VEROHIVE TERMS OF SERVICE
IMPORTANT NOTICE: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE VEROHIVE SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
These VEROHIVE Services Terms and Conditions (“Terms”) govern access to and use of the VEROHIVE (“VEROHIVE,” “we” or “us”) web sites, applications and services (collectively, the “Site”) by site visitors (“Site Visitors”) and by individuals or entities who purchase services (“VEROHIVE Services”) or create an account (“Account”) and their Authorized Users (collectively, “Customers”). By using the Site or any VEROHIVE Services, you as a Site Visitor, Application User or Customer accept these Terms (whether on behalf of yourself or a legal entity you represent). An “Authorized User” of a Customer is each an individual natural person, whether an employee, business partner, contractor, or agent of a Customer who is registered or permitted by Customer to use the VEROHIVE Services subject to these Terms and up to any maximum number of users or uses specified at the time of purchase. Customers and Site Visitors may be referred to in these Terms as “you” and “your” as applicable.
BY CLICKING/CHECKING THE “AGREE” BUTTON/BOX, ACCESSING VEROHIVE, USING, OR DOWNLOADING ANY MATERIALS FROM THE VEROHIVE WEBSITE OR APPLICATIONS, UTILIZING VEROHIVE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE SITE IMMEDIATELY.
VEROHIVE will provide the Services, and you may access and use the Services, in accordance with this Agreement. If You order Services through an on-line registration page or an order form (each an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Services you are ordering. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Service which You choose to use, those additional terms are hereby incorporated into this Agreement in relation to Your use of that Service.
System Requirements . Use of the Services requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your sole responsibility.
1. UPDATES AND COMMUNICATIONS
1.1 We may revise these Terms or any additional terms and conditions that are relevant to a particular VEROHIVE Service from time to time to reflect changes in the law or to the VEROHIVE Services. We will post the revised terms on the Site with a “last updated” date. PLEASE REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE VEROHIVE SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
1.2 You agree to receive all communications, agreements, and notices that we provide in connection with any VEROHIVE Services (“Communications”), including, but not limited to, Communications related to our delivery of the VEROHIVE Services and your purchase of or subscription to the VEROHIVE Services, via electronic means, including by e-mail, text, in-app notifications, or by posting them on the Site or through any VEROHIVE Services. You agree that all Communications we provide to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner and you agree to keep your Account contact information current.
2. ADDITIONAL TERMS FOR VEROHIVE SERVICES
2.1 VEROHIVE Video Conferencing and Messenger. If you use VEROHIVE’s Video Conferencing and Messenger, you accept the Terms of the VEROHIVE Video Conferencing and Messenger Schedule below.
2.2 Payments. If you use the “Payments” feature in VEROHIVE Video Conferencing and Messenger, you accept the terms of the Payments Attachment below.
2.3 Comments. If you use the “Comments” feature in VEROHIVE Video Conferencing and Messenger, you accept the terms of the Comments Attachment below.
2.4 VEROHIVE Portals. If you use VEROHIVE Portals, you accept the Terms of the VEROHIVE Portals Schedule below.
3. USAGE AND ACCESS RIGHTS
3.1 Eligibility to Use. You represent and warrant that you are: (a) of legal age (18 years of age or older or otherwise of legal age in your resident jurisdiction) and competent to agree to these Terms; and (b) you (or your Authorized Users, as applicable) are not and will not when using the Site be located in, under the control of, or a national or resident of a U.S. embargoed country or territory and are not a prohibited end user under Export Control Laws (as defined in Section 12.3). You acknowledge that you are not permitted to use the Site if you cannot make these representations. If VEROHIVE has previously prohibited you from accessing the Site or using the VEROHIVE Services, you are not permitted to access the Site or use the VEROHIVE Services. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity). You may only use the Services pursuant to the terms of this Agreement. You are solely responsible for your and your End Users’ use of the Services and shall abide by, and ensure compliance with, all Laws in connection with your and each End User’s use of the Services, including but not limited to Laws related to recording, intellectual property, privacy and export control. Use of the Services is void where prohibited.
3.2 Beta Services. VEROHIVE may, from time to time, offer access to services that are classified as Beta version. Access to and use of Beta versions may be subject to additional agreements. VEROHIVE makes no representations that a Beta version will ever be made generally available and reserves the right to discontinue or modify a Beta version at any time without notice. Beta versions are provided AS IS, may contain bugs, errors or other defects, and your use of a Beta version is at your sole risk.
