Victor Terms and Conditions
Last Modified: April 7th, 2021
These Terms and Conditions (the “Terms”) are entered into by and between you (as defined below) and Victor Technologies, Inc (“Victor,” “Company,” “we” or “us”). These Terms govern access to and use of the Victor websites and services (collectively, the “Website”) by (i) site visitors (the “Site Visitors”), and (ii) by individuals or entities who purchase services (the “Victor Services”) or create an account (an “Account”) and their Authorized Users (collectively, “Customers”). The Website, the Victor Services, and any API, as defined herein, shall collectively be referred to as the “Victor Platform.” By using the Victor Platform, you as a Site Visitor or Customer accept these Terms (whether on behalf of yourself or a legal entity you represent). An “Authorized User” of a Customer is an individual natural person, whether an employee, business partner, contractor, or agent of a Customer who is registered or permitted by Customer to use the Victor Platform subject to these Terms and up to any maximum number of users or uses specified at the time of purchase. Customers and Site Visitors may be referred to in these Terms as “you” and “your” as applicable.
You represent and warrant that you are: (a) of legal age in your resident jurisdiction and competent to agree to these Terms; and (b) you (or your Authorized Users, as applicable) are not and will not when using the Victor Platform be located in, under the control of, or a national or resident of any country outside of the United States. You acknowledge that you are not permitted to use the Victor Platform if you cannot make these representations. If we have previously prohibited you from accessing the Victor Platform, you are not permitted to access the Victor Platform. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
If you are a Customer and you or your organization are bound by a Master Services Agreement with Victor (the “Corporate Terms”), then your Corporate Terms are incorporated by reference and will supplement these Terms. To the extent that a conflict exists between these Terms and your Corporate Terms, your Corporate Terms will control. References to the Terms include all applicable Corporate Terms.
BY ACCESSING, USING, OR DOWNLOADING ANY MATERIALS FROM THE VICTOR PLATFORM, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE VICTOR PLATFORM IMMEDIATELY.
1. License to Use the Services.
- a. Membership.After agreeing to these Terms and providing any other necessary payment information, you will be permitted to create an Account to access one or more Victor Services on the Victor Platform for a particular period of time (a “Membership”).
- b. Content. “Content” includes but is not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof on the Victor Platform. The Victor Platform and the Content are owned by Victor or its affiliates, licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
- c. API. Victor may make one of more application programming interfaces (each, an “API”) available to you. Use of an API or certain features of an API may require that you have authorized access to certain Third-Party Services, as such term is defined herein. Your use of the API will be subject to these Terms as well as any terms associated with the Third-Party Service. You authorize Victor to use any Credentials provided by you or by the Third-Party Service in order to access the Third-Party Services on your behalf, and you acknowledge that you remain responsible for all activities taken by you or someone using your Credentials via an API.
- d. Limited License. Except as otherwise restricted by these Terms, Victor grants you a limited, non-exclusive and non-transferable license to access and use the Victor Platform and the Content for your internal business purposes and only as expressly permitted in these Terms during the period of your Membership. You shall not use or permit use of the Victor Platform or the Content for any illegal purpose or in any manner inconsistent with the provisions of these Terms. During the period of your Membership, you may display, copy, and download Content on the Victor Platform provided that you: (a) retain all copyright and other proprietary notices on the content and materials; (b) use them solely for your internal business purposes or otherwise in accordance with any applicable Membership; and (c) do not modify them in any way. Your Membership may include restrictions and requirements that outline the features that you will be able to access. Any violation by you of these Terms may result in the immediate termination of your right to use the Victor Platform or the Content, as well as potential liability for copyright infringement or other claims depending on the circumstances. If you are or become a direct competitor of Victor, you may not access or use the Victor Platform or the Content without Victor’s explicit, advance, written consent, and then only for the purposes authorized in writing.
- e. Trademarks. The name, trademarks, logo, and all related names, logos, product and service names, designs, and slogans of Victor or the Victor Services (collectively, the “Marks”) are registered or unregistered trademarks of Victor or its affiliates or licensors. The Marks may not generally be used in any advertising or publicity, or otherwise to indicate Victor’s sponsorship of or affiliation with any product, service, event, or organization without Victor’s prior express written permission. All other names, logos, product and service names, designs, and slogans on the Victor Platform are the trademarks of their respective owners.
f. Software Use Restrictions. Software available for downloading through the Victor Platform or third-party websites or applications (the “Software”) is the copyrighted work of Victor and third-party providers. Use of the Software is governed by these Terms. Unauthorized reproduction or distribution of the Software is expressly prohibited by law and may result in civil and criminal penalties. Violators may be prosecuted.
