SiteVibes.com Terms & Conditions
Posted as of: August 1, 2019
Effective as of: August 1, 2019
ARBITRATION NOTICE: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION, AND A WAIVER OF JURY TRIALS AND CLASS ACTIONS AS SET FORTH BELOW – PLEASE READ THESE SECTIONS CAREFULLY.
1. OVERVIEW OF THE SITEVIBES.COM SERVICES
SiteVibes.com provides a suite of social engagement products and services that allow Customers to create specific or ad-hoc, fully customizable website pages and widgets to display on individual pages of a Customer’s website. SiteVibes.com also provides application programming interfaces (the “API”) that allow Customers to build integrated connections to create workflow automation within a Customer’s websites, applications, or other external users (“Customer Integrations”).
2. ACCEPTABLE USE OF SITEVIBES.COM SERVICES
3. ACCOUNT REGISTRATION AND USE
3.2 An “Authorized User” is defined as an individual person (e.g. employee, contractor, agent of a Customer) who is registered and permitted by a Customer to use the SiteVibes.com Services subject to these Terms and any restrictions in an applicable Subscription Plan (as defined below). Customer shall ensure that its Authorized Users comply with these Terms and Customer is responsible for all actions of its Authorized Users.
4. USE AND ACCESS RIGHTS
4.1 Limited License. Subject to these Terms, SiteVibes.com grants to Customer a limited, non-exclusive, non-transferable, freely revocable license to use and access the SiteVibes.com Services for its business purposes as expressly permitted in these Terms. Your use and access to the SiteVibes.com Services are subject to any limitations set forth in an applicable order form or online plan (whether paid or free, collectively “Subscription Plan”).
4.2 Beta Releases and Free Access Subscriptions. SiteVibes.com may provide Customer with the SiteVibes.com Service for free or on a trial basis (a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage SiteVibes.com Services, integrations, or features (“Beta Releases”), which are optional for Customer to use. This Section will apply to any Free Access Subscriptions or Beta Releases (even if Beta Releases are provided for a fee or counts towards Customer’s Subscription Plan) and supersedes any contrary provision in these Terms. SiteVibes.com may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in these Terms, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH SITEVIBES.COM WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK. SiteVibes.com makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. SiteVibes.com may terminate Customer’s right to use any Free Access Subscriptions or Beta Releases at any time for any reason or no reason in SiteVibes.com’s sole discretion, without liability.
5. OWNERSHIP AND FEEDBACK
Some areas of the Service may allow SiteVibes.com to collect information from your current or potential customers, website visitors or end-users (collectively, “Customer Data”).
5.1 Use of Customer Data. By submitting or causing to be submitted Customer Data to SiteVibes.com, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the Customer Data required for SiteVibes.com and its subcontractors and service providers to provide the SiteVibes.com Service. You acknowledge and agree that SiteVibes.com may disclose Customer Data if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any of the Customer Data violates the rights of third parties; or (d) protect the rights, property, or personal safety of SiteVibes.com, the SiteVibes.com Service, its users, and the public. Sitevibes.com shall have no right to sublicense or resell Customer Data, except however, that you agree that SiteVibes.com may collect, analyze, and use data derived from Customer Data, which may include personally identifiable data and/or information collected from or about an individual but which does not identify the individual personally for purposes of operating, analyzing, improving, marketing the SiteVibes.com Service and any other business related purpose. If SiteVibes.com shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from Customer Data, such data will be aggregated or anonymized to reasonably avoid identification of a specific individual. You further agree that SiteVibes.com will have the right, both during and after the term of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.
5.2 SiteVibes.com Intellectual Property. This is a subscription agreement for access to and use of the SiteVibes.com Services. Customer acknowledges that it is obtaining only a limited right to use the SiteVibes.com Services and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer (or its Authorized Users or end users) under these Terms. Customer agrees that SiteVibes.com (and its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all SiteVibes.com Services, and all related or underlying documentation, technology, code, know-how, logos, templates, anything delivered as part of support of other services, and any updates, modifications, or derivative works of any of the foregoing (all of which is deemed SiteVibes.com’s Confidential Information) and that SiteVibes.com reserves any licenses not specifically granted in these Terms. Other than the applicable mobile applications and APIs, the SiteVibes.com Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any SiteVibes.com Service and that SiteVibes.com at its option may make updates, bug fixes, modifications or improvements to the SiteVibes.com Service from time-to-time.