3.3 Limited License. Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Site for your internal business purposes and only as expressly permitted in these Terms and any applicable paid Customer plan that enables registration of an Account for the use of a VEROHIVE Service (“Subscription Plan”) when applicable. You shall not use or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these Terms. If you are or become a direct competitor of VEROHIVE, you may not access or use the VEROHIVE Services without VEROHIVE’s explicit, advance, written consent, and then only for the purposes authorized in writing. Except as otherwise restricted by these Terms, VEROHIVE grants you permission on a non-exclusive, non-transferable, limited basis to display, copy, and download content and materials on the Site provided that you: (a) retain all copyright and other proprietary notices on the content and materials; (b) use them solely for personal or internal, non-commercial use or in accordance with any applicable Subscription Plan; and (c) do not modify them in any way. Each discrete Subscription Plan includes restrictions and requirements that outline the features that Customer will be able to access. Any violation by you of the license provisions contained in this Section 3 may result in the immediate termination of your right to use the Site, as well as potential liability for copyright infringement or other claims depending on the circumstances.
3.4 Recordings. You are responsible for compliance will all recording laws. The host can choose to record VEROHIVE meetings and Webinars. By using the Services, you are giving VEROHIVE consent to store recordings for any or all VEROHIVE meetings or webinars that you join, if such recordings are stored in our systems. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to being recorded, you can choose to leave the meeting or webinar.
3.5 Prohibited Use. You agree that you will not use, and will not permit any End User to use, the Services to: (i) modify, disassemble, decompile, prepare derivative works of, reverse engineer or otherwise attempt to gain access to the source code of the Services; (ii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts VEROHIVEs networks, your accounts, or the Services; (iii) engage in activity that is illegal, fraudulent, false, or misleading, (iv) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; or (vi) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (vii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of VEROHIVE or other users of Services; (viii) engage in any activity or use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or VEROHIVE’s security systems. (ix) use the Services in violation of any VEROHIVE policy or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and You agree that you are solely responsible for compliance with all such laws and regulations.
3.6 Registration Information. You may be required to provide information about Yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to choose a user name and password. You are entirely responsible for maintaining the security of your user name and password and agree not to disclose such to any third party.
3.7 Limitations on Use.You may not reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose unless You have been specifically permitted to do so under a separate agreement with VEROHIVE. You may not offer or enable any third parties to use the Services purchased by you, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by you) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
4.1 Intellectual Property. The Site contains materials that are proprietary and are protected by copyright laws, international treaty provisions, trademarks, service marks, and other intellectual property laws and treaties.
4.1.1 The Site is also protected as a collective work or compilation under copyright and other laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Site. You acknowledge that the Site contains original works that have been developed, compiled, prepared, revised, selected, and arranged by VEROHIVE and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and which constitute valuable intellectual property of VEROHIVE and such others. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the Site, shall, as between you and VEROHIVE, at all times be and remain the sole and exclusive property of VEROHIVE.
4.1.2 The trademarks, logos, taglines, and service marks displayed on the Site (collectively, the “Trademarks”) are registered and unregistered Trademarks of MEGAHOOT, LLC and others. The Trademarks may not generally be used in any advertising or publicity, or otherwise to indicate VEROHIVE’s sponsorship of or affiliation with any product, service, event, or organization without VEROHIVE’s prior express written permission. VEROHIVE acknowledges the Trademarks of other organizations for their respective products or services mentioned on the Site. Any rights not expressly granted in these Terms or on the IP Pages are reserved by VEROHIVE and MEGAHOOT, LLC. Other than as provided in these Terms incorporated herein by reference, your use of the Trademarks, or any other VEROHIVE content, is strictly prohibited.
4.1.3 Copyright. VEROHIVE respects copyright law and expects its users to do the same. If you believe that any content or material on the Site infringes copyrights you own, please notify us in accordance with our Copyright Policy.
4.2 Software Use Restrictions. Software available for downloading through the Site or third-party websites or applications (the “Software”) is the copyrighted work of VEROHIVE and third-party providers. Use of the Software is governed by these Terms. Unauthorized reproduction or distribution of the Software is expressly prohibited by law, and may result in civil and criminal penalties. Violators may be prosecuted.
4.3 Your Content. You agree that you are solely responsible for the content (“Content”) sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all Laws pertaining to the Content, including, but not limited to, Laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. You represent and warrant that you have the right to upload the Content to VEROHIVE and that such use does not violate or infringe on any rights of any third party. Under no circumstances will VEROHIVE be liable in any way for any (a) Content that is transmitted or viewed while using the Services, (b) errors or omissions in the Content, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although VEROHIVE is not responsible for any Content, VEROHIVE may delete any Content, at any time without notice to you, if VEROHIVE becomes aware that it violates any provision of this Agreement, or any law. You retain copyright and any other rights You already hold in Content which You submit, post or display on or through, the Services.
