Last Updated: January 12, 2014
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
1. Overview. This Subscription Agreement set forth the terms and conditions on which VicteliB, LLC (“VicteliB,” “we” or “us”), a Missouri limited liability company, provides authorized individual subscribers with remote access to and use of VicteliB’s proprietary website, online VicteliB Live℠ videos and other content, system and tools for fitness and wellness (collectively, the “Content”).
2. Order Placement. Orders for the Content may be placed using VicteliB’s designated paper or online ordering form or other mutually agreed upon method. All orders are subject to acceptance or rejection by VicteliB, in its sole discretion, and are further subject to this Subscription Agreement. PLEASE READ THIS SUBSCRIPTION AGREEMENT CAREFULLY. BY PLACING AN ORDER FOR, ACCESSING OR OTHERWISE USING THE CONTENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE LEGALLY BOUND BY THIS SUBSCRIPTION AGREEMENT.
3. Account Set-Up. In order to access and use the Content, you must be an individual over the age of eighteen (18) residing in the United States with a valid mailing address and must establish a unique user account (“Account”). You are responsible for (i) establishing and safeguarding your Account access credentials, and (iii) disabling your Account (either directly or by contacting VicteliB’s designated support channel) when access is no longer required. You agree to provide us with true, accurate and complete information as required by the sign-up process (“Subscription Data”), including your legal name, address, telephone number, email address and applicable billing information (e.g., credit card number and expiration date), and to allow us to share your Subscription Data with third parties for the purpose of verifying the information you provide and billing your credit card or otherwise charging your account. You agree to maintain and promptly update the Subscription Data and any other information you provide to us. Without limiting any other provision of this Agreement, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, we reserve the right to suspend or terminate your subscription, and if applicable, your user Account, and refuse any and all current or future use and/or access by you of the Account and Content (or any portion thereof).
4. Account Security. You are responsible for keeping confidential your Account credentials (including username and password). You may not share Account credentials or Content with any other person, or access the Content for any commercial purpose, unless expressly approved by VicteliB in each instance. You agree to notify VicteliB immediately upon discovering any known or suspected unauthorized access to, misuse of, or breach of security for the Content or your Account, and to provide all information and take all reasonable steps requested by VicteliB in connection therewith. You are responsible for your acts and omissions in connection with the Content and for all activities occurring under your Account. VicteliB reserves the right to suspend access to the Content in order to protect the security and integrity of its systems, facilities and equipment.
5. Permitted Use. During the term of the applicable order, subject to your compliance with the provisions hereof, VicteliB grants you a limited, non-exclusive, non-transferable and non-sublicensable license for you, individually, to remotely access and use the Content solely for your personal, non-commercial use in conjunction with your individual in-home fitness and wellness activities, in compliance with those rules, policies and procedures as may be implemented and updated by VicteliB from time to time, and in compliance with all applicable laws and regulations. Use of any Content for any other purpose or by any other person is prohibited without our prior written consent in each instance, which may be withheld in our sole discretion. Prohibited commercial uses include without limitation teaching or instructing any classes that include or consist of the Content, in whole or in part, sharing the Content with other parties, or utilizing the Content to generate income. Certain features or components of the Content may be subject to additional terms and conditions posted by us on the website or otherwise made available by us to you. Your access to and use of such features or components is conditioned upon your acceptance of such additional terms and conditions.
6. Prohibited Activities. You may not: (a) deactivate, bypass, or otherwise circumvent any access controls or other security measures for the Content; (b) access or use the Content through interfaces or automated means (such as test tools, screen capture technology, scripted browsers, or other programmatic methods) not expressly approved by VicteliB; (c) impersonate or attempt to access or use the Account of a representative of VicteliB, another client, or another user; (d) disseminate viruses, Trojan horses, spyware, or other malicious code through the Content; (f) engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the Content functionality; (e) attempt to gain unauthorized access to VicteliB’s or any other user’s networks, systems, or data; (f) engage in or promote any activity, or post or transmit any content, that is illegal, threatening, abusive, offensive, obscene, harassing, defamatory, deceptive, false, unsafe, invasive of another’s privacy, or endangering of minors in any way; or (g) infringe, misappropriate, or violate any third party intellectual property or proprietary rights, rights of privacy or publicity, or other rights, or violate any contractual, fiduciary, or other legal duty or obligation.
