Additional Subscription Terms and Conditions
THESE TERMS AND CONDITIONS SHALL APPLY IN CONJUNCTION WITH AND BE GOVERNED BY VUSPEX GENERAL TERMS AND CONDITIONS (HEREINAFTER: “GENERAL TERMS”). IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE GENERAL TERMS AND THESE SPECIAL TERMS AND CONDITIONS ON SUBSCRIPTIONS (HEREINAFTER: THE “SPECIAL TERMS”), THE SPECIAL TERMS SHALL PREVAIL. BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS AND CLICKING THE “I HAVE READ AND AGREE TO THE ABOVE TERMS” BUTTON, YOU REPRESENT AND WARRANT THAT YOU: (i) ARE AUTHORIZED TO SIGN FOR AND BIND THE CONTRACTING PARTY AND (ii) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
- General. The following Special Terms provide specific rules on the scope of Customer’s right to use the Software Service. Capitalized terms used but not defined in these Special Terms have the meanings assigned to them in the General Terms available at https://vuspex.com/legal/.
Account – The account created upon registration to use the Software Service.
Additional Viewer – An additional Inspector, Contractor or Field Agent invited by the initiating Inspector to join the Virtual Inspection as a silent or vocal participant.
Administrator – A person who signs into the VuSpex Admin Portal for the purpose of administering VuSpex account holders for Inspectors, Contractors, and Field Agents.
Completed – A Virtual Inspection is “Completed” when the Inspector, Contractor or Field Agent ends a Connected call by clicking or tapping on the end call button and confirming to end the Virtual Inspection. Upon Completion, the Inspector has the option of resulting the Virtual Inspection or taking no action.
Connected – A Virtual Inspection is “Connected” as follows: (1) an Inspector enters a phone number or email address for a Contractor or Field Agent for the purpose of conducting a Virtual Inspection, (2) an invitation to connect with the Contractor or Field Agent or additional Inspector is sent from the Inspector’s computer and received by the Contractor or Field Agent’s smartphone or by an additional Inspector, (3) the Contractor, Field Agent and/or additional Inspector accepts the invitation to connect by permitting sharing of location information, audio, video, with the initiating Inspector in real-time, and (4) the initiating Inspector receives the aforementioned shared information from the Contractor’s device and the parties are able to communicate with each other with voice, video, and location information in a real-time setting at different locations. A call is not considered to be “Connected” if VuSpex reasonably determines that the Virtual Inspection was unable to occur as a result of poor or no Internet connectivity or was materially interrupted due to poor or lost Internet connectivity. If Customer believes that a call should not be considered to be Connected, it must notify VuSpex promptly following the call by providing this feedback through the end call screen.
Contractor – A person who signs into the Software Service through the VuSpex APP and/or the VuSpex Contractor Portal for the purpose of connecting, conducting, and completing a Virtual Inspection with an Inspector. The Contractor receives a call from the Inspector on their smartphone and then communicates and is guided by the Inspector through the Virtual Inspection. The Contractor is located at the physical site to be inspected by the Inspector.
Field Agent – A person who signs into the VuSpex Contractor Portal or is called on his or her smartphone by the Inspector for the purpose of connecting, conducting, and completing a Virtual Inspection. The Field Agent receives a SMS text message from the Inspector on his or her smartphone and then connects to, communicates with, and is guided by the Inspector through the Virtual Inspection. The Field Agent is located at the physical site to be inspected by the Inspector. Note that in some cases the Field Agent may be a “remote inspector” guided by the primary inspector.
Individual Agreement – A specific agreement made with Customer containing agreed fees, payment terms and subscription term, if specified. In case of conflict between the Individual Agreement and these Special Terms, the Individual Agreement shall prevail.
Inspection Media – Media content files in the form of photos, videos, inserted markups, written and/or verbally recorded comments, messages, and annotations for the purpose of being added to the Inspection Report and/or being stored in the VuSpex CLOUD™.
