THESE TERMS AND CONDITIONS (THIS "Agreement") CONSTITUTE A BINDING CONTRACT BETWEEN CUSTOMER (DEFINED BELOW) AND Vayo Labs Ltd. ("Vayo", "we", "us" and "our"), AND BY CLICKING "I AGREE" BELOW, OR BY OTHERWISE ACCESSING OR USING THE SERVICE (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE "Effective Date"):
- THIS AGREEMENT, AND
- OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE STATED TO BE INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.
As used in this Agreement "Customer" means either you personally or, if you are entering into this Agreement on behalf of an entity (for example, if you are subscribing using an entity's email domain), such entity, and in such case you represent that you have the authority to bind such entity to this Agreement.
You represent that you are of a legal age in your jurisdiction to form a binding contract, but in any event at least thirteen (13) years old. Children under the age of thirteen (13) are not permitted to access or use Service. If you are between thirteen (13) and eighteen (18) years old, you must review this Agreement with your parent or guardian, have him/her accept it on your behalf, as well as approve your use of the Service.
This Agreement (including any annexes) and any Order Forms (defined below) represent the entire agreement between Vayo and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Customer and Vayo with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the Site (defined below). The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement Customer hereby irrevocably waives, to the maximum extent legally permitted, any Law (defined below) applicable to you requiring that the Agreement be localized to meet Customer's language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.
Vayo reserves the right to make changes to this Agreement at any time by posting the changed Agreement at https://vayo.io/terms. (We may – but are not obligated to – also provide notice through a pop-up or banner within the Service, by sending an email to any address Customer you may have used to register for the Service, or through other similar mechanisms.) Such changes will be effective ten (10) days after such posting, and Customer's continued use of the Service thereafter shall constitute Customer's acceptance of such changes. In such cases, we will also update the "Last Updated" date set forth above. Please check the above webpage regularly for any changes to this Agreement.
At Vayo's sole discretion, any Vayo obligation hereunder may be performed (in whole or in part), and any Vayo right or remedy may be exercised (in whole or in part), by a Vayo Affiliate (defined below).
- DEFINITIONS AND INTERPRETATION
This Agreement contains a range of capitalized terms, some of which are defined in this Section, and some of which are defined elsewhere. The Section and sub-Section headings in this Agreement are for convenience of reading only, and may not to be used or relied upon for interpretive purposes.
"Authorized User" means, if applicable, an employee of Customer that the Customer authorizes to access and use the Service.
"Content" means any text, data, information, files, images, graphics, sounds, videos, code, audio clips, links, and/or other similar materials.
"Customer Content" means any Content inputted or uploaded to the Service, or transmitted through the Service, by or on behalf of Customer (including without limitation any Content originating from a Third Party App, as defined below).
"Feature" means any module, tool, functionality, or feature of the Service.
"Vayo Affiliate" means, with respect to Vayo, any person, organization or entity controlling, controlled by, or under common control with, Vayo, where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting
securities or by contract or otherwise.
"Intellectual Property" means any and all inventions, discoveries, improvements, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, computer software and programs (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property, in any form and embodied in any media, whether or not protectable or registerable.
"Intellectual Property Rights" means any and all rights, titles, and interests in and to Intellectual Property, and includes without limitation patents, copyright and similar authorship rights, personal rights (such as moral Rights, rights of privacy, and publicity rights), architectural, building and location (and similar geography-based) rights, mask work rights, trade secret and similar confidentiality rights, design rights, database rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
"Law" means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
"Order Form" means any order form entered into between Customer and Vayo, whether executed via an online web form or interface, or executed offline.
"Service" means the online workplace productivity and prioritization service, as operated by Vayo's proprietary platform and other Intellectual Property.
"Site" means https://vayo.io.
"Third Party Apps" means those third party online applications and platforms to which Customer integrates the Service.
"Update" means an upgrade, update (such as a fix or patch), or other modification, improvement, enhancement or customization to or of the Service.
"Vayo Content" means any Content (excluding Customer Content) appearing or made available on or in the Service.