7. Your Responsibilities. You are responsible for: (i) procuring, installing and maintaining all client-side equipment necessary to remotely access and use the Content, including a compatible Internet browser and network connectivity; and (ii) providing all information, documentation, cooperation and assistance reasonably requested by VicteliB. VicteliB will have no responsibility or liability arising out of or resulting in whole or in part from your failure or delay to provide any resources or perform any responsibilities, or for acts or omissions of third parties, Internet or power outages, network or telecommunications failures, or force majeure or other events beyond VicteliB’s reasonable control.
8. Proprietary Rights.
(a) VicteliB Content. VicteliB and its suppliers will retain exclusive ownership of and all right, title and interest in and to the Content, including but not limited to all domains and sub-domains, the design, layout, graphics, videos, programming code and “look and feel,” all enhancements and improvements (even if requested or paid for by you), all copyrights, trademarks and trade dress appurtenant thereto, all goodwill associated therewith, and all other intellectual property and proprietary rights of any nature throughout the world embodied therein. All rights not expressly granted to you by VicteliB are reserved. From time to time, you may provide VicteliB with suggestions, ideas or other feedback regarding the Content. VicteliB, its successors and assigns are and will be free to use, disclose and otherwise commercialize and exploit such feedback free of any and all claims by or monetary obligations to you, or proprietary, confidentiality or other restrictions of any kind, including for purposes of developing improvements to the Content.
(b) Links to Third Party Sites. The Content may contain links to Internet or mobile sites not owned or operated by VicteliB, including sites featuring online content that may be of interest or pages that VicteliB maintains on YouTube, Facebook, Twitter or other social media sites. The inclusion of these links should not be construed as any sort of affiliation, sponsorship, endorsement or approval. When you access a third party Internet or mobile site, you do so at your own risk. VicteliB assumes no responsibility or liability for any information, products or services available on or through any third party Internet or mobile site, or for any actions taken by you or others in connection therewith.
(c) Proprietary Rights Restrictions. Except as expressly set forth herein, you may not, nor will you authorize or permit any other person or entity to: (i) reproduce, distribute, publicly display, sublicense, lease, rent, loan, transfer, or otherwise make available any Content; (ii) modify, adapt, alter, translate, or create derivative works of any Content; (iii) use the Content in or as part of a group instructional program, service bureau, timesharing or outsourcing capacity; (iv) develop an alternative to the Content that is based on or derived from, in whole or in part, the Content or any other information or materials of VicteliB; (v) use the Content in violation of any import, export, re-export, intellectual property or other applicable laws or regulations; (vi) remove or obscure any copyright or other proprietary rights notices, trademarks or trade designations for the Content, or on any user screens or documentation; or (vii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying programming, data or database structures for the Content.
9. Fees and Charges.
(a) You agree to pay a monthly (or other periodic) fee at VicetliB’s then-current rates, and all applicable taxes, and other charges and fees incurred in order to use or access the Content, using a valid credit card (or other form of payment which we may accept from time to time). We reserve the right to increase fees, or to institute new fees at any time, upon advance notice communicated to you through a posting on our website or such other means as we may deem appropriate (including email or conventional mail). After your payment for your initial billing period or upon expiration of any free trial period, we will automatically charge your credit card (or other account, if applicable) up to thirty-one (31) days prior to the start of each renewal period, unless you have properly cancelled your subscription before you are charged for the relevant renewal period. The renewal charge will be the same as the prior period’s charge, unless we notify you at the time of sign-up or prior to the beginning of the renewal period as described above, or if you were previously signed up for a free trial period or discount rate for which you are no longer eligible – in which case your subscription will automatically be renewed at our standard subscription rates and for our standard period (usually monthly). Each time you log into your Account or otherwise access the VicetliB Live website or Content, you reaffirm your agreement that we may charge your credit card (or other form of payment, if applicable). In the event we cannot charge your account, we reserve the right to terminate your subscription. All fees are nonrefundable, even if you do not access or use the Content for the applicable billing period.
