Last revised February 14th, 2017.
These Visual Composer Cloud Access Terms (this “Agreement”) constitute a legal agreement between TechMill Ltd., a Latvian company having its principal place of business at Ainavas street 2A – 28, Riga, LV-1084, Latvia (“TechMill,” “we,” “us,” or “our”) and you, the person or entity that has placed an order for Visual Composer Cloud Access (“You” or “Your”). This Agreement sets forth the terms and conditions that govern orders placed under this Agreement. By accessing the functionalities or Visual Composer Cloud, you agree to be bound by this Agreement.
You represent and warrant that you have validly entered into this Agreement and that you have the power and authority to do so. If you have no such power or authority you may not register with us, nor access the functionalities or Visual Composer Cloud.
You agree your order under this Agreement is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by TechMill or any of its affiliates regarding future functionality or features.
1. REGISTRATION. ACCESS TO THE VISUAL COMPOSER CLOUD. MAINTENANCE
1.1 Upon your initial request to access the Visual Composer Cloud, we will issue you certain identifying information (such as an account name or number and a password) based on the identifying information that you will provide us (such as your email address) (all together “Visual Composer Credentials”). You understand and agree that all Visual Composer Credentials are stored with our service providers and that such third party providers may at their discretion and from time to time use affiliates and/or various third party providers to store your Visual Composer Credentials.
You must obtain your payment credentials (“Payment Credentials”) directly from your electronic payment service provider with whom you have independently opened an account, and must abide by your provider’s terms to obtain, use, secure or terminate your Payment Credentials. We do not store your Payment Credentials at TechMill and our service providers do not store them, and neither us nor our service providers have the capacity to recall or retrieve your Payment Credentials.
TechMill will request that its service providers use commercially reasonable efforts to keep your Visual Composer Credentials secure.
1.2 Except as otherwise stated in this Agreement or Your order, You have the non-exclusive, non-transferable, worldwide, limited right to access the Visual Composer Cloud during the period defined in Your order, unless earlier terminated in accordance with this Agreement or the order (the “Access Period”), solely for Your personal use or internal business operations. You may allow Your Users to access the Visual Composer Cloud and functionalities for this sole purpose and no other, and You are responsible for their compliance with this Agreement and Your order.
1.3 The Visual Composer Cloud Specifications describe and govern the functionalities you may access. During the Access Period, we may update the functionalities and Specifications to reflect changes in, among other things, technology, industry practices, patterns of use, availability of Third Party Content, laws (including case law) and regulations. TechMill shall make best efforts to update the functionalities or Specifications so as to not materially reduce the level of functionality of the Visual Composer Cloud during the Access Period of Your order.
1.4 You may not, and may not cause or permit others to: (a) access the functionalities or Visual Composer Cloud to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, heinous, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any benchmarking, availability or performance testing of the functionalities or Visual Composer Cloud; or (c) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the functionalities or Visual Composer Cloud (the “Acceptable Use Policy”). In addition to other rights that we have in this Agreement and Your order, we have the right to take remedial action if the Acceptable Use Policy is violated, and such remedial action may include removing, suspending or disabling access to material that violates such policy.
1.5 You acknowledge and agree that maintenance of the Visual Composer Cloud and functionalities is required from time to time, in TechMill’s sole discretion, in order for the Visual Composer Cloud to continue to be offered. Although TechMill will strive to announce the time and duration of downtime of the Visual Composer Cloud or any functionality for regular maintenance, you acknowledge and agree that time and duration of downtime for urgent maintenance may not be announced and will occur on an as needed basis.
2. PAYMENT. FEES.
2.1 Subject only to the Refund Policy available at visualcomposer.io/refunds-policy, all fees payable are due prior to the start of the Access Period. Once placed, Your order is non-cancelable and the sums paid nonrefundable, except as provided in this Agreement or Your order. You will pay any sales, value-added or other similar taxes imposed by applicable law that we must pay based on the content of your order, except for taxes based on our income. Fees listed in an order are exclusive of taxes.
2.2 If You exceed any quantity that You ordered, any limit or your order (such as a per website or per user limit for example) or operate Your access to the Visual Composer Cloud in violation of this Agreement, then You promptly must purchase and pay fees for any excess quantity.