- g. Feedback. You agree that you may offer or be asked to offer recommendations, suggestions, ideas, derivations, enhancement requests or other feedback concerning the operational and functional capabilities of the Victor Platform (“Feedback”). You hereby assign to Victor all right, title, and interest in and to any Feedback. You agree that Victor is free to make unrestricted use, copy, modify, sell, distribute, sub-license, and create derivative works of the Feedback without any necessity of payment or attribution to you. Feedback will not be deemed your Confidential Information.
- h. Third-Party Services. You may choose to obtain products or services and related materials that are provided, licensed, or supported by third parties, including from affiliates of Victor (including open-source software licenses) (“Third-Party Services”) for use with the Victor Platform. Certain Third-Party Services are provided pursuant to the terms of the applicable third-party license or separate agreement between the licensor of the Third-Party Services and you, and Victor assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Third-Party Services. Third-Party Services are provided “AS IS” for your convenience only and Victor makes no representation or warranty regarding the Third-Party Services and any modifications, improvements, enhancements, additions, or derivations thereto made or provided by Victor, whatsoever.
2. Use of the Services.
- a. Registration. To create an Account, you may be asked to provide certain registration details or other information. It is a condition of your use of the Victor Platform that all the information you provide is correct, current, and complete. As part of registration, you will be asked for or provided with certain credentials, potentially including a username, password, verification code, or any other piece of information reasonably required as part of our security procedures (collectively, your “Credentials”). You must treat your Credentials as confidential, and you must not disclose them to any other person or entity.
- b. Account Security. You agree to notify us immediately of any unauthorized access to or use of your Credentials or any other breach of security. We have the right to disable any Credentials, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms. You are responsible for any use of the Victor Platform that occurs using your Credentials, even if you did not authorize such use.
- c. Authorized Users. Authorized Users of Customer must have their own Account. Two or more natural persons may not use the Victor Services as the same Account or Authorized User. If the Authorized User is not an employee of Customer, use of the Victor Services will be allowed only if the user is under confidentiality and other obligations with Customer at least as restrictive as those in these Terms, and is accessing or using the Victor Services solely to support Customer’s internal business purposes.
- d. Account Administrator. Customer may assign and expressly authorize one or more Authorized Users as its agent to manage Customer’s Account and Membership, and management of Customer’s Account and Membership includes, without limitation, configuring administration settings, assigning access and use authorization, managing other Accounts associated with the Customer’s Membership, requesting different or additional services, providing usage and performance records, managing data, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions (such Authorized User shall be an “Account Administrator”). Customer may appoint an employee, agent or a third-party business partner or contractor to act as its Account Administrator(s) and may change its designation at any time through its Account.
- e. Monitoring and Enforcement. We have the right to take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Victor Platform. We have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Victor Platform. YOU WAIVE AND HOLD HARMLESS VICTOR AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY VICTOR OR ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER VICTOR OR SUCH OTHER PARTIES OR LAW ENFORCEMENT AUTHORITIES. We assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
3. Prohibited Uses.
- a. Generally. You may use the Victor Platform only for lawful purposes and in accordance with these Terms. By using the Victor Platform, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
- i. violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
- ii. exploits, harms, or attempts to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
- iii. transmits, or procures the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation;
- iv. impersonates or attempts to impersonate Victor, a Victor employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing);
- v. engages in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Victor Platform, or which, as determined by us, may harm Victor or other users of the Victor Platform, including providers of Third-Party Services, or expose them to liability;
- vi. uses the Victor Platform in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Victor Platform, including their ability to engage in real time activities through the Victor Platform;
- vii. uses any robot, spider, or other automatic device, process, or means to access the Victor Platform for any purpose, including monitoring or copying any of the material on the Victor Platform;
- viii. monitors or copies any of the material on the Victor Platform, or for any other purpose not expressly authorized in these Terms, without our prior written consent;
- ix. interferes with the proper working of the Victor Platform;
- x. introduces or may introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
- xi. attempts to gain unauthorized access to, interfere with, damage, or disrupt any part of the Victor Platform, the server on which the Victor Platform is stored, or any server, computer, or database connected to the Victor Platform;
- xii. attacks the Victor Platform via a denial-of-service attack or a distributed denial-of-service attack;
- xiii. licenses, sub-licenses, sells, re-sells, rents, leases, transfers, distributes or time shares or otherwise makes any portion of the Victor Platform or Victor’s then-current technical and functional documentation for the Victor Platform (“Documentation”) available for access by third parties except as otherwise expressly provided in these Terms
- xiv. uses the Victor Platform or allows access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms; or
- xv. otherwise interferes or attempts to interfere with the proper working of the Victor Platform.