Inspection Report – A report in an Adobe® PDF or Microsoft® WORD format that is automatically generated and emailed to the Inspector and/or made available for download by the Inspector shortly after the Virtual Inspection is Completed if Inspection Media was captured during the Virtual Inspection. If no Inspection Media is captured an Inspection Report will not be generated. Virtual Inspections remain available for download until the Inspection Media associated with such report has been removed or deleted by the Customer.
Inspection Result – A set of pre-defined options for the Inspector to select when resulting the Virtual Inspection, such as: Pass, Fail, Need More Information, Re-Inspection, Won’t Do and so forth.
Inspector – A person who signs into the VuSpex Inspector Portal for the purpose of connecting, conducting, and completing a Virtual Inspection with a Contractor or Field Agent. The Inspector guides the Field agent or Contractor through the Virtual Inspection. The Inspector is stationed at his or her computer desktop/laptop screen and is connected to the Internet.
Offline Inspection Submittal – A variation of a Virtual Inspection that does not require an Inspector’s real-time attention. The Contractor independently submits a form containing Inspection Media. An Inspection Report is automatically generated and sent to the Inspector to review and result the Virtual Inspection.
Software Service – The proprietary VuSpex NOW™ software solution provided on a software-as-a-service (SaaS) basis, as well as the other software and other technology utilized by VuSpex to enable the provision of the VuSpex SaaS solutions.
Support – Customer service portal located at www.vuspex.com/support
User – Each user being able to access the Software Service and perform Virtual Inspections.
Virtual Inspection – An inspection conducted between an Inspector and one or more Field Agents connected to a call utilizing the Software Service. The parties can capture photos and videos and add comments.
VuSpex NOW – A software service for Inspectors and Field Agents to connect, conduct, and complete Virtual Inspections with an automatically-generated Inspection Report. NOW is a general-purpose, standalone solution that integrates within an agency in a variety of ways.
VuSpex CLOUD™ – Secure, online storage and archiving of Inspection Media.
VuSpex CLOUD Storage
VuSpex CLOUD Limited™ – The default service included for all Virtual Inspections, whereby VuSpex retains Inspection Media and related data for 90 days following each completed Virtual Inspection.
VuSpex Contractor Portal™ – The portal into which a Contractor or Field Agent signs in via a mobile or desktop web browser dashboard interface for the purpose of submitting an Offline Inspection Submittal, editing Account information, and scheduling a Virtual Inspection.
VuSpex NOW Portal™ – The portal into which an Inspector signs in via a mobile or desktop web browser dashboard interface for the purpose of scheduling, connecting, conducting, completing, resulting, communicating and/or reviewing/downloading Inspection Media and Inspection Reports.
VuSpex SIDES™ – Optional add-on services for VuSpex NOW. These services have an additional cost per inspection. VuSpex SIDES can be enabled or disabled by contacting Support and requesting a change in service. Changes in service take place within 30-days of written notice by Customer.
- The Software Service provides the registered User with tools for Inspectors and Field Agents to perform Virtual Inspections using handheld devices or over the Internet.
- To access the Software Service, an Account must be created. Any such Account shall be by default free of charge and shall provide for use of all Software functions without any restrictions and/or limitations on events or actions in the Software Service. Each Customer shall be authorized to create one Account only, wherein the number of Users assigned shall not be limited. At creation of an Account, Customer will be set up as the first User of an Account.
- As part of the Software Service, Customer will choose its Account login and its passwords for access to its Account and to its handheld devices. Customer agrees to carefully safeguard all of its passwords. Customer is solely responsible if Customer does not maintain the confidentiality of passwords and Account information. Furthermore, Customer is solely responsible for any and all activities that occur under its Account. Customer agrees to immediately notify VuSpex of any unauthorized use of Customer’s Account or any other breach of security known to Customer, including if Customer believes that its password or Account information has been stolen or otherwise compromised.
