This Varkasa Customer Agreement (the “Agreement”) is between you and Varkasa Ltd(“Varkasa”). If you are agreeing to this Agreement on behalf of your company and not as an individual, then “Customer” or “you” means your company, and you are binding your company to this Agreement. Varkasa has the right to modify this Agreement at any given point of time, subject to the terms of Section 26 (Changes to this Agreement) below.
By clicking on the “I agree” button or any other similar button that is presented to you at the time of your Order, or by using or accessing Varkasa products, you indicate your consent to be bound by this Agreement.
2 Types of Varkasa Products. This Agreement governs (a) Varkasa’s downloadable, commercial software products (currently designated as "Server" or "Data Center" deployments) (“Software”), (b) Varkasa’s cloud-based or hosted solutions (currently designated as "Cloud" deployments) (“Hosted Services”), and (c) all related support or maintenance services provided by Varkasa. The term “Products” is used to refer Software and Hosted Services, together with related Documentation. The Products and their permitted use are given in Varkasa’s standard documentation (“Documentation”). Section 6 (Software Terms) is applicable specifically for Software, and Section 7 (Hosted Services Terms) is applicable specifically for Hosted Services All other provisions of this Agreement apply to all Products unless and until it is specified.
3 Account Registration. You need to register for a Varkasa account for placing ordering or accessing or receiving any Product. Any registration information that you provide to us should be accurate, complete and current. You should also update your information so that we can send notices, statements, and other information by your email or through your account from time to time. You will be responsible for all actions done through your accounts.
4.1 Directly with Varkasa. Your authorized scope of use of the products will be mentioned in Varkasa’s Product ordering documentation or in purchase flow (“Order”). It may include: (a) number and type of Authorized Users (as defined below), (b) storage or capacity (for Hosted Services), (c) numbers of licenses, copies or instances (for Software), or (d) other restrictions or billable units (as applicable, the “Scope of Use”). Any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use also will come under the term “Order.
4.2 Reseller Orders. This Agreement applies when you purchase our Products either directly from Varkasa or through Varkasa “Experts” or other authorized resellers (each, a “Reseller”). If you purchase through a Reseller, your Scope of Use will be as mentioned in the Order placed by the Reseller for you. The Reseller will be responsible for the accuracy of all such Orders. Resellers are not authorized to give any promises or commitments on behalf of Varkasa and Varkasa is not bound by any such obligations other than what we specify in this Agreement.
5 Authorized Users. Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) will have the access and will use the Products. In case of some products you are allowed to designate different types of Authorized Users. in such case, pricing and functionality may vary depending on the type of Authorized User. Authorized Users can be you or your Affiliates, employees, representatives, consultants, contractors, agents, or other third parties who are acting on your behalf for your benefit. You may also permit your customers to enjoy limited access to certain Products as Authorized Users, as per the terms of our Customer Use Addendum. You can increase the number of Authorized Users of your instance of the Product by placing a new Order or, in some cases, directly through the Product. In all cases, you should pay the applicable fee for the increased number of Authorized Users. You are totally responsible for compliance with this Agreement by all Authorized Users. All the use of the Products by you and your Authorized Users should be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
6 Software Terms.
6.1 Your License Rights. The non-exclusive and non-transferable license to install and use the Software during the applicable License Term in accordance with this Agreement cannot be sub-licensed to others. Your Scope of Use, and the Documentation is subjected to the terms and conditions of this Agreement. The term of each Software license (“License Term”) will be specified in the Order. Your License Term will end upon the termination of this Agreement, even if it is identified as “perpetual” or if no expiration date is mentioned in your Order. The Software license key, which is required to to operate will be delivered as described in Section 10.2 (Delivery).
6.2 Number of Instances. You need to install one production instance of the Software on systems owned or operated by you (or your third party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement) for each Software license that you purchase,unless otherwise mentioned in your order. The “developer” licenses will be made free of charge for certain of our Software offerings to allow you to deploy non-production instances, such as for staging or QA purposes. Details of how to request non-production licenses are available on our website.
6.3 Your Modifications. Subject to the terms and conditions of this Agreement (including without limitation Section 2 (Combining the Products with Open Source Software) of Third Party Code in Varkasa Products): (1) for any elements of the Software provided by Varkasa in source code form, and to the extent permitted in the Documentation, you may modify such source code solely for purposes of developing bug fixes, customizations and additional features for the Software and (2) you may also modify the Documentation to reflect your permitted modifications of the Software source code or the particular use of the Products in your organization. Any modified source code or Documentation constitutes “Your Modifications”. You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Software but you may not distribute the code to Your Modifications to any third party. In such case, Varkasa will not offer any support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with our Products. You should indemnify, defend and should held us harmless from and against any and all claims, costs, damages, liabilities, losses and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party related to Your Modifications (including but not limited to any representations or warranties you make Your Modifications or the Software) or your breach of this Section 6.3. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Varkasa at your expense.
