Terms and Conditions
PLEASE READ THESE TERMS AND CONDITIONS (THE “TERMS AND CONDITIONS”) CAREFULLY BEFORE USING VISUALCUE’S PRODUCT. BY USING VISUALCUE’S PRODUCT, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, DO NOT USE VISUALCUE’S PRODUCT.
- As used herein, the term “you” shall refer to the person or entity (the “Customer”) who has entered into a Subscription Agreement (“Subscription Agreement”) with VisualCue as well as any individual authorized by the Customer to use VisualCue’s Product on the Customer’s behalf.
- The VisualCue software and documentation (collectively, “VisualCue’s Product”) are licensed, not sold, to you by VisualCue Technologies LLC (“VisualCue”) for use only under the provisions of these Terms and Conditions. VisualCue retains sole ownership of VisualCue’s Product and reserve all rights not expressly granted to you.
- VisualCue, at its discretion, may make available changes or updates to VisualCue’s Product. The Terms and Conditions will govern any changes or updates to VisualCue’s Product, unless such change or update is accompanied by separate terms and conditions in which case the new terms and conditions will govern such change or update.
- VisualCue reserves the right to update and change the Terms and Conditions without notice. Your continued use of VisualCue’s Product after any such change or update shall constitute your consent and acceptance of such changes or updates.
- Violation of any of the Terms and Conditions may result in, among other things, the termination of your access to VisualCue’s Product.
- Your login may only be used by one person. A single login cannot be shared by multiple people.
- You are responsible for maintaining the security of your account and password. VisualCue cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
B. Permitted Uses and Restrictions
- Subject to the Terms and Conditions and the Subscription Agreement, you are granted a limited, non-transferable license to use VisualCue’s Product on any device that you own or control. You may not distribute or make VisualCue’s Product 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 VisualCue’s Product.
- You may not and you agree not to, or to enable others to, copy (except as expressly permitted by the Terms and Conditions), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of VisualCue’s Product or any services provided by VisualCue’s Product, or any part thereof.
- You shall not:
(a) permit any non-authorized user or any third party to access the VisualCue’s Product, except as expressly permitted herein;
(b) create derivative works based on the software, program code or user interfaces comprising VisualCue’s Product;
(c) copy, frame or mirror VisualCue’s Product, other than copying or framing on your own intranets or otherwise for your own internal business purposes
(d) reverse engineer decompile or disassemble VisualCue’s Product;
(e) systematically access VisualCue’s Product using bots or spiders, or any automated system that calls to VisualCue’s Product more frequently than may reasonably be performed by a human user using a standard web browser, or attempt to gain unauthorized access to the VisualCue’s Product or their related systems or networks; or
(f) access VisualCue’s Product in order to build a competitive data-related commercial product or service, or copy any features, functions or graphics of VisualCue’s Product.
- VisualCue reserves the right to temporarily disable your account if your monthly data transfer usage exceeds the limits of your account.
C. Consent to Use of Data
- You agree that VisualCue and its agents may collect, maintain, process and use diagnostic, technical, usage and related information (“Diagnostic and Usage Data”), including but not limited to information about your device, computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to VisualCue’s Product, and to verify compliance with the Terms and Conditions. VisualCue may use the Diagnostic and Usage Data, as long as it is collected in a form that does not personally identify you, to provide and improve VisualCue’s Product and any related services.
- These Terms and Conditions are effective until terminated by VisualCue. Your rights under the Terms and Conditions will terminate automatically and without notice from VisualCue upon the earlier of (a) the termination or expiration of the Subscription Agreement between VisualCue and you and (b) your breach of the Terms and Conditions or the Subscription Agreement. Upon the termination of the Terms and Conditions and/or the Subscription Agreement, you shall cease all use of VisualCue’s Product and destroy all copies, full or partial, of VisualCue’s Product and all user’s manuals or other related documentation.
- Sections C, G, H, I, J, K, N and O of these Terms and Conditions shall survive any such termination or expiration.
E. Use of VisualCue’s Product
- VisualCue shall use commercially reasonable efforts to make VisualCue’s Product available 24 hours a day, 7 days a week, except for planned downtime (of which VisualCue shall give at least 8 hours notice to you via email).
- You shall:
(a) be responsible for compliance with these Terms and Conditions by your personnel and users;
(b) use commercially reasonable efforts to prevent unauthorized access to or use of VisualCue’s Product, and notify VisualCue promptly of any such unauthorized access or use;
(c) use VisualCue’s Product only in accordance with applicable laws and government regulations including, without limitation, those pertaining to unsolicited email;
(d) only submit data for inclusion in your database or for use with VisualCue’s Product to which you have the necessary rights, licenses and/or permissions to submit;
(e) not sell, resell, rent or lease VisualCue’s Product;
(f) not use VisualCue’s Product to upload, store or transmit infringing, libelous, threatening, or otherwise unlawful or tortious material, or store or transmit material in violation of third-party privacy or publicity rights;
(g) not use VisualCue’s Product in whole or in part for the purpose of serving as a factor in establishing an individual’s eligibility for credit, employment or insurance or for any other consumer initiated transaction as defined in the Fair Credit Reporting Act or any similar law;
(h) not use VisualCue’s Product to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; and
(i) not interfere with or disrupt the integrity or performance of the VisualCue’s Product.
