Effective Date: October 12, 2020
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU ON ONE HAND, AND GOVYRL, INC. ON THE OTHER.
SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 17 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 17 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
(a) Thanks for using GoVyrl, and our related services, including our Carro application (“Carro”)!
(b) Please read these Terms and Conditions carefully. By using GoVyrl’s Applications or Services (as each is defined below), visiting our websites or signing up for an account (the “Account”), you’re agreeing to these Terms and Conditions and the Supplementary Terms (as defined below) that apply to your use of our Services (as described in Section 1(c) below), which will result in a binding legal agreement between you and GoVyrl (the “Agreement”).
(c) GoVyrl, Inc. is headquartered in the State of California in the United States (“we,” “us,” “our,” and “GoVyrl”) and operates a variety of websites (“Websites”) and online marketing services and applications, including Carro (each an “Application,” and together with the Websites and other services, the “Services”). The Services enable our Customers to, among other things, identify and communicate with influential customers for marketing purposes. We also provide other related services, such as real-time data analytics. Find out more about our Services at www.vyrl.co and www.getcarro.com.
(d) As a customer of the Services or a representative of an entity that’s a customer of the Services, you’re (“you” or “your”) a “Customer” according to this Agreement (and together with other customers of the Services, collectively, the “Customers”).
(f) This Agreement and the Supplementary Terms define the terms and conditions under which you’re allowed to use the Services and any applicable additional features, and how we’ll treat your Account while you’re a Customer. We may update the terms of this Agreement or the Supplementary Terms from time to time in our sole discretion, and any changes made to this Agreement shall also be automatically incorporated into the Supplementary Terms. If we do make any such changes, we’ll let you know by posting the updated Agreement or Supplementary Terms, as applicable, to the Websites, to the Applications and/or may also send other communications. It’s important that you review the Agreement or Supplementary Terms, as applicable, whenever we update them or you use the Services. If you continue to use the Services after we have posted the updated Agreement or Supplementary Terms it means that you accept and agree to the changes. If you don’t agree to this Agreement or any of the Supplementary Terms, you must immediately discontinue your use of the Services and any applicable additional features. Because our Services are evolving over time we may change or discontinue all or any part of the Services and additional features, at any time and without notice, at our sole discretion.
(g) The success of our Services depends on the adherence to the terms of this Agreement by you and other Customers. While we will do our best to enforce the terms of this Agreement, we cannot warrant or represent that other Customers will in fact adhere to this Agreement and cannot act as insurers or accept any liability for their failure to do so.
(a) By accessing or using the Services in any way, clicking on a button or taking similar action to signify your affirmative acceptance of this Agreement, you hereby represent that:
- You have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time at this link or through the Services;
- You are sixteen (16) years old or older;
- You are of the legal age required in your jurisdiction to access or offer any alcohol, tobacco, or other age-restricted products in connection with our Services; and
- You have the authority to enter into the Agreement personally. Except as otherwise provided herein, if you do not agree to be bound by the Agreement, you may not access or use the Services. In addition, if you have been previously prohibited from accessing the Services, you are not permitted to access our Websites or the Services.
3. Account Access.
(b) Access. By entering into this Agreement, you will be granted a revocable license to access the Carro dashboard or other Services. Your access privileges, however, are conditioned on your adherence to the terms of this Agreement. We reserve the right to temporarily deny you access to the Services or permanently terminate your access privileges at any time if, in our sole discretion, you have failed to abide by the terms of this Agreement or appear to us likely to do so. By agreeing to grant you access, we do not obligate ourselves to do so or to maintain the Services, or to maintain it in its present form, and we expressly reserve the right to modify, suspend or terminate your access privileges.
(c) Privileges Nontransferable. Your access privileges may not be transferred by you to any third parties. You further agree not to disclose to anyone your confidential log-in information (including username and password).
(d) Cancellation. If you wish to cancel the Account you may e-mail us at any time and it will be cancelled within a reasonable period of time. Once the Account is cancelled, its information may be deleted or otherwise become unavailable and we will not be responsible for any loss in this respect.
4. User Obligations.
(a) By using the Services, you expressly represent and warrant that you are legally entitled to enter this Agreement. Your participation is for your own use. When using the Services, you agree to comply with all applicable laws, including those of the country, state and city in which you are present while using the Services.
