THESE TERMS AND CONDITIONS (THE “TERMS” OR
THIS “AGREEMENT”) ARE A LEGAL CONTRACT BETWEEN
YOU (“YOU”) AND VIGOR SYSTEMS, INC. (
“VIGOR” OR “US” OR “OUR” OR “WE”).
THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE AND ACCESS THE WEBSITE LOCATED
AT THE URL: onevigor.tv AS WELL AS ALL ASSOCIATED SITES LINKED TO vigorsystemsinc.com
BY VIGOR, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE
“SITE”) AND ALL SERVICES (AS DEFINED BELOW)
AND ANY SOFTWARE THAT WE PROVIDE TO YOU THAT ALLOWS YOU TO ACCESS THE SITE
OR SERVICES FROM A DEVICE (AN “APPLICATION”).
BY USING THIS SITE OR THE SERVICES, YOU ARE AGREEING TO ALL THE TERMS; IF
YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE
THIS SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE OR ANY INFORMATION CONTAINED
ON THIS SITE. BY ACCEPTING THESE TERMS, OR BY ACCESSING OR USING THE SITE
OR SERVICES, OR AUTHORIZING AN END USER TO ACCESS OR USE THE SERVICES, YOU
AGREE TO BE BOUND BY THESE TERMS. IF YOU ACCEPT OR AGREE TO THESE TERMS ON
BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT
YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THESE
TERMS, AND IN SUCH EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO SUCH COMPANY
OR OTHER LEGAL ENTITY.
1. Key Terms.
“Account” means any Vigor accounts
or instances created by You or on Your behalf within the Site for use of
“Authorized End User” means, collectively
You and any of Your individual employees, agents, or contractors accessing
or using the Services, under the rights granted to You pursuant to these
“Confidential Information” means all
written or oral information, disclosed by Vigor to You or by You to Vigor
related to the operations of either party or a third party that has been
identified as confidential or that by the nature of the circumstances surrounding
disclosure ought reasonably to be treated as confidential. Without limiting
the foregoing, for purposes of these Terms, the Documentation will be deemed
Confidential Information of Vigor.
“Documentation” means text and/or graphical
documentation, whether in electronic or printed format, that describe the
features, functions and operation of the Services, which materials are designed
to facilitate use of the Services and which are provided by Vigor to You
in accordance with these Terms.
“Materials” mean collectively all the
text, data, information, software, graphics, photographs and more, including
the Documentation, and the proprietary software platform through which Vigor
offers the Services to you in a ‘as-a-service’ form. Materials include any
and all intellectual property embodied in or in connection with the Materials.
“Public Software” means any software,
documentation or other material that contains, or is derived (in whole or
in part) from any software, documentation or other material that is distributed
as free software, open source software (e.g., Linux) or similar licensing
or distribution models, including, but not limited to software, documentation
or other material licensed or distributed under any of the following licenses
or distribution models, or licenses or distribution models similar to any
of the following: (a) the GNU General Public License (GPL); Lesser/Library
GPL (LGPL), or Free Documentation License; (b) the Artistic License (e.g.,
PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e)
the Sun Community Source License (SCSL);(f) the Sun Industry Standards License
(SISL); (g) the BSD license; and (h) the Apache License. “Services” means any and all services, tools, software, content, applications and functionalities
as may be provided by Vigor from time to time through the Site, including
access to and use of our proprietary platform, which is offered in a ‘as-a-service’
form on a subscription basis. Certain Services may be subject to additional
terms and conditions.
“Subscription Term” means the period
during which You have agreed to subscribe to the Services as set forth in
an order form mutually agreed by You and Us. An order form will be issued
with all orders. If the order form is silent, such Subscription Term shall
be deemed to extend for one (1) year from acceptance of Your applicable order
form for the Services by Vigor.
“Your Content” means the data, information,
media and content provided by You and/or any Authorized End Users for use
in connection with the Services.
2. Changes to Terms.
We may alter the Materials and Services We offer You and/or choose to
modify, suspend or discontinue this Site at any time and without notifying
You. We may also change, update, add or remove provisions (collectively,
“modifications”) of these Terms from time
to time. Because everyone benefits from clarity, We promise to inform You
of any modifications to these Terms by posting them on this Site and, if
You have registered with Us, by describing the modifications to these Terms
in an email that We will send to the address that You provided when registering
on this Site. To be sure We properly reach Your email inbox, We just ask
that You let Us know if Your preferred email address changes at any time
after Your registration.
