PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
Electronic Agreement. This Agreement is an electronic contract that sets out the legally binding terms of your use of the Website and the Service. This Agreement may be modified by Visify from time to time, such modifications to be effective upon posting by Visify on the Website. By accessing and/or using the Website, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein.
1. Access and Retention.
In order to access and retain this electronic Agreement, you must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must use all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Please print a copy of this document for your records. To retain an electronic copy of this Agreement, you may save it into any word processing program.
You must be at least thirteen (13) years of age. By using the Website, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
3. Commercial Use of Service.
If you are using the Service and/or accessing the Website on behalf of a company, entity, or organization (collectively, a “Subscribing Entity”), you represent and warrant that:
Illegal and/or unauthorized uses of the Website include, but are not limited to, collecting usernames and/or email addresses of members by electronic or other means for the purpose of sending unsolicited email, unauthorized framing of or linking to the Website, sharing or disclosing your username or password to any third party or permitting any third party to access your account, attempting to impersonate another user or person, use of the Website in any fraudulent or misleading manner, any automated use of the system, such as scraping the Website, automated scripts, spiders, robots, crawlers, data mining tools or the like, interfering with, disrupting, or creating an undue burden on the Website or the networks or services connected to the Website, and using the Website in a manner inconsistent with any and all applicable laws and regulations. Illegal and/or unauthorized use of the Website may be investigated, and appropriate legal action may be taken, including without limitation, civil, criminal, and injunctive redress. Use of the Website and Service is with the permission of Visify, which may be revoked at any time, for any reason, in Visify’s sole discretion.
4. Your Use of the Website.
a. You must not copy or capture, or attempt to copy or capture, any Content from the Website or any part of the Website, unless given express permission by Visify.
c. You must not use any Content (other than Your Content) in any way that is designed to create a separate content service or that replicates any part of the Website offering.
d. You must not employ scraping or similar techniques to aggregate, repurpose, republish or otherwise make use of any Content.
e. You must not employ any techniques or make use of any services, automated or otherwise, designed to misrepresent Your Content on the Website, or to misrepresent your activity on the Website, including without limitation by the use of bots, botnets, scripts, apps, plugins, extensions or other automated means to register accounts, log in, or otherwise to act on your behalf, particularly where such activity occurs in a multiple or repetitive fashion. You must not offer or promote the availability of any such techniques or services to any other users of the Website.
f. You must not alter or remove, or attempt to alter or remove, any trademark, copyright or other proprietary or legal notices contained in, or appearing on, the Website or any Content appearing on the Website (other than Your Content).
g. You must not, and must not permit any third party to, copy or adapt the object code of the Website, or reverse engineer, reverse assemble, decompile, modify or attempt to discover any source or object code of any part of the Website, or circumvent or attempt to circumvent or copy any copy protection mechanism or access any rights management information pertaining to Content other than Your Content.
h. You must not use the Website to upload, post, store, transmit, display, copy, distribute, promote, make available or otherwise communicate to the public:
i. any Content that is offensive, abusive, libelous, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, that promotes violence, terrorism, or illegal acts, incites hatred on grounds of race, gender, religion or sexual orientation, or is otherwise objectionable in Visify’s sole and reasonable discretion;
ii. any information, Content or other material that violates, plagiarizes, misappropriates or infringes the rights of third parties including, without limitation, copyright, trademark rights, rights of privacy or publicity, confidential information or any other right; or
iii. any Content that violates, breaches or is contrary to any law, rule, regulation, court order or is otherwise is illegal or unlawful in Visify’s sole and reasonable opinion;
iv. any material of any kind that contains any virus, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which will or might overburden, impair or disrupt the Website or servers or networks forming part of, or connected to, the Website, or which does or might restrict or inhibit any other user’s use and enjoyment of the Website; or
v. any unsolicited or unauthorized advertising, promotional messages, spam or any other form of solicitation.
i. You must not commit or engage in, or encourage, induce, solicit or promote, any conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law or regulation.
j. You must not rent, sell or lease access to the Website, or any Content on the Website.