- SUBSCRIPTION RIGHTS
Subject to the terms and conditions of this Agreement, Vayo grants Customer a limited, non-exclusive, non-assignable, non-sublicensable, revocable right, during the Term (defined below), to access and use the Service solely for Customer's own internal business or personal use (the "Subscription"). Use of the Service must be in accordance with the Documentation. To the extent Customer has entered into an Order Form for the Subscription, and such Order Form specifies any quantity, location, Feature, duration or other limitations or conditions on the scope of the Subscription (such as limitations on the number of Authorized Users, if applicable), the Subscription shall be subject to such limitations and conditions. Each Order Form is hereby incorporated into, and made a part of, this Agreement by reference.
- DATA AND PRIVACY
The Service is not intended to, and will not, operate as a data storage product or service, and Customer agrees not to rely on the Service for the storage of any Customer Content whatsoever. Customer is solely responsible and liable for the maintenance and backup of all Customer Content. Notwithstanding the foregoing, Vayo reserves the right to automatically download Customer Content to Vayo's cloud-based database(s).
- USAGE RESTRICTIONS
As a condition to the Subscription, Customer shall not do any of the following (in whole or in part): (a) copy, "frame" or "mirror" the Service or any Vayo Content, or otherwise create Internet "links" to the Service, on any other server or wireless or Internet-based device; (b) sell, assign, transfer, lease, rent, sublicense, distribute, publicly perform, display or communicate, offer as part of a time-sharing, outsourcing or service bureau environment, or otherwise make available, the Service or Vayo Content; (c) modify, alter, adapt, arrange, or translate the Service or any Vayo Content; (d) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service or any Vayo Content; (e) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service or any Vayo Content; (f) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (g) make a derivative work of the Service or any Vayo Content, or use them to develop any service or product that is the same as (or substantially similar to) them; (h) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service or any Vayo Content; (i) use the Service or any Vayo Content to infringe, misappropriate, or violate any third party's Intellectual Property Rights, or any applicable Law, or to otherwise engage in any fraudulent activity; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of devices or users that directly access or use the Service (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling') in order to circumvent any restrictions on scope of authorized use under an Order Form; (k) forge or manipulate identifiers in order to disguise the origin of any Customer Content inputted or uploaded to, or transmitted through, the Service; or (l) take any action that imposes or may impose (as determined in Vayo's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.
- THIRD PARTY CONTENT AND SOURCES
- ACCOUNT CONTENT AND THIRD PARTY APPS
2. Customer Representations and Warranties. Customer hereby represents and warrants that: (a) its Customer Content does not, and will not, infringe, misappropriate, or violate any third party's Intellectual Property Rights, or any Law; (b) its Customer Content is not, and will not be, disparaging, libelous, threatening, offensive, harassing, deceptive, abusive, promoting of violence, illegal drugs, illegal arms trafficking, or illegal gambling, and does not, and will not, contain obscenity or pornography, create any risk to a person's safety or health, impersonate another person, compromise national security, or interfere with an investigation by law enforcement; (c) its Customer Content does not, and will not, contain any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; and (d) it has obtained, and will maintain during and after any termination of this Agreement, any and all licenses, permissions, consents, approvals, and authorizations required for integrating Third Party Apps to the Service
3. No Obligation by Vayo. Vayo has no obligation to accept, display, review or maintain any of Customer's Customer Content, or to accept or maintain any integrations with any Third Party Apps. Vayo may, without notice, remove, suspend, disable, and/or block Customer Content and Third Party Apps in our sole discretion, including, without limitation, if we: (a) suspect or determine that Customer is in breach of any provision of this Agreement or any contract with a Third Party App provider, or has violated any Law; and/or (b) deem it helpful or reasonably necessary to comply with any applicable Law, legal process, or governmental request, to enforce the Agreement (including investigations of potential violations thereof), to detect, prevent, or otherwise address fraud, security issues, and/or to protect against harm to the rights, property or safety of Vayo, our users, Customer, or the public.
