INTRODUCTION This agreement ("Terms of Use") between you ("User" or "you") and OnVibe, Inc., (collectively "OnVibe," "we," or "us") governs your access to and use of the website available at [Website Link] and any websites made available by OnVibe to which these Terms of Use are linked (collectively, the “Website”), the OnVibe mobile application (the "App") and the content and services enabled by or through the Website and the App (collectively the “Online Services”).
OnVibe Online Services is designed to use AI technology to generate social personalized media content from your social media content and data. OnVibe does not sell your information and shares your content and data solely with its trusted processors, only as needed to deliver service to you. For official and thorough information, please refer to the OnVibe privacy policy onvibe.co/privacy.
By browsing the Website, downloading the App, or otherwise using any Online Services, you represent that (1) you have read, understand, and agree to be bound by these Terms of Use, (2) you are of legal age to form a binding contract with OnVibe, and (3) you have the authority to enter into these Terms of Use.
These Terms of Use are effective as of the Effective Date above or, the earliest date permitted by law. Please review these Terms of Use carefully before using any Online Services. If you do not agree with these Terms of Use, your sole remedy is to not use our Online Services.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS THE WEBSITE OR USE THE APP.
PLEASE BE AWARE THAT THE TERMS OF USE CONTAINS PROVISIONS OBLIGATING YOU AND ONVIBE TO RESOLVE DISPUTES THAT ARISE BETWEEN US, INCLUDING ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE TERMS OF USE, THROUGH BINDING AND FINAL ARBITRATION. SECTION 19 CONTAINS AN ARBITRATION AGREEMENT. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU MAY NOT BE A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR PROCEEDING AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE ALSO BE AWARE THAT SECTION 4 (ONVIBE COMMUNICATIONS) BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATIONS.
Please note that your use of, and participation in, certain Online Services may be subject to additional terms ("Supplemental Terms"). The Supplemental Terms are incorporated into these Terms of Use and if the Terms of Use are inconsistent with any Supplemental Terms, the Supplemental Terms will take precedence.
We reserve the right to change the Terms of Use from time to time in our sole discretion. When we do, we will revise the Effective Date at the top of these Terms of Use. Changes to these Terms of Use will be effective immediately or the earliest date permitted by law after notice to you, which may be given by posting the updated Terms of Use on our Online Services or by email. If material changes are made to the Terms of Use, we may also notify you by placing a prominent notice on the Website or App. By continuing to use the Online Services, you have accepted the change(s) so we encourage you to periodically review the Terms of Use to stay aware of any changes to your and OnVibe’s rights and obligations.
CREATING AN ACCOUNT. In order to use the Online Services, you will need a user account (“Account”). You will need to provide certain information and details. You agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Online Services (the "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. If you provide any Registration Data that is untrue, inaccurate, not current or incomplete, or OnVibe has reasonable grounds to suspect that any Registration Data you provide is untrue, inaccurate, not current or incomplete, OnVibe has the right to suspend or terminate your Account and refuse any and all current or future use of the Online Services (or any portion thereof). You agree not to create an Account using a false identity or information. You agree not to create an Account or use the Online Services if you have been previously removed or banned by OnVibe. By providing Registration Data and other relevant information (together, the “Information”), you grant permission to OnVibe and its partners to use such Information to provide the Online Services. By providing the Information, you represent and warrant that you have the authority and right to provide the Information and grant the relevant rights.
LICENSE GRANT. The Website, the App, and the information and Content (as defined below) available in the Online Services are protected by copyright laws throughout the world.
Reserved.
License to the App. Subject to your compliance with the Terms of Use, OnVibe grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a reasonable number of copies of the App on mobile devices or computers that you own or control and to run such copy or copies of the App solely for your own personal or internal business purposes. Furthermore, with respect to any app accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any app accessed through or downloaded from the Google Play store, you may have additional license rights with respect to use of the app on a shared basis within your designated family group.
Updates. You understand that the Online Services are evolving. As a result, OnVibe may require you to accept updates to any Online Services that you have installed on your computer or mobile device. You acknowledge and agree that OnVibe may update the Online Services, including by over-the-air updates, with or without notifying you or obtaining further consents. You may need to update third-party software from time to time in order to use certain Online Services.
