Terms of Service
Effective Date: November 30, 2018
BY ACCESSING OR USING THE PLATFORM YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS.
If you are accepting or agreeing to the Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms as the “Administrator User”.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM OR SERVICES.
About the Terms
1.1 Key Terms
As used in these Terms of Service:
- “Company” refers to the entity you represent as the Administrator User, as specified during the sign-up process.
- “Company Content” refers to User Content that is provided or made available or caused to be made available by you on behalf of Company.
- “Ivia,” “we,” or “us” refer to Ivia, LLC and our officers, directors, employees, contractors and agents.
- “Platform” refers, collectively, to the Website and any other technology through which Ivia provides the Services.
- “Services” refers to the freight and logistics tracking services provided by Ivia.
- “User Content” refers to videos, text, photos, information and other content captured, recorded, stored, shared or otherwise made available or caused to be made available by Users on or through the Platform.
- “Users” means any and all persons that access or use the Platform, including through shipper, broker and carrier accounts. References to “access” and/or “use” of the Platform (and any variations thereof) include the acts of accessing or browsing the Platform, and accessing or using the Services.
- “Website” refers to any website owned or operated by Ivia (including the website currently located at www.ivia.com), through which access to the Services is available. References to the “Website” include any and all features, functionality, tools and content available on or through each such website.
1.2 Platform Rules and Supplemental Terms
Certain of the features, functionality, tools, content and promotions available on or through the Platform may be subject to additional or supplemental terms and conditions (“Supplemental Terms”). If you choose to access or use those features, functionality, tools or content or participate in those promotions, the applicable Supplemental Terms are also incorporated and deemed part of these Terms of Service.
If there is a conflict between these Terms of Service and the Supplemental Terms, the Supplemental Terms will govern and control with respect to the applicable features, functionality, tools, content and promotions.
- IMPORTANT INFORMATION ABOUT THE FUNCTIONAL LIMITATIONS OF THE PLATFORM AND/OR THE SERVICES;
- YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
- LIMITATIONS OF OUR LIABILITY TO YOU; AND
- A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOUR ACCESS TO AND USE OF THE PLATFORM IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
1.3 Amendment of Terms
Ivia reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the Platform after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Platform.
No other modification, amendment, supplement of or to the Terms will be binding on Ivia unless it is in writing and signed by an authorized representative of Ivia.
1.4 Consequences of Non-Compliance
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
Important Information About the Platform
2.1 License to Use
Subject to your compliance with the Terms, Ivia grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Platform for your own internal use only. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Platform as provided by Ivia, in the manner permitted by the Terms.
YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:
- IVIA DOES NOT AND CANNOT GUARANTEE THAT THE PLATFORM WILL BE CONTINUOUS OR ERROR-FREE.
- IF YOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR PLATFORM IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE PLATFORM.
- YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE PLATFORM AND COMPANY CONTENT. ABUSE OF THE SERVICES MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES.
2.3 Modifications and Updates to the Platform
Ivia reserves the right, in its sole discretion, to modify or discontinue offering the Platform, in whole or in part, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of Company Content and/or User Content at our sole discretion at any time without prior notice to you.
You agree that Ivia has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
2.4 International Users
The Platform is controlled and operated within the United States and is not intended for use outside of the United States. You are hereby prohibited from accessing or using the Platform from any territory where the Platform or any of the features, functionality, tools, content thereof, is illegal. If you choose to access the Platform from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
3.1 Account Registration
While certain areas of the Website are publicly available, you must register for a User account before you are able to use any of the Services. You may register to create an account directly via the Website. You may not register for an account on behalf of any person (other than yourself). No person or entity may have more than one active account at any given time.
As a designated Administrator User, you will set up a primary account, and will designate the individuals within your Company who are eligible to sign up for subaccounts. Administrator Users for each client will have access to manage and view activities associated with the subaccounts registered to that client. (For simplicity, both accounts and subaccounts will be referred to hereafter as “accounts.”)
3.2 Account Set-Up
Your Company account and account profile page will be created based upon the information you provide to us.
