosed to those Affiliates, employees, contractors and advisors of the V5 Entities or the Customer, as applicable, on a need-to-know basis and who agree to be bound by confidentiality restrictions; provided that nothing herein shall prevent or prohibit a party from using or disclosing Confidential Information as may be required by law, rule, regulation or legal process. 6.3
Confidential Information remains at all times the property of the disclosing party. Unless otherwise explicitly set forth herein, no licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied with respect to Confidential Information. 6.4
Privacy Statement. The V5 Privacy Statement can be accessed at the Website via http://www.v5systems.us/privacy (“Privacy Statement”). Notwithstanding the amendment process set forth in these Terms and Conditions, the Privacy Statement may be updated as set forth in the Privacy Statement. You hereby acknowledge that you have accessed and read the Privacy Statement and that it is a part of the Agreement. Customer information, including any Confidential Information and personal information or personal data may be stored, transferred and processed by any V5 Entity in any country in which any of the V5 Entities maintain facilities or personnel, and you consent to any such storage, transfer and processing of information outside of your country. 6.5
Submissions. You may submit questions or comments to V5 from time to time. V5 reserves the right to edit and post such questions or comments along with answers, if any. All such communications and any comments, feedback, suggestions, scripts, software, ideas, and other submissions related to the Products and/or Services submitted to V5 (collectively, “Submissions”) will be and remain V5’s property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Submissions are hereby assigned (and in the future deemed to be assigned) by you to V5.
LIMITED WARRANTY; DISCLAIMER OF WARRANTIES; INTERNET DELAYS.
Limited Warranty. Subject to all the provisions of this Section 7, V5 warrants that during the Term for which Customer has purchased warranty Services: (a) each V5 Product (excluding Software) shall be free from material defects in materials and manufacture; and (b) any Software incorporated in any V5 Products shall perform in material accordance with the Documentation. Customer’s exclusive remedy, and V5’s exclusive obligation, for any breach of the foregoing warranty shall be for V5 to repair or replace the defective V5 Product, Software or component thereof, as determined by V5 (or if the Software provides the functionality intended by V5 and the error is in the Documentation V5 will correct the Documentation). Customer agrees that any replacement Products or components thereof provided hereunder may be remanufactured or may be the same or newer or upgraded Product models. 7.2
Disclaimer Of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THE PRECEDING SECTION, THE PRODUCTS ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, V5 MAKES, AND CUSTOMER RECEIVES, NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE PRODUCTS OR SERVICES, EXPRESS, IMPLIED, STATUTORY OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION BETWEEN THE PARTIES. V5 SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, CONTINUOUS OPERATION AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. 7.3
Exclusions From Warranty Coverage. V5 has no warranty obligation or any liability whatsoever as to: (a) any Product which has been repaired, altered or otherwise modified by anyone other than V5 or any of its authorized representatives; (b) any consumable goods and other items which have a limited life expectancy due to normal wear and tear; (c) any Product which was damaged as a result of negligence, abuse, misuse or operation or use in a manner inconsistent with any operating instructions provided by V5, or has been subjected to abnormal physical or electrical stress or abnormal environmental conditions; (e) any Third Party Products provided that V5 shall assign any applicable manufacturer’s warranty to Customer; and (e) is provided for beta, evaluation, testing or demonstration purposes. 7.4
Electronic Communications and Fault Tolerance. SERVICES MAY BE SUBJECT TO LIMITATIONS, SECURITY RISKS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. V5 ENTITIES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, SECURITY BREACHES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE PRODUCTS AND SERVICES CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE PRODUCTS OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
TRIAL PRODUCTS AND SERVICES. Customer acknowledges and agrees that any Trial Products and Services may not be at the level of performance or compatibility of a final, generally available Products or Service offering and may be substantially modified prior to commercial shipment, or withdrawn in whole or in part. All Trial Products and Services offered on a trial basis are provided “AS IS” without warranty of any kind. The entire risk arising out of the use or performance of Trial Products or Services remains with Customer. In no event shall any of the V5 Entities be liable for any damage whatsoever arising out of or related to any Trial Products or Services even if V5 has been advised of the possibility of such damages and Customer’s sole and exclusive remedy will be to terminate use of the Trial Products or Service.
Marks. The Marks are available to you only if you meet the V5 criteria to use them. The criteria may be obtained by written request to V5. If you meet the criteria and V5 has not informed you otherwise, during the Term, we grant to you a revocable at any time non-exclusive, non-transferable, limited, royalty-free license to use the applicable Marks. You acknowledge and agree that: (a) V5 or its licensors is the sole owner of the Marks and the sole beneficiary of the goodwill associated with your use of the Marks; (b) You will not acquire any right, title or interest in the Marks because of your use of the Marks; and (c) You will not register, adopt or use any name, trademark, domain name or other designation that includes all or part of any Mark, or any term that is confusingly similar to a Mark, or a translation or transliteration of a Mark and specifically agree not to direct or re-direct communications network traffic to any network address associated with Customer or with any other third party; cause such network traffic to be so directed or so re-directed on behalf of Customer or with any other third party; or list or cause to be listed any Internet website associated with Customer or with any third party in response to a keyword search that receives as input, whether in whole or in part based on the foregoing.