- To use the Software Service on a handheld device, a User is required to have a handheld device that can accept SMS text messages and access to the Internet. Each handheld device that Customer wishes to use to synchronize data with its VuSpex Account needs to have Internet access when synchronization is being conducted.
- Fees and Payment Terms.
- Access to and use of the Software Service to conduct Virtual Inspections is provided under a billable annual subscription model in accordance with a proposal signed by Customer.
- The fee for a Virtual Inspection will be incurred when the Virtual Inspection has been Completed.
- VuSpex may increase the per-use fees for the Software Service at any time by posting a new charges schedule on the VuSpex website. The fees billed to Customer, however, will remain the ones in effect when a particular Virtual Inspection occurred.
- All fees are indicated and charged in U.S. dollars.
- VuSpex may invoice the Customer for the above charges after they are incurred. However, VuSpex may send monthly invoices for all charges incurred in the previous month.
- As a condition to Customer’s right to use the Software Service, Customer must provide VuSpex with valid payment information, e.g., credit card number with available credit sufficient to pay the applicable fees. In the event Customer cancels this credit card or it is otherwise terminated, Customer must immediately provide VuSpex with a new valid credit card number. Customer authorizes VuSpex, from time to time, to undertake steps to determine whether the credit card number provided is a valid credit card number. In the event that Customer does not provide VuSpex with a current valid credit card number with sufficient credit upon request during the effective period of these Special Terms, or Customer fails to pay VuSpex within the specified time period on any VuSpex invoice, Customer will be in violation of these Special Terms, and VuSpex may terminate these Special Terms. VuSpex does not accept debit cards for payment of fees. Nonetheless, in the event Customer provides a debit card number instead of a credit card number, Customer authorizes VuSpex to make all charges described in these Special Terms to that debit card account.
- Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
- Fees do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse VuSpex and hold VuSpex harmless for all sales, use, VAT, excise, property, or other taxes or levies which VuSpex is required to collect or remit to applicable tax authorities. This provision does not apply to VuSpex’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished VuSpex with a valid tax exemption certificate.
- User Conduct.
- No Resale of the Software Service. Customer’s right to use the Software Service is personal to it. Customer may be an individual, a corporation or other business entity. Customer agrees not to resell the use of the Software Service, any downloadable plug-in, client software on handheld devices or other materials or any information obtained by Customer without the express written consent of VuSpex.
- Conduct. Customer is solely responsible for the content of its transmissions through the Software Service. VuSpex reserves the right to take any action with respect to the Software Service that VuSpex deems necessary or appropriate in VuSpex’s sole discretion if VuSpex believes Customer’s transmissions or use of the Software Service may create liability for VuSpex. Customer’s use of the Software Service is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, user privacy, unfair competition, anti-discrimination or false advertising). Customer agrees: (a) to comply with all United States and international laws, rules and other regulations applicable in connection with the Software Service; (b) not to use the Software Service for illegal purposes; (c) not to interfere or disrupt networks connected to the Software Service; (d) not to use the Software Service to infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; and (e) not to transmit through the Software Service, through feedback or otherwise, any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Customer will not attempt to gain unauthorized access to other computer systems and Customer will not interfere with another user’s use of the Software Service.
- Proprietary Rights. VuSpex grants Customer a limited license to use the client software on handheld devices, and client plug-in solely in connection with the Software Service offered by VuSpex. Customer acknowledges that the client software and plug-in downloaded in connection with the Software Service is proprietary to VuSpex and may be protected by copyrights, trademarks, product marks, patents or other proprietary rights and laws; therefore, Customer is only permitted to use this client software or plug-in as expressly authorized by the Software Service and these Special Terms. Further, vuspex.com, VuSpex, their logos, and other names, logos, icons and marks identifying VuSpex’s products and services are trademarks of VuSpex and may not be used without prior written permission of VuSpex. All other product names mentioned are used for identification purposes only and may be trademarks of their respective holders. Customer may not copy, reproduce, distribute or create derivative works of the Software Service and its client software or plug-in without expressly being authorized to do so by VuSpex. Further, Customer may not reverse engineer, decompile, alter, modify, disassemble or otherwise attempt to derive source code from the plug-in. All rights not expressly granted in these Special Terms are reserved to Customer.
