PLEASE READ CAREFULLY THESE TERMS AND CONDITIONS BEFORE ACCESSING OR USING ANY PART OF ANY OF THE SOFTWARE OWNED BY VALCO CINCINNATI INC. D/B/A VALCO MELTON. IF YOU DO NOT AGREE WITH THESE TERMS, YOU DO NOT HAVE A RIGHT TO USE THE SOFTWARE. YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM, AND AGREE TO BE BOUND. THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION THAT MAY AFFECT YOUR RIGHTS. PLEASE BE SURE TO REVIEW THIS PROVISION IN ITS ENTIRETY BEFORE YOU AGREE TO THESE TERMS.
If you are agreeing to be bound by these Terms and Conditions on behalf of an entity, you must have the authority to contract on behalf of such entity. Do not use the Software if you cannot form a binding contract with Valco Cincinnati Inc. d/b/a Valco Melton (“Valco Melton”, “we”, “us”, or “our”) or are legally prohibited from using the Software.
1. Applicability of Terms and Conditions. These Terms and Conditions (collectively “Terms”) shall apply to your use of the software program incorporated into the Valco Melton product provided to you or your employer by Valco Melton, including any subsequent updates, revisions, supplements, or related internet-based services (collectively the “Software”). By using the Software, you agree to be bound by these Terms, as well as Valco Melton’s privacy policy available at https://www.valcomelton.com/about/our-privacy-policy and any terms in the purchase order entered into between Valco Melton and your employer.
2. Changes to the Terms. These Terms are subject to change at any time without prior written notice. The most recent version of these Terms shall be posted for your review at any time at https://www.valcomelton.com/about/software-terms-and-conditions. Your continued use of the Software after any posting of updated Terms (which shall be dated as of their most recent update) shall constitute your acceptance of and agreement to any changes made therein.
3. Use of Software.
a. The Software cannot be used for any other purpose outside of these Terms and the terms outlined in the agreement between your employer and Valco Melton, unless separately agreed to in writing by you and Valco Melton. Unless otherwise agreed to in writing, no use or other rights to the Software, or access thereto, are granted under this Terms to any party, and you are expressly prohibited from granting any such rights or access to any other party. By using the Software (i) you assume all the risk associated with the use of the Software, including without limitation any risks to other users or to third parties, and (ii) you hereby waive, on behalf of yourself and your users, all claims against Valco Melton, its employees, officers, directors, successors and assigns, related to such use, harm or loss.
b. In the event you have separately agreed with Valco Melton that you will provide the Software to a third-party, or that you have acquired the Software for the benefit of a third-party, you shall ensure that all of Valco Melton’s rights granted under these Terms and Conditions shall remain enforceable against such third-party, including but not limited to (1) Valco Melton’s intellectual property ownership rights, (2) Valco Melton’s licensing rights, and (3) such rights granted to Valco Melton under Sections 8, 9, and 10. Failure to secure Valco Melton’s rights against a third-party customer shall be considered a breach of these Terms and Conditions and grounds for termination.
4. Feedback. From time to time, you may provide Valco Melton with suggestions or idea for improving or otherwise modifying the Software, or other products or services offered by Valco Melton. Valco Melton may also collect or review data regarding your usage of the Software or that is input into the Software for product improvement or troubleshooting purposes (along with suggestions regarding modifications or improvements, collectively the “Feedback”). Nothing in these Terms or in the parties’ dealings arising out of or related to these Terms will restrict Valco Melton’s right to use, profit from, disclose, publish, keep secret or otherwise exploit Feedback without compensating or crediting you. You hereby grant Valco Melton a perpetual, irrevocable right and license to exploit Feedback in any and every way.
5. Intellectual Property Rights.
a. As between you and Valco Melton, Valco Melton owns (1) all right, title, and interest, including all intellectual property rights, in and to the Software and any and all collateral, distributable, documentation or other materials provided by Valco Melton to you; (2) the Valco Melton name, Valco Melton trademark, and related slogans and designs (collectively referred to as the “Valco Melton IP”). You acknowledge all of Valco Melton’s rights in and to the above and agree not to contest Valco Melton’s ownership of any Valco Melton IP.
b. Notwithstanding the foregoing, the Software may include third party materials incorporated therein, and you expressly acknowledge and agree that Valco Melton has no responsibility for and makes no representations or warranties regarding such third party materials or your use thereof.