If You object to any such modifications, Your sole recourse shall be
to cease using this Site. Continued use of this Site following notice of
any such modifications indicates You acknowledge and agree to be bound by
the modifications. Also, please know that these Terms may be superseded by
expressly-designated legal notices or terms located on particular pages of
this Site. These expressly-designated legal notices or terms are incorporated
into these Terms and supersede the provision(s) of these Terms that are designated
as being superseded.
3. General Use of the Site.
We invite You to use this Site for purposes of storing, processing and
managing Your Content and associated metadata (“Permitted Purposes”).
In these Terms we are granting You a limited, personal, non-exclusive
and non-transferable license to use and to display the Materials; Your right
to use the Materials is conditioned on Your compliance with these Terms.
You have no other rights in this Site or any Materials and You may not modify,
edit, copy, reproduce, create derivative works of, reverse engineer, alter,
enhance or in any way exploit any of this Site or Materials in any manner.
If You make copies of any of this Site while engaging in Permitted Purposes
then We ask that You be sure to keep on the copies all of Our copyright and
other proprietary notices as they appear on this Site. You acknowledge that
certain Services may be subject to additional terms and conditions (
“Additional Terms”) which Additional Terms
shall be made available to You prior to registration for such Services.
Unfortunately, if You breach any of these Terms, the above license will
terminate automatically and You must immediately destroy any downloaded or
printed materials (and any copies thereof).
4. Use of the Site and the Services by You and Authorized End Users.
4.1 We appreciate You visiting this Site and
allow You to do just that – stop by and leisurely check it out without even
registering with Us! However, in order to access certain password-restricted
areas of this Site and to use certain Services and Materials offered on and
through this Site, You must successfully register an account with Us. You
may be permitted to invite other persons to register an account with Us,
in which case any such additional persons may register and access the Site
and Materials in accordance with these Terms.
4.2 If You desire to register for an Account
with Vigor, You must submit the following information through the Account
registration page on the Site: Name, email, mailing address, billing address,
and payment information. Once You have submitted Your Account registration
information, Vigor shall have the right to approve or reject the requested
registration, in Vigor’s sole discretion. If Your Account is approved by
Vigor, You will be sent an e-mail that contains the necessary password creation
instructions (“Account Password”) and network
links or connections (“Access Protocols”)
that will allow You to log-on and access the Services using that password
for the first time though the Site. You will have the ability to revise Your
Account Password through the settings within the Services. All the information
that You provide when registering for an Account through the Site must be
accurate, complete and up to date. You may change, correct or remove any
information from Your Account by either logging into Your account directly
and making the desired changes or contacting Vigor using the contact information
at the end of these Terms requesting that we make the change.
4.3 Subject to the terms and conditions contained
in these Terms, and any Additional Terms that apply to particular Services
for which You have registered, Vigor hereby grants to You a non-exclusive,
non-transferable right to access the features and functions of the Services
during the Subscription Term solely for use by Authorized End Users in accordance
with the terms and conditions in these Terms and such Additional Terms. Such
use shall be limited to use of the Services for the benefit of, or in relation
to, the operation of Your business. We shall also provide You the Documentation
to be used by You in accessing and using the Services. You acknowledge and
agree that, as between You and Us, You shall be responsible for all acts
and omissions of Authorized End Users, and any act or omission by an Authorized
End User which, if undertaken by You, would constitute a breach of this Agreement,
shall be deemed a breach of this Agreement by You. You shall undertake reasonable
efforts to make all Authorized End Users aware of the provisions of these
Terms as applicable to such Authorized End User’s use of the Services, and
shall cause Authorized End Users to comply with such provisions.
4.4 Applications shall be deemed part of the
Services for purposes of these Terms, subject to the disclaimers set forth
herein. Subject to these Terms, Vigor grants to You a non-exclusive, non-transferable,
right and license, during the Subscription Term, to install the Applications,
solely on devices owned or controlled by You, solely for purposes of accessing
and utilizing the features and functions of the Services.
4.5 Subject to these Terms, Vigor hereby grants
to You a non-exclusive, non-transferable right and license to use the Documentation
during the Subscription Term for Your internal purposes in connection with
Your use of the Services as contemplated herein.
