VETRO Website and Services Terms and Conditions of Use
PLEASE READ THESE TERMS AND CONDITIONS OF USE (HEREINAFTER, THE “TERMS”) CAREFULLY. THESE TERMS MAY HAVE CHANGED SINCE CUSTOMER’S LAST VISIT TO THIS WEBSITE AND/OR USE OF THE SERVICES ON THIS WEBSITE. CUSTOMER AGREES TO CHECK FOR UPDATES TO THESE TERMS. BY USING THIS WEBSITE OR THE SERVICES, CUSTOMER INDICATES CUSTOMER’S ACCEPTANCE OF THESE TERMS. IF CUSTOMER DOES NOT ACCEPT THESE TERMS, THEN CUSTOMER MAY NOT USE THIS WEBSITE OR THE SERVICE.
Last Updated: September 13, 2024
VETRO, Inc., (hereinafter “VETRO”) provides each of its customers identified in an Order (hereinafter “Customer”) access, through VETRO’s website at vetro.io (the “Site”) and subject to these terms, to tools, features and services (together with the Site, along with associated and successor websites, tools, services, and features, or any part thereof, the “Service”) that help Customer manage fiber optic network assets and perform related business functions (as permitted by these Terms).
By executing an Order Form (as defined in Section 1 below), by logging into Customer’s VETRO account, or by accessing the Site or by accessing the Service in any manner, Customer accepts these Terms, and any guidelines, rules or operating policies that VETRO may post on the Site, including the VETRO Privacy Policy, which are specifically incorporated herein by reference (collectively, the “Agreement”). Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other form Customer provides are specifically null and void.
VETRO may amend this Agreement from time to time due to changes to the Site or the Service, to account for developments under the law, or for any other commercially reasonable purpose. Future performance by VETRO of our obligations under this Agreement is sufficient consideration for any such amendment. Any amendment will only become effective upon notification to Customer (by email, by posting on the Site or by regular communication to customers), and Customer’s continued use of the Site and Services shall signify Customer’s consent.
1. Access to the Service.
VETRO shall make the Service available to Customer via an order form, Statement of Work or other ordering document that references these Terms and sets forth pricing, initial term, and/or other applicable terms and conditions (each, an “Order” or “Order Form”), in all cases pursuant to the terms and conditions set forth in this Agreement and the applicable Order. Customer’s access to the Service will terminate upon expiration of the subscription term set forth in the applicable Order or in accordance with any other applicable terms in the Order or this Agreement.
2. Use of Service, Customer Content and Third Party Data.
Customer agrees that, as between Customer and VETRO, all user information, text, data, software, sounds, photographs, audio, audiovisual, video, artwork, graphics, messages, feedback, data, comments, suggestions, and other content of any nature that are submitted, maintained, created, customized, or transmitted to, via, through, or in connection with the Site or the Service by Customer (collectively, the “Customer Content”) is the sole responsibility of the Customer. Accordingly, Customer, and not VETRO, is entirely responsible for the Customer Content. Customer represents and warrants that Customer has the applicable rights necessary to post or upload Customer’s Content to the Service and permit use of the Customer Content by VETRO in connection with the Service.
Customer is solely responsible for any output or other results obtained as a result of relying on or using Customer Content in connection with Customer’s use of the Service, including the building, management and maintenance of Customer’s network. Customer acknowledges and agrees that Customer shall bear full responsibility for i) the accuracy and completeness of such data, and ii) ensuring such data is kept current. Customer further acknowledge and agree that VETRO bears no responsibility for i) the accuracy and completeness of such data, ii) updating such data, and iii) results obtained in connection with the use of such data.
In connection with providing the Services, VETRO may make content and data obtained from one or more third parties (“Third Party Data”) available to Customer for use in connection with the Service. Such Third Party Data may be subject to certain restrictions and/or limitations imposed by the Third Party provider of such Third Party Data. Accordingly, Customer expressly acknowledges and agrees that (i) VETRO may restrict or limit access to, and use of, Third Party Data as VETRO deems necessary, and (ii) Customer will comply with any restrictions or limits in connection with Customer’s access to, and use of, Third Party Data.
