MARQ Folio Terms and Conditions
These Terms of Service (these “Terms”) of Marq Vision Inc. (“Company,” “we,” or “us”) are an agreement that describes your rights and responsibilities as a Company user. This page explains the terms by which you may access and use our online and/or mobile services, website, software, and documentation provided on or in connection with the service (collectively, the “Service”). By accessing or using the Service, or by checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms, whether or not you are a registered user of our Service. You also understand and acknowledge that your personal information will be collected, used, and otherwise processed in accordance with our Privacy Notice, available at https://www.marqvision.com/privacypolicy. Company reserves the right to modify these terms and will provide notice of these changes as described below. These Terms apply to all visitors, users, and others who access the Service (“Users”). These Terms and any written agreement by which you sign up for or gain access to the Service (including but not limited to the Confidentiality Waiver Form), together with all documents referenced herein form the “Agreement” between you and us.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 13.2 (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 13.3 (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 13.2, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
1. Our Service
Company provides a cloud-based software platform (the “Platform”) that assists Users in filing trademark applications, including through facilitating access to third-party legal service providers. Our Service (for clarity, including the Platform) is not legal advice and there is no attorney-client relationship between you and us. Company is not a law firm and does not provide any legal advice. At no time is an attorney-client relationship or any other special relationship created between you and Company, its affiliates, or its or their employees, directors, officers and representatives, and any information you provide us is not protected by attorney-client privilege or as an attorney work product. For the avoidance of doubt, the Service does not include any legal representation or initiating any legal proceedings (including making any claims or complaints to or before any court or judicial body).
YOU ACKNOWLEDGE THAT WE PROVIDE ONLINE TOOLS AND MATERIALS TO ASSIST YOU WITH THE PREPARATION, EXECUTION AND FILING OF YOUR OWN TRADEMARK APPLICATIONS AND RELATED INFORMATION AND FACILITATE YOUR ACCESS TO THIRD-PARTY LEGAL SERVICE PROVIDERS. ANY MATERIALS AVAILABLE THROUGH THE SERVICE, INCLUDING ANY DESCRIPTIONS, INFORMATION AND OTHER HELP RESOURCES (COLLECTIVELY, THE “INFORMATIONAL MATERIALS”) ARE FOR INFORMATIONAL PURPOSES ONLY; THEY ARE NOT LEGAL ADVICE AND ARE NOT GUARANTEED TO BE CORRECT, COMPLETE OR UP-TO-DATE. YOU UNDERSTAND THAT OUR PROVIDING OF THE SERVICE TO YOU IS NEITHER LEGAL ADVICE NOR THE PRACTICE OF LAW, AND THAT THE INFORMATIONAL MATERIALS ARE NOT CUSTOMIZED TO YOUR PARTICULAR NEEDS.
This is a contract between you and Company. “You” or “Customer” is either you, if you are an individual entering into the Agreement on your own behalf, or the organization that you represent in agreeing to the Agreement. You must read and agree to these Terms before using the Company’s Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Company, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. If you signed up for access to the Service using your corporate email domain or are otherwise using the Service on behalf of a business entity or other organization, the business entity or other organization on whose behalf you signed up is the Customer/you. By signing up on behalf of your business entity or other organization, you represent and warrant that you have all right, power, and authority to bind such entity or organization to the Agreement. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of these Terms. The Service is not available to any Users previously removed from the Service by Company. Individuals authorized by you to access the Service (each an “Authorized Representative”) may submit content or information to the Service, which constitutes User Content (defined below), and you will have the sole right and responsibility for managing your use of it. You will be solely responsible for all of the acts and omissions of your Authorized Representatives in relation to the Service and the Agreement. You will (i) inform Authorized Representatives of all your policies and practices that are relevant to their use of the Service; and (ii) obtain all rights, permissions or consents from Authorized Representatives and your other personnel that are necessary to grant the rights and licenses in the Agreement and for the lawful use and transmission of User Content and the operation of the Service.
1.2 Limited License
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your internal, noncommercial use only and as permitted by the features of the Service. Company reserves all rights not expressly granted herein in the Service and the Company Content (as defined below). Company may terminate this license at any time for any reason or no reason.