4.4 Non-eDocument Content and Submissions/User Content.
4.4.1 Submissions. The Site or VEROHIVE Services may enable you to submit, post, upload, or otherwise make available (collectively, “Post”) content such as questions, public messages, ideas, product feedback, comments, and other content (collectively, “User Content”) that may or may not be viewable by other users. If you Post User Content, unless we indicate otherwise, you grant us a nonexclusive, royalty-free, and fully sub-licensable right to access, view, use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display such User Content throughout the world in any form, media, or technology now known or hereafter developed. You also permit any other user to view, copy, access, store, or reproduce such User Content for that user’s personal use. You grant us the right to use the name and other information about you that you submit in connection with such User Content. You represent and warrant that: (a) you own or otherwise control all of the rights to the User Content that you Post; (b) the User Content you Post is truthful and accurate; and (c) use of the User Content you Post does not violate these Terms or any applicable laws. For the avoidance of doubt, User Content does not include any video (streaming or stored) or documents shared peer to peer, such as a contract, disclosure, or notice that you share through the VEROHIVE platform(s) for processing (“eDocuments”).
4.4.2 Screening & Removal. You acknowledge and agree that VEROHIVE and its designees may or may not, at VEROHIVE’s discretion, pre-screen User Content before its appearance on the Site or VEROHIVE Services, but that VEROHIVE has no obligation to do so. You further acknowledge and agree that VEROHIVE reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit, or remove any User Content that is contributed to the Site or VEROHIVE Services. Without limiting the foregoing,VEROHIVE and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in VEROHIVE’s sole discretion. You acknowledge and agree that VEROHIVE does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
5. RESTRICTIONS ON USE OF THE SITE
5.1 By using the Site or associated applications, including any VEROHIVE Service, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
a) Is illegal, or violates any federal, state, or local law or regulation;
b) Advocates illegal activity or discusses illegal activities with the intent to commit them;
c) Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
d) Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
e) Interferes with any other party’s use and enjoyment of the Services;
f) Attempts to impersonate another person or entity;
g) Is commercial in a way that violates these Terms, including but not limited to, using the Site for spam, surveys, contests, pyramid schemes, or other advertising materials;
h) Falsely states, misrepresents, or conceals your affiliation with another person or entity;
i) Accesses or uses the account of another user without permission;
j) Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
k) Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Site, or the servers or networks connected to the Site, or any of the VEROHIVE Services;
l) “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
m) Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
n) Decompiles, reverse engineers, disassembles, or otherwise attempts to derive source code from the Site, except as expressly permitted in these Terms or by law, unless and then only to the extent permitted by applicable law without consent;
o) Removes, circumvents, disables, damages, or otherwise interferes with security-related features, or features that enforce limitations on use of the Site;
p) Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Site, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
q) Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers, or otherwise commercializes any materials or content on the Site;
r) Uses the Services for benchmarking, or to compile information for a product or service;
s) Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Site or VEROHIVE Services, by any means except as provided for in these Terms or with the prior written consent of MEGAHOOT, LLC/VEROHIVE; or
t) Attempts to do any of the foregoing.
If you believe content on the Site violates the above restrictions, please contact us here: privacytos at verohive.com.
5.2 In addition, Customers shall not, and shall not permit others to, do the following with respect to the VEROHIVE Services:
a) Use the VEROHIVE Services or allow access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms, any applicable Subscription Plan or VEROHIVE’s Reasonable Use Policy incorporated herein by reference;
b) License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the VEROHIVE Services or VEROHIVE’s then-current technical and functional documentation for the VEROHIVE Services (“Documentation”) available for access by third parties except as otherwise expressly provided in these Terms; or
c) Access or use the VEROHIVE Services or Documentation for the purpose of developing or operating products or services intended to be offered to third parties in competition with the VEROHIVE Services or allow access by a direct competitor of VEROHIVE.
5.3 You may not frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages. You may link to the Site, provided that you acknowledge and agree that you will not link the Site to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Site effective immediately.
5.4 You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Site for violations of these Terms, or to review or edit any content. However, we have the right to do so for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
6.2 Data Processing/Transfer. If Customer or Customer’s Affiliate is established in the United Kingdom, a Member State of the European Economic Area, or Switzerland, the Data Protection Attachment for VEROHIVE Signature found at:www.verohive.com/privacypolicy (“DPA”) applies to the processing of any Personal Data (as defined in Section 1 of the DPA).
