1. Acceptance of Agreement.
“We”, “us” and “our” refer to OpenVPN Technologies, Inc., a Delaware corporation.
“You” and “your” refer to each user of the OpenVPN Site. If you are using the OpenVPN Site on behalf of a legal entity, then (a) you, as an individual, warrant that you have authority to bind that entity to this Agreement and (b) “you” and “your” also refer to that entity.
This Agreement constitutes the entire and only agreement between us and you, and supersedes all prior or contemporaneous agreements with respect to the subject matter of this Agreement.
The latest version of this Agreement will be posted on the OpenVPN Site.
2. Terms Governing OpenVPN Software and Services
“Software and Services Agreements” means the terms and conditions set forth in, and in any agreements referenced by, the remainder of this Section 2. In the event of a conflict between the Software and Services Agreements and this Agreement (excluding the Software and Services Agreements), the Software and Services Agreements will govern.
OpenVPN® Community Software is provided under the GNU General Public License. You may make Non-commercial Use of OpenVPN® Community Software. You may not make Commercial Use of OpenVPN® Community Software.
The OpenVPN® Community Software license does not give you the right to use the OpenVPN® trademark (as that term is defined in Section 3, below). For more information, please go to the OpenVPN® Community Software page.
“Commercial Use” and “Non-commercial Use” are defined in Section 4, below.
3. OpenVPN Intellectual Property.
We, or in certain instances our licensors, own all Content and all intellectual property rights therein, including without limitation all copyrights. The copying, redistribution, use or publication by you of any Content, except as allowed by Section 4, below, is strictly prohibited.
OpenVPN® is a registered trademark of OpenVPN Technologies, Inc. You may not use that trademark except as, and to the extent, expressly authorized by us.
The following provisions of this Section 4 do not apply to OpenVPN® software or our Private Tunnel service, which are discussed in Section 2, above.
“Non-commercial Use” means use solely by you (if you are an individual) or internally by your personnel (if you are a legal entity), solely for your benefit and not for the benefit of, or to receive compensation from, any third party. “Commercial Use” means any use other than Non-commercial Use.
You are granted a non-exclusive, non-transferable, revocable license (a) to make Non-commercial Use of the OpenVPN Site and Content and (b) to print out, and to make Non-commercial Use of, portions of the OpenVPN Site and Content to the minimum extent required to exercise the rights set forth in clause (a), above. You may not make the OpenVPN Site or the Content, or any portion or any copy thereof, available to any third party. No part of the OpenVPN Site or the Content, or any copy thereof in any medium, may be used by you in any litigation or arbitration matter whatsoever under any circumstances.
5. Restrictions and Prohibitions on Use.
To the extent that there is any conflict between clause (a), (b) or (c) in the preceding paragraph and any provision of a license agreement pertaining to any OpenVPN® software, the license agreement will govern.
6. Forms, Agreements & Documents
We may make available through the OpenVPN Site or through third-party websites sample and actual forms, checklists, business documents and legal documents (collectively, “Documents”). All Documents are provided on a non-exclusive basis solely for your personal, one-time Non-commercial Use, without any right to re-license, sublicense, distribute, assign or transfer such rights. Documents are provided for a charge and without any representations or warranties, express or implied, as to their suitability, legal effect, completeness, currentness, accuracy, and/or appropriateness. The Documents are provided “as is”, “as available”, and with “all faults”, and we and any provider of the Documents disclaim any warranties, including but not limited to the warranties of merchantability and fitness for a particular purpose. The Documents may be inappropriate for your particular circumstances. Furthermore, state laws may require different or additional provisions to ensure the desired result. You should consult with legal counsel to determine the appropriate legal or business documents necessary for your particular transactions, as the Documents are only samples and may not be applicable to a particular situation. Some Documents are public domain forms or available from public records.