4.6 You agree that You will not, and will
not permit any Authorized End Users to, (i) copy or duplicate any of the
Materials; (ii) decompile, disassemble, reverse engineer or otherwise attempt
to obtain or perceive the source code from which any software component of
any of the Materials is compiled or interpreted, or apply any other process
or procedure to derive the source code of any software included in the Materials,
or attempt to do any of the foregoing, and You acknowledge that nothing in
these Terms will be construed to grant You any right to obtain or use such
source code; (iii) modify, alter, tamper with or repair any of the Materials,
or create any derivative product from any of the foregoing, or attempt to
do any of the foregoing, except with Our prior written consent; (vi) interfere
or attempt to interfere in any manner with the functionality or proper working
of any of the Materials; (v) remove, obscure, or alter any notice of any
intellectual property or proprietary right appearing on or contained within
any of the Materials; (vi) use any Public Software in connection with any
of the Materials in any manner that requires, pursuant to the license applicable
to such Public Software, that any of the Materials be (a) disclosed or distributed
in source code form, (b) made available free of charge to recipients, or
(c) modifiable without restriction by recipients; or (iv) assign, sublicense,
sell, resell, lease, rent or otherwise transfer or convey, or pledge as security
or otherwise encumber, Your rights granted hereunder. You will ensure that
Your use of any of the Materials complies with all applicable laws, statutes,
regulations or rules and will not use any of the Materials for the purpose
of any illegal activities.
4.7 In addition to our cancellation rights
as set forth in Section 9.4, Vigor reserves the right, in Our reasonable
discretion, to temporarily suspend Your access to and use of the Services:
(i) during planned downtime for upgrades and maintenance to the Services
(of which We will use commercially reasonable efforts to notify You in advance);
(ii) during any unavailability caused by circumstances beyond Our reasonable
control, such as, but not limited to, acts of God, acts of government, acts
of terror or civil unrest, technical failures beyond our reasonable control
(including, without limitation, inability to access the Internet), or acts
undertaken by third parties; or (iii) if We suspect or detect any malicious
software connected to Your Account or use of the Services by You or Your
Authorized End Users.
4.8 We acknowledge that You retain all right,
title and interest in and to Your Content. You grant to Us the right to use
Your Content during the Subscription Term for purposes of making available
the Services to You. Notwithstanding anything else in this Agreement or otherwise,
Vigor may monitor Your use of the Services and use data and information related
to such use, and Your Content in an aggregate and anonymous manner, including
to compile statistical and performance information related to the provision
and operation of the Site and Services (“Aggregated Statistics”).
As between Vigor and You, all right, title and interest in the Aggregated
Statistics and all intellectual property rights therein, belong to and are
retained solely by Vigor. You acknowledge that Vigor will be compiling Aggregated
Statistics based on Your Content input into the Services and You agree that
Vigor may (a) make such Aggregated Statistics publicly available, and (b)
use such information to the extent and in the manner required by applicable
law or regulation and for purposes of data gathering, analysis, service enhancement
and marketing, provided that such data and information does not identify
You or Your Confidential Information.
We make available Applications to You in order to access Services from
Us. To use the Application You must have a device that is compatible with
such Application. We do not warrant that the Application will be compatible
with Your device. We hereby grant to You a non-exclusive, non-transferable,
revocable license to permit the number of Authorized End Users for which
You have ordered and paid applicable fees to use object code copies of the
Applications on the number and type of devices set forth in an order form
accepted by Vigor. You may not: (i) modify, disassemble, decompile or reverse
engineer the Application, except to the extent that such restriction is expressly
prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute
or otherwise transfer the Application to any third-party or use the Application
to provide time sharing or similar services for any third-party; (iii) make
any copies of the Application; (iv) remove, circumvent, disable, damage or
otherwise interfere with security-related features of the Application, features
that prevent or restrict use or copying of any content accessible through
the Application, or features that enforce limitations on use of the Application;
or (v) delete the copyright and other proprietary rights notices on the Application.
You acknowledge that We may from time to time issue upgraded versions of
the Application, and may automatically electronically upgrade the version
of the Application that You are using on Your mobile device. You consent
to such automatic upgrading on Your mobile device, and agree that these Terms
will apply to all such upgrades. The foregoing license grant is not a sale
of the Application or any copy thereof, and We and Our third-party licensors
or suppliers retain all right, title, and interest in and to the Application
(and any copy of the Application). Standard carrier data charges may apply
to Your use of the Application.