7. TERMS SPECIFIC TO VEROHIVE SERVICES
7.1 Right to Use VEROHIVE Services. Subject to these Terms, VEROHIVE will provide the VEROHIVE Services to Customers in accordance with each Customer’s Subscription Plan, and VEROHIVE grants to each Customer a limited non-exclusive, non-transferrable right and license during the Term, solely for its internal business purposes and in accordance with the Documentation, to: (a) use the VEROHIVE Services; (b) implement, configure, and, through its Account Administrator(s), permit its Authorized Users to access and use the VEROHIVE Services up to any applicable limits or maximums; and (c) access and use the Documentation.
7.1.1 Authorized Users. Authorized Users of Customer must be identified by a unique email address and user name and two or more natural persons may not use the VEROHIVE Services as the same Authorized User. If the Authorized User is not an employee of Customer, use of the VEROHIVE Services will be allowed only if the user is under confidentiality and other obligations with Customer at least as restrictive as those in these Terms, and is accessing or using the VEROHIVE Services solely to support Customer’s internal business purposes.
7.1.2 Account Administrator. Customer may assign and expressly authorize an Authorized User(s) as its agent to manage Customer’s Account, and management of Customer’s Account includes, without limitation, configuring administration settings, assigning access and use authorization, requesting different or additional services, providing usage and performance records, managing templates, executing approved campaigns and events, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions (“Account Administrator”). Customer may appoint an employee, agent or a third-party business partner or contractor to act as its Account Administrator(s) and may change its designation at any time through its Account.
7.1.4 INTENDED USE; RESTRICTION ON USE BY CHILDREN. The Services are intended for business use. You may choose to use the Services for other purposes, subject to the terms and limitations of this Agreement. VEROHIVE is not intended for use by individuals under the age of 18, unless it is through a Verified Educational Facility Subscriber using VEROHIVE for Education (K-12). Individuals under the age of 18 may not create accounts or use the Services except as described herein without parental consent.
7.2 Payment Terms.
7.2.1 Subscription Plan. The prices, features, and options of the VEROHIVE Services depend on the Subscription Plan selected as well as any changes instigated by Customer. VEROHIVE does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.
7.2.2 No Refunds. Customer will timely pay VEROHIVE all fees associated with its Subscription Plan, Account, or use of the VEROHIVE Services, including, but without limitation, by Authorized Users. CUSTOMER’S PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS. Charges for pre-paid Subscription Plans will be billed to Customer in advance. Charges for per-use purchases and standard Subscription Plan charges will be billed in arrears unless otherwise specified in the Subscription Plan.
7.2.3 Recurring Charges. When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method that you are authorized to use. You will be billed for your Subscription Plan either through the payment method you provide, such as a credit card, or through an intermediary provider such as iTunes, Google Play, or a similar app store (“App Store”). Customer must promptly notify VEROHIVE of any change in its invoicing address and must update its Account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN, CUSTOMER AUTHORIZES VEROHIVE OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING (E.G. MONTHLY OR YEARLY) BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE VEROHIVE SERVICES. The Authorization continues through the applicable Subscription Term and any Renewal Term (as defined in Section 8.2.3, below) until Customer cancels as set forth in Section 8.2 of these Terms.
7.2.4 Late Fees & Collection Costs. If VEROHIVE does not receive payment from Customer’s payment method, Customer agrees to pay all amounts due upon demand. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by VEROHIVE to collect any amount that is not paid when due. VEROHIVE may accept payment in any amount without prejudice to VEROHIVE’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to VEROHIVE may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from VEROHIVE.
7.2.5 Invoices. VEROHIVE will provide billing and usage information in a format we choose, which may change from time to time. VEROHIVE reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. Customer agrees to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If Customer does not bring such problems/discrepancies to our attention within thirty (30) days, it agrees to waive its right to dispute such problems or discrepancies.
7.2.6 Billing Cycles. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. Customer agrees that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining authorization or payment from Customer’s payment card issuer or App Store until submission of the accumulated charge(s).
7.2.7 Benefit Programs. You may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, “Benefits”) through a business or government agreement with us (“Business Terms”). Any and all such Benefits are provided solely as a result of the corresponding Business Terms and such Benefits may be modified or terminated without notice. If you use the VEROHIVE Services and a business or government entity pays your charges or is otherwise liable for the charges, you authorize us to share your account information with that entity and/or its authorized agents. If you are enrolled in a Subscription Plan or receive certain Benefits tied to Business Terms with us, but you are liable for your own charges, then you authorize us to share enough account information to verify your continuing eligibility for those Benefits and the Subscription Plan.
