Last Updated: January 7, 2020
1.2. IMPORTANT NOTICES.
a. This Agreement is subject to binding arbitration provisions and a waiver of class action rights, each as detailed in Section 18.
b. We may change these terms at any time in our sole discretion, as detailed in Section 2.
1.3. ASSENT. By visiting our Website or App, clicking on the “Get Started” or “Find Your Meet & Greet Photo Here” button, or otherwise using our Services or otherwise interacting with Arcivr in any way, the user performing such actions (“you” or “your”):
a. Represent that you have read and understand these Terms;
b. Represent that you are of legal age to enter into this Agreement;
c. Represent that you have the authority to enter into this Agreement in your personal capacity and/or, if you are an Event Host, on behalf of the entity named in any additional Agreement you enter into with Arcivr, and to bind such entity to these Terms; and
d. On behalf of yourself and any entity you represent, accept and agree to abide by these Terms.
Children under the age of 16 are not permitted to use the Services; however, adult parents or guardians may consent to the upload of their children’s personal information, including photographs, and use the Services on their behalf. By doing so, such parents or guardians assent to these Terms.
1.4. CERTAIN RESTRICTIONS. The rights granted to you in these Terms are subject to the following restrictions:
a. You shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit any portion of the Services, whether in whole or in part, or any content displayed on the Services;
b. You shall not access the Services in order to build a similar or competitive website, product, or service;
c. You shall not engage in scraping or otherwise using any data mining, robots or similar data gathering or extraction methods on or in connection with the Services;
d. You shall not engage in any use of the Services or the Arcivr Materials other than for their intended purposes;
e. You shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; and
f. Except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms. All copyright and other proprietary notices contained within the Services (or on any content displayed on the Website or App) must be retained on all copies thereof.
g. Regarding the App, you agree to permit the App to verify your identity prior to your use of the Services. Furthermore, with respect to the App you may not:
i. Rent, lease, lien, sublicense, distribute, resell or otherwise transfer the App to any third-party or use the App to provide time sharing or similar services for any third-party;
ii. Remove, circumvent, damage, disable, or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of ay content accessible through the App, or features that enforce limitations on use of the App;
iii. Make copies of the App;
iv. Modify, disassemble, decompile or reverse engineer the App, except to the extent the such restriction is expressly prohibited by law; or
v. Delete the copyright or other proprietary rights markings on the App.
You hereby agree that Arcivr may from time to time release fixes (including hotfixes), patches, updates or upgrades to the App; may automatically electronically upgrade the version of the App that you are using on your mobile device; and you agree that these Terms shall apply to all such upgrades. Standard carrier data charges may apply to your use of the App. Except for the limited rights expressly licensed to you in these Terms, Arcivr and the Arcivr Vendors (defined below) retain all right, title and interest in and to the App and the Services provided thereby.
a. You acknowledge that these Terms are between you and Arcivr only, and not with Apple, Inc. (“Apple”).
b. Your use of Arcivr’s iOS App must comply with Apple’s then-current App Store Terms of Service.
c. Arcivr, and not Apple, is solely responsible for our iOS App and the Services available thereon. You acknowledge that Apple will have no warranty obligation whatsoever with respect to our iOS App.
d. You agree that Arcivr, and not Apple, is responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App.
e. You agree that Arcivr, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
f. 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.
g. You agree to comply with all the applicable third-party terms of agreement when using our iOS App (E.g. you must not be in violation of your wireless data service terms of agreement when using the iOS App).
h. The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of Arcivr’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
i. If you breach any of these Terms, the above license will terminate automatically, and you must immediately stop using the iOS App and destroy any downloaded or printed materials.
- CHANGES. Arcivr may change, supplement or reduce the Services at any time. We may change, update or add or remove provisions of these Terms at any time by posting the updated Terms on our Website or App, by posting a notice on the Services or by emailing you. By using the Services after Arcivr has updated the Terms, you thereby agree to the revised and updated Terms. If you do not agree with the changes to the Terms, you must cease using our Services.