k. You must not deliberately impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity, for example, by registering an account in the name of another person or company, or sending messages or making comments using the name of another person.
l. You must not stalk, exploit, threaten, abuse or otherwise harass another user, or any Visify employee. If we feel that your behavior towards any of our employees is at any time threatening or offensive, we reserve the right to immediately terminate your membership and/or account and you will not be entitled to any refund of unused fees.
m. You must not sell or transfer, or offer to sell or transfer, any Visify account to any third party without the prior written approval of Visify.
n. You must not collect or attempt to collect personal data, or any other kind of information about other users, including without limitation, through spidering or any form of scraping.
5. Representations and Warranties.
You hereby represent and warrant to Visify as follows:
a. Your Content, including any comments that you may post on the Website, is not and will not be unlawful, offensive, abusive, libelous, defamatory, obscene, racist, sexually explicit, ethnically or culturally offensive, indecent, will not promote violence, terrorism, or illegal acts, or incite hatred on grounds of race, gender, religion or sexual orientation.
b. Your Content does not and will not create any liability on the part of Visify, its subsidiaries, affiliates, successors, and assigns, and their respective employees, agents, directors, officers and/or shareholders.
Visify reserves the right to remove Your Content, suspend or terminate your access to the Website and/or pursue all legal remedies if we believe that any of Your Content breaches any of the foregoing representations or warranties, or otherwise infringes another person’s rights or violates any law, rule or regulation.
6. Membership and Subscription; Pricing.
You may make purchases on the Website, as described in greater detail below. Please note that the subscription policies that are disclosed to you in subscribing to the service are deemed part of this Agreement. Notwithstanding anything herein, you are solely responsible for all taxes associated with your use of the Website and/or Service.
This Agreement will remain in full force and effect while you use the Website and/or Service. You may terminate your membership and/or subscription at any time by contacting us at [email protected] If you resign or cancel your membership and/or subscription to Visify, to help Visify analyze and improve the Service, you may be asked to provide a reason for your resignation/cancellation. Visify may terminate your membership and/or subscription for any reason by sending notice to you at the email address you provide in your application for membership, or such other email address as you may later provide to Visify. If Visify terminates your membership in the Service because you have breached this Agreement, you will not be entitled to any refund of unused fees. All decisions regarding the termination of accounts shall be made in the sole discretion of Visify. Visify is not required to provide you notice prior to terminating your membership. Visify is not required, and may be prohibited, from disclosing a reason for the termination of your account. Even after your membership or subscription is terminated, this Agreement will remain in effect. All terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination.
8. Subscriptions; Charges on Your Billing Account.
a. General. Visify bills you through an online account (your “Billing Account”) for use of the Service. You agree to pay Visify all charges at the prices then in effect for any use of the Service by you or other persons (including your agents) using your Billing Account, and you authorize Visify to charge your chosen payment provider (your “Payment Method”) for the Service, including without limitation any Application Fees. You agree to make payment using that selected Payment Method. Visify reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
b. Recurring Billing. Our subscription plans to the Service consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By entering into this Agreement, you acknowledge that your subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. Visify may submit periodic charges (e.g. monthly) without further authorization from you, until you provide prior notice (confirmed in writing by Visify) that you have terminated this authorization or wish to change your payment method. Such notice will not affect charges submitted before Visify could reasonably act. Contact Visify at [email protected] to change your payment method or cancel your paid membership by a provider of your chosen Payment Method (the “Payment Method Provider”). For your convenience, we take your payment information so that your Visify membership will not be interrupted. We auto-renew your membership at the level you selected. Your Visify subscription will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional subscription rate (if applicable). To cancel, change or resign your subscription at any time, contact us at [email protected] If you resign, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
c. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY VISIFY IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT THE “SETTINGS” PAGE. IF YOU FAIL TO PROVIDE VISIFY ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT VISIFY MAY CONTINUE CHARGING YOU FOR ANY USE OF THE SERVICE UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR USE OF THE SERVICE (CONFIRMED BY YOU IN WRITING UPON REQUEST BY VISIFY).
d. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen payment method.
e. Reaffirmation of Authorization. Your non-termination or continued use of the Service reaffirms that Visify is authorized to charge your Payment Method. Visify may submit those charges for payment and you will be responsible for such charges. This does not waive Visify’s right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially subscribed to the Service.