1.3 User Accounts
To access most features of the Service, you must register for an account. Your account on the Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and at our sole discretion. You may never use another User’s User Account without permission. When creating your User Account, you may be required to provide us with some information about yourself, such as a username, email address, or other contact information. You must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your User Account. When you register, you will be asked to provide a password. You must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your User Account. You must notify Company immediately of any breach of security or unauthorized use of your User Account. Company will not be liable for any losses caused by any unauthorized use of your User Account. You may control your User profile and how you interact with the Service by changing the settings in the “Profile” section of the Platform. By providing Company your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your “Profile” section of the Platform. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
1.4 Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Company servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
1.5 Customer Cooperation
You acknowledge that Company’s ability to deliver the Service to you is dependent upon your ongoing cooperation and assistance. You will provide Company, on a timely basis, all information, materials, and assistance reasonably necessary for Company to provide the Service. We will not be responsible for delays or losses resulting from your failure to fully comply with the foregoing.
1.6 Changes to the Service
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and with no liability of any kind, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms. Any data, account history and account content residing on the servers running the Service may be deleted, altered, moved or transferred at any time for any reason in our sole discretion, with or without notice and with no liability of any kind.
1.7 Beta Products
Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties or contractual commitments we make for the Service.
1.8 Trial Products and Services
Occasionally, we may offer certain services on the Platform for temporary “trial” periods. These services will be identified as “trials” or words or phrases with a similar meaning (each a “Trial Service”). Trial Services are made available at our sole discretion and we are under no obligation to guarantee your continued access to any Trial Service. You acknowledge and understand that we may withdraw your access to any Trial Service at any time for any reason.
1.9 Service Location
The Service is primarily controlled and operated from facilities in the United States. Company makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
2. Third-Party Services
The Platform may allow you to access and use certain optional third-party services or products (e.g., third-party legal services) through or with your use of the Services (“Third-Party Services”). You are under no obligation to use any Third-Party Services. Providers of Third-Party Services have no obligation to provide the Third-Party Services, and Company makes no warranty regarding any such provider’s actions or inactions, including, without limitation, a provider’s decision not to work with you or a provider’s unavailability for any reason. You agree that the terms of this Agreement apply to any User Content (defined below) provided by Company to a Third-Party Service provider, in connection with the Third-Party Services. Notwithstanding the foregoing, for purposes of this Agreement, such Third-Party Services are subject to their own terms and conditions. To the extent there is a conflict between the terms and conditions applicable to any such Third-Party Services and this Agreement, the Third-Party Services terms and conditions shall control. IF YOU USE ANY THIRD-PARTY SERVICES, COMPANY WILL NOT BE RESPONSIBLE FOR ANY ACT OR OMISSION OF ANY PROVIDER OF SUCH THIRD-PARTY SERVICES. COMPANY DOES NOT WARRANT OR PROVIDE DIRECT SUPPORT FOR ANY THIRD-PARTY SERVICES. YOU ACKNOWLEDGES AND AGREE THAT COMPANY WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACTS OR OMISSIONS OF ANY USERS IN CONNECTION WITH ANY THIRD-PARTY SERVICES.
Customer represents and warrants that: (i) it will not use the Third-Party Services in bad faith, and (ii) it will only use the Third-Party Services regarding certain trademark application preparation and filing if Customer has a good faith belief in the veracity of the claims related to such filings, and not for the purposes of harassment, unfair competition, overreach, or other unlawful purposes.
3. User Content
Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information, images, text, comments, questions, and other content or information. Any such materials, including any data, information other content, in any form or medium, that a Customer submits, posts, displays, provides, or that is otherwise received, directly or indirectly (including via a third-party provider), from Customer (including from an Authorized Representative on Customer’s behalf) by or through the Service, or provided by Customer to Company to input into the Service is referred to as “User Content.” You are solely responsible for the accuracy, content and legality of all User Content. By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service you represent and warrants to Company that you have sufficient rights in the User Content to grant the rights granted to Company in Section 3.2 below and that the User Content does not infringe or otherwise violate the rights of any third party.