1. General. All references herein to the "Service" shall include its Features as well. Vayo reserves the right to remove, modify, and/or add Features at any time, without any notice or obligation to Customer, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Vayo in its sole discretion. Moreover, if Vayo determines that Customer is in breach of any provision of this Agreement, we reserve the right to block or suspend Customer from certain Features. We make Features available because we believe it enhances the user experience of the Service; but Customer acknowledges and agrees that just because we make a Feature available, it does not mean we endorse, or can otherwise control, every manner in which such Feature is used. A new or modified Feature may be accompanied by separate or additional terms and conditions, in which case such terms will either (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. Vayo may in its sole discretion charge for new Features and/or require additional personal information. Without limiting the generality of the foregoing, Customer acknowledges that whereas Features may currently make the Service compatible for use with Customer's device or operating system, these Features may be removed or modified in the future.
2. Beta Products. Vayo may from time to time make available, in "beta", "pre-release" (or similar designation) mode, new versions of the Service, and/or new Features, that are still undergoing internal development and testing (each, a "Beta Product"). Beta Products may be time-limited, feature-limited, and/or functionality-limited. Vayo may also decide to only make a Beta Product available to closed list of users. If Vayo makes a Beta Product available to Customer, Customer may use it on the following conditions: (i) only for evaluation purposes; (ii) Customer must comply with any specific guidelines issued by Vayo in respect of the Beta Product, which may include a requirement to provide Feedback (defined below) and participate in surveys about the Beta Product; and (iii) Customer must not publicize the fact that there is a Beta Product, nor show, display, or otherwise make available the Beta Product to any other person (which includes, without limitation, making such disclosures to traditional or social media). For the avoidance of doubt, the provisions of this Agreement that apply to the Service (such as the Usage Restrictions in Section 5, and the Disclaimers in Section 11) shall also apply to Beta Products.
All references herein to the "Service" shall include the Updates we provide as well. Vayo may from time to time provide Updates, but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current internal policies we may have in place, and some Updates may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Vayo in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to Customer, and Customer consents to any such automatic updating or upgrading of the Service. In some cases, Customer may be required to install the Update manually. An Update may be accompanied by separate or additional terms and conditions, in which case such terms will either (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. Vayo may in its sole discretion charge for Updates and/or require additional personal information. Vayo is under no obligation to provide any technical support for the Service.
- OWNERSHIP AND LICENSES
1. Service. Customer acknowledges that the Service is or may be protected by Intellectual Property (and similar) Laws, treaties, and conventions. Any rights not expressly granted herein are hereby reserved by Vayo and its licensors. As between Customer and Vayo (and except for the Subscription), Vayo is the sole and exclusive owner of all Intellectual Property Rights in and to the Service and all Vayo Content. For the avoidance of doubt, "Vayo Labs" and "Vayo" (and their respective logos) are trademarks of Vayo and/or Vayo Affiliates, and all other trademarks appearing on or in the Service are the trademarks of their respective owners.
2. Customer Content Ownership and Licenses. As between Customer and Vayo, Customer is the sole and exclusive owner of Customer Content. Notwithstanding such ownership, Customer hereby grants to each of Vayo and all Vayo Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual license, in any media format and through any media channels (now known or hereafter developed): (a) to process Customer's Customer Content to perform under this Agreement, including without limitation to provide Customer with the functionality of the Service and any technical support; and (b) to process Customer's Customer Content and Customer's usage of the Service on an aggregated or otherwise anonymous basis, for the purposes of improving the Service, analytics, and generally research and development ((a) and (b) collectively, the "Customer Content License"). Customer hereby represents and warrants that: it has obtained, and will maintain during and after any termination of this Agreement, all licenses, permissions, consents, approvals, and authorizations required to grant the Customer Content License. The Customer Content License shall survive any termination of this Agreement.