5.3 Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to SiteVibes.com (collectively, “Feedback”), Customer hereby grants SiteVibes.com a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in these Terms limits SiteVibes.com’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
6. PRIVACY & SECURITY
6.2 Security. SiteVibes.com protects your information from unauthorized use or disclosure by taking reasonable technical and organizational measures designed to secure our systems from unauthorized access, use or modification.
7. CUSTOMER OBLIGATIONS
7.2 Customer represents and warrants that its Customer Integrations, and the collection, use, and disclosure of Customer Data will not violate any third-party rights, including intellectual property, privacy and publicity rights. Customer further represents and warrants that its collection and use of any personal information or data provided to SiteVibes.com complies with all applicable data protection laws, rules, and regulations. If Customer receives any take down requests or infringement notices related to Customer Data, it must promptly: (i) stop using the related item with the SiteVibes.com Service; and (ii) notify SiteVibes.com. If SiteVibes.com receives any take down requests or infringement notices related to Customer Data, SiteVibes.com may respond in accordance with its policies, and will notify and consult with the Customer on next steps.
8 PAYMENT TERMS
8.1 Subscription Plan. The prices, features, and options of the SiteVibes.com Services depend on the Subscription Plan selected by Customer (including any usage or overage fees). SiteVibes.com does not guarantee that your particular Subscription Plan will be offered indefinitely. We reserve the right to change the prices, features, or options included in a particular Subscription Plan without notice, provided that such changes shall not take effect until your next applicable subscription or billing term.
8.2 Recurring Charges and Upgrades. By signing up for a Subscription Plan, Customer authorizes SiteVibes.com to charge Customer’s payment method on a recurring basis (e.g. monthly, quarterly, or yearly depending on Customer’s Subscription Plan) without an invoice. Customer expressly authorizes SiteVibes.com to charge its payment method (such as a credit card) for the applicable subscription charges, any usage or overage charges, and any and all applicable taxes and fees at the beginning of the billing term selected by Customer. Such authorization is effective until the end of the Subscription Term and any applicable Renewal Term, or until Customer cancels all of its subscriptions.
If Customer exceeds their subscription plan’s usage limits, Customer will be automatically upgraded into the next highest Subscription Plan and Customer expressly acknowledges and agrees that it will pay for the upgraded Subscription Plan. All upgrade fees and charges are non-refundable, even if Customer did not use the full usage allotment of the applicable Subscription Plan.
8.3 Taxes. SiteVibes.com’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of SiteVibes.com. Customer will not deduct any applicable taxes from the payments to SiteVibes.com, except as required by law. If such deduction is required by law, Customer will increase the amount payable as necessary so that after making all required deductions and withholdings, SiteVibes.com receives and retains (free from any such liabilities) an amount equal to the amount it would have received had no such deductions or withholdings been made.
8.4 Auto-renewals and Trials. UNLESS OTHERWISE PROVIDED FOR IN A WRITTEN SUBSCRIPTION PLAN, ANY PURCHASES FOR ACCESS AND USE OF THE SITEVIBES.COM SERVICE ARE ON AN AUTOMATICALLY RENEWING SUBSICRIPTION BASIS. IF YOUR ACCOUNT IS IN A TRIAL PERIOD AND YOU HAVE PROVIDED A METHOD OF PAYMENT TO SITEVIBES.COM FOR THE SITEVIEBS.COM SERVICES, SITEVIBES.COM MAY CHARGE YOU AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS YOU NOTIFY SITEVIBES.COM THAT YOU WANT TO CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF THE FREE TRIAL TERM.
8.5 Purchase Orders. Customer agrees that it will pay all amounts owed, including recurring charges, without requiring any purchase orders or reference(s) to purchase order numbers. If a purchase order is required, then Customer will promptly notify SiteVibes.com at least thirty (30) days prior to such requirement and the parties will cooperate in good faith in implementing a billing process that includes references such purchase order numbers. Customer agrees that any purchase orders are for administrative purposes only and that any non-administrative terms (including, but not limited to legal, security, privacy, or finance terms) contained in its purchase order(s) do not apply to its purchase or use of SiteVibes.com Services.
8.6 No Refunds. Subscription and usage or overage fees (and any other fees associated with the services, including higher subscription fees for upgrades) are non-refundable and non-creditable, except where required by law. SiteVibes.com subscriptions may be cancelled, and such cancellations take effect at the end of your then-current Subscription Term (for example, if you are on a paid monthly subscription the cancellation will take effect the following month, but if you are on a paid yearly subscription the cancellation will take effect the following year). Once your cancellation is effective, your access to the SiteVibes.com Service will be terminated. If you don’t pay for your subscription(s) on time, we reserve the right to suspend you or remove subscription features.