You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date. Please note that the name and contact information that you submit when you register may be shared in accordance with your selections in your account settings when you share Company Content.
When you create your account, you will be asked to create a username and password, which you will be solely responsible for safeguarding. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Ivia account or any other account that you may connect to your Ivia account. You agree not to disclose your username or password to any third party, and you agree to immediately notify Ivia of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. Ivia cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3.3 Account Suspension and Cancellation
These Terms shall commence on the date you click “I agree” and shall continue in effect until either party provides thirty (30) days written notice to the other of its intention to terminate. [You may cancel your Company account via the Platform user portal settings.]
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to (i) limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our Platform and Services at any time for any reason, and (ii) screen or delay the posting or delivery of Company Content if Ivia reasonably concludes that Company’s account is being used to engage in denial of service attacks, spamming, or illegal activity, and/or Company's use of the Service is causing immediate, material and/or ongoing harm to Ivia or others.
We further reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. We also reserve the right to cancel accounts of Users who fail to comply with the Terms, including the terms and conditions regarding User conduct, as set forth in the “User Conduct Guidelines” section below and elsewhere in the Terms.
If your account is deactivated or cancelled, Ivia will have the right, but not the obligation to delete Company Content.
If Ivia has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Ivia’s reasonable satisfaction.
Fees and Payment Terms
4.1 Free Trial Offers
If you receive a free trial offer, you will not be charged during the period of the free trial, but the subscription fee will be automatically charged to the payment method associated with your account for the subsequent period the day after your free trial period has ended, in advance, in accordance with the “Subscriptions” terms stated below. Thereafter, you will be charged at monthly intervals until you decide to cancel. You will be notified when your free trial will expire. Accounts that fail to provide a payment method shall be automatically terminated at the expiration of the free trial. Free trials are limited to one per Company.
You agree to pay any periodic subscription fees for your subscription level at the rates in effect when the charges are incurred, including any applicable taxes. Any change in the subscription fee will go into effect for the next billing period after we provide notice of the change.
We may contact you via email regarding your Company account in connection with a problem with your credit card or payment account.
4.4 No refunds
Unless Ivia agrees or states otherwise in writing, all fees and charges are nonrefundable.
User Conduct Guidelines
Any time you access or use the Platform, you are required to comply with our User conduct guidelines, as set forth below. You agree that you will access and use the Platform and Services for your internal business purposes only.
Public Areas: Shipper Users will be able to send connection invitations to broker and/or carrier Users within the Platform, and invite non-User broker/carriers to join the Platform. Company Content may be viewed by other Users, as designated by you. Thus, you should only capture, record, upload, share or store information and other content that you are comfortable sharing with others.
You agree that neither you nor your Company Users will access or use the Platform to upload, stream, share or store any video or images, or otherwise act in any manner, that:
- is intended to perpetrate a hoax or otherwise defraud, mislead or deceive any person or entity;
- violates, breaches or circumvents any local, state, federal or other law, rule or regulation, including any ruling or order of a court or administrative body;
- violates, breaches or circumvents the rights of any person or entity, including infringing or misappropriating such party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
- is defamatory, obscene, pornographic, vulgar, lewd, offensive or unlawful;
- promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
- is inflammatory, abusive, violent or threatening or promotes violence or actions that are threatening to any other person;
- promotes illegal or harmful activities or substances; or
- is harmful to children.
- Without limiting the above, you and your Company Users are not authorized to access or use the Platform:
- to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions;
- to collect, store or use any information from or about another User, other than as authorized and intended by such User;
- to “stalk” or harass any other User;
- to distribute unsolicited commercial or bulk electronic communications (or, “spam”), chain letters or “pyramid” schemes;
- for political campaigning, recruiting votes or soliciting donations or other support for legislative or other initiatives;
- to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- if you are not able to form legally binding contracts (for example, if you are under 18);
- if you are a person barred from receiving services under the laws of the United States or other applicable jurisdiction; or
- for any other purposes that are not expressly permitted by the Terms.
