VELA APP INC. TERMS OF SERVICE
Effective Date: November 5, 2012
1. Acceptance of Terms of Service. These Terms of Service (the “TOS”) are an agreement between you and Vela App Inc. Inc. (“Vela App Inc.”, "us", "our" or "we") and set forth the legally binding terms for (1) your use of www.velaapp.com, any other websites or other interactive properties owned by Vela App Inc., including, without limitation, our mobile websites and applications, and any successors to any of the foregoing (collectively and individually, the “Site”), (2) your download, installation and use of any of our applications, software, tools, or scripts, including any updates thereof that we make available to you, and any services made available through such applications, software, tools, or scripts (collectively, the “Vela App ;” and together with the Site, the “Service"). YOU MAY NOT USE OR ACCESS THE SERVICE UNTIL YOU HAVE ACCEPTED THIS TOS WITHOUT MODIFICATION. We have tried to avoid unnecessary legal verbiage and hope that you understand that we are simply trying to protect our rights in order to provide you with access to the content and services available on the Service. By accessing the Site or using the Vela App , you represent and warrant that you have the right, authority and capacity to enter into this TOS and to abide by this TOS whether or not you become a subscriber to any Vela App Inc. goods or services. Your use of the Service constitutes your acceptance of this TOS. If you do not agree with any of this TOS’s terms and conditions, please do not use the Service or any portion thereof.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, BECAUSE THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WOULD BE RESOLVED.
2. Updates and Supplements to TOS. Vela App Inc. reserves the right to update or change this TOS at any time by posting the most current version of the TOS on the Site located at www.velaapp.com (or any successor website). All such changes in the TOS will be effective upon posting on the Site. You are responsible for regularly reviewing this TOS and any changes made to this TOS. You can review the most current version of this TOS at any time at www.velapp.com. If you do not agree to any terms of this TOS, or any future changes made by Vela App Inc., your sole and exclusive remedy is to stop using the Service. By continuing to use the Service after Vela App Inc. has posted a modification to the TOS as set forth above, you agree to be bound by the modified TOS. Special terms or rules may apply to some services offered on the Site or Vela App , such as rules for particular promotions, applications or other features or activities. Any such terms are in addition to this TOS. If there is a conflict or inconsistency between this TOS and any other rules, restrictions, limitations, terms and/or conditions that may be posted at various points in the Service or otherwise communicated to users of the Service, we will determine which rules, restrictions, limitations, terms and/or conditions will control and prevail in our sole discretion, and you specifically waive any right to challenge or dispute such determination.
4. Age Requirements. The Service is intended solely for users who are at least 13 years old. If you are under 13, please do not submit any personally identifiable information to the Service. Users who are at least 13 years old but under 18 years old must have legal parental or guardian consent to use the Service. Any registration by, use of, or access to the Service by anyone under 13 years old, or by anyone under 18 years old who does not have legal parental or guardian consent to use the Service, is unauthorized, unlicensed and in violation of this Agreement. By using the Service, you represent, warrant, and covenant that (a) all information you submit to us or the Service, including registration information, is truthful and accurate and (b) you are at least 13 years old, and, if under 18 years old, that you have obtained legal parental or guardian consent to enter into this Agreement, or that you are at least 18 years old and that you agree to and abide by all of the terms and conditions of this Agreement. Your use of the Service may be suspended without prior notice if we believe that you are under 13 years of age, have misrepresented your age, or have otherwise violated the terms of this Agreement.
5. Term; Termination. This TOS will remain in full force and effect while you use the Services. Without prejudice to any other of its rights, Vela App Inc. may terminate this TOS or suspend or terminate your access to the Site or Vela App , in whole or in part, for any reason or no reason, at any time, immediately and without notice. You may terminate this TOS at any time for any reason or no reason by ceasing use of all Sites and uninstalling and destroying all copies of Vela App in your possession or control. You understand and agree that your stopping the use of any Service is your sole right and remedy with respect to any dispute with Vela App Inc.. If this TOS is terminated for any reason, the provisions in Sections 9, 11-20, 22, and 23 will survive any such termination.