7. No Legal Advice or Attorney-Client Relationship.
Information contained on or made available through the OpenVPN Site is not intended to and does not constitute legal advice, recommendations, mediation or counseling under any circumstance and no attorney-client relationship is formed. We do not warrant or guarantee the accurateness, completeness, adequacy or currency of the information contained in or linked to the OpenVPN Site. Your use of information on the OpenVPN Site or materials linked to the OpenVPN Site is entirely at your own risk. We are not a law firm and the OpenVPN Site is not a lawyer referral service.
8. Linking to the OpenVPN Site.
You may provide links to the OpenVPN Site, provided (a) that you do not remove or obscure, by framing or otherwise, advertisements, the copyright notice, or other notices on the OpenVPN Site, (b) your OpenVPN Site does not engage in illegal or pornographic activities, and (c) you discontinue providing links to the OpenVPN Site immediately upon request by us.
The OpenVPN Site may contain advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the OpenVPN Site is accurate and complies with applicable laws. We are not responsible for the illegality or any error, inaccuracy or problem in the advertiser’s or sponsor’s materials.
Certain sections of, or offerings from, the OpenVPN Site may require you to register. If registration is requested, you agree to provide us with accurate, complete registration information. Your registration must be done using your real name and accurate information. Each registration is for your personal use only and not on behalf of any other person or entity. We do not permit (a) any other person using the registered sections under your name; or (b) access through a single name being made available to multiple users on a network. You are responsible for preventing such unauthorized use.
11. Errors, Corrections and Changes.
We do not represent or warrant that the OpenVPN Site will be error-free, free of viruses or other harmful components, or that defects will be corrected. We do not represent or warrant that the Content will be correct, accurate, timely or otherwise reliable. We may make changes to the features, functionality or Content of the OpenVPN Site at any time. We reserve the right in our sole discretion to edit or delete any Content.
12. Third-party Content.
Third-party content may appear on the OpenVPN Site or may be accessible via links from the OpenVPN Site. We are not responsible for and assume no liability for any mistakes, misstatements of law, defamation, omissions, falsehood, obscenity, pornography or profanity in the statements, opinions, representations or any other form of third-party content on the OpenVPN Site or elsewhere. You understand that the information and opinions in the third-party content represent solely the thoughts of the author and is neither endorsed by nor does it necessarily reflect our beliefs or opinions.
13. Unlawful Activity.
We reserve the right to investigate complaints or reported violations of this Agreement and to take any action we deem appropriate, including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your profile, email addresses, usage history, posted materials, IP addresses and traffic information.
You agree to indemnify, defend and hold us and our partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers of information and documents, attorneys, advertisers, product and service providers, and affiliates (collectively, "Affiliated Parties") harmless from any liability, loss, claim and expense, including reasonable attorney's fees, related to your violation of this Agreement or use of the OpenVPN Site.
Your right to use the OpenVPN Site is not transferable or assignable. Any password or right given to you to obtain information or documents is not transferable or assignable and must be maintained in confidence.
THE OPENVPN SITE AND CONTENT ARE PROVIDED "AS-IS," "AS AVAILABLE," WITH “ALL FAULTS”, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE OPENVPN SITE AND CONTENT MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE, EXCEPT AS PROVIDED IN SECTION 17(b). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WE AND OUR AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THE OPENVPN SITE AND CONTENT WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE OPENVPN SITE OR ANY CONTENT OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED.
17. Limitation of Liability
(a) We and any Affiliated Party shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (i) any errors in or omissions from the OpenVPN Site or any Content, (ii) the unavailability or interruption of the OpenVPN Site or any features thereof or any Content, (iii) your use of the OpenVPN Site or Content, or (iv) any delay or failure in performance beyond our control.
(b) THE AGGREGATE LIABILITY OF US AND THE AFFILIATED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE OPENVPN SITE AND/OR THE CONTENT SHALL NOT EXCEED $100 AND THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST US AND ANY AFFILIATED PARTY.
