Current as of December 20, 2006
PLEASE READ THIS AGREEMENT CAREFULLY. BY USING ANY VELOCITY ELECTRONICS, CORPORATION WEBSITE YOU AGREE TO ABIDE BY THE TERMS AND CONDITIONS OF THIS USER AGREEMENT BETWEEN YOU AND VELOCITY ELECTRONICS, CORPORATION. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE WEBSITE. THIS AGREEMENT DOES NOT APPLY TO PURCHASES OF PRODUCTS FROM VELOCITY ELECTRONICS, CORPORATION. ANY PURCHASE BY YOU OF PRODUCTS FROM VELOCITY ELECTRONICS, CORPORATION WILL BE GOVERNED BY THE SEPARATE TERMS AND CONDITIONS OF THE APPLICABLE PURCHASE ORDER AND/OR PURCHASE AGREEMENT AND NOT BY THIS AGREEMENT.
You hereby acknowledge and agree as follows:
I. License Grant.
Velocity Electronics, Corp. (“Velocity”), a Texas Corporation organized and existing under the laws of the State of Texas, hereby grants you a limited, non-exclusive, personal, non-assignable and non-transferable license to access and use the Velocity Website, provided and expressly conditioned upon your agreement that all such access and use shall be governed by all of the terms and conditions set forth in this User Agreement (the “Agreement”).
The “Velocity Website” includes, as applicable and without limitation:
(a) Velocity's on-line computer system including all electronic databases and services accessed by or through Velocity's on-line computer system, and individual items within those databases or services which may constitute independent works of authorship;
(b) all documentation, including user manuals, operations manuals and the like provided to you by or for Velocity, for use in connection with the on-line computer system; and
(c) any other courses, video presentations, audio presentations, slideshows, software, products, services, data, images, business ideas and strategies or other information provided by Velocity or obtained through Velocity's on-line computer system (collectively referred to herein as “information”).
II. Ownership, Use and Intellectual Property Rights.
a. The Velocity Website is the valuable, exclusive property of Velocity or its licensors, and nothing in this Agreement shall be construed as transferring or assigning any ownership rights in such property to you or any other person or entity. You have a license to use the Velocity Website, as long as you comply with the terms of this Agreement or until Velocity terminates this Agreement or your access rights. Ownership of the Velocity Website, and any documentation or information, shall remain at all times with Velocity or its licensors. The Velocity Website is protected by contract law and intellectual property law, including domestic and international copyright law, and all intellectual property rights in the Velocity Website belong to Velocity or its licensors.
b. If Velocity provides you with an access identification, you may not allow concurrent use of the Velocity Website by multiple users utilizing identical user identification numbers, or allow another person or entity to use your user identification number to access the Velocity Website. You may not remove, alter or obscure any copyright, legal or proprietary notice in or on any portion of the Velocity Website. You may store in the memory of your computer and may manipulate, analyze, reformat, print and/or display for your use only, the information received or accessed through the Velocity Website pursuant to this Agreement. You may not resell, redistribute, broadcast or transfer the information or use the information in a searchable, machine-readable database. Unless separately and specifically authorized in writing by an officer of Velocity, you may not rent, lease, sublicense, distribute, transfer, copy, reproduce, publicly display, publish, adapt, store or time-share the Velocity Website, any part thereof, or any of the information received or accessed therefrom, to or through any other person or entity. All rights not granted to you herein are expressly reserved by Velocity or its licensors. Velocity and its licensors reserve all rights to enforce their copyright and intellectual property rights.
III. Delays in Services; Force Majeure.
Any delays in or failure of performance by Velocity or any of its licensors, service providers or service sponsors (including its and their officers, directors, employees, affiliates, agents, representatives and subcontractors) shall not give rise to any claims for damages, or any loss or liability, if and to the extent caused by interruptions due to electronic or mechanical equipment failures, telephone interconnect problems, defects, or occurrences beyond Velocity's control, including but not limited to acts of governmental authority, weather, fire, floods, explosions, acts of God, strikes or other concerted acts of workers, riots, armed conflicts, acts of war, or sabotage. Velocity shall have no responsibility to provide you access to the Velocity Website while interruption of the Velocity Website due to any such or similar cause shall continue.