6. Electronic Form/Communications. By accessing any portion of the Service, you consent to having this TOS provided to you in electronic form and receiving communications from us electronically. We may communicate with you by postal mail, e-mail, or by posting notices on the Sites. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
7. Vela App
(a) Functionality; Uninstall. You may install Vela App on certain mobile phones, which are subject to change. The Vela App is not compatible with all mobile phones. Furthermore, you acknowledge that the fact that the Vela App is compatible with a mobile phone in no way constitutes an endorsement, authorization, sponsorship or affiliation by or with the provider of such mobile phone. If you uninstall the Vela App , we may still retain certain information associated with your account for analytical purposes and recordkeeping integrity, as well as to prevent fraud, resolve disputes, enforce this TOS and other policies, and take actions we deem necessary due to technical and legal requirements and constraints related to the security, integrity and operation of the Vela App .
(1) Registration Data. During the download and installation of the Vela App , you will be required to register with by providing Vela App Inc. with certain registration information, which may include your name, user name, e-mail address, address, zip code, mobile phone number, birthday, gender, ethnicity, language, other personal preferences, password, and other information (collectively, the “Registration Data”). When registering, you may not (a) use a name subject to the rights of any other person without authorization; (b) select or use a user name of another person with the intent to impersonate that person; or (c) use a user name that Vela App Inc., in its sole discretion, deems inappropriate or offensive. You agree to (x) provide true, accurate, current and complete Registration Data and (y) maintain and promptly update all Registration Data to keep it true, accurate, current and complete. You will maintain a valid e-mail address at all times. Vela App Inc. will be entitled to monitor your password and, at its discretion, require you to change it. If you use a password that Vela App Inc. considers insecure, Vela App Inc. will be entitled to require the password to be changed and/or terminate your Account.
(3) Communications to Members. As a registered user, you understand and agree that you may receive certain communications from Vela App Inc. and its business partners, such as service announcements, administrative messages, newsletters, information about promotions and contests, and advertising. These Vela App Inc. communications may be in the form of e-mails, letters to your physical address, text messages or other electronic means.
(4) User Account, Password, and Security. You are solely responsible for maintaining the confidentiality of your user name, password and Vela App Inc. account and for any and all use of your account by you or any people using the Service under your user name and password. You agree to immediately notify Vela App Inc. of any unauthorized use of your account or any other breach of security. Vela App Inc. will not be liable for any loss or damage arising from your failure to comply with this Section.
(c) License; Scope. Subject to the terms and conditions of this TOS, we grant you a non-exclusive, revocable, limited license, to (a) download and install the object code of the Vela App on a single mobile device, or other device, as applicable, that you own or control (each, a “Device”), and (b) use the Vela App that you download and install solely for your personal, non-commercial purposes. For clarity, the Vela App is being licensed, not sold, to you. We reserve all rights not expressly granted to you. This license does not allow you to use the Vela App on any mobile device or other device that you do not own or control, and you may not distribute or make the Vela App available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Vela App . You may not copy (except as expressly permitted by this license), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Vela App or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Vela App ). Any attempt to do so is a violation of the rights of Vela App Inc. and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by us that replace and/or supplement the original Vela App , unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
(d) Termination. Your rights under the license to the Vela App will terminate automatically without notice from Vela App Inc. if you fail to comply with any term(s) of the license. Upon termination of the license, you will cease all use of the Vela App , and delete all copies, full or partial, of the Vela App .
(e) If you elect to download the free version of the Vela App , you understand and agree that the Vela App will include advertisements and that these advertisements are necessary for Vela App Inc. to provide the Vela App to you.
8. Support Services. Vela App Inc. may, in its sole discretion, provide you with support services related to the Service or any portion thereof (“Support Services”). However, Vela App Inc. is not required to provide Support Services to you. No failure to provide, or to continue to provide, Support Services will be a default of Vela App Inc. under this TOS.
9. User Content
(a) Responsibility. All information, data, text, software, music, sound, photographs, graphics, video, messages, links to websites, or other materials posted by you anywhere on the Service (such materials, as posted by you or other users, collectively, the “User Content”) are your sole responsibility. This means that you, and not Vela App Inc., are entirely responsible for all User Content that you upload, post, transmit or otherwise make available on the Service, including personally identifying information. When you post User Content on the Service, your user name and regional location may be visible to other users and attached to the User Content that you posted. Please be aware that if you post personal information online that is accessible to other users, such as your physical address or e-mail address, you may receive unsolicited messages from other users. Vela App Inc. does not control the User Content posted by you or other users on the Service and, as such, does not guarantee the accuracy, integrity or quality of such User Content. By using the Service, you may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will Vela App Inc. be liable in any way for any User Content, including, without limitation, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, transmitted or otherwise made available on the Service. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. In addition, except as provided in this TOS, you may not copy, modify, translate, reproduce, publish, broadcast, transmit, distribute, perform, display, license, sell, or create derivative works from any User Content or any other content or materials appearing on or through the Service.