c. As between you and Valco Melton, you own all right, title, and interest, including all intellectual property rights, in and to any data that you input into the Software and any resulting measurements, images, data, or other materials that are created by the Software based on your input (collectively the “Customer Data”). You hereby grant Valco Melton a perpetual, irrevocable right and license to review and use the Customer Data to improve the Software, any services provided by Valco Melton in connection with the Software, and to provide support as necessary for its customers’ continued use of the Software.
d. If you learn of a breach of Valco Melton IP rights, rights to the Software or any and all collateral, distributable, documentation or other materials provided by Valco Melton to you, you agree to promptly inform Valco Melton in writing and cooperate with Valco Melton in any reasonable manner to assist with the enforcement of Valco Melton’s rights.
e. ALL RIGHTS NOT EXPRESSLY GRANTED IN THESE TERMS ARE RESERVED BY VALCO MELTON.
6. Use Restrictions.
a. These Terms permit you to use the Software solely within your employment. Except as expressly permitted by these Terms or by applicable law, you will not, and will not allow others to, perform the following activities: (i) copy, modify, create derivative works, publicly display, publicly perform, disassemble, reverse engineer or otherwise make any use of the Software, or enable others to do the same; (ii) sell, resell, rent, lease, sublease, license, assign, or lend the Software; (iii) work around any technical limitation or security measures present in the Software; (iv) use the Software for any commercial or hosting purpose; or (v) remove any proprietary rights or confidentiality notices within the Software or any software, documentation, or other materials supplied with the Software.
b. You agree not to use the Software (i) in any way that 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 United States or other countries; (ii) to impersonate or attempt to impersonate Valco Melton, another user, or any other person or entity; (iii) to engage in conduct that restricts or inhibits any other user’s use or enjoyment of the Software or which, as determined by Valco Melton, may harm Valco Melton or users of the software, or expose them to liability; (iv) to use any manual process to monitor or copy any of the material from the Software, or for any other purpose not expressly authorized in these Terms; or (v) attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Software, the server where the Software is hosted, or any other server, computer, or database connected to the Software.
7. Term and Termination.
a. These Terms are effective as of your commencement of installation of or engagement with the Software and will continue to be in effect and apply for one (1) year (the “Term”). The Term will automatically renew for successive one-year terms unless a party terminates the Term in accordance with Section 7(b).
b. This Agreement may be terminated by you upon providing Valco Melton sixty (60) days written notice. Your access to the Software may be terminated by Valco Melton at any time for any or no reason in its sole discretion, resulting in the termination of these Terms. Upon termination of these Terms for any reason, all rights granted under these Terms will immediately terminate and, specifically with respect to the Software, you agree to cease use of and destroy all copies of the Software in your possession, custody, or control, to the extent they may exist, and to destroy any and all Valco Melton IP in your possession, custody, or control. The terms that by nature should survive termination of these Terms shall survive termination of these Terms.
8. DISCLAIMER OF WARRANTIES.
a. THE SOFTWARE AND ANY RELATED MATERIALS OR DISTRIBUTED MATERIALS ASSOCIATED THEREWITH ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND UNLESS OTHERWISE EXPRESSLY SET FORTH IN A WARRANTY AGREEMENT. VALCO MELTON, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY DISCLAIMS ALL REPRESENTATIONS, PROMISES, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND ANY RELATED MATERIALS OR DISTRIBUTED MATERIALS OR SOFTWARE ASSOCIATED THEREWITH, INCLUDING THEIR CONDITION, AVAILABILITY, OR THE EXISTENCE OF ANY LATENT DEFECTS, AND FURTHER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SUITABILITY, AND FITNESS FOR ANY PURPOSE. VALCO MELTON DOES NOT WARRANT THAT THE SOFTWARE WILL BE BUG FREE, VIRUS FREE, ERROR-FREE, UNINTERRUPTED, OR WILL MEET YOUR REQUIREMENTS OR ALLOW YOU TO ACHIEVE ANY PARTICULAR RESULTS.
b. YOU ARE SOLELY RESPONSIBLE FOR ENTERING DATA INTO THE SOFTWARE FOR USE OF THE RELEVANT VALCO MELTON PRODUCT. VALCO MELTON DISCLAIMS ALL WARRANTIES REGARDING THE INPUT OF DATA AND SHALL NOT BE LIABLE FROM ANY INJURIES RESULTING FROM YOUR INPUT OF DATA INTO THE SOFTWARE.
