Updated January, 2016
1. Definitions. When used in this Agreement with initial letters capitalized, in addition to terms defined elsewhere in this Agreement, the following terms have the following meaning: “Account(s)” means all User content account(s) created by the User for itself or on behalf of Customer within the Veloxy Service. “Veloxy Software” means software that allows a User to use certain functionality in connection with certain features of the Veloxy Service that is provided by Veloxy either for installation on a Customer’s or a User’s device or that is otherwise accessed by Users from the Customer’s or User’s software, hardware or other devices. “Content” means electronic data and information submitted by Customer to the Veloxy Services or collected and processed by Customer using the Veloxy Services “Customer Domain” means all email and/or web addresses registered, owned or controlled by Customer, its affiliates and/or agents and used by one or more Users to register an Account. “Fee(s)” means the amounts payable to Veloxy as specified in the applicable Order. “Malware” means any software program or code intended to destroy, interfere with, corrupt, or cause undesired effects on program files, data or other information, executable code or application software macros. “Order” means a Veloxy quote order or other ordering document agreed to in writing by the Parties under this Agreement or by Customer which is accepted by Veloxy. “Subscription Period” means the time commencing on the Order Effective Date and continuing for the period specified in the applicable Order, or if no such period is specified, a 1 year period. “User(s)” means, collectively, any person who is permitted to access, store, retrieve or manage Content in any Account.
2. License Grant. The Veloxy Services are owned by Veloxy and are licensed, not sold, to you. Veloxy grants to you a personal, nonexclusive, nontransferable, limited license (without the right to sublicense) to access and use the Site and to access, download, install and use the Veloxy Services subject to the limitations set forth in these Terms, any relevant purchase order or ordering document related to the Veloxy Services (“Order Form”) and any and all other terms and policies set forth in the Veloxy Services. You acknowledge that the source code for the Veloxy Services and other trade secrets embodied in the Veloxy Services have not been and will not be licensed or otherwise disclosed to you. All rights not expressly granted herein are reserved by Veloxy.
3. Access and Use of Veloxy Services.
3.1 Account Registration: In order to access certain features of the Services, you must register to create an account (“Account”) and become a User. You may register directly via the Application. During the registration process, you will be required to provide certain information and you will establish a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Veloxy reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions.
3.2 Your Responsibilities: You are responsible for providing the equipment and services that you need to access, download, install and use the Veloxy Services. Veloxy does not guarantee that the Veloxy Services are accessible on any particular equipment or device or with any particular software or service plan. You are responsible for all activities that occur through your Account, whether or not authorized by you. Please do not share your Account with any other person. Information and content accessible through the Services may be protected by intellectual property rights of others. Please do not copy, upload, download, or share any information or content unless you have the right to do so. You, not the Company, will be fully responsible and liable for what you copy, share, upload, download or otherwise use while using the Services. You must not upload spyware or any other malicious software to the Service, or use the Service to spam others. You, and not the Company, are responsible for maintaining and protecting all of Your Data. The Company will not be liable for any loss or corruption of Your Data, or for any costs, fees, or expenses associated with backing up or restoring any of Your Data. You will use the Veloxy Services only for your internal business purposes and in accordance with applicable laws, rules and regulations. You are responsible for all of your activities that occur within, through or as a result of your use of the Veloxy Services. You agree that you will not use the Veloxy Services for unlawful purposes or to engage in any illegal, offensive, indecent or objectionable conduct, including violation of any third party privacy or other rights. If any information related to your account changes, you must notify us promptly and keep your information current. The Services are not intended for use by you if you are under 18 years of age. By agreeing to these Terms, you are representing to us that you are over 18. When you use the Veloxy Services on your mobile device, you are solely responsible for all message and data fees charged by your wireless service provider. Veloxy is not liable for any delays, interruptions or other transmission errors related to your device, service or wireless service provider. You are responsible for complying with all laws, rules and regulations (including those relating to internet, data and email privacy) that apply to your use of the Veloxy Services.
3.3 Notification of Unauthorized Use. Customer will immediately notify Veloxy in writing of any unauthorized use of any Account, Content or the Veloxy Service that comes to Customer’s attention. In the event of any such unauthorized use by any third party that obtained access to the Veloxy Service directly or indirectly through Customer or through any User, Customer will take all steps necessary to terminate such unauthorized use and will provide Veloxy with such cooperation and assistance related to any such unauthorized use as Veloxy may reasonably request.
3.4 Our Responsibilities: Veloxy is responsible for providing the Veloxy Services in accordance with these Terms and all applicable laws, rules and regulations. We will maintain commercially reasonable administrative, physical and technical safeguards intended to protect the security, confidentiality and integrity of information that you provide to or through the Veloxy. Veloxy reserves the right but is not obligated to improve, enhance or modify the Veloxy Services. We will notify you in advance of changes to the Veloxy Services that may significantly adversely affect the manner in which you use the Veloxy Services or the manner in which the Veloxy Services perform. Veloxy is not responsible for the content of Other Services or for losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees (“Claims”) arising from your use of content, information, web sites, Software, services and other materials of third parties with which you may interact when you use the Veloxy Services.
