Velocity Terms of Use

BY CLICKING “I AGREE” OR “ACCEPT”(OR OTHER SIMILAR BUTTON), OR BY OTHERWISE DOWNLOADING, ACCESSING AND/OR USINGANY PART OF THE PRODUCT (AS DEFINED BELOW INCLUDING A VELOCITY PLUGIN), YOU (“you”)ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY ALL THETERMS AND CONDITIONS OF THESE TERMS AND CONDITIONS (“Terms”), THE DATEOF SUCH OCCURRENCE BEING THE EFFECTIVE DATE “Effective Date”.

THESE TERMS CONSTITUTE A BINDINGAGREEMENT BETWEEN YOU AND VELOCITY T.K., INC., A COMPANY INCORPORATED UNDER THELAWS OF THE STATE OF UNITED STATES HAVING ITS PRINCIPAL PLACE OF BUSINESS AT  108 W. 13TH ST. SUITE 100, WILMINGTON, NEWCASTLE, DELAWARE 19801, UNITED STATES, (the “Company”, “us”, “we”or “Velocity”) (each, a “Party” and collectively, the “Parties”),AND GOVERN YOUR USE OF THE PRODUCT ON A LIMITED PERSONAL USE BASIS.

IF YOU ARE ENTERING INTO THESETERMS ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY,AND CAPACITY TO BIND SUCH ENTITY TO THESE TERMS AND IN SUCH CASE ALL REFERENCESTO “YOU” OR "YOUR" HEREINAFTER SHALL INCLUDE AND APPLY TO SUCHENTITY. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THESETERMS, YOU MAY NOT ACCESS OR USE ANY PART OFTHE PRODUCT.

BY ACCEPTING THESE TERMS, YOUREPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE.‍

‍1. Subscription.Subject to the terms and conditions of these Terms, Velocity hereby grants youa limited, worldwide, non-exclusive, non-sublicensable, non-transferable andrevocable right and license to access and/or use (as the case may be) theVelocity solution, the website (https://velocity.tech/ )and or any plugins for accessing the Velocity solution  (the “Product”)during the Term (as defined below), solely for your internal purposes. Unlessotherwise indicated, the term “Product” also includes any manual ordocumentation (“Documentation”) provided or made available to you inconnection with the operation of the Product. You may only use the Product inaccordance with the Documentation, subject to the use limitations indicatedherein as well as in any applicable laws and regulations. You are granted noother right or license in or to the Product, and any right not expresslygranted is hereby reserved by Velocity and its licensors. Velocity may, but isnot obligated to, monitor your use of the Product. Velocity may, from time totime, modify and replace the features and functionalities, as well as the userinterface, of the Product. You shall be solely responsible for providing allequipment, systems, assets, access, and ancillary goods and services needed toaccess and use the Product, for ensuring their compatibility with the Product.

2. IDE Plugin.  Accessto the Product may be obtained by way of a plugin that you have downloaded. Ifyou are using a plugin, Velocity hereby grants you a limited, worldwide,non-exclusive, non-sublicensable, non-transferable and revocable right andlicense to download and use such plugin for the purpose of accessing theProduct.

3. Services.
   3.1 The Product and any services provided shall be referred toas the “Services”.

  3.2 The Product may beaccessed solely by your employees or service providers who are explicitlyauthorized by you to access and use the Product (each, a “User”) and inaccordance with these Terms. You shall immediately report any unauthorizedaccess or use of the Product to Velocity. In order to access the Product, youand/or your Users may be required to set up an administrative account withVelocity (“Account”). You warrant and represent that all informationsubmitted during the registration process is, and will thereafter remain,complete and accurate. You shall be responsible and liable for all activitiesof your Users and all activities that occur under or in your Account. You willrequire that all Users keep their user ID and password information strictlyconfidential.