6.4 Attribution. In any use of the Software, you must include the following attribution to Varkasa on all user interfaces in the following format: “Powered by Varkasa,” which must in every case include a hyperlink to http://www.Varkasa.com, and which must be in the same format as delivered in the Software.
6.5 Third Party Code. The Software includes code and libraries licensed to us by third parties, including open source software. See Third Party Code in Varkasa Products for additional provisions regarding our use of third-party code.
7 Hosted Services Terms.
7.1 Access to Hosted Services. Varkasa grants you a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in conformity with this Agreement, your applicable Scope of Use and the Documentation subject to the terms and conditions of this Agreement, If Varkasa offers a client software (e.g., a desktop or mobile application) for any Hosted Service, you should use such software solely with the Hosted Service, as per the terms and conditions of this Agreement. You acknowledge that our Hosted Services are online, subscription-based products and that we may make changes to the Hosted Services from time to time.
7.2 Subscription Terms and Renewals. Hosted Services are provided on a subscription basis for a set specified terms mentioned in your Order (“Subscription Term”). Unless or otherwise specified in your Order, all subscriptions will automatically get renewed for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account at my.Varkasa.com. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
7.3 Credentials. Ensuring that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and do not share such information with any unauthorized person will be your responsibility. User IDs are granted to an individual, named persons and should not be shared. You are responsible for any and all actions are taken using your accounts and passwords, and you agree to immediately notify Varkasa of any unauthorized use of which you become aware.
7.4 Your Data. The term,“Your Data” refers to any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to Varkasa. Subject to the terms of this Agreement, you hereby grant to Varkasa a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case to the extent necessary for providing the applicable Hosted Service to you and (b) for Hosted Services that enabling you to share Your Data or interacting with other persons, for distributing and publicly performing and displaying Your Data as you (or your Authorized Users) direct or enable through the Hosted Service. Varkasa may also access your account for instance in order to respond to your support requests.
7.5 Security. Varkasa implements security procedures to help protect Your Data from security attacks. However, you should understand that use of the Hosted Services necessarily involves the transmission of Your Data over networks which are not owned, operated or controlled by Varkasa, and we will not be responsible for any kind of Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures are foolproof and that transmissions of Your Data will always be secure or that unauthorized third parties cannot to defeat our security measures or those of our third-party service providers.
7.6 Storage Limits. There can be storage limits for a particular Hosted Service. These limits will be described in the services descriptions on our official websites or in the Documentation of the specific Hosted Service. Varkasa reserves all rights to charge for additional storage or overage fees as per the rates specified on our website. We may introduce new, or may modify existing, storage limits for the Hosted Services at any time in our discretion, with or without prior notice to you.
7.7 Responsibility for Your Data.
7.7.1 General. You should ensure that your use of Hosted Services and all Your Data is at all times in compliance with our Acceptable Use Policy and all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions for providing all Your Data to Varkasa and for granting the rights granted to Varkasa in this Agreement and (ii) Your Data and its transfer to and use by Varkasa as authorized by you under this Agreement will not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection, and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 7.5 (Security), Varkasa assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
7.7.2 Sensitive Data. You are agreeing that you will not submit to the Hosted Services (or use the Hosted Services to collect): (i) any personally identifiable information, except those which are necessary for the establishment of your Varkasa account; (ii) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or (iii) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((i) through (iii), collectively, “Sensitive Data”). You also acknowledge that Varkasa is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Hosted Services are not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, Varkasa has no liability under this Agreement for Sensitive Data.
7.7.3 Indemnity for Your Data. You will defend, indemnify and hold Varkasa harmless from and against any loss, cost, liability or damage, including attorneys’ fees, for which Varkasa becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriate the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Varkasa at your expense.
7.8 Removals and Suspension. Varkasa has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive following our guidelines for Reporting Copyright and Trademark Violations, we may (1) remove Your Data from the Hosted Services or (2) suspend your access to the Hosted Services. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Hosted Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Hosted Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Hosted Services as described in this section.
7.9 Deletion at End of Subscription Term. We will remove or delete Your Data within a reasonable period of time after the termination of your Subscription Term.
7.10 Service-Specific Terms. Some of our Hosted Services can be subject to additional terms specific to that service as set forth in our Service-Specific Terms.