- SCOPE OF SERVICES. Arcivr’s digital platform works with Events Hosts to deliver VIP experiences for fans that attend events with their favorite artists, teams, and events, (“Event Participants”). Our apps and websites streamline the event check-in process, send real-time event updates, share event photos with and offer Products to Event Participants. The on-demand portion of the Service allows Event Participants to add User Content to our platform and create dozens of Products or other items.
- LICENSE. The Services, Products, and all images, software, platforms, tools, graphics, data, text, code, the trademarks, servicemarks and other content and materials available on the Services (excluding User Content as defined in Section 8.1 herein) and the selection and arrangement thereof (collectively, the “Arcivr Materials”) are the property of Arcivr, its vendors, including, without limitation, photographers that submit photographs to the Platform from an event or the printing companies that print copies of photographs from our Platform for our customers (collectively, “Arcivr Vendors”) or its third party licensors and are protected by United States and international intellectual property laws.
You acknowledge that (i) all right, title and interest in and to the Arcivr Materials, including all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein or associated therewith, are and will remain with Arcivr or its third party licensors; (ii) no right or interest in the Arcivr Materials is conveyed other than the limited licenses granted herein; (iii) the Arcivr Materials are protected by copyright and other intellectual property laws; and (iv) Arcivr asserts that the Arcivr Materials embody valuable confidential and secret information of Arcivr or its licensors, the development of which required the expenditure of considerable time and money.
- INTERACTION WITH SERVICES.
5.1. EVENT PARTICPANTS. Event Participants may access the Platform and, if they desire to purchase a photograph uploaded by the Event Host or upload their own photograph for printing on one of our Products, they may do so. Orders will be processed via Gooten. Gooten’s Terms of Service can be found here. payments will be processed through Braintree. Braintree’s agreement governing such services can be found here. Other service providers may be added or substituted for Gooten and Braintree at any time.
5.2. EVENT HOSTS. In order to engage our Services for an event, which include, without limit, the ability to organize VIP features and to upload photographs from the event. each Event Host will be required to enter into a supplemental agreement with us, which agreement will incorporate these Terms.
- THIRD PARTY SERVICES
6.2. Arcivr does not imply affiliation, approval, or control of any Third-Party Services by making such Third-Party Services available via Arcivr’s Services. Arcivr makes no claim or representation regarding, and accepts no responsibility for, the quality, accuracy, nature, ownership or reliability of Third-Party Services. YOUR USE OF ANY SUCH THIRD-PARTY SERVICES IS SOLELY AT YOUR OWN RISK AND SUBJECT TO THE APPLICABLE TERMS AND CONDITIONS AND PRIVACY POLICIES APPLICABLE TO SUCH THIRD-PARTY SERVICES.
- ADVERTISEMENTS AND PROMOTIONS
7.1. The Services may contain third party advertisements and promotions generated or posted by Arcivr users, Arcivr Vendors or other Third-Party Services providers.
7.2. Your business dealings or interactions with any third parties, including Arcivr users or Arcivr Vendors, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. Arcivr does not endorse, approve, or control any such products, services, advertising or promotions posted to the Services by its users or the Arcivr Vendors. Arcivr is not responsible or liable for any loss or damage of any kind incurred as the result of your direct dealings with Arcivr users or an Arcivr Vendor or otherwise resulting from the presence of advertisements for third party products and services included on or with the Services.
- USER CONTENT.
8.1. USER CONTENT. “User Content” means any and all information and content that any user, including Event Hosts and Event Participants, submits to, or uses with, the Services (e.g., content in the user’s profile or any photograph or other digital image or other information featuring you that is submitted to our Platform from an Arcivr Vendor. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 8.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Arcivr. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Arcivr is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
8.2. USER LICENSE. You hereby grant (and you represent and warrant that you have the right to grant) to Arcivr the Arcivr Vendors, and the Event Hosts, as applicable, an irrevocable, transferable, non-exclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, for the purposes of including your User Content in the Platform. Each Event Participant grants the Event Host the right to upload photographs which include the Event Participant, which photographs are included in the User License granted hereunder. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. Notwithstanding the aforesaid, if you request in writing, that Arcivr remove one or more images of you from its Platform, Arcivr will process your request within 60 days.