7.2.8 Tax Responsibility. All payments required by these Terms are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon, excluding taxes based on VEROHIVE’s net income (collectively, “Taxes”). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the VEROHIVE Services. Taxes shall not be deducted from the payments to VEROHIVE, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, VEROHIVE receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer hereby confirms that VEROHIVE can rely on the name and address set forth in its registration for a Subscription Plan as being the place of supply for Tax purposes. VEROHIVE’s and Customer’s obligations under this Section 7.2.8 (Tax Responsibility) shall survive the termination or expiration of these Terms.
7.2.9 Intermediary Provider Billing. If your Subscription Plan is based on intermediary provider billing, your intermediary provider will automatically charge your App Store account monthly for the cost of the Subscription Plan and any applicable taxes. If you are not current with your Subscription Plan payments, we reserve the right to terminate your account, suspend your access to your Subscription Plan, or convert your Subscription Plan subscription to a non-subscription account. You will be responsible for paying all past due amounts.
7.3 Free Trial and Special Offers for VEROHIVE Services.
7.3.1 If you register for a free trial, promotional offer, or other type of limited offer for use of VEROHIVE Services (“Free Trial”), you may be presented with additional terms and conditions when registering for a Free Trial, and any such additional terms and conditions are hereby incorporated into these Terms by reference and are legally binding. This Section 7.3 (Free Trial and Special Offers for VEROHIVE Services) supersedes and applies notwithstanding any conflicting provisions with regard to access and use of a Free Trial.
7.3.2 VEROHIVE reserves the right to reduce the term of a trial period or end it altogether without prior notice.
7.3.3 The version of the VEROHIVE Services that is available for a Free Trial may not include or allow access to all features or functions. ANY DATA THAT A CUSTOMER ENTERS INTO THE VEROHIVE SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR A CUSTOMER, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD UNLESS THE CUSTOMER: (a) PURCHASES A SUBSCRIPTION PLAN TO VEROHIVE SERVICES THAT IS EQUIVALENT TO OR GREATER THAN THOSE COVERED BY THE TRIAL; OR (b) EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
7.3.4 Notwithstanding any other provision of these Terms, including without limitation the warranties described in Section 9 (Warranties and Disclaimers) or any service-specific terms and conditions applicable to a particular VEROHIVE Service, including exhibits and attachments accompanying such schedule (“Service Schedule”), during a Free Trial the VEROHIVE Services are provided “AS IS” and “as available” without any warranty that may be set forth in these Terms, and VEROHIVE DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND VEROHIVE’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF THE FREE TRIAL IS $100.
7.4.1 Data Generally. You shall be responsible for data that you provide or use in VEROHIVE Services. You are solely responsible for determining the suitability of the VEROHIVE Services for your business or organization and complying with any regulations, laws, or conventions applicable to the data you provide and your use of the VEROHIVE Services and Site.
7.5 Customer Warranties.
Customer hereby represents and warrants to VEROHIVE that: (a) it has all requisite rights and authority to use the VEROHIVE Services under these Terms and to grant all applicable rights herein; (b) it is responsible for all use of the VEROHIVE Services associated with its Account; (c) it is solely responsible for maintaining the confidentiality of its Account names and password(s); (d) it agrees to immediately notify VEROHIVE of any unauthorized use of Customer’s Account of which it becomes aware; (e) it agrees that VEROHIVE will not be liable for any losses incurred as a result of a third party’s use of its Account, regardless of whether such use is with or without its knowledge and consent; (f) it will use the VEROHIVE Services for lawful purposes only and subject to these Terms; (g) any information it submits to VEROHIVE is true, accurate, and correct; and (h) it will not attempt to gain unauthorized access to the System or the VEROHIVE Services, other accounts, computer systems, or networks under the control or responsibility of VEROHIVE through hacking, cracking, password mining, or any other unauthorized means.
7.6.3 Required Disclosure. If VEOHIVE is required by law to disclose Confidential Information, VEROHIVE will give prompt written notice to Customer before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist Customer to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
7.6.4 Ownership. Notwithstanding any other provision of these Terms, VEROHIVE acknowledges that, as between the parties, all Confidential Information it receives from Customer, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by Customer. Nothing in these Terms grants VEROHIVE any right, title or interest in or to any of the Customer’s Confidential Information. VEROHIVE’s incorporation of the disclosing party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
8. TERM AND TERMINATION
8.1 Termination – Site Visitors. A Site Visitor may terminate its use of the Site at any time by ceasing further use of the Site. VEROHIVE may terminate your use of the Site and deny you access to the Site in our sole discretion for any reason or no reason, including for violation of these Terms.
