1.1 This End User License Agreement (“EULA”) is a legally binding agreement between you, the end-user (either an individual or a single entity) (“You” or “Your”) and Venn US Inc., formerly known as OS33 Services Corp. (hereinafter “Venn”). This EULA applies solely to Your use of the software products with which the EULA is provided, together with any text and/or graphical documentation, whether in electronic or printed format, provided by Venn to You (“Documentation”) (collectively, the “Products”), including all enhancements, versions, and modifications to the Products provided by Venn. By clicking “I Accept” (or a similar indicia of acceptance) or by installing or otherwise using the Products, You agree that (a) You have read and understood and agree to be bound by the terms and conditions of this EULA, (b) You are of legal age to form a binding contract with Venn, and (c) You have the authority to enter into the EULA personally or on behalf of Company (defined below).
1.2 You may only use the Products if the entity on whose behalf You are accessing the Products (“Company”) has a Master Services Agreement with Venn (the “MSA”). Venn reserves the right to change the terms of this EULA at any time by providing You with a revised version of the EULA; provided, that Venn will endeavor to provide You with prior notice of any material changes. This EULA is in effect for so long as an MSA is in effect. You acknowledge and agree that if the MSA expires or is terminated, You will be unable to access or use the Products.
2 Grant of License.
2.1 Subject to the terms and conditions in this EULA and Your acceptance thereof, Venn hereby grants You a non-exclusive, non-sublicensable, revocable, and non-transferable license (i) in the case of Workplace Stronghold (“Stronghold”), to access and use Stronghold and (ii) in the case of Workplace Frontline (“Frontline”), to install and use Frontline, in each case of (i) and (ii), in accordance with the Documentation. The Products may only be used for Your internal business purposes. No license, right, or interest in any trademark, trade name, or service mark of Venn or any third party is granted to You under this EULA.
2.2 The Products are the property of Venn, and Venn retains all right, title, and interest to the Products, including any intellectual property rights regarding trademarks, service marks, and trade secrets, as well as any rights in copyrighted and/or patented materials provided to You as part of the Products. Except for the limited license granted to You in this EULA, nothing contained in this EULA may be construed as an assignment or transfer of any copyright, design right, or other intellectual property rights in the Products, and all rights not expressly granted to You under this EULA are expressly reserved and owned by Venn.
2.3 The EULA will be in effect as of the date You accept this EULA, or as of the date You first install or use the Products, whichever first occurs, and remains in effect unless and until this EULA is terminated (the “Term”). This EULA terminates immediately and automatically without notice to You if You breach any term or condition herein or if the MSA terminates or expires. Upon termination of this EULA, all rights granted to You under the EULA will immediately cease. You may not thereafter install or use the Products, and You must erase or, at Venn’s option, otherwise destroy the Products (and all copies thereof (if any) in Your possession), deliver to Venn all media on which such Products are recorded or embedded (and all copies thereof (if any) in Your possession), and certify to Venn that the same has been done.
3.1 You may not use, copy, modify, download, or transfer the Products or any component of the Products, in whole or in part, except as expressly provided in this EULA. You may not reverse engineer, disassemble, decompile, or translate the Products; attempt to derive the source code of the Products; create any derivative work from the Products; or authorize or assist any third party to do any of the foregoing. You may not remove or alter any proprietary notice or legend regarding Venn’s proprietary rights in the Products. You may not use the Products except in accordance with applicable laws and regulations. You may not use the Products to defraud any third party or to distribute obscene or other unlawful materials or information. Each of the components that constitute the Products is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer Products” and “commercial computer Products documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Products with only those rights set forth in this EULA. Any use of the Products by You not in accordance with this EULA will be deemed to be a breach of this EULA and Venn will be entitled to terminate the EULA.
3.2 You may not rent, lease, sub-license, lend, resell for profit, or distribute the Products or any part of the Products. You may not assign, novate, or subcontract any rights or obligations of this EULA to any third party without the express written consent of Venn.
4 Registration and Protection of Credentials.
In order to access and use most of the features of the Products, You (or the Company that provides Your access to the Products) must have a valid account for the Products (“Your Account”). In connection with creating Your Account, You may be required to provide a valid email address and create a password (“Credentials”). You must keep Your Credentials accurate and up to date at all times. You may not share Your Credentials with anyone. You are responsible for maintaining the confidentiality of Your Credentials, and You will be responsible for any access to or use of the Products from Your Account, regardless of whether such access was authorized by You. You must promptly notify Venn at [email protected] of any unauthorized use of Your Account or if Your email or password has been compromised, used without Your consent, or stolen, or if You discover any other breach of security with respect to Your Account. Venn may suspend or discontinue all or part of Your access to the Products at any time without prior notice if Venn finds or suspects that there has been any unauthorized use of Your Account or for any breach of this EULA by You or someone using Your Account.