(b) Monitoring and Removal. Vela App Inc. reserves the right (without the obligation) to monitor, pre-screen, reject, remove, or edit any User Content for any reason in its sole discretion and without notice. Vela App Inc. assumes no responsibility for monitoring the Service for inappropriate User Content or conduct. If at any time Vela App Inc. chooses, in its sole discretion, to monitor the Service, Vela App Inc. nonetheless does not assume any responsibility for the User Content, does not have any obligation to modify or remove any inappropriate User Content, and is not responsible for the conduct of any user submitting User Content.
(c) Prohibited Content. You may not, and you may not allow others to, post, upload, transmit or otherwise make available on the Service any User Content that:
(1) is patently offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(2) harasses or advocates harassment of another person;
(3) exploits people in a sexual or violent manner;
(4) contains nudity, sexually suggestive imagery, excessive violence, or offensive subject matter or contains a link to an adult website;
(5) solicits personal information from anyone under 18 or otherwise harms minors in any way;
(6) publicly posts information that poses or creates a privacy or security risk to any person;
(7) is false or misleading, promotes illegal activities, or is abusive, threatening, obscene, defamatory or libelous;
(8) constitutes or promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files;
(9) constitutes unsolicited or unauthorized advertising or solicitation, promotional materials, “junk mail,” “chain letters,” instant messaging, “spimming,” “spamming,” or “pyramid schemes”;
(10) contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
(11) furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, without limitation, making or buying illegal weapons, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices, violating someone's privacy, or providing or creating computer viruses;
(12) solicits passwords or personal identifying information for commercial or unlawful purposes from other users;
(13) involves commercial activities and/or sales without prior written consent from Vela App Inc. such as contests, sweepstakes, barter, advertising, or pyramid schemes;
(14) includes a photograph or video of another person that you have posted without that person's consent;
(15) is misleading or deceptive, including falsely stating or otherwise misrepresenting your affiliation with a person or entity;
(16) infringes or violates any patent, trademark, trade secret, copyright, privacy right, publicity right, contract right, or any other rights of any third-party;
(17) you did not create or that you do not have permission to post, transmit or share;
(18) you do not have a right to post, transmit or share under any law or under contractual or fiduciary relationships; or
(19) contains software viruses, worms, spyware, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network.
Vela App Inc. reserves the right to investigate and take any action it deems appropriate against anyone who, in Vela App Inc.'s sole discretion, posts User Content that is offensive or inappropriate or otherwise violates this Section 9(c) or any other parts of this TOS, including without limitation, by removing the offending User Content from the Service and terminating or suspending any user’s right to use the Service.
(d) License. Vela App Inc. does not claim any ownership rights in your User Content. After posting User Content to the Service, you will continue to retain all ownership rights in such User Content and have the right to use such User Content in any way you choose outside of the Service. By posting User Content on the Service, you automatically grant to Vela App Inc., and its successors and assigns, employees, licensees, agents, and representatives, a perpetual, irrevocable, worldwide, royalty-free, transferable, and non-exclusive license (with the right to sublicense) to reproduce, distribute, perform, modify, edit, display, adapt, create derivative works from, and market and promote the User Content for any commercial or non-commercial purposes, and in any medium now existing or hereinafter developed, and to use your user name and any personal information you submit with or contained within the User Content, without your prior approval or the payment of any compensation and without notice. You also grant each user of the Service a non-exclusive license to access your User Content as permitted through the functionality of the Servicer and under this TOS. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in the User Content you submit. Without limiting the generality of the foregoing, the license in this Section 9(d) will apply to all User Content, including User Content that has been removed from the Service by you or Vela App Inc.. Except as expressly stated in this TOS, no compensation will be paid to you with respect to Vela App Inc.'s or its sublicensees’ use of your User Content pursuant to this Section 9(d).
