VentureFizz Terms of Service
These Terms of Service (this “Agreement”) set out the terms on which VentureFizz, Inc. (“VentureFizz”, “we” or “us”) will provide access to and use of certain services available on or through the VentureFizz website and/or mobile applications (collectively, the “Service”) to you, a user of the Service (“you” or “User”). You should read this Agreement carefully. By indicating acceptance of this Agreement or by otherwise using the Service, you are entering into a legally binding agreement with us (and you hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement). If you are using the Service on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the term “you” will include both you, the individual user, and such organization. If you do not agree to these terms and conditions, you must not use the Service.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND VENTUREFIZZ, AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
1. Nature of the Service
The Service includes resources directed at organizations and individuals involved in the technology community. Certain Services require users to register and set up an account beforehand. All information or other content that a User uploads to, or otherwise creates using, the Service shall be considered “User Content” and your User Content may be referred to as “Your Content” herein.
If you are under the age of 13, you may not use or access the Service. The Service does not knowingly collect personal information about children under the age of 13. By indicating acceptance of this Agreement or by otherwise using the Service, you certify that you are 13 years of age or older.
In order to use certain parts of the Service, you must create a password protected account, and register with us. You may create an account using the log-in credentials of a third-party account such as Twitter. To the extent you are using the Service on behalf of an organization, you may need to also provide us with information in order to confirm, or permit us to confirm, any relationship between you and such organization. You represent and warrant to us that (i) you will provide us with accurate, current and complete registration information; and (ii) your registration and your use of the Service will comply with all applicable laws. You are responsible for your registration, and for all use of the Service using any User credentials or passwords issued to you or chosen by you. You will keep all such credentials and passwords confidential.
Certain features of the Service, may be available only if certain subscription fees or other fees (collectively, “Fees”) are paid by you, or for your benefit (e.g., we may permit a third party to pay certain Fees for your benefit). If you purchase any subscription plan or enter into a Subscription Agreement or the like (a “Subscription Agreement”) for the Service or certain features thereof, you must pay any applicable Fees detailed therein (contact us at email@example.com for further details on how to subscribe) and the Subscription Agreement shall be incorporated into this Agreement. If there is a conflict between this Agreement and the Subscription Agreement, the Subscription Agreement shall govern only as to such conflicting terms. You will provide us with accurate and valid payment information and update your payment information in the event any information provided becomes invalid or incomplete. If any charge is rejected by our bank or payment provider, you are still liable to pay the Fees. We retain the right to charge interest on any overdue balance at the rate of 1.5% per month, or the maximum amount permitted by law (if lower). You will also be responsible for our reasonable costs of collection, including attorney’s fees, if we have to take any legal or administrative action to collect unpaid fees.
4. Your Content
You retain your rights in Your Content, subject to the rights granted below. You hereby grant and agree to grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable license, with the right to sublicense through multiple tiers, to copy, edit, modify, publish, transmit, distribute, prepare derivative works, display and use Your Content in connection with operation and promotion of the Service, and any other purposes reasonably related to the Service or our business. To the extent reasonably necessary or appropriate to effect or support the license granted by you above, you hereby waive and agree to waive any rights of privacy or publicity, or any moral rights or other similar rights, with respect to Your Content.
You also hereby do and shall grant to each other User of the Services a non-exclusive, perpetual license to access Your Content through the Service, and to copy, edit, modify, publish, transmit, distribute, prepare derivative works, display and use Your Content in connection with the Services and only in accordance with this Agreement.
You agree that we are not responsible for any use or disclosure of Your Content by other Users or any third party who gains access to it through the Service.
You represent and warrant that you own all proprietary rights in Your Content or, with respect to any of Your Content you do not own, that you have the full authority and right to upload Your Content, and to grant the licenses and rights you have granted in this Agreement, and that your uploading and/or posting of Your Content, and the exercise by us and other Users of the licenses and rights granted by you, shall not infringe any third party intellectual property rights, nor violate any rights of privacy or publicity, nor be defamatory, libelous, vulgar, profane or obscene, nor violate any law or other right, privilege or interest of any third party.
On termination of your account or this Agreement, we have no obligation to return Your Content to you, so you should retain copies of all of Your Content.