This Agreement and the limited license rights granted hereunder shall remain in full force and effect unless terminated or canceled for any of the following reasons:
a. immediately by Velocity for any unauthorized access or use by you, including, without limitation:
(i) concurrent access of the Velocity Website by multiple users utilizing identical user identification numbers;
(ii) permitting another person or entity to use your user identification number to access the Velocity Website; or
(iii) any other access or use of the Velocity Website except as expressly provided in this Agreement.
b. immediately by Velocity if you assign or transfer (or attempt to assign or transfer) any rights granted to you under this Agreement;
c. immediately by Velocity if you fail to abide by the rules and regulations relating to the use of, or tamper with or alter any of the software and/or data files contained in or accessed through, the Velocity Website;
d. immediately by Velocity if you transmit or receive using the Velocity Website (or cause the transmission or receipt of) any pornographic, obscene, disparaging, defamatory, or libelous information of any nature or form whatsoever, with respect to any other user, company, or any other person or business entity. Velocity, in its sole discretion, shall determine whether any information transmitted or received violates this provision;
e. immediately by Velocity if you violate any of the other terms and conditions of this Agreement; or
f. immediately upon termination of your subscription or authorization to use the Velocity Website.
Termination or cancellation of this Agreement shall not affect any other right or relief to which Velocity may be entitled, whether at law or in equity. Upon termination of this Agreement, all rights granted to you will terminate and revert to Velocity. Regardless of the reason for cancellation or termination of this Agreement. On termination of this Agreement, as requested by Velocity, you agree to erase and destroy any copies of the Velocity Website you have made. You agree to certify to Velocity your compliance with these requirements in writing upon Velocity's request. All provisions in this Agreement, relating to proprietary rights, indemnification and limitation of liability shall survive termination of this Agreement.
You acknowledge that Velocity reserves the right to, and that Velocity may from time to time choose to, monitor any and all information transmitted or received through the Velocity Website. Velocity, in its sole discretion and without further notice to you, may review, censor or prohibit the transmission or receipt of any information which Velocity deems inappropriate (such as that specified in subparagraph (d) of the Termination paragraph above), or that Velocity determines violates any term or condition of this Agreement.
VI. Equipment and Operation.
You shall provide and maintain all telephone and other equipment necessary to access the Velocity Website, and the costs of any such equipment and/or telephone connections or use, including any applicable taxes, shall be borne solely by you. You shall reimburse Velocity for any such costs incurred by Velocity due to use of the Velocity Website by you; such reimbursement shall be billed to you and payable in accordance with your payment for access to the Velocity Website. You are responsible for operating your own equipment and for familiarity with the information (e.g., calculations and reports) used with or available through the Velocity Website. Velocity reserves the right to refuse assistance or to charge additional fees if you seek assistance from Velocity with respect to such basic background information or any other matters not directly relating to the operation of the Velocity Website. Neither Velocity nor its licensors shall have any responsibility to provide you with alternate access to the Velocity Website if your access is interrupted due to a breakdown or failure of your equipment.