(b) By using the Services, you agree that:
- You will only use the Services for lawful purposes, and not for deceptive or fraudulent purposes; you will not impersonate or misrepresent your affiliation with any person or entity; you will not send or store any unlawful material.
- You will not use the Services to cause nuisance, annoyance or inconvenience, including by sending any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation.
- You will not copy or distribute any content displayed through the Services, nor use, display, mirror or frame the Services or any individual element within the Services, GoVyrl’s name, any GoVyrl trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without GoVyrl’s express written consent. You will not attempt to reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services (such as the source code), in whole or in part, or use access to the Services to develop any competing offering. You will not use any such materials for any purpose other than the permitted use of the Services.
- You will not in any way use, or use any means to gain access to, the Services or any Confidential Information (as defined in Section 4(c)) for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
- You will not create or compile, directly or indirectly, any collection, compilation, or other directory from any content displayed through the Services except for your own personal use consistent with the permitted use of the Services. This includes, without limitation, any listing of Brands or other users of the Services that may be available.
- You will not collect or store any personally identifiable information from the Services from other users of the Services without their express permission, and you will timely inform us of any such permission received.
- The information you provide to us or otherwise communicate with us is complete and accurate.
- You will not use the Services in any way that could damage, disable, overburden or impair any of our servers, or the networks connected to any of our servers, or interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby.
- You will not attempt to gain unauthorized access to any part of the Services (including non-public areas of the Services) and/or to any service, account, resource, computer system, technical delivery systems and/or network connected to any of our servers, including by avoiding, bypassing, removing, deactivating, impairing, descrambling or otherwise circumventing any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Services.
- You will not deep-link to the Services or access or search the Services or download, scrape, copy, monitor, or record any portion of the Services or any data or content contained within or transmitted by the Services, manually or with any engine, automated program, software, tool, agent, device, mechanism (including robots, spiders, web crawlers, extraction software, data mining tools, automated process and/or other devices), or any other method of screen scraping, unless we have provided tools expressly for such purposes.
- You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
- You will not use the Services, or any portion thereof, for the benefit of any third party or products competitive with GoVyrl or otherwise in any manner not permitted by this Agreement. For the avoidance of doubt, you will not use any portion of data or content contained within or transmitted by the Services, for any commercial use apart from the use of the Services for the purposes intended in our offering of them.
- You will not encourage or enable any other third party to take any action prohibited by this Agreement.
(c) Confidentiality. In your use of the Services, you may have (or have been given) access to information that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure (collectively, “Confidential Information”). Confidential Information includes items such as Customer/Brand lists or directories, messages transmitted through the Services, and the non-public aspects of the Services. Confidential Information does not include information that: (i) is in the public domain at the date of disclosure (and did not fall into the public domain as a result of your breach of this policy or any other confidentiality agreement); (ii) was rightfully in your possession before you gained access to it through the Services (and you can prove this fact by admissible, written evidence); or (iii) was rightfully received from a third party (who was in lawful possession of it) without any confidentiality or non-use restrictions. You will not use the Confidential Information other than for purposes of your authorized use of the Services. Further, you will maintain as confidential and not disclose any Confidential Information. Nothing shall prevent you from disclosing information obtained through the Services if compelled to do so by a court of law or government agency, on the condition that you provide advance notice to us and allows us a reasonable opportunity to intervene in the proceeding to protect the confidentiality of the Confidential Information.
5. Advertising Policy for Affiliate Links and Branded Content
We may provide you with opportunities to advertise brands, partner brands, and influencers through affiliate links, referral links, product reviews, and social media content. When you post this information, you agree to comply with applicable advertising laws and social media advertising guidelines.
We reserve the right to modify, suspend or terminate your access to the Services for any violations of our Advertising Policy.
To comply with Federal Trade Commission (FTC) Guidelines, this means:
Including terms such as “(paid link)”, “#ad” or “#CommissionsEarned”.
Placing these terms in or near any advertising in a location that customers will notice easily.
You agree to review the FTC Endorsement Guides and Facebook’s Advertising Policies. If you choose to advertise on other platforms, you agree to review the advertising and content guidelines of these other platforms. You agree to indemnify and hold us harmless for any violations of the Advertising Policy in accordance with Section 14 of this Agreement.
