VeloCloud Service End User Subscription Agreement

This End User Subscription Agreement (“Agreement”) is made by and between VeloCloud Networks, LLC (“VeloCloud”), an affiliate of VMware, Inc. a Delaware corporation (“VMware”), or its authorized reseller (collectively referred to as “we,” “us,” or “our”) and you, as an end user (“End User,” “you,” or “your”) of the VeloCloud cloud network service (“VeloCloud Service”), and sets forth the terms and conditions under which the VeloCloud Service will be provided to you. You will be deemed to have accepted this Agreement and will be bound by its terms if you indicate your affirmative acceptance of these terms by electronic “click through” for use of the VeloCloud Service.

1. Entire Agreement.

This Agreement, together with all ordering documents referencing this Agreement (each, a “Order”), and any other documents incorporated into this Agreement, constitute the entire agreement between us and you relating to your purchase of subscription(s) to use the VeloCloud Service and to use the customer premise equipment provided to you for use in connection with the VeloCloud Service (the “CPE” and together, the “Service”); provided that no conflicting terms or conditions set forth on any Order (to which notice of objection is hereby given), or in any future correspondence between us and you, will alter or supplement this Agreement unless VeloCloud agrees in writing to those terms. You may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose. This Agreement may only be amended or modified by a writing signed by both parties.

2. Delivery; Subscription Start Date.

All deliveries of Equipment are FCA our facility. Delivery dates are estimates only and are not of the essence. The start date of your subscription to the VeloCloud Service will be the earlier of (i) the date of your activation of the VeloCloud Service, and (ii) the date that is 30 days after the date of shipment of the Equipment associated with the subscription.

3. Invoicing, Payments and Taxes.

You agree to pay the fees for the Service as set forth in the Order, together with shipping charges (if applicable) and any taxes, duties, excises and other charges, including VAT, due in connection with the sale, installation, provisioning or use of the Service. Payment is due thirty (30) days from the date of the invoice. All payments are to be made in U.S. dollars, unless otherwise stated on the Order. In the event of late payment, we may charge you interest on the unpaid amount at the rate of 1.5% per month or the maximum amount permitted under applicable law, whichever is less; and you agree to pay our collection costs and expenses, including reasonable attorneys fees.

4. Cancellation Policy.

ALL ORDERS ARE NON-CANCELLABLE AND ALL AMOUNTS PAID ARE NONREFUNDABLE.

5. Use of Service and Equipment.

5.1 General Restrictions.

You must not: (a) resell or sublicense the Service; or (b) use the Service (i) in a way prohibited by law, regulation, or governmental order or decree, (ii) to violate any rights of others, (iii) to try to gain unauthorized access to, test the vulnerability of, or disrupt the Service or any other service, device, data, account, or network, (iv) to distribute spam or malware, (v) in a way that could harm the Service or impair anyone else’s use of it, or (vi) in a way intended to work around the Service technical limitations, recurring fees calculation, or usage limits.

You agree to abide by the terms of this Agreement in connection with any use for the VeloCloud Service. You may install and use the Equipment solely for the purposes of accessing and using the VeloCloud Service during the subscription period purchased by you. You agree not to disable or defeat any capacity-limiting feature of the Equipment, or otherwise use the Equipment at a greater capacity rate than the rate for which you have subscribed. You agree not to use the Equipment with any unsupported hardware or software (as described in the applicable documentation provided by VeloCloud).

5.2 No Life Support.

The Service is not designed, intended, authorized, or warranted for use or inclusion in life support, nor in life endangering applications where failure or inaccuracy might cause death or personal injury; any such use or inclusion by you is fully at your own risk, and you shall indemnify and hold us and our suppliers harmless from all resulting or related costs, loss, liability, and expense (including without limitation court and reasonable attorneys fees).

5.3 Violations of Acceptable Use.

If you become aware that any use of the Service that violates the requirements of this Section 5, you must take prompt action to suspend the user’s use of the Service. We may ask you to take action within a certain time period. If you fail to comply with our request we may suspend your account.

6. Protection of Equipment; Return Upon Expiration.

The Equipment belongs to us. You may not sell, lease, abandon, or give away the Equipment; allow anyone other than VeloCloud or its agents to service the Equipment; or permit any other person to use the Equipment, other than on your behalf in connection with your use of the VeloCloud Service. You will be directly responsible for loss of the Equipment. Upon expiration or termination of the subscription period purchased by you, you must return the Equipment to us, at your cost, in the same condition as when delivered to you, reasonable wear and tear excepted; and if we have not received the Equipment in such condition within 10 days thereafter, you will be deemed to have purchased the Equipment at VeloCloud’s list price, and will pay us upon invoice as provided in Section 3 above.