(b) All amounts are stated and payable in U.S. Dollars and are non-refundable. The fees are exclusive of any taxes or duties associated with the Content, however designated or levied in any jurisdiction by any taxing authority. You are solely responsible for all such taxes, excluding taxes based on VicteliB’s net income. If applicable, you will provide evidence of tax-exempt status prior to the first payment becoming due. VicteliB reserves the right to suspend your Account and access to the Content for delinquent payment, and to charge interest on overdue amounts at the rate of one and one half percent (1.5%) per month (eighteen percent (18%) per annum), or such lesser maximum rate as may be permitted by applicable law, accruing from the due date until the date paid.
10. Term; Termination. The term of your subscription to the Content will be as set forth in the applicable order; if no term is specified, the term will be deemed to be on a month-to-month basis. Notwithstanding the foregoing, VicteliB may terminate your subscription to the Content, in whole or in part: (a) if you materially breach this Subscription Agreement (including non-payment) and fail to cure the breach within fifteen (15) days after receiving email or other written notification thereof; (b) if you become or are declared insolvent, make a general assignment for the benefit of creditors, suffer a receiver to be appointed for you, enter into an agreement for the composition, extension, or readjustment of all or substantially all of your obligations, file a voluntary petition in bankruptcy, or have an involuntary petition in bankruptcy filed against you, which petition is not dismissed with prejudice within sixty (60) days after the filing thereof; (c) for convenience, upon not less than thirty (30) days’ prior email or other written notification to you, subject to a prorated refund of any fees paid prepaid in respect of service to be provided after the date of termination; or (iv) for any other basis mutually agreed to and set forth in the applicable order.
11. Effects of Termination. Upon the expiration or termination of an order for any reason: (a) VicteliB will cease providing access to your Account and the Content; (b) you will immediately discontinue access to and use of the Account and Content, and all rights and licenses granted to you will automatically terminate; and (c) you will pay VicteliB all fees and charges due and owing under this Subscription Agreement. In the event of improper termination by you or termination by VicteliB for cause, the foregoing will include, without limitation, the fees and charges that would have been due for the remainder of the then-current term of the applicable order. Sections 6 through 9 (inclusive) and 11 through 17 (inclusive), and any other provisions of this Subscription Agreement which by their terms or nature are intended to survive, will survive the expiration or termination of an order for any reason, and will be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
12. DISCLAIMER. THE CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND ALL USE OF THE CONTENT IS AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, VicteliB HEREBY disclaims any AND ALL implied OR STATUTORY warranties of MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR QUIET ENJOYMENT. VicteliB DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL OPERATE UNINTERRUPTED oR ERROR-FREE, OR THAT THE CONTENT WILL BE ACCURATE, COMPLETE, UP-TO-DATE, OR FREE FROM VIRUSES, TYPOGRAPHICAL ERRORS OR ALTERATIONS BY THIRD PARTIES, or THAT THE CONTENT WILL BE COMPATIBLE OR INTEROPERATE WITH YOUR NETWORK, SYSTEMS OR DATA, MEET YOUR particular REQUIREMENTS, OR achieve ANY PARTICULAR RESULTS. VICTELIB DOES NOT VALIDATE, GUARANTEE OR ENDORSE ANY THIRD-PARTY CONTENT, PRODUCTS OR SERVICES AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION THEREWITH. THE CONTENT MAY BE SUBJECT TO TRANSMISSION ERRORS, DELIVERY FAILURES OR DELAYS, AND OTHER LIMITATIONS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VICTELIB DOES NOT GUARANTEE THE AVAILABILITY OF THE CONTENT AND WILL NOT BE LIABLE FOR ANY PERIODS OF INACCESSIBILITY OR INOPERABILITY. NO EMPLOYEE OR AGENT HAS AUTHORITY TO BIND VICTELIB TO ANY REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THIS SUBSCRIPTION AGREEMENT. IF YOU ARE DISSATISFIED WITH ANY PORTION OF YOUR SUBSCRIPTION, ANY PROVISION OF THIS SUBSCRIPTION AGREEMENT, OR ANY PRACTICE OR POLICY OF VICTELIB (INCLUDING WITHOUT LIMITATION ANY CHANGE IN CONTENT, OR IN THE AMOUNT OR TYPE OF FEES), YOUR SOLE AND EXCLUSIVE REMEDY IS THE TERMINATION OF YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROVISIONS HEREOF.