3. OWNERSHIP. RIGHTS AND RESTRICTIONS. DMCA
3.1 You agree to set up a process to respond to notices of alleged infringement that comply with the United States’ Digital Millennium Copyright Act (“DMCA notices”). It is TechMill’s policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down Your Content or Third Party upon receipt of a valid DMCA notice. For more information, please go to https://www.copyright.gov/legislation/dmca.pdf
3.2 You or Your licensors retain all ownership and intellectual property rights in and to Your Content. We or our licensors retain all ownership and intellectual property rights in and to the functionalities and the Visual Composer Cloud, derivative works thereof, and anything developed or delivered by or on behalf of us under this Agreement.
3.3 You may have access to Third Party Content through access to the Visual Composer Cloud. Unless otherwise stated in Your order, all ownership and intellectual property rights in and to Third Party Content and the use of such content is governed by separate third party terms between You and the third party.
3.4 You grant us the right to host, use, process, display and transmit Your Content to run the functionalities of the Visual Composer Cloud pursuant to and in accordance with this Agreement and Your order. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Content, and for obtaining all rights related to Your Content required by TechMill to run the functionalities of the Visual Composer Cloud.
3.5 You may not, and may not cause or permit others to: (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish or copy any part of the functionalities or Visual Composer Cloud (including data structures or similar materials produced by programs); (b) access or use the functionalities or Visual Composer Cloud to build, operate or support, directly or indirectly, products or services competitive to the Visual Composer Cloud; or (c) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the functionalities or the Visual Composer Cloud to any third party except as permitted by this Agreement or Your order.
4.1 By virtue of this Agreement, the parties may disclose information that is confidential (“Confidential Information”). Confidential Information shall be limited to information clearly identified as confidential at the time of disclosure. Your Content shall in no case be Confidential Information.
4.2 A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
4.3 Each party agrees not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of one (1) year from the expiry or termination for any reason of the Access Period. Each party may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement, and each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law.
5. YOUR CONTENT. BACKUP. SUPPORT
5.2 We and our affiliates may perform certain aspects of the functionalities or of the Visual Composer Cloud (e.g., administration, maintenance, support, disaster recovery, data processing, etc.) from locations and/or through use of subcontractors, worldwide.
5.3 You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content, including any viruses, Trojan horses, worms or other harmful programming routines contained in Your Content, or from Your access to the Visual Composer Cloud in a manner that is inconsistent with the terms of this Agreement. You may disclose or transfer, or instruct us to disclose or transfer, Your Content to a third party, and upon such disclosure or transfer we are no longer responsible for the security or confidentiality of such content and applications outside of TechMill.
5.4 Unless otherwise specified in Your order (including in the Specifications), You may not provide us access to health or similarly sensitive personal information that imposes specific data security obligations on the processing of such data greater than those specified in the Security Policy. You are required to notify us of any specific security concerns you may have prior to the start of the Access Period.
5.5 TechMill reserves the right (but shall have no obligation) to remove any or all of Your Content or Third Party Content from the Visual Composer Cloud and website. You agree to immediately take down any of Your Content that violates the Acceptable Use Policy, including pursuant to a take down request from TechMill. In the event that you elect not to comply with a request from TechMill to take down certain of Your Content, TechMill reserves the right to directly take down Your Content or to disable or suspend your access.
5.6 You agree that you are solely responsible for (and that TechMill has no responsibility to you or to any third party for) any of Your Content that you create, transmit or display while using the Visual Composer Cloud and functionalities and for the consequences of your actions (including any loss or damage which TechMill may suffer) by doing so.
5.7 You agree that TechMill has no responsibility or liability for the deletion or failure to store, archive or back-up any of Your Content and other communications maintained or transmitted through use of the Visual Composer Cloud. You further acknowledge that you are solely responsible for securing and backing up your activity history and any of Your Content.
5.8 Support is not provided for Your Content or Third Party Content. Support is provided only as per the Support Policy available at visualcomposer.io/support-policy.