The following additional terms and conditions apply with respect to
any Application that We provide to You designed for use on an Apple iOS-powered
mobile device (an “iOS App”):
- You acknowledge that these Terms are between You and Us only, and not
with Apple, Inc. (“Apple”).
- Your use of Our iOS App must comply with Apple’s then-current App Store
Terms of Service.
- We, and not Apple, are solely responsible for Our iOS App and the Services
and Content available thereon. You acknowledge that Apple has no
obligation to provide maintenance and support services with respect
to Our iOS App. To the maximum extent permitted by applicable law,
Apple will have no warranty obligation whatsoever with respect to
Our iOS App.
- You agree that We, and not Apple, are responsible for addressing any
claims by You or any third-party relating to Our iOS App or Your
possession and/or use of Our iOS App, including, but not limited
to: (i) product liability claims; (ii) any claim that the iOS App
fails to conform to any applicable legal or regulatory requirement;
and (iii) claims arising under consumer protection or similar legislation,
and all such claims are governed solely by these Terms and any law
applicable to Us as provider of the iOS App.
- You agree that We, and not Apple, shall be responsible, to the extent
required by these Terms, for the investigation, defense, settlement
and discharge of any third-party intellectual property infringement
claim related to Our iOS App or Your possession and use of Our iOS
- 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
- You agree to comply with all applicable third-party terms of agreement
when using Our iOS App (e.g., You must not be in violation of Your
wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party
beneficiaries to these Terms as they relate to Your license of Our
iOS App. Upon Your acceptance of these Terms, Apple will have the
right (and will be deemed to have accepted the right) to enforce
these Terms against You as they relate to Your license of the iOS
App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any
Application that We provide to You designed for use on an Android-powered
mobile device (an “Android App”
6. Privacy; Security; Confidentiality.
- You acknowledge that these Terms are between You and Us only, and not
with Google, Inc. (“Google”).
- Google is only a provider of the Android Market where You obtained the
Android App. We, and not Google, are solely responsible for Our Android
App and the Services and Content available thereon. Google has no
obligation or liability to You with respect to Our Android App or
- You acknowledge and agree that Google is a third-party beneficiary to
the Terms as they relate to Our Android App.
We respect the information that You provide
to Us, and want to be sure You fully understand exactly how We use that information.
onevigor.tv/legal.html which explains everything.
You are responsible for maintaining the
confidentiality of Your Account Passwords, and You are responsible for all
activities that occur using your Account Passwords. You agree not to share
Your Account Passwords, let others access or use Your Account Passwords or
do anything else that might jeopardize the security of Your Account Passwords.
You agree to notify Vigor if Your Account Passwords are lost, stolen, if
You are aware of any unauthorized use of Your Account Passwords on this Site
or if You know of any other breach of security in relation to this Site.
You acknowledge and agree that Account Passwords assigned to individual Authorized
End Users shall not be shared with anyone other than the original assignee
of such Account Password.
You and Vigor agree as follows with respect
to Confidential Information: (i) to use Confidential Information disclosed
by the other party only for the purposes described herein; (ii) to not reproduce
Confidential Information of the other party, and to hold in confidence and
protect such Confidential Information from dissemination to, and use by,
any third party; (iii) to not create any derivative work from the Confidential
Information of the other party; (iv) to restrict access to the Confidential
Information of the other party to its personnel, agents, and/or consultants,
who have a need to have access and who have been advised of and have agreed
in writing to treat such Confidential Information in accordance with these
Terms; and (v) to return or destroy all Confidential Information disclosed
by the other party that is in its possession upon termination or expiration
of the Subscription Term.
Notwithstanding the foregoing, the provisions
of Section 6.3 will not apply to Confidential Information that (i) is publicly
available or in the public domain at the time disclosed; (ii) is or becomes
publicly available or enters the public domain through no fault of the recipient;
(iii) is rightfully communicated to the recipient by persons not bound by
confidentiality obligations with respect thereto; (iv) is already in the
recipient’s possession free of any confidentiality obligations with respect
thereto at the time of disclosure; (v) is independently developed by the
recipient; or (vi) is approved for release or disclosure by the disclosing
party without restriction. Notwithstanding the foregoing, each party may
disclose Confidential Information to the limited extent required (x) in order
to comply with the order of a court or other governmental body, or as otherwise
necessary to comply with applicable law, provided that the party making the
disclosure pursuant to the order shall first have given written notice to
the other party and made a reasonable effort to obtain a protective order;
or (y) to establish a party’s rights under these Terms, including to make
such court filings as it may be required to do.