8.7 Late Fees & Collection Costs. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law. You agree to reimburse SiteVibes.com for any costs or expenses incurred by SiteVibes.com to collect amounts that remain unpaid after the due date. Amounts due to SiteVibes.com may not be withheld of offset by you against amounts due for any reason.
9 TERM AND TERMINATION
9.1 Term. These Terms are effective until all Subscription Terms for the SiteVibes.com Services have expired or are terminated as expressly permitted herein.
9.2 Subscription Term and Renewals. Customer agrees to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.4 (Termination for Cause). “Subscription Term” means the period of time specified in a Subscription Plan during which Customer will have on-line access and use of the SiteVibes.com Services . If no subscription start date is specified on the applicable order form, the subscription starts when Customer first obtains access to the applicable SiteVibes.com Service. Each Subscription Term will automatically renew for additional successive periods equal to the initial subscription (e.g. if Customer has an annual plan then the subscription will renew for an additional 12 month term, if Customer has a monthly plan then the subscription will renew for additional month terms) unless: (i) otherwise stated on the applicable Subscription Plan; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Pricing for any Subscription Term renewal, new Subscription Plan, or Subscription Plan changes will be at SiteVibes.com’s then-applicable rates.
9.3 Suspension of Service. SiteVibes.com may suspend Customer’s access to the SiteVibes.com Services if: (i) Customer’s account is overdue; or (ii) Customer has exceeded its service allocations / service limits. SiteVibes.com may also suspend Customer’s access to the SiteVibes.com Services or remove Customer Data if it determines that: (a) Customer has breached any portion of these Terms, or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the SiteVibes.com Service. SiteVibes.com will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 9.3. However, unless these Terms have been terminated, SiteVibes.com will cooperate with Customer to promptly restore access to the SiteVibes.com Service once we verify that Customer has resolved the condition requiring suspension.
9.4 Termination for Cause. Either party may terminate these Terms, including any related Subscription Plan, if the other party: (i) fails to cure any material breach of these Terms (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter).
9.5 Effect of Termination. Upon any expiration or termination of these Terms or an Subscription Plan: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable SiteVibes.com Service; (b) delete (or, at SiteVibes.com’s request, return) any and all copies of any SiteVibes.com code, documentation, passwords or access codes, and any other SiteVibes.com Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable SiteVibes.com Service will cease and SiteVibes.com may delete the Customer Data at any time after 30 days from the date of termination. If SiteVibes.com terminates these Terms for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where these Terms specifies an exclusive remedy, all remedies under these Terms, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
9.6 Survival. The following Sections survive any expiration or termination of these Terms: 3 (Account Registration and Use); 4.2 (Beta Releases and Free Access Subscriptions); 5 (Ownership and Feedback); 8 (Payment Terms); 9 (Term and Termination); 11 (Warranties and Disclaimers); 12 (Indemnification Obligations); 13 (Limitations of Liability); 14 (Third-Party Products and Content); and 15 (General).
10 CONFIDENTIAL INFORMATION
10.1 Confidential Information “Confidential Information” means (a) for SiteVibes.com, the SiteVibes.com Services, Documentation and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “SiteVibes.com Content”), and all Intellectual Property Rights related thereto, are the exclusive property of SiteVibes.com and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any SiteVibes.com Content. Use of the SiteVibes.com Content for any purpose not expressly permitted by this Agreement is strictly prohibited.; (b) for Customer, Customer Data; (c) any other information of a party that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure (and, in the case of oral disclosures, summarized in writing within thirty (30) days of the initial disclosure and delivered to the recipient), or that due to the nature of the information the recipient would clearly understand it to be confidential information of the disclosing party; and (d) the specific terms and conditions of these Terms, and any amendment and attachment thereof, between the parties.
10.2 Confidentiality Obligation. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by these Terms; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under these Terms. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for SiteVibes.com, includes providing the Services and sharing with the subcontractors referenced herein) provided that the party remains responsible for any recipient’s compliance with the terms of this Section 10 and that these recipients are bound to confidentiality obligations no less protective than these Terms.