6. Food, Drug, and Export Controls.
(a) If products are provided by third parties through the Services, those third parties may separately provide representations and/or warranties regarding their products. If nutrition, ingredient, allergen, and other product information is provided through the Services, we do not represent or warrant that such information is accurate or complete. On occasion manufacturers may modify their products and update their labels. We recommend that you do not rely solely on the information presented on our Services and that you consult the product’s label or contact the manufacturer directly if you have a specific dietary concern or question about a product.
(b) Additional terms and conditions may apply to purchasers and resellers of food and drug products. If you purchase products for resale through the Services, you represent and warrant that the items you purchase for resale will be sold or distributed by your organization and that with respect to such items you will comply with the applicable laws governing the export, import, and provision of goods and services in the United States and in the jurisdictions in which the end user of your products resides, operates, or will receive shipments.
(c) Software related to or made available by the Service may be subject to export controls of the United States. To the extent permissible under applicable domestic laws, no software from the Service may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the United States has embargoes; (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders; or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions, including as set forth in subsections (i) – (iii) above.
7. User Submissions and Content.
(a) Permissions to Your User Content. We may provide you with interactive opportunities through the Services, which may allow you to store or share content such as text (in posts or communications with others), files, documents, graphics, images, music, software, audio and video. Anything (other than Feedback) that you post or otherwise make available through the Services is referred to as “User Content”. We do not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that you may have to your User Content. You hereby grant us a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with our business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you, except as otherwise required by law.
(b) Your Responsibility for User Content. You are solely responsible for all your User Content and you represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by GoVyrl on or through the Services will: (i) infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy; (ii) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) be fraudulent, false, misleading or deceptive; (iv) be defamatory, obscene, pornographic, vulgar or offensive; (v) promote discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) be violent or threatening or promote violence or actions that are threatening to any person or entity; (vii) promote illegal or harmful activities or substances; or (viii) otherwise result in the violation of any applicable law or regulation.
(c) Removal of User Content. You can remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
(d) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to us through our suggestion, feedback, or similar pages (“Feedback”) is at your own risk and that we have no obligations (including obligations of confidentiality) with respect to such Feedback. If you choose to submit such Feedback, you agree that we are free to use it without any restriction or compensation to you. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to us a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback, except as otherwise required by law.
(e) Ratings and Reviews. To the extent that you are asked to rate and post reviews of brands and/or companies (“Ratings” and “Reviews”), such Ratings and Reviews are considered User Content and are governed by this Agreement. Ratings and Reviews are not endorsed by us and do not represent our views. We do not assume liability for Ratings and Reviews or for any claims for economic loss resulting from such Ratings and Reviews.
8. Good Samaritan Content Policy & Complaint Procedures.
(a) Policy. It is the policy of the owners and operators of the Services to not tolerate any acts of intellectual property infringement or violations of U.S. law or to allow for any child pornography or obscene or defamatory material to be posted through the Services. We will do our best, in good faith, to purge or otherwise restrict the availability of material that is infringing, racist, sexist, obscene, harassing, or otherwise objectionable. The provisions of this Section 8 are intended to implement this policy but are not intended to impose a contractual obligation on the owners or operators of the Services to undertake, or refrain from undertaking, any particular course of conduct.
(b) Complaint Procedures. If you believe that someone has posted material through the Services which infringes the intellectual property or other rights of third parties or which is in violation of U.S. law or which is racist, sexist, obscene, harassing, defamatory, or otherwise objectionable, or which constitutes child pornography, we ask you to promptly notify us by email at the following address: email@example.com. You must use this address if you want to ensure that your complaint is actually received by the appropriate person charged with responding to such communications.
(c) Required Details for Complaints. In order to respond as quickly as possible to any complaint, please provide us with as much detail as possible, including: (i) the nature of the right infringed or violated (including the registration numbers of any registered copyrights, trademarks or patents allegedly infringed); (ii) all facts which lead you to believe that a right has been violated or infringed; (iii) the precise location where the offending material is located; (iv) any grounds to believe that the person who posted the material was not authorized to do so or did not have a valid defense (including the defense of fair use); and (v) if known, the identity of the person or persons who posted the infringing or offending material.
