END USER LICENSE AGREEMENT
Welcome to the free version of the VoxGen Design Cloud and Dev Cloud (the “Service”) which is owned and operated by Vox Generation Limited (“Vox Generation”). By using the Service you (“You” or “User”) are agreeing to be bound by this End User License Agreement (“EULA”).
Please read this EULA carefully before using the Service. If You do not accept this EULA, then You may not use the Service. If You are accessing the Service on behalf of a business entity, then by doing so, You represent that You have the legal capacity and authority to bind such business entity to the terms and conditions contained in this document.
Subject to the terms and conditions of this EULA and User’s compliance with all terms herein, Vox Generation hereby grants to User a non-exclusive, non-transferrable, worldwide, royalty-free, revocable license to (i) install and use the Service on computers owned and operated by User and (ii) operate the Service for its own internal business purposes.
1.2 User IDs. Vox Generation may provide User with a limited number of IDs, passwords and other credentials for User to access the Service. The credentials provided should be safeguarded at all times. Credentials shall be provided to User via email. The credentials may only be used by the named individuals authorized by Vox Generation and may not be used by any other employees, consultants, agents or third parties other than as authorized in writing by Vox Generation. User shall be liable for use of the credentials by all such parties. User acknowledges that Vox Generation may, from time to time, monitor the logon times and usage for the purpose of verifying that User and its permitted users are the sole holder and user of the credentials. To the extent any party under the reasonable control of User gains access to the Service through use of the credentials or by circumventing Vox Generation’ security systems, User shall be liable to compensate Vox Generation for such usage as if such party were an additional user. User shall promptly notify Vox Generation in writing if any credentials should be deactivated because of personnel changes, unauthorized use or sharing of the credentials or any other reason. User shall comply with any terms, conditions and usage policies set forth on any website or portal for the Service, provided that, the terms of this EULA shall prevail in the event of any conflicts.
1.3 Unauthorized Access and Use. User agrees that it shall not use any persons, means, devices or arrangements to commit fraud, exceed its permitted access to the Service, interfere with other clients or falsify or manipulate results or information generated or collected in connection with the Service. User may not resell or charge for access to or use of the Service. User may not use the Service in the operation of a service bureau or otherwise for the benefit of any other person or entity. User shall not, and shall not permit any third party to, (a) modify, copy or create derivative works based on the Service; (b) frame or mirror any content forming part of the Service, other than on User’s own intranets or otherwise for its own internal business purposes; (c) reverse engineer the Service; (d) exercise any right or take any action not expressly granted herein; or (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.
1.4 Updates & Support. The free version of the Service does not entitle the User to any support, maintenance, updates, upgrades or other services. User must contact Vox Generation to purchase a paid version of the Service to receive any of the foregoing.
- Fees. You are solely authorized to access and use the free version of the Service. Therefore, such access and use is provided without charge. If you wish to upgrade from the free version of the Service to a fully functional version of the Service, User must enter into a new agreement with Vox Generation and pay the applicable fees.
3.1 Intellectual Property.
(a) Except for the limited access rights set forth in Section 1.1, User does not acquire any interest in or right to the Service, including by virtue of entering into this EULA. Without limitation, Vox Generation owns, and shall continue to own, all intellectual property and proprietary rights in and to all portions of the Service. Any improvements, enhancements or modifications to the Service created, suggested or requested by User (collectively, “Improvements”), shall be automatically assigned exclusively to, and owned by, Vox Generation. To the extent any Improvements are not automatically assigned to Vox Generation, User agrees to take all reasonable measures, at Vox Generation’ expense, to perfect such rights in Vox Generation. User will not remove or obscure any copyright, trademark or patent notices that appear on the Service or its output. User shall take no position contrary to, or that would diminish, the ownership rights set forth herein. Except as expressly set forth in this EULA, no other licenses or rights are acquired by User and Vox Generation reserves all rights and interests in and to its intellectual property and Services.
(b) User is solely responsible for all content and information Users stores, transmits, generates and processes through use of the Service (“User Materials”).
(c) The Service may include pre-existing templates and other materials (“Templates”). User acknowledges that all Templates are owned solely by Vox Generation. Vox Generation hereby grants User a non-exclusive, non-transferrable, worldwide, royalty-free, revocable license to use the Templates solely in connection with its authorized use of the Service.
- Confidential Information. You agree that all non-public information regarding Vox Generation and the Service is the confidential and proprietary information of Vox Generation, and that you shall not disclose the foregoing to any third party or use such information other than in connection with your authorized use of the Service under this EULA.
5.1 User Representations. User represents and warrants to Vox Generation that: (i) it has the right to enter into this EULA and to make all agreements and commitments herein and (ii) it and its use of the Service shall comply with all applicable laws, rules and regulations.
5.2 Disclaimer. the service is provided to user “as is” and Vox Generation expressly disclaims all warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and noninfringement, and any warranties arising out of course of dealing, usage, or trade. Vox Generation is not responsible for any decisions made as a result of the use of the service. Vox Generation does not warrant that the service will meet user’s specific requirements or that the operation of the service will be completely error-free or uninterrupted. Vox Generation shall not be liable to user for any inoperability of the service or for any loss of information or other injury, damage or disruption of any kind. Vox Generation shall not be responsible for the acts or omissions of isps, technology providers or other third parties outside of Vox Generation’ reasonable control.