8 Support and Maintenance. Varkasa will provide support and maintenance services for all the Products described in the Varkasa Support Policy (“Support and Maintenance”) during the period for which you have paid the applicable fee. Support and Maintenance will be subjected to the terms of the Varkasa Support Policy and will be provided at the support level and during the support term specified in your Order. The Varkasa Support Policy can be modified by Varkasa at any given point of time to reflect process improvements or changing practices. Support and Maintenance for Software include the access to New Releases, if and when available. You can use any New Releases which we are providing during a valid support term in the same way as you use Software, and New Releases will be included in the definition of Software in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available.
9 TAM and Training Services. We will be providing Technical Account Manager (TAM) and training services purchased in an Order as per the descriptions and conditions for those services set forth in the Order and as per the accompanying service descriptions or datasheets (“Ancillary Services”). Varkasa will retain all rights, titles and interest in and to any materials, deliverables, modifications, derivative works or developments related to each training services we provide (“Training Materials”). Any Training Materials provided to you should be used only in connection with the Products subject to the same use restrictions for the Products. If applicable, you should reimburse Varkasa the reasonable travel and lodging expenses as incurred. TAM services will be subject to the terms of the Varkasa Professional Services Agreement.
10 Returns and Financial Terms.
10.1 Return Policy. As a part of our commitment for the satisfaction of the customer, it is our customary business practice to allow customers for returning a Product within 30 days of payment for any reason or for no reason and for receiving a refund of the amount paid for the returned Product. In the context of Software, a return means that we will be disabling the license key that is used to operate the software. In the context of Hosted Services, a return means that we will be disabling the access to the Hosted Service. However, returns will not be accepted after the stipulated 30-day return period. You should understand that Varkasa may change this practice in the future in accordance with Section 26 (Changes to this Agreement).
10.2 Delivery. We will be delivering the applicable license keys (in the case of Software) or login instructions (in the case of Hosted Services) to the email addresses specified in your Order after receiving the payment of the applicable fees. Every delivery under this Agreement will be electronic. For the avoidance of doubt, you will be responsible for the installation of any Software, and you acknowledge that Varkasa has no further delivery obligation with respect to the Software once the license keys are delivered.
10.3 Payment. You agree to pay all fees as per the terms and conditions of each Order. Unless otherwise specified in the Order, you should pay all the amounts in U.S. dollars along with your Order. Other than as . All amounts are non-refundable, non-cancelable and non-creditable except those expressly set forth in Section 10.1 (Return Policy) and Section 20 (IP Indemnification by Varkasa). By making payments, you agree that you are not relying on the future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. In the case of addition of Authorized Users during your License Term or Subscription Term, we will be charging you for the increased number of Authorized Users pursuant to the then-currently applicable rates in your next billing cycle. You agree that we are allowed to bill your credit card for renewals, additional users, and unpaid fees, as applicable. When you purchase any Products through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller However, you agree that we will terminate your rights to use Products if we do not receive our corresponding payment from the Reseller.
10.4 Taxes. Your payments under this Agreement is excluding of any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Varkasa, you must pay to Varkasa the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Varkasa any such exemption information, and Varkasa will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
11 No-Charge Products. We may offer certain Products to you free of cost, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period decided by Varkasa. You should not use No-Charge Products for competitive analysis or any other similar purposes. We may terminate your right to use No-Charge Products at any given point of time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta products available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we will charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 11 (No-Charge Products). All information regarding the characteristics, features or performance of Beta Versions constitutes Varkasa’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
12 Restrictions. If not expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
13 Your Development of Add-Ons.
13.1 License to Developer Guides. On a regular basis, Varkasa may publish SDK’s or API’s and associated guidelines (“Developer Guides”) to allow you to develop plugins, extensions, add-ons or other software products or services that interoperate or are integrated with the Products (“Add-Ons”). You may distribute your Add-Ons to third parties, but only for those Products permitted by Varkasa, and strictly in accordance with the Developer Guides.
13.2 Conditions to Development of Add-Ons. Nevertheless anything in this Agreement to the contrary, Varkasa has no support, warranty, indemnification or other obligation or liability with respect to your Add-Ons or their combination, interaction or use with the Products. You shall indemnify, defend and hold Varkasa harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against us by a third party relating to your Add-Ons (including but not limited to any representations or warranties you make your Add-Ons) or your breach of this Section.
14 License Certifications and Audits. On our request, you are agreeing to provide a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. You are agreeing to allow us, or our authorized agent, to audit your use of the Products. We will be providing you with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit if the audit reveals that you have not exceeded the Scope of Use. You will be providing reasonable assistance, cooperation, and access to relevant information in the course of an audit at your own cost. If you exceed your Scope of Use, we will invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Varkasa at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third party licensors or assign the audit rights specified in this Section to such licensors.