Without limiting the foregoing, Customer acknowledges and agrees that any third party using the Service or accessing Customer Content (as defined in Section 4) on Customer’s behalf is not a subcontractor or agent of VETRO, and that, as between Customer and VETRO, Customer will be responsible for all acts and omissions of Customer’s users. Any act or omission by Customer’s user (whether an employee, subcontractor or other third party) which would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer. Customer will undertake reasonable efforts to make all users aware of the provisions of this Agreement as applicable to such user’s use of the Service, and will cause users to comply with such provisions.
Customer will indemnify, and hold harmless, VETRO and any users of the Site or the Service for any claims, damages or other liability arising as a result of use of the Customer Content rights granted herein or Customer’s breach of such representation and warranty. As between Customer and VETRO, Customer will retain all right, title and interest in and to the Content in the form provided to us. Subject to the terms of this Agreement, Customer hereby grants to VETRO a non-exclusive, worldwide, royalty-free right (a) to collect, use, copy, store, transmit, distribute, display, publicly perform, modify and create derivative works of the Content, in each case solely to the extent necessary, to provide the Service and any related services to Customer and to enhance the Service; and (b) to use Aggregated Data for its business purposes including, but not limited to, developing, publishing and commercializing benchmarks, predictive models, predictive analytics, and measures based on Aggregated Data. As used herein, “Aggregated Data” shall mean Customer Content that is (i) anonymized such that it does not identify any individual person, and (ii) combined with the data of other users or additional data sources. VETRO’s rights with respect to Aggregated Data will survive any expiration or termination of this Agreement. VETRO retains all intellectual property rights in the Aggregated Data.
3. Restrictions; Limitations on Use; Reservation of Rights.
Customer agrees to comply with the following in connection with Customer’s use of the Site and the Service:
- Customer will not (i) copy, reverse engineer, decompile, disassemble, re-engineer, or otherwise create or attempt to create, or permit, allow, or assist others to create, the source code of the Service, or its structural framework, or (ii) modify or create derivative works of the Service or use the Site or the Service in whole or in part for any purpose except as expressly provided under this Agreement.
- Customer will not post or distribute any materials that are abusive, libelous, defamatory, vulgar, profane, obscene, fraudulent or deceptive; that violate another’s rights (including without limitation any copyrights or other intellectual property rights), confidentiality or privacy; or that harass, threaten, annoy, or are otherwise inappropriate, all as determined by VETRO in its sole discretion.
- Customer will refrain from unethical, false or misleading advertising, promotions or sales efforts and practices in connection with Customer’s use of the Site or the Service.
- Customer will not upload, post or transmit any file that contains viruses, corrupted files, “Trojan Horses,” or other contaminating or destructive features that may damage someone’s computer; or take any action that imposes an unreasonably or disproportionately large load on our infrastructure or damages or disrupts the functioning of VETRO’s systems or the Service. VETRO reserves the right to impose charges on any user or account holder whose use of the Service VETRO reasonably deems to be excessive.
- Customer will comply with Customer’s online conduct and privacy policies.
- Customer will use the Service in compliance with all applicable laws, rules, regulations, and industry standards. Customer may not use the Site or the Service for any unlawful or discriminatory activities or any other acts prohibited by applicable laws.
- Customer will not upload, or use the Service to distribute, private or confidential information if such use or distribution is unauthorized by any party or may violate any applicable laws, rules or regulations.
- Customer shall be responsible for procuring all hardware and software necessary to use the Service, or that may be used to integrate with or connect to the Service, including any APIs, for exchange of data with the Service.
Customer agrees that VETRO may establish general practices and limits concerning use of the Site or the Service. VETRO reserves the right to modify, revise, suspend or discontinue any functionality in whole or in part, either temporarily or permanently and with or without notice, and Customer acknowledges that VETRO is not obligated to support or update the Service in any manner.
VETRO will at all times solely and exclusively own all right, title, and interest in and to this Site and the Service, and all intellectual property or other rights in the foregoing, including but not limited to any and all modifications and derivative works. No implied licenses are granted.