Certain Restrictions. The license rights granted to you in the Terms of Use are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Online Services or any portion of the Online Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other intellectual property (including images, text, page layout or form) of OnVibe or a third party; (c) you shall not use any metatags or other “hidden text” using OnVibe’s or a third party’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Online Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data contained in the App or any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Online Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Online Services. Any future release, update or other addition to the Online Services will be subject to the Terms of Use. OnVibe, its affiliates, partners, suppliers and service providers reserve all rights not granted in the Terms of Use. Any unauthorized use of any Online Services terminates the licenses granted by OnVibe pursuant to the Terms of Use.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Online Services, such as a mobile device in the case of the App. You are solely responsible for any fees incurred in the use of the Online Services.
COMMUNICATIONS FROM ONVIBE. By Using the Online Services, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning the use of the Online Services, updates concerning new and existing features on the Online Services, communications concerning promotions run by us or our third-party partners, and news concerning OnVibe and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send.
RESERVED.
RESERVED.
INTELLECTUAL PROPERTY RIGHTS. You agree that you have no rights, title or interests in the Online Services, including but not limited to, any information graphics, logos, text, editorials, reviews, computer code, themes, objects, concepts, artwork, animations, sounds, audiovisual effects, methods of operation, moral rights, documentation, and software (collectively, "Content"). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Online Services. Neither you nor anyone acting on your behalf acquire any intellectual property rights or other proprietary rights (including patents, designs, trademarks, copyrights or trade secrets) relating to the Online Services expressly set forth in a written agreement between you and OnVibe.
USER CONTENT.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to OnVibe through its suggestion, feedback, reviews, or similar pages ("Feedback") is at your own risk and that OnVibe has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to OnVibe a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable and transferable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, for any purpose, including without limitation in connection with the operation and maintenance of OnVibe’s business.
User Content. By sending, posting or transmitting any information to OnVibe or through the Online Services ("User Content") you grant OnVibe and our designees a worldwide, non-exclusive, transferable, royalty-free, perpetual, irrevocable right to use, reproduce, sublicense (through multiple tiers), distribute, create derivative works from, and otherwise exploit the User Content in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to you, subject to applicable law. All User Content is deemed non-confidential and non-proprietary. Any User Content that you choose to post on the Website or the App may be visible to the public. Please do not post User Content you do not want visible to the public on the Website or the App.
Responsibility for User Content. You are responsible for the content of the User Content. OnVibe has the right (but not the obligation) to alter, remove or refuse to post or allow to be posted any User Content. You acknowledge that OnVibe has no obligation to pre-screen User Content, including without limitation any consumer reviews, and OnVibe takes no responsibility and assumes no liability for any information posted by you or any third party nor for your or any third party’s reliance on any User Content. OnVibe strongly encourages you not to disclose any personal information in public areas of the Website or App. By sending, posting or transmitting any User Content, you represent and warrant that:
You own or otherwise control all of the rights to the User Content, including without limitation all copyrights and trademarks;
The User Content is true and accurate;
The User Content does not violate or infringe the rights of any other person or entity, including, without limitation, patent, trademark, trade secret, copyright, publicity, privacy or other proprietary rights; and
The User Content complies with applicable laws, rules and regulations.
No Responsibility to Backup or Maintain User Content. OnVibe is not responsible to backup or maintain User Content and is not responsible for any damage or loss of data or other User Content for any reason, including the implementation of measures by OnVibe in accordance with these Terms of Use, such as restriction of User’s use of the Online Services. You are responsible to create backups of User Content.
No Obligation to Pre-Screen Content and User Content. You acknowledge that OnVibe has no obligation to pre-screen Content or User Content. However, OnVibe reserves the right in its sole discretion to pre-screen, refuse, or remove any Content or User Content. By entering into the Terms of Use, you hereby provide your irrevocable consent to OnVibe monitoring User Content. You acknowledge and agree that you have no expectation of privacy concerning the transmission of User Content, including without limitation in-app chat, text, or voice communications. In the event that OnVibe pre-screens, refuses, or removes any Content or User Content, you acknowledge that OnVibe will do so for OnVibe’s benefit, not yours.