c. EXCEPT AS EXPRESSLY STATED IN THESE TERMS, THERE ARE NO CONDITIONS, WARRANTIES, REPRESENTATIONS OR OTHER TERMS, EXPRESS OR IMPLIED, THAT ARE BINDING ON VALCO MELTON. ANY CONDITION, WARRANTY, REPRESENTATION OR OTHER TERM WHICH MIGHT OTHERWISE BE IMPLIED INTO, OR INCORPORATED IN THESE TERMS, WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, IS EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL VALCO MELTON BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THESE TERMS FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, FOR ANY LOSS OF PROFITS, SALES, BUSINESS OR REVENUE OR OTHER BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF BUSINESS OPPORTUNITY OR DAMAGE TO GOODWILL, OR FOR ANY LOSS OF DATA. IN NO EVENT WILL VALCO MELTON BE LIABLE FOR ANY SUCH DAMAGES EVEN IF VALCO MELTON WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE. UNLESS OTHERWISE PROHIBITED BY LAW, VALCO MELTON’S MAXIMUM AGGREGATE LIABILITY UNDER THESE TERMS WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL IN ALL CIRCUMSTANCES BE LIMITED TO THE AMOUNT PAID TO VALCO MELTON BY YOU IN THE PURCHASE ORDER UNDER WHICH THE CLAIM ARISES. Notwithstanding the foregoing, nothing in these Terms shall prejudice your statutory rights as a consumer under applicable law.
10. Indemnity. You agree to indemnify, hold harmless and, at Valco Melton’s option, defend Valco Melton and its officers, directors, employees, agents, successors and assigns harmless from any and all judgments, awards, settlements, liabilities, damages, costs, penalties, fines and other expenses (including court costs and reasonable attorneys’ fees) incurred by them arising out of or relating to any claim (i) based upon or arising from or relating to your use of the Software; or (ii) based upon or arising from or relating to your acts and omissions in performing under these Terms or any breach or alleged breach of these Terms by you. In no event may you enter into any settlement or like agreement with a third party that affects Valco Melton’s rights or binds Valco Melton in any way, without the prior written consent of Valco Melton.
11. Export Restrictions. The Software may be subject to export laws and regulations. You must comply with all applicable laws, ordinances, regulations and codes, including the identification and procurement of required permits, certificates, licenses, insurance, approvals, inspection, regulatory (e.g. emission) and safety (e.g. UL) requirements in connection with your use of the Software under these Terms. You acknowledge and understand that the Software may be subject to restrictions upon export from the United States and upon resale after export. You therefore represent and warrant that you will comply fully with all relevant regulations of the U.S. Department of Commerce, with the U.S. Export Administration Act, and with any other import and/or export control laws or regulations of the United States.
12. Equitable Relief. You acknowledge that the unauthorized use, transfer, or disclosure of the Software or copies thereof will: (i) substantially diminish the value to Valco Melton of the trade secrets and other proprietary interests that are the subject of these Terms; (ii) render Valco Melton’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If you breach any of the obligations with respect to the use or confidentiality of the Software, Valco Melton shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
13. Entire Agreement. These Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes any other prior agreements and undertakings with respect to the matters covered hereby; provided, however, that these Terms shall be subject to the agreement(s) between Valco Melton and your employer. If the Terms conflict with any terms of said agreement with your employer, the terms of the agreement with your employer shall govern.
14. Choice of Law & Jurisdiction. Excluding conflict of laws rules, these Terms shall be governed by and construed under the laws of the State of Ohio. All disputes arising out of or in relation to these Terms shall be submitted to the exclusive jurisdiction of the state or federal courts of located in State of Ohio.
15. Arbitration. At Valco Melton’s sole discretion, it may require you to submit any disputes arising from these Terms or the user of the Software, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Ohio law.
16. Assignment & Successors. You may not assign these Terms without the prior written consent of Valco Melton. Any assignment without such consent is void and of no effect. Valco Melton may assign your subscription to the Software without your consent and these Terms shall inure to the benefit of permitted successors and assigns.
17. Severability. In the event that a provision of these Terms is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these Terms will continue in full force and effect.
18. No Waiver. Neither party will be deemed to have waived any of its rights under these Terms by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of these Terms will constitute a waiver of any other breach of these Terms.
19. Force Majeure. Valco Melton shall not be liable hereunder for any failure or delay in the performance of its obligations under these Terms if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, pandemics or acts of God, in which event Valco Melton shall be excused from its obligations for the period of the delay and for a reasonable time thereafter.