4. Professional and Support Services.
4.1 Support Services. VETRO will provide support services for the Service in accordance with its standard support offerings for a particular Service ordered under an Order Form (the “Support Services”), provided that all fees due under this Agreement have been paid. Such support services will be provided solely to Customer’s designated representatives in accordance with VETRO policies. VETRO will have no obligation to provide support to Customer with respect to use of the applicable Service other than according to the Service documentation and this Agreement.
4.2 Professional Services.
- General. Any professional or consulting services (“Professional Services”) shall be set forth in an Order Form or a document signed by Customer and VETRO identifying the services to be provided or otherwise made available by VETRO (a “Statement of Work” or “SOW”) pursuant to this Agreement, including, by way of example, installation, networking services, additional training, configuration and/or customization of the Service. Except as set forth in an SOW, each SOW shall be subject to the terms and conditions of this Agreement, including the payment terms set forth in Section 10.
- Change Orders. Customer may at any time request a modification to the Professional Services by written request to VETRO specifying the desired modifications. VETRO shall, within a reasonable time following receipt of such request, agree to such request in writing, or, if applicable, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the change request. If accepted in writing by Customer, such modifications in the SOW shall be performed under the terms of this Agreement. Modifications in any SOW shall become effective only when a written change request, an amendment to a SOW, or a new SOW is mutually agreed in writing by authorized representatives of both parties.
- Additional Supply. Where a SOW provides a supply of hours of Services for a specific fee for use during a specific time period (for example, annually), the Services must be used during that time period and will not be available following that time period. Unless otherwise stated in the SOW, such Services may not be “carried over” following the specified time period. In the event Customer desires additional hours of Services, exceeding the number specified in the SOW for the specified fee, Customer shall be charged for each additional hour at the rate set forth in the SOW.
- Suitability. VETRO shall assign employees and subcontractors with qualifications suitable for the Professional Services described in the relevant SOW. VETRO may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
- Customer Responsibilities. Customer shall make available in a timely manner at no charge to VETRO all Customer Content, technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Customer reasonably required by VETRO for the performance of the Professional Services. VETRO’s delayed performance of the Professional Services shall be excused to the extent such delay is caused by Customer’s failure to timely provide such information or resources or perform any of Customer’s other responsibilities set forth in the applicable SOW. Customer shall be responsible for and assumes the risk of, any problems resulting from, the content, accuracy, completeness, and consistency of all such data, materials, and information supplied by Customer. Customer acknowledges and agrees that in connection with the delivery of Professional Services, VETRO bears no responsibility for i) the accuracy and completeness of the data and materials used by Customer, ii) updating such data and materials, and iii) results obtained in connection with the use of such data and materials.
- Nonsolicitation. Customer acknowledges and agrees that the employees and consultants of VETRO who perform the Services, Support Services, or Professional Services are a valuable asset to VETRO and are difficult to replace. Accordingly, Customer agrees that, during the Term of this Agreement and for a period of one (1) year after the termination or expiration of this Agreement, it shall not solicit for employment any VETRO employee or consultant who performs any of the Services, Support Services, or Professional Services for Customer.
5. Account and Passwords.
Customer agrees to provide true, accurate, current and complete information, as applicable, as requested in any registration form and elsewhere on the Site and in connection with the use of the Service, and agrees to update such information if it changes. Customer is responsible for statements made and actions taken through Customer’s use of the Service and through use of Customer’s password. Customer expressly acknowledges that unauthorized access to the Service is a breach of this Agreement and may also violate the law. Customer agrees not to access the Service by any means other than through the interfaces VETRO provides. Customer will not falsely identify the source of any communications or materials, or deliberately mislead anyone as to Customer’s identity (including impersonating a representative of VETRO). Customer agrees to immediately notify VETRO of any actual or suspected unauthorized use of Customer’s user name and/or password.