5. Our Ownership Rights
The Service, excluding User Content, is our property. All the software, algorithms, functionality, inventions, concepts, text, images, sound, music, marks, logos, compilations, content and technology used to deliver the Service or otherwise embodied in or displayed through the Service are “Our Property.” For clarity, any formats, templates, methodologies, rules, algorithms and software used to create Your Content are Our Property. Except as otherwise expressly permitted by this Agreement, any use, copying, making derivative works, transmitting, posting, linking, deep linking, framing, redistribution, sale, decompilation, modification, reverse engineering, translation or disassembly of Our Property is prohibited. You acknowledge that Our Property has been created, compiled, developed and maintained by us at great expense of time and money such that misappropriation or unauthorized disclosure or use of Our Property by others for commercial gain would unfairly and irreparably harm us in a manner for which damages would not be an adequate remedy, and you consent to our obtaining injunctive relief to restrain any breach or threatened breach of this Agreement, without any requirement to post bond. You may be subject to criminal or civil penalties for violation of this paragraph.
The mark VENTUREFIZZ and any associated logo are our registered or unregistered trademarks. You may not use them, or any of our other marks or logos, in any manner, including any use that is likely to cause confusion or that disparages or discredits us, without our consent. The Service also features the trademarks, service marks, and logos of other Users and third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
Subject to the terms and conditions herein, we grant you the non-exclusive, limited right to access and use Our Property solely to the extent necessary for you to use the Service as permitted by this Agreement. We reserve all other rights.
6. Use of the Service
Subject to the terms and conditions herein, you are not permitted to sell, license, rent or otherwise use the Service or exploit any User Content for commercial purposes in a way that would violate any third party right.
You must not (a) collect or upload Your Content if you do not have the right to do so; (b) collect or upload Your Content or use the Service in any way that would violate any law or the rights of any person; (c) impersonate any person or entity, or forge or manipulate headers to disguise the origin of any of Your Content; (d) except as otherwise expressly permitted by this Agreement, harvest or otherwise collect information about others from the Service; (e) take any action that imposes or may impose an unreasonable or disproportionately large load on the Service or its infrastructure, or bypass any measures we may use to prevent or restrict access to any portion of the VentureFizz website or Service (or other accounts, networks or service connected thereto); (f) use manual or automated software, devices, or other processes to “crawl”, “scrape” or “spider” any page of the VentureFizz website or Service or otherwise to copy, obtain, propagate, distribute or misappropriate any information or other content from such website or Service, including any of Our Property; (g) distribute or otherwise make available any information or other content obtained through the Service to any third party, except as expressly permitted herein; or (h) otherwise interfere in any manner with the use or operation of the Service.
Your Content must not: (i) be libelous, vulgar, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or encourage a criminal offense; (ii) contain material from other copyrighted works without the written consent of the owner of such copyrighted material; (iii) infringe any copyright or violate any property rights, rights of privacy or publicity, or any other rights of any third party; or (iv) contain any software viruses, malware, spyware or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
We reserve the right (but are under no obligation) to investigate any claim that User Content or use of the Service does not conform to the terms and conditions of this Agreement, and to remove User Content or terminate your account, or any User Profile, for breach of this Agreement.
If you provide us with feedback about the Service or ideas for new features or improvements for the Service (“Feedback”), the Feedback will be part of Our Property. We will have the right to use and disclose the Feedback for any purpose, without compensation to you.
8. Warranty Exclusions and Limitations of Liability
THE SERVICE IS PROVIDED “AS IS”, WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE SERVICE AND OUR PROPERTY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE OR OUR PROPERTY. We may pause or interrupt the Service at any time, and you should expect periodic downtime for updates to the Service. No advice or information, whether oral or written, obtained by you from us or through the Service will create any other warranty.
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM US ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR OUR PROPERTY, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR OUR PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS PAID BY YOU TO US FOR THE SERVICE IN THE PRIOR two(2) months (OR, IF YOU ARE A NON-FEE PAYING USER, TO THE AMOUNT OF $1).