7. Our Right to Monitor; Use of Data.

You grant us the right to audit your use of the Service, in order to confirm compliance with this Agreement. You acknowledge and agree that may use, on an aggregated, non-individually-identifiable basis, all information regarding networking characteristics, usage, performance and related data involved in your use of the Service.

8. Changes to Service.

You acknowledge that we may change the VeloCloud Service, the Equipment, either by physical replacement or by remote changes to software or firmware, and/or the terms under which the VeloCloud Service and Equipment are provided, at our discretion, at any time. Those changes may interrupt your VeloCloud Service.

9. Proprietary Rights.

Except as explicitly set forth in this Agreement, you do not acquire any rights in or license to any component of the Service or any VeloCloud or VMware intellectual property rights. You must not, and must not encourage any third party to: (a) modify, adapt, alter, disassemble, reverse engineer, decompile, disassemble, or attempt to derive the source code for the Service (including the Equipment), except to the extent that such activities are required to be permitted under applicable law; or (b) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of VeloCloud, VMware, or its or their suppliers affixed or contained on or within any Equipment. Without limiting the foregoing, any software provided to you or made available for your use in connection with the Service (“Software”) is licensed only, is subject to any accompanying license agreement, and as between you and us, we retain title in all copies of the Software, and you do not obtain title to, or ownership of, any intellectual property rights in the Software or any copies thereof. VeloCloud reserves all rights not expressly granted by this Agreement.

10. Confidential Information.

You agree to treat any information regarding the Service and any other information provided to you by us that would reasonably be understood to be confidential (“Confidential Information”) as strictly confidential, and use that Confidential Information only for the purposes of using the Service as permitted by this Agreement.

11. Limited Warranty.

VeloCloud warrants to you that the Equipment will be free from defects in material and workmanship (the “Exclusive Warranty”) during your subscription for the VeloCloud Service. With respect to the Equipment, the Exclusive Warranty will apply only to the extent the Equipment has been installed, used, and maintained in accordance with the conditions specified by VeloCloud or, in absence of such conditions, at least in conditions consistent with generally accepted practices for this type of product; and not been subject to any unauthorized modification or repair or attempts to modify or repair; and not been connected to or used in combination with other incompatible equipment or systems.

If any Equipment fails to meet the Exclusive Warranty, then upon your written request and pursuant to any warranty procedure published by VeloCloud, VeloCloud shall, at VeloCloud’s sole option and expense, promptly either repair or replace the Equipment in question. The remedies specified in this section shall constitute your sole and exclusive remedy and VeloCloud’s sole and exclusive liability with regard to the Equipment and VeloCloud’s breach of the Exclusive Warranty.

WE MAKE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND WE EXPRESSLY EXCLUDE AND DISCLAIM ANY AND ALL WARRANTIES WHICH MAY BE IMPLIED OR OTHERWISE CREATED BY OPERATION OF LAW INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF UNINTERRUPTED OR ERROR-FREE USE OR OPERATION, AND MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

12. Indemnification.

12.1 Indemnification by VeloCloud.

VeloCloud will defend you against any third party claim that the Equipment infringes any patent, trademark, or copyright of such party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of your actions) (the “Claim”), and indemnify you from the resulting costs and damages finally awarded against you to such third party by a court of competent jurisdiction or agreed to in settlement. You agree that VeloCloud, at its sole option, shall be relieved of the foregoing obligations unless you (a) give prompt, written notice to VeloCloud of all Claims, (b) cooperate reasonably with VeloCloud (at VeloCloud’s reasonable expense), and (c) grant VeloCloud the sole right to defend, or at VeloCloud’s option settle, all such Claims. If VeloCloud becomes aware of a Claim, VeloCloud may, in its sole discretion, obtain the right for you to continue to use the Equipment, or modify the Equipment so that it is no longer infringing or misappropriating, or accept return of Equipment. VeloCloud will have no liability for any Claim resulting from any unauthorized use, combination, modification or alteration of the Equipment, where such Claim would not have arisen except for such use, combination, modification or alteration. The foregoing sets forth your sole remedy, and VeloCloud’s sole liability, for any claim of infringement or misappropriation with regard to the Equipment.

12.2. Indemnification by You.

If we are subject to any third-party claim or demand arising from or relating to your use of the Service in violation of the Agreement (collectively, “End User Claims”); then you will (i) defend us against any End User Claims, and (ii) indemnify us for all fines, damages, or other costs arising out of or otherwise relating to the End User Claims, or agreed to in settlement of the End User Claims. We will: (A) provide you with notice of any End User Claim within a reasonable period after learning of the End User Claim, and (B) reasonably cooperate in response to your requests for assistance. You will have sole control over the defense regarding any End User Claim. You may not, without our prior written consent, which will not be unreasonably withheld, conditioned, or delayed, settle or compromise any End User Claims subject to this Section 12 if any settlement or compromise requires VeloCloud to admit any liability, or would affect any Service or our business practices or policies, or impose any unreimbursed cost on us.