13. Indemnification. You assume sole responsibility for your use of the Content, and agree to indemnify, defend and hold VicteliB harmless from and against any and all claims, demands, suits, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) arising out of or resulting in whole or in part from your violation of this Subscription Agreement or use or misuse of the Content, including without limitation all activities occurring under your Account, the actual or alleged violation of any applicable laws or the rights of another person or entity in connection therewith (whether on a direct, vicarious or contributory basis), and/or any claims or allegations (whether or not bona fide) by third parties arising out of or related thereto; provided, however, you will have no indemnification obligation for any liability resulting from and attributable solely to the gross negligence or willful misconduct of VicteliB or its personnel.
14. Informed Content and Release.
(a) You acknowledge and agree that no fitness or wellness program is without inherent risks and that, regardless of the care taken in preparation of the Content, VicteliB cannot guarantee your personal safety. For example, when you induce cardiovascular stress through activity, or engage in muscular endurance, strength building, or other fitness or wellness activities, injuries can range from occasional minor illness or injury (e.g., bruises, pulled muscles, sprains or sprains, or muscle soreness) to infrequent serious injury (e.g., heart attack, stroke, other cardiovascular accidents, muscle tears, herniated disks, torn rotator cuffs, or broken bones) to the very rare catastrophic incident (e.g., death, or paralysis). You acknowledge that when participating in any exercise or conditioning activity, including those depicted in the Content, there is always a possibility that minor injuries, major injuries, or catastrophic injury/death may occur. You represent that you are in good physical condition, have no impairment which might prevent your participation in the physical activities described in the Content, have been advised to consult a doctor prior to beginning any exercise program or engaging in any activities described in the Content, and have been advised to cease exercise immediately if you experience unusual discomfort or feel the need to stop. Your further acknowledge that VicteliB is not providing any medical advice to you.
(b) You do hereby release, waive, discharge, and covenant not to sue VicteliB, its trainers, suppliers, training locations, event hosts and insurance carriers, and their respective owners, officers, directors, employees, agents and other personnel, for any and all liability from any and all claims including without limitation those arising from the negligence or fault of any of the aforementioned released parties. The foregoing release includes without limitation personal injury (including death) from accidents or illnesses arising directly or indirectly from participation in activities or use of facilities, premises or equipment described in the Content or directed, suggested, or planned by VicteliB.
15. LIMITATIONS ON LIABILITY. IN NO EVENT WILL VICTELIB BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THIS SUBSCRIPTION AGREEMENT, THE CONTENT OR YOUR OR ANY OTHER PERSON’S ACCESS TO OR USE THEREOF, INCLUDING LOSS OF BUSINESS, PROFITS, OR REVENUE, LOSS OR DESTRUCTION OF DATA, OR BUSINESS INTERRUPTION OR DOWNTIME. THE TOTAL CUMULATIVE LIABILITY OF VICTELIB ARISING OUT OF AND RELATED TO THIS SUBSCRIPTION AGREEMENT, THE CONTENT AND YOUR OR ANY OTHER PERSON’S ACCESS TO OR USE THEREOF WILL NOT, REGARDLESS OF THE NUMBER OF INCIDENTS OR CAUSES GIVING RISE TO ANY SUCH LIABILITY, EXCEED THE TOTAL FEES (IF ANY) PAID BY YOU TO VICTELIB FOR THE CONTENT IN THE THREE (3) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST SUCH CLAIM OR TEN DOLLARS ($10), WHICHEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM OR SUIT WILL NOT EXPAND THIS LIMITATION. THE LIMITATIONS ON LIABILITY IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REGARDLESS OF THE CAUSE OF ACTION OR BASIS OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, CONTRIBUTORY, VICARIOUS OR STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ON LIABILITY ARE AN ESSENTIAL PART OF THIS SUBSCRIPTION AGREEMENT AND WILL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR TYPES OF DAMAGES, AND SO SUCH DISCLAIMERS MAY NOT APPLY TO YOU.