3. Feedback. If Customer provides Vayo with any ideas, suggestions, or similar feedback about performance of the Service or for improving the Service ("Feedback"), Customer hereby grants to each of Vayo and all Vayo Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable, and perpetual license, to access, use, reproduce, distribute, publish, broadcast, make available to the public, modify, adapt, edit, create derivative works of, publicly display, publically perform, and otherwise commercially exploit such Feedback, in any media format and through any media channels (now known or hereafter developed) (the "Feedback License"). Customer hereby represents and warrants that: (A) its Feedback does not, and will not, infringe, misappropriate or violate any third party's Intellectual Property Rights, or any Law; and (B) it has obtained, and will maintain during and after any termination of this Agreement, all licenses, permissions, consents, approvals, and authorizations required to grant the Feedback License. The Feedback License shall survive any termination of this Agreement.
1. Fees. Customer acknowledges that Vayo may, at any time and upon seven (7) days' prior notice, begin charging for the Service and require Customer to purchase a paid Subscription in order to continue accessing and using the Software. If or once Customer has purchased a paid Subscription, Customer agrees to pay all fees stated in the Order Form ("Fees"), and in accordance with such Order Form's payment terms. Customer authorizes Vayo (either directly or through third parties) to request and collect payment (or otherwise charge, refund or take any other billing actions) from our payment provider or Customer's designated banking account, and to make any inquiries Vayo deems necessary to validate Customer's designated payment account or financial information, in order to ensure prompt payment (including for the purpose of receiving updated payment details from Customer's payment, credit card or banking account provider – such as, updated expiry date or card number as may be provided to us by Customer's credit card company).
2. General. Unless expressly stated otherwise in an Order Form: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are payable in advance; (c) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of: (a) the rate of one and a half percent (1.5%) per month; and (b) the highest amount permitted by applicable Law. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Vayo's net income. In the event that Customer is required by any Law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Vayo shall be increased by the amount necessary so that Vayo receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
1. THE SERVICE, ANY VAYO CONTENT, AND ANY THIRD PARTY CONTENT ARE PROVIDED AND MADE AVAILABLE TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, QUALITY OF SERVICE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY VAYO AND ITS LICENSORS AND SUPPLIERS.
2. IN ADDITION, NEITHER VAYO NOR ITS LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:
(A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE SERVICE OR SUCH VAYO CONTENT OR THIRD PARTY CONTENT;
(B) THAT CUSTOMER'S USE OF, OR RELIANCE UPON, THE SERVICE OR ANY VAYO CONTENT OR THIRD PARTY CONTENT WILL MEET ANY REQUIRMENTS OR EXPECTATIONS;
(C) THAT THE SERVICE OR ANY VAYO CONTENT OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED; OR
(D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.
- LIMITATION OF LIABILITY
1. IN NO EVENT SHALL VAYO, ANY VAYO AFFILIATE, OR ANY OF OUR LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
(C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
(D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
2. THE COMBINED AGGREGATE LIABILITY OF VAYO AND ALL VAYO AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE LOWER OF: (A) FIVE U.S. DOLLARS (US $5), AND (B) THE AMOUNTS ACTUALLY PAID BY CUSTOMER (IF ANY) TO VAYO OR A VAYO AFFILIATE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH CUSTOMER BRINGS ITS CLAIM.
3. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF VAYO OR A VAYO AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT OR TORT LIABILITY.
4. THE SERVICE IS INTENDED FOR USE BY BUSINESSES AND ORGANIZATIONS AND NOT FOR CONSUMER PURPOSES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT CONSUMER LAWS SHALL NOT APPLY TO THIS AGREEMENT. FURTHERMORE, SOME JURISDICTIONS' LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OF OTHER DAMAGES, AND TO THE EXTENT APPLICABLE TO CUSTOMER, SUCH EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY. FURTHERMORE, NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO EXCLUDE OR LIMIT LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE, OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
If any third party (including, but not limited to, a regulatory or governmental authority) brings any kind of demand, claim, suit, action or proceeding against Vayo, a Vayo Affiliate, and/or any of our respective directors, officers, employees, or representatives (each, an "Indemnitee"), and it is based upon or arises from:
(a) Customer's use of the Service, including without limitation Customer's integration of the Service with any Third Party App;
(b) Customer's breach under any contract it may have with a Third Party App provider; and/or
(c) Customer's breach of any provision of this Agreement
(each of the foregoing, an "Indemnity Claim") then, upon written request by Vayo (to be decided in our sole discretion), Customer agrees to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (c) Vayo reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases Customer agrees to reasonably cooperate with Vayo's defense activities at Customer's own cost and expense; and (d) Customer shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).