- VisualCue does not represent that it will continue to provide any particular product or service indefinitely or even for any specific period. VisualCue specifically reserves the right to modify any of the specifications or characteristics of VisualCue’s Product, to remove any product or service from the market, and/or to cease supporting of VisualCue’s Product. VisualCue will provide notice of any product or service sunset decisions.
F. Third Party Services and Materials
- VisualCue’s Product may enable access to other VisualCue and third party applications, services and websites (collectively and individually, “Third Party Services”). Use of Third Party Services requires Internet access, and use of certain Third Party Services may require a VisualCue ID and may require you to accept additional terms and conditions and pay additional fees. By using VisualCue’s Product in connection with such Third Party Services, you agree to the applicable terms of service for that application, service or website.
- You understand that by using any of the Third Party Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Third Party Services at your sole risk and that VisualCue shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.
- Certain Third Party Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Third Party Services, you acknowledge and agree that VisualCue 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 Materials or websites. VisualCue, its officers, affiliates and subsidiaries do not warrant or endorse, do not assume, and will not have any liability or responsibility to you or any other person for any Third Party Services, Third Party Materials or websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
- To the extent that you upload any content through the use of Third Party Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to the Third Party Services. You agree that the Third Party Services contain proprietary content, information and material that is owned by VisualCue, the site owner and/or their licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Third Party Services or in any manner that is inconsistent with the Terms and Conditions or that infringes any intellectual property rights of a third party or VisualCue. No portion of the Third Party Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third Party Services, in any manner, and you shall not exploit the Third Party Services in any unauthorized way whatsoever, including but not limited to, using the Third Party Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Third Party Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that VisualCue is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Third Party Services.
- In addition, Third Party Services and Third Party Materials that may be accessed, linked to or displayed through VisualCue’s Product are not available in all languages or in all countries. VisualCue makes no representation that such Third Party Services and/or Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such Third Party Services and/or Third Party Materials, you do so at your own initiative and risk and are responsible for compliance with any applicable laws, including, but not limited to, applicable local laws. VisualCue and its licensors reserve the right to change, suspend, remove, or disable access to any Third Party Services at any time without notice. In no event will VisualCue be liable for the removal of or disabling of access to any such Third Party Services. VisualCue may also impose limits on the use of or access to certain Third Party Services, in any case and without notice or liability.
G. Confidential Information
- “Confidential Information” means all confidential information disclosed by a party (the “Disclosing Party”)to the other party (the “Receiving Party”)whether orally, electronically or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. VisualCue’s Confidential Information shall include, but not be limited to, VisualCue’s Product; and Confidential Information of each party shall include the terms and conditions of these Terms and Conditions and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
- The Receiving Party shall:
(a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care);
(b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and Conditions; and
(c) except as otherwise authorized by the Disclosing Party in writing, shall limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with the Terms and Conditions and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
- The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
H. Intellectual Property
- “Intellectual Property” means (a) all inventions of any kind (whether patentable or not, and whether or not reduced to practice), all improvements thereto and all patents, patent applications and patent disclosures (whether or not filed), together with all reissuances, divisionals, continuations, continuations-in-part, substitutes, extensions and re-examinations thereof, as well as any foreign counterparts of any of the foregoing; (b) all copyrightable works and materials and all copyrights including all applications, registrations and renewals thereof; (c) ideas expressed in any tangible or electronic medium of expression; (d) trade secrets, proprietary formulations, know-how, show-how, research and development results, projections, analyses, models and other technical information and technology; (e) technical data; (f) computer software; (g) technical know-how; (h) trademarks and servicemarks, both registered and unregistered, as well as all applications, registrations and renewals thereof; (i) any other legally recognized form of intellectual property; and (j) all rights in or to the foregoing.
- All rights, ownership, title and interest in and to (a) any derivative works or other modifications, add-ons, enhancements or improvements to either party’s Intellectual Property and (b) all Intellectual Property developed (whether jointly or by either party alone) that derives from and incorporates one party’s Intellectual Property shall vest in and be and remain the property of the party who owns the underlying Intellectual Property. To the extent any ownership rights in the Intellectual Property derived by one party would otherwise vest in the other party by operation of law, the parties, in accordance with the foregoing, hereby assign and agree that each party shall assign, in full, such rights to the party owning the underlying Intellectual Property, and will cooperate to take any reasonably necessary steps to effect or perfect such rights.