8.2 Term and Termination – Customers.
8.2.1 Suspension of Access to VEROHIVE Services. VEROHIVE may suspend any use of the VEROHIVE Services, remove any content or disable or terminate any Account or Authorized User that VEROHIVE reasonably and in good faith believes violates these Terms. VEROHIVE will use commercially reasonable efforts to notify you prior to any such suspension or disablement, unless VEROHIVE reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice in order to prevent imminent harm to the VEROHIVE Services or a third party. Under circumstances where notice is delayed, VEROHIVE will provide the notice if and when the related restrictions in the previous sentence no longer apply.
8.2.2 Term. The period of effectiveness of these Terms (“Term”), with respect to VEROHIVE Services, begins on the date the Customer accepts it and continues until the Customer’s Subscription Plan expires or its use of the VEROHIVE Services ceases (including as a result of termination in accordance with this Section 8.2), whichever is later.
8.2.3 Subscription Term and Automatic Renewals. VEROHIVE’s Subscription Plans automatically renew unless otherwise noted. If you purchase a Subscription Plan you agree to pay the then-current applicable fee associated with the Subscription Plan and further agree and acknowledge that it will automatically renew, unless, prior to the end of the current period of effectiveness of the Subscription Plan (“Subscription Term”): (a) you terminate your Account; (b) you set your Account not to auto-renew by logging in to VEROHIVE Services or contacting us here: privacytos at verohive.com; (c) VEROHIVE declines to renew your Subscription Plan; or (d) these Terms are otherwise properly terminated as expressly permitted herein. The Subscription Plan will automatically renew on a monthly or annual basis, depending on the method you choose (“Renewal Term”).
Promotional codes may only be used for your first Subscription Term. If you purchased your Subscription Plan with a promotional code, each time your Subscription Plan renews you will be charged the full annual billing amount. If your Subscription Plan is ever terminated for any reason, and you purchase another Subscription Plan, you shall not be eligible to use a promotional code.
We reserve the right to modify, terminate, or otherwise amend the fees and features associated with your Subscription Plan. We may also recommend that you purchase a new Subscription Plan that is comparable to your previous Subscription Plan that is ending. Before we change the fees and charges in effect, or add new fees and charges, we will give you advance notice of at least thirty (30) days. If we provide you such advance notice, your continued use of the VEROHIVE Services after the changes have been made will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may terminate your Subscription Plan as described in Section 8.2.4. If you accept the new Subscription Plan, its terms and conditions with these Terms will apply in the Renewal Term and thereafter.
8.2.4 Termination by Customer. You may terminate your Account at any time upon ten (10) days’ advance written notice to VEROHIVE. If you wish to terminate, you must provide notice by contacting privacytos at verohive.com. If you purchased your Subscription Plan through an external service, such as an App Store, you must use the tools made available by those services to manage and/or terminate your Subscription Plan. Section 7.2.2 notwithstanding, if a Customer terminates its annual Subscription Plan within the first thirty (30) days of the initial Subscription Term, it may submit a written request to VEROHIVE for a refund of the fees paid to VEROHIVE for the initial Subscription Term, which VEROHIVE will consider, without obligation, in good faith. VEROHIVE has no obligation to consider refund requests related to a termination of a Subscription Plan if the termination does not occur in the first thirty (30) days of the initial Subscription Term, or if there has been a violation of other Terms herein, or if records indicate substantial productive use took place during that period.
8.2.5 Default; Termination by VEROHIVE. A Customer will be in default of these Terms if: (a) it fails to timely pay any amount owed to us or an Affiliate of ours; (b) it or an Authorized User associated with its Account breaches any provision of these Terms or violates any published policy applicable to the VEROHIVE Services; (c) it is or becomes subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of the VEROHIVE Services by the Customer (or its Authorized Users or signers) creates legal risk for VEROHIVE or presents a threat to the security of the VEROHIVE Services or VEROHIVE’s customers. If a Customer is in default, we may, without notice: (i) suspend its Account and use of the VEROHIVE Services; (ii) terminate its Account; (iii) charge reactivation fees in order to reactivate its Account; and (iv) pursue any other remedy available to us. A VEROHIVE “Affiliate” means any legal entity that Megahoot, LLC. owns, that owns VEROHIVE. or that is under common control with VEROHIVE, Inc. A Customer “Affiliate” means any legal entity that Customer owns, that owns Customer or that is under common control with Customer. “Control” and “own” mean possessing greater than 50% interest in an entity or the right to direct the management of the entity.