16. Dispute Resolution.
(a) Informal Dispute Resolution. It is the intent of the parties to work amicably and in good faith to resolve any disputes that may arise between them in an expeditious and cost-effective manner. Each party will promptly communicate to the other party any issues, concerns or problems arising in connection with this Subscription Agreement, and the parties agree to work together to informally resolve such matters as they arise, including by escalating such matters as necessary to persons with appropriate decision making authority. Such informal dispute resolution will not be construed as a precondition to pursuing more formal remedies, or waive or diminish either party’s rights or remedies, all of which are expressly reserved.
(b) Binding Arbitration. Any dispute, claim or controversy arising out of or related to the Content or this Subscription Agreement, or the validity, construction, breach or enforcement hereof, whether in contract, tort or otherwise (a “Dispute”), whether between VicteliB and you or the parties’ heirs, successors or permitted assigns, whether arising before or after date of entering into this Subscription Agreement, upon written demand of either party, will be submitted to and resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules; provided, however, nothing contained herein will limit or delay a party’s right to obtain provisional injunctive or other non-monetary equitable relief in any court of competent jurisdiction. The arbitration will be conducted in English in accordance with the substantive laws of the State of Missouri, U.S.A. before a single, neutral arbitrator with experience conducting arbitrations in the field of Internet and technology services contracts, pursuant to a protective order issued by the arbitrator that requires the parties to maintain the confidentiality of the arbitration proceeding and all activities occurring and documents exchanged in connection therewith. In order to reduce costs, the arbitration will be conducted by telephonic and/or video conference between and among the arbitrator, the parties and their counsel. Any required in-person hearings will be conducted in St. Louis, Missouri. Each party will be responsible for advancing half the filing fee, arbitrator’s fees and similar expenses directly related to the arbitration, specifically excluding the other party’s legal fees and similar costs. The prevailing party in the arbitration will be entitled to recovery of its advanced portion of such arbitration costs, together with its reasonable legal and other expenses incurred in connection with the arbitration, in addition to any other relief that it may receive. The award of the arbitrator will be accompanied by a statement of the reasons upon which the award is based, and will be final and non-appealable; provided, however, no award may provide a remedy beyond those permitted under this Subscription Agreement. Judgment upon the arbitration award may be entered in any court of competent jurisdiction. The Federal Arbitration Act (Title 9 of the United States Code) will apply to the construction, interpretation and enforcement of this arbitration provision.
(c) WAIVER OF CLASS ACTION AND JURY TRIAL. ALL DISPUTES WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS, AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS ALL PARTIES TO AN ARBITRATION SPECIFICALLY AGREE TO DO SO FOLLOWING INITIATION OF SUCH ARBITRATION. EACH PARTY ACKNOWLEDGES AND AGREES THAT ITS AGREEMENT TO ARBITRATE A DISPUTE CONSTITUTES AN IRREVOCABLE WAIVER OF ITS CONSISTUTIONAL RIGHT TO HAVE SUCH DISPUTE DECIDED IN A COURT OF LAW BEFORE A JURY.
(a) Governing Law. This Subscription Agreement will be governed and interpreted for all purposes by the laws of the State of Missouri, U.S.A., without reference to any conflict of laws principles that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted by any jurisdiction) do not and will not apply to this Subscription Agreement, and are hereby specifically excluded.
(b) Notices. All notices under this Subscription Agreement must be in writing and in the English language. Notices to you may be delivered by email, fax or postage prepaid registered or certified mail, return receipt requested, to the most current address on file. Notices to VicteliB must be delivered by postage prepaid registered or certified mail, return receipt requested, to the attention of the CEO at VicteliB’s then-current corporate headquarters address, unless we have provided you with an alternative notice address.