- Each party agrees that:
(a) the covenants and agreements contained in this Section G are essential to these Terms and Conditions;
(b) each covenant is reasonable and necessary to protect and preserve the Confidential Information and Intellectual Property and the legitimate business interests of each party;
(c) irreparable harm, loss and damage, that cannot be remedied in damages in an action at law, will be suffered by each party should the other party breach any of the covenants and agreements contained herein;
(d) a breach of any such covenant and agreement may constitute an infringement of rights in and to the trade secrets of the non-breaching party;
(e) each covenants is separate, distinct and severable not only from the other of such covenants and agreements but also from the other and remaining provisions of these Terms and Conditions;
(f) the unenforceability of any other such covenant shall not affect the validity or enforceability of any other provision of these Terms and Conditions; and
(g) in addition to other rights and remedies available to it as a matter of law or equity, each party shall be entitled to an immediate temporary injunction and also to a permanent injunction to prevent a breach or contemplated breach by the other party of any of such covenants or agreements for which the posting of a bond is hereby waived.
- VisualCue shall defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of VisualCue’s Product, as permitted hereunder, infringes or misappropriates third party intellectual property rights, (a “Claim Against You”),and shall indemnify you for any damages, attorneys’ fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, a Claim Against You; provided that you (i) promptly give VisualCue written notice of the Claim Against You, (ii) give VisualCue sole control of the defense and settlement of the Claim Against You (provided that VisualCue may not settle or defend any Claim Against You unless VisualCue unconditionally release you of all liability), and (iii) provide VisualCue all reasonable assistance at VisualCue’s expense.
- In the event of a Claim Against You, or if VisualCue reasonably believe VisualCue’s Product may infringe or misappropriate, VisualCue may in its discretion and at no cost to you (i) modify the VisualCue’s Product so that it no longer infringes or misappropriates, without breaching VisualCue’s warranties hereinabove, (ii) obtain a license for your continued use of VisualCue’s Product in accordance with these Terms and Conditions, or (iii) terminate your right to use VisualCue’s Product upon 30 days’ written notice and refund to you any prepaid fees covering the remainder of the applicable term after the effective date of termination. If a court orders you to cease using part or all of the VisualCue’s Product in connection with a Claim Against You, VisualCue shall take the actions described in subpart (i) or (ii) of the preceding sentence, or if VisualCue cannot accomplish (i) or (ii) in a commercially reasonable manner, VisualCue shall take the actions described in subpart (iii) of the preceding sentence, all at no cost to you.
- You shall defend VisualCue and VisualCue’s licensors against any claim, demand, suit or proceeding made or brought against VisualCue by a third party arising from or based on your breach of these Terms and Conditions (a “Claim Against VisualCue”), and shall indemnify VisualCue and VisualCue’s licensors for any damages, attorneys’ fees and costs finally awarded against VisualCue as a result of, or for any amounts paid by VisualCue under a court-approved settlement of, a Claim Against VisualCue; provided that VisualCue (a) promptly gives you written notice of the Claim Against VisualCue, (b) gives you sole control of the defense and settlement of the Claim Against VisualCue (provided that you may not settle or defend any Claim Against VisualCue unless you unconditionally release VisualCue of all liability), and (c) provides to you all reasonable assistance at your expense.
- This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
J. Disclaimer of Warranties
- YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF VISUALCUE’S PRODUCT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VISUALCUE’S PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND VISUALCUE AND VISUALCUE’S LICENSORS (COLLECTIVELY REFERRED TO AS “VISUALCUE” FOR THE PURPOSES OF SECTIONS J AND K) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO VISUALCUE’S PRODUCT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- VISUALCUE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF VISUALCUE’S PRODUCT, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED BY VISUALCUE’S PRODUCT WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF VISUALCUE’S PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN VISUALCUE’S PRODUCT WILL BE CORRECTED, OR THAT VISUALCUE’S PRODUCT WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OR USE OF VISUALCUE’S PRODUCT MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES.
- YOU FURTHER ACKNOWLEDGE THAT VISUALCUE’S PRODUCT IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY VISUALCUE’S PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
- NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VISUALCUE OR A VISUALCUE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
- VisualCue does not provide any warranty or support under the Terms and Conditions for any products or services not provided by VisualCue.