4. Fees. Your general rightto access the Product is currently for free. However, use of the Product may besubject to a fee. You will not be charged for any such use of the Productunless you first agree to such charges, but please be aware that any failure topay applicable charges may result in you not having access or the ability touse to some or all of the Product. You acknowledge that the fees you pay forthe Product will be paid via the payment method you have selected, and suchpayment method is authorized for the entire duration of your subscription. Youhereby authorize Velocity (and/or any service provider on its behalf) to chargesuch payment method immediately upon such amount becoming due. To the extentVelocity engages any third party for the purpose of processing payments on itsbehalf, additional terms and conditions may apply, with which you will besolely responsible to comply (and Velocity shall not be liable to you for anysuch payment processing service).

5. Prohibited Uses. Exceptas specifically permitted herein, without the prior written consent ofVelocity, you must not, and shall not allow any User or any third party to,directly or indirectly: (i) copy, modify, create derivative works of, makeavailable or distribute, publicly perform, or display any part of the Product(including by incorporation into its products), or use the Product to developany service or product that is the same as (or substantially similar to) it;(ii) sell, license, lease, assign, transfer, pledge, rent, sublicense, or shareyour rights under these Terms with any third party (including but not limitedto offering the Product as part of a time-sharing, outsourcing or servicebureau environment); (iii) use any “open source” or “copyleft software” in amanner that would require Velocity to disclose the source code of the Productto any third party; (iv) disclose the results of any testing or benchmarking ofthe Product to any third party; (v) disassemble, decompile, decrypt, reverseengineer, extract, or otherwise attempt to discover the Product’s source codeor non-literal aspects (such as the underlying structure, sequence,organization, file formats, non-public APIs, ideas, or algorithms); (vi) removeor alter any trademarks or other proprietary right notices displayed on or inthe Product; (vii) circumvent, disable or otherwise interfere withsecurity-related features of the Product or features that enforce uselimitations; (viii) export, make available or use the Product in any mannerprohibited by applicable laws; and/or (ix) store or transmit any malicious code(i.e., software viruses, Trojan horses, worms, robots, malware, spyware orother computer instructions, devices, or techniques that erase data orprogramming, infect, disrupt, damage, disable, or shut down a computer systemor any component of such computer system) or other unlawful material inconnection with the Product.

6. Intellectual PropertyRights.
   6.1 The Product is not for sale and is Velocity’ssole property. All right, title, and interest, including any intellectualproperty rights evidenced by or embodied in, attached, connected, and/orrelated to the Product (and any and all improvements, modifications andderivative works thereof) and any other products, deliverables or servicesprovided by Velocity, are and shall remain owned solely by Velocity or itslicensors. These Terms do not convey to you or any third party any interest inor to the Product other than a limited right to use the Product in accordanceherewith. Nothing herein constitutes a waiver of Velocity's intellectualproperty rights under any law.

   6.2 The (i) content onthe Product, including without limitation, the text, documents, articles,brochures, descriptions, products, software, graphics, photos, sounds, videos,interactive features, and services (collectively, the “Materials”), (ii)and, if applicable, User Submissions, as defined below (together with theMaterials, the “Content”), and (iii) the trademarks, service marks andlogos contained therein (“Marks”), are the property of Velocity and/orits licensors and may be protected by applicable copyright or otherintellectual property laws and treaties. “Velocity T.K., Inc.,” the Velocitylogo, and other marks are Marks of Velocity or its affiliates. All othertrademarks, service marks, and logos used on the Product are the trademarks,service marks, or logos of their respective owners. We reserve all rights notexpressly granted in and to the Product and the Content.

   6.3 Each partyauthorizes the other to use its name, logo and trademark in connection withcertain promotional materials that such party may disseminate to the public.The promotional materials may include, but are not limited to, brochures,video, internet website, press releases, advertising in newspaper and otherperiodicals, and any other materials relating the fact that the parties have acontractual relationship with each other.

 6.4 Use of Content. Content on the Product is provided to you for yourinformation and personal use only and may not be used, modified, copied,distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, orotherwise exploited for any other purposes whatsoever without our prior writtenconsent. If you download or print a copy of the Content you must retain allcopyright and other proprietary notices contained therein.