6.1 Indemnification – Vox Generation. Vox Generation agrees to indemnify, defend and hold harmless User, its affiliates and their respective officers, directors, and employees from and against any and all liability, claims, causes of action, suits, damages and expenses, including reasonable attorneys’ fees and costs, (collectively, “Losses”) to the extent that such is based upon any third party claim that the Service, as provided by Vox Generation without alteration, directly infringes upon any third party copyright or trademark. This Section 6.1 shall not apply to the extent any Losses arise from: (a) any use of the Service that is in breach of this EULA or contrary to any instructions provided by Vox Generation to User; or (b) the combination, operation, or use of the Service with any product or service not provided by Vox Generation. If the Service should become the subject of any claim subject to indemnification as set forth above, or Vox Generation reasonably believes that such event is likely to occur, Vox Generation, at its expense and discretion, will either: (i) secure for User the right to continue using the Service; (ii) replace or modify the Service so as to make it noninfringing; or (iii) if Vox Generation determines in its sole discretion that it is not commercially practicable for Vox Generation to achieve (i) or (ii) above, Vox Generation will have the right to terminate this EULA. The foregoing states the entire liability of Vox Generation, and User’s sole and exclusive remedy, with respect to any claims herein.
6.2 Indemnification – User. User agrees to indemnify, defend and hold harmless Vox Generation, its affiliates and their respective officers, directors, and employees from and against any and all Losses to the extent that such is based upon: (i) User’s use of the Service; (ii) User’s breach of this EULA; or (iii) any interaction or transactions between User with an end user, client or other third party through use of the Service.
6.3 Indemnification – Procedure. The indemnifying party’s obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity (provided that a failure or delay in providing such notice shall not relieve the indemnifying party’s obligations, except to the extent prejudiced by such failure or delay), (ii) granting complete control of the defense and settlement to the indemnifying party, provided that the indemnifying party will not acquiesce to any judgment or settlement without the indemnified party’s prior written consent, unless it obtains a full and final release of all claims against the indemnified party and such judgment or settlement does not impose any requirements or restrictions upon the indemnified party and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense and settlement of such claim. The indemnifying party shall provide the indemnified party the option to engage separate counsel, at the indemnified party’s expense, to participate in any claim giving rise to indemnification hereunder. The indemnifying party may settle any claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
- Damages. in no event will Vox Generation be liable to user for any special, indirect, incidental or consequential damages (including without limitation loss of use, data, business or profits or costs of cover) arising out of or in connection with this EULA or the use or performance of the service, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), product liability or otherwise, and whether or not it has been advised of the possibility of such loss or damage. in no event shall Vox Generation be liable for direct damages in excess of $100 (usd).
- Term & Termination. User may terminate this EULA at any time by deleting all copies of the Service. Vox Generation may terminate this EULA at any time upon five (5) days prior written notice if User is in violation of any term herein and does not cure such violation within the notice period. Vox Generation may terminate this EULA at any time if: Vox Generation is transitioning to no longer providing the Service to users in the country where User is resident, Vox Generation is required to do so by law or the provision of Services is no longer commercially viable for Vox Generation. Upon any termination of this EULA, User must permanently and irrevocably delete all copies of the Service.
9.1 General Provisions. If any provision of this EULA is held to be void, invalid or inoperative, the remaining provisions of this EULA shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this EULA. User may not assign any of its rights or obligations under this EULA to any other entity without the prior written consent of Vox Generation, which shall not be unreasonably withheld. This EULA sets forth the entire agreement between the parties on this subject matter and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. No amendment or modification of this EULA shall be made except by a writing signed by both parties. The provisions of Sections 1.3, 3-9 shall survive the expiration or termination of this EULA regardless of the reason or reasons therefore. The prevailing party shall be entitled to collect its reasonable attorney’s fees, costs and expenses in any action brought to enforce rights hereunder.
9.2 Force Majeure; Suspension. Vox Generation shall not be in breach of this EULA or responsible for damages if a delay or failure is due to fire, earthquake, unusually severe weather, strikes, government sanctioned embargo, flood, act of God, act of war or terrorism, act of any public authority or sovereign government, civil disorder, delay or destruction caused by public carrier, or any other circumstance substantially beyond the control of Vox Generation.
9.3 Choice of Law; Jurisdiction. This EULA shall be governed by the laws of the State of Florida and each party irrevocably submits to exclusive jurisdiction and venue in the courts located in the State of Florida.
9.4 Export Controls. User acknowledges and agrees that the Service, or a portion thereof, and the information contained therein, may be subject to the U.S. Export Administration Regulations and diversion, use or access contrary to U.S. law and regulation is prohibited. User agrees to not directly or indirectly export, import or transmit the Service, or a portion thereof, and the information contained therein, to any country, end user or for any access or use that is prohibited by any applicable U.S. regulation or statute (including those countries embargoed from time to time by the U.S. government or the United Nations). Additionally, User agrees to not directly or indirectly export, import, transmit access or use the Service, or a portion thereof, and the information contained therein, contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission or use. User represents and warrants that neither the United States Bureau of Industry and Export Administration nor any other governmental agency has (i) issued sanctions against (A) it or those who access or use any of the Service through User’s account; (B) it or those who access or use any of the Service, and/or (C) any other person who accesses or uses any of the Service under a password or (ii) otherwise suspended, revoked or denied its export privileges.
9.5 Contact. All questions and notices regarding this EULA should be directed to Vox Generation at Legal@voxgen.com