Vanlo’s service enables companies to save money on all aspects of their businesses by joining their exclusive programs. Vanlo provides its services subject to the terms and conditions contained in these Terms of Service (this "Agreement"). By signing up for the service via www.vanlo.com or other mechanism provided you accept the terms of this Agreement.
Please review the terms of this Agreement carefully. Once accepted, this Agreement becomes a binding legal commitment. If you have any questions, you can reach the Vanlo team at [email protected].
"Customer" means the individual accepting the terms of this Agreement or the entity such individual represents, as applicable.
"Customer Application" means a software application that interfaces with the Vanlo Services and include any services (web-based or other services) made available by Customer through that application.
"Customer Data" means data and other information made available to Vanlo through the use of the Vanlo Services under this Agreement.
"Documentation" means all of the instructions, code samples, on-line help files and technical documentation made available by Vanlo for the Vanlo Services.
"End User" means an end user of a Customer Application.
"Rate Schedule" means the schedule of fees located in your custom pricing agreement, as such may be updated from time to time.
"Vanlo API" means an application programming interface for the Vanlo Services (or feature of the Vanlo Services) provided to Customer by Vanlo.
"Vanlo Properties" means the Vanlo website, Vanlo API, Documentation, and technical support made available by Vanlo to Customer in connection with the Vanlo Services.
"Vanlo Services" means the services provided by Vanlo to Customer under this Agreement, including all programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by Vanlo, including without limitation the Vanlo APIs and any software provided to Customer in connection with its use of the Vanlo Services.
2. Vanlo Customer Program and Services
2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Vanlo grants Customer a non-exclusive, revocable right to:
(a) Use the Documentation and Vanlo APIs as needed to develop Customer Applications;
(b) Offer and make the Vanlo Services available to End Users in connection with the use of each Customer Application, in accordance with the Documentation; and
(c) Otherwise use the Vanlo Properties solely in connection with and as necessary for Customer’s activities hereunder.
2.2 Data Storage. Customer acknowledges that data storage is not guaranteed by Vanlo and agrees that Vanlo not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to the loss or deletion of Customer Data.
2.3 Use of Vanlo Services. Customer will be solely responsible for all use (whether or not authorized) of the Vanlo Services and Documentation under its account, including for the quality and integrity of Customer Data and each Customer Application. Customer will take all reasonable precautions to prevent unauthorized access to or use of the Vanlo Services and notify Vanlo promptly of any such unauthorized access or use.
2.4 Restrictions. Except as expressly provided in Section 2.1 (Provision of Services), Customer will not transfer, resell, lease, license or otherwise make available the Vanlo Services to third parties. In any event, Customer will not offer the Vanlo Services on a standalone basis. Customer will ensure that the Vanlo Services provided hereunder are used in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement, Specifically and without limitation, Customer will ensure that Vanlo is entitled to use the Customer Data as needed to provide the Vanlo Services and will not use the Vanlo Services in any manner that violates any data protection statute, regulation, order or similar law. Except as allowed by applicable law, with respect to any software provided to Customer hereunder, Customer will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code of such software.
2.5 Changes to Service. Customer acknowledges that the features and functions of the Vanlo Services, including, the Vanlo APIs, may change over time. It is Customer’s responsibility to ensure that calls or requests Customer makes to the Vanlo Services are compatible with then-current Vanlo APIs. Although Vanlo endeavors to avoid changes to the Vanlo APIs that are not backwards compatible, if any such changes become necessary Vanlo will use reasonable efforts to notify Customer at least 30 days prior to implementation.
3.1 Fees. Customer agrees to pay the usage fees set forth in the Rate Schedule.
3.2 Net of Taxes. Unless otherwise stated in the Rate Schedule, all applicable federal, state or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees and surcharges, whether charged to or against Vanlo, will be payable by Customer. Customer will not withhold any taxes from any amounts due to Vanlo.
3.3 Disputes. Customer will notify Vanlo in writing in the event Customer disputes any portion of any fees paid or payable by Customer under this Agreement. Customer will provide such notice to Vanlo within 30 days of the applicable charge and the parties will work together to resolve the applicable dispute promptly. Upon expiration of the 30 day period described in this Section, Customer will not be entitled to dispute any fees paid or payable by Customer.
3.4 Suspension. Customer acknowledges that, in the event Customer’s usage exceeds the amounts prepaid by Customer or any other failure to pay amounts due as described in this Section 3, Vanlo will be entitled suspend the Vanlo Services associated with Customer's account without prior notice to Customer. Vanlo will not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to any suspension of Vanlo Services pursuant to this Section 3.