6. Privacy Overview.
VETRO respects the privacy of visitors to, and users of, the Site and the Service. Information collected from users of the Site and the Service is subject to VETRO’s Privacy Policy. Please see VETRO’s Privacy Policy at https://www.vetrofibermap.com/privacy-policy/ (the “VETRO Privacy Policy”) for more information on the collection and use of such information. Customer acknowledges and agrees that the VETRO Privacy Policy, including, but not limited to, the manner in which VETRO collects, uses and discloses Customer’s personally identifiable information and non-personally identifiable information, is incorporated into, a part of, and governed by these Terms. By accepting these Terms, Customer agrees to all of the terms of the Privacy Policy.
7. Data Retention and Security.
Customer agrees that VETRO has no responsibility or liability for the deletion or failure to store any Customer Content. Without limitation of the foregoing or any of its other obligations under this Agreement, VETRO agrees that for as long as VETRO controls, possesses, stores, transmits or processes Customer Content, VETRO will establish, employ and maintain reasonable and industry standard data security measures that include technological, physical, administrative, organizational and procedural controls designed to: (1) protect Customer Content from unauthorized or unlawful use, alteration, access or disclosure, (2) ensure the availability of VETRO’s systems, and (3) prevent unauthorized access to, and unauthorized use of, VETRO’s systems.
8. Service Levels and Interruption.
VETRO will use commercially reasonable efforts to provide the Service in accordance with the then-current Service Level Agreement available at https://vetrofibermap.com/service-level-agreement/ (the “Service Level Agreement” or “SLA”) . Notwithstanding anything to the contrary herein, VETRO reserves the right to amend the Service Level Agreement at any time and to temporarily modify, suspend or discontinue the Service (or any part of thereof) with or without notice if VETRO reasonably believes such action is necessary for effective operation of the Service, including the avoidance of an actual or potential security breach. Customer agrees that VETRO will not be liable to Customer or to any third party for any such modification, suspension or discontinuance of the Service.
9. Intellectual Property.
9.1 Ownership; No Sale or Implied Licenses. VETRO owns all right, title and interest in and to the Service and any intellectual property rights therein, subject to the limited licenses granted herein. The grant of rights to the Service is not a sale of the Service or any portion thereof. VETRO retains all right, title and interest in and to the Service, including any modifications, alterations or enhancements thereto. Except for the express licenses set forth in this Agreement, this Agreement does not grant to Customer any license, by implication, estoppel or otherwise. Customer shall not use any VETRO trademark in any manner, including as part of a metatag on any other website.
9.2 No Assignment. Except for the express licenses set forth in this Agreement, this Agreement does not transfer any right, title or interest in any intellectual property right of either party to the other party. This is not a work made-for-hire agreement (as that term is defined in Section 101 of Title 17 of the United States Code).
9.3 Framing. Customer shall not display the Service, or any portion thereof, in a frame unless done through a supported, built-in feature of the Service, and shall not display any of Customer Content via any in-line links. Customer may, however, establish ordinary links to the homepage of the Site and other sections of the Site.
9.4 API Usage. In connection with use of the Service, VETRO may make available to Customer various application programming interfaces (each, an “API”), subject to any applicable terms and conditions presented with an API, including at the time of Customer’s initial download or during use of an API. VETRO has the right to change each API from time to time. VETRO shall use commercially reasonable efforts to provide Customer with reasonable advance notice of any material change to an API. Customer is responsible for ensuring that calls or requests to the Service, including each API, are compatible with the current API. VETRO will use commercially reasonable efforts to avoid changes to the API that are not backwards compatible. When Customer uses any API, such usage is based on unique API keys provided to Customer, and the API key is used for all sub-accounts as well. Customer is responsible for maintaining the security of the API key for Customer and for any action or omission that occurs under such API key. VETRO may impose limitations on Customer’s usage of any API, from time to time, for load-balancing, security or other reasons.
9.5 Third-Party Sites. VETRO may provide links to third-party software, websites, content or services on the Service. A link to any other software, website, content or service is not an endorsement of that software, website, content or service or the information it provides. VETRO has no responsibility or accountability for any third-party software (including scripts), website, content or service, and Customer’s use of any third party software (including scripts), website, content or service is at Customer’s sole risk. Customer may be required to execute, acknowledge or otherwise agree to third party terms and conditions applicable to use of any third party software, website, content or service, and in any event, Customer is solely responsible for compliance with applicable terms and conditions associated with any third party software, website, content or service. Customer accepts sole responsibility for any potential security risks, including but not limited to, third-party script vulnerabilities and data privacy concerns, that may result from Customer’s use of any third party software, website, content or service.