DATA COLLECTION. You acknowledge and agree that the Online Services are designed to transmit certain data elements, including but not limited to social media content and data (the “Test Data”), including to third party data centers (the “Cloud Storage”). You represent and warrant that you have the authority and right to provide the Test Data and grant OnVibe the right to use the Test Data to provide the Online Services. The Cloud Storage may use data storage centers provided by OnVibe or by third parties selected by OnVibe in its sole discretion. The Test Data collected in the Cloud Storage may also identify you or other information regarding you. You hereby consent to the collection and use of such Test Data, and to the extent the consent of any third parties are required for the collection and use of this Test Data under applicable laws, you are responsible for obtaining such consent. You acknowledge that OnVibe may analyze Test Data and any such analysis will be the sole and exclusive property of OnVibe. You hereby irrevocably assigns and transfers to OnVibe all of your right, title and interest in and to all such analysis including any and all intellectual property rights therein.
THIRD-PARTY SERVICES.
Third-party Services. The Online Services may include Content (e.g., information, links, and advertisements), products, services, apps, and other materials provided by a third party (each, a "Third-Party Service"). When you click on a link to a Third-Party Service, we will not warn you that you have left the Online Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Third-Party Services are not under the control of OnVibe. OnVibe is not responsible for any Third-party Services; provides these Third-Party Services only as a convenience; and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Online Services, the Terms of Use and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. You agree to comply with the terms applicable to the Third-Party Services. OnVibe does not guarantee or promise any benefits from use of the Online Services. Actual benefits vary depending on a variety of factors, which are beyond OnVibe’s control or knowledge.
Third-party Ads. OnVibe reserves the right to display advertisements for third parties ("Third-party Ads") on the Online Services, including targeted advertisements, which may be served or provided based on certain Users’ preferences. The Services may include advertisements and marketing information provided by us or a third party, and for those advertisements and marketing information provided by third-party advertisers, we are unable to control the usefulness, accuracy, or completeness of such information. You hereby agree that we are not responsible for any liability arising out of communications or transactions between you and third-party advertisers, including any damage that may arise out of any reliance by you on such advertisements. You acknowledge and agree that OnVibe has no obligation to you in connection with Third-Party Ads (including, without limitation, any obligation to share revenue received by OnVibe as a result of such advertising).THIRD-PARTY SERVICES.
RELEASE. You acknowledge and agree that the accuracy of your social media content and data directly impacts the performance of the Online Services. And you consent to the application of AI technology for the Online Services. You hereby release OnVibe and its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a "Company Party" and collectively, the "Company Parties") and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Online Services, including but not limited to, any interactions with or conduct of other Users or websites of any kind arising in connection with or as a result of the Terms of Use or your use of any Online Services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, OR ANY SIMILAR RULE IN YOUR JURISDICTION, WHICH STATES IN SUBSTANCE, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for a Company Party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Online Services.
COMPLAINTS. In accordance with California Civil 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.
ENFORCEMENT. If OnVibe becomes aware of any possible violations by you of the Terms of Use, OnVibe reserves the right to investigate such violations. If, as a result of the investigation, OnVibe believes that criminal activity has occurred, OnVibe reserves the right to refer the matter to, and cooperate with, any legal authority. OnVibe is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Online Services, including your User Content, in OnVibe’s possession, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Terms of Use, (iii) respond to any claims that your User Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of OnVibe, its Users or the public, and all enforcement or other government officials, as OnVibe in its sole discretion believes to be necessary or appropriate. Please see onvibe.co/privacy for additional information.
INDEMNIFICATION. You agree to indemnify and hold Company Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your User Content; (b) your use of, or inability to use, any Online Service; (c) your violation of the Terms of Use; (d) your violation of any rights of another party, including any other Users; or (e) your violation of any applicable laws, rules or regulations. OnVibe reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with OnVibe in asserting any available defenses. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Online Services. You agree that the provisions in this section will survive any termination of the Terms of Use and/or your access to the Online Services.
WARRANTY AND DISCLAIMERS.
YOU UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE ONLINE SERVICES IS AT YOUR SOLE RISK, AND THE ONLINE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE ONLINE SERVICES OR ANY PRODUCTS OR SERVICES ENABLED THEREBY.
COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE ONLINE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE ONLINE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM, MOBILE DEVICE, AND ANY OTHER DEVICE YOU USE TO ACCESS THE ONLINE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE ONLINE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO ANY ONLINE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF ONLINE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ONVIBE OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FROM TIME TO TIME, ONVIBE MAY OFFER NEW “BETA” FEATURES OR SERVICES WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR SERVICES ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT ONVIBE’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES OR SERVICES SUCH AS ONVIBE’S PAYMENT PROCESSOR(S), AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
LIMITATION OF LIABILITY.
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ONVIBE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS OF USE, THE ONLINE SERVICES, OR ANY COMMUNICATIONS OR INTERACTIONS WITH OTHER USERS OF THE ONLINE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE ANY ONLINE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE ONLINE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE ONLINE SERVICES (INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY REVIEWS); OR (e) ANY OTHER MATTER RELATED TO THE ONLINE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO ONVIBE BY YOU IN THE TRANSACTION OR INCIDENT GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Exclusion of Damages. Please note that some jurisdictions do not allow the exclusion or limitation of implied warranties, terms or conditions or the limitation of incidental or consequential damages so the above limitations and exclusions may be limited in their application to you. For further information about your statutory rights, please contact your local authority, trading standards department, citizens’ advice bureau or equivalent.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ONVIBE AND YOU.
TERM, TERMINATION, AND SURVIVAL.
Term. The term of this agreement (the Terms of Use) commences on the earlier to occur of (a) the date you first used the Online Services or (b) the date you otherwise accepted the Terms of Use, and will remain in full force and effect while you use any Online Services, unless earlier terminated in accordance with the Terms of Use.
Effect of Termination. Upon termination of any Online Service, your right to use such Service will automatically terminate immediately. OnVibe will not have any liability whatsoever to you for any suspension or termination of your access to the Online Services.
Survival. Certain provisions of the Terms of Use will survive termination, including: Sections 4 (COMMUNICATIONS FROM ONVIBE), 7 (INTELLECTUAL PROPERTY RIGHTS), 8 (USER CONTENT), 11 (RELEASE), 13 (ENFORCEMENT), 14 (INDEMNIFICATION), 15 (WARRANTY AND DISCLAIMERS), 16 (LIMITATION OF LIABILITY), 17 (TERM, TERMINATION, AND SURVIVAL) 19 (DISPUTE RESOLUTION) (i.e. binding arbitration), and 20 (APPS DOWNLOADED FROM THIRD-PARTY APP STORES).
INTERNATIONAL USERS. The Online Services are controlled and offered by OnVibe from its facilities in the United States of America (the “US”) and are only intended for users in the US. If you access or use any Online Services from other countries, you do so at your own volition and are responsible for compliance with local law.
DISPUTE RESOLUTION. Please read the following arbitration agreement in this section ("Arbitration Agreement") carefully. It requires Users to arbitrate disputes with OnVibe and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree to the following dispute resolution provisions of this Section 19 with respect to any dispute, claim, or request for relief (“Claim”) arising from or relating in any way to these Terms of Use, the onvibe.co/privacy, and your access or use of the Online Services (“Dispute”) and any lawsuit, arbitration or other proceeding that may arise out of such Dispute (each an “Action”).
The terms of Section 19 apply to all Disputes, even if the actions or relationship giving rise to such Disputes occurred prior to this version of the Terms of Use (or such modification). However, these Dispute Resolution terms do not apply to any Dispute as to which you have personally initiated a lawsuit or arbitration prior to agreeing to these Terms of Use. If any modification of the terms of Section 19 is deemed to be unlawful, void or for any reason unenforceable, then the dispute resolution provisions effective at the time of your agreement to these Terms of Use shall govern any dispute or disagreement between you and us.
Each provision of this Section 19 applies to the maximum extent permitted by law.
Covered Disputes. If you live in the United States, any Dispute is a Covered Dispute, with the following exceptions: (1) any individual (non-class) claim that can be solely resolved in small claims court, or (2) to the extent you have in any manner violated or threatened to violate our intellectual property rights, our suit to enforce such intellectual property rights including by injunction.