(e) Representations, Warranties, and Covenants. You represent, warrant, and covenant that (a) you own the User Content posted by you on the Service or otherwise have the right to grant the rights and licenses set forth in Section 9(d); and (b) your posting or transmitting of User Content on or through the Service does not, and will not, infringe, violate or misappropriate the privacy rights, publicity rights, copyrights, trademark rights, patent rights, trade secret rights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any User Content posted by you on the Service.
(f) No Confidentiality. You acknowledge and agree that any User Content that you post in the Service is public and not private communications, and that you have no expectation of privacy concerning your User Content. You acknowledge that personal information that you communicate on the Service may be seen and used by Vela App Inc. and others and result in unsolicited communications; therefore, we strongly encourage you not to disclose any personal information about yourself when you post User Content on the Service. Vela App Inc. is not responsible for information that you choose to communicate to other users on the Service, or for the actions of other users.
10. Fees. If you select the paid version of the Vela App , you will be charged a fee by our distribution partners for downloading the Vela App and for purchasing any premium services. If you select the free version of Vela App , you will not be charged a fee for downloading the Vela App , but your version of the Vela App will contain advertising. All payments are non-refundable and final. You acknowledge that Vela App Inc. reserves the right to charge fees for certain services and to change its fee schedule as it deems appropriate. All fees charged by Vela App Inc. or any of our distribution partners are for the Vela App interface, services, and technologies, not for music content provide by Rhapsody Music Service, Rdio, Spotify, or any other music library. If your access to any portion of the Service is terminated in accordance with this Agreement, you will not be entitled to a refund of any unused portion of any fees paid by you to Vela App Inc. or its distribution partners. Vela App Inc. is not responsible for the collection or return of any fees charged by Third-Party Sites. Such fees are governed by the terms and conditions of such Third-Party Sites.
11. Use of the Service.
(a) General Limitations. You agree not to modify, rent, lease, loan, reproduce, duplicate, copy, sell, distribute, otherwise exploit, or create derivative works based on, the Service or any portion thereof or any Content therein (other than User Content that you own and have posted on the Service) without Vela App Inc.’s prior written consent.
(b) Availability and Use Outside of the United States. The Service is controlled from facilities in the United States. Vela App Inc. makes no representations that the Service or any portion thereof is appropriate or available for use in other locations. Those who access or use the Service or any portion thereof from other jurisdictions do so at their own volition and are responsible for compliance with local law.
(c) Carrier Charges and Restrictions. You are responsible for paying carrier data, messaging, and other fees resulting from your access of any Site or use of any Vela App on your computer, mobile phone or other device. Standard data and messaging charges, fees, and taxes from your carrier may apply. In addition, downloading, installing, or using Vela App may be prohibited or restricted by your carrier, and not all Vela App may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Vela App is available for your device and what restrictions, if any, may be applicable to your use of such Vela App . By using Vela App , you agree that we may communicate with you regarding Vela App Inc. and the Service by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Vela App may be communicated to us. If you change or deactivate your mobile telephone number, you agree to promptly update your Vela App Inc. account information to ensure that your messages are not sent to the person that acquires your old number.
(d) Personal Use. The Service and any portion thereof, including any Content contained therein, are intended for your personal, noncommercial use in accordance with this TOS. You agree that you will not, unless specifically permitted by us (i) copy, display or distribute any part of the Content or Service, in any medium, without Vela App Inc.'s prior written consent, or (ii) alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose. You will not use any automated devices, such as spiders, robots or data mining techniques, to catalog, download, store, reproduce, or distribute Content available on the Service or to manipulate the Service in any manner not consistent with its intended purpose(s).
(e) No Interference. You will take no action to interfere with, interrupt, destroy or limit the functionality of the Service or any computer software or hardware or telecommunications equipment. You may not use the Service in any manner that could damage, disable, overburden, or impair any Vela App Inc. server, or the network(s) connected to any Vela App Inc. server, or interfere with any other party’s use and enjoyment of any portion of the Service. You may not attempt to gain unauthorized access to any portion of the Service, other accounts, computer systems or networks connected to any Vela App Inc. server or to any of portion of the Service, through hacking, cracking, distribution of counterfeit software, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You may not reverse engineer, decompile or disassemble any software accessed through the Service, including any proprietary communications protocol used by Vela App Inc..
