This is a legal agreement between you and Virtual Hold Technology Solutions, LLC (“VHT”) for VHT’s (1) subscription-based on-premises software (the “Software”), (2) Internet-based software service (the “Subscription Service”; the Software and/or the Subscription Service are referred to collectively or individually in the alternative herein as the “Solution”) and/or (3) if applicable, maintenance and support service(s), training, implementation, installation or other services (the “Services”). The term “you” means the individual person using or accessing the Solution on his or her own behalf; or, if the Solution is being used or accessed on behalf of a company or other entity, “you” means that company or other entity. If you are using or accessing the Solution on behalf of a company or other entity, you agree to these Terms on behalf of that company or entity and you represent and warrant that you have the authority to bind that company or entity to these Terms.
The Solution and Services you have procured are listed on the order (the “Order”) entered into between you and either VHT or VHT’s authorized reseller (“Reseller”). All Orders are subject to and governed by these Terms, regardless of whether the Orders reference these Terms. Any different or additional terms or conditions in any Order, proposal, acknowledgment form or any other document will be of no force or effect and will not become part of the agreement between you and VHT. If there is another signed, written agreement in place between you and VHT with respect to the Solution and the Services, then the terms and conditions of such agreement will prevail in the event of a conflict between the terms and conditions of such agreement and those of these Terms.
- RIGHTS AND RESTRICTIONS
a. Grant of Rights. Subject to your compliance with these Terms, VHT grants you a limited, personal, non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive right to access and use the Solution during the subscription period specified in the Order solely for your internal business purposes.
b. Affiliates and Users. If you are a company or entity, you may allow the employees and contractors of you and your Affiliates (as defined below) (each a “User”) to access and use the Solution in compliance with these Terms, provided that (a) you have paid all applicable fees for such Users to VHT or the Reseller, and (b) the access and use of the Solution by such Users must be solely for the benefit of you and your Affiliates. An “Affiliate” means, with respect to a party, any person or entity that controls, is directly or indirectly controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (for so long as such person or entity meets these requirements). You are responsible and liable for the compliance of your Affiliates and all Users with these Terms. Any act or omission by any Affiliate or User that would constitute a breach of these Terms if such Affiliate or User were a party to these Terms shall be deemed a breach of these Terms by you.
c. Restrictions. Your use of the Solution and the rights granted to you in these Terms are subject to compliance with the restrictions set forth in this subsection. You shall not, and shall not permit, assist, authorize, or encourage your Affiliates, Users or any other third party to:
i. sell, resell, license, sublicense, distribute, copy, reproduce, rent or lease the Solution, or include the Solution in a service bureau or outsourcing offering, or otherwise make the Solution available to, or use the Solution for the benefit of, anyone other than you and your Affiliates;
ii. access or use the Solution for purposes of monitoring availability, performance or functionality, to build a competitive product or service, or for any other benchmarking or competitive purposes;
iii. access or use the Solution to display, store or transmit: (1) infringing, libelous, or otherwise unlawful or tortious material, (2) material that violates, or encourages or furthers conduct that would violate, any applicable laws or regulations, including any criminal laws, (3) material in violation of third-party privacy rights, or (4) code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs, Trojan horses, malware, vulnerabilities, advanced persistent threats, exploits, code injections and targeted attacks;
iv. disrupt, disable, or interfere with the integrity or performance of the Solution or third-party data contained therein;
v. permit direct or indirect access to or use of the Solution in a way that circumvents any usage limit or attempt to gain unauthorized access to the Solution or its related systems or networks;
vi. modify, translate, adapt, merge, or make derivative works of the Solution, or frame or mirror any part of the Solution;
vii. reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any software made available or used in the provision of the Solution, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
viii. remove or alter VHT’s copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Solution or any technical documentation within the Solution’s dashboard (“Documentation”);
ix. access or use any manual or automated software devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Solution;
x. access or use the Solution in a way that violates any applicable law or regulation or restrictions set forth in the Documentation; and
xi. otherwise access or use the Solution or the Documentation in any way that is not expressly permitted by these Terms.
d. Your Responsibilities. You must keep all Users’ login credentials (including, without limitation, usernames and passwords) secure and confidential. You are solely responsible for the accuracy and legality of all data, files, content and other information uploaded or otherwise submitted by you, your Affiliates, Users or any customers to or through the Solution, and all activity in your account in the Solution. You are solely responsible for ensuring that you have the necessary rights to include any personal data in Your Content (as defined in Section 4(a) below). You must use commercially reasonable efforts to prevent unauthorized access to or use of your account, and notify VHT promptly of any such unauthorized access or use.