8.3. ACCEPTABLE USE POLICY. The following terms constitute our “Acceptable Use Policy”
a. You agree not to use the Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
b. In addition, you agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Services to harvest, collect, gather or assemble information or data regarding other users, including contact information, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Services; or (vi) generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to 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, subject to the parameters set forth in our robots.txt file).
8.4. ENFORCEMENT. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other party. Such action may include removing or modifying your User Content, terminating any user or Event Host’s relationship with us, and/or reporting you to law enforcement authorities.
8.5. FEEDBACK. Should you encounter any bugs, glitches, lack of functionality or other problems on the Services, please let us know immediately so we can address these issues accordingly. We appreciate your feedback as it helps us develop the Platform and offer the best Service possible. If you provide Arcivr with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Arcivr all rights in such Feedback and agree that Arcivr shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Arcivr will treat any Feedback you provide to Arcivr as non-confidential and non-proprietary. You agree that you will not submit to Arcivr any information or ideas that you consider to be confidential or proprietary.
8.6. BACKUP POLICY. YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING BACKUP COPIES OF ANY USER CONTENT YOU UPLOAD, POST OR MAKE AVAILABLE THROUGH THE SERVICES, AND PRODUCTS YOU PURCHASE AT YOUR SOLE COST AND EXPENSE. YOU MAINTAIN RESPONSIBILITY AND LIABILITY FOR ANY LOSSES OR DAMAGES YOU INCUR FOR FAILURE TO MAINTAIN BACKUP COPIES OF YOUR USER CONTENT. ARCIVR IS NOT LIABLE TO YOU FOR ANY DAMAGES OR LOSSES THAT RESULT FROM THE LOSS OR BREACH OF YOUR USER CONTENT IN CONNECTION WITH YOUR USE OF THE ARCIVR SERVICES.
Arcivr uses third-party vendors to host and store any media that you upload to Arcivr. We may require our vendors to maintain certain standards with respect to your User Content, but Arcivr does not guarantee that your User Content will be secure and/or available at all times. It is your sole responsibility to create and maintain backup copies of any such User Content on a regular basis.
Please note that when User Content or other files are deleted, those files will be deleted as soon as reasonable pursuant to Arcivr’s data destruction policies and cannot be recovered by Arcivr or any third-party vendor following deletion.
- OWNERSHIP OF MATERIALS
9.1. Unless otherwise indicated in writing by us, the Arcivr Platform and all content and other materials contained therein, including, without limitation, the Arcivr logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Arcivr Content”) are the proprietary property of Arcivr or our affiliates, licensors or users, as applicable.
9.2. Notwithstanding anything to the contrary in this Agreement, the Arcivr Platform and Arcivr Content thereon may include software components provided by Arcivr or its affiliates or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
9.3. The Arcivr logo and any Arcivr product or service names, logos or slogans (“Arcivr Marks”) that may appear on the Arcivr Platform are trademarks of Arcivr or our affiliates and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Arcivr” or any other name, trademark or product or service name of Arcivr or our affiliates without our prior written permission. In addition, the look and feel of the Arcivr Platform, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Arcivr and may not be copied, imitated or used, in whole or in part, without our prior written permission. All trademarks or logos other than Arcivr Marks mentioned on the Arcivr Platform are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Arcivr.
- . ADDITIONAL TERMS APPLICABLE TO SALES OF PRODUCTS (“TERMS OF SALE”)
Arcivr facilitates your purchase of Products through the Arcivr Services through its relationships with the Arcivr Vendors. If you purchase Products through the Services, you acknowledge that the printing of any creation of other physical medium Products is performed by such Arcivr Vendors and Arcivr’s role is to assist, facilitate and support such order process pursuant to these Terms of Sale.