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
9. Cloud Services and Third Party Services and Resources
Without limitation of the disclaimers and limitations of liability set forth in Section 8, you acknowledge and agree as follows: (a) we provide the Service using cloud computing services of one or more third party cloud providers (collectively, the “Cloud Providers”); (b) the price at which we could afford to offer the Service would vary if we provided the Service other than using such cloud services; and (c) we shall not be responsible or liable to you for any act, omission or failure of any Cloud Provider.
You will indemnify us, and our licensors, providers and agents, against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees (“Liabilities”) arising out of or related to your breach of this Agreement or your use of the Service (but excluding any Liabilities to the extent caused by our negligence or willful misconduct). We reserve the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to indemnify us. You will cooperate with us with respect to such defense and settlement.
Without limitation of the foregoing, if we receive a subpoena or similar requirement to disclose Your Content issued by any court or governmental authority, and we are not a party to the proceeding in question, you will reimburse us for our reasonable costs and expenses of complying with such subpoena, including time spent by our personnel and our attorneys at time and materials rates.
12. Digital Millennium Copyright Act
We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material hosted by the Service you may contact our Designated Agent at the following address:
745 Atlantic Avenue
Boston, MA 02111
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of the material that you claim is infringing and where it is located on the Service; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
If material that you have posted to the Service has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following: (g) a physical or electronic signature of the subscriber; (h) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (i) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (j) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which VentureFizz may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.
It is our policy to terminate in appropriate circumstances the accounts of Users that are repeat infringers or repeatedly violate these Terms of Service.
13. Suspension and Termination
You may terminate this Agreement at any time by closing your account and ceasing to use the Service. We reserve the right to suspend your account and/or access to the Service at any time if we believe you are in breach of this Agreement. We reserve the right to terminate this Agreement or to cease to offer the Service at any time on written notice to you (including by email to registered Users or posting on our website), for any reason or no reason.
If your account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Service, (c) that the license and rights provided by us under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of Your Content, and (e) that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of the Service or for termination of access to your account.
Sections 5, 7-10, and 13-19, any accrued rights and remedies hereunder, and any other provisions that by their nature require survival in order to be effective, shall survive the termination or expiration of this Agreement.
14. Modification of Service and Agreement
We reserve the right to modify the Service at any time, without notice to you. We may also from time to time amend this Agreement prospectively. If we do so, we will notify you by email or by posting notice on our website. You agree that your continued use of the Service constitutes your agreement to the amended Agreement. If you do not agree to any amended Agreement that we publish, you must terminate your account and cease using the Service.
15. Applicable Law
We each agree that all disputes or other matters arising from or relating to this Agreement, or the use or operation of the Service, will be governed by the substantive laws of the Commonwealth of Massachusetts, U.S.A, without regard to its conflicts of laws principles. An action or proceeding by you relating to any claim arising from or relating to the Service or this Agreement must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued.
We will attempt to resolve disputes with Users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and us, you agree that any disputes arising out of or relating to the Service or this Agreement (including, without limitation, the validity and scope of the agreement to arbitrate and any disputes with other users of the Service) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in Boston, Massachusetts, unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. This provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets. In addition, you or we may elect to bring an individual claim in a small claims court, but we do not hereby agree to any personal jurisdiction that is otherwise lacking.
You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST US.
If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, than this entire section shall be deemed invalid and the arbitration clause shall be void.
17. Force Majeure
In no event will we be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside our reasonable control. Without limitation of the foregoing, in the absence of our gross negligence or willful misconduct we will not be liable for any damages arising from the acts of hackers or similar bad actors interfering with the Service or using or disclosing any of Your Content.
18. Compliance with Laws
You will comply with all laws and regulations applicable to your activities under or in connection with this Agreement, including without limitation United States export control laws, regulations and executive orders.
19. Miscellaneous Provisions
No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between us and you regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. Your registration, this Agreement and your rights and obligations hereunder are not assignable or transferable by you to any third party without our prior written consent. We may assign this Agreement, including to any purchaser of our business. This Agreement may be executed electronically, and your electronic assent or use of the Service shall constitute execution of this Agreement. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes. As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive. Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement. You agree that email to your email address on record will constitute formal notice under this Agreement. There shall be no third party beneficiaries to this Agreement.
Version: September 16, 2014