Terms of Service

Effective: October 8, 2015

These Terms of Service (the “Terms”) govern your purchase (both initially and subsequently), use of and access to the products and services provided by Vyopta Incorporated (“Vyopta”, “we”, “our” or “us”), which included www.vyopta.com, apps.vyopta.com and any related sites (the “Site”) and our Agents, Software, Documentation, and Content (all as defined below and collectively, the “Services”) (the Site and the Services are referred to collectively as the “Vyopta Properties”). Please review these Terms carefully before using the Services.

If you have entered into a separate paid enterprise-level agreement (“Enterprise Agreement”) with us for specific services, then the terms of that agreement controls if it conflicts with these Terms.

If you have not entered into an Enterprise Agreement with us for specific services, then by using the Vyopta Properties, clicking on the “I Agree” Button, completing the registration process, and/or browsing the Site or downloading any of our Agents, you represent that you:

(1) have read, understand, and agree to adhere to and be bound by the Terms,
(2) are of legal age to form a binding contract with Vyopta, and
(3) have the authority to enter into the Terms personally or on behalf of the company or other organization you have named as the user, and to bind that entity to these Terms. In the event you are agreeing to these Terms on behalf of a company or organization, “you” and “your” will refer to the entity you are representing.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms and any applicable Supplemental Terms are collectively referred to herein as the “Terms.”

1. Services

1.1 Vyopta May Discontinue the Services. Vyopta may choose to modify or discontinue the Services, including any portions of the Services as we update our offerings and add more features. We may stop, suspend, or modify the Services at any time. Vyopta will make reasonable efforts provide at least thirty (30) days notice of any major modifications or termination of Services.

1.2 Vyopta May Modify These Terms. Vyopta may update these Terms from time to time. The most current version of these Terms will be posted on Site. When changes are made, Vyopta will make a new copy of the Terms available at the Site and any new Supplemental Terms will be made available from within, or through, the affected Service on the Site or within the Agent. We will also indicate the “Last Updated” date at the top of the Terms. Any changes to the Terms will be effective immediately for new users of the Vyopta Properties and, for all other users, any changes to the Terms will be effective thirty (30) days after posting notice of such changes on the Site, or within or through the affected Service on the Site, as applicable. If we determine in our sole discretion that an update is material, we will notify you through the Service and/or by email to the email address associated with the Administrator (defined below) for your account. We may also inform you of updates to the Terms in our blogs. We may require you to provide consent to the updated Terms in a specified manner before further use of the Vyopta Properties is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Vyopta Properties. Otherwise, your continued use of the Vyopta Properties constitutes your acceptance of such change(s). Please check the Site regularly to view our then-current Terms.

1.3 Privacy. The Vyopta Privacy Policy www.vyopta.com/privacy governs any of the personal information that you provide to us.

1.4 Your Account. Registration for a Vyopta account is necessary to place order, access or use the Vyopta Properties. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by our registration form (“Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are not a person barred from using the Vyopta Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree not to create an account using a false identity or information. You agree not to create an account or use the Vyopta Properties if you have been previously removed by Vyopta, or if you have been previously banned from any of the Vyopta Properties. It is your responsibility to safeguard the login and password that you use to access the Services and you agree not to share your login and password with any third party, including not sharing your login amongst two or more users. You are responsible for any activity originating from your account, regardless of whether such activity is authorized by you. You should notify Vyopta immediately of any unauthorized use of your account.

1.5 Orders; Payment. You may order or purchase access to use Vyopta Properties either directly or through an authorized Vyopta reseller.