THIRD PARTY CLAIMS.
V5’s Obligations Re Third-Party Infringement Claims V5 will defend, at V5’s expense, any lawsuit brought against you in any court located within Customer’s country of purchase, insofar (but only insofar) as the suit is based on a claim that any V5 Product as provided by V5 to you, directly infringes any third party patent or copyright, provided that: (a) V5 is notified in writing of the lawsuit within thirty (30) days after you obtain actual knowledge of it, (b) V5 is given full control over the defense of such claims, and (c) you give V5 reasonable assistance and cooperation in its defense of the claim. If your use of the Product is determined in a final, enforceable judgment to infringe a third-party intellectual property right or in V5’s opinion is likely to become, the subject of a claim of infringement, then V5 may at its sole option: (1) secure Customer’s right to continue using the Product; (2) replace or modify the Product to make it non-infringing; (3) substitute for the infringing Product with another suitable, non-infringing Product; or (4) upon return of all infringing Products, (A) with respect to Purchased Products refund to Customer the price actually paid by Customer for the infringing Product; and (B) with respect to Leased Products terminate the applicable Leased Product Term and refund amounts prepaid, if any, for such Term for periods after the termination. Notwithstanding anything to the contrary in the Agreement, V5 will have no obligation to you on account of any third-party claim of infringement that results from: (w) any use by you of the Products in violation of the Agreement; (x) use of any Product in combination with other products, equipment or software not supplied by V5; (y) modification of any Products made by any person other than V5 or its authorized representatives; or (z) your use of any superseded, altered, or allegedly infringing version or release of the V5 Product if such alleged infringement could be avoided by the use of a different version or upgrade made available to you by V5. You agree to defend, indemnify and hold harmless the V5 Entities against any claims of infringement by third parties resulting from any of the circumstances listed in the immediately preceding sentence. The foregoing states V5’s entire responsibility with respect to intellectual property claims and Customers sole and exclusive remedy. 10.2
Customer Indemnity. You agree to defend, indemnify, and hold harmless each of the V5 Entities from and against any and all claims, liabilities, damages, and/or costs (including, but not limited to, fees, costs and other expenses of attorneys and expert witnesses) arising out of the use of the Products or Services acquired by you, including but not limited to compliance with laws, rules and regulations, third party intellectual property rights and any claims by anyone you monitor or fail to monitor or the use or non-use of any data or materials obtained via the Products and Services.
EXCLUSION OF DAMAGES; LIMITATION ON LIABILITY.
Exclusion Of Certain Damages. IN NO EVENT SHALL V5 OR ANY OF ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION EVEN IF V5 HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. 11.2
Limitation On Liability. Except for damages that are required by law to be paid and cannot be limited by contract, you agree that all damages are excluded except for the direct damages that are actually incurred by you and in all cases, V5’s total liability, from any cause or causes, and regardless of the legal theory, including breach of contract, warranty, negligence, strict liability, or statutory liability, in the aggregate, shall not exceed the lesser of the amounts paid (a) to V5 under this Agreement during the twelve (12) months immediately prior to the making of the claim or (b) for the specific Products at issue. 11.3
Allocation of Risk. Customer acknowledges and agrees that V5 has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Products or Services. The limitations and exclusions provided for by this section reflect an informed and voluntary allocation of risks between the parties and applies to risks both known and unknown that may exist in connection with the Agreement.
