VYANET

Terms of Use

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE.

By accessing this website (the “Site”), or any of the Site’s Content (as defined below), you acknowledge that you agree to and are subject to the following terms and conditions (collectively, the “Terms”). If you do not agree to these Terms, you may not access or otherwise use the Site or the Content. The Terms constitute a legally binding agreement between you and us, Vyanet Operating Group, Inc., the operator of the Site (hereafter referred to as “we”, “us” or “our”). References in these Terms to “Site operator,” “we”, “us” and “our” include our affiliates, agents, successors and assigns. The Site is available only to, and may only be used by, individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Site is not available to persons under age 18. By accessing and using the Site, you accept and agree to, without qualification, the Terms and represent and warrant that you have the authority to bind the User (as defined below) to these Terms and that your use of the Site, including the provision or use of any Content, does not violate any applicable law.

Our Services.

The Site acts as a portal to facilitate the sale of security related products to existing and potential customers who are collectively called the Site’s “Users” (and hereafter may be referred to as “you” or “your”).

Personal Use.

We do not charge Users to access the Site. We grant each User a limited, revocable, non-exclusive license to access the Site and the text, images, maps, files, photos, information and other materials on the Site (the “Content”) in order to view, access or make inquiries to us regarding our services, in accordance with these Terms. Any other use of the Site is expressly prohibited. This limited license does not include any right of display, copying, aggregation, collection, or derivative use of the Site nor any right of use of spiders, data mining, robots or similar data extraction and gathering tools without our prior express written permission. Any rights not expressly granted herein are reserved by us.

Unauthorized Use.

Unless otherwise provided herein, or unless otherwise allowed under applicable law, you may not do any of the following without our prior written consent:

    • Upload, post, display, copy, republish, reproduce, transmit, or distribute any Content in any form whatsoever;
    • Reproduce any portion of the Site on your website or, using any device, including but not limited to use of a border or frame environment around the Site, or other framing technique to enclose any portion or aspect of the Site, or replicate or mirror any portion of the Site;
    • Reverse engineer any part of the Site;
    • Modify, translate into any written or computer language, or create derivative works or translations from any Content or part of the Site;
    • Offer for sale, sell, license, or transfer, in any form, any portion of the Site any third parties;
    • Use any spider, robot or other automated device or automated or manual process to copy, monitor, or keep a database copy of the Content or any portion of the Site;
    • Use the Site other than to make legitimate inquiries to us regarding our services, to learn about our services, or to pay fees or other charges related to our services;
    • Use the Site to create any fraudulent or false inquiry or account;
    • Transmit or post any abusive, threatening, unlawful, defamatory, libelous, false, misleading indications of origin or statements of fact, vulgar, obscene, indecent, sexually explicit, pornographic, profane or inflammatory material, or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law or for any other purpose that is unlawful or prohibited by these Terms;
    • Access or use the Site in any way that, in our sole discretion, adversely affects the function or performance of the Site or any other networks or computer systems used by us or the Site, or infringes on our or any third party’s trademark, copyright, patent rights, rights of privacy or publicity or any other proprietary rights;
    • Transmit or upload to the Site, or use in connection with the Site, any software, device or routine that contains viruses, worms, time bombs, Trojan horses or other computer programming routines that may interfere with or attempt to interfere with, damage or in any way intercept the normal operation of the Site, or appropriate the Site or any system, or take any action that imposes an unreasonable load on our computing platform; or
      Circumvent any encrypted data or gain access to more materials or data than was licensed or use the Site in any manner which violates these Terms or any applicable laws.

Unauthorized access to and/or use of the Site, or the telecommunications or computer facilities used to deliver the Site, is a breach of these Terms and is a violation of law. If you are or become aware of or experience any Content, activity or communication through or in connection with the Site that appears to be in violation of the above, or in violation of any other provision of these Terms, we ask that you please inform us of any such violation by sending notification to ar@vyanet.com.

LIMITATION OF LIABILITY.

IN NO EVENT WILL WE OR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS OR EMPLOYEES BE LIABLE FOR ANY LOST PROFITS, COVER, LOSS OF REVENUE OR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM YOUR USE OF THE SITE OR ANY TRANSACTION BETWEEN US OR BETWEEN YOU AND PROVIDERS THAT IS ENABLED BY OR ARISES IN CONNECTION WITH YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (i) BREACH OF CONTRACT, (ii) BREACH OF WARRANTY, (iii) STRICT LIABILITY, (iv) TORT, (v) NEGLIGENCE, (vi) STATUTE, OR (vii) ANY OTHER CAUSE OF ACTION, TO THE MAXIMUM EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IN ALL EVENTS, OUR LIABILITY, TO YOU OR TO ANY THIRD PARTY IN ANY CIRCUMSTANCE ARISING OUT OF OR IN CONNECTION WITH THE SITE IS LIMITED TO THE GREATER OF (a) THE AMOUNT OF FEES ACTUALLY RECEIVED BY US FROM YOU DURING THE CALENDAR MONTH DURING WHICH SUCH ALLEGED CLAIM(S) ACCRUED, AND (b) $200.00. Any cause of action you may have hereunder or with respect to your use of the Site must be commenced within one (1) year after the claim or cause of action first arises.

DISCLAIMER.

THE SITE, INCLUDING ALL CONTENT, SERVICES, FUNCTIONS, SOFTWARE, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE, IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE CONTENT ON THE SITE OR THE SERVICES, INFORMATION, FUNCTIONS AND MATERIALS AVAILABLE THROUGH THE SITE, FOR ANY SERVICES OR PRODUCTS OR HYPERTEXT LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SITE OR ANY LINKED SITE. FURTHER, WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE OR ANY SERVICES, CONTENT OR MATERIALS CONTAINED THEREIN WILL MEET YOUR NEEDS, BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT USER’S OWN DISCRETION AND RISK, AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. NO INFORMATION OBTAINED BY USER THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

Dispute Resolution By Binding Arbitration.

PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.

You agree to attempt in good faith to settle any dispute or claim that has or may arise between us, which arises out of or relates in any way to these Terms or your use of the Site or the Content, including, without limitation, any dispute or claim between you and us (each, a “Claim”), by way of consultations between you and us, which consultations will be initiated upon written notice by any party to the other (the “Consultation Notice”). The Consultation Notice must describe the nature and basis of the Claim and set forth the specific relief sought (“Demand”). If such Claim cannot be resolved within thirty (30) days after the Consultation Notice is received, any party to the consultations may initiate an arbitration proceeding upon written notice to the other party in accordance with this Section 15. Any notice to us under this Section 15 should be addressed to: ar@vyanet.com (“Notice Address”).

You agree to arbitrate all Claims between you and us that cannot be amicably resolved in accordance with the foregoing paragraph. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (a) claims arising out of or relating to any aspect of your relationship with us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; and (b) claims that could be alleged as class action Claims (and you agree to waive the right to participate in a class action in accordance with this Section 15). For the avoidance of doubt, references in this Section 15 to “Site operator,” “Provider,” “we”, “Prospect”, “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the services, information or Site Content available through the use the Site. This arbitration agreement does not preclude you from bringing an individual action in small claims court or bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. You agree that, by entering into this arbitration agreement, you and we are each waiving our respective rights to a trial by jury or to participate in a class action. You acknowledge and agree that the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.

The arbitration will be governed by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Agreement (but expressly excluding the Supplementary Rules for Class Arbitration and any other AAA Rules that conflict with the waiver of class arbitration and representative proceedings below), and will be administered by one (1) arbitrator with relevant industry experience appointed in accordance with the AAA Rules. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including, without limitation, issues relating to the applicability and enforceability of this arbitration agreement.

Unless otherwise mutually agreed by the parties to the arbitration, any arbitration hearings under this Section 15 will take place in the county where you are domiciled. If your Claim is for $5,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your Claim exceeds $5,000, the right to a hearing will be determined by the AAA Rules. Except as otherwise provided for in this Section 15, in any arbitration between you and us under this Section 15, all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above where Claims for damages do not exceed $10,000 shall be paid, at your written request, by us. Any request for payment of fees by us shall be submitted by mail to the AAA along with your demand for arbitration, and we will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If, however, the arbitrator finds that either the substance of your Claim or the relief sought in the Demand is frivolous or brought for an improper purpose, you agree to reimburse us for all monies previously disbursed that are otherwise your obligation to pay under the AAA Rules.

The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THAT THIS AGREEMENT EXPRESSLY PROHIBITS CLASS ARBITRATION BY ANY PARTY. Further, unless the parties to the arbitration agree otherwise, the arbitrator may not consolidate more than one person’s Claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator shall not be bound by rulings in prior arbitrations involving our other Users, but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law.

With the exception of the provision in the preceding paragraph prohibiting class arbitration or representative proceedings, if an arbitrator or court decides that any part of this Section 15 is invalid or unenforceable, the other parts of this Section 15 shall still apply. In the event that the foregoing prohibition on class arbitration or representative proceedings is deemed invalid or unenforceable, then the entirety of this Section 15 shall be null and void. The remainder of the Terms, including, without limitation, Section 14 (Choice of Law and Forum), will remain in force.

You may opt-out of this arbitration provision only by written notice to us at the Notice Address within thirty (30) days of your acceptance of this agreement, which notice shall include your name, address, and a clear statement that you do not wish to resolve disputes with us through arbitration.

If we make any change to this arbitration provision (other than a change to the Notice Address) during the term of your relationship with us, that change shall not apply to any Claim against us initiated prior to the effective date of the change. The change shall apply to all other Claims that have arisen or may arise between you and us. We will notify you of changes to this arbitration provision by posting the amended terms on the Site or by email, in each case at least thirty (30) days before the effective date of the changes.

Notwithstanding anything to the contrary in these Terms, Providers shall be third party beneficiaries of the rights to dispute resolution and arbitration set forth in this Section 15, and each Provider shall have the right to enforce this Section 15 against Users as if such Provider were a party to the agreement set forth in this Section 15 in the event of any dispute or claim between you and such Provider based on or relating to any transaction or interaction between you and such Provider that is enabled by or arises in connection with your use of the Site.

Notices.

Except as explicitly stated otherwise, any notices sent from you to us shall be submitted via e-mail at ar@vyanet.com with a copy of such notice sent by certified postal mail, return receipt requested, to: VYANET Operating Group, Inc. Attn: Accounting Dept. – 410 SW Columbia, Suite 120 Bend, OR 97702. When we need to send a notice to you, it shall be sent to the e-mail address you last provided to us. Notice shall be deemed given upon receipt or 24 hours after e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to any address provided to us by you. In such cases, notice shall be deemed given three days after the date of mailing.

Amendments.

We reserve the right to change, modify, add or remove any portion of these Terms, in whole or in part, at any time. Notification of changes to these Terms will be posted on the Site and will be effective immediately thereafter. Your use of the Site following the posting of any such change, modification or amendment to these Terms will constitute your acceptance thereof. These Terms may not otherwise be modified, except in a writing signed by both parties. No delay or failure on the part of either party in exercising any right or remedy hereunder shall operate as a waiver thereof or of any other right or remedy. No waiver whatsoever shall be valid unless in writing, signed by the party to be charged, and then only to the extent therein set forth. These Terms constitute the entire agreement between us and Users with respect to the matters contemplated hereby.