7. Your Data Collection.
To the extent that You and/or any Authorized End User, through or in
connection with use of the Services, collects, uses, stores or discloses
data from any other party, You and/or each Authorized End User shall accurately
You and/or each such Authorized End User collects, uses, stores or discloses
such data, and where necessary You shall obtain consent to such data. You
acknowledge that You are responsible for Your own data and data collection
practices. You may not use the Services to process sensitive information,
such as health information, Social Security numbers, financial account information,
credit or debit card numbers or driver’s license information, unless You
notify us of, and obtain our consent for, such processing. You shall comply
with all applicable laws, rules and regulations regarding Your use of the
Services, including all applicable laws, rules and regulations related to
the collection, use, disclosure, storage and security of the information
that You collect. You shall adopt and make Your customers aware of Your
own Site and online offerings.
8. Fees and Payment Terms.
If applicable, You agree to pay all fees
or charges to your Account (collectively, “Fees”
based on Vigor’s fees, charges, and billing terms set forth in the order
form executed by You with respect to the Services. Unless otherwise provided
in an order form agreed by You and Us, all such Fees shall be due and payable
within thirty (30) calendar days after an invoice is issued by Vigor with
respect to such Fees. If You cancel Your account at any time for any reason,
You will not receive any refund. If You have a balance due on any account,
You agree that Vigor may charge such unpaid fees to your credit card or otherwise
bill You for such unpaid fees.
Any portion of any amount payable to Vigor
hereunder that is not paid when due will accrue interest at one and one-half
percent (1.5%) per month or the maximum rate permitted by applicable law,
whichever is less; from the due date until paid.
Unless otherwise expressly stated, the
Fees do not include any taxes, levies, duties or similar governmental assessments,
including value-added, sales, use or withholding taxes assessable by any
local, state, provincial or foreign jurisdiction (collectively, “Taxes”
You are responsible for paying Taxes free and clear of, and without reduction
in, Fees owed to Us, except those assessable against Vigor base on its income.
You will maintain complete and accurate
financial records in accordance with generally accepted accounting principles
during the Subscription Term, and for a period of two (2) years after the
termination or expiration of the Subscription Term with respect to matters
covered by these Terms. Vigor will have the right, at its own expense, upon
reasonable prior notice, periodically no more than once per calendar year,
to inspect and audit Your records with respect to matters covered by these
Terms at a reasonably specified time to minimize, to the extent practical,
disruption to Your operations, provided that if such inspection and audit
reveals that You have underpaid Vigor with respect to any amounts due and
payable hereunder, You shall promptly pay such amounts as are necessary to
rectify such underpayment, together with interest in accordance with Section
8.2, and further provided that if the amount of such underpayment equals
or exceeds five percent (5%) of the total amounts due and payable by You
during the period to which such inspection and audit relates, You shall reimburse
Vigor for the cost of such inspection and audit. If such inspection and audit
reveals that You have overpaid Vigor with respect to any amounts due and
payable hereunder, Vigor shall promptly pay such amounts as are necessary
to rectify such overpayment.
9. Cancellation or Termination of Subscription.
Either You or We may elect to terminate
Your Account and subscription to the Services as of the end of Your then
current Subscription Term by providing notice, in accordance with these Terms,
on or prior to the date sixty (60) days preceding the end of such Subscription
Term. Unless Your Account and subscription to the Services is so terminated,
Your subscription to the Services will automatically renew for a Subscription
Term equivalent in length to the then expiring Subscription Term. Unless
otherwise provided for, the Fees applicable to Your subscription to the Services
for any such subsequent Subscription Term shall be Vigor’s standard Fees
for the service plan to which You have subscribed as of the time such Subscription
No refunds of credits for Fees or other
payments will be provided if You elect to terminate Your subscription to
the Services or cancel Your Account prior to the end of Your then effective
Subscription Term. Following the termination or cancellation of Your subscription
to the Services and/or Account, Vigor shall provide You thirty (30) days
to download or otherwise remove Your Content. Thereafter, Vigor reserves
the right to delete all Your Content and any other data in the normal course
If You terminate Your subscription to the
Services or cancel Your Account prior to the end of Your then effective Subscription
Term or if We effect such termination or cancellation pursuant to Section
9.4, in addition to other amounts You may owe Us, You must immediately pay
any then unpaid Fees associated with the remainder of such Subscription Term.