9.6 Feedback. If Customer elects to provide VETRO with any suggestion, idea for improvement, recommendation or other feedback relating to the Service (collectively, “Feedback”), VETRO may use such Feedback without any restriction or payment, including to improve the Service.
9.7 Improvement. VETRO has the right to collect and analyze data relating to provision, use or performance of the Service, and VETRO may (a) use such data to improve the Service or for other development, diagnostic or corrective purposes in connection with the Service or to develop other VETRO offerings; (b) disclose such data solely in aggregate or de-identified form; and (c) use any such improvement or make any such disclosure without limitation hereunder.
9.8 AI Improvements. Customer hereby authorizes VETRO to improve the Service through application of machine learning, tuning or any modification, alteration or enhancement to the Service (“AI Improvements”). Customer agrees that, in the ordinary course of machine learning development, as part of such AI Improvements, VETRO may extract and retain patterns from data associated with an annotation arising in connection with this Agreement which do not identify Customer and do not enable reconstruction of Customer Content (“Patterns”) and use, copy, prepare derivative works of or otherwise exploit any such Pattern to continue to improve the Service, or any successor product or service, in perpetuity. Any AI Improvement arising from the Agreement shall be the sole and exclusive property of VETRO and shall constitute intellectual property of VETRO.
9.9 No Challenge. Customer shall not, and shall ensure that each affiliate of Customer shall not, make any claim against VETRO, any Affiliate of VETRO or any of its or their direct or indirect customers or Customers for infringement of any patent or other intellectual property right owned by Customer or any related entity of Customer relating to intellectual property developed by or for Customer using the Service.
9.10 US Government Customers. If the Service is accessed or used by any agency or other part of the U.S. Federal Government (the “U.S. Government”), whether directly or through a prime contractor or any subcontractor (at any tier), the U.S. Government acknowledges that VETRO provides the Service, including related software, documentation and technology (collectively, the VETRO Materials”), for ultimate federal U.S. Government end use solely in accordance with the following: The VETRO Technology and Documentation were developed at private expense and are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 (for civilian agencies) and 48 C.F.R. §227.7202 (for Department of Defense agencies), as applicable. Consistent with and subject to 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7702-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only such rights as are granted to all other end-users pursuant to the terms herein. Accordingly, the U.S. Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. Any provisions of this Agreement inconsistent with federal procurement regulations or other federal law are not enforceable against the U.S. Government. Unpublished rights are reserved under the copyright laws of the United States. Customer shall not remove or deface any restricted rights notice or other legal notice appearing in the VETRO Materials. This Section 9.10 does not grant Customer any rights not specifically set forth in this Agreement, including any right to distribute the VETRO Materials to the U.S. Government. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a U.S. Government agency has a need for rights not granted under this Agreement these terms, (a) such agency it must negotiate with VETRO to determine if there are mutually acceptable terms with VETRO for granting those rights, and (b) a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
10. Fees, Payment Terms, and Taxes
10.1 Subscription Fees. Unless otherwise stated in the Order Form, the applicable subscription fee associated with Customer’s use of the Service (the “Subscription Fee”) will remain fixed during the then-currentInitial Term or Renewal Term unless Customer: (i) exceeds the usages specified for a Subscription Tier, as specified in the Order Form, (ii) upgrades products or base packages specified in the Order Form by notifying VETRO in writing or amending the Order Form, or (iii) subscribes to additional features or products in accordance with these Terms and the Order Form. Once increased, Unless otherwise stated in the Order Form, the prices and payment terms for any Renewal Term will be at VETRO’s then-current standard fees, rates and billing terms. Upon any increase as specified herein, Customer’s Subscription Fee will not decrease over the then-current Subscription Term.