(f) Accurate Information. For purposes of identification and billing, you agree to provide Vela App Inc. or its designees with accurate, complete, and updated information required when subscribing or making any other purchase, including your name, email, delivery address, and applicable payment information (e.g., credit/debit card number, email address, and expiration date) (collectively, "Billing Information") and provide Vela App Inc., its desginees, and their respective third party payment processors express authorization to charge said fees at the time of purchase or renewal. Failure to comply with this provision (including without limitation falsification of any Billing Information) may, at Vela App Inc.'s option, result in immediate suspension or termination of your right to use the Service.
(g) Cancelation; Service Issues. If you want to cancel your Service, you should uninstall the Vela Sofwtware. If you have another issue regarding the Service, you can go to www.velaapp.com and follow the instructions set forth on those pages or you can e-mail Vela App Inc. at email@example.com.
(h) Promotions, Contests and Sweepstakes. You agree not to discuss the mechanics of sweepstakes, contests, or similar promotions available on or through the Service, or attempt to manipulate, corrupt or otherwise affect the outcome of, any such promotions, or post, upload, transmit, send, or otherwise make available on or through the Service any content that may or is intended to enable, authorize, instruct, encourage, assist, suggest, inform, or promote activities that may subvert or not comply with the rules, restrictions, and/or limitations applicable to such promotion.
12. Third Party Websites and Materials. You will be able to access third party services and websites on the Service (collectively, “Third Party Sites”). In addition, the Service may display, include, or make available content, data, information, applications or materials from third parties (“Third Party Materials”). Because Vela App Inc. has no control over such Third Party Sites and Third Party Materials, you acknowledge and agree that (a) Vela App Inc. is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Sites or Third Party Materials; and (b) all purchases and other similar transactions that are facilitated through your use of the Service are transactions between you and the applicable third-party and may be subject to additional terms, conditions and restrictions of such third-parties. We advise you to read such purchase offers and website terms and conditions and all policies relating to the purchases, including policies regarding sales, returns, warranties, and privacy, before making a purchase. Vela App Inc. does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any Third Party Materials or Third Party Sites, the privacy practices of such third parties, or for any other materials, products, or services of third parties. Third Party Materials and links to Third Party Sites are provided solely as a convenience to you. You further acknowledge and agree that Vela App Inc. will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content, goods or services available on or through Third Party Materials or Third Party Sites.
13. Ownership. The Service and all material published in the Service by or on behalf of Vela App Inc. (which excludes User Content), including, without limitation, text, photographs, video, graphics, music, images, animations, audio, text, “applets” incorporated into the software data, sounds, messages, comments, ratings, trademarks, service marks, trade names, and trade dress, and other materials in the Service (collectively, the “Content”), is owned by Vela App Inc. or its licensors and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. In addition, Vela App Inc. owns a copyright in the selection, coordination, arrangement and enhancement of such Content and a copyright in the Site and the Vela App . All trademarks, service marks, trade names, and trade dress appearing on the Service or any portion thereof (collectively, “Marks”) are proprietary to Vela App Inc. and/or our licensors or licensees. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any of the Marks, the Content, the Site, or the Vela App , in whole or in part, without Vela App Inc.'s prior written consent. You may download Content for your personal, non-commercial use only as provided in this TOS, or as may be otherwise permitted by Vela App Inc. from time to time, provided that you do not alter any such Content and you keep intact all copyright and other proprietary notices and you do not use the Content in any way that would express or imply an association between you and the products and services of Vela App Inc. or any third party. You acknowledge that you do not acquire any ownership rights in any Content downloaded from the Service. Copying or storing of Content for other than personal use is expressly prohibited without prior permission from us or the owner of the Content. You may not frame or utilize framing techniques to enclose any Mark or other proprietary information (including images, text, page layout, or form) of Vela App Inc. without express written consent. You may not use any Meta tags or any other "hidden text" utilizing any Vela App Inc. Mark without the express written consent of Vela App Inc.. You may not use any Vela App Inc. Mark or other proprietary graphic or trademark as part of the link without express written permission. If you engage in any uses not permitted by this TOS, all permissions or licenses granted by Vela App Inc. in this TOS shall automatically terminate. Except for allowing you to use the Service for your personal use as set forth in the paragraph above, when you use the Service, you are not receiving a license or any other rights from Vela App Inc., including intellectual property or other proprietary rights of Vela App Inc.. You understand that you have no rights to any part of the Service or any other Vela App Inc. property except as we indicate in this TOS.