15 Ownership and Feedback.Products are made available on a limited license or access basis, and no ownership right will be conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Varkasa and its licensors can retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Varkasa, including without limitation as they may incorporate Feedback (“Varkasa Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Varkasa, including sharing Your Modifications or in the course of receiving Support and Maintenance (“Feedback”). Varkasa may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Varkasa's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
16 Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any Varkasa Technology and any performance information relating to the Products shall be deemed Confidential Information of Varkasa without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.
17 Term and Termination. This Agreement is in effect for a period as long as you have a valid License Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to Varkasa, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Hosted Services subscriptions, or Support and Maintenance. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Varkasa Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. The following provisions will survive any termination or expiration of this Agreement: Sections 7.7.3 (Indemnity for Your Data), 10.3 (Payment), 10.4 (Taxes), 11 (No-Charge Products) (disclaimers and use restrictions only), 12 (Restrictions), 13.2 (Conditions to Development of Add-Ons), 14 (License Certifications and Audits), 15 (Ownership and Feedback), 16 (Confidentiality), 17 (Term and Termination), 18.2 (Warranty Disclaimer), 19 (Limitation of Liability), 21 (Third Party Vendor Products), 24 (Dispute Resolution), 25 (Export Restrictions), and 27 (General Provisions).
18 Warranty and Disclaimer.
18.1 Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
18.2 WARRANTY DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS IS,” AND Varkasa AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. Varkasa SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Varkasa. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER Varkasa NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
19 Limitation of Liability. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. THIS SECTION 19 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 12 (RESTRICTIONS) OR SECTION 2 (COMBINING THE PRODUCTS WITH OPEN SOURCE SOFTWARE) OF THIRD PARTY CODE IN Varkasa PRODUCTS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. The parties agree that the limitations specified in this Section 19 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
20 IP Indemnification by Varkasa. We will be defending you against any claim brought against you by a third party alleging that a Product, when used as authorized under this Agreement, infringes a the United States or European Union patent or registered copyright (a “Claim”), and we will be indemnifying you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Varkasa (including reasonable attorneys’ fees) arising out of a Claim, provided that we have received from you: (a) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim. If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund, in the case of Software, the license fee paid by you as reduced to reflect a three year straight-line depreciation from the license purchase date, and in the case of a Hosted Service, any prepaid amounts for the terminated portion of the Subscription Term. Varkasa’s indemnification obligations of Varkasa which are mentioned above will not apply: (1) if the total aggregate fees received by Varkasa with respect to your license to Software or subscription to Hosted Services in the 12 month period immediately preceding the claim is less than US$50,000; (2) if the Product is modified by any party other than Varkasa, but solely to the extent the alleged infringement is caused by such modification; (3) if the Product is used in combination with any non-Varkasa product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Products; (5) to any Claim arising as a result of (y) Your Data (or circumstances covered by your indemnification obligations in Section 7.7.3 (Indemnity for Your Data)) or (z) any third-party deliverables or components contained with the Products; (6) to any unsupported release of the Software; or (7) if you settle or make any admissions with respect to a claim without Varkasa’s prior written consent. THIS SECTION 20 (IP INDEMNIFICATION BY Varkasa) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY Varkasa UNDER THIS AGREEMENT
21 Third Party Vendor Products. Varkasa or third parties may from time to time make available to you (e.g., through the Varkasa Marketplace) third-party products or services, including but not limited to add-ons and plugins as well as implementation, customization, training, and other consulting services. If you procure any of these third-party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. Varkasa does not warrant or support products or services that do not own by Varkasa, whether or not they are designated by Varkasa as “verified” or otherwise, and disclaims all liability for such products or services. If you install or enable any third party products or services for use with Varkasa products, you acknowledge that Varkasa may allow the vendors of those products and services to access Your Data as required for the interoperation and support of such add-ons with the Varkasa products. Varkasa shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party add-on vendors.
22 Publicity Rights. We may identify you as a Varkasa customer in our promotional materials. You may request that we stop doing so by submitting an email to sales@Varkasa.com at any time. Please note that it may take us up to 30 days to process your request.
24 Export Restrictions. The Products are subject to the export restrictions enforced by the United States government and import restrictions enforced by certain other foreign governments, and you hereby agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) that none of Your Data is controlled under the US International Traffic in Arms Regulations. The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the United States government.
25 Changes to this Agreement. Varkasa is authorised to update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the billing or technical contact you designate in the applicable Order, posting on our blog, through your Varkasa account, or in the Product itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including canceling any terms set to auto-renew. With respect to No-Charge Products, accepting the updated Agreement is required for you to continue using the No-Charge Products. You may be required to click on the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.