- a. Membership. The prices, features, and options of the Victor Platform depend on the Membership selected as well as any changes that you request. We do not represent or warrant that a particular Membership will be offered indefinitely and reserve the right to change the prices for or alter the features and options in a particular Membership without prior notice. Certain features offered by the Victor Platform may require access to or use of certain Third-Party Services. Those Third-Party Services may have additional costs associated with them, and your Membership will not include access to those Third-Party Services unless otherwise noted.
- b. No Refunds. Customer will timely pay Victor all fees associated with its Membership, Accounts, or use of the Victor Platform, including, but without limitation, by Authorized Users. Customer’s payments are non-refundable except as otherwise stated in these Terms. Charges for pre-paid Memberships will be billed to Customer in advance. Charges for per-use purchases and standard Membership charges will be billed in arrears unless otherwise specified in the Membership.
- c. Recurring Charges. When you purchase a Membership, you must provide accurate and complete information for a valid payment method that you are authorized to use. You will be billed for your Membership through the payment method you provide. You must promptly notify us of any change in your invoicing address and must update your Account with any changes related to your payment method. BY COMPLETING REGISTRATION FOR A MEMBERSHIP, CUSTOMER AUTHORIZES VICTOR OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING (E.G. MONTHLY OR YEARLY) BASIS (“AUTHORIZATION”) FOR: (A) THE APPLICABLE MEMBERSHIP CHARGES; (B) ANY AND ALL APPLICABLE TAXES; AND (C) ANY OTHER CHARGES INCURRED IN CONNECTION WITH USE OF THE VICTOR PLATFORM BY CUSTOMER OR SOMEONE USING CUSTOMER’S CREDENTIALS. This Authorization continues through the applicable Membership period and any Renewal Term (defined below) until Customer cancels as described in these Terms.
- d. Late Fees & Collection Costs. If Victor does not receive payment from Customer’s payment method, Customer agrees to pay all amounts due upon demand. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Victor to collect any amount that is not paid when due. Victor may accept payment in any amount without prejudice to Victor’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Victor may not be withheld or offset by Customer for any reason against amounts due or asserted to be due from Victor.
- e. Invoices. Victor will provide billing and usage information in a format we choose, which may change from time to time. Victor reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment. Customer agrees to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If Customer does not bring such problems/discrepancies to our attention within thirty (30) days, it agrees to waive its right to dispute such problems or discrepancies.
- f. Billing Cycles. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. Customer agrees that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle.
- g. Tax Responsibility. All payments required by these Terms are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon, excluding taxes based on Victor’s net income (collectively, “Taxes”). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the Victor Platform. Where the responsibility to remit Taxes falls upon Victor, the Taxes will be added to the payment and payable to Victor at the same time as the payment. Taxes shall not be deducted from the payments to Victor, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, Victor receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer hereby confirms that Victor can rely on the name and address set forth in its registration for a Membership as being the place of supply for Tax purposes. Victor’s and Customer’s obligations under this section shall survive the termination or expiration of these Terms.
5. Early Access Programs.
- a. Generally. From time to time, Victor may offer you early access to certain services or features, technologies, or products on the Victor Platform that are in development, beta, or pre-general release versions (the “Early Access Services”). By accessing Early Access Services, you indicate that you have read, understood, and expressly agree to any additional Early Access Service terms contained herein or displayed as part of those services. Victor may modify the permitted use of or suspend your access to any Early Access Service at any time and for any reason.