7. User Submissions.
   7.1 Responsibility. The Product may permit the submission,hosting, sharing and publishing of Content including source code by you andother users (“User Submissions”). You understand that whether or notsuch User Submissions are published, we do not guarantee any confidentialitywith respect to any User Submissions. You shall be solely responsible for yourUser Submissions and the consequences of posting, publishing or uploading them.We have complete discretion whether to publish your User Submissions and wereserve the right in our sole discretion and without further notice to you, tomonitor, censor, edit, remove, delete, and/or remove any and all Content postedon the Product (including User Submissions) at any time and for any reason.

   7.2 Ownership. Yourepresent and warrant that you own or have the necessary rights and permissionsto use and authorize Velocity to use all Intellectual Property Rights (definedbelow) in and to your User Submissions, and to enable inclusion and use thereofas contemplated by the Product and these Terms. Unless the User Submissions areseparately referred to, all references herein to Content shall includereferences to User Submissions. “Intellectual Property Rights” means anyand all rights, titles and interests, whether foreign or domestic, in and toany and all trade secrets, patents, copyrights, service marks, trademarks,know-how, or similar intellectual property rights, as well as any and all moralrights, rights of privacy, publicity and similar rights of any type under thelaws or regulations of any governmental, regulatory, or judicial authority,foreign or domestic. You retain all of your ownership rights in and to yourUser Submissions.

   7.3 License to UserSubmissions. By submitting the User Submissions to Velocity, you hereby grantVelocity a worldwide, irrevocable, non-exclusive, royalty-free, perpetual,sublicenseable and transferable license to use, reproduce, distribute, preparederivative works of, display, and perform the User Submissions in connectionwith the Product and Velocity's business. Any anonymous information, which isderived from the use of the Product (i.e., metadata, aggregated and/oranalytics information and/or intelligence relating to the operation, support,and/or your use, of the Product) which is not personally identifiableinformation and which does not identify you (“Analytics Information”)may be used for providing the Product, for development, and/or for statisticalpurposes. Such Analytics Information is Velocity's exclusive property.

   7.4 ProhibitedContent. You agree that you will not display, post, submit, publish, upload ortransmit a User Submission that: (i) is unfair or deceptive under the consumerprotection laws of any jurisdiction; (ii) is copyrighted, protected by tradesecret or otherwise subject to third party proprietary rights, includingprivacy and publicity rights, unless you are the owner of such rights; (iii)creates a risk to a person’s safety or health, creates a risk to public safetyor health, compromises national security, or interferes with an investigationby law enforcement; (iv) impersonates another person; (v) promotes illegaldrugs, violates export control laws, relates to illegal gambling, or illegalarms trafficking; (vi) is unlawful, defamatory, libelous, threatening,pornographic, harassing, hateful, racially or ethnically offensive, orencourages conduct that would be considered a criminal offense, gives rise tocivil liability, violates any law, or is inappropriate; (vii) involves theft orterrorism; or (viii) is otherwise malicious or fraudulent.

8.Confidentiality.

8.1 Each Party may have access tocertain non-public information and materials of the other Party, in any form ormedia, including without limitation trade secrets and other information relatedto the products, software, technology, data, know-how, or business of the otherParty, and any other information that a reasonable person should have reason tobelieve is proprietary, confidential, or competitively sensitive (the “ConfidentialInformation”). Any Velocity technology or information relating to its Productshall be deemed the Confidential Information of Velocity without any marking orfurther designation. Each Party shall take reasonable measures, at least asprotective as those taken to protect its own confidential information, but inno event less than reasonable care, to protect the other Party's ConfidentialInformation from disclosure to a third party.