Further, you may not, and will ensure no Company Users:
- access, copy, distribute, share, publish, use or store, or prepare derivative works from any content on the Platform that belongs to Ivia, another User or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
- share your login credentials or transfer your account to another party without our consent;
- circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Platform if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Platform;
- access, search, collect information from, or otherwise interact with the Platform by “scraping,” “crawling” or “spidering” the Platform, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that may be provided by Ivia, unless you have been specifically authorized to do so in a separate agreement with Ivia;
- use, display, mirror or frame the Platform, or any feature, functionality, tool or content of the Platform, Ivia’s name, any Ivia trademark, logo or other proprietary information, without Ivia’s express written consent;
- interfere with, disrupt, damage or compromise the Platform or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Platform or otherwise imposing an unreasonable or disproportionately large load on the Platform;
- access, tamper with or use non-public areas of any of the Platform, Ivia’s computer systems, or the technical delivery systems of Ivia’s providers;
- probe, scan, or test the vulnerability of any system or network of Ivia or its providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Ivia or any of Ivia’s providers or any other third party to protect the Platform;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Platform to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Platform;
- export or re-export the Platform, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Platform or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
5.1 Responsibility for User Content
Ultimately, all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the User who originated such content. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any User Content or endorse any opinions expressed in such User Content. You understand that by using the Platform, you may be exposed to User Content that is offensive, harmful, inaccurate, misleading, fraudulent or otherwise inappropriate. Under no circumstances will Ivia be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of any User Content.
We may, but are not required to monitor or control the User Content captured, recorded, uploaded, shared or stored on or through the Platform, and we cannot take responsibility for such User Content. Any use or reliance on any User Content is at your own risk.
5.2 Reporting Misconduct
If you feel that another User has violated the Terms, abused the Platform or otherwise acted inappropriately, you may report the User to Ivia at firstname.lastname@example.org. Ivia reserves the right, but assumes no obligation, to investigate and take appropriate action in response to such reports. Regardless of its action or inaction, in no event will Ivia be liable for the acts or omissions of any User or any third party.
Ivia reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.
Without limiting the foregoing, you acknowledge that Ivia has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Platform or Services by any User, to access, review, preserve and disclose any User Content, or to remove or disable access to any User Content, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Ivia, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Ivia, its Users or members of the public, and (vi) for the purpose of operating and improving the Platform and Services (including for customer support purposes).
5.4 User Cooperation
You agree to cooperate with and assist Ivia or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
Intellectual Property Ownership
6.1 The Platform
The Platform and Services, including Website and App, and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Platform and Services, and all intellectual property rights therein are the exclusive property of Ivia and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Platform or Services.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Ivia (the “Ivia Marks”) are the property of Ivia, and that you are not permitted to use the Ivia Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Platform or Services in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Ivia or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Ivia’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Ivia or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
6.2 Company Content
By uploading, sharing or storing Company Content, you hereby grant Ivia a worldwide, non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, publish and display Company Content within the Platform solely as necessary to provide the Services to you, including for product development and de-bugging purposes.
We may modify or adapt Company Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to Company Content as are necessary to conform and adapt that content to any requirements or limitations of any networks, devices, services or media. You further grant us the right to use, copy, distribute, post, broadcast, publicly perform, publish and display your Company profile information in connection with Company Content as described herein or elsewhere on the Platform, subject to any applicable data protection laws.
Ivia does not claim any ownership rights in Company Content and nothing in the Terms will be deemed to restrict any rights that you may have to use and exploit any such content, subject only to the licenses granted to Ivia under these Terms.
You acknowledge and agree that you are solely responsible for Company Content, and for any consequences thereof, including the use of Company Content by other Users and our third-party partners.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to Company Content, and that neither Company Content, nor Ivia’s use of Company Content (or any portion thereof) on or through the Platform or in connection with the Services will infringe, misappropriate or violate the rights of any person or entity, including patent, copyright, trademark, trade secret, moral rights, industrial rights, database rights or other proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by e-mailing us, at email@example.com. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Ivia. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Ivia or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Ivia all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Ivia’s rights in such improvements, enhancements and modifications.