10.2. PRICING; PAYMENT TERMS
a. In order to purchase Products through the Services, you are required to provide valid payment information as required by Arcivr. Arcivr may terminate your order for Products and take such other action as appropriate if we are unable to process your payment information and you do not provide an alternative form of payment upon Arcivr’s request. You agree to reimburse Arcivr for any and all costs incurred in collecting amounts owed by you to Arcivr or an Arcivr Vendor, including, without limitation, attorneys’ fees and costs of collection agencies.
b. You are responsible for any taxes that you are obligated to pay or that Arcivr may collect from you in connection with your purchase of Products. If you do not pay the sales or other taxes or fees on a transaction, you will be responsible for the taxes or fees in the event they are later determined to be payable on the sale, and Arcivr reserves the right to collect the taxes or other related fees from you at any time. In certain jurisdictions, Arcivr may be required to collect and remit sales tax in connection with your purchase of Products. Any such taxes will be added to the purchase price and reflected on your invoice or receipt.
10.3. PRODUCT DOWNLOADS; SHIPPING TERMS AND POLICIES
a. If you purchase a Product that is downloaded from the Services, such download will be made available to you through the Services upon Arcivr’s receipt of your valid payment information.
b. Products are printed using the exact file, in its original resolution, as uploaded by an Arcivr Vendor for downloads and printed products.
c. If you purchase photo prints or other physical medium Products (i.e., photo books or other photo merchandise), Arcivr will use its commercially reasonable efforts (and our Arcivr Vendors will use commercially reasonable efforts) to ship all orders for such Products within the estimated delivery time applicable to various methods of shipping available at the time you place your order. Arcivr is not responsible for any delays in shipping. Arcivr or the Arcivr Vendors reserve the right to substitute another carrier of equal or lesser cost to deliver your order at our discretion. All shipping charges are your responsibility. Shipping charges will be included in your shopping cart and can be viewed on a summary screen prior to finalizing your order. The shipping charge shown during the Product checkout process is subject to verification and to correction or change without notice, provided that if the actual shipping charge is more than the amount shown in your shopping cart, we will contact you with the correct shipping costs before processing your order, and you will have an opportunity to cancel your order. All orders are shipped FOB shipping point. Title to the physical medium of the Products passes from Arcivr to you upon shipment. If an item in your order is temporarily out of stock, we may hold your order until it is complete prior to shipment.
d. RETURN POLICY
i. If a Product is damaged during the delivery or the incorrect Product is received, Arcivr will create and ship a reprinted replacement item within two business days of being notified. Due to the custom-nature of the Products, we do not accept returns. We do not accept returns for reasons such as a customer being unhappy with the way they appear in a photograph, the quality of the photograph, or our cropping of a photograph.
10.4. PRODUCT AVAILABILITY AND PRICING
a. Arcivr or the Arcivr Vendors may revise or discontinue Product options at any time without prior notice, and Products may become unavailable even after an order is placed. All prices are subject to change without notice.
10.5. PRODUCT DESCRIPTIONS; PRICING; ERRORS
a. Arcivr strives to maintain accurate information in the Services and to eliminate any errors. However, we do not warrant that Product descriptions, photos, pricing or other Arcivr Materials are accurate, complete, reliable, current, or error-free. In addition, all weights and size dimensions are approximate. While we make reasonable efforts to accurately display all details of our Product offerings, including the applicable color, please note that the actual color you will see for a photo depends on the settings of your computer screen and we cannot guarantee that your computer will accurately display all photo colors. Arcivr or an Arcivr Vendor reserves the right to format, manipulate or otherwise modify as may be required to satisfy a particular order. If a Product offered by Arcivr is not as described or pictured, your sole remedy is to return the Product in unused condition for a refund within thirty (30) days of receipt. In the event of an error, whether contained in the Services, in an order confirmation, in processing an order or otherwise, we reserve the right to correct such error and charge the correct price or cancel the order, and your sole remedy in the event of such error is to cancel your order.
10.6. DISCLAIMER OF WARRANTIES
THE FOREGOING RIGHT TO RETURN ANY ORDER WITHIN THIRTY (30) DAYS IS YOUR SOLE AND EXCLUSIVE REMEDY, AND ARCIVR’S SOLE AND EXCLUSIVE LIABILITY, WITH RESPECT TO THE PURCHASE OF ANY PRODUCTS USING THE SERVICES, AND ARCIVR EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PURCHASE OF ANY PRODUCTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- PLATFORM SECURITY.