6. NO WARRANTY. DISCLAIMERS. EXCLUSIVE REMEDIES
6.1 THE VISUAL COMPOSER CLOUD, INCLUDING ALL ITS CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON, PROVIDED IN CONNECTION WITH OR ACCESSIBLE THROUGH THE VISUAL COMPOSER CLOUD WEB PAGE, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE BASIS” WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, TECHMILL, ITS AFFILIATES, AND THEIR AGENTS, MERCHANTS OR INDEPENDENT CONTRACTORS (THE “DISCLAIMING ENTITIES”), MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER FOR THE CONTENT, MATERIALS, INFORMATION, FUNCTIONALITIES AND CAPABILITIES MADE ACCESSIBLE BY THE VISUAL COMPOSER CLOUD, OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION YOU INPUT IN THE VISUAL COMPOSER CLOUD WEBSITE. EACH DISCLAIMING ENTITY DISCLAIMS WITHOUT LIMITATION, ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE DISCLAIMING ENTITIES DO NOT WARRANT THAT THE FUNCTIONALITIES OR CAPABILITIES CONTAINED IN THE VISUAL COMPOSER CLOUD WILL BE UNINTERRUPTED OR ERROR FREE. THE DISCLAIMING ENTITIES SHALL NOT BE RESPONSIBLE FOR ANY UPTIME INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, SETTLEMENT OR CANCELLATION OF ANY ELECTRONIC TRANSACTIONS, INCLUDING PAYMENT TRANSACTIONS. THE DISCLAIMING ENTITIES ARE NOT RESPONSIBLE FOR THE ACCURACY OF ANY PAYMENT INSTRUMENT, OFFER, OR REWARD PROGRAM ITEM INFORMATION, INCLUDING, WITHOUT LIMITATION, WHETHER SUCH INFORMATION IS ACCURATE.
6.2 WE DO NOT WARRANT THAT WE WILL CORRECT ALL ERRORS OR DEFICIENCIES, OR THAT THE FUNCTIONALITIES OR THE VISUAL COMPOSER CLOUD WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. WE ARE IN NO CASE RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE FUNCTIONALITIES OR THE VISUAL COMPOSER CLOUD THAT ARISE FROM YOUR CONTENT, THIRD PARTY CONTENT, OR SERVICES PROVIDED BY THIRD PARTIES.
6.3 WE DO NOT WARRANT THAT THE END RESULT OF A VISUAL COMPOSER CLOUD PROCESS OR FUNCTIONALITY, OR YOUR EXPERIENCE OF IT, ON YOUR DEVICE, UNDER YOUR CONFIGURATION AND IN YOUR ENVIRONMENT, WILL NECESSARILY MATCH THAT PRODUCED ON ANOTHER DEVICE, CONFIGURATION OR ENVIRONMENT, NOTABLY AS TO DISPLAY CHARACTERISTICS (SUCH AS COLOR FOR EXAMPLE). DISPLAYED RESULTS OF VISUAL COMPOSER CLOUD PROCESS OR FUNCTIONALITY MAY VARY FROM USER TO USER.
7. LIMITATION OF LIABILITY
7.1 IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, LOSS OF DATA, LOSS OF CONTENT, DATA USE, GOODWILL, OR REPUTATION.
7.2 NOTWITHSTANDING ANY OTHER TERM, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TECHMILL AND OUR AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID UNDER THE ORDER GIVING RISE TO THE LIABILITY.
7.3 EXCEPT FOR ACTIONS FOR BREACH OF TECHMILL’S PROPRIETARY RIGHTS, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE EXPIRY OR TERMINATION FOR ANY REASON OF THE ACCESS PERIOD.
8.1 If a third party makes a claim against TechMill that any of Your Content infringes the third party’s intellectual property rights, You, at Your sole cost and expense, shall save, defend, indemnify and hold harmless TechMill against all damages, liabilities, costs and expenses (including attorney’s fees) provided that TechMill: (a) notifies You in writing in a timely manner after receiving notice of the claim (or sooner if required by applicable law); and (b) gives You requested and reasonably necessary assistance to defend against or settle the claim.