3.5 Availability: We use commercially reasonable efforts to make the Veloxy Services available to you 24 hours per day, seven (7) days per week, excluding scheduled maintenance time, unavailability caused by you or any software, hardware or service not provided by us, unscheduled downtime and/or any cause beyond our reasonable control (including without limitation nature disasters, wars, terrorist act, civil disturbances, acts of any government or agency thereof, strikes or other labor problems, Internet service or other third party service providers’ failures or delays and systemic electrical, telecommunications or other utility outages or failures).
5. Software and Updates. Some parts of our Service may require you to download a client software package (“Software”). Subject to these Terms, the Company hereby grants you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Services. This license will be automatically revoked if you violate these Terms. We reserve all rights not explicitly granted in these Terms. You must not attempt to reverse engineer the Software or encourage or assist anyone else to do so. The Services may automatically update the Software on your device when a new version becomes available. Subject to the limited rights expressly granted hereunder, we and our licensors reserve all of our/their right, title and interest in and to the Veloxy Services and Software, including all of our/their related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
6. Mobile Software from iTunes. The following applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Downloaded Software”): You acknowledge and agree that this Agreement is solely between you and Veloxy, not Apple, and that Apple has no responsibility for the iTunes-Downloaded Software or content thereof. Your use of the iTunes-Downloaded Software must comply with the App Store terms. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Downloaded Software. In the event of any failure of the iTunes-Downloaded Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Downloaded Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Downloaded Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Veloxy as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Downloaded Software or your possession and/or use of the iTunes-Downloaded Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Downloaded Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Veloxy as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Downloaded Software or your possession and use of that iTunes-Downloaded Software infringes that third party’s intellectual property rights, Veloxy, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Veloxy acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Downloaded Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Downloaded Software against you as a third party beneficiary thereof.
7. Warranties. We warrant that we have validly entered into these Terms and have the legal power to do so. You warrant that (i) you have validly entered into these Terms and have the legal power to do so and (ii) you have all necessary rights, licenses, consents and permissions to use Your Content with the Veloxy Services. WE TRY TO PROVIDE A GREAT SERVICE, HOWEVER, EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE COMPANY DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. VELOXY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY PROVIDERS.
8. Limitation of Liability. VELOXY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THE DELIVERY, USE OR PERFORMANCE OF THE VELOXY SERVICES OR THESE TERMS (WHETHER IN CONTRACT OR UNDER ANY OTHER THEORY OF LIABILITY) WILL NOT EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT; PROVIDED THAT IN NO EVENT SHALL VELOXY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS (WHETHER IN CONTRACT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING LIMITATION WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS. IN NO EVENT WILL VELOXY BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE VELOXY SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF VELOXY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING DISCLAIMER OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. Indemnification. You agree to defend, indemnify and hold harmless Veloxy and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
10. Termination. These Terms will automatically terminate when you fail to comply with any term or condition of these Terms. Upon termination, you will cease all use of the Veloxy Services and will destroy any copy (full or partial) of any and all parts of the Veloxy Services in your possession or control. Termination will not limit any of Veloxy’s other rights or remedies at law or in equity.
11. Modifications to Terms. We may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Veloxy Services after the “Last Revised” date at the top of this page. Your continued access or use of the Veloxy Services after the modifications become effective is deemed your conclusive acceptance of the modified Terms.
12.1 Contractual Relationship. The Parties are entering into this Agreement as independent contracting parties. Neither Party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. This Agreement will not be construed to create an association, joint venture or partnership between the Parties or to impose any partnership liability upon any Party.
12.2 Notices. Any notice or other communication under this Agreement given by any Party to any other Party will be in writing and will be effective upon delivery as follows: (a) if to Customer, (i) when delivered via registered mail, return receipt requested, to the address specified in an Order; or (ii) when sent via email to the email address specified in an Order or otherwise on record for Customer; and (b) if to Veloxy, when sent via email to email@example.com. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement.
12.3 No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Veloxy’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
12.4 Assignment. Customer will not, directly, indirectly, by operation of law or otherwise, assign all or any part of this Agreement or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of Veloxy. Veloxy may assign this Agreement without obtaining Customer’s consent: (a) to an affiliate of Veloxy; or (b) in connection with a successor in interest in a merger, reorganization or a sale of all or substantially all of the assets of Veloxy. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
12.5 Export Laws. You agree that you will not export or re-export, directly or indirectly, the Veloxy Services and/or other information or materials provided by Veloxy hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. You are responsible for and hereby agree to comply at your sole expense, with all applicable United States export laws and regulations.
12.6 Remedies. You agree that a breach or a threatened breach of these Terms will cause injury to Veloxy for which money damages will not provide an adequate remedy and Veloxy will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
12.7 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Veloxy in connection with the Service, shall constitute the entire agreement between you and Veloxy concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
12.8 Applicable Law; Dispute Resolution. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its choice of law rules. Any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by the Judicial Arbiter Group (or, if unavailable, then such other similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with mobile, cloud or internet services. The place of such arbitration will be in Mountain View, California, U.S.A. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the Parties, and may be entered in any court of competent jurisdiction. The foregoing does not limit or restrict either Party from seeking injunctive or other equitable relief from a court of competent jurisdiction.
12.9 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party (a) provides the other Party with prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event. Please Contact Us with any questions regarding this agreement with “Terms of Service” in the subject line.