While Users are required by the Terms to provide accurate information, Ivia does not guarantee the completeness or accuracy of any information provided by any User, including the User’s purported identity, credentials or background.
You must evaluate and you make your own decisions about the identity and suitability of others whom you contact or interact with via the Platform.
We recommend that you exercise due diligence when deciding to communicate or interact with another User, and we will not be responsible or liable for any damage or harm resulting from your interactions with other Users.
Third-party Websites and Services
The Platform may also provide links to third-party websites, resources or services. You acknowledge and agree that Ivia is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Ivia of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
Warranties, Disclaimers, Limitation of Liability & Indemnification
9.1 Warranties by Users
You represent and warrant to Ivia that:
- you have the power and authority to accept and agree to the Terms;
- you own or control all of the rights necessary to grant the rights and licenses granted herein;
- you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with Company Content or otherwise in connection with your access to or use of the Platform and Services;
- the exercise by Ivia of the rights granted by you hereunder will not cause Ivia to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and
- all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IVIA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PLATFORM OR SERVICES, OR THAT USE OF THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY PLATFORM CONTENT.
9.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM IS AND REMAINS WITH YOU.
- WITHOUT LIMITING THE FOREGOING, IVIA DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OF OR INABILITY TO USE THE PLATFORM, (II) THE ACTS OR OMISSIONS OF ANY OTHER USER OR ANY OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, AND (III) ANY USER CONTENT ACCESSED, VIEWED OR DOWNLOADED IN CONNECTION WITH THE USE OF THE PLATFORM.
- YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING AND USING THE PLATFORM, SUBMITTING AND TRANSMITTING COMPANY CONTENT, COMMUNICATING OR INTERACTING WITH OTHER USERS AND ACCESSING, VIEWING OR DOWNLOADING THE USER CONTENT OF OTHER USERS ARE DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE IVIA AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- IN NO EVENT WILL IVIA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT IVIA 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.
- CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, IVIA’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO IVIA IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN IVIA AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold Ivia its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Platform, including any and all features, functionality, tools, content and promotions available on and through the Website, (ii) Company Content, (iii) any interactions with any other User, (iv) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (v) your gross negligence or willful misconduct.
9.7 Obligation to Defend
You agree that, at Ivia’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you conduct the defense, (i) Ivia may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Ivia (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
9.8 No Implied Indemnity
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
Governing Law & Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND IVIA HAVE AGAINST EACH OTHER ARE RESOLVED.
10.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of the [State of North Carolina] without regard to conflict of law principles.
Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in Charlotte, North Carolina before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
10.3 Jurisdiction and Venue
Subject to the above arbitration provisions, you and Ivia agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Platform (collectively, “Disputes”) in the federal or state courts located in Charlotte, North Carolina and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that Ivia retains the right to submit a Dispute to any court of competent jurisdiction. Ivia also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
10.4 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST IVIA ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND IVIA OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
10.5 Future Amendments to this Section
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Ivia. We will notify you of amendments to this section by posting the amended Terms on www.ivia.com. If you do not agree to the amended terms, you may close your account within thirty (30) days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Platform immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Ivia in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
11.2 Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Ivia may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
11.4 No Agency
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
11.5 Survival of Terms
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of these [Terms of Service/Service] shall survive such expiration or termination.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Ivia (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website or via the App. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Our failure to exercise any right or enforce any obligation under these Terms of Service or to take action with respect to a breach by you or others will not constitute a waiver of such right, obligation or breach. The waiver of any right, obligation or breach will be effective only if in writing and signed by a duly authorized representative of Ivia. In addition, no waiver granted in any instance shall constitute a waiver in any other instance.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
11.11 Third-Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
11.12 Contact Us
If you have any questions or concerns, please contact Ivia at firstname.lastname@example.org.
You can also write to us at:
615 S College St, 10th Floor
Charlotte, NC 28202
11.13 California Residents
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
- Complaints regarding the Platform or Services or requests to receive further information regarding use of the Platform or Services may be sent to the above address or to email@example.com.
- The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
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