In addition, and regardless of whether (or the extent to which) Customer controlled or participated in the defense and/or settlement of an Indemnity Claim, Customer agrees to indemnify and hold harmless the Indemnitee(s) for and against: (e) any costs and expenses (including reasonable attorneys' fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (f) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).
- TERM AND TERMINATION
1. Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the Subscription term stated in the applicable Order Form (the "Term"). However, if Customer registered for a free trial of the Service ("Free Trial"), then the Subscription term will expire upon the end of the Free Trial period stated during the registration process (and if not stated, then a default of 60 days).
2. Termination for Convenience by Vayo. Vayo reserves the right to terminate this Agreement, and/or to otherwise modify, suspend, or discontinue the Service, for any reason whatsoever, at any time, and without notice or obligation to Customer, and Customer agrees that Vayo shall have no liability to Customer for any such termination, modification, suspension, or discontinuance; provided, however, that if Customer's Subscription was a paid Subscription, then Vayo shall refund to Customer a pro-rated amount of any pre-paid and unused Fees based on the remainder of the Term.
3. Termination for Cause by Vayo. Vayo may terminate this Agreement immediately upon notice to Customer (which may be via email or via the functionality of the Service): (a) if Customer commits a material breach under this Agreement (and default of any payment obligations shall be deemed a material breach); and/or (b) upon the occurrence of any of the following events in respect of Customer: (i) a receiver is appointed for Customer, which appointment is not dismissed within sixty (60) days; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) Customer is liquidating, dissolving or ceasing normal business operations.
4. Termination by Customer. undefinedCustomer may terminate this Agreement at any time and for any reason, by cancelling Customer's Account via the functionality offered (and Customer acknowledges that cancelling an Admin Account automatically cancels all User Accounts thereunder. If Customer objects to any provision of this Agreement or any subsequent changes thereto, or becomes dissatisfied with the Service in any way, Customer agrees that its sole remedy, and Vayo's sole liability, is for Customer to terminate this Agreement as aforementioned.
- CONSEQUENCES OF TERMINATION; SURVIVAL
Upon termination of this Agreement: (a) the Subscription will automatically terminate and be deemed revoked, and Customer must immediately cease all access to and use of the Service; (b) Customer's access to its Account(s) will be disabled (unless the functionality of the Service permits a grace period for Customer to backup Customer Content), and Vayo may permanently delete Customer's Customer Content from Vayo's databases and servers hosting the Service; and (c) Customer shall promptly pay any unpaid amounts that are outstanding as of termination. Sections 10 (Ownership) through 19 (Miscellaneous) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
- GOVERNING LAW
This Agreement (including without limitation its validity and formation) shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to this Agreement and are hereby disclaimed.
- DISPUTE RESOLUTION
1. Mandatory, Bilateral Arbitration
CUSTOMER AND VAYO AGREE THAT ANY DISPUTE, CONTROVERSY OR CLAIM ARISING UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT (EACH, A "Dispute") SHALL BE RESOLVED ONLY BY FINAL AND BINDING BILATERAL ARBITRATION, except that each party retains the right to bring an individual action in a small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s Intellectual Property Rights. This agreement to arbitrate is intended to be broadly interpreted.
A) Arbitration Rules and Governing Law
- Notwithstanding Customer's and Vayo’s agreement that New York law governs this Agreement and its validity, interpretation and application, Customer and Vayo hereby further agree that the Federal Arbitration Act, 9 U.S.C. § 1, et seq. ("FAA") applies to this agreement to arbitrate, and governs all questions of whether a Dispute is subject to arbitration.