14. Compliance with Laws. You agree not to use the Service, in whole or in part, for any purpose that is unlawful or prohibited by this Agreement or for any unauthorized commercial purpose. The Service is subject to, and you agree that you will at all times comply with, all local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to your use of the Service.
15. Access to Services. Vela App Inc. reserves the right to perform regular or planned or unplanned maintenance to the Service due to technology improvements or bugs, and you may or may not be notified of these changes before they occur. Vela App Inc. also reserves the right to change, modify, discontinue, disable, suspend or abandon the Service or any portion thereof at any time for any reason or for no reason with or without notice to you, and it will not be liable to you or any third party as a result of such action by Vela App Inc.. Vela App Inc. reserves the right to add features or functions to the Service. When installed on your computer, the Vela App periodically communicates with our servers to request automatic updates when we release a new version of the Vela App or when we make new features available.
16. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE OR ANY PORTION THEREOF IS AT YOUR SOLE RISK (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA OR OTHER DAMAGE TO YOUR COMPUTER OR OTHER DEVICE YOU EXPERIENCE FROM USING THE SERVICE) AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS,” “WHERE-IS,” AND “WHERE AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. VELA APP INC. HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE AND ANY PORTION THEREOF, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. VELA APP INC. DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PROVIDED BY, THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE OR ANY PORTION THEREOF WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VELA APP INC. OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. IF THE SERVICE OR ANY PORTION THEREOF IS DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. IF YOU ARE DISSATISFIED WITH ANY OF THE CONTENT CONTAINED IN THE SERVICE OR WITH THE TERMS OF THIS TOS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICE AND THE CONTENT, AS APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
17. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VELA APP INC. OR ITS AFFILIATES BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING CLAIMS THROUGH YOU) FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, UNAUTHORIZED ACCESS TO AND/OR TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SERVICE, EVEN IF VELA APP INC. HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER SUCH CLAIMS OF DAMAGES MAY HAVE BEEN SUSTAINED ANYWHERE IN THE WORLD IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE UNDER ANY THEORY OR CAUSE OF ACTION. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. IF ANY PART OF THESE LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN VELA APP INC.’S AGGREGATE LIABILITY FOR ALL CLAIMS BY YOU WILL NOT EXCEED TWENTY UNITED STATES DOLLARS (USD $20). THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THIS TOS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
18. Indemnity. You hereby agree to indemnify, defend and hold harmless Vela App Inc. and its subsidiaries, affiliates, and suppliers, and each of their respective shareholders, parents, subsidiaries, affiliates, officers, directors, employees, agents and advisors, from and against any and all losses, liabilities, claims (including claims without legal merit or brought in bad faith), demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, executions and liens, including reasonable attorneys' fees and costs (whether brought by third-parties or otherwise) relating to or arising out of (a) your use of the Service or any part thereof; (b) your breach of this TOS or your violation of applicable law; (c) any User Content posted or transmitted by you on or through the Service; (d) your acts and omissions; and (e) your negligence, intentional misconduct or violation or alleged violation of any rights of a third-party. Vela App Inc. reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and in such event, you will have no further obligation to provide indemnification for such matter; provided, however, that you will use best efforts to cooperate with Vela App Inc. in such defense. To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of Vela App Inc. or any of their respective suppliers, affiliates, partners, subsidiaries and employees.
19. Export Restrictions. You may not use or otherwise export or re-export the Vela App except as authorized by United States law and the laws of the jurisdiction in which the Vela App was obtained. In particular, but without limitation, the Vela App may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Vela App , you represent and warrant that you are not located in any such country and you are not on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
20. Commercial Items. The Vela App and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software 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 Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
21. Information for California Residents. Under California Civil Code Section 1789.3, users located in California are entitled to the following consumer rights information: (a) The Service is provided by Vela App Inc. Inc. located at 26895 Aliso Creek Rd., Ste B846, Aliso Viejo, CA, 92656, Phone: (949)328-4689. (b) You may contact Vela App Inc. at the address in subsection (a) immediately above with complaints or to request additional information about the Service. Also, the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at (916) 445-1254.