A. Directly with Vyopta. Vyopta purchase orders (“Order”) will specify your authorized scope of use for the Vyopta Properties, which may include: (1) number and type of authorized users, (2) number of installations of Agents or instances, or (3) other restrictions or billable units (as applicable, the “Scope of Use”). The term Order also includes any applicable products, services, support or maintenance renewal, or purchases made to increase or upgrade your Scope of Use.
B. Reseller Orders. These Terms apply whether you purchase access to and use of Vyopta Properties directly from us or through an authorized Vyopta reseller (each, a “Reseller”). If you purchase through a Reseller, your Scope of Use shall be stated in the Order placed by the Reseller for you, and Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on Vyopta’s behalf, and we are not bound by any obligations to you other than what we specify in these Terms.
C. Payment. You agree to pay all fees in accordance with each Order in U.S. dollars at the time you place the Order, unless otherwise specified. All amounts are non-refundable, non-cancelable and non-creditable.  In making payments, you acknowledge that you are not relying on future availability of any Services beyond the current subscription term or any upgrades or feature enhancements. You agree that we may bill your credit card for renewals, upgrades or additions, and unpaid fees, as applicable. If you purchase any Services through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use the Vyopta Properties if we do not receive our corresponding payment from the Reseller.
D. Taxes. Your payments under these Terms exclude any taxes or duties payable in respect of the Services in the jurisdiction where the payment is either made or received.  To the extent that any such taxes or duties are payable by Vyopta, you must pay us the amount of such taxes or duties in addition to any fees owed under the Order. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Vyopta any such exemption information, and Vyopta will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

1.6 Use of the Vyopta Properties. Subject to compliance with these Terms, Vyopta grants to you a limited, non-exclusive, non-transferrable right, during the applicable subscription term, to: (1) access and use the Vyopta Properties for your internal business purposes; and (2) use the Documentation in support of such access and use of the Vyopta Properties. Unless otherwise specified by Vyopta in a separate agreement, your right to use any Vyopta Properties is subject to the Terms. You understand that access and use of apps.vyopta.com, Vyopta cloud/SaaS platform and Agents are available as a subscription based service only and requires annual contract renewals for continued use and access. Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial subscription term at the then-current rates.

A. Agent License. Use of any of our software agents (such as vControl® or vAnalytics™ data collectors) and associated documentation that is made available via the Site or the Services (each an “Agent”) is governed by the terms of the license agreement that accompanies or is included with the Agent, or by the license agreement expressly posted on the Site. By downloading, installing or using our Agent, you are agreeing to be bound by the terms and conditions of the accompanying license agreement. At no time will Vyopta be required to provide you with any tangible copy of software.  Agents will be accessible via electronic transfer or download. Any copying or redistribution of the Agents is prohibited, or redistribution or use on a service bureau basis. If there is any conflict between the Terms and the license agreement, the license agreement shall take precedence with respect to that Agent.  Notwithstanding the foregoing, if the Agent is a pre-release or beta version, then, except for anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Agent for any commercial purposes. If no license agreement accompanies use of the Agent, use of the Agent will be governed by the Terms. Subject to your compliance with the Terms, Vyopta grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Agents for the sole purpose of enabling you to use the Services in the manner permitted by the Terms.
B. Updates. You understand that the Vyopta Properties are evolving. As a result, Vyopta may require you to accept updates to the Vyopta Properties that you have installed on your computer or mobile device. You acknowledge and agree that Vyopta may update the Vyopta Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Vyopta Properties.
C. Free Trials and Other Promotions. Any free trial or other promotion that provides you with free access to Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of such Service is prohibited unless you pay the applicable fees.

1.7 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: You may not (i) copy, modify, host, sublicense or resell the Services; (ii) frame or utilize framing techniques to enclose any trademark, logo, or other Vyopta Properties (including images, text, page layout or form) of Vyopta; (iii) use metatags or other “hidden text” using Vyopta’s name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Vyopta Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials; (vi) access the Vyopta Properties to build a similar or competitive website, application or services; (vii) remove or destroy any copyright notices or other proprietary markings contained on or in the Vyopta Properties; (viii) access or attempt the access the Services by any means other than what Vyopta provides or expressly allows; (ix) modify, adapt or hack the Services or modify another website so as to falsely imply that it is associated with the Services, Vyopta, or any other Vyopta service; (x) reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services, without the express written permission by Vyopta; (xi) transmit any worms or viruses or any code of a destructive nature; or circumvent any use restrictions put into place to prevent certain uses of the Services; (xii) violate any intellectual property right of any third party or behave in a manner that is unlawful; (xiii) misrepresent your affiliation with a person or entity; (xiv) attempt to disable, impair, or destroy the Services or disrupt or inhibit any other user from using the Services; (xv) market or advertise through the Services; (xvi) use any data mining or similar data gathering and extraction methods in connection with the Services; or (xvii) use the Vyopta Properties to violate any applicable law.