VII. Warranty Disclaimer.
You acknowledge that the information provided through the Velocity Website is compiled from sources, which are beyond the control of Velocity. Though such information is recognized by the parties to be generally reliable during the term of this Agreement, you acknowledge that inaccuracies may occur and Velocity and its licensors do not warrant the accuracy or suitability of the information for any particular purpose. The information is provided by Velocity and its licensors for your personal information only, and is not intended for trading purposes. Information on this site is does not constitute advice (investment, tax, legal) amounting to investment advice, or make any recommendations regarding particular financial instruments, investments or products. Neither Velocity nor its licensors shall be liable for any errors, inaccuracies or delays in content, or for any actions taken by you in reliance thereon. Velocity makes reasonable efforts to obtain reliable content from third parties, but Velocity does not guarantee the accuracy of or endorse the views or opinions given by any third parties. The Velocity Website may point to other Internet sites that may be of interest to you, however, Velocity does not endorse or take responsibility for the content on such other sites. YOU ACKNOWLEDGE THAT THE VELOCITY WEBSITE IS PROVIDED TO YOU ON AN “AS IS, WITH ALL FAULTS” BASIS. VELOCITY AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, ORAL, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY WARRANTIES ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING AND ANY IMPLIED WARRANTIES OF TITLE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. FURTHER, VELOCITY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT (i) THAT THE VELOCITY WEBSITE WILL MEET YOUR REQUIREMENTS OR IS SUITABLE FOR YOUR NEEDS, (ii) THAT THE ACCESS OR USE OF THE VELOCITY WEBSITE WILL BE ERROR-FREE, OR (iii) THE ACCURACY OF ANY DATA OR INFORMATION YOU INPUT INTO OR PROCESS WITH THE VELOCITY WEBSITE OR THE RESULTS OF ANY SUCH PROCESSING. YOU ARE SOLELY RESPONSIBLE FOR ALL DECISIONS MADE BY YOU IN CONNECTION WITH SUCH DATA, INFORMATION AND RESULTS, AND FOR VERIFYING THE ACCURACY OF SUCH DATA, INFORMATION AND RESULTS FROM INDEPENDENT SOURCES.
VIII. Limitation of Liability; Disclaimer of Consequential Damages.
a. YOU AGREE THAT VELOCITY AND ITS LICENSORS (INCLUDING ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES AND SUBCONTRACTORS) SHALL NOT IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE VELOCITY WEBSITE FOR ANY PURPOSE WHATSOEVER, EVEN IF VELOCITY AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
b. NOTWITHSTANDING THE ABOVE PROVISIONS, IF THERE SHALL AT ANY TIME BE OR ARISE ANY LIABILITY ON THE PART OF VELOCITY OR ITS LICENSORS BY VIRTUE OF THIS AGREEMENT OR BECAUSE OF THE RELATIONSHIP THEREBY ESTABLISHED, WHETHER DUE TO THE NEGLIGENCE OF VELOCITY OR ITS LICENSORS OR OTHERWISE, SUCH LIABILITY IS AND SHALL BE LIMITED TO A SUM EQUAL IN AMOUNT TO THE LESSER OF TEN PERCENT (10%) OF THE SUMS PAID TO VELOCITY BY YOU UNDER THE TERMS OF THIS AGREEMENT OR $100.00, AS LIMITED DAMAGES AND NOT AS A PENALTY. THIS LIABILITY SHALL BE COMPLETE AND EXCLUSIVE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
c. YOU ACKNOWLEDGE AND AGREE THAT VELOCITY WILL USE REASONABLE EFFORTS TO ASSURE THAT NO VIRUSES OR PROGRAMS WITH SIMILAR FUNCTIONS OPERATE ON, OR ARE PASSED THROUGH THE VELOCITY WEBSITE OR THE ACCESS SOFTWARE. HOWEVER, YOU HEREBY ASSUME ALL RESPONSIBILITY (AND HEREBY HOLD VELOCITY HARMLESS) FOR DETECTING AND ERADICATING ANY VIRUS OR PROGRAM WITH A SIMILAR FUNCTION ON YOUR COMPUTER EQUIPMENT, BY WHATEVER MEANS YOU DEEM MOST APPROPRIATE FOR YOUR NEEDS.
d. THE PROVISIONS CONTAINED IN THIS LIABILITY SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
e. IN NO EVENT SHALL VELOCITY OR ITS LICENSORS BE LIABLE FOR ANY LOSS OR LIABILITY, INCLUDING ANY FUTURE MONETARY LOSSES DUE TO YOUR USE OF THE VELOCITY WEBSITE.
YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS VELOCITY AND ITS LICENSORS (INCLUDING ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS) FOR AND AGAINST ANY AND ALL CLAIMS BROUGHT BY PERSONS OR ENTITIES OTHER THAN THE PARTIES TO THIS AGREEMENT ARISING FROM OR RELATED TO YOUR ACCESS TO AND USE OF THE VELOCITY WEBSITE, INCLUDING THE INFORMATION OBTAINED THROUGH THE VELOCITY WEBSITE.
X. Export Control.
This Agreement is expressly made subject to any laws, regulations, orders, or other restrictions on the export from the United States of America of the Velocity Website and access software or information about the Velocity Website and access software that may be imposed from time to time by the government of the United States of America. You agree that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding import or export of the Velocity Website and access software.
XI. No Conflicting Terms.
If there is any conflict between this Agreement, any purchase order, any help text, manuals or other documents relating to the Velocity Website, this Agreement shall govern, whether such order or other documents is prior to or subsequent to this Agreement, or is signed or acknowledged by any director, officer, employee, representative or agent of Velocity.
XII. Attorney's Fees.
If Velocity takes action (by itself or through its representatives) to enforce any of the provisions of this Agreement, including collection of any amounts due hereunder, in addition to all sums to which it is entitled or any other relief, at law or in equity, Velocity shall be entitled to recover from you and you agree to pay, reasonable and necessary attorney's fees and all costs of any litigation.
XIII. Governing Law; Limitations; Venue.
This Agreement shall be governed by the laws of the State of Texas, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. To the extent allowed by applicable law, any claims or causes of action arising from or relating to your access and use of the Velocity Website contemplated by this Agreement must be instituted within two (2) years from the date upon which such claim or cause arose or was accrued. Further, any such claim or cause of action may only be brought in the state or federal courts located in Austin, Travis County, Texas, and you agree to submit to the exclusive personal jurisdiction of such courts and hereby appoint the Secretary of State of Texas as your agent for service of process.
If any provision of this Agreement is found to be unlawful or unenforceable in any respect, the court shall reform such provision so as to render it enforceable (or, if it is not possible to reform such provision so as to make it enforceable, then delete such provision); and, as so reformed or modified, fully enforce this Agreement.
XIV. Entire Agreement.
This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof, and no other agreement as to such subject matter, written or oral, exists.
Velocity and its licensors reserve the right to make changes or modifications to the Velocity Website and this Agreement. Display of notice of changes online at Velocity's website where you access the Velocity Website shall constitute effective notice under this Agreement on the day Velocity places the changes on-line on its website, and your continued use of the Velocity Website thereafter shall constitute your acceptance of such changes or modifications.
WHEN USING THE VELOCITY WEBSITE, YOU MAY SOMETIMES BE LINKED TO THIRD PARTY WEBSITES. VELOCITY IS NOT RESPONSIBLE FOR THE INFORMATION OR MATERIALS CONTAINED ON ANY THIRD PARTY WEBSITES. LINKS FROM THE VELOCITY WEBSITE ARE PROVIDED FOR CONVENIENCE ONLY, AND ARE NOT INTENDED AS AN ENDORSEMENT BY VELOCITY OF THE ORGANIZATION OR INDIVIDUAL OPERATING THE THIRD PARTY WEBSITE OR A WARRANTY OF ANY TYPE REGARDING EITHER THE THIRD PARTY WEBSITE OR THE INFORMATION ON THE THIRD PARTY WEBSITE. VELOCITY SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, PRODUCTS OR SERVICES AVAILABLE ON OR THROUGH SUCH THIRD PARTY WEBSITES. YOU MAY LINK TO ANY PAGE ON THE VELOCITY WEBSITE ONLY IF YOUR LINKS DO NOT USE ANY OF VELOCITY'S PROPRIETARY TRADEMARKS, SERVICE NAMES, TRADE NAMES, LOGOS, MARKS, OR OTHER DISTINCTIVE GRAPHICS, VIDEO, OR AUDIO MATERIAL AND YOU SHALL NOT LINK IN A MANNER REASONABLY LIKELY TO 1) IMPLY AFFILIATION WITH OR ENDORSEMENT OR SPONSORSHIP BY VELOCITY OR ITS AFFILIATES; 2) CAUSE CONFUSION, MISTAKE, OR DECEPTION; 3) DILUTE VELOCITY'S TRADEMARKS OR SERVICE MARKS; OR 4) OTHERWISE VIOLATE STATE OR FEDERAL LAW.