(c)Assignment.Neither party may assign or otherwise transfer this Subscription Agreement or an order, in whole or in part, without the prior written consent of the other party, not to be unreasonably withheld. Any attempted assignment in violation of the foregoing will be null and void from the beginning and without effect. Notwithstanding the foregoing, VicteliB may fulfill its duties through its affiliates and appropriate and qualified subcontractors, and may assign this Subscription Agreement or any order to a successor in interest in connection with VicteliB’s merger, acquisition, corporate reorganization, or sale of all or substantially all of its business or assets.
(d) Relationship; Third Party Beneficiaries. The parties hereto are independent contractors. Nothing in this Subscription Agreement will be deemed to create any agency, employment, partnership, fiduciary or joint venture relationship between the parties, or to give any third party any rights or remedies under or by reason of this Subscription Agreement. Notwithstanding the foregoing, the disclaimers, limitations on liability and indemnification protections under this Subscription Agreement will extend to VicteliB, its directors, officers, employees, agents and affiliates. All references to VicteliB in connection therewith will be deemed to include such persons and entities as third party beneficiaries entitled to accept all benefits afforded thereby.
(e) Equitable Relief. The Content comprises the confidential and proprietary information of VicteliB and its suppliers, and constitutes a valuable trade secret. You acknowledge that any breach of the license or ownership provisions of this Subscription Agreement would cause irreparable harm to VicteliB, the extent of which would be difficult and impracticable to assess, and that money damages would not be an adequate remedy for such breach. Accordingly, in addition to all other remedies available at law or in equity, VicteliB will be entitled to obtain injunctive and other non-monetary equitable relief in any court of competent jurisdiction.
(f) U.S. Government Restricted Rights. The Content and related documentation are licensed with RESTRICTED RIGHTS as “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Service” and “Commercial Computer Service Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Service and Commercial Computer Service Documentation is licensed (if at all) to U.S. Government end users only as Commercial Items, and with only those rights as are granted to other licensees pursuant to this Subscription Agreement.
(g) Amendment; Waiver.We reserve the right to amend this Subscription Agreement from time to time. Any amendments will be effective when posted by us or otherwise made available to you. Your access to or use of the Content after we have amended this Subscription Agreement will signify your acceptance of the amended terms. Except as stated in this section, this Subscription Agreement may be amended only by a written instrument executed by a duly authorized representative of each party. No right or obligation will be waived by any act, omission or knowledge of a party, except by an instrument in writing expressly waiving such right or obligation and signed by an authorized representative of the waiving party. Any waiver on one occasion will not constitute a waiver on subsequent occasions.
(h) Severability; Construction. If any provision of this Subscription Agreement is determined to be invalid or unenforceable under applicable law, such provision will be amended by an arbitrator or court of competent jurisdiction to accomplish the objectives of such provision to the greatest extent possible under applicable law, or severed from this Subscription Agreement if such amendment is not possible, and the remaining provisions of this Subscription Agreement will continue in full force and effect. The captions in this Subscription Agreement are for reference purposes only, and will not affect the meaning or interpretation of this Subscription Agreement. The term “including” as used herein means “including without limitation.” The terms “hereunder,” “herein,” “hereof” and similar variations mean this Subscription Agreement as a whole, and not any particular section.
(i) Entire Agreement. This Subscription Agreement set forth the entire agreement of the parties and supersede all prior and contemporaneous proposals, agreements and understandings, whether written or oral, pertaining to the subject matter hereof. In the event of any conflict between this Subscription Agreement and an order, unless otherwise expressly stated in the order, this Subscription Agreement will control. Where you require a purchase order as part of your procurement process, such purchase order may be issued for administrative purposes only. Any additional or conflicting terms proposed by you in any purchase order, acknowledgement, or other writing will not be binding on VicteliB, and are hereby objected to and expressly rejected.
© 2013 VicteliB, LLC. “VicteliB,” “VicteliB Live” and the VicteliB logos and designs are service marks of VicteliB, LLC. All rights reserved.