e. Trial Services. If you register for a trial of the Solution (“Trial Services”), VHT shall make those Trial Services available to you solely to allow you to evaluate the Solution until the earlier of (1) the end of the trial period for which you registered to use the applicable Trial Services, or (2) the start date of any subscription for the Solution specified in an Order. YOU ACKNOWLEDGE THAT ARE NOT AUTHORIZED OR PERMITTED TO USE THE TRIAL SERVICES FOR ANY PRODUCTION USE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY AGREEMENT BETWEEN YOU AND VHT OR ANY RESELLER, THE TRIAL SERVICES ARE PROVIDED BY VHT “AS-IS” WITHOUT ANY WARRANTY.
VHT PROVIDES THE SOLUTION, THE DOCUMENTATION and ALL SERVICES “AS IS” AND ON AN “AS AVAILABLE” BASIS. VHT DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. VHT SPECIFICALLY DISCLAIMS (TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. your ACCESS TO AND USE OF THE Solution, THE DOCUMENTATION AND THE SERVICES IS AT your OWN RISK. VHT DOES NOT GUARANTEE THAT THE SOLUTION WILL NOT BE COMPROMISED, INTERRUPTED, “HACKED,” DAMAGED, OR OTHERWISE SUBJECT TO UNAUTHORIZED ACCESS OR USE.
Customer shall pay all fees specified in the Order to VHT or the Reseller, as applicable. If any amount owing by Customer to VHT or the Reseller is 30 or more days overdue, then, unless otherwise expressly agreed to with VHT or the Reseller, VHT may, without limiting any other rights and remedies, suspend your access to and use of the Solution and its performance of any Services until such amounts are paid in full.
a. Your Content. As between you and VHT, all data, files, content and other information uploaded or otherwise submitted by you, your Affiliates, Users or any customers to or through any Subscription Service (“Your Content”) remains your sole property. You grant VHT the right to use Your Content solely for purposes of providing the Subscription Service and performing its obligations under these Terms. You shall not submit or upload sensitive personal data (including, without limitation, social security numbers, driver’s license numbers, health-related information, information revealing an individual’s racial or ethnic origin, or genetic data) (“Sensitive Data”) to the Solution or otherwise provide Sensitive Data to VHT. You shall indemnify and hold harmless VHT for any claims that arise as a direct or indirect result of your provision of Sensitive Data to the Solution or to VHT.
b. VHT Property
i. Confidentiality and Reservation of Rights. The software, workflow processes, user interface, designs, know-how, and other technologies provided by VHT as part of the Solution (the “VHT Property”) are the confidential and proprietary property of VHT and its licensors. All right, title and interest in and to the VHT Property, including all associated intellectual property rights, remain only with VHT. You shall not use any VHT Property for any purpose not expressly authorized in these Terms. You shall not disclose any VHT Property to any third party without VHT’s prior written consent. You shall use the same degree of care to protect the confidentiality of the VHT Property that you use to protect the confidentiality of you own like confidential information (but not less than reasonable care). Subject to the limited rights expressly granted hereunder, nothing herein transfers or conveys any right, title or interest in or to the VHT Property. VHT reserves all rights in and to the VHT Property not expressly granted herein.
ii. Aggregate and Anonymized Information.VHT may compile aggregate and anonymized data related to the performance of the Solution and may make such information publicly available, provided that such information does not identify you, any User or Your Content, and there is no means to re-identify Your Content. VHT retains all intellectual property rights in such information.
- TERM AND EFFECTS OF TERMINATION.
a. Term. The term of each subscription shall be as specified in the applicable Order. Each subscription may be terminated only as set forth in the Order or other agreement between you and VHT or the Reseller, as applicable. These Terms continue in effect until all subscriptions subject to these Terms have expired or been terminated.
b. Suspension. VHT may suspend the Subscription Service or remove the applicable Your Content from the Subscription Service, or both, if it in good faith believes that, as part of using the Subscription Service, you have violated any applicable law or regulation. Further, VHT may suspend the Solution and its performance of any Services as set forth in Section 3 (Payment) above.