This amount will not be payable by You in the event You terminate Your subscription
to the Services or cancel Your Account as a result of a material breach of
these Terms by Vigor, provided that You provide advance written notice of
such breach to Us and afford Vigor not less than thirty (30) days to reasonably
cure such breach.
Vigor reserves the right to modify, suspend
or terminate the Services (or any part thereof), Your Account and/or Your
Authorized End User’s rights to access and use the Services, and remove,
disable and discard any of Your data if we believe that You or Your Authorized
End Users have violated these Terms. Unless legally prohibited from doing
so, We will use commercially reasonable efforts to contact You directly via
email to notify You when taking any of the foregoing actions. Vigor shall
not be liable to You, Your Authorized End Users or any other third party
for any such modification, suspension or discontinuation of Your rights to
access and use the Services.
10. Electronic Communications.
By using the Site and/or the Services provided on or through the Site,
You consent to receiving electronic communications from Vigor. These electronic
communications may include notices about applicable fees and charges, transactional
information and other information concerning or related to the Site and/or
Services provided on or through the Site. These electronic communications
are part of Your relationship with Vigor. You agree that any notices, agreements,
disclosures or other communications that we send You electronically will
satisfy any legal communication requirements, including that such communications
be in writing.
11. Links to Third Party Sites.
We think links are convenient, and We sometimes provide links on this
Site to third-party sites. If You use these links, You will leave this Site.
We are not obligated to review any third-party sites that You link to from
this Site, We do not control any of the third-party sites, and We are not
responsible for any of the third-party sites (or the products, services,
or content available through any of them). Thus, We do not endorse or make
any representations about such third-party sites, any information, software,
products, services, or materials found there or any results that may be obtained
from using them. If You decide to access any of the third-party sites linked
to from this Site, You do this entirely at Your own risk and You must follow
the privacy policies and terms and conditions for those third-party sites.
12. Unauthorized Activities.
To be clear, We authorize Your use of this Site only for Permitted Purposes.
Any other use of this Site beyond the Permitted Purposes is prohibited and,
therefore, constitutes unauthorized use of this Site. This is because as
between You and Us, all rights in this Site remain Our property.
Unauthorized use of this Site may result in violation of various United
States of America and international copyright laws. Because We prefer keeping
this relationship drama-free, We want to give You examples of things to avoid.
So, unless You have written permission from Us stating otherwise, You are
not authorized to use this Site in any of the following ways (these are examples
only and the list below is not a complete list of everything that You are
not permitted to do):
- For any public or commercial purpose which includes use of this Site
on another site or through a networked computer environment;
- In a manner that modifies, publicly displays, publicly performs, reproduces
or distributes any of this Site;
- In a manner that violates any local, state, national, foreign, or international
statute, regulation, rule, order, treaty, or other law;
- To stalk, harass, or harm another individual;
- To impersonate any person or entity or otherwise misrepresent Your affiliation
with a person or entity;
- To interfere with or disrupt this Site or servers or networks connected
to this Site;
- To use any data mining, robots, or similar data gathering or extraction
methods in connection with this Site; or
- Attempt to gain unauthorized access to any portion of this Site or any
other accounts, computer systems, or networks connected to this Site,
whether through hacking, password mining, or any other means.
You also agree and understand that as pertaining to those sections of
the Site that may allow you to publicly post comments or content, You as
the author are entirely responsible for the content of, and any harm resulting
from, any public content posted or uploaded by you. That is the case regardless
of whether Your Content in question constitutes text, graphics, audio files,
information, or computer software. By making Your Content publicly available,
you represent and warrant that:
The posting, downloading, copying and use
of Your Content will not infringe the proprietary rights, including but not
limited to the copyright, patent, trademark or trade secret rights, of any
Your Content does not contain or install
any viruses, worms, malware, Trojan horses or other harmful or destructive
Your Content is not spam, is not machine-
or randomly-generated, and does not contain unethical or unwanted commercial
content designed to drive traffic to third party sites or boost the search
engine rankings of third party sites, or to further unlawful acts (such as
phishing) or mislead recipients as to the source of the material (such as
Your Content does not contain threats
or incite violence towards individuals or entities, and does not violate
the privacy or publicity rights of any third party;
Your Content is not getting advertised
via unwanted electronic messages such as spam links on newsgroups, email
lists, other blogs and web sites, and similar unsolicited promotional methods;
Your Content is not named in a manner
that misleads your readers into thinking that you are another person or company.