8.2 You agree to hold harmless and indemnify TechMill, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively “TechMill and Partners”) from and against any third party (including without limitation Your Users) claims arising from or in any way related to (a) your breach of the Agreement, (b) your use or User’s use of this website, the Visual Composer Cloud or functionalities, (c) your violation of applicable laws, rules or regulations in connection with the Visual Composer Cloud, or (d) Your Content, including without limitation any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature and under any theory of law. In such a case, TechMill will provide you with written notice of such claim, suit or action.
9. TERM. TERMINATION
9.1 This Agreement is valid for the order which this Agreement accompanies.
9.2 Access provided under this Agreement shall be provided for the Access Period defined in Your order. Your order and all related fees will automatically be renewed at the end of the Access Period for an additional Access Period of the same duration unless (i) You provide TechMill with written notice at any time prior to the end of the then current Access Period of Your intention not to renew, or (ii) TechMill provides You with notice no later than ten (10) days prior to the end of the then current Access Period of its intention not to renew your access to the functionalities and Visual Composer Cloud.
9.3 We may suspend the whole or part of Your or Your Users’ access to, or use of, the functionalities and Visual Composer Cloud if we believe that (a) there is a significant threat to the functionality, security, integrity, or availability of the functionalities or Visual Composer Cloud or any content, data, or applications of TechMill; (b) You or Your Users are accessing or using the functionalities or Visual Composer Cloud to commit an illegal act; or (c) there is a violation of the Acceptable Use Policy. When reasonably practicable and lawfully permitted, we will provide You with advance notice of any such suspension. We will use reasonable efforts to re-establish your access to the Visual Composer Cloud promptly after we determine that the issue causing the suspension has been resolved. During any suspension period, we will make Your Content (as it existed on the suspension date) available to You. Any suspension under this paragraph shall not excuse You from Your obligation to make payments under this Agreement.
9.4 If either of us breaches a material term of this Agreement or the order and fails to correct the breach within ten (10) days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If we terminate the order as specified in the preceding sentence, You must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for any reason under such order plus related taxes and expenses. Except for nonpayment of fees, the nonbreaching party may agree in its sole discretion to extend the ten (10) day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if You are in default under this Agreement, You may not use or access the functionalities or Visual Composer Cloud.
9.5 Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment and others which by their nature are intended to survive.
10. THIRD PARTY CONTENT, SERVICES AND WEBSITES
10.1 The Visual Composer Cloud may enable You to link to, transmit Your Content to, or otherwise access third parties’ websites, platforms, content, products, services, and information. We do not control and are not responsible for such third parties’ websites, platforms, content, products, services, and information.
10.2 Any Third Party Content we make accessible is provided on an “as-is” and “as available” basis without any warranty of any kind. You acknowledge and agree that we are not responsible for, and have no obligation to control, monitor, or correct, Third Party Content. We disclaim all liabilities arising from or related to Third Party Content.
10.3 You acknowledge that: (i) the nature, type, quality and availability of Third Party Content may change at any time during the Access Period, and (ii) features of the Visual Composer Cloud that interoperate with third parties such as the World Wide Web, WordPress™, Facebook™, YouTube™ and Twitter™, etc. (each, a “Third Party Service”), depend on the continuing availability of such third parties’ respective application programming interfaces (APIs). We may need to update, change or modify the functionalities, Visual Composer Cloud or Specifications as a result of a change in, or unavailability of, such Third Party Content, Third Party Services or APIs. If any third party ceases to make its Third Party Content or APIs available on reasonable terms, as determined by us in our sole discretion, we may cease providing access to the affected Third Party Content or Third Party Services without any liability to You. Any changes to Third Party Content, Third Party Services or APIs, including their unavailability, during the Access Period does not affect Your obligations under this Agreement or the applicable order, and You will not be entitled to any refund, credit or other compensation due to any such changes.
11. SERVICE MONITORING. TECHMILL SOFTWARE
11.1 We reserve the right to continuously monitor the Visual Composer Cloud to facilitate TechMill’s operation of the functionalities; to help resolve Your service requests; to detect and address threats to the functionality, security, integrity, and availability of the Visual Composer Cloud as well as any content, data, or applications therein or downloaded therefrom; and to detect and address illegal acts or violations of the Acceptable Use Policy. TechMill monitoring tools do not collect or store any of Your Content residing in the Visual Composer Cloud, except as needed for such purposes. TechMill does not monitor, and does not address issues with, non-TechMill software provided by You or any of Your Users (including through Third Party Content) that is stored in, or run on or through, the Visual Composer Cloud. Information collected by TechMill monitoring tools (excluding Your Content) may also be used to assist in managing TechMill’s product and service portfolio, to help TechMill address deficiencies in its product and service offerings, and for license management purposes.