11.1. You may not violate or attempt to violate the security of the Services. Tampering with any portion of the Website or Platform, providing untruthful or inaccurate information, misrepresenting your identity, or conducting fraudulent activities on the Website or Platform, whether or not through the use of agents, are prohibited and constitute a breach of these Terms.
11.2. You are prohibited from violating or attempting to violate the security of the Services, including, without limitation, (a) accessing data not intended for you or logging onto a server which you are not authorized to access; (b) disabling, removing, defeating, or avoiding any security device or system, including, without limitation, any password and login functionality used to authenticate users; © attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (d) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Website or Platform, overloading, “flooding,” “spamming,” “mailbombing” or “crashing;” (e) sending unsolicited email, including promotions and/or advertising of products or services; (f) forging any TCP/IP packet header or any part of the header information in any email or posting; (g) using or attempting to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Services other than the search engine and search agents available through the Services and other than generally available third-party web browsers; (h) reverse engineering, decompiling or disassembling the underlying software; (i) removing any notices, warnings, labels, annotations or instructions from any portion of the Services or any related material, including, without limitation, any patent, trademark, copyright, or other proprietary notices or license provisions; or (j) otherwise invading the privacy of, obtaining the identity of, or obtaining any personal information about any user of the Services.
11.3. Any violations of system or network security including attempts to intentionally access a computer without authorization or exceed your authorized access level may result in civil and criminal charges, including but not limited to charges under the Computer Fraud and Abuse Act (18 U.S.C. §1030). Arcivr may investigate occurrences that might involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. We may, without prior notice or warning of any kind, restrict or terminate the access of any and all users to the Services if we reasonably conclude that such restriction or termination is necessary to prevent, or prevent the further spread, of a virus, security breach or system malfunction.
11.4. When accessing the Services, users should be aware that the internet is generally not regarded as a secure environment, and that data sent via the internet can be accessed by unauthorized third parties, potentially leading to disclosures, changes in content or technical failures. Data sent via the internet may be transmitted across international borders even though both sender and receiver are located in the same country. Arcivr does not accept any responsibility or liability for the security of data while in transit via the internet.
11.5. The Services may contain certain links. Activating links in the Services may cause individual users to leave the Services. Such links are provided solely for individual users’ convenience and information. Arcivr has not reviewed any of the websites linked with or connected to the Services and using links on or to the Services is at each individual user’s own risk.
12.1. To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Arcivr, and our respective past, present and future employees, officers, directors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Arcivr Parties”), from and against all actual or alleged third-party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to:
a. your use or misuse of the Arcivr Platform, including without limitation, the associated Services;
b. your violation of these Terms and any other online or written agreements, applicable laws and regulations;
c. your violation of the rights of a third party, including but not limited holders of intellectual property rights in your User Content;
d. your User Content;
e. your negligence or willful misconduct arising out of relating to your use of the Services, provided that you may not settle any Claim against Arcivr unless such settlement completely and forever releases Arcivr from all liability with respect to such Claim or unless Arcivr consents to such settlement, and further provided that Arcivr will have the right, at its option, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice.
THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND ARCIVR.
13.1. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND ARCIVR (AND ARCIVR VENDORS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND ARCIVR VENDORS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
13.2. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- FURTHER DISCLAIMERS
14.1. Without limiting the generality of Section13, neither Arcivr, its affiliates, Arcivr Vendors or licensors will have any responsibilities or liability with respect to the following: (a) the Services could be impacted by one or more regulatory inquiries or actions, which could prevent or limit the ability of Arcivr to continue to develop or provide the Services, or for you and your users to use the Service, (b) Arcivr has no obligation to update the Services or its underlying platforms and networks to address, mitigate, or remediate any security or other vulnerabilities in the Services, or such platforms or networks, and © portions of the Services or any other underlying networks and platforms may rest on open-source software, and there is a risk that weaknesses or bugs that may be introduced in the infrastructural elements of the Services or any other underlying networks and platforms, which may result in security vulnerabilities, data loss, damage, destructions, disclosure, or other compromises.