For example, your URL or name is not the name of a person other than yourself
or company other than your own;
Your Content does not include racially,
ethnically, obscene, sexually explicit or otherwise offensive language or
use the Website to discuss, incite illegal activity or promote hatred against
individuals or groups based on race, ethnic origin, religion, disability,
gender, age, veteran status, sexual orientation, or gender identity.
You agree to hire attorneys to defend Us if You violate these Terms and
that violation results in a problem for Us. You also agree to pay any damages
that We may end up having to pay as a result of Your violation. You alone
are responsible for any violation of these Terms by You. We reserve the right
to assume the exclusive defense and control of any matter otherwise subject
to indemnification by You and, in such case, You agree to cooperate with
Our defense of such claim.
13. Proprietary Rights.
“Vigor” and “OneVigor” are trademarks that belong to Us and the Vigor
and OneVigor logo are logos that belong to Us. Other trademarks, names and
logos on this Site are the property of their respective owners
Unless otherwise specified in these Terms, all Materials, including the
arrangement of them on this Site are Our sole property, Copyright © 2015.
All rights not expressly granted herein are reserved. Except as otherwise
required or limited by applicable law, any reproduction, distribution, modification,
retransmission, or publication of any copyrighted material is strictly prohibited
without the express written consent of the copyright owner or license.
Subject to the rights granted pursuant to these Terms to You, Vigor retains
all right, title and interest in and to the Materials, and You acknowledge
that You neither own nor acquire any additional rights in and to the foregoing
not expressly granted by these Terms. You further acknowledge that Vigor
retains the right to use the foregoing for any purposes in its sole discretion.
You agree to indemnify and hold Vigor and its officers, directors, employees,
affiliates, agents, licensors, and business partners harmless from and against
any and all costs, damages, liabilities, and expenses (including attorneys’
fees and costs of defense) Vigor or any other indemnified party suffers in
relation to or arising from: (i) Your negligence or willful misconduct; or
(ii) Your or any Authorized End User’s use of the Site or Services in breach
of these Terms.
15. Warranties; Disclaimer of Warranties.
THIS SITE, THE SERVICES AND THE MATERIALS ARE PROVIDED “AS IS” AND “WITH
ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THIS
SITE IS WITH YOU.
WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR
STATUTORY) WITH RESPECT TO THIS SITE, THE SERVICES AND THE MATERIALS, WHICH
INCLUDE BUT ARE NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, NON-INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS, SYSTEM INTEGRATION, DATA ACCURACY, AND QUIET ENJOYMENT.
THIS MEANS THAT WE DO NOT PROMISE YOU THAT THE SITE IS FREE OF PROBLEMS.
Without limiting the generality of the foregoing, We make no warranty that
this Site will meet Your requirements or that this Site will be uninterrupted,
timely, secure, or error free or that defects in this Site will be corrected.
We make no warranty as to the results that may be obtained from the use of
this Site or as to the accuracy or reliability of any information obtained
through this Site. No advice or information, whether oral or written, obtained
by You through this Site or from Us or Our subsidiaries/other affiliated
companies shall create any warranty. We disclaim all equitable indemnities.
16. Limitation of Liability.
IN NO EVENT WILL VIGOR BE LIABLE TO YOU
FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES,
REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST
PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION,
COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES
ARISING FROM ANY SOURCE, EVEN IF VIGOR HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY
WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED
OR HAVE PROVEN INEFFECTIVE.
THE CUMULATIVE LIABILITY OF VIGOR TO YOU
FOR ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS, INCLUDING, WITHOUT
LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY,
WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO VIGOR BY YOU UNDER SECTION
8 DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT
GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO
APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN
BREACHED OR HAVE PROVEN INEFFECTIVE.