18. Use of Information.
19. Third-Party Services.
We may allow access to or advertise certain third-party product or service providers ("Merchants") from which you may purchase certain goods or services. You understand that we do not operate or control the products or services offered by Merchants. Merchants are responsible for all aspects of order processing, fulfillment, billing and customer service. We are not a party to the transactions entered into between you and Merchants. You agree that use of or purchase from such Merchants is AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY US, EXPRESSED, IMPLIED OR OTHERWISE INCLUDING WARRANTIES OF TITLE, FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND MERCHANTS OR FOR ANY INFORMATION APPEARING ON MERCHANT OPENVPN SITES OR ANY OTHER OPENVPN SITE LINKED TO OUR OPENVPN SITE.
20. Third-Party Merchant Policies.
All rules, policies (including privacy policies) and operating procedures of Merchants will apply to you while on any Merchant OpenVPN Sites. We are not responsible for information provided by you to Merchants. We and the Merchants are independent contractors and neither party has authority to make any representations or commitments on behalf of the other.
You represent and warrant that if you are purchasing something from us or from Merchants that (i) any credit information you supply is true and complete, (ii) charges incurred by you will be honored by your credit card company, and (iii) you will pay the charges incurred by you at the posted prices, including any applicable taxes.
23. Securities Laws.
The OpenVPN Site may include statements concerning our operations, prospects, strategies, financial condition, future economic performance and demand for our products or services, as well as our intentions, plans and objectives (particularly with respect to product and service offerings), that are forward-looking statements. These statements are based upon a number of assumptions and estimates which are subject to significant uncertainties, many of which are beyond our control. When used on our OpenVPN Site, words like "anticipates," "expects," "believes," "estimates," "seeks," "plans," "intends," "will" and similar expressions are intended to identify forward-looking statements designed to fall within securities law safe harbors for forward-looking statements. The OpenVPN Site and the information contained herein does not constitute an offer or a solicitation of an offer for sale of any securities. None of the information contained herein is intended to be, and shall not be deemed to be, incorporated into any of our securities-related filings or documents.
24. Links to other Web OpenVPN Sites.
The OpenVPN Site contains links to third-party websites. We are not responsible for the content, accuracy or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked website on the OpenVPN Site does not imply approval or endorsement of the linked website by us. If you decide to leave the OpenVPN Site and access these third-party websites, you do so at your own risk.
25. Information and Press Releases.
The OpenVPN Site contains information and press releases about us. We disclaim any duty or obligation to update this information or any press releases. Information about companies other than ours contained in the press release or otherwise, should not be relied upon as being provided or endorsed by us.
26. Legal Compliance.
You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the OpenVPN Site and the Content.
27. Refund and Return Policy.
To the extent that you purchase any products or services directly from us, we will refund you your purchase price within 30 days of you notifying us in writing of your desire for the refund, together with the reason for the request, with the product or service returned to us in substantially the same condition as when purchased. Please note, however, that certain products and services mentioned on our OpenVPN Site are sold by third parties or are linked to third-party websites, and we have no responsibility or liability for those products or services. You may request a refund by contacting us by email at firstname.lastname@example.org.You may obtain any additional information concerning our refund and return policy, including our mailing address, by contacting us at email@example.com.
This Agreement shall be treated as though it were executed and performed in San Francisco, California, and shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of law principles). Any cause of action by you with respect to the OpenVPN Site (and/or any information, Documents, products or services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred. All actions shall be subject to the limitations set forth in Section 16 and Section 17. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. This Agreement and all incorporated agreements and your information may be automatically assigned by us in our sole discretion to a third party in the event of an acquisition, sale or merger. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the OpenVPN Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Our rights under this Agreement shall survive any termination of this Agreement.
Any legal controversy or legal claim arising out of or relating to this Agreement or our services, excluding legal action taken by us to collect or recover damages for, or obtain any injunction relating to, OpenVPN Site operations, intellectual property, and our services, shall be settled solely by binding arbitration in accordance with the commercial arbitration rules of JAMS. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Pleasanton, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or us may seek any interim or preliminary relief from a court of competent jurisdiction in Pleasanton, California necessary to protect the rights or property of you and us pending the completion of arbitration. Each party shall bear one-half of the arbitration fees and costs incurred through JAMS.