1.8 Availability of the Services. Information describing the Services is accessible worldwide but this does not mean the Services or certain portions of the Services are available in your country. We may restrict access to portions of the Services in certain countries. It is your responsibility to make sure your use of the Services is legal in the country where you reside. The Services may not be available in all languages. If at Vyopta’s reasonable determination, you are using the Vyopta Properties in a manner that violates laws, creates an excessive burden or potential adverse impact on Vyopta’s systems, in addition to any of its other rights or remedies, Vyopta may, without liability to Vyopta, immediately suspend your access to the Vyopta Properties.

1.9 Your Data. Use of the Services may depend on your transmission of certain data (your “Data”). You retain all rights and ownership in your Data. We do not claim any ownership rights in your Data. You represent and warrant that you have the necessary rights and licenses required to provide your Data to Vyopta in connection with your use of the Services and that by providing your Data in this manner, you will not violate any intellectual property rights of third parties, confidential relationships, contractual obligations or laws.You hereby grant to Vyopta a nonexclusive, nontransferable limited license to access, copy and use the Data in accordance with the data privacy and information protection requirements set forth herein solely as required to provide the Services. Without limiting the generality of the foregoing, you shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personally identifiable information of such data subjects via the Services by Vyopta and/or you. You shall be solely responsible for ensuring that any processing of Data by Vyopta and/or you via the Services does not violate any applicable laws. You shall not process or submit to the Services any Data that includes any: (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless it enters into a separate agreement with Vyopta relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (iv) “sensitive” personal data, as defined under Directive 95/46/EC of the European Parliament (“EU Directive”) and any national laws adopted pursuant to the EU Directive, about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, or the commission or alleged commission any crime or offense. Vyopta implements security policies and procedures to help protect your Data from security attacks, and we encrypt all transmission of your Data between your organization and Vyopta’s Properties. However, you understand that use of Vyopta Properties necessarily involves transmission over networks that are not owned, operated or controlled by us, and Vyopta is not responsible for any loss of Data.  Vyopta will not be liable for any liabilities arising from your use of the Services (including your transmission of Data) over the internet or other network.

1.10 Vyopta Stores Your Data in the United States. Vyopta provides the Service from the United States. By using and accessing the Service, you understand and agree to the storage and processing of your Data and any other information you choose to provide in the United States. Vyopta reserves the right to store and process your Data and any other information you choose to provide outside of the United States and will endeavor to give you 30 days’ notice in the event of such a change.

1.11 Vyopta Proprietary Rights. Except with respect to your Data and your User Content (defined below), you agree that Vyopta and our suppliers own all rights, title and interest in the Vyopta Properties and Content. Vyopta’s Software and other technology that may be used to provide the Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Vyopta Properties. These terms do not grant you any right, title, or interest in any of the Vyopta Properties or any Content other than your Data and your User Content. These Terms do not grant you any rights to use the Vyopta trademarks, logos, domain names, or other brand features.

1.12 Publicity Rights. We may identify you as a Vyopta customer on our website and in promotional materials. You may request that we stop doing so by sending a written request to marketing@vyopta.com. Please allow us at least thirty (30) days to process your request.

1.13 Your Feedback; Product Improvement. We appreciate your ideas, comments, suggestions, documents and/or proposals (“Feedback”). You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant Vyopta a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback. We are always striving to improve our products and services. To do so, we need to measure, analyze, and aggregate how users interact with our products and services, such as usage patterns and characteristics of our user base. We collect and use analytics data regarding the use of our products and services as described in our Privacy Policy.

2. Use

2.1 Services. Vyopta offers several types of paid Services (“Services”) which are listed on Vyopta’s product information page available atwww.vyopta.com/products.