11.2 We may (i) compile statistical and other information related to the performance, operation and use of the functionalities or Visual Composer Cloud, and (ii) use data from the functionalities in aggregate form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). We may make Service Analyses publicly available; however, Service Analyses will not incorporate Your Content or Confidential Information in a form that could serve to identify You or any individual, and Service Analyses do not constitute personal data. We retain all intellectual property rights in Service Analyses.
11.3 We may provide You with online access to download certain TechMill Software for use with the functionalities or Visual Composer Cloud. If we license TechMill Software to You and do not specify separate terms for such software, then such TechMill Software is provided as part of the Visual Composer Cloud and You have the non-exclusive, non-transferrable, worldwide, limited right to use such TechMill Software, without right to sub-license, subject to the terms of this Agreement and Your order, solely to facilitate Your use of the functionalities or Visual Composer Cloud. You may allow Your Users to use the TechMill Software solely for this purpose, and You are responsible for their compliance with the license terms. All other rights are reserved. Your right to use TechMill Software will terminate upon the earlier of our notice (by web posting or otherwise) or the end of the Access Period associated with the TechMill Software. If TechMill Software is licensed to You under separate third party terms, then Your use of such software is governed by the separate third party terms.
12.1 Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the functionalities and Visual Composer Cloud. Such export laws govern your access to the Visual Composer Cloud (including all data) and any deliverables provided under this Agreement, and You and we each agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from the functionalities and Visual Composer Cloud (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, chemical, nuclear, or biological weapons proliferation, terrorism or development of missile technology.
12.2 You acknowledge that the functionalities and Visual Composer Cloud are designed with capabilities that You and Your Users may choose access without regard to geographic location, and notably capabilities to transfer or otherwise move Your Content between the Visual Composer Cloud and other locations such as User workstations. You are solely responsible for the authorization and management of User accounts across geographic locations, as well as export control and geographic transfer of Your Content.
13. FORCE MAJEURE Save for payment obligations, neither of us shall be responsible for failure or delay of performance if caused by an event outside the reasonable control of the obligated party including. without limitation. an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, telecommunication outage; government restrictions (including the denial or cancelation of any export, import or other license); or other event (“Force Majeure”). We both will use reasonable efforts to mitigate the effect of Force Majeure event. If such event continues for more than 30 days, either of us may terminate the Access Period and the affected order upon written notice. This Section does not excuse Your obligation to pay.
14. GOVERNING LAW. JURISDICTION This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
This Agreement will be governed by and construed in accordance with the substantive laws in force in the Commonwealth of Massachusetts and the competent federal and state courts in Boston, Massachusetts shall each have non-exclusive jurisdiction over all disputes relating to this agreement.
15. NOTICE. ELECTRONIC COMMUNICATIONS.
15.1 Any notice required under this Agreement shall be provided to the other party in writing. If You have a legal dispute with us or if You wish to provide a notice under this Agreement, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to the address indicated first above.
15.2 We may give notices applicable to the functionalities and the Visual Composer Cloud by means of a general notice on the Visual Composer Cloud website, and notices specific to You by electronic mail to Your e-mail address on record in our account information or by written communication sent by first class mail or pre-paid post to Your address on record in our account information.
15.3 In order to contact you more efficiently, we may contact you using electronic, autodialed or prerecorded message calls or text messages at your telephone number(s). We may place such calls or texts primarily to confirm your signup; provide notices regarding your account or account activity; investigate or prevent fraud; collect a debt owed to us; or communicate urgent messages. You agree that we, or our service providers, may contact you using electronic, autodialed or pre-recorded message calls and text messages to carry out the purposes we have identified above. We may share your phone number(s) with service providers with whom we contract to assist us in pursuing these communications, but will not share your phone number(s) with third parties for their own purposes without your consent. Where TechMill is required to obtain your consent for such communications, you may choose to revoke your consent.