3.2 Rights In User Content
WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY YOU. THE USER CONTENT REMAINS YOURS. By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the Service, you expressly grant to Company a non-exclusive, worldwide, irrevocable, transferable, sublicensable (through multiple tiers), fully paid-up, royalty-free right and license to use, copy store, transmit, modify, and display the User Content in order to: (i) provide the Service to you; (ii) facilitate the provision of the Third-Party Services to you; (iii) perform such other actions as authorized or instructed by you in writing (email to suffice); and (iv) improve Company’s products and services, to develop new products and services, and for its other internal business purposes.
Customer agrees that Company may create and use de-identified data related to Customer’s use of the Services in order to improve Company’s products and services, to develop new products and services, and for its other business purposes (and such de-identified data will be owned by Company).
3.3 Warranties Regarding User Content
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
• You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and these Terms, and each such person has released you from any liability that may arise in relation to such use.
• You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
• Your User Content and Company’s use thereof as contemplated by these Terms and the Service will not violate any law or violate, misappropriate or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
• You will not upload or make available through our Service: nudity or other sexually suggestive content; hate speech, threats or direct attacks on an individual or group; abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful racially, ethnically, or otherwise objectionable content; fake or impostor profiles; illegal content or content in furtherance of harmful or illegal activities; malicious programs or code; any person’s personal information without their consent; and/or spam, machine-generated content, or unsolicited messages.
• To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Company takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service.
4. Our Proprietary Rights
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Company and its licensors (including other Users who post User Content to the Service). Except as explicitly provided herein, nothing in these Terms 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 Company Content. Use of the Company Content for any purpose not expressly permitted by these Terms is strictly prohibited.
If Customer or any of its Authorized Representatives, employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes regarding the Service or our products, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Customer hereby grants to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service or Platform such Feedback by Customer or its Authorized Representatives, employees, or contractors. Company is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.
5. Paid Services
5.1 Billing Policies
Certain aspects of the Service may be provided for a fee or other charge. If you elect to use paid aspects of the Service, you agree to the pricing and payment terms communicated to you through the Platform. These fees are subject to change based on a variety of factors. We will notify you in writing through the Platform before any changes in the fees take place.
5.2 Refunds; Cancellation
You may cancel your User Account at any time; however, there are no refunds for cancellation except as explicitly set forth in this Section 5.2l. In the event that Company suspends or terminates your User Account or these Terms for your breach of these Terms, you understand and agree that you shall receive no refund or exchange for any Company Service, any content or data associated with your User Account, or for anything else. Notwithstanding the foregoing, Customer may receive a pro-rata refund of any unused pre-paid fees if Company determines that a change in the scope of the Services provided to Customer is necessary, in Company’s discretion, and such change results in a change in the associated fees as communicated to you through the Platform. The company agrees that in the event that your trademark application fails, the Company will refund the total amount of fees paid by you. The fees include service fees for the Company, service fees for legal service providers, and government fees. The Company shall refund the fees to you within 60 days of the Company being notified of the failed application. You acknowledge that a trademark application typically fails when a legal service provider finds the case challenging and refuses to take the case, after you have made payment.
5.3 Payment Information; Taxes
Except as otherwise communicated to you through the Platform, the fees are payable by credit card or other payment method permitted by Company from time to time, payment will be in USD, and you authorize Company to charge your credit card or bank account for all such fees. Customer further authorizes Company to use a third party (such as, but not limited to, Stripe, Inc., whose terms of service are available at https://stripe.com/legal/ssa) to process payments, and consents to the disclosure of Customer’s payment information to such third party. Such third-party payment processor’s services may be subject to additional terms of service and privacy policies, and you should review these terms of service and privacy policies to confirm that you agree with them. All information that you provide in connection with a purchase or transaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay all applicable taxes, if any, relating to any such purchases and transactions.
5.4 Payments from Company
Company reserves the right to withhold payment or charge back to your User Account pursuant to Section 5.2 or Section 10, any amounts otherwise due to us under these Terms or amounts due to any breach of these Terms by you, pending Company’s reasonable investigation of such breach. Company also reserves the right to withhold payment or charge back to your User Account any amounts subject to dispute, such as in the case of credit card charge backs, pending successful resolution of the dispute. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your User Account, which includes without limitation applicable tax information. If we believe that we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your payments until you provide this information or otherwise satisfy us that you are not a person or entity from whom we are required to obtain tax information. Any third-party fees related to returned or canceled payments due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Service. If you dispute any payment made hereunder, you must notify Company in writing within thirty (30) days of such payment or from when you purport such payment would have been due, whichever is earlier. Failure to notify Company shall result in the waiver by you of any claim relating to such disputed payment. Payment shall be calculated solely based on records maintained by the Company. No other measurements or statistics of any kind shall be accepted by Company or have any effect under these Terms and you shall have no audit rights hereunder. We may withhold any taxes or other amounts from payments due to you as required by law.