- Modifications. VuSpex may amend these Special Terms at any time by (a) posting revised Special Terms in Customer’s Account on https://www.vuspex.com, and/or (b) sending information regarding the Special Terms amendment to the email address Customer provides to VuSpex. Customer manifests intent to accept these amended terms if Customer continues to use its Account after such amended terms have been posted or information regarding such amendment has been sent to Customer.
- Termination. VuSpex may immediately terminate Customer’s right to use the Software Service if (a) Customer breaches these Special Terms or the General Terms; (b) VuSpex is unable to verify or authenticate any information Customer provides to VuSpex or such information is inaccurate; or (c) VuSpex decides, in its sole discretion, to discontinue offering the Software Service. VuSpex shall not be liable to Customer or any third party for termination of the Software Service. Customer may terminate its Account and end its use of the Software Service at any time, for any reason or for no reason. For cancellation instructions, log in to its Account and click on the My Account page. Upon termination of Customer’s Account, Customer shall remain liable for all fees incurred or accrued by Customer, and any fees Customer may have paid in advance are nonrefundable. Upon expiration or termination for any reason, Customer is no longer authorized to use the Software Service or Software. When these Special Terms are terminated and/or Customer’s Account is cancelled, Customer will no longer have access to data and other material Customer has stored on the Site through the Software Service. Customer may request for historic data and other material from VuSpex after expiration or termination of the Software Service, in which VuSpex will attempt to retrieve for Customer if the requested data and material is available and may charge Customer a fee for the retrieval.
- Maintenance and Updates. Customer understands that VuSpex may update the Software Service at any time, some major and some minor such as a change to the font or color of the user interface. VuSpex will make attempts to notify Customer of major maintenance and updates, however, VuSpex is under no obligation to inform Customer of or furnish to Customer all or any such updates. This Agreement does not grant Customer any right, license or interest in or to any support, maintenance, improvements, modifications, enhancements or updates to the Software Service or supporting documentation. To the extent that VuSpex supplies any updates to Customer, such updates will be deemed to be subject to these Special Terms unless VuSpex indicates otherwise. VuSpex reserves the right to charge fees for any future versions of, or updates to, the Software Service.
- DISCLAIMER OF WARRANTIES. VUSPEX REPRESENTS THAT THE SOFTWARE SERVICE WILL BE PROVIDED TO CUSTOMER IN A PROFESSIONAL AND WORKMANLIKE MANNER. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SOFTWARE SERVICE IS AT ITS SOLE RISK. THE SOFTWARE SERVICE IS PROVIDED ON AN “AS IS” BASIS. VUSPEX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED (INCLUDING SOFTWARE ON HANDHELD DEVICES AND PLUG-INS) THROUGH THE USE OF THE SOFTWARE SERVICE IS DONE AT ITS OWN RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM VUSPEX OR THROUGH THE SOFTWARE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
- LIMITATION OF LIABILITY. EXCEPT IN THE EVENT OF VUSPEX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN WHICH VUSPEX’S AGGREGATE LIABILITY WILL BE LIMITED TO CUSTOMER’S ACTUAL DIRECT DAMAGES, THE TOTAL AGGREGATE LIABILITY OF VUSPEX FOR ANY DIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOST BUSINESS OPPORTUNITY, LOSS OF GOODWILL OR LOST USE) UNDER OR IN CONNECTION WITH THESE SPECIAL TERMS WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE WILL, TO THE EXTENT PERMISSIBLE BY LAW, NOT EXCEED AN AGGREGATE DOLLAR AMOUNT EQUAL TO THE FEES ACTUALLY PAID BY CUSTOMER OT VUSPEX UNDER THESE SPECIAL TERMS DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- Marketing. Customer agrees that VuSpex may use its name, trademarks, and trade names to identify Customer as a customer of VuSpex on VuSpex websites and for use in VuSpex’s corporate, promotional, and marketing literature. Customer also agrees to permit VuSpex to occasionally send Customer marketing and promotional materials in the form of mails or emails, but VuSpex will not send any marketing information to Customer’s customers. Upon non-renewal or termination of these Special Terms, each party shall cease all display and advertising, of the other party’s name, trademarks and trade names, and each party shall terminate the permission of receiving promotional materials from the other party, unless expressly agreed upon in writing otherwise. Each party hereby agrees not to contest or make application for registering any trademark or trade name of the other party.