10.2 Fees for Professional Services. Fees and related payment terms for Professional Services will be set forth in an SOW or Order Form. Unless otherwise set forth in the applicable SOW or Order Form, all Professional Services will be provided on a time and materials basis.
10.2 Payment Terms. Customer will be invoiced as set forth in the applicable Order Form and/or SOW. Unless otherwise specified in an Order Form or SOW, payment is “due upon receipt”, based upon the invoice date. All payments will be made in U.S. currency by check or wire transfer of immediately available funds to the account designated in writing by VETRO. All payments are non-refundable. Late payments shall accrue interest until paid at a rate of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) or the maximum rate permitted by law, whichever is less. If any amount is not paid by Customer when due hereunder, VETRO will be entitled to recover from Customer the litigation and related costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and attorney fees).
10.3 Taxes. Fees charged do not include sales, use, value added, withholding, excise or similar tax. Customer will pay or, if paid by VETRO, reimburse VETRO, for all such taxes based on these Terms or fees payable hereunder (but not any taxes based upon VETRO’s gross revenues or net income), together with any interest on such taxes if not attributable to VETRO’s delay.
11. Subscription Term and Termination.
11.1 Subscription Term. As used herein, “Initial Term” means the initial term of Customer’s subscription, as specified on Customer’s Order Form(s); “Renewal Term” means each subsequent twelve (12) month renewal term (unless otherwise stated in an applicable Order Form); and the “Subscription Term” or “Term” shall mean the Initial Term, together with any Renewal Term. Unless otherwise specified in the applicable Order Form, the Initial Term commences on the Effective Date, which is set forth in the initial Order Form, and the Subscription Term continues until either party terminates in accordance with this Section 15. Unless otherwise specified in the applicable Order Form, the Initial Term, and any subsequent Renewal Term, will automatically renew for successive twelve (12) month periods at VETRO’s then-current standard fees, rates and billing terms, except that the then-current Initial Term or Renewal Term, whichever the case may be, will not automatically renew if either Customer or VETRO provides the other party with written notice at least sixty (60) days before the end of the then-current Initial Term or Renewal Term, whichever the case may be, of the desire not to renew. For clarity, unless otherwise specified in an applicable Order Form, VETRO fees, rates and terms are subject to change upon renewal.
11.2 Termination. In addition to any other rights and remedies set forth herein, VETRO can terminate these Terms or Customer’s access to the Service (i) at any time, without prior notice and at our sole discretion, for Customer’s willful misconduct, malicious behavior, or Customer’s actual, apparent, threatened or alleged breach of Section [3] of these Terms; or (ii) for Customer’s failure to make any payments within ten (10) days of our written notice to Customer of Customer’s breach of payment obligations under this these Terms. In addition, either party may terminate these Terms by written notice to the other if the other party has failed to cure a material breach within thirty (30) days of receipt of notice of such breach.
11.3 Suspension. Notwithstanding anything to the contrary herein, VETRO may suspend access to the Service and to any Customer Content (a) in the event of any failure to pay Subscription Fees when due or (b) in the event of any other breach of the Agreement that is not cured within fifteen (15) days after notice thereof to Customer.
11.4 Effect of Termination. Upon termination of these Terms: (i) VETRO will cease providing Customer with the Service and Customer’s access to the Service shall terminate; (ii) Customer must return to VETRO all copies of any documentation and any other of VETRO’s Confidential Information in Customer’s possession; (iii) Customer will immediately pay all amounts owed under an Order Form, including Subscription Fees corresponding to the unexpired portion of the Subscription Term as of the effective date of termination; and (iv) if applicable, Customer will pay VETRO’s collection and litigation costs (including reasonable attorney fees), plus 1.5% interest per month (or maximum amount allowed by law) as late fees on all amounts owed. For clarity, upon early termination of the Subscription Term, any Subscription Fees due under a relevant Order Form will immediately become due. Notwithstanding the foregoing, upon termination of these Terms by Customer under Section 12 due to a material breach by VETRO, VETRO will refund any prepaid and unused Subscription Fees for the Service as of the effective date of such termination.