- LIMITATION ON LIABILITY
15.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ARCIVR (OR ARCIVR VENDORS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF ARCIVR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
15.2. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF ONE HUNDRED US DOLLARS (U.S. $100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT THE ARCIVR VENDORS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
15.3. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- COPYRIGHT INFRINGEMENT
16.1. It is Arcivr’s policy to respond to notices of alleged copyright infringement with the Digital Millennium Copyright Act (“DMCA”). If you believe any materials accessible on or from our Services infringe your copyright, you may request removal of those materials (or access thereto) from the Services by contacting Arcivr’s copyright agent (identified below) and providing the following information:
a. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
b. Identification of the material that you believe to be infringing and its location. Please describe the material and provide us with its URL or any other pertinent information that will allow us to locate the material.
c. Your name, address, telephone number and (if available) e-mail address.
d. A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
e. A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
f. A signature or the electronic equivalent from the copyright holder or authorized representative.
Arcivr’s agent for copyright issues relating to this Services is as follows:
515 S. Capital of Texas Hwy., STE 250
West Lake Hills, TX
In an effort to protect the rights of copyright owners, Arcivr maintains a policy for the termination, in appropriate circumstances, of users of the Services who are repeat infringers.
- TERM AND TERMINATION. Subject to this Section, these Terms will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. Upon termination of your rights under these Terms, your right to access and use the Services will terminate immediately. You understand that any termination of your right to use the Services may involve deletion of your User Content associated with your you from our live databases. Arcivr will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your right to use the Services or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 1.4 and 5-19.
18.1. AGREEMENT TO ARBITRATE. This Section 18 is referred to in these Terms as the “Arbitration Agreement”. Unless you opt-out in accordance with the opt-out procedures set forth in Section 18.7 below, you agree that all claims relating to or arising out of these Terms or the breach thereof, whether in contract, tort, or otherwise that have arisen or may arise between you and Arcivr or a Arcivr Vendor, or an affiliate of either, whether relating to these Terms (including any alleged breach thereof), the Services, the or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except you may assert individual claims in small claims court, if your claims qualify. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
18.2. PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON-INDIVIDUALIZED RELIEF.
YOU AND ARCIVR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION, ACTION OR PROCEEDING. UNLESS BOTH YOU AND ARCIVR EXPRESSLY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AGAINST ARCIVR AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER ARCIVR USERS. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
18.3. PRE-ARBITRATION DISPUTE RESOLUTION. Arcivr is always interested in resolving disputes amicably and efficiently. Therefor before you commence arbitration, we suggest that you contact us to explain your complaint, as we may be able to resolve it without the need for arbitration. You may contact us via email at email@example.com.
18.4. ARBITRATION PROCEDURES.
If we cannot resolve a claim informally, any claim either of us asserts will be resolved only by binding arbitration and not in courts of general jurisdiction. Arbitration will be conducted by a neutral arbitrator in accordance with the rules of JAMS that are in effect at the time the arbitration is initiated (collectively referred to as the “JAMS Rules”), as modified by this Arbitration Agreement, and excluding the JAMS Class Action Procedures. For information on JAMS, please visit its website, https://www.jamsadr.com/. Information about JAMS’s Rules and fees for consumer disputes can be found at the JAMS consumer arbitration page, https://www.jamsadr.com/rules-comprehensive-arbitration/. If there is any inconsistency between the JAMS Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 15. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
To commence an arbitration against Arcivr, you must write a demand for arbitration (“Demand”) that includes a description of the dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com. You should send three copies of the Demand, plus the appropriate filing fee, to JAMS at 500 North State College Blvd., Suite 600, Orange, CA 92868, and send one copy to Arcivr at 515 S. Capital of Texas Hwy., STE 250., West Lake Hills, TX 78746-4630. For more information, see the JAMS arbitration rules and forms, https://www.jamsadr.com/rules-download/. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less you or Arcivr may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Arcivr subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Arcivr, unless the arbitrator requires otherwise.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort, or otherwise and all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Texas, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Arcivr users but is bound by rulings in prior arbitrations involving the same Arcivr user to the extent required by applicable law.