c. Effects of Termination. Upon termination or expiration of a subscription, an Order and/or these Terms for any reason: (1) all rights granted to the Solution under the terminated subscription(s) and/or Order(s) will immediately cease to exist, and (2) you must promptly discontinue all access to and use of the Solution and must destroy or return all property of VHT. Upon VHT’s request, you will confirm in writing your compliance with this destruction or return requirement. VHT shall, upon your request and subject to the terms and conditions of these Terms, make any terminated Subscription Service available for you to export Your Content for up to 30 days after the effective date of any termination or expiration of the terminated subscription(s) and/or Order(s). VHT has no obligation to maintain Your Content for more than 30 days after expiration or termination of the terminated subscription(s) and/or Order(s) and may destroy Your Content remaining in its possession after that time.
d. Survival. The following provisions of these Terms shall survive any termination: Sections 1(c) (Restrictions), 2 (Disclaimer), 4 (Ownership), 5(c) (Effects of Termination), 5(d) (Survival), 6 (Limitation of Liability), 7 (Governing Law and Dispute Resolution) and 8 (Other Terms).
- LIMITATION OF LIABILITY.
VHT IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SOLUTION, THE DOCUMENTATION OR THE SERVICES OR OTHERWISE ARISING IN CONNECTION WITH THESE TERMS (INCLUDING WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE OR ANTICIPATED COST SAVINGS). VHT’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE SOLUTION, THE DOCUMENTATION OR THE SERVICES OR OTHERWISE ARISING IN CONNECTION WITH THESE TERMS (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED (I) IF YOU PURCHASED YOUR SUBSCRIPTION DIRECTLY FROM VHT, THE AMOUNT YOU PAID TO VHT WITHIN THE 6 MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY; OR (II) IF YOU PURCHASED YOUR SUBSCRIPTION FROM A RESELLER, ONE HUNDRED DOLLARS ($100). THE LIMITATIONS SET FORTH IN THESE TERMS APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT (WHETHER ON THE BASIS OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY), EVEN IF VHT HAS BEEN ADVISED OF THE POSSIBILITY OF LOSS OR DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THESE TERMS.
- GOVERNING LAW AND DISPUTE RESOLUTION. These Terms are governed by the laws of the State of Ohio, without regard to conflict of law principles. Any dispute arising out of or related to these Terms must be exclusively brought in the state and federal courts for Summit County, Akron, Ohio. You consent to the personal jurisdiction of such courts and waive any claim of inconvenient forum. Nothing in these Terms prevents a party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
- OTHER TERMS.
a. Entire Agreement. These Terms, any Orders between you and VHT, and any other documents referenced in these Terms or any Orders between you and VHT constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. Neither party is relying on any representation concerning this subject matter, oral or written, not included in these Terms. No representation, promise or inducement not included in these Terms is binding. The UN Convention on Contracts for the International Sale of Goods does not apply.
b. Changes. VHT may from time to time, in its sole discretion, change the terms and conditions of these Terms. If any such change is material, as determined in VHT’s sole discretion, VHT will notify you by email or by posting a notice of the changes on the account log-in page for the Solution or VHT’s web site. By continuing to access and use the Solution after those changes become effective, you agree to be bound by the revised Terms.
c. Waivers. A party’s failure to enforce a provision of these Terms is not a waiver of its right to do so later.
d. Notices. All notices required under these Terms must be in writing and are considered effective: (a) 1 business day after an email is sent, or (b) 3 business days after mailing, when sent via certified mail, return receipt requested or postage prepaid. Notices to you will be sent to the address or email address on you most recent Order. Notices to VHT must be sent to the following address or email address:
Virtual Hold Technology Solutions, LLC
Attention: Chief Financial Officer
3875 Embassy Parkway, Suite 350
Akron, Ohio 44333
e. Assignment. Neither party may assign or transfer these Terms or an Order between you and VHT to a third party, except that these Terms and any Orders between you and VHT may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
f. Independent Contractors. The parties are independent contractors with respect to each other for all purposes.
g. Enforceability. If any provision of these Terms is deemed to be invalid, illegal or unenforceable, such provision shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of these Terms shall remain binding upon the parties.
h. Force Majeure. Neither party is liable for events beyond its reasonable control, including without limitation force majeure events.
i. Money Damages Insufficient. Any breach by a party of these Terms or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
j. No Additional Terms. VHT rejects additional or conflicting terms of any of your form purchasing documents.
k. Order of Precedence. If there is an inconsistency between these Terms and an Order, precedence will be given in the following order: (a) the fees, subscription term and termination rights set forth in the Order, (b) these Terms, and (c) any terms set forth in the Order other than those set forth in subsection (a).
Confidential VHT v7.2020