22. Digital Millennium Copyright Act ("DMCA") Notice. Vela App Inc. has registered an agent with the United States Copyright Office in accordance with the terms of the Digital Millennium Copyright Act (the "Act") and avails itself of the protections under the Act. Vela App Inc. has adopted and implemented a policy for addressing claims of copyright infringement, and for the termination, in appropriate circumstances as determined by us in our sole discretion, of users who are infringers of copyright. Furthermore, we reserve the right to terminate, discontinue, suspend and/or restrict the ability to visit and/or use the Service or remove, edit, erase or disable any User Content on the Service that allegedly infringes another person's copyright. It is out policy to terminate the access of repeat offenders. We are under no obligation to, and do not, scan content posted for any violations of third party rights; however, we respect the copyright interests of others and it is our policy not to permit materials known by us to infringe another party's copyright to remain on the Service. If you believe any materials on the Service infringe a copyright, you should provide us with written notice that at a minimum contains:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the Service;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and,
6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Vela App Inc.’s Copyright designated DMCA Agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
Attn: Legal/DMCA Complaints
Vela App Inc. Inc.
26895 Aliso Creek Rd., Ste B846,
Aliso Viejo, CA, 92656
By email: firstname.lastname@example.org
By filing a complaint under this Section 22, you agree that the substance of your complaint will be deemed to constitute a representation made under penalty of perjury. In addition, you agree, at your own expense, to defend and indemnify Vela App Inc. and hold Vela App Inc. harmless against all claims that may be asserted against us, and all losses incurred, as a result of your complaint and/or our response to it. You waive any and all claims or remedies that you might otherwise be able to assert against Vela App Inc. under any theory of law (including, but not limited to, intellectual property laws) that arise out of or relate in any way to our response, or failure to respond, to a complaint.
You agree that Vela App Inc. has the right (but not the obligation) to investigate any complaint received. By reserving this right, we do not undertake any responsibility in fact to investigate complaints or to remove, disable, or restrict access to or the availability of User Content. We support free speech on the Internet and therefore will not act on complaints that we believe, in our subjective judgment, to be deficient. If you believe that User Content remains on the Service that violates your rights, your sole remedy will be against the person(s) responsible for posting or storing it, not against us.
23. Miscellaneous Provisions. This TOS and the policies incorporated herein are the entire agreement between you and Vela App Inc.. They supersede any and all prior or contemporaneous agreements between you and Vela App Inc. relating to your use of the Service. This TOS, and any rights and licenses granted hereunder, may not be assigned or transferred by you, but may be assigned by Vela App Inc. without restriction. If the application of any provision of this TOS to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this TOS will not in any way be affected or impaired thereby and (ii) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable. You agree that, except as otherwise expressly provided in this TOS, there will be no third party beneficiaries to this TOS. The failure of Vela App Inc. to partially or fully exercise any rights, or the waiver by Vela App Inc. of any breach of this TOS by you, will not prevent a subsequent exercise of such right by Vela App Inc. or be deemed a waiver by Vela App Inc. of any subsequent breach by you of the same or any other term of this TOS. This TOS will be governed by and construed in accordance with the laws of the State of California, without giving effect to any contrary choice of law rules, and applicable United States federal law. Your use of the Service may also be subject to other local, state, national, or international laws. Any action or proceeding brought by either party to this TOS against the other party to this TOS that seeks to enforce any provision of, or based on any right arising out of, this TOS will be brought exclusively in Los Angeles County, California. Each of the parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. YOU HEREBY WAIVE ANY RIGHT YOU MIGHT HAVE TO RESOLVE ANY DISPUTE ON A CLASS ACTION BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR OTHER PERSONS SIMILARLY SITUATED, AND YOU WAIVE YOUR RIGHT TO TRIAL BY JURY. Any cause of action you may have with respect to the Service must be commenced within one year after the claim or cause of action arises or such claim or cause of action will be barred. This TOS will be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under this TOS. Headings in this TOS are for convenience of reference only and will not affect the interpretation or construction of This TOS. The rights and remedies of Vela App Inc. under this TOS and any other applicable agreement between you and Vela App Inc. will be cumulative, and the exercise of any such right or remedy will not limit Vela App Inc.'s right to exercise any other right or remedy.
24. Contact Information. Please contact us with any questions by emailing us at email@example.com. I HAVE READ THESE TERMS OF SERVICE, AND I AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.
4841-6235-7008, v. 2-6235-7008, v. 1-6235-7008, v. 1