18.5. COSTS OF ARBITRATION. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Agreement to Arbitrate. If you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Arcivr will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Arcivr will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Arcivr for all fees associated with the arbitration paid by Arcivr on your behalf that you otherwise would be obligated to pay under the JAMS rules.
18.6. CONFIDENTIALITY. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
OPT-OUT PROCEDURE. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section. For new Arcivr users, the Opt-Out Notice must be postmarked no later than 30 Days after the date you use our Services for the first time. You must mail the Opt-Out Notice to Arcivr, LLC, Attn: Legal Department, 515 S. Capital of Texas Hwy., STE 250., West Lake Hills, TX 78746-4630.
18.7. Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, Arcivr will likewise not be bound by these arbitration provisions. All other terms of these Terms will continue to apply. Opting out of the Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. Arcivr users who accepted a previous version of these Terms that included an arbitration agreement, and who did not timely opt out of that arbitration agreement, remain bound by the last arbitration agreement that they accepted. Upon receipt of a valid Opt-Out Notice, Arcivr will provide the opting out user with a copy of the arbitration agreement from the last version of the Terms that the user accepted, if any exists.
18.8. FUTURE CHANGES TO THIS ARBITRATION AGREEMENT. Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, such change shall not be effective until at least 60 days from the date of posting, and shall not apply to any claim that was filed in a legal proceeding against Arcivr prior to the effective date of the change. Moreover, if we seek to terminate this Arbitration Agreement from these Terms, such termination shall not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Services, and shall not be effective as to any claim that was filed in a legal proceeding against Arcivr prior to the effective date of removal.
19.1. GOVERNING LAW AND JURISDICTION. These Terms, and all claims relating to or arising out of this contract, or the breach thereof, whether sounding in contract, tort, or otherwise, shall be governed by the laws of the State of Texas, including Texas’ statutes of limitations governing your claim, without giving effect to its principles of conflicts of law, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of Section 18, the Arbitration Agreement. Unless you and we agree otherwise, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute (except for small-claims court actions), either as a result of your decision to opt-out of the Arbitration Agreement or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Arcivr must be resolved exclusively by a state or federal court located in the State of Texas. You and Arcivr agree to submit to the personal jurisdiction of the courts located within the State of Texas for the purpose of litigating all such claims or disputes.
19.2. CONSENT TO ELECTRONIC COMMUNICATION. By using the Services of Arcivr, you agree to allow Arcivr to communicate with you electronically, and you consent to electronic delivery of notices, documents, or products from Arcivr via the Services, online messaging platform, or e-mail. You also agree to check your alerts, and messages, and the e-mail account reflected on your Arcivr (including spam and bulk folders) on a reasonably regular basis to stay apprised of important notices and information related to the Services. You must undertake to notify Arcivr in the event you change your email address.
19.3. MISCELLANEOUS. Nothing in this Agreement shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. The Arcivr Vendors are expressly made a third-party beneficiary of this Agreement and may enforce this Agreement directly against you. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. Other than with respect to any subsequent agreement entered into by you or any other user that incorporates this Agreement, these Terms, along with those other Agreements, documents and policies incorporated herein, constitute the entire agreement, written or oral, between the parties hereto.
19.4. SEVERABILITY. If any provision or provisions of these Terms shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of these Terms (including, without limitation, each portion of any section, paragraph or sentence of these Terms containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent set forth herein; and © to the fullest extent possible, the provisions of these Terms (including, without limitation, each portion of any section, paragraph or sentence of these Terms containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
The invalidity of a provision, section, paragraph or sentence of these Terms in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
19.5. CONTACT INFORMATION.
If you have any questions or need further information as to the Services provided by Arcivr, or need to notify Arcivr as to any matters relating to the Services please contact Arcivr at:
515 S. Capital of Texas Hwy., STE 250
West Lake Hills, TX