(d) Indemnification/Waiver of Certain Rights. By lodging a complaint, you agree that the substance of your complaint shall be deemed to constitute a representation made under penalty of perjury under the laws of the State of California. In addition, you agree, at your own expense, to defend us and indemnify us against any liability which we may incur by our response to your complaint.
(e) Waiver of Claims and Remedies. We expect Customers to take responsibility for their own actions, and, as set forth below in Sections 15 and 16, cannot assume liability for any acts of users or third parties which take place through the Services. By this Agreement, you acknowledge that in establishing a complaint procedure we are taking on the role of a Good Samaritan and, in order to allow us to do our best, in good faith, to purge or otherwise restrict the availability of material that is infringing, racist, sexist, obscene, harassing, or otherwise objectionable, you agree to waive any claims or remedies which you might otherwise be able to make against us under any theory of law (including, but not limited to, intellectual property laws) arising out of or relating in any way to the content of the Services or our response, or failure to respond, to a complaint.
(f) Investigation/Right to Purge Postings. You agree that we have the right (but not the obligation) to investigate any complaint received and, at any time and for any reason, to remove any material which you post to the Services, with or without your permission, and with or without cause, in our sole discretion. By reserving this right, we do not undertake any responsibility in fact to remove content posted online, whether or not a complaint has been received.
9. Intellectual Property Ownership.
We (and our licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, or any intellectual property rights owned by us. Our name, logo, and the product names associated with the Services are our trademarks or belong to third parties, and no right or license is granted to use them. You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
10. DMCA/Copyright Policy.
It is GoVyrl’s policy, in appropriate circumstances, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. GoVyrl will respond to claims of copyright infringement committed on the Services that are reported to GoVyrl’s designated copyright agent (the “Designated Copyright Agent”), identified in the sample notice below. If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Services by completing the following DMCA Notice of Alleged Infringement and delivering it to the Designated Copyright Agent. Upon receipt of the Notice as described below, GoVyrl will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Services.
DMCA Notice of Alleged Infringement (“Notice”)
(a) Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
(b) Identify the material that you claim is infringing (or to be the subject of infringing activity) and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, including at a minimum, if applicable, the URL of the link shown on the website(s) where such material may be found.
(c) Provide your mailing address, telephone number, and, if available, email address.
(d) Include both of the following statements in the body of the Notice:
• “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
• “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
(e) Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to the Designated Copyright Agent:
c/o GoVyrl, Inc.
2372 Morse Avenue, Ste. 128, Irvine, California 92614
11. Notice to U.S. Government End Users.
(a) The software, Applications, Website and Services, including all documentation, are “Commercial Items”, as that term is defined at 48 C.F.R. § 2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation”. The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users: (i) only as Commercial Items; (ii) with the same rights as all other end users; and (iii) according to this Agreement.
(b) Published and unpublished rights are reserved under the copyright laws of the United States. The manufacturer is GoVyrl, Inc., 2372 Morse Avenue, Ste. 128, Irvine, California 92614.
(b) If you submit a “Product Request” using the feature of the same name within the Carro application or otherwise indicate your interest in contacting a Brand, you may receive telemarketing calls or emails from Brands using the contact information you provided. Brands may keep your contact information and any other information received by the Brands in processing a contact or other request form. We are not responsible for any damages or costs of any type arising out of or in any way connected with your dealings with these Brands.
13. Third-Party Interactions.
The Services (including the Applications) may contain links to third-party websites and advertisements (collectively, “Third-Party Websites & Advertisements”). When you click on a link to a Third-Party Website or Advertisement, we will not warn you that you have left our Websites and Applications and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites & Advertisements are not under our control. We provide access only as a convenience and are not responsible for any Third-Party Websites or any Third-Party Advertisements. We do not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their content, products or services. You use all links in Third-Party Websites & Advertisements at your own risk. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You agree to indemnify and hold harmless GoVyrl and its officers, directors, employees, agents, and affiliates (each, an “Indemnified Party”) from and against any losses, claims, actions, disputes, demands, costs, damages, penalties, fines and expenses, including attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from: (a) your User Content; (b) your misuse of the Services; (c) your violation of this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Services. In the event of any claim, allegation, suit or proceeding alleging any matter potentially covered by the agreements in this Section, you agree to pay for the defense of the Indemnified Party, including reasonable costs and attorneys’ fees incurred by the Indemnified Party. We reserve the right, at our 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 us in asserting any available defenses. This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services. You agree that the provisions in this Section will survive any termination of your Account, this Agreement, or your access to the Services.