- b. Your Understanding. An Early Access Service may, at any time and without prior notice, be updated, suspended, removed, terminated, unavailable, or negatively affected. You acknowledge that Early Access Services may have additional unknown risks associated with their use, such as data loss, corruption, or loss of access to data. You may be required to update your version of the Early Access Service in order to continue using the Early Access Service. Victor has no obligation under these Terms or otherwise to: (a) correct any bugs, defects, or errors in the Early Access Service or otherwise to provide any support, maintenance services, service levels, or uptime guarantees for the Early Access Service; (b) store, hold, export, return, or destroy any data or content after the Early Access Period; and (c) create, distribute, or otherwise offer a generally available version of the Early Access Service. Victor has no obligation to offer a particular Early Access Service to you. You acknowledge that any research or development performed or business plans made by you regarding or in reliance upon the Early Access Service is done entirely at your own risk.
- a. Generally. You are responsible for data that you provide or use in the Victor Platform. You are solely responsible for determining the suitability of the Victor Platform for your business or organization and complying with any regulations, laws, or conventions applicable to the data you provide and your use of the Victor Platform.
- c. Confidential Information.“Confidential Information” means (a) for Victor and its Affiliates, the Victor Platform, Content, Documentation, Early Access Services (if applicable); (b) for Customer and its Affiliates, Customer Data; (c) any other information of a party, including its Affiliates, that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure (and, in the case of oral disclosures, summarized in writing within thirty (30) days of the initial disclosure and delivered to the Recipient), or that due to the nature of the information the Recipient would clearly understand it to be confidential information of the disclosing party; and (d) the specific terms and conditions of these Terms, and any amendment and attachment thereof, between the parties. Confidential Information shall not include any information that: (i) was or becomes generally known to the public through no fault or breach of these Terms by the Recipient; (ii) was rightfully in the Recipient’s possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by the Recipient without use of the disclosing party’s Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.
- d. Restricted Use and Nondisclosure. During and after the Membership, the party receiving Confidential Information (“Recipient”) will: (a) use the Confidential Information of the other party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
- e. Ownership. Notwithstanding any other provision of these Terms, each party acknowledges that, as between the parties, all Confidential Information received by a Recipient, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the discloser. Nothing in these Terms grants the Recipient any right, title or interest in or to any of the discloser’s Confidential Information. The Recipient’s incorporation of the disclosing party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
- a. Site Visitors. A Site Visitor may terminate its use of the Victor Platform at any time by ceasing further use of the Victor Platform. Victor may terminate a Site Visitor’s use of the Victor Platform and deny access to the Victor Platform at our sole discretion for any reason or no reason, including for violation of these Terms.
- b. Access to Victor Platform. Victor may suspend any use of the Victor Platform, remove any content or disable or terminate any Account or Authorized User that Victor reasonably believes violates these Terms. Victor will use commercially reasonable efforts to notify you prior to any such suspension or disablement, unless Victor reasonably believes that: (a) Victor is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice in order to prevent imminent harm to the Victor Platform or a third party. Under circumstances where notice is delayed, Victor will provide the notice if and when the related restrictions in the previous sentence no longer apply.
- c. Period of Access. The period of effectiveness of these Terms, with respect to the Victor Platform, begins on the date the Customer accepts the Terms and continues until the Customer’s Membership expires or its use of the Victor Platform ceases, whichever is later.
- d. Membership Term; Automatic Renewals. Your Victor Membership automatically renews unless otherwise noted. If you purchase a Membership, you agree to pay the then-current applicable fee associated with the Membership and further agree and acknowledge that it will automatically renew, unless, prior to the end of the current period of the Membership (“Membership Period”): (a) you terminate your Account; (b) Victor declines to renew your Membership; or (c) these Terms are otherwise properly terminated as expressly permitted herein. The Membership will automatically renew on a monthly or annual basis, depending on the method you choose (“Renewal Term”).
- e. Membership Modification. Victor reserves the right to modify, terminate, or otherwise amend the fees and features associated with your Membership. Before we change the fees and charges in effect, or add new fees and charges, we will give you advance notice of at least thirty (30) days. If we provide you such advance notice, your continued use of the Victor Platform after the changes have been made will constitute your acceptance of the changes. If you do not wish to continue your Membership with the new fees or features, you may terminate your Membership as described in these Terms. If you accept the new Membership, its terms and conditions with these Terms will apply in the Renewal Term and thereafter.