12. Confidential Information.
12.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose information to the other party (the “Receiving Party”) in connection with this Agreement, whether or not marked as such, and whether disclosed in writing, orally, visually or otherwise that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential (“Confidential Information”). Customer Content shall be deemed to be the Confidential Information of Customer. The Service, any API or Feedback or any information regarding Subscription Fees shall each be deemed to be Confidential Information of VETRO. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes available to the public other than through a breach of this Agreement by the Receiving Party; (b) was in the Receiving Party’s possession without restriction at the time of disclosure; (c) is received by the Receiving Party from a third party not subject to any confidentiality obligation in favor of the Disclosing Party; or (d) is independently developed by the Receiving Party without access or reference to Confidential Information of the Disclosing Party.
12.2 Obligations. The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose other than in furtherance of this Agreement. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party, except to any employee, consultant or other representative bound by confidentiality obligations at least as stringent as those set forth herein or to any investor, lender or financing source that is made aware of the confidential status of the Confidential Information of the Disclosing Party. The Receiving Party shall be responsible for any action or omission by any such employee, consultant or other representative, or any investor, lender or financing source, as if made by the Receiving Party. The Receiving Party shall promptly notify the Disclosing Party of any breach of this Section 12.2.
12.3 Permitted Disclosures. Notwithstanding Section 12.2, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that the Receiving Party is required or requested to do so pursuant to applicable Law by any governmental authority or rules of a stock exchange; provided, however, that prior to any such disclosure, the Receiving Party shall (a) assert the confidential nature of the Confidential Information of the Disclosing Party to such governmental authority or stock exchange; (b) promptly notify the Disclosing party of the governmental authority’s requirement or request to disclose; and (c) cooperate with the Disclosing Party in contesting any such disclosure or obtaining a protective order, confidential treatment or the like at the expense of the Disclosing Party.
12.4 Breach. Notwithstanding any other provision of this Agreement, each party acknowledges that any use of Confidential Information of the Disclosing Party in a manner inconsistent with this Agreement, or Customer’s use of the Service in breach of this Agreement, may cause the other party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, each party agrees that, in addition to any other remedy to which the other party may be entitled hereunder, at law or in equity, the other party shall be entitled to injunctive relief, without the posting of any bond and without proof of actual damages, to restrain such use in addition to any other applicable remedy available under applicable law.
13. Warranty Disclaimer; Remedies; Release.
CUSTOMER EXPRESSLY AGREES THAT THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SITE OR THE SERVICE AND ANY RELIANCE BY CUSTOMER UPON THE SITE OR THE SERVICE, INCLUDING ANY ACTION TAKEN BY CUSTOMER BECAUSE OF SUCH USE OR RELIANCE, IS AT CUSTOMER’S SOLE RISK. VETRO DOES NOT WARRANT THAT THE USE OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DOES VETRO MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. VETRO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VETRO IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
VETRO SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR CUSTOMER’S COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES (INCLUDING THE SOCIAL MEDIA PLATFORMS). IN ADDITION, VETRO DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (A) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN VETRO, OR (B) ANY CONTENT (INCLUDING CUSTOMER CONTENT), OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY.
NO CLAIM MAY BE ASSERTED BY CUSTOMER AGAINST VETRO MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE SERVICE SHALL BE FOR VETRO TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE SERVICE. TO THE EXTENT APPLICABLE LAW PERMITS, CUSTOMER RELEASES VETRO FROM ANY CLAIMS OR LIABILITY RELATED TO (A) ANY CONTENT POSTED ON, OR OBTAINED IN CONNECTION WITH USE OF, THE SITE OR IN ANY MATERIALS CUSTOMER SENDS USING THE SITE OR THE SERVICE, (B) THE CONDUCT OF ANY OTHER VETRO CUSTOMERS, AND (C) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO CUSTOMER’S COMPUTERS OR OTHER SYSTEMS CUSTOMER PROVIDES TO VETRO’S PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES.