8.2 The receiving party’sobligations under this section, with respect to any Confidential Information ofthe disclosing party, shall not apply to and/or shall terminate if suchinformation: (a) was already lawfully known to the receiving party at the timeof disclosure by the disclosing party; (b) was disclosed to the receiving partyby a third party who had the right to make such disclosure without anyconfidentiality restrictions; (c) is, or through no fault of the receivingparty has become, generally available to the public; or (d) was independentlydeveloped by the receiving party without access to, use of, or reliance on, thedisclosing party’s Confidential Information. Neither Party shall use ordisclose the Confidential Information of the other Party except for performanceof its obligations under this Agreement (“Permitted Use”).

8.3 The receiving party shall onlypermit access to the disclosing party's Confidential Information to itsrespective employees, consultants, affiliates, agents and subcontractors havinga need to know such information in connection with the Permitted Use, whoeither (i) have signed a non-disclosure agreement with the receiving partycontaining terms at least as restrictive as those contained herein or (ii) areotherwise bound by a duty of confidentiality to the receiving party at least asrestrictive as the terms set forth herein; in any event, the receiving partyshall remain liable for any acts or omissions of such persons. The receivingparty will be allowed to disclose Confidential Information to the extent thatsuch disclosure is required by law or by the order of a court or similarjudicial or administrative body, provided that it promptly notifies thedisclosing Party in writing of such required disclosure to enable disclosingparty to seek a protective order or otherwise prevent or restrict such disclosureand cooperates reasonably with disclosing party in connection therewith.

8.4 All right, title and interestin and to Confidential Information is and shall remain the sole and exclusiveproperty of the disclosing Party. The receiving party acknowledges thatdisclosure of Confidential Information would cause substantial harm for whichdamages alone would not be a sufficient remedy, and therefore that upon anysuch disclosure by the receiving party the disclosing party shall be entitledto appropriate equitable relief in addition to whatever other remedies it mighthave at law.

9. Information Description.We attempt to be as accurate as possible. However, we cannot and do not warrantthat the Content available on the Product is accurate, complete, reliable,current, or error-free. We reserve the right to make changes in or to theContent, or any part thereof, in our sole judgment, without the requirement ofgiving any notice prior to or after making such changes to the Content. Youruse of the Content, or any part thereof, is made solely at your own risk andresponsibility.

10. Privacy. We may useany personal information that we may collect or obtain in connection with theProduct in accordance with our privacy policy which is available at https://velocity.tech/privacy-policy.You agree that Velocity may use personal information that you provide or makeavailable to Company in accordance with the Privacy Policy.

11. Third Party Software.The Product may use or include third party open source software, files,libraries or components that may be distributed to you and are subject to thirdparty open source license terms.

12. DISCLAIMERS.
   12.1 This section applies whether or not the Product isprovided for payment. Applicable law may not allow the exclusion of certainwarranties, so to that extent certain exclusions set forth herein may not apply

   12.2 THE PRODUCT ISPROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, ANDWITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. VELOCITY HEREBYDISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TOIMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE,NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING ORUSAGE OF TRADE. VELOCITY DOES NOT GUARANTEE THAT THE PRODUCT WILL BE FREE OFBUGS, SECURITY BREACHES, OR VIRUS ATTACKS. THE PRODUCT MAY OCCASIONALLY BEUNAVAILABLE FOR ROUTINE MAINTENANCE,UPGRADING, OR OTHER REASONS. YOU AGREE THATVELOCITY WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRDPARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS,TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS. WE DO NOTWARRANT,ENDORSE OR GUARANTEE ANY CONTENT, PRODUCT, OR SERVICE THAT IS FEATUREDOR ADVERTISED ON THE PRODUCT BY A THIRD PARTY.

   12.3 VELOCITY DOES NOTWARRANT, ENDORSE OR GUARANTEE ANY CONTENT THAT APPEARS IN A USER SUBMISSION,AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO, AND DISCLAIMSALL LIABILITY FOR, ANY SUCH CONTENT.

   12.4 EXCEPT ASEXPRESSLY STATED IN OUR PRIVACY POLICY, VELOCITY DOES NOT MAKE ANYREPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, ASTO THE SECURITY OF ANY INFORMATION YOU MAY PROVIDE OR ACTIVITIES YOU ENGAGE INDURING THE COURSE OF YOUR USE OF THE PRODUCT.

13. LIMITATION OF LIABILITY.

   13.1 TO THE FULLESTEXTENT PERMISSIBLE BY LAW, VELOCITY SHALL NOT BE LIABLE FOR ANY INDIRECT,EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND, OR FORANY LOSS OF DATA, REVENUE, PROFITS OR REPUTATION, ARISING UNDER THESE TERMS OROUT OF YOUR USE OF, OR INABILITY TO USE, THE PRODUCT, EVEN IF COMPANY HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. Some jurisdictions do notallow the limitation or exclusion of liability for incidental or consequentialdamages, so the above limitations may not apply to you.

   13.2 IN NO EVENT SHALLTHE AGGREGATE LIABILITY OF VELOCITY FOR ANY DAMAGES ARISING UNDER THESE TERMSOR OUT OF YOUR USE OF, OR INABILITY TO USE, THE PRODUCT EXCEED THE TOTAL AMOUNTOF FEES, IF ANY, PAID BY YOU TO VELOCITY FOR USING THE PRODUCT DURING THE THREE(3) MONTHS PRIOR TO BRINGING THE CLAIM.

14. Indemnity. You agree to defend,indemnify and hold harmless Velocity and its affiliates, and our respectiveofficers, directors, employees and agents, from and against any and all claims,damages, obligations, losses, liabilities, costs and expenses (including butnot limited to attorney's fees) arising from: (i) your use of, or inability touse, the Product; (ii) your User Submissions; (iii) your interaction with anyProduct user; or (iv) your violation of these Terms

15. Term and Termination.

  15.1 Term. These Termscommence on the Effective Date and remain effective until terminated byVelocity or you.

   15.2 Termination.Velocity, in its sole discretion, has the right to terminate these Terms and/oryour access to the Product, or any part thereof, immediately at any time andwith or without cause (including, without any limitation, for a breach of theseTerms). Velocity shall not be liable to you or any third party for terminationof the Product, or any part thereof. If you object to any term or condition ofthese Terms, or any subsequent modifications thereto, or become dissatisfiedwith the Product in any way, your only recourse is to immediately discontinueuse of the Product. Upon termination of these Terms, you shall cease all use ofthe Product. This Section 15 and Sections 6 (Intellectual Property Rights),7.3(License to User Submissions), 8 (Confidentiality), 10 (Privacy), 12 (Disclaimers),13 (Limitation of Liability), 14 (Indemnity),and 17 (Independent Contractors)to 21 (General) shall survive termination of these Terms.

   15.3 Suspension.Velocity reserves the right to temporarily suspend provision of the Product:(a) if Velocity deems such suspension necessary as a result of Your breach ofthese Terms (such as a breach under Section 4 (Prohibited Uses); (b) ifVelocity reasonably determines suspension is necessary to avoid material harmto Velocity, to its other customers, or to the Product, including withoutlimitation if the Product's cloud infrastructure is experiencing denial ofservice attacks or other attacks or disruptions outside of Velocity's control,or (c) as required by law, regulation, or at the request of a governmentalentity.

   15.4 Upon terminationor expiration of these Terms: (i) the Product license granted to you underthese Terms shall expire, and you shall discontinue any further use thereof;and (ii) you shall immediately delete and dispose of all copies of theDocumentation in your or any of your representatives’ possession or control.The terms contained herein that, by their nature and content, must survive thetermination of these Terms in order to achieve the fundamental purposes ofthese Terms shall so survive, including but not limited to Sections 11 and 13hereof. The termination of these Terms shall not limit Velocity from pursuingany other remedies available to it under applicable law.

16. IndependentContractors. You and Velocity are independent contractors. Nothing inthese Terms creates a partnership, joint venture, agency, or employmentrelationship between you and Velocity. You must not under any circumstancesmake, or undertake, any warranties, representations, commitments or obligationson behalf of Velocity.

17. Assignment. TheseTerms, and any rights and licenses granted hereunder, may not be transferred orassigned by you but may be assigned by Velocity without restriction ornotification to you. Any prohibited assignment shall be null and void.

18. Governing Law. Velocityreserves the right to discontinue or modify any aspect of the Product at anytime. These Terms and the relationship between you and Velocity shall begoverned by and construed in accordance with the laws of the State of New York,without regard to its principles of conflict of laws. You agree to submit tothe personal and exclusive jurisdiction of the courts of New York, New York andwaive any jurisdictional, venue, or inconvenient forum objections to suchcourts.

19. Taxes. The Fees as set forth in an Order Form do not include applicablenational, federal, state or local sales, use, goods or service, valued added,excise or other taxes or levies (all or any thereof, “Sales Tax”), allof which (as applicable) shall be payable by Customer. Where applicable, asrequired by law, such Sales Tax shall be added by Company to the applicableinvoice as a separate line item and Customer shall remit such amounts toCompany along with the payment of the Fees. For tax purposes, Customer isdeemed to be located at the time of sale at Customer’s headquarters per theaddress set forth above in this Agreement, and such Customer is understood tobe the user of the licenses. Any Sales Tax obligations arising from theextension of such license to Customer’s employees, third party contractors andconsultants which may be located in multiple states, will be the soleobligation of Customer to remit directly to the relevant tax authorities. In noevent shall Company be required to pay any Sales Taxes owed by Customer, andCustomer shall remit to Company any such payment, as well as the payment of anyfees, penalties or late charges related thereto which Company may be requiredto pay, as a result of any determination in connection with any contest withtaxing authorities. 

Customer shall make payment of allamounts required hereunder without set-off, withholding or deduction, except asmay be required by law. To the extent Customer is required by law to withholdany amounts from payments made hereunder, Customer shall deduct such amountsfrom amounts payable hereunder and remit such amounts to the applicable taxauthorities, provide Company with an original receipt in respect of such paidtaxes.

20. Disputes. Theparties expressly waive any right to a jury trial regarding disputes related tothese Terms. Notwithstanding the foregoing, we may seek injunctive relief inany court of competent jurisdiction. To the extent permitted by law, you: (a)agree that any proceedings to resolve or litigate any claim, dispute orcontroversy will be conducted solely on an individual basis (and not in anyclass action or class-wide proceeding), and that you may initiate suchproceedings only on your own behalf; (b) hereby irrevocably waives the right tolitigate such claims, disputes, or controversies in court before a jury; and(c) agree not to participate in claims, disputes, or controversies brought inan attorney general or representative capacity, or in consolidated claims,disputes, or controversies involving another person's claim against Velocity.

21. General.

‍21.1We may update or modify these Terms from time to time, including any referencedpolicies and other documents. If a revision meaningfully reduces your rights,we will use reasonable efforts to notify you (possibly through the Productitself). You will have ten (10) days in which to object to the updated Termsand, as your exclusive remedy, you may choose not to renew with Velocity,including cancelling any terms set to auto-renew. After such period youracceptance of such new Terms will be deemed to have been received by Velocity.

21.2 These Terms shall constitutethe entire agreement between you and Velocity concerning the Product. If anyprovision of these Terms is deemed invalid by a court of competentjurisdiction, the invalidity of such provision shall not affect the validity ofthe remaining provisions of these Terms, which shall remain in full force andeffect. No waiver of any term of these Terms shall be deemed a further orcontinuing waiver of such term or any other term, and a party's failure toassert any right or provision under these Terms shall not constitute a waiverof such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAYHAVE ARISING OUT OF OR RELATED TO THE PRODUCT MUST COMMENCE WITHIN ONE (1) YEARAFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION ISPERMANENTLY BARRED.