10.3 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
10.4 Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section 10, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
11 WARRANTIES AND DISCLAIMERS.
ALL SITEVIBES.COM SERVICES, DOCUMENTATION, AND SITES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER SITEVIBES.COM NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SITEVIBES.COM MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT SITEVIBES.COM SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT SITEVIBES.COM SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. SITEVIBES.COM DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. SITEVIBES.COM WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER INTEGRATIONS, CUSTOMER DATA, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-SITEVIBES.COM SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, OR THE USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THESE TERMS. THE DISCLAIMERS IN THIS SECTION 11 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER AND SITE VISITORS MAY HAVE OTHER STATUTORY RIGHTS, HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
12 INDEMNIFICATION OBLIGATIONS
12.1 Customer agrees to defend, indemnify, and hold SiteVibes.com, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to, as applicable: (a) Customer’s access to and use of the Site; (b) violation of these Terms by Customer or its Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by Customer; (d) the nature and content of all Customer Data processed by the SiteVibes.com; or (e) any products or services purchased or obtained by Customer.
12.2 SiteVibes.com retains the exclusive right to settle, compromise and pay, without Customer’s prior consent, any and all claims or causes of action which are brought against us. SiteVibes.com reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify SiteVibes.com and Customer agrees to cooperate with our defense of these claims. Customer agrees not to settle any matter in which we are named as a defendant and/or for which Customer has indemnity obligations without our prior written consent. SiteVibes.com will use reasonable efforts to notify Customer of any such claim, action or proceeding upon becoming aware of it.
13 LIMITATIONS OF LIABILITY
13.1 We accept no responsibility or liability in contract, tort, negligence, breach of statutory duty or otherwise for any inconvenience, loss, damage, costs or expenses whatsoever incurred or suffered by anyone as a result of any information contained in or provided by the SiteVibes.com Service (unless such liability may not be excluded or limited as a matter of law, and in such case, our liability will be limited to the maximum extent permitted by law).
13.2 YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITEVIBES.COM SERVICE IS AT YOUR OWN RISK. THE SITEVIBES.COM SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM 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 AS TO THE OPERATION OF THE SITEVIBES.COM SERVICE, OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED IN THE SITEVIBES.COM SERVICE. WE MAKE NO WARRANTY THAT THE SITEVIBES.COM SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SITEVIBES.COM SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES, OR THAT ANY INFORMATION OR ADVICE OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SITEVIBES.COM SERVICE WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH OR FROM THE SITEVIBES.COM SERVICE SHALL CREATE ANY WARRANTY OR IMPOSE ANY LIABILITY NOT EXPRESSLY STATED IN THE TERMS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR (OR YOUR USERS’) COMPUTER SYSTEM OR ELECTRONIC DEVICE OR LOSS OF DATA, OR ANY OTHER LOSS OR DAMAGE THAT RESULTS FROM THE USE OF THE SITEVIBES.COM SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY AND ITS AFFILIATES, OFFICERS, AGENTS, MEMBERS, SUBCONTRACTORS AND EMPLOYEES BE LIABLE FOR ANY INDIRECT, DIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SITEVIBES.COM SERVICE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE. YOU SPECIFICALLY AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY UNLAWFUL, EXPLICIT OR OTHERWISE OBJECTIONABLE CONDUCT OF ANY OTHER PARTY ON OR THROUGH THE SITEVIBES.COM SERVICE, OR FOR ANY INFRINGEMENT OR VIOLATION OF RIGHTS BY ANY OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN SUCH JURISDICTIONS OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF US, AND OUR SUBCONTRACTORS, SUPPLIERS AND DISTRIBUTORS, FOR ALL CLAIMS, DAMAGES AND LOSSES (WHETHER IN CONTRACT, TORT OR OTHERWISE), INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE HIGHER OF (I) THE AMOUNT YOU PAID US TO USE THE SERVICE IN THE SIX MONTHS PRECEDING THE CAUSE OF CLAIM, OR (II) US$ 25.
13.3 You hereby represent and warrant to us, that any users of your services are and will be bound by an exemption and limitation of liability toward us at the same scope as provided herein.
13.4 Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 13 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS, ANY SITEVIBES.COM SERVICE OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14 THIRD PARTY PRODUCTS AND CONTENT.
SiteVibes.com may provide, or third parties may provide, links to other third-party websites, services, or resources that are beyond our control. SiteVibes.com is not responsible for these third-party products or content. SiteVibes.com makes no representations or warranties as to the quality, suitability, functionality, or legality of any third-party products or third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such. Customer agrees that SiteVibes.com is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third-party products or third-party content.
15.1 Assignment. These Terms will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign these Terms without the advance written consent of the other party, except that SiteVibes.com may assign these Terms without consent to an Affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign these Terms except as expressly authorized under this Section 15.1 will be void.