15. Disclaimer of Warranties.
(a) YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. CHANGES ARE PERIODICALLY MADE TO THE SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU. YOU ACKNOWLEDGE THAT THE SERVICES (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY US IN CONNECTION WITH THE SERVICES) ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, TRUTHFULNESS, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH OUR SERVICES, OR THE SERVICES, TEXT, GRAPHICS, OR LINKS.
(b) WE DO NOT WARRANT THAT THE SERVICES WILL OPERATE ON AN UNINTERRUPTED, SECURE, BUG-FREE, OR ERROR-FREE BASIS OR THAT THE SERVICES ARE FREE OF ANY FAULTS OR DEFECTS OR COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.
16. Limitation of Liability.
(a) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHER LEGAL THEORY) SHALL GOVYRL BE LIABLE TO YOU OR ANY THIRD PARTY FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR DATA BREACH, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER OR NOT GOVYRL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; OR (II) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES (INCLUDING ATTORNEYS’ FEES) IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWO (2) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
(b) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CLIENT AND YOU.
17. Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 16 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
(a) Scope of Arbitration Agreement. You agree that any dispute, claim, or controversy arising out of or relating in any way to this Agreement or your access or use of the Services or as a consumer of our services, to any advertising or marketing communications regarding us or our Services, to any products or services sold or distributed through the Services that you received as a consumer, or to any aspect of your relationship or transactions with us as a consumer of our services will be resolved solely by binding arbitration, rather than in court, except that: (i) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (ii) you or GoVyrl may seek injunctive or other equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.
IF YOU AGREE TO ARBITRATION WITH US, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST US IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
(b) Arbitration Rules and Forum. This Arbitration Agreement, and its interpretation and enforcement, is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, David Perry, 200 Spectrum Center Drive, suite 1260, Irvine CA 92618. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, we will pay them for you. In addition, we will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.
(c) Arbitrator Powers. Except as provided in Section 17(a) above, the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and GoVyrl and determine all issues of liability on the merits of any claim asserted by either party. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual, and only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim, under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and GoVyrl.
(d) Waiver of Jury Trial. YOU AND GOVYRL WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and GoVyrl are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 17(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
(e) Waiver of Class or Consolidated Actions. YOU AND GOVYRL AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor GoVyrl is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 18.
(f) Severability. Except as provided in Section 17(e) above, if an arbitrator or court of competent jurisdiction decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement will still apply.
(g) Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor GoVyrl can force the other to arbitrate as a result of this Agreement. To opt out, you must notify GoVyrl in writing no later than thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your email address (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: firstname.lastname@example.org. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
(h) Survival. This Arbitration Agreement will survive any termination of your relationship with us.
(i) Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to us.
18. Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and GoVyrl agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively within the State of California for courts situated in Orange County, California, or in federal court for the Central District of California.
(a) Reservation of Rights. GoVyrl and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
(b) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, GoVyrl or any third-party provider as a result of this Agreement or use of the Services.
(c) No Third-Party Beneficiaries. Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever.
(d) Choice of Law. This Agreement, and all matters arising from, related to, or connected with it, is governed by the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.
(e) Severability. Except as otherwise provided herein, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
(f) Electronic Communications. For contractual purposes, you: (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(g) Entire Agreement. This Agreement is the final, complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings, discussions, or other communications between the parties, oral or written, with respect to such subject matter.
(h) Assignment. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without GoVyrl’s prior written consent, and any attempt by you to do so, without such consent, will be void. GoVyrl may freely assign this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
(i) Waiver of Rights. Failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. The waiver of any such right or provision will be effective only if in writing and signed by GoVyrl’s duly authorized representative. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
(j) Interpretation. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect their interpretation. For purposes of this Agreement, the words and phrases “include”, “includes”, “including”, and “such as” are deemed to be followed by the words “without limitation”.
(k) Amendments. Other than as provided in Section 1(f), any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties.
(l) Force Majeure. Neither party will be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars, disease, or insurrections.
20. Contact Information.
Attn: Legal Department
2372 Morse Avenue, Ste. 128
Irvine, California 92614