K. Limitation of Liability
- TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL VISUALCUE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION, LOSS OR FAILURE TO TRANSMIT OR RECEIVE ANY DATA (INCLUDING WITHOUT LIMITATION COURSE INSTRUCTIONS, ASSIGNMENTS AND MATERIALS), BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE VISUALCUE’S PRODUCT OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH VISUALCUE’S PRODUCT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF VISUALCUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall VisualCue’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed THE LESSER OF $5,000.00 OR THE AMOUNT PAID BY YOU TO VISUALCUE IN THE 12 MONTHS PRECEDING THE INCIDENT FOR WHICH YOUR CLAIM FOR DAMAGES ALLEDGEDLY FIRST AROSE. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
L. Export Control
- You may not use or otherwise export or re-export VisualCue’s Product except as authorized by United States law and the laws of the jurisdiction in which VisualCue’s Product was obtained. In particular, but without limitation, VisualCue’s Product 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 VisualCue’s Product, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use VisualCue’s Product for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
M. Government Users
- VisualCue’s Product 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. Unpublished rights ARE reserved under the copyright laws of the United States.
N. Controlling Law; Jurisdiction; Severability
- Regardless of its place of negotiation, execution, or performance, each party agrees that these Terms and Conditions are governed by and shall be construed in accordance with the laws of the State of Florida, excluding any conflict-of-laws rule or principle that might refer the governance of the construction of the Terms and Conditions to the law of another jurisdiction, and the controlling United States federal law, where applicable. The Terms and Conditions shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- Each party agrees to the exclusive jurisdiction of the state and federal courts in and for Orange County, Florida for any litigation or other dispute resolution relating in any way to these Terms and Conditions. Each party hereby irrevocably waives any personal or subject matter jurisdiction and inconvenient forum objections to the full extent permissible by law.
- If for any reason a court of competent jurisdiction finds any provision herein, or portion thereof, to be unenforceable, the remainder of the Terms and Conditions shall continue in full force and effect to the maximum extent possible.
O. Miscellaneous Provisions
- Data. VisualCue has no obligation to pre-screen, verify, or monitor your data or information. VisualCue shall not be responsible for any failure to remove, or delay in removing, harmful, inaccurate, unlawful or otherwise objectionable content originating with or otherwise provided by third parties.
- Entire Agreement. The Terms and Conditions, combined with the Subscription Agreement, including any Order Forms incorporated therein, constitute the entire agreement between you and VisualCue relating to VisualCue’s Product and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of the Terms and Conditions will be binding on VisualCue unless it is included on the VisualCue website’s partner portal.
- Captions. Headings and captions used in the Terms and Conditions are for ease of reference only and shall not be used to interpret or limit any aspect of the Terms and Conditions.
- Relationship. The parties are independent contractors. The Terms and Conditions do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between you and VisualCue.
- Waiver of Jury Trial. You hereby waive any right to jury trial in connection with any action or litigation in any way arising out of or related to the TERMS AND CONDITIONS.
- Waiver. No failure or delay by VisualCue in exercising or enforcing any right or provision under the Terms and Conditions shall constitute a waiver of that right or provision unless so expressed in writing by an authorized representative of VisualCue. Any such waiver will not be construed as a waiver of any other term, condition, or provision except as provided in the writing, nor as a waiver of any subsequent breach of the same term, condition, or provision.
- Attorney’s Fees. In the event of a legal action or other proceeding arising under the Terms and Conditions or a dispute regarding any alleged breach, default, claim, or misrepresentation arising out of the Terms and Conditions, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, whether incurred before suit, during suit, or at the appellate level. The prevailing party shall also be entitled to recover any attorneys’ fees and costs incurred in litigating the entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of attorneys’ fees and costs due to it. The reasonable costs that the prevailing party shall be entitled herein shall include any costs that are taxable pursuant to any applicable statute, rule, or guideline (including, but not limited to, the Statewide Uniform Guidelines for Taxation of Costs), as well as costs not taxable thereunder. Such recoverable costs shall specifically include, but not be limited to, costs of investigation; costs of copying documents and other materials, whether for discovery, filing with the court, internal review, or any other purpose; costs for electronic discovery; electronic research service charges; telephone charges; mailing, commercial delivery service, and courier charges; travel expenses, whether for investigation, depositions, hearings, trial, or any other purpose; information technology support charges; any and all consultant or expert witness fees, whether or not such fees are incurred in connection with a court-ordered report or testimony at a deposition, hearing, or trial; court reporter and transcript fees, whether for deposition, trial, or an evidentiary or non-evidentiary hearing; mediator fees; and any other reasonable cost incurred by the prevailing party in connection with the dispute.
- Force Majeure. VisualCue shall not be liable for any losses arising out of the delay, failure or interruption of its performance of obligations under the Terms and Conditions due to any act of God, act of governmental authority, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, communication or utility failures, internet service provider failures or delays, or denial of service attacks, unplanned system down time, or any other cause beyond VisualCue’s reasonable control.
- Language. Any translation of the Terms and Conditions is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of the Terms and Conditions shall govern, to the extent not prohibited by local law in your jurisdiction. All correspondence, all contracts, all training materials and all materials exchanged between the parties shall be in English. If you desire any translations from English, you shall be responsible for such translation and any expenses related thereto. VisualCue has the right to review such translations.