If a Dispute is a Covered Dispute, the Mandatory Dispute Resolution Provisions for U.S. users apply. If there is any dispute as to whether a Dispute is a Covered Dispute, that dispute shall be submitted to the Arbitrator (as defined below) for the Arbitrator to determine. If a Covered Dispute qualifies for small claims court, but a party commences an arbitration proceeding, the other party may elect instead to have the Covered Dispute resolved in small claims court, and upon written notice of a party’s election, the Arbitrator will administratively close the arbitration proceeding.
Dispute Resolution Provisions Applicable to All Users
Time to Sue. Neither party may bring any Action more than one year after the cause of action has arisen (or if the Action relates to multiple similar events, more than one year from the date the first such event occurred).
CLASS ACTION AND JURY WAIVER.THE PARTIES WAIVE THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, MASS ACTION, GROUP ACTION, REPRESENTATIVE ACTION, AND/OR COLLECTIVE ACTION IN ANY DISPUTE. EACH PARTY MAY PROCEED AS TO ANY DISPUTE ONLY IN THAT PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, MASS ACTION, GROUP ACTION, REPRESENTATIVE ACTION, AND/OR COLLECTIVE ACTION.
Applicable Law. These Terms of Use and your use of the Online Services are governed by, construed and enforced in accordance with the internal substantive laws of the State of Delaware, United States, regardless of the State’s conflict of laws provisions. However, any question as to whether a Dispute is a Covered Dispute (as defined above) and/or whether a Dispute is subject to the Mandatory Dispute Resolution Provisions for U.S. Users is to be decided by applying the provisions of the Federal Arbitration Act, Title 9 of the U.S. Code.
Choice of Venue: For any Action allowed to proceed in court, or to enforce the terms of this Agreement, the parties agree to exclusive personal jurisdiction and venue in the State courts of the State of California or the United States District Court for the Northern District of California.
Informal Dispute Resolution Required. Before initiating an Arbitration (as defined above) or any other type of adversary proceeding, the parties agree to use their best efforts to settle any Dispute or Covered Dispute (as defined above) directly through consultation and good faith negotiations according to the following process (“Informal Dispute Resolution Process”), which shall be a precondition to either Party initiating an Arbitration.
If you have a Dispute or Covered Dispute with us, you must send an individualized, written notice describing the Dispute or Covered Dispute to us to OnVibe, Inc., Attn: Legal Department – Arbitration 5150 Great America Parkway, Santa Clara, CA 95054. If we have a Covered Dispute with you, we will send a written notice to you using the contact information we have for you.
Promptly following receipt of such notice, we will personally meet, via telephone or videoconference, in a good-faith effort to confer with each other and try to resolve informally any Dispute or Covered Dispute covered by this Agreement.
If you are represented by counsel, your counsel may participate in the conference as well, but you agree to fully participate in the conference personally. Likewise, if we are represented by counsel, our counsel may participate in the conference as well, but we agree to have a company representative fully participate in the conference.
The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Process required by this paragraph.
If the Dispute or Covered Dispute is not resolved within 60 days of the opposing Party receiving the notice, then either you or we may proceed in accordance with the below Mandatory Dispute Resolution Provisions.
Failure to complete the Informal Dispute Resolution Process is grounds for dismissal of any Arbitration, described below.
If a Party brings an Arbitration as described below without following the Informal Dispute Resolution Process, it is grounds for dismissal, and such Party is required to pay any reasonable costs and fees of the other Party.
Mandatory Dispute Resolution Provisions for U.S. Users
Agreement to Arbitrate Covered Disputes. Any Covered Dispute that the parties cannot resolve through the Informal Dispute Resolution Process (as defined above) must be brought on an individual basis and will be resolved exclusively by final and binding arbitration (“Arbitration”) before an arbitrator mutually selected by the parties (the “Arbitrator”). The Arbitrator must have experience with the subject matter of the Dispute, and be a former federal or state court judge, unless the parties mutually agree otherwise parties will meet and confer in good faith to select an arbitrator. For purposes of this Section, good-faith meet-and-confer efforts require that each party propose at least three arbitrators who meet the qualifications described in these Terms. If, after 60 days of good faith meet and confer efforts, the parties are unable to agree on an arbitrator, either Party may petition the State courts of the State of California or the United States District Court for the Northern District of California to appoint an arbitrator meeting the requirements herein from the arbitrators proposed by the parties.