13. LIMITATION OF LIABILITY.

(A) IN NO EVENT WILL VELOCLOUD OR ANY VELOCLOUD SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

(B) IN NO EVENT WILL OUR AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED, AND YOU RELEASE ALL CLAIMS AGAINST US (AND ANY OF OUR LIABILITY) IN EXCESS OF, THE AMOUNTS PAID BY YOU TO US DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM IN RELATION TO THE SERVICE IN CONNECTION WITH WHICH THE LIABILITY ARISES. THE EXISTENCE OF ONE OR MORE SUCH CLAIMS WILL NOT RAISE OR EXTEND THIS LIMIT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY SET FORTH IN THIS AGREEMENT.

14. VeloCloud as Beneficiary.

If this Agreement is entered into between you and VeloCloud’s authorized reseller, THE TERMS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE LIMITED WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, ARE EXPRESSLY INTENDED TO INURE TO THE BENEFIT OF VELOCLOUD (AND VMWARE), AND VELOCLOUD (AND VMWARE) SHALL BE A THIRD PARTY BENEFICIARY (OR THIRD PARTY BENEFICIARIES) OF THOSE TERMS.

15. Compliance with Laws.

Each party must comply with all laws, rules, and regulations applicable to the actions contemplated by this Agreement. You are responsible for your user’s compliance.

16. Export Control.

You acknowledge that the Software is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that (1) you are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) you will not permit the Software to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and documentation by or for the U.S. Government shall be governed solely by the terms and conditions of this Agreement.

17. Governing Law; Forum.

The parties agree that this Agreement will be construed pursuant to the laws of the State of California, without giving effect to provisions related to choice of laws or conflict of laws, and with venue in the state and federal courts located in Santa Clara County, State of California regardless of the place this Agreement may have been executed or where performance under this Agreement takes place, and the parties submit to the personal jurisdiction of such courts. All disputes between the parties arising out of or related to this Agreement, other than claims arising out of non-payment by you, must be brought within one (1) year after the accrual of the dispute.

18. Term and Termination.

The term of this Agreement will be the period for which you have purchased a subscription to the VeloCloud Service, beginning on the subscription start date determined as set forth above in Section 2. We may terminate this Agreement with immediate effect upon notice to you if any of the following occurs: (i) a petition in bankruptcy is filed by or against you, you are declared bankrupt, or proceedings are initiated by or against you seeking appointment of a receiver, reorganization, liquidation, dissolution, or other similar relief, or (ii) you materially breach this Agreement and fail to cure such breach within thirty (30) days after written notice of that breach, provided, however, that no cure period will apply to your failure to make timely payments under this Agreement. In the event of any of the foregoing, we will be entitled, without prejudice to any other remedies, to terminate your use of the VeloCloud Service without being in breach of this Agreement. Upon expiration or termination, all terms and provisions in this Agreement which by their nature should survive expiration or termination of this Agreement will so survive. Without limiting the foregoing, Sections 7 (Our Right to Audit; Use of Data), 9 (Proprietary Rights), 10 (Confidential Information), 11 (Limited Warranty), 12 (Indemnification), 13 (Limitation of Liability), 14 (VeloCloud as Beneficiary), 15 (Compliance with Law), 16 (Export Control) and 17 (Governing Law; Forum) will survive any expiration or termination of this Agreement. Upon the effective date of termination of the Agreement for any reason: (a) all rights granted to you under this Agreement, including your right to use the Service, will immediately terminate; (b) you must stop all use of the Service, and (c) you must return or, if we request, destroy any Confidential Information of Velocloud or our suppliers.

19. Force Majeure.

Other than for your payment obligations under this Agreement, neither party will be liable to the other for default or delay in the performance of any of its obligations under this Agreement due to events beyond the reasonable control of such party, including without limitation acts of God or of public enemy (collectively, “Force Majeure”). In the case of a Force Majeure event, the affected party’s performance (other than your payment obligations) is excused for a period equal to the time lost by reason of Force Majeure.

20. Assignment.

You may not, without prior written consent of VeloCloud, assign or otherwise transfer to a third party this Agreement, except to an entity that acquires all or substantially all of your business or assets. This Agreement shall be binding and shall inure to the benefit of the permitted legal successors of either party to this Agreement. Velocloud may assign this Agreement to any current or future affiliate or subsidiary, including VMware, Inc.

21. Miscellaneous.

Failure by either party to enforce any provisions of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. If any part of this Agreement is found to be unenforceable, the remaining portions of this Agreement will remain in full force and effect.

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