9. Modifications to Service.
Visify reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Visify shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
10. Blocking of IP Addresses.
In order to protect the integrity of the Services, Visify reserves the right at any time in its sole discretion to block Members from certain IP addresses from accessing the Website.
11. Content on Visify; Proprietary Rights.
Visify retains all proprietary rights in the Website and the Service. The Website contains the copyrighted material, trademarks, and other proprietary information of Visify, and/or its licensors. Except where we have given you express written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information. All content on Visify is proprietary. Except where otherwise specified in this Agreement, all Content is copyrighted material of Visify and/or its licensors and for Visify Members’ use only. Distribution of Content to others is strictly prohibited. You agree that Visify would be irreparably harmed by any violation or threatened violation of this section and that, therefore, Visify shall be entitled to an injunction prohibiting you from any violation or threatened violation of this section, without posting bond, in addition to any other right or remedy it may have.
We may provide links to third party websites, and some of the content appearing on Visify may be supplied by third parties. Visify has no responsibility for these third party websites nor for
Any Content other than Your Content is the property of the relevant Uploader, and is or may be subject to copyright, trademark rights or other intellectual property or proprietary rights. Such Content may not be downloaded, reproduced, distributed, transmitted, re-uploaded, republished, displayed, sold, licensed, made available or otherwise communicated to the public or exploited for any purposes except via the features of the Website from time to time and within the parameters set by the Uploader on the Service or with the express written consent of the Uploader. Where you repost another user’s Content, or include another user’s Content in a set, you acquire no ownership rights whatsoever in that Content. Subject to the rights expressly granted in this section, all rights in Content are reserved to the relevant Uploader.
12. Restrictions on Use of Materials.
You acknowledge that Visify contains Content that is protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and Visify owns a copyright in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on this Website are trademarks of their respective owners. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to your computer, you do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other website or networked computer environment is strictly prohibited unless you receive our prior written consent.
13. Liability for Content.
You are solely responsible for all of Your Content that you upload, post or distribute to, on or through the Website, and to the extent permissible by law, Visify excludes all liability with respect to all Content (including Your Content) and the activities of its users with respect thereto.
Visify and its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers and shareholders hereby exclude, to the fullest extent permitted by law, any and all liability which may arise from any Content uploaded to the Website by users, including, but not limited to, any claims for infringement of intellectual property rights, rights of privacy or publicity rights, any claims relating to publication of defamatory, pornographic, obscene or offensive material, or any claims relating to the completeness, accuracy, currency or reliability of any information provided by users of the Website. By using the Website, you irrevocably waive the right to assert any claim with respect to any of the foregoing against Visify or any of its subsidiaries, affiliates, successors, assigns, employees, agents, directors, officers or shareholders.
14. Reporting Infringements.
Visify prohibits the submission or posting of any information that infringes or violates the copyright rights and/or other intellectual property rights (including rights of privacy and publicity) of any person or entity.
Pursuant to Title 17, United States Code, Section 512(c)(2) or for any other claim of copyright infringement, if you discover any Content on the Website that you believe infringes your copyright, please report this to us immediately by contacting us at [email protected] or Visify, Legal Department, 350 W 51st Street Suite 13B New York, NY 10019. When contacting us, please make sure that you include the following information:
i. a statement that you have identified Content on Visify that infringes your copyright or the copyright of a third party on whose behalf you are entitled to act;
ii. a description of the copyright work(s) that you claim have been infringed;
iii. a description of the Content that you claim is infringing and the Visify URL(s) where such Content can be located;
iv. your full name, address and telephone number, a valid email address on which you can be contacted, and your Visify user name if you have one;
v. a statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; and
vi. a statement by you that the information in your notice is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
In addition, if you wish for your notice to be considered as a notice pursuant to the United States Digital Millennium Copyright Act 17 U.S.C. ¤512(c), please also include the following:
i. with respect to your statement that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, confirmation that such statement is made under penalty of perjury; and
ii. your electronic or physical signature (which may be a scanned copy).