6 Warranty, Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS EULA, AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE PRODUCTS ARE PROVIDED “AS IS” AND VENN MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE. VENN DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE PRODUCTS WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE. VENN WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO THIRD-PARTY HOSTING PROVIDERS WITH WHOM YOU SEPARATELY CONTRACT. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL VENN BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT EITHER PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL VENN BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
8 Limitation of Liability.
THE AGGREGATE LIABILITY OF VENN OR ANY OF ITS LICENSORS, AGENTS, SUPPLIERS, RESELLERS, OR REPRESENTATIVES UNDER THIS EULA WILL NOT EXCEED $250. BOTH VENN AND YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH IN CLAUSES 7 AND 8 FORM AN ESSENTIAL BASIS OF THIS EULA, AND THAT, ABSENT ANY OF SUCH DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS OF LIABILITY, THE TERMS OF THIS EULA WOULD BE SUBSTANTIALLY DIFFERENT.
You must safeguard, protect, respect, and maintain as confidential the Products; the underlying computer code to which You may obtain or receive access; and the functional or technical design, logic, or other internal routines or workings of the Products, which are considered confidential and proprietary to Venn.
10 Dispute Resolution.
10.1 You agree that any dispute or claim relating in any way to Your installation, access, or use of the Products, or any aspect of Your relationship with Venn, will be resolved by binding arbitration, rather than in court, except that (a) You may assert claims in small claims court if Your claims qualify, and (b) You or Venn may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Section 10 will apply, without limitation, to all claims that arose or were asserted before the effective date of this EULA or any prior version of this EULA.
10.2 The Federal Arbitration Act governs the interpretation and enforcement of this Section 10. To begin an arbitration proceeding,You must send a letter requesting arbitration and describing Your claim to our registered agent Venn, 10 Woodbridge Center Drive, Suite 210, Woodbridge NJ 07095. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that You cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Venn will pay them for You. In addition, Venn will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where You live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
10.3 The arbitrator will have exclusive authority to (a) determine the scope and enforceability of this Section 10 and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Section 10 including, but not limited to, any claim that all or any part of this Section 10 is void or voidable. The arbitration will decide the rights and liabilities, if any, of You and Venn. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this EULA (including this Section 10). The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and Venn.
10.4 YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Venn are instead electing that all claims and disputes will be resolved by arbitration under this Section 10, except as specified in Section 10.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this EULA as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
10.5 ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS SECTION 10 MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims will be arbitrated.
10.6 You have the right to opt out of the provisions of this Section 10 by sending written notice of Your decision to opt out to: [email protected], within 30 days after first becoming subject to this Section 10. Your notice must include Your name and address, the name of the Company that has provided you access to the Products (if applicable), Your username, the email address You used to set up Your Account, and an unequivocal statement that You want to opt out of this Section 10. If You opt out of this Section 10, all other parts of this EULA will continue to apply to You. Opting out of this Section 10 has no effect on any other arbitration agreements that You may currently have, or may enter in the future, with Venn.
10.7 Except as provided in subsection 10.5, if any part or parts of this Section 10 are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of this Section 10 will continue in full force and effect.
10.8 This Section 10 will survive the termination of Your relationship with Venn.
10.9 Notwithstanding any provision in this EULA to the contrary, we agree that if Venn makes any future material change to this Section 10, You may reject that change within 30 days of such change becoming effective by writing Company at the following address: Venn, PO Box 4668, New York, NY 10163.
11 General Provisions.
This EULA is governed by New York law. If any provision of this EULA is held to be unenforceable, that provision will be disregarded for purposes of the dispute or other circumstance giving rise to such finding, and the remaining provisions will remain in full force. The failure of Venn to require Your performance of any provision in this EULA does not affect Venn’s full right to require such performance at any time thereafter, nor will the waiver by Venn of any breach of any provision of this EULA be taken or held to be a waiver of the provision itself. You may not assign any of Your rights and obligations under this EULA. Venn may freely assign this EULA. Any attempted or purported assignment by You of Your rights and obligations under this EULA will be null and void. This EULA is the complete and exclusive statement of the agreement between Venn and You, which supersedes any proposal or prior EULA, oral or written, and any other communications between the parties in relation to the subject matter of this EULA. Sections 2.2, 2.3, 2.5, 3, 5, 6 through 11, and any other rights and obligations, which by their nature, are intended to survive beyond termination of this EULA, will survive.