4. Ownership And Confidentiality
4.1 Ownership Rights. As between the parties, Vanlo exclusively owns and reserves all right, title and interest in and to the Vanlo Services, Vanlo Properties and Vanlo's Confidential Information. As between the parties, Customer exclusively owns and reserves all right, title and interest in and to the Customer Data, Customer Applications and Customer's Confidential Information.
4.2 Use of Licensor Marks. Subject to the terms of this Agreement, each party (the "Licensor") grants to the other party (the "Licensee") the right to use and display Licensor's name and marks (the "Licensor Marks") on its website and in other promotional materials solely in connection with its activities under this Agreement. All such use of the Licensor Marks will be in accordance with the Licensor's usage guidelines and will inure to the benefit of Licensor. Licensee will not use, register or take other action with respect to any of the Licensor Marks, except to the extent authorized in advance writing by Licensor. In its efforts, Licensee will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. Licensee will not, at any time, misrepresent its relationship with Licensor. Licensee and will not present itself as an affiliate or other legal agent of Licensor. The license described in this Section will terminate automatically in the event of any termination of this Agreement.
(a) Definition. "Confidential Information" means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. "Confidential Information" does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party's rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
(b) Use and Disclosure. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.
4.4 Injunctive Relief. The Parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.
VANLO HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. VANLO’S SERVICES AND PROPERTIES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
6. Exclusion of Damages; Limitation Of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL Vanlo BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF VANLO HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL VANLO BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
7. Indemnification; Disputes
7.1 Indemnification by Customer. Customer will defend, indemnify and hold Vanlo harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action ("Claim") arising out of or relating to Customer's activities under this Agreement or Customer's acts or omissions in connection with the provision of the Customer Application, including without limitation, any intellectual property claims relating to the Customer Application and any violation by Customer or its End Users of the terms of Section 2.4 (Restrictions). Vanlo will cooperate as fully as reasonably required in the defense of any Claim, at Customer’s expense. Vanlo reserves the right, at Customer’s expense, to retain separate counsel for Vanlo or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any matter in which Customer is a named party and that is otherwise subject to indemnification under this Section. Customer will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against Vanlo in connection with any Claim. Customer will also be liable to Vanlo for any costs and attorneys’ fees Vanlo incurs to successfully establish or enforce its right to indemnification under this Section.
7.2 Governing Law. Except as provided in Section 8.3, this Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
7.3 Arbitration. Except as provided in this Section, any dispute arising under this Agreement will be determined by binding arbitration in San Francisco, California in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§1-16, as amended (the "Federal Arbitration Act").
(a) Details. The arbitration will be governed by the then-current terms of the Commercial Arbitration Rules of the American Arbitration Association (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. The award of the arbitrator will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify the terms of this Agreement. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction. Each party will be entitled to obtain a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 8.3 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
(b) Injunctive Relief. Notwithstanding any provision in this Section to the contrary, Vanlo may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action you take or threaten to take in violation of the terms of this Agreement.
(c) Individual Basis Only. It is the intent of the parties to require any claims or controversies between them to be submitted to arbitration on an individual basis only. CLAIMS SUBJECT TO THIS ARBITRATION PROVISION MAY NOT BE JOINED OR CONSOLIDATED IN ARBITRATION WITH ANY CLAIM OF ANY OTHER PERSON OR BE ARBITRATED ON A CLASS BASIS, IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ON BEHALF OF ANY OTHER PERSON, UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING.
8.1 Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, without Vanlo’s prior written consent. Any attempted assignment, delegation, or transfer in violation hereof will be null and void.
8.2 Amendment; Waiver. No modification to this Agreement, nor any waiver of any rights, will be effective unless consented to in a writing signed by both parties. Any waiver of any breach or default by either party will not constitute a waiver of any other right or any subsequent breach or default. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
8.3 Relationship. Each party is an independent contractor in the performance of each and every part of this Agreement. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of this Agreement. Customer does not have the authority to commit Vanlo in any way and will not attempt to do so or imply that it has the right to do so.
8.4 Unenforceability. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect.
8.5 Notices. Any notice required or permitted to be given hereunder will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, or by overnight delivery. Vanlo may use Customer’s current address, as provided by Customer in connection with billing and payment activities. Vanlo’s current address may be found on its website.
8.6 Other Terms. This Agreement supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Vanlo, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
8.7 Force Majeure. A party is not liable under this Agreement for non-performance caused by events or conditions beyond that party's control (each, a "Force Majeure Event") if the party makes reasonable efforts to perform. Either party may terminate this Agreement on written notice to the other party if the Force Majeure Event continues more than 30 days.
8.8 Government Terms. Vanlo provides the Vanlo Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Vanlo Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Vanlo Services were developed fully at private expense.