14. Limitation of Liability.
EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE GROSS NEGLIGENCE OF VETRO, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EVEN IF VETRO SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, (I) SHALL VETRO OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PARTNERS AND PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “VETRO”) BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND (II) THE MAXIMUM AGGREGATE LIABILITY OF VETRO TO CUSTOMER ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT CUSTOMER PAID FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY VETRO TO CUSTOMER IN THAT 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
CUSTOMER agrees that VETRO has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that such prices and terms reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that such prices and terms form an essential basis of the bargain between the parties.
15. Indemnification.
Customer agrees to indemnify and hold harmless VETRO and its affiliates, licensors, agents, business partners and third party suppliers and providers, and VETRO’s and their officers, directors, shareholders, employees, and agents, from and against any claim, demand, or investigation, including reasonable attorneys’ fees, made by any third party relating to or arising from Customer Content, Customer’s use of the Site or Service, Customer’s conduct, Customer’s actual or alleged breach of this Agreement, or Customer’s actual or alleged violation of any law, rule, regulation, industry standard or right of a third party. VETRO agrees to provide Customer with prompt written notice in the event of any such claims or actions. VETRO reserves the right, at its own expense, to assume exclusive control of any matter otherwise subject to indemnification by Customer, but doing so will not excuse Customer’s indemnity obligations under this Agreement. In addition, Customer acknowledges and agrees that VETRO has the right to seek damages when Customer uses the Site or the Service for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. In the event that VETRO is required to respond to a third party or law enforcement subpoena or court order that is related to Customer’s use of the Site or the Service, VETRO may, in its sole discretion, require Customer to reimburse VETRO for its reasonable expenses associated with complying with such subpoena or order.
16. Restricted Persons; Export.
Customer hereby represents and warrants that Customer is not a Restricted Person. For purposes of this Agreement, Customer is a “Restricted Person” if Customer or any officer, director, or controlling shareholder of the entity on behalf of which Customer is using the Site or the Service is (a) a national of or an entity existing under the laws of any country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (b) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (c) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (d) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (e) owned, controlled, or acting on behalf of a Restricted Person. If Customer or any of its personnel becomes a Restricted Person during the term of this Agreement, Customer shall notify VETRO within 24 hours, and VETRO shall have the right to terminate any further obligations to Customer, effective immediately and with no further liability to Customer; provided, however, for the avoidance of doubt, Customer will remain liable to VETRO for any outstanding obligations hereunder. Customer agrees that Customer shall not utilize the Site or the Service to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. Customer may not remove or export from the United States or allow the export or re-export of the Site or the Service, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
17. Miscellaneous.
17.1 Use of Customer Name. VETRO may include Customer’s name in its published customer lists, but VETRO will not issue a press release or any other publicity referring specifically to Customer without Customer’s prior written consent.
17.2 Notices. Any notices given under this Agreement shall be in writing and deemed to have been sufficiently given when delivered by hand, sent by a nationally recognized, overnight courier, or sent by certified or registered mail, postage and other charges prepaid to: i) Customer, at the address set forth on the applicable Order Form; and ii) VETRO, at 12 Mountfort St, Suite 401, Portland, ME 04101. The date of mailing any written notice will be deemed the date on which such notice is given unless a later date is specified in the notice.
17.3 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
17.4 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Maine. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Cumberland County, Maine, USA.
17.5 Full Force and Effect and Further Assurances. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Customer agrees to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
17.6 Assignment. Customer may not assign this Agreement or all or any portion of Customer’s rights hereunder. VETRO may assign all rights to any other individual or entity in VETRO’s sole discretion. Any attempted assignment or delegation in violation of this section will be null and void. Subject to the preceding sentence, the rights and liabilities of the parties under this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns and delegates.
17.7 Force Majeure. VETRO are not liable for any default or delay in the performance of any of its obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond VETRO’s reasonable control, including fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for VETRO to perform our obligations hereunder.
17.8 Third Parties; No Agency. Except as expressly set forth in this Agreement, nothing in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever. Except as expressly set forth herein, no agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind VETRO in any respect whatsoever.
17.9 Attorney Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
17.10 Headings. The heading of each section of this Agreement are for convenience only and have no legal or contractual effect.