17. Local Laws; Export Control.
We control and operate this Site from Our headquarters in the United
States of America and the entirety of this Site may not be appropriate or
available for use in other locations. If You use this Site outside the United
States of American, You are solely responsible for following applicable local
Any submissions by You to Us (e.g., comments, questions, suggestions,
materials – collectively, “Feedback”
any communication whatsoever (e.g., call, fax, email) will be treated as
both non-confidential and non-proprietary. You hereby assign all right, title,
and interest in, and We are free to use, without any attribution or compensation
to You, any ideas, know-how, concepts, techniques, or other intellectual
property and proprietary rights contained in the Feedback, whether or not
patentable, for any purpose whatsoever, including but not limited to, developing,
manufacturing, having manufactured, licensing, marketing, and selling, directly
or indirectly, products and services using such Feedback. You understand
and agree that We are not obligated to use, display, reproduce, or distribute
any such ideas, know-how, concepts, or techniques contained in the Feedback,
and You have no right to compel such use, display, reproduction, or distribution.
19. Intellectual Property Infringement.
We respect the intellectual property rights of others and encourage You
to do the same. Accordingly, We have a policy of removing any of Your Content
that violate intellectual property rights of others, suspending access to
this Site (or any portion thereof) to any user who uses this Site in violation
of someone’s intellectual property rights, and/or terminating in appropriate
circumstances the account of any user who uses the this Site in violation
of someone’s intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, We have
implemented procedures for receiving written notification of claimed copyright
infringement and for processing such claims in accordance with such law.
If You believe Your copyright or other intellectual property right is being
infringed by a user of this Site, please provide written notice to Our Agent
for notice of claims of infringement:
Attn: Legal Department
To be sure the matter is handled immediately, Your written notice must:
- Contain Your physical or electronic signature;
- Identify the copyrighted work or other intellectual property alleged
to have been infringed;
- Identify the allegedly infringing material in a sufficiently precise
manner to allow Us to locate that material;
- Contain adequate information by which We can contact You (including postal
address, telephone number, and e-mail address);
- Contain a statement that You have a good faith belief that use of the
copyrighted material or other intellectual property is not authorized
by the owner, the owner's agent or the law;
- Contain a statement that the information in the written notice is accurate;
- Contain statement, under penalty of perjury, that You are authorized
to act on behalf of the copyright or other intellectual property
Unless the notice pertains to copyright or other intellectual property
infringement, the Agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
We will notify You that We have removed or disabled access to copyright-protected
material that You provided, if such removal is pursuant to a validly received
DMCA take-down notice. In response, You may provide Our Agent with a written
counter-notification that includes the following information:
- 1. Your physical or electronic signature;
- 2. Identification of the material that has
been removed or to which access has been disabled, and the location
at which the material appeared before it was removed or access to
it was disabled;
- 3. A statement from You under the penalty of
perjury, that You have a good faith belief that the material was
removed or disabled as a result of a mistake or misidentification
of the material to be removed or disabled; and
- 4. Your name, physical address and telephone
number, and a statement that You consent to the jurisdiction of a
court for the judicial district in which Your physical address is
located, or if Your physical address is outside of the United States,
for any judicial district in which We may be located, and that You
will accept service of process from the person who provided notification
of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserve the right, in Our sole discretion, to terminate the account
or access of any user of this Site or Service who is the subject of repeated
DMCA or other infringement notifications.
We think direct communication resolves most issues – if We feel that
You are not complying with these Terms, We will tell You. We will even provide
You with recommended necessary corrective action(s) because We value this
However, certain violations of these Terms, as determined by Us, may
require immediate termination of Your access to this Site without prior notice
to You. The Federal Arbitration Act, California state law and applicable
U.S. federal law, without regard to the choice or conflicts of law provisions,
will govern these Terms. Foreign laws do not apply. Except for disputes subject
to arbitration as described above, any disputes relating to these Terms or
this Site will be heard in the courts located in San Diego County, California.
If any of these Terms are deemed inconsistent with applicable law, then such
term(s) shall be interpreted to reflect the intentions of the parties, and
no other terms will be modified. By choosing not to enforced any of these
Terms, We are not waiving Our rights. These Terms are the entire agreement
between You and Us and, therefore, supersede all prior or contemporaneous
negotiations, discussions or agreements between Everyone about this Site.
The proprietary rights, disclaimer of warranties, representations made by
You, indemnities, limitations of liability and general provisions shall survive
any termination of these Terms.
21. Contact Us.
If You have any questions about these Terms or otherwise need to contact
Us for any reason, You can reach Us at Vigor Systems, Inc., 4250 Executive
Sq #400, La Jolla, CA 92037, USA or email email@example.com.