- f. Termination by Customer. You may terminate your Account at any time upon thirty (30) days’ advance written notice to Victor.
- g. Termination by Victor. A Customer will be in default of these Terms if: (a) it fails to timely pay any amount owed to us; (b) it or an Authorized User associated with its Account (or any entity using an Authorized User’s Credentials) breaches any provision of these Terms or violates any published policy applicable to the Victor Platform; (c) it is or becomes subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of the Victor Platform by the Customer (or its Authorized Users or signers) creates risk for Victor or presents a threat to the security of the Victor Platform or Victor’s other customers. If a Customer is in default, we may, without notice: (i) suspend its Account and use of the Victor Platform; (ii) terminate its Account; (iii) charge reactivation fees in order to reactivate its Account; and (iv) pursue any other remedy available to us.
- h. Effect of Termination.
If these Terms expires or are terminated for any reason: (a) Customer will pay Victor any amounts that have accrued before, and remain unpaid as of, the date of the termination or expiration, including those for the billing cycle in which termination occurs; (b) any and all of Customer’s liabilities to Victor that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer with respect to the Victor Platform, Content, Documentation, and any other associated intellectual property will immediately terminate; and (d) Victor’s obligation to provide any further services to Customer under these Terms will immediately terminate. Provisions designated to survive under these Terms shall survive termination.
8. Changes to the Platform. We reserve the right to withdraw or amend the Victor Platform, Content, Documentation, and any other material we provide, in our sole discretion and without notice. We will not be liable if for any reason all or any part of the Victor Platform is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Victor Platform, or the entire Victor Platform.
9. Changes to the Terms. We may revise and update these Terms from time to time in our sole discretion. We will post the revised Terms on the Victor Platform with a “last updated” date. All changes are effective immediately when we post them. Your continued use of the Victor Platform following the posting of the revised Terms means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you. You agree that we shall not be liable to you or to any third party for any modification of these Terms.
10. Electronic Communications. You agree to receive all communications, agreements, disclosures, and notices that we provide in connection with any Victor Services (“Communications”), including, but not limited to, Communications related to our delivery of the Victor Platform and information related to your Account or your Membership, via electronic means, including by e-mail, text, in-product notifications, or by posting them on the Victor Platform. You agree that all Communications we provide to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner and you agree to keep your Account contact information current.
11. External Links. If the Victor Platform contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and we accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to from the Victor Platform, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
12. Disclaimer of Warranties. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or that the Victor Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.
TO THE FULLEST EXTENT PROVIDED BY LAW, VICTOR WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE VICTOR PLATFORM OR ANY ITEMS OBTAINED THROUGH THE VICTOR PLATFORM, OR ON ANY WEBSITE LINKED TO IT. YOUR USE OF THE VICTOR PLATFORM IS AT YOUR OWN RISK. THE VICTOR PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER VICTOR NOR ANY PERSON ASSOCIATED WITH VICTOR MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE VICTOR PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER VICTOR NOR ANYONE ASSOCIATED WITH VICTOR REPRESENTS OR WARRANTS THAT THE VICTOR PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE VICTOR PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, VICTOR HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13. Limitation on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF VICTOR AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT YOU HAVE PAID TO VICTOR FOR ACCESS TO THE VICTOR PLATFORM IN THE LAST 12 MONTHS OUT OF WHICH LIABILITY AROSE.
The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct or death or bodily injury caused by products you purchase through the site.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
14. Indemnification. You agree to defend, indemnify, and hold harmless Victor, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use of the Victor Platform, including, but not limited to, any use of the Victor Platform, the Content, or the Documentation other than as expressly authorized in these Terms.
15. Governing Law and Jurisdiction. All matters relating to the Victor Platform and these Terms, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction). Any legal suit, action, or proceeding arising out of, or related to, these Terms or the Victor Platform shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, although we retain the right to bring any suit, action, or proceeding against you for breach of these Terms in your country or state of residence or any other relevant country or state. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
16. Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS, THE VICTOR PLATFORM, OR USE OF A THIRD-PARTY SERVICE ON THE VICTOR PLATFORM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
17. Waiver and Severability. No waiver by Victor of any term or condition set out in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Victor to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
18. Entire Agreement. The Terms constitute the sole and entire agreement between you and Victor regarding the Victor Platform and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Victor Platform.