2.2 Support. Technical support is only provided to users that have purchased Services. If you are using the Service via a free or unpaid account, Vyopta provides support via email and access to Vyopta installation guides and other documentation related to the Service at: www.vyopta.com/support/documentation (“Documentation”).

2.3 Account Administrators. You may specify end users as “Administrators” through the administrative console of the Services. Administrators may have the ability to access, disclose, restrict or remove Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts for their end users. Vyopta responsibilities do not extend to your internal management or administration of the Services. You are responsible for: (i) maintaining the confidentiality of passwords of your account and any Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators’ use of the Services complies with this Agreement.

2.4 Unauthorized Use & Access. You will prevent unauthorized use of the Services by your Administrators and your end users and terminate any unauthorized use of or access to the Services. You will promptly notify Vyopta of any unauthorized use of or access to the Services.

2.5 Third Party Technology. The Services may contain links to third party websites or technology (for example, we may host a library of plugins created by entities other than Vyopta) (“Third Party Technology”). Vyopta does not endorse and is not responsible or liable for the products or services provided by such third parties. Vyopta is not responsible for the operation or functionality of such Third Party Technology. You are solely responsible for your use of any Third Party Technology. In addition, we may provide you with software governed by an open source license. If there are provisions in those open source licenses that expressly conflict with these Terms, the relevant open source license terms will apply. Please review our license page for the licenses governing our Agents and Third Party Technology at: www.vyopta.com/licensing-information. ANY THIRD PARTY TECHNOLOGY DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH YOUR USE OF THE VYOPTA PROPERTIES IS DONE SO AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH THIRD PARTY TECHNOLOGY.

3. Indemnification.

A.Your Obligations. You agree to indemnify and hold Vyopta, its parents, subsidiaries, affiliates, officers, agents, employees, resellers or other partners and licensors harmless from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your Data, or the use thereof, including but not limited to allegations that any processing of your Data by Vyopta and/or you under this Agreement violates any applicable law or regulation, or infringes the privacy or intellectual property rights of a third party, your User Content, your use of the Vyopta Properties, your violation of these terms, or your violation of any law.
B. Vyopta’s Obligation. We will defend you against any claim brought against you by a third party alleging that Vyopta Properties, when used as authorized under these Terms, infringed a United States patent (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Vyopta (including reasonable attorneys’ fees) arising out of a Claim, provided that we have received from you: (1) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice), (2) reasonable assistance in the defense and investigation of the claim, and (3) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Vyopta Property is (or in our opinion likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (1) procure a license for your continued use of the product in accordance with these Terms, (2) substitute a substantially functionally similar product, or (3) terminate your right to continue using the product and issue a refund (for any prepaid amounts for the terminated portion of the subscription term). Vyopta’s indemnification obligation above does not apply: (1) if the total aggregate fees received by Vyopta with respect to your subscription in the past twelve (12) month period immediately preceding the Claim is less than US $50,000, (2) if the product or services has been modified by any party other than Vyopta, but solely to the extend that the alleged infringement is caused by such modification, (3) if the product or services is used in combination with any non-Vyopta product, software or equipment, but solely to the extent that the alleged infringement is caused by such combination, (4) to unauthorized use of the Vyopta Properties, or (5) you settle or make any admissions with respect to a Claim without Vyopta’s prior written consent. THIS SECTION STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY VYOPTA UNDER THESE TERMS.

4. The Service is Available “AS-IS” AND WITHOUT WARRANTY. VYOPTA PROVIDES THE VYOPTA PROPERTIES “AS IS” AND ON AN “AS AVAILABLE” BASIS. YOUR USE OF THE VYOPTA PROPERTIES IS AT YOUR OWN RISK. VYOPTA PROVIDES THE VYOPTA PROPERTIES WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. WE ALSO DISCLAIM ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Vyopta makes no warranty or condition that the Vyopta Properties will meet your requirements or be uninterrupted, timely, secure or error-free. Vyopta makes no warranty or condition that results obtained from your use of the Vyopta Properties will be accurate or reliable or that any errors in the Vyopta Properties will be corrected. Vyopta will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Vyopta Properties. No advice or information, whether oral or written, obtained by you in connection with your use of the Vyopta Properties shall create any warranty not expressly stated in these Terms. FROM TIME TO TIME, VYOPTA MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT ANY TIME AT OUR SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES AND TOOLS. Some states do not allow the types of disclaimers in this paragraph, so they may not apply to you.