Rules Selection. The Arbitration shall be administered pursuant to JAMS’ Streamlined Arbitration Rules and Procedures or other comparable rules to which the parties agree. The selection of JAMS rules does not mean that JAMS will administer the Arbitration or appoint the Arbitrator.
Conduct of Arbitration. The Arbitration shall be conducted via electronic or telephonic means. If the Party seeking Arbitration fails to appear at the administrative conference regardless of whether such Party's counsel attends, the Arbitrator will administratively close the Arbitration proceeding without prejudice, unless such Party shows good cause as to why they were not able to attend the conference.
Arbitration Costs. If the Arbitrator finds that the costs and fees of an Arbitration you initiate will be prohibitive for you as compared to the costs of litigation, we will pay as much of your filing, arbitrator, and hearing fees in the Arbitration as the Arbitrator deems necessary to prevent the Arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith. If we initiate an Arbitration against you, we will pay all costs associated with the Arbitration (other than your attorneys’ fees and expenses unless permitted to be recovered under the arbitration rules or applicable law).
No Opt Out Rights. You do not have the right to opt out of the Dispute Resolution section. Rather, your sole remedy if you do not accept these Terms of Use (including this Dispute Resolution section) is to stop using the Online Services and to terminate your account.
OnVibe’s Right To Terminate Mandatory Dispute Resolution Program. At any time, OnVibe may terminate its agreement to Section 19.c. That termination will not affect any Action that has already been initiated.
Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with OnVibe.
APPS DOWNLOADED FROM THIRD-PARTY APP STORES.
App Stores. You acknowledge and agree that the availability of the App and the Online Services enabled thereby is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an "App Store"). You acknowledge that the Terms of Use is between you and OnVibe and not with the App Store. OnVibe, not the App Store, is solely responsible for the Online Services, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree that you are solely responsible for any and all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with your use of any Online Services, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any of the Online Services, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms of Use and will have the right to enforce it.
Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
i. You acknowledge and agree that (i) the Terms of Use is concluded between you and OnVibe only, and not Apple, and (ii) OnVibe, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service. • ii. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
iii. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between OnVibe and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of OnVibe.
iv. You and OnVibe acknowledge that, as between OnVibe and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• v. You and OnVibe acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between OnVibe and Apple, OnVibe, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms of Use.
• vi. You and OnVibe acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms of Use as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Use as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
• vii. Without limiting any other terms of the Terms of Use, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
MISCELLANEOUS.
Electronic Communications. The communications between you and OnVibe may take place via electronic means, whether you visit the Services or send OnVibe e-mails, or whether OnVibe posts notices on or through any Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from OnVibe in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that OnVibe provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
Assignment. The Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without OnVibe’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Severability. If any provision of the Terms of Use is or becomes unenforceable or invalid, the remaining provisions will continue with the same effect as if such unenforceable or invalid provision had not been inserted herein. If OnVibe fails or you fail to perform any term hereof and the other party does not enforce such term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion.
Applicability. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE TERMS OF USE.
Notice. Where OnVibe requires that you provide an e-mail address, you are responsible for providing OnVibe with your most current e-mail address. In the event that the last e-mail address you provided to OnVibe is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms of Use, OnVibe’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to OnVibe at the following address: OnVibe, Attention: General Counsel, 5150 Great America Parkway, Santa Clara, CA 95054. Such notice shall be deemed given when received by OnVibe by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any portion of the Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Export Control. You may not use, export, import, or transfer any Services or Product except as authorized by U.S. law, the laws of the jurisdiction in which you obtained such Services or Product, and any other applicable laws. In particular, but without limitation, the Services and Product may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by OnVibe are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer OnVibe products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Entire Agreement. THE TERMS OF USE CONSTITUTES THE FINAL, COMPLETE AND EXCLUSIVE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES AND MERGES ALL PRIOR DISCUSSIONS BETWEEN THE PARTIES WITH RESPECT TO SUCH SUBJECT MATTER.
CONTACTING ONVIBE. Should you have any issues or questions regarding the Online Services, please contact us: support@onvibe.co, or via post: 5150 Great America Parkway, Santa Clara, CA 95054.