Visify will process any notice of alleged infringement which it receives and will take appropriate action as required by the Digital Millennium Copyright Act (DMCA) 17 U.S.C. 512(c)(3) or other applicable copyright law. U.S. law provides significant penalties for submitting such a statement falsely. Under appropriate circumstances, persons who repeatedly submit infringing or unlawful material will be prohibited from posting further submissions.
15. Blocking and Removal of Content.
You have no right of continued access to any particular item of Content and Visify shall have no liability in the event that you are unable to access an item of Content due to its removal from the Website, whether by Visify or the relevant Uploader.
16. Repeat Infringers.
We will also suspend or terminate your account without warning if ordered to do so by a court, and/or in other appropriate circumstances, as determined by Visify at its sole discretion.
17. Limitation of Liability.
In no event shall Visify be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the Website or Service, or use thereof. Nothing contained in this Website or in any written or oral communications from Visify or its employees or agents shall be construed to make any promise, covenant, warranty, or guaranty, all of which are explicitly disclaimed hereby, contrary to the statements and disclaimers contained in this paragraph.
The content and functionality on the Website and the services provided by employees of the Website are offered “as is” without warranty of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Visify makes no warranties, express or implied, as to the ownership, accuracy, completeness or adequacy of the Website content or that the functionality of the Website will be uninterrupted or error-free or free from virus or third party attack. You hereby acknowledge that your use of this Website and the Service is at your sole risk. UNDER NO CIRCUMSTANCES SHALL VISIFY, ITS OFFICERS, OWNERS, EMPLOYEES OR AGENTS AND THEIR RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS BE LIABLE FOR ANY DAMAGES, INCLUDING DIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT DIRECTLY OR INDIRECTLY RESULT FROM USE OF, OR INABILITY TO USE, THE WEBSITE OR SERVICE OR THE INFORMATION CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION FOR VIRUSES ALLEGED TO HAVE BEEN OBTAINED FROM THE WEBSITE, EVEN IF VISIFY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND REGARDLESS OF THE THEORY OF LIABILITY.
TO THE GREATEST EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL VISIFY HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THE AGREEMENT, WEBSITE OR THE SERVICE, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOSS OF GOODWILL, COPYRIGHT INFRINGEMENT, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PERSONAL INJURY, PROPERTY DAMAGE, OR ANY OTHER DAMAGES OR LOSSES, EVEN IF VISIFY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH SUCH LIABILITY IS BASED.
In the event that any of the foregoing limitations are deemed to be unenforceable, to the greatest extent permitted by law, you agree that the entire aggregate liability of Visify and sole remedy available to any Member in any case in any way arising out of or relating to the Agreement, Website or the Service shall be limited to monetary damages that in the aggregate may not exceed the greater of $500.00 or the sum of any amount paid by the Member or user to Visify during the six months prior to notice to Visify fof the dispute for which the remedy is sought.
18. Indemnity by You.
You agree to indemnify and hold Visify, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, arising out of or related to:
a. your use of the Service and/or Website in violation of this Agreement and/or arising from a breach of this Agreement including without limitation your representations and warranties set forth above;
c. any activity related to your account, be it by you or by any other person accessing your account with or without your consent unless such activity was caused by the act or default of Visify.
19. Attorney Fees.
In the event that Visify is successful in whole or in part in any action or proceeding related to or arising from this Agreement, you shall be responsible for Visify’s attorneys’ fees and costs.
20. Parental or Guardian Permission
Some of the Content on this Website may not be appropriate for children. CHILDREN UNDER THE AGE OF 13 ARE NOT PERMITTED TO USE THIS WEBSITE UNLESS A SUPERVISING PARENT OR GUARDIAN IS PRESENT. INDIVIