Ventus Rex Terms of Service
Please read these Terms of Service carefully before any Use of the Products. Your Use constitutes an unconditional agreement to be bound by these Terms of Service. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE YOU ARE PROHIBITED FROM USING THE PRODUCTS.
The Products are available in different Editions, including unpaid and paid options. Certain rights, obligations and restrictions vary by Edition. Unless otherwise stated, terms apply to all Editions.
“Adaptation” means any work that modifies, adds to, deletes from, edits, affects the function of or is based on a Product or any previous Adaptation thereof, including all derivative works of a Product as such term is defined by the Copyright Act.
“Claims” means claims, suits, demands and actions by third parties.
“Company” means Ventus Rex, Inc. d/b/a Rex or Ventus Rex.
“Customer” or “You” means you and any entity on whose behalf you Use Products.
“Customer Information” means personal and non-personal information about Customer including but not limited to Customer’s name, address, email address, telephone number, likeness, and, if Customer transacts business with the Company, financial information such as payment method (valid credit card number, type, expiration date or other financial information).
“Dashboard” means an on-line control panel that provides certain functionality including account monitoring, configuration, management and statistics reporting.
“Documentation” means any technical or other specifications or documentation that Company may provide to Customer for use in connection with Products.
“Distribute” means to sell, transfer, assign, circulate, disseminate, distribute or make available to any third party, or the facilitation of the foregoing.
“Edition” means a particular edition of Ventus Rex.
“Effective Date” means the earliest date a Product is Used by Customer unless otherwise provided on an applicable Order Form.
“End User” means an individual or entity that accesses or Uses Customer’s platform or Adaptations.
“Fee” means the amount payable to the Company for Use of a Product.
“License Scope” means the features authorized for a particular installation
“Losses” means damages, losses, costs and liabilities (including reasonable attorney and professional fees) arising from a Claim.
“Order Form” is an agreement between Company and Customer setting forth custom pricing and terms for the use of Products and includes any contemporaneous Addendum thereto. In the event of any conflict between the terms of an Order Form and these Terms of Service, the Order Form shall take precedence.
“Products” means the Licensed Programs and Services.
“Prohibited Content” means any Content that (i) infringes any copyright, trademark, patent, trade secret, right of publicity or other right of any person or entity, (ii) is unlawful, threatening, abusive, harassing, hateful, discriminatory, defamatory, libelous, misleading, deceptive, fraudulent, invasive, tortious, obscene, offensive, vulgar, pornographic, profane, promotes violence, (iii) contains any virus, worm, malicious code, Trojan horse, time bomb, spyware, malware or other computer code, file or program designed, intended or likely to disrupt, damage, limit or interfere with the proper function of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of the Company or any person or entity, (iv) encourages illegal activity or (v) falsely suggests or implies sponsorship or endorsement by the Company.
“Purpose” means (i) Use to facilitate participant tracking in the Ventus Rex platform
“Sensitive Data” means online account access credentials; a first name or initial and last name; a Social Security number; a driver’s license number or other state or government identification number; medical or health insurance information; personal biometric data; an account number, debit card number, or credit card number in combination with any required security code, access code, or password that would permit access to or use of such account or card; Protected Health Information (as defined by HIPAA); information pertaining to or obtained from any person known to be under 13, or from a Website or application directed to persons under 13; or special categories of personal data, as referenced in Article 9 of the GDPR.
“Services” means services provided or made available to Customer under these Terms of Service or otherwise offered by the Company to its Customers, including all version of Ventus Rex provided as software as a service (SaaS) and maintenance and support services, as well as data used within any of those features (such as for optimization or analytics).
“Taxes” means all taxes, levies, duties, tariffs, imposts, deductions, charges or withholdings and all related liabilities, including interest, penalties or additions thereto.
“Terms of Service” or “TOS” means this document, including any applicable, mutually ratified Order Form and/or Addendum, which shall be incorporated into these Terms of Service.
“Use” means operating, accessing, downloading, installing, integrating or providing Content through a Product or Adaptation.
“Website” means any website on which you use any Services.
These Terms of Service apply to all versions of Ventus Rex.
Subject to the terms and conditions of these Terms of Service and Customer’s observance thereof, Company hereby grants to Customer and Customer hereby accepts a non-exclusive, non-transferable, non-sublicensable, limited right and license, solely for the Purpose, to (a) Use, access and install the Products, (b) Use, access, integrate and install the platform, (c) make and distribute Documentation internally.
Use of the Platform in connection with advertising of any kind is prohibited. Use of Except for Customers with specific provisions in their contract, Customers are limited to one (1) account. Promotional offerings, such as a trial period, shall have the limitations and restrictions provided in such promotional offering, in addition to the limitations and restrictions set forth in these Terms of Service.
Customer is strictly prohibited from providing false or misleading user information, including using a name, address or email address owned or controlled by another person without appropriate authorization. Company reserves the right to refuse registration or cancel any account that it reasonably believes is in violation of the foregoing. Customer shall be responsible for maintaining the secrecy of its password and is liable for all activities that occur on its account. Customer agrees to immediately notify the Company of any unauthorized use of Customer’s username, password or other breach of account security.
Customer is authorized to make Adaptations reasonably necessary to exercise its rights under these Terms of Service. All Adaptations created by Customer are strictly for Use in connection with the Purpose. Customer is solely responsible to ensure that its Adaptations (except the Products incorporated therein) comply with all applicable laws and regulations and do not infringe the intellectual property rights of any third party. Company reserves the right to prohibit the Use or Distribution of any Adaptation that it reasonably believes violates or is likely to violate such laws, regulations or rights and if Customer fails to cure the foregoing within fifteen (15) days after written notice thereof.
Except pursuant to the Purpose or as otherwise specifically set forth herein, Customer shall not Distribute, re-license, sell, lease, transfer, encumber, assign or make available for public use the Products or any Adaptation thereof. Any attempt to take any such actions is void and constitutes a material breach of these Terms of Service.
These Terms of Service shall become effective on the Effective Date. Upon the conclusion of the Initial Term, these Terms of Service shall automatically renew for additional successive one (1) year terms.
Either party may elect to not renew these Terms of Service by notifying the other prior to the expiration of the then-current Initial Term or Renewal Term. Such notice may be provided by the Customer either via email to Customer support or through mail. Notice must be provided in writing no later than thirty (30) days prior to such expiration. If Customer terminates these Terms of Service, Customer may use Customer’s subscription until the end of Customer’s then-current term and Customer’s subscription will not be renewed after Customer’s then-current term expires. However, Customer won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. IF Customer DOES NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING BASIS, Customer MUST CANCEL THE APPLICABLE TERMS OF SERVICE BY NOTIFYING COMPANY BEFORE THE END OF THE THEN-CURRENT INITIAL TERM OR RENEWAL TERM, WHICH FOR ENTERPRISE EDITION SHALL BE NO LATER THAN THIRTY (30) DAYS PRIOR TO THE END OF THE THEN-CURRENT INITIAL TERM OR RENEWAL TERM. THESE TERMS OF SERVICE CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH Customer HAS ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, COMPANY WILL NOT REFUND ANY FEES THAT CUSTOMER HAS ALREADY PAID.
Customer’s non-termination or continued use of Products reaffirms that Company is authorized to charge Customer’s designated payment form for such Products. Company may submit those charges for payment and Customer will be responsible for such charges. This does not waive Company’s right to seek payment directly from Customer. Customer’s charges may be payable in advance, in arrears, per usage, or as otherwise described when Customer initially selected to use the Products. Customer hereby acknowledges that it will not receive notice of a renewal cancellation date or automatic renewal and expressly waives the application of New York General Obligations Law Section 5-903, and any similar laws, to the renewal of these Terms of Service.
If Company has provided notice of non-renewal to an Customer in accordance with the above mechanism, and the parties are negotiating in good faith to agree a new Order Form, and Customer continues to Use the products beyond the effective date of expiration without such new Order Form having been executed by a duly authorized representative of each party, Customer will be deemed to have renewed for a one (1) month term (a “Negotiation Period”); provided that Company may in its sole discretion notify Customer that such Negotiation Period will not occur, in which case these Terms of Service will expire as provided herein. Customer will for the Negotiation Period be invoiced, and will pay in accordance with the payment terms herein, one-twelfth of the annual Fees provided on the applicable Order Form. The Negotiation Period will not renew without the written consent (email sufficing) of Company. The foregoing shall not affect either party’s rights to terminate these Terms of Service as provided herein.
These Terms of Service are subject to termination by Company immediately and/or Customer’s account may be suspended if (a) Customer fails to timely pay a Fee or Overages, (b) Customer violates any term of these Terms of Service, (c) Customer becomes insolvent, declares bankruptcy or a receiver or trustee is appointed for Customer, (d) Customer is or becomes engaged in a business that is competitive with the Company’s business, or (e) Customer exceeds the License Scope permitted for its Order and Customer fails to cure any of the foregoing within seven (7) days of notice thereof.
In the event of any termination by the Company pursuant to (a) – (e) above, the Company is under no obligation to provide a refund for the Fees received from Customer or apply such fees to future services. In the event of the Company’s termination for convenience, Customer shall, on its request, be given a pro rata refund of unused pre-paid Fees. In the event Customer switches to a different plan, any pre-paid Fee balance shall be applied towards the Fees due for such plan until exhausted.
A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. For the purpose of this Agreement, a “material breach” shall mean a breach that is not capable of being cured or if cured would not be of a material adverse effect on the non-breaching party.
Effects of Termination
Upon expiration or termination of these Terms of Service for any reason, Customer shall immediately cease Use the Products and uninstall, delete and destroy any copies of the Licensed Programs under its control. In the event any Products are no longer under Customer’s control, Customer shall use its best efforts to cause use of such Products to promptly cease.
Without limiting the foregoing, if Customer fails to cease Use of the Products or Services following expiration or termination, Customer will continue to pay the Fees. To the extent that such continued use is due to Products no longer under Customer’s control, such Fees shall be pro rata based on the volume of ongoing Use, until such Use ceases.
Upon expiration or termination, Company may delete any Content, information, files or materials in or related to Customer’s account, and Company will have no obligation whatsoever to save or make any such Content, information, files or materials available to Customer or any other party. Customer agrees that Company will have no liability whatsoever to Customer or any other party related to termination of access to Customer’s account or as a result of the deletion or loss of any Content, information, files or materials in or related to Customer’s account.
Upon expiration or termination, all rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of expiration or termination and remedies for breach of these Terms of Service shall survive. The provisions of all sections of these Terms of Service shall also survive.
Maintenance and Support
Support Documentation will be located at https://ventusrex.com/support. Company will provide technical support and maintenance for the Products in its sole discretion except as otherwise provided in a paid support package set forth on an applicable Order Form, and Company shall have no obligation to provide additional technical support, maintenance, updates or enhancements to the Products or to provide customer service or support to Customer’s End Users. All installation and maintenance of Products by Customer shall be at the sole expense of Customer.
The Company shall retain all intellectual property rights pertaining to the Products, including but not limited to copyright, trademark and patent rights and all rights not expressly granted herein are reserved. If Customer creates an Adaptation, Customer shall obtain all intellectual property rights in and to the elements of such Adaptation created by Customer and the Company shall retain all intellectual property rights in and to any elements of the Products incorporated in such Adaptation. Customer is prohibited from creating any Adaptation that in any manner infringes the patents, trademarks, copyrights, trade secret rights or other rights of the Company or any third party.
In the event that you provide comments, suggestions, ideas, or recommendations to the Company with respect to the Products and Services (including, without limitation, with respect to modifications, enhancements, improvements and other changes) (collectively, “Feedback”), you hereby grant to the Company a worldwide, royalty free, irrevocable, transferable, perpetual license to use and otherwise incorporate any Feedback.
Company may use Customer Information and Data to: deliver the Products; manage Customer’s account; provide customer support; communicate with Customer by email, postal mail, telephone and/or mobile devices; develop and display content and advertising tailored to your interests; enforce our Terms of Service; manage our business; and perform functions otherwise described to you at the time of collection. As part of Company’s continued development and improvement of the Products, Customer authorizes Company to periodically conduct limited testing through the Products.
Data Transfer, Ownership, and Export
Customer acknowledges that Company is a participant in the EU and Swiss Privacy Shield programs administered by the U.S. Department of Commerce, and that all data processed by Company pursuant to the provision of the Products is stored on servers located in the United States. To the extent that the provision of the Products involves any transfers of data that includes personal data that is subject to data transfer restrictions or requirements under applicable laws and regulations, including but not limited to Directive 95/46/EC or any successor legislation: (a) Company shall use and disclose the information only for the purposes permitted by these Terms of Service; and (b) Company will provide at least the same level of protection for the information as is available under the EU-U.S. and Swiss-U.S. Privacy Shield frameworks. If Company determines that it can no longer provide such level of protection as necessary for Company’s provision of the Products to Customer: (x) Company will promptly notify Customer of this determination; (y) Customer shall have the right to terminate these Terms of Service without penalty upon notice to Company; and (z) Company will cease processing the information or take other reasonable and appropriate steps to remediate the situation. Customer authorizes Company to provide these Terms of Service to the Department of Commerce upon its request (as required under the Accountability for Onward Transfer Principle of the Privacy Shield).
All data and information that is submitted or uploaded by the Customer to the Company’s software (“Customer Data”) remains the sole property of the Customer. The Company shall not have any ownership rights in the Customer Data and shall only use the Customer Data in accordance with the terms and conditions of this Agreement and as permitted by the Customer. The Company shall not share, sell, or distribute the Customer Data to any third party without the express written consent of the Customer, unless required by law.
The Company shall take reasonable measures to protect the security and confidentiality of the Customer Data, including implementing appropriate technical and organizational measures to protect against unauthorized access, alteration, or destruction of the Customer Data. The Customer shall be responsible for ensuring that the Customer Data and exported data does not violate any intellectual property rights, privacy laws, or other proprietary rights of any third party.
Upon termination, the Customer shall have the right to export any data stored or processed by the Company’s software in a commonly used format, such as CSV or XML. The Company shall provide reasonable assistance and support to the Customer in exporting such data, including providing any necessary passwords or security credentials.
The Customer shall be solely responsible for the accuracy, completeness and legality of the exported data and for any third party data included in the exported data. The Customer shall also be responsible for the proper storage and handling of the exported data, including ensuring the security and confidentiality of such data. The Company shall be under no obligation to retain any data beyond the termination of this Agreement and the Company shall have the right to delete any data stored or processed by the Company’s software upon termination of service order.
To the extent Customer accesses or uses integrations with third-party services made available by Company or through the Products (e.g. services for the provision of advertising), Customer shall be responsible for its obligations to any such third parties, and Company makes no representation as to the continued access or availability of any such third-party services and shall have no liability related to or arising from such third-party services.
Fees and Payment
Fees are provided on an applicable Order Form or checkout page. Company may modify the Fees prior to the commencement of each Renewal Term, provided, Company shall provide Customers updated pricing at least forty-five (45) days prior to commencement of the applicable Renewal Term.
Customer agrees to timely pay in U.S. Dollars all Fees due during the Term. Company may invoice Customer prior to the Effective Date. Company reserves the right to withhold or suspend Customer’s access to Products if Fees are not timely paid and/or until Fees have been paid for the applicable period. Such suspension shall not affect Customer’s duty to pay all Fees due under any Order Form or Addendum or constitute termination of these Terms of Service absent Company’s notice of termination pursuant to the Termination section hereof. Past-due Fees and Overages shall incur interest at a rate of one-and-one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is lesser. Customer shall be liable to, and fully reimburse, Company for all costs (including attorney’s fees) incurred in connection with Company’s collection of past-due Fees. All Fees are non-refundable except as otherwise provided in these Terms of Service. Customer shall be responsible to pay all Taxes (except Company’s corporate taxes) and all other charges (for example, currency exchange settlements) due in connection with the Fees and Customer’s use of the Products.
Periodic (e.g., quarterly or annual) Fees are billed in advance and payment and is due upon receipt of invoice. Customers must provide a valid form of payment (e.g., credit card, debit card, PayPal account) and accurate billing information. Customer hereby authorizes Company to charge all Fees incurred to the designated payment form and acknowledges that periodic Fees and Overages may be charged automatically and without separate authorization. By choosing a recurring payment plan, Customer acknowledges that such Products have an initial and recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation. COMPANY MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY, QUARTERLY OR ANNUAL) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY COMPANY) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE CUSTOMER’S PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE COMPANY REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION, CONTACT COMPANY SUPPORT. TO CHANGE YOUR PAYMENT METHOD, CONTACT COMPANY SUPPORT.
Restrictions on Use
Customer shall not (i) interfere or attempt to interfere with the proper operation of the Products or any activities conducted through the Products or disable or bypass any measures that Company may use to prevent or restrict access to any Product, (ii) use any robot, spider or other device to retrieve, index, scrape, data mine or in any way gather information, Content or other materials from the Products, (iii) decipher, decompile, disassemble, reverse engineer, simulate, derive or attempt to discover any source code or underlying structure, ideas or algorithms from the Products, Data or Documentation or use any of the foregoing to create any software or service similar to the Products, (iv) create any derivative work or modification of the Products other than Adaptations permitted by these Terms of Service, (v) license, sublicense, copy, display, sell, pledge, encumber, assign, loan, rent, lease, Distribute, transfer or similarly exploit the Products, except as expressly set forth in these Terms of Service, (vi) remove, obscure or alter any proprietary notices on any Product (or any portion thereof), (vii) use any Product for any benchmarking purposes; or for application service provider, timesharing, service bureau or competitive purposes; or any purpose other than as contemplated by these Terms of Service or (viii) use any Product other than in accordance with these Terms of Service and all applicable laws and regulations.
Representations and Warranties
Customer represents and warrants that (i) if Customer is an individual, Customer is at least eighteen (18) years old, (ii) if Customer is an entity, its consent to these Terms of Service has been duly ratified, (iii) all information provided during the registration process is true, accurate and complete, and Customer will promptly update Customer’s registration information with any changes thereto, (iv) it is not (a) a resident of or located in (and will not Use the Products in) a country or territory that the U.S. government has embargoed for Use of the Products, including Cuba, Iran, North Korea, Syria, or the Crimea region, (b) it is not named on the U.S. Treasury Department’s list of Specially Designated Nationals Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, (c) it is not on the Department of Commerce’s Bureau of Industry and Security’s Entity List, Denied Persons List, or Unverified List, (d) it is not on or any other applicable export control or trade sanctions list of restricted parties nor is otherwise targeted by U.S. sanctions or export control restrictions, (e) it is not owned (at 50% or greater level), directly or indirectly, by, or acting on behalf of, any individual or entity that is described under (iv)(a) through (e); (v) its Content conforms to the standards set forth in the Sections of these Terms of Service titled Content and Restrictions on Use, (vi) its Adaptations shall not infringe the intellectual property rights of any third party, (vii) its Adaptations shall not violate any law or regulation in any jurisdiction where they are Used or Distributed, including privacy and data collection laws,
Limited Product Warranty
The Company warrants that it will provide the Products (except Free Editions and Developer Editions) in a manner consistent with general industry standards reasonably applicable to the provision thereof. The Company does not warrant that the Products will be error-free or that any errors in the Products will be corrected.
EXCEPT AS OTHERWISE PROVIDED AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE PRODUCTS AND RECOMMENDED CONTENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS OTHERWISE PROVIDED, USE OF THE PRODUCTS IS AT CUSTOMER’S OWN RISK AND CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF EXERCISING THE RIGHTS GRANTED UNDER THIS AGREEMENT AND ASSUMES ALL RISKS ASSOCIATED THEREWITH, INCLUDING BUT NOT LIMITED TO THE RISKS AND COSTS OF PROGRAM ERRORS, COMPLIANCE WITH APPLICABLE LAWS, DAMAGE TO OR LOSS OF DATA, PROGRAMS OR EQUIPMENT, SUITABILITY FOR HOSTING AND UNAVAILABILITY OR INTERRUPTION.
Limitation of Liability
EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE, IN NO EVENT SHALL THE COMPANY BE LIABLE UNDER ANY EQUITY, COMMON LAW, CONTRACT, ESTOPPEL, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY (REGARDLESS OF THE FORM OF ACTION) (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS, REVENUES, SAVINGS, CUSTOMERS, OPPORTUNITIES OR GOODWILL), (B) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL OR (C) FOR ANY LOSS, CORRUPTION OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY’S CUMULATIVE AGGREGATE LIABILITY ARISING OUT OF THESE TERMS OF SERVICE FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE TOTAL FEES PAID BY CUSTOMER TO THE COMPANY PURSUANT TO THESE TERMS OF SERVICE DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
EACH PARTY AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE OTHER PARTY FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OF SERVICE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE YEAR AFTER THE DATE OF RELATED SERVICES UNDER THESE TERMS OF SERVICES.
Basis of the Bargain
THE PARTIES AGREE THAT THE SECTIONS ON DISCLAIMER AND LIMITATION OF LIABILITY HEREIN FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES SUCH THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THESE TERMS OF SERVICE WITHOUT SUCH SECTIONS.
Except as otherwise set forth in these Terms of Service, Customer will indemnify, defend and hold harmless the Company and its employees, officers and agents from and against all Claims, and for all resulting Losses (including attorney’s fees) that result or arise from Claims, which in whole or in part, pertain to any Customer Adaptation or arise from Customer’s Use, reproduction, Distribution or other exploitation of the Products, any breach of Customer’s representations and warranties or violations of Customer’s obligations in these Terms of Service. Customer will pay all amounts agreed to in a monetary settlement of the Claims and all Losses that result or arise from the Claims. Notwithstanding the foregoing, Customer shall have no duty to indemnify or defend the Company from Claims which primarily allege that Products, as provided to Customer by the Company and used in accordance with the terms hereof, infringe the copyright, patent or trademark rights of a third party.
Customer acknowledges that it may have access to certain confidential information of the Company, such as information concerning its business, plans, customers, technology and products (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should reasonably be considered confidential. “Confidential Information” shall not include (a) information that becomes known to the general public without breach of the nondisclosure obligations of these Terms of Service; (b) information that is already known to Customer at the time that it is disclosed to the receiving party; (c) information that is obtained from a third party without breach of a nondisclosure obligation and without restriction on disclosure; and (d) information that has been independently developed by Customer without reference to any of the disclosing party’s Confidential Information.
Customer agrees that it will not use Confidential Information in any way for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, these Terms of Service, nor will it disclose to any third party (except as required by law or its attorneys, accountants and other advisors as reasonably necessary) any of the Confidential Information and it will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. Upon termination or expiration of these Terms of Service for any reason or at Company’s request at any time, Customer will return or destroy, at the Company’s request, all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.
Company shall be permitted to publicly identify Customer as a user of the Products, including on Company’s websites and marketing materials. Customer hereby grants Company a non-exclusive, non-transferable, non-sublicensable, royalty-free license during the Term to use Customer’s name and marks for this purpose. Company agrees to state on all materials using Customer’s marks that such marks are property of Customer and to include the trademark registration symbol if applicable. All goodwill arising out of any use of any of the Customer’s marks by Company will inure solely to the benefit of Customer.
Company may display the words “Powered by Ventus Rex” in the menu that appears on the platform. Customer is prohibited from disabling this feature unless otherwise provided on an applicable Order Form.
The parties hereto are independent contractors and nothing herein constitutes or creates an employer-employee, agency, joint venture or representative relationship between the parties.
Customer agrees and certifies that it will not export or re-export, directly or indirectly, the Products contrary to the laws of the United States or any other country from or to which such export or re-export may occur.
If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or portion thereof, to be unenforceable, that provision of the Terms of Service shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of these Terms of Service shall continue in full force and effect.
Choice of Law and Jurisdiction
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Wisconsin (except that body of law controlling conflict of laws) and specifically excluding from application to this Agreement that law known as the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably consents to the exclusive jurisdiction, forum and venue of the Commercial Division of the Supreme Court of the State of Wisconsin over any and all claims, disputes, controversies or disagreements between the parties or any of their respective subsidiaries, affiliates, successors and assigns under or related to these Terms of Service or the subject matter thereof.
Customer acknowledges and agrees that unauthorized Use of the Products or disclosure of Confidential Information may cause the Company irreparable harm for which its remedies at law may be inadequate. Customer hereby agrees that the Company will be entitled, in addition to any other remedies available to it at law or in equity, to obtain immediate injunctive relief to prevent such unauthorized actions.
These Terms of Service constitute the entire agreement between the Company and Customer with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. ANY PURCHASE ORDER OR OTHER SIMILAR DOCUMENT PROVIDED BY OR RECEIVED FROM A PARTY SHALL NOT MODIFY THESE TERMS OF SERVICE OR GOVERN CUSTOMER’S USE OF THE PRODUCTS UNLESS EXECUTED BY BOTH PARTIES’ DULY AUTHORIZED REPRESENTATIVES. EACH PARTY REJECTS ANY TERMS CONTAINED IN PURCHASE ORDERS OR SIMILAR DOCUMENTS PROVIDED BY THE OTHER PARTY, AND ANY SUCH TERMS SHALL BE VOID AND HAVE NO LEGAL EFFECT. RESTRICTIVE ENDORSEMENTS OR OTHER STATEMENTS ON CHECKS ACCEPTED BY COMPANY SHALL NOT BE ENFORCEABLE.
The Company may modify the terms of these Terms of Service in its sole discretion and such modifications shall take effect and be binding on Customer on the earliest date on which they are posted to the Company’s publicly available website or delivered to Customer via electronic or physical delivery to the last known physical or email address provided to the Company. No one other than the Company has the right to modify these Terms of Service. Notwithstanding the foregoing, no modification or amendment to a mutually ratified Addendum or Order Form shall be effective unless in writing and executed by a duly authorized representative of each party.
Customer may not assign or transfer this agreement to any third party without the Company’s express written consent. Any other assignment or transfer shall be void and in the event of such unauthorized assignment or transfer the Company may immediately terminate these Terms of Service.
Waiver of Breach
No term or provision of these Terms of Service shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Company. Any consent by the Company to, or waiver of, a breach by Customer whether expressed or implied, shall not constitute consent to, waiver of, or excuse for, any other breach or any subsequent breach, except as may be expressly provided by the Company.
Last Revised: December 14, 2022