-Unless Customer and Vayo expressly agree otherwise in writing in respect of a Dispute, the arbitration shall be administered by Judicial Arbitration and Mediation Services, Inc. ("JAMS"), pursuant to JAMS Streamlined Arbitration Rules and Procedures ("JAMS Streamlined Rules"), as modified by this Agreement (that is, the terms of this Section 17 govern if they conflict with any of the JAMS Streamlined Rules), and consistent with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness ("JAMS Consumer Fairness Standards"). The arbitrator must honor the terms and conditions of this Agreement (including without limitation all liability exclusions and limitations), and can award damages and relief, including any attorneys’ fees authorized by Law. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND VAYO ARE HEREBY EACH IRREVOCABLY WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION (OR OTHER CLASS-WIDE PROCEEDING).
-Notwithstanding JAMS Streamlined Rule 8(b), Customer and Vayo agree that any dispute as to the arbitrability of a Dispute brought by either Customer or Vayo shall be resolved by a court of competent jurisdiction
B) No Class Arbitrations
THIS ARBITRATION AGREEMENT DOES NOT ALLOW CLASS ARBITRATIONS EVEN IF THE JAMS STREAMLINED RULES, (OR OTHER PROCEDURES OR RULES OF JAMS) WOULD. RATHER, CUSTOMER AND VAYO ARE ONLY ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDUAL BASIS. FURTHER, AND UNLESS CUSTOMER AND VAYO EXPRESSLY AGREE OTHERWISE IN WRITING IN RESPECT OF A DISPUTE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY’S DISPUTE WITH ANY OTHER PARTY’S DISPUTE(S), AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR COLLECTIVE PROCEEDING.
C) The Arbitrator's Decision
- The arbitrator will render an award in accordance with JAMS Streamlined Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. In the event any litigation should arise between Customer and Vayo in any court of competent jurisdiction in a proceeding to vacate or enforce an arbitration award, CUSTOMER AND VAYO HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the proceeding be resolved by a judge. The arbitrator may award declaratory or injunctive relief only in favor of the plaintiff/claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If Customer prevails in arbitration Customer will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable Law. Vayo will not seek, and hereby waives all rights Vayo may have under applicable Law, to recover attorneys’ fees and expenses if Vayo prevails in arbitration, unless Customer asserts a frivolous claim.
-The arbitrator’s decision and award is final and binding, with some exceptions under the FAA
C) Location and Fees
-Unless Customer and Vayo expressly agree otherwise in writing, the arbitration will take place in-person at the following locations: (a) if Customer is a resident of a country in North America, Central America or South America, the arbitration will take place in New York City, New York, USA; or (b) if Customer is a resident of any other country in the world, the arbitration will take place in Tel Aviv-Jaffa, Israel. In the event JAMS indicates that it is unable to provide, or arrange for, an arbitrator in Israel, Customer agrees that the arbitration will be held in New York City, New York, USA.
-The arbitrator’s decision and award is final and binding, with some exceptions under the FAA
-If Customer initiates an arbitration for a Dispute, Customer will be required to pay $250 of the fee required to initiate the arbitration and Vayo will pay any remaining JAMS Case Management Fees and all professional fees for the arbitrator’s services; Customer will remain responsible for its respective costs relating to counsel, experts, witnesses, and travel to the arbitration.
-If Vayo initiates an arbitration for a Dispute, Vayo will pay all administrative fees and costs related to the arbitration, including all professional fees for the arbitrator’s services; Customer will remain responsible for its costs relating to counsel, experts, witnesses, and travel to the arbitration.
D) Small Claims Court
Notwithstanding the foregoing, either party may bring an individual action in a small claims court for Disputes within the scope of such court’s jurisdiction. This agreement to arbitrate does not preclude Customer from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the Law allows, seek relief against Vayo on Customer's behalf.