5.5 California Residents
The provider of services is: Marq Vision Inc., 750 N. San Vincente Blvd, West Hollywood, CA 90069. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
You will receive administrative communications from the Company from time to time using the email address or other contact information you provide us. Enrollment in additional email subscription programs will not affect the frequency of these administrative emails, though you should expect to receive additional emails specific to the Services to which you have subscribed. You may also receive promotional emails from us. No fee is charged for these promotional emails, but third-party data rates could apply.
The integrity and security of your personal information is important to us. Company uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk. You also acknowledge that you are ultimately responsible for ensuring that the password for your User Account is kept safe and secured.
8. Third-Party Links and Information
The Service may contain links to third-party materials that are not owned or controlled by Company. Company does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. None of the third-party websites or services advertised on the Service receive any special promotional rates or offers from the Company for the placement or inclusion of their advertisements. If you access a third-party website or service from the Service or share your User Content on or through any third-party website or service, you do so at your own risk, and you understand that these Terms and Company’s Privacy Notice do not apply to your use of such sites. You expressly relieve Company from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Company shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
The Platform may include certain open source components that are subject to open source licenses (“Open Source Software”), in which case, the embedded Open Source Software is owned by a third party. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under its applicable license terms which accompanies such Open Source Software. Nothing in this Agreement limits your rights under, nor grants you rights that supersede, the terms and conditions of any applicable license terms for the Open Source Software. Any fees charged by the Company in connection with the Platform, do not apply to the Open Source Software for which fees may not be charged under the applicable license terms.
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
10. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
FURTHER, COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE, INCLUDING ANY THIRD-PARTY SERVICES, OR ANY HYPERLINKED WEBSITE OR SERVICE, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER OR THE AMOUNT OF LEGAL FEES PAID TO THE THIRD PARTY LAW FIRM, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
12.1 Governing Law
You agree that: (i) the Service shall be deemed solely based in Delaware; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Delaware. These Terms shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 13.2 and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Delaware for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Delaware is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. This Section 13.2 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and Company that arises out of or relates to, directly or indirectly: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (ii) access to or use of the Service, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Service; or (iv) any other aspect of your relationship or transactions with Company, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to these Terms.
If you are a new Company user, you can reject and opt-out of this Arbitration Agreement within 30 days of accepting these Terms by emailing Company at email@example.com with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by AAA before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or Delaware, unless you and Company agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the Arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (x) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (y) the award rendered by the Arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (z) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. You and Company agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms, any provision of these Terms, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section shall be deemed as: preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
12.3 Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE 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 AND COMPANY AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER COMPANY USERS. YOU AND COMPANY FURTHER AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
The headings in these Terms are for reference only and shall not affect the interpretations of these Terms. The terms “for example,” “including” and/or “includes” shall be deemed to mean “for example, but not limited to,” “including, but not limited to” or “includes, but is not limited to,” as applicable.
Except as otherwise agreed in writing (email to suffice), neither party may use the other party’s name, logos or marks without such party’s written pre-approval in each case; provided that Company may use Customer’s name and logo on Company’s web site and in Company promotional materials to identify Customer as a Company customer.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
13.4 Notification Procedures and Changes to these Terms
Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Company in our sole discretion. Company reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. Company is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Company may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
13.5 Entire Agreement/Severability
These Terms, together with any amendments and any additional agreements you may enter into with Company in connection with the Service, shall constitute the entire agreement between you and Company concerning the Service. Except as otherwise stated in Section 13.2, if any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.
13.6 No Waiver
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
13.7 Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, or failure or diminishment of power or telecommunications or data networks or services.
Company may use the services of subcontractors for performance of services under this Agreement, provided that Company remains responsible for such subcontractors’ compliance with the terms of this Agreement.
13.9 Independent Contractors
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
Please contact us at email@example.com with any questions regarding these Terms.