15.2 Notices. Any notice or communication under these Terms must be in writing. Customer must send any notices under these Terms (including breach notices) to SiteVibes.com, in English, at the following address, email@example.com, and include “Attention: Legal Department” in the subject line. SiteVibes.com may send notices to the email addresses on Customer’s account or, at SiteVibes.com’s option, to Customer’s last-known postal address. SiteVibes.com may also provide operational notices regarding the SiteVibes.com Service or other business-related notices through conspicuous posting of the notice on SiteVibes.com’s website or the SiteVibes.com Service. Each party consents to receiving electronic notices. SiteVibes.com is not responsible for any automatic filtering Customer or its network provider may apply to emails.
15.3 Publicity. Unless otherwise specified in an applicable Subscription Plan, SiteVibes.com may use Customer’s name, logo, and marks to identify Customer as a SiteVibes.com customer on SiteVibes.com’s website and other marketing materials.
15.4 Subcontractors. SiteVibes.com may use subcontractors and permit them to exercise the rights granted to SiteVibes.com in order to provide the SiteVibes.com Service and related services. These subcontractors may include, for example, SiteVibes.com’s hosted service and email providers. However, subject to all terms and conditions of these Terms, SiteVibes.com will remain responsible for: (i) compliance of its subcontractors with the terms of these Terms; and (ii) the overall performance of the SiteVibes.com Services if and as required under these Terms.
15.5 Subpoenas. Nothing in these Terms prevents SiteVibes.com from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but SiteVibes.com will use good faith efforts to notify Customer where permitted to do so.
15.6 Independent Contractors. The parties to these Terms are independent contractors, and these Terms do not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. Non-parties do not benefit from and cannot enforce these terms. There are no third-party beneficiaries to these Terms. Customer must not represent to anyone that it is an agent of SiteVibes.com or is otherwise authorized to bind or commit SiteVibes.com in any way without SiteVibes.com’s prior written authorization.
15.7 Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under these Terms (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
15.8 Export Control. Customer acknowledges that the SiteVibes.com Services, documentation, website, and all related products, information, technology, and software are subject to export control laws and regulations of the United States (including, but not limited to, the US Export Administration Act, sanction regulations from the U.S. Department of Treasury Office of Foreign Assets Control [“OFAC”]), and of other jurisdictions. Customer is responsible for obtaining any required export or import authorizations for use of the SiteVibes.com Services. Customer represents and warrants that it, its Affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer must not access or use the SiteVibes.com Service in violation of any U.S. export embargo, prohibition or restriction.
15.9 MANDATORY ARBITRATION; WAIVER OF CLASS ACTIONS. IF YOU ARE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:
15.9.1 We Both Agree to Arbitrate. You and SiteVibes.com agree to resolve any claims relating to these Terms or the Services through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to Agreement to Arbitrate below. This includes disputes arising out of or relating to interpretation or application of this “Mandatory Arbitration Provisions” section, including its enforceability, revocability, or validity.
15.9.2 Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate within 30 days of first registering your account by contacting us at firstname.lastname@example.org .
15.9.3 Arbitration Procedures and Fees. The Optional Expedited Arbitration Procedures then in effect for JAMS will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be conducted in Chicago, Illinois, unless you and SiteVibes.com agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses.
15.9.4 Exceptions to Agreement to Arbitrate. Either you or SiteVibes.com may assert claims, if they qualify, in small claims court in Chicago, Illinois. or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Chicago, Illinois to resolve your claim.
15.9.5 NO CLASS ACTIONS. With respect to all persons and entities, regardless of whether they have obtained or used the SiteVibes.com Service for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into this Agreement, you and SiteVibes.com are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
15.11 Severability. If any provision of these Terms is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that these Terms may otherwise remain in effect.
15.12 No Third-Party Rights. Nothing in these Terms confers on any third party the right to enforce any provision of these Terms. Customer acknowledges that each Subscription Plan and Order Form only permits use by and for the legal entity or entities identified in the Subscription Plan(s) or Order Form(s) as the Customer, and not any Customer Affiliates.
15.13 Entire Agreement. These Terms represents the parties’ complete and exclusive understanding relating to the subject matter of these Terms. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the SiteVibes.com Service or any other subject matter covered by these Terms. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
15.14 Governing Law & Venue. These terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Illinois, U.S.A., without reference to its choice of law rules to the contrary. The parties agree to submit to the exclusive jurisdiction of, and venue in the federal or state court of competent jurisdiction located in Chicago, Illinois, U.S.A.
15.15 Language and Translations. SiteVibes.com may provide translations of these Terms or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.
15.16 How to Contact Us. If you have any questions about these Terms, please contact us at email@example.com.
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