5. Vyopta’s Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL VYOPTA, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT VYOPTA HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. VYOPTA’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES, THE SITE, AND THE AGENTS WILL AT ALL TIMES BE LIMITED TO THE GREATER OF FIFTY U.S. DOLLARS (U.S. $50) OR THE AMOUNTS YOU PAID TO VYOPTA IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VYOPTA AND YOU. Some states do not allow the types of limitations in this paragraph, so they may not apply to you.

6. Termination. We reserve the right to suspend or cease providing the Vyopta Properties or any portion of the Vyopta Properties, at any time, with or without cause or notice. We may suspend or terminate your use of the Vyopta Properties if you are not complying with these Terms, or if you use the Services in any way that could cause us legal liability or disrupt others’ use of the Services. If we suspend or terminate your use, we will try to let you know in advance. If you want to terminate the Services at any time, you may do so by (a) notifying Vyopta and (b) closing your account for the Services that you use. Your written notice should be sent to Vyopta’s address set forth in the Notice section below or to: accounting@vyopta.com. If you cancel, your subscription will terminate at the end of the then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

7. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and data associated with or inside your account, including your Data. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of your Data associated therewith from our live databases. Vyopta will not have any liability whatsoever to you for any suspension or termination, including for deletion of your Data. All provisions of these Terms, which by their nature should survive, shall survive termination of Services, including without limitation ownership provisions, warranty disclaimers and limitations of liability.

8. Electronic Communications. The communications between you and Vyopta use electronic means, whether you visit the Vyopta Properties or send us e-mails, or whether we post notices on the Vyopta Properties or communicate with you via e-mail. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. Your consent in this section does not affect your statutory rights.

9. Notice. Where Vyopta requires that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to us at the following address:

Vyopta Incorporated

3755 South Capital of Texas Highway, Suite 340

Austin, Texas 78704

Such notice shall be deemed given when received by Vyopta by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

10. Export Control. You may not use, export, import or transfer the Vyopta Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Vyopta Properties and any other applicable laws. In particular, but without limitation, the Vyopta Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone of the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Vyopta Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Vyopta Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Vyopta are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Vyopta Properties, or any portion thereof, either directly or indirectly, to any country in violation of such laws and regulations.

11. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.

12. Government Use. If you are a U.S. government entity, you acknowledge that any Services provided are “Commercial Items” as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.

13. Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the law of the State of Texas, USA, without giving effect to any principles that provide for the application of the law of another jurisdiction. Each party irrevocably agrees that any legal action, suit or proceeding must be brought solely and exclusively in, and will be subject to the service or process and other applicable procedural rules of, the State or Federal courts in Austin, Texas, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Austin, Texas, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Vyopta may bring a claim for equitable relief in any court with proper jurisdiction.

14. General Terms. These Terms constitute the entire and exclusive agreement between Vyopta and you with respect to the Services and supersede and replace any other agreements, terms and conditions applicable to the Services. These Terms constitute the entire and exclusive agreement between Vyopta and you with respect to the Vyopta Properties and supersede and replace any other agreements, terms and conditions applicable to the Services. Purchase orders placed by you shall be for the sole purpose of specifying the Services that you wish to purchase. Any other terms stated in any purchase order delivered to Vyopta by you, other than pursuant to an Order Form supplied by Vyopta, shall have no effect. These Terms create no third party beneficiary rights. Vyopta’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights in these Terms, and any such attempt is void, but Vyopta may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. You and Vyopta are not legal partners or agents; but rather we have an independent contractor relationship. Vyopta will not be responsible for any failure to perform or delay in performing any of its obligations under these Terms where and to the extent that such failure or delay results directly or indirectly from an event beyond Vyopta’s reasonable control.

Pin It on Pinterest