2. Opting Out of this Mandatory Arbitration. Customer can decline this agreement to arbitrate by contacting email@example.com within thirty (30) days of the Effective Date and stating that Customer declines this arbitration agreement. Furthermore, and notwithstanding the provisions regarding modification of the Agreement, if Vayo changes this Dispute Resolution Section after the Effective Date (or the date Customer accepted any subsequent changes to this Agreement), Customer may reject any such change by providing Vayo written notice of such rejection firstname.lastname@example.org within thirty (30) days of the date such change became effective, as per the terms of this Agreement. In order to be effective, the notice must include Customer's full name and clearly indicate its intent to reject the change(s) to this Dispute Resolution Section. By rejecting such change(s), Customer is agreeing that it will arbitrate any Dispute between Customer and Vayo in accordance with the provisions of this Dispute Resolution Section as of the Effective Date (or the date Customer accepted any subsequent changes to this Agreement), unless Customer declined this arbitration agreement in the manner described above.
3. Limitation on Claims Regardless of any Law to the contrary, any claim or cause of action arising out of, or related to, this Agreement must be filed within one (1) year after such claim or cause of action arose, or else Customer agrees that such claim or cause of action will be barred forever.undefined
4. Confidentiality of Disputes All aspects of the arbitration proceeding, including but not limited to the decision and award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain its confidentiality, unless (and in such cases, only the extent) otherwise required by applicable Law. This paragraph shall not prevent a party from submitting to a court of competent jurisdiction any information necessary to enforce an arbitration award, or to seek equitable relief.
1. Assignment. Vayo may assign this Agreement (or any of its rights and/or obligations hereunder) without Customer's consent, and without notice or obligation to Customer. This Agreement is personal to Customer, and Customer shall not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without Vayo's express prior written consent. Any prohibited assignment shall be null and void.
2. Third Party Software. The Service may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices ("Third Party Software" and "Third Party Software Terms and Notices", respectively). Vayo will comply with any valid written request submitted by Customer to Vayo for exercising any rights Customer may have under such Third Party Software Terms and Notices. Any undertakings, representations, warranties, guarantees, conditions, indemnities or other commitments made by Vayo in this Agreement concerning the Service (if any), are made by Vayo and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software.
3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted or reformed (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
4. Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
5. Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by Vayo, the writing must be duly signed by an authorized representative of Vayo), and shall be valid only in the specific instance in which given.
6. Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
7. Notices. Customer agree that Vayo may send Customer notices by email, via Customer's Account, by regular mail, and/or via postings on or through the functionality of the Service. Except as stated otherwise in this Agreement or required by Law applicable to Customer, Customer agrees to send all notices to Vayo, to email@example.com.
8. No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Vayo Affiliates, Vayo's licensors and suppliers, and Indemnitees), there shall be no third-party beneficiaries of or under this Agreement.
9. No Legal Advice. Customer acknowledges and agrees that Vayo does not provide (and nor are any Features intended to provide) any advice or any recommendation with respect to any Laws or other requirements (such as contractual requirements Customer may have with Third Party Apps) applicable to Customer's use of the Service.
10. U.S. Government Rights. The Service is "commercial computer software" and the Documentation is "commercial computer software documentation," pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If Customer is an agency, department, employee or other entity of the United States Government, then Customer's access to and use of the Service shall be subject solely to the terms and conditions of this Agreement.
11. Export Compliance. Customer represents and warrants (on behalf of itself and its Authorized Users, if applicable) that: (a) it is not a resident of (or will use the Service in) a country that the U.S. government has embargoed for use of the Service, nor is Customer named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Customer breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Service, Customer agrees to indemnify and hold harmless Vayo and all Vayo Affiliates (including ours and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Vayo or a Vayo Affiliate (or such persons) as a result of such breach or violation. "Export Control Laws" means all applicable export and re-export control Laws applicable to Customer and/or Vayo, as well as the United States' Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
12. Force Majeure. Vayo shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond Vayo's reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Service shall not be deemed within Vayo's reasonable control.
13. Third Party Charges. Customer's use of the Service may require and utilize an internet connection or data access. To the extent that third party service provider or carrier charges for internet or data usage are applicable Customer agrees to be solely responsible and liable for those charges.