16. ASSIGNMENT You may not assign this Agreement or convey, assign or transfer the whole or part of your access to the functionalities or the Visual Composer Cloud to another individual or entity, unless with the prior written agreement of an authorized TechMill representative. Any unauthorized conveyance, assignment or transfer shall be null and void and shall constitute a breach of this Agreement. TechMill may assign the whole or part of its rights or obligations under this Agreement.
17.1 We are an independent contractor, and each party agrees that no partnership, joint venture, or agency relationship exists between the parties.
17.2 Our business partners and other third parties, including any third parties with which the functionalities or Visual Composer Cloud have integrations or that are retained by You to provide consulting services, implementation services or applications that interact with the functionalities or Visual Composer Cloud, are independent of TechMill and are not TechMill’s agents. We are not liable for, bound by, or responsible for any problems with the functionalities or Visual Composer Cloud or Your Content arising due to any acts of any such business partner or third party.
17.3 If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.
17.4 No action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
17.5 Prior to entering into an order governed by this Agreement, You are solely responsible for determining whether the functionalities or Visual Composer Could meet Your personal, technical, business or regulatory requirements. TechMill will upon prior request and within commercially reasonable limits cooperate at your cost with Your efforts to determine whether the functionalities or Visual Composer Cloud are consistent with those requirements. Additional fees may apply to any such work or other performed by TechMill. You remain solely responsible for Your regulatory compliance in connection with Your access to the functionalities or Visual Composer Cloud.
17.6 Upon ten (10) days written notice and no more than once every calendar quarter, TechMill or its designated agents may audit Your compliance with the terms of this Agreement and Your order. You agree to cooperate with TechMill’s audit at no charge and to provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal operations.
18. ENTIRE AGREEMENT
18.1 This Agreement and the information incorporated herein in a URL (such as referenced policies), together with the applicable order, constitutes the entire agreement with respect to its subject matter and supersedes all prior or contemporaneous agreements or representations, written or oral, bearing on similar subject matter.
18.2 This Agreement and orders hereunder may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online by authorized representatives of You and TechMill; however, TechMill may update the functionalities, Specifications and the Visual Composer Cloud as indicated herein, including by posting updated documents on TechMill’s websites and pushing updates to your website.
18.3 Save as expressly stated otherwise herein, this Agreement creates no third party beneficiary relationships.
19. AGREEMENT DEFINITIONS
19.1 “Specifications” means the specifications of the Visual Composer Hub as per the documents available at visualcomposer.io/features.
19.2 “Visual Composer Cloud” shall mean the functionalities and capabilities described in the Specifications as available from time to time through the Visual Composer web page.
19.3 “TechMill Software” means any software agent, application or tool that TechMill makes available to You for download specifically for purposes of facilitating Your access to, operation of, and/or use with, the functionalities or Visual Composer Cloud.
19.4 “Third Party Content” means all add-ons, API, data, text, images, audio, video, photographs, software and other material, on any support and in any format, that are obtained or derived from third party sources outside of TechMill that You may access through, within, or in conjunction with Your use of, the functionalities or Visual Composer Cloud. Examples of Third Party Content include data marketplaces, libraries and rss feeds.
19.5 “Users” means your employees, contractors, and end users, as applicable, authorized by You on Your behalf to access the functionalities and Visual Composer Cloud subject to the limits stated in this Agreement and Your order. Without prejudice to what precedes, Your own clients or end users are expressly excluded from the definition of Users.terorism
19.6 “Your Content” means all data, text, images, audio, video, photographs, software and other material, on any support and in any format, uploaded by You or any of Your Users to the functionalities or Visual Composer Cloud. Functionalities and the Visual Composer Cloud under this Agreement, TechMill Software and TechMill intellectual property, and all derivative works thereof, do not fall within the meaning of the term “Your Content.”
20.1 TechMill may make changes to the Agreement, and to the Security, Privacy, Support and Acceptable Use Policies from time to time. If we change the Agreement in any substantive way, we will give you at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account.
20.2 You understand and agree that if you use the Visual Composer Cloud or functionalities or renew the Access Period after the date on which this Agreement has been changed, TechMill will treat your use as acceptance of this updated Agreement.