8.2.6 Effect of Termination. If these Terms expires or are terminated for any reason: (a) Customer will pay to VEROHIVE any amounts that have accrued before, and remain unpaid as of, the date of the termination or expiration, including those for the billing cycle in which termination occurs; (b) any and all of Customer’s liabilities to VEROHIVE that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer with respect to the Site and VEROHIVE Services and intellectual property will immediately terminate; (d) VEROHIVE’s obligation to provide any further services to Customer under these Terms will immediately terminate, except any such services that are expressly to be provided following expiration or termination of these Terms; and (e) the provisions of Section 3 (Usage and Access Rights), Section 4 (Ownership), Section 5.3 (Restrictions on Use of the Site), Section 5.4 (Compliance with Terms), Section 6 (Privacy), Section 7.2.2 (No Refunds), Section 7.2.7 (Benefit Programs), Section 7.2.8 (Tax Responsibility), Section 7.3 (Free Trial and Special Offers for VEROHIVE Services), Section 7.4 (Data), Section 7.6 (Confidentiality), Section 8.2.6 (Effect of Termination), Section 9 (Warranties and Disclaimers), Section 10 (Indemnification Obligations), Section 11 (Limitations of Liability), and Section 12 (General) will survive, as well as provisions designated to survive under any Service Schedules and accompanying attachments and Exhibits to these Terms.
9. WARRANTIES AND DISCLAIMERS
THE VEROHIVE SERVICES, DOCUMENTATION, AND SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOUR USE OF THE VEROHIVE SERVICES, DOCUMENTATION, AND SITE SHALL BE AT YOUR SOLE RISK. VEROHIVE AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS (“VEROHIVE PARTIES”): (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT THE VEROHIVE SERVICES, DOCUMENTATION, OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE OF THE VEROHIVE SERVICES, DOCUMENTATION, OR SITE.
THE VEROHIVE PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT VEROHIVE SERVICES, DOCUMENTATION, AND SITE HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE OR ABOUT THE ACCURACY OR COMPLETENESS OF THE VEROHIVE SERVICES, DOCUMENTATION, AND SITE CONTENT AND ASSUMES NO RESPONSIBILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (ii) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF VEROHIVE SERVICES, DOCUMENTATION, AND SITE; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE THROUGH THE ACTIONS OF ANY THIRD PARTY; (vi) ANY LOSS OF YOUR DATA OR CONTENT FROM THE SITE; AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA VEROHIVE SERVICES, DOCUMENTATION, AND SITE. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF VEROHIVE TO ANY THIRD PARTY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as in this Section 9 or below in Section 11. Accordingly, some of these limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 9 and Section 11 specifically do apply to you.
10. INDEMNIFICATION OBLIGATIONS
You will defend, indemnify, and hold us, our Affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third-party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to, as applicable: (a) your access to and use of the Site; (b) violation of these Terms by you or your Account Administrator(s) or Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by you; (d) the nature and content of all Customer Data processed by the VEROHIVE Services; or (e) any products or services purchased or obtained by you in connection with the Site.
VEROHIVE retains the exclusive right to settle, compromise, and pay, without your prior consent, any and all claims or causes of action that are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
11. LIMITATIONS OF LIABILITY
11.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, VEROHIVE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
Some countries and jurisdictions do not allow the limitation or exclusion of consequential, direct, indirect, or other damages in contracts with consumers and to the extent you are a consumer the limitations or exclusions in this Section 11.1 may not apply to you.
11.2 Cap on Damages. OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR TO YOUR USE OF THE SITE (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO VEROHIVE FOR THE VEROHIVE SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
11.3 Independent Allocations of Risk. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms, and each of these provisions will apply even if the warranties in these Terms have failed of their essential purpose.
11.4 Jurisdictional Limitations.
11.4.1 Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to you. In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law). If you are a New Jersey resident, the limitations in Section 11 specifically do apply to you.
11.4.2 VEROHIVE’s liability to you if you are domiciled in Germany is limited as described in Section 12.9 below.
12.1 Third Party Content. We may provide. VEROHIVE IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE OR POSTS OF USER CONTENT. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party web sites or resources on the Site.
12.2 Relationship. At all times, you and VEROHIVE are independent contractors, and are not the agents or representatives of the other. These Terms are not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to these Terms. You must not represent to anyone that you are an agent of VEROHIVE or are otherwise authorized to bind or commit VEROHIVE in any way without VEROHIVE’s prior written authorization.
12.3 EXPORT RESTRICTIONS. You acknowledge that the Services, or portion thereof may be subject to the export control laws of the United States and other applicable country export control and trade sanctions laws (“Export Control and Sanctions Laws”). You and your End Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export control or trade sanctions law or regulation. You represent and warrant that (i) You and your End Users are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea) and that you and your End Users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (ii) You and your End Users are not identified on any U.S. government restricted party lists (including without limitation the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons and Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Denied Parties List, Entity List, and Unverified List, and the U.S. Department of State proliferation-related lists); and (iii) that no Content created or submitted by you or your End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You are solely responsible for complying with the Export Control Laws and monitoring them for any modifications.