- Indemnity. Customer hereby agrees, at its expense, to indemnify, defend and hold VuSpex harmless from and against any loss, cost, damages, liability or expense arising out of or relating to (a) a third-party claim, action or allegation of infringement based on information, data, files or other content submitted by Customer; (b) any fraud or manipulation, or other breach of these Special Terms by Customer; or (c) any third-party claim, action or allegation brought against VuSpex arising out of or relating to a dispute between its users over the terms and conditions of a contract or related to the purchase and sale of any services.
- Force Majeure. VuSpex shall be excused from performance of any of its obligations under this agreement and have no liability to Customer if the Software Service is prevented from performing any of its obligations, in whole or in part, as a result of a material delay caused by Customer or by an act of god, war, terrorism, civil disturbance, court order, infrastructure failure, global pandemic, or natural disaster (each a “Force Majeure Event“). VuSpex shall immediately notify Customer if impacted by such a Force Majeure Event, and it is not liable for damages caused by said event as long as reasonable means are taken to expeditiously remedy the problem creating such non-performance.
- Copyrighted Materials. Customer agrees that any information it uploads or sends to the Software Service, which includes but is not limited to orders, forms, reports, documents, contacts, and images is owned, by Customer or authorized to be used by Customer. Customer agrees not to upload or send any materials to the Software Service that is copyrighted by any person or entity other than Customer or by entities wholly-owned by Customer.
- Dispute Resolution. Customer agrees that any dispute regarding performance of the Software Service, payment or other matters under this agreement shall be finally and exclusively settled by mandatory binding arbitration in Santa Cruz County, California. Both parties mutually acknowledge that, by this agreement to arbitrate, Customer and VuSpex each irrevocably waive the right to a court or a jury trial.
- General Terms. If any provision of these Special Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. VuSpex’s failure to act with respect to a breach by Customer does not waive VuSpex’s right to act with respect to subsequent or similar breaches. Customer may not assign or transfer these Special Terms or any rights hereunder, and any attempt to the contrary is void. This Agreement shall inure to the benefit of and be binding upon each party’s successors and assigns. Unless otherwise provided in these Special Terms, any notice required or permitted to be given under these Special Terms shall be delivered (i) by hand; (ii) by registered or certified mail, postage prepaid and return receipt requested to the address provided by the other party, or to such other address as a party may designate by written notice in accordance with this Section 18; (iii) by overnight courier or (iv) by electronic mail. Notice so given shall be deemed effective when received, or if not received by reason of fault of addressee, when delivered. These Special Terms are governed in all respects by the laws of the State of California as such laws are applied. These Special Terms constitute the complete and exclusive understanding and agreement of the parties relating to the subject matter hereof and supersedes all understandings, proposals, agreements, negotiations and discussions between the parties, whether written or oral, and all prior versions of these Special Terms, except for the case where a written and signed document, such as an agreement or contract has been executed between VuSpex and Customer, in which case the signed document supersedes these Special Terms.