Assignment. Subject to the terms and restrictions contained in this Agreement, each party may freely assign the Agreement in whole or in part; provided that with respect to Installment purchases, Customer may assign its rights only if: (1) you notify V5 in writing of the proposed assignment, (2) your assignee or transferee expressly agrees in writing to assume all of your obligations under this Agreement, (3) your assignee or transferee is no less capable of performing this Agreement than are you; and (4) unless otherwise agreed by V5 in writing, you will remain jointly and severally liable with any such assignee or transferee for the full and timely performance of all obligations under this Agreement. Any purported assignment in violation of this section shall be void. 12.2
Notices and Electronic Communications. V5 may give notice by means of electronic notifications or electronic mail to your e-mail address(es) on record in V5’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in V5’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to V5 (such notice shall be deemed given when received by V5) at any time by any of the following: letter sent by confirmed facsimile or third party confirmed mail delivery to V5 at the address set forth on the Website. You agree that V5 may communicate electronically with you for matters relating to your account, billing, the Products and Services, including educational information and notifications regarding product updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Products and Services. The parties agree that the Agreement is to be written in English only, unless V5 in its sole discretion releases any part of the Agreement in other language(s). If V5 chooses to release any part of the Agreement in any language other than English, V5 does for so for informational purposes only and you hereby agree that the English language version shall govern and control in all cases. 12.3
Choice of Law. The Agreement shall be governed by Delaware law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with the Agreement or the Products or Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Alameda County, California. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to the Agreement. Customer and V5 agree that Customer and V5 MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, and not as a plaintiff or class representative or class member in any purported class or representative proceeding as a private attorney general. V5 and Customer hereby agree that each is waiving all respective rights to a trial by jury regarding any disputes, actions, claims or causes of action arising out of or in connection with the Agreement or the Products or Services. This choice of jurisdiction and venue does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement of recognition of any award or order in any appropriate jurisdiction. If either party commences litigation in connection with the Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses. 12.4
Waiver and Severability. The failure of either party to insist in any instance upon any payment or performance when due by the other party, shall not relieve such other party of its any of obligations with respect to such performance, or constitute a waiver of such party’s right to insist upon the full and timely performance in the future of any of the other party’s obligations under the Agreement. If any of the provisions of the Agreement shall be held by a court of competent jurisdiction for any reason to be unenforceable by reason of being excessively broad, or excessively narrow or limited, in its scope or duration, the offending provision(s) automatically shall be deemed amended so as to be as broad as is permissible (if the unenforceability is due to excessive breadth) or as narrow or limited (if the unenforceability is due to excessive narrowness or limitation) as is permitted by applicable law. The unenforceability or invalidity of any one provision shall not affect the remainder of the Agreement, which shall continue in full force and effect. 12.5
Compliance With Law and Export Control. You shall abide by all applicable local, state, national and foreign laws, rules, treaties and regulations in connection with your use of the Products and Services, including those related to data privacy, international communications and the transmission of technical or personal data. You acknowledge that the Products, Services and related technology and technical data (collectively “Controlled Technology”) may be subject to the import and export laws of any country where Controlled Technology is imported or re-exported, including U.S Export Administration Regulations. You agree not to export or import any Controlled Technology in contravention to law nor to any prohibited country (such as embargoed countries), entity, or person (such as designated nationals) for which a license or other governmental approval is required or is otherwise prohibited. All Controlled Technology is prohibited for export or re-export to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, North Korea, Syria and Sudan and to any country subject to similar trade sanctions. You further agree that you will not use, export or sell any Controlled Technology for use in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons. 12.6
Verifying Compliance And Customer Records Customer grants to V5 and its independent accountants the right to examine Customer’s books, records and accounts during Customer’s normal business hours to verify compliance with the Agreement. In the event such audit discloses non-compliance with the Agreement, Customer shall immediately pay to V5 the appropriate fees, plus the reasonable cost of conducting the audit. 12.7
Agreement Priority. The terms of this Customer Agreement govern Customer’s access and use of the Products and Services, provided that to the extent there is an applicable separate non-electronic agreement manually signed by authorized representatives of the parties the order of precedence shall be the signed agreement and this Customer Agreement. Except as set forth in the preceding sentence or otherwise indicated in this Customer Agreement, this Customer Agreement shall govern in case of a conflict between the Customer Agreement and the Documentation. 12.8
Force Majeure. V5’s performance of the Agreement (including the Privacy Statement) is subject to existing laws and legal process, and you agree that V5 may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of the Agreement. Each party’s obligation to perform its obligations hereunder (other than your obligation to pay fees when due) shall be suspended during any period that the party is rendered incapable of performing by virtue of any criminal acts of third parties, war, viruses, acts of public enemies, severe weather conditions, utility failures, strikes or other labor disturbances, fires, floods, other natural disasters, other acts of God, unforeseeable acts of employees, telecommunication or interruption of Internet service, or any causes of like or different kind beyond any reasonable control of the party. 12.9
Independent Contractor. We are independent contractors, and nothing contained in the Agreement shall be construed to (A) give either party the power to direct and control the day-to-day activities of the other, (B) constitute the parties as partners, joint venturers, co-owners agents, franchisee or franchisor or otherwise, or (C) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Customer is not an employee of V5 and is not entitled to any V5 benefits. All financial and other obligations associated with each party’s business and are the sole responsibility of such party. Customer represents and warrants that it: (X) will not make any representation, warranties, or guarantees on behalf of V5, and (Y) will not disparage V5 in any manner or otherwise harm V5’s business or reputation. 12.10
Entire Agreement. The Agreement (including these Terms and Conditions, the Documentation, and the other items referenced herein and therein) constitutes the entire agreement between V5 and you with respect to the Products and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between V5 and you regarding them. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that you may now or later provide to V5, will have no effect and that the Agreement is the only contract between V5 and you regarding the Products and Services and may only be amended as set forth herein. A printed version of the Agreement and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. 12.11
Amendments. V5 may, at any time, amend the provisions of the Agreement and/or the Privacy Statement, and you may accept the amended provisions in the manner indicated in the amendment notice as communicated by V5. Any amendment proposed by you may only be accepted by V5 in a non-electronic writing manually signed by authorized representatives of the parties. Therefore, you agree to periodically visit the Website to examine the then-current Agreement (including the Privacy Statement).
Questions or Additional Information:
If you have questions regarding the Agreement or wish to obtain additional information, please send an e-mail to: legal@V5systems.us.
Last Updated: August 27, 2015