XVII. Children's Privacy
The Children's Online Privacy Protection Program took effect on April 21, 2000 and pertains to Websites directed towards children under 13 years of age. Velocity does not collect information on any person under 13 years of age. Therefore, if you are under 13 years of age, you may not search the Velocity Website, enroll in any of our programs, or use any of our services. By using the Velocity Website, you represent that you are not under 13 years of age.
XIX. Content Usage
Unless otherwise indicated, all information contained on the Velocity Website, such as text, graphics, logos, button icons, images, and audio clips is owned by or licensed by Velocity, and is copyrighted and proprietary material of Velocity, and may not be copied, reproduced, transmitted, displayed, distributed, sublicensed, altered, stored for subsequent use or otherwise used in whole or in part in any manner without Velocity's prior written consent, except that you may make such temporary copies as are necessary to browse the Velocity Website. Velocity reserves all other rights not granted herein. You may not sell, modify, redistribute, put on another website or otherwise publicly display or publicly perform, or use for any commercial purpose, any materials or information obtained from the Velocity Website without Velocity's express written consent.
All trademarks, service marks, and trade names are proprietary to Velocity unless expressly indicated to the contrary.
XXI. User Conduct on Forums
You understand that all materials and content, including but not limited to your data, graphics, or messages, which are posted publicly by you on any of the chat rooms, message boards or other public forums, if any, that may be found on the Velocity Website, or linked to the Velocity Website, are the sole responsibility of the person from which such content originated. Velocity disclaims all risks and liabilities for all materials and information that you post, email, transmit or otherwise make available via the Velocity Website. You may not use the Velocity Website to upload, post, email, transmit or otherwise make available any material that infringes any intellectual property or other proprietary right of any party, or that would otherwise violate any law. You may not post material that solicits funds, advertises or solicits for goods and services, and otherwise make available any unsolicited or unauthorized advertising, "junk mail," "spam," "chain letters," or any other form of solicitation. You may not use the Velocity Website to make available any material that contains software viruses or any other harmful computer code, files or programs. You may not use the Velocity Website to post material that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable. You may not post material known to be false, misleading or deceptive. You may not violate any applicable local, state, national or international law. You may not "stalk" or otherwise harass any other user or otherwise collect or store personal data about other users. For your own safety, do not post personal information such as phone numbers, addresses or any other private information.
Velocity retains the right, but not the obligation, in its sole discretion to refuse, edit, or delete any materials posted on the Velocity Website that Velocity considers infringing, abusive, offensive, defamatory, obscene, or otherwise unacceptable by Velocity. However, you bear all risks associated with, the use of any materials, including any reliance on the accuracy, completeness, or usefulness of such materials posted on the Velocity Website.
You acknowledge and agree that Velocity may preserve your posted materials and may also disclose your materials and data if required to do so by law.
XXII. User Submissions
By submitting communications or content to any part of the Velocity Website where such content would be viewable by the public (e.g. posting on a public forum/bulletin board or public chat or other public communication), you agree that such submission is non-confidential for all purposes. Any submission to the Velocity Website will be deemed and remain the property of Velocity. You grant, or warrant that the owner of such content has expressly granted, Velocity a royalty-free, perpetual, irrevocable, world-wide non-exclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display the communication or content in any media or medium, or any form, format, or forum now known or hereafter developed.