12.4 NO HIGH RISK USE. The Services are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. The Services shall not be used for or in any HIGH RISK environment.
12.5 Assignability. You may not assign your rights or obligations under these Terms without VEROHIVE’s prior written consent. If consent is given, these Terms will bind your successors and assigns. Any attempt by you to transfer your rights, duties, or obligations under these Terms except as expressly provided in these Terms is void. VEROHIVE may freely assign its rights, duties, and obligations under these Terms.
12.6 Notices. Except as otherwise permitted by these Terms, any notice required or permitted to be given in connection with the VEROHIVE Services will be effective only if it is in writing and sent using: (a) VEROHIVE Services; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth in Customer’s registration information or on the Site for VEROHIVE, with a copy, in the case of VEROHIVE, to privacypolicytos at verohive.com. Customer or VEROHIVE may change its address for receipt of notice by notice to the other party in accordance with this Section 12. Notices are deemed given upon receipt if delivered using VEROHIVE Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
12.7 Force Majeure. Except for any payment obligations, neither you nor VEROHIVE will be liable for failure to perform any obligation under these Terms to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike, and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
12.8 INJUNCTIVE RELIEF. You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to VEROHIVE, its Affiliates, suppliers and any other party authorized by VEROHIVE to resell, distribute, or promote the Services (“Resellers”), and under such circumstances VEROHIVE, its Affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
12.9 Mandatory Arbitration, Waiver of Class Actions Applicable to Customers.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
12.7.1 You agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 12.7 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms or any prior; and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below.
12.7.2 Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action you will contact us at privacypolicytos at verohive.com provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an Account). Except for intellectual property, you and VEROHIVE agree to use their reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation with VEROHIVE, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
12.7.3 Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
12.7.4 Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco California 94111; and (c) Send one copy of the Demand for Arbitration to us at:privacypolicytos at verohive.com.
12.7.5 No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
12.7.6 Venue. Arbitration shall be initiated and take place in Delaware, United States, and you and VEROHIVE agree to submit to the personal jurisdiction of any federal or state court in Delaware in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
12.7.7 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND VEROHIVE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
12.7.8 Exception: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
12.7.9 Survival. This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Site.
12.8 Entire Terms. These Terms, which include the language and paragraphs preceding Section 1, are the final, complete, and exclusive expression of the agreement between you and VEROHIVE regarding the VEROHIVE Services provided under these Terms. These Terms supersede and the parties disclaim any reliance on previous oral and written communications (including any confidentiality agreements pertaining to the VEROHIVE Services under these Terms) with respect to the subject matter hereof and apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. VEROHIVE hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer and conditions assent solely based on these Terms and conditions of these Terms as offered by VEROHIVE. Except as explicitly permitted in these Terms, no modification or amendment of these Terms shall be effective unless it is in writing and signed by an authorized agent of the party against whom the modification or amendment is being asserted. In the event of an inconsistency or conflict, the order of precedence in descending order of control is as follows: (a) the Subscription Plan; (b) any attachments or appendix(ices) to the Service Schedule(s); (c) the Service Schedule; and (d) these Terms.
12.9 Governing Law & Venue. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A., without reference to its choice of law rules to the contrary. For purposes of determining the governing law, you and VEROHIVE agree that VEROHIVE is the proponent of these Terms. Notwithstanding Customer’s and VEROHIVE’s agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in Delaware, as necessary to protect the party’s rights or property pending the completion of arbitration. Customer and VEROHIVE submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Delaware, U.S.A.
12.10 Language and Translations. VEROHIVE may provide translations of these Terms or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.
12.11 Waiver. The waiver by either you or VEROHIVE of any breach of any provision of these Terms does not waive any other breach. The failure of any party to these Terms to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
12.12 Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
12.13 General Provisions. This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter, except that if you or your company have executed a separate written agreement or you have signed an order form referencing a separate agreement governing your use of the Services, then such agreement shall control to the extent that any provision of this Agreement conflicts with the terms of such agreement. VEROHIVE may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. VEROHIVE will exercise commercially reasonable business efforts to provide notice to you of any material changes to this Agreement. Within ten (10) business days of posting changes to this Agreement (or ten (10) business days from the date of notice, if such is provided), they will be binding on you. If you do not agree with the changes, You should discontinue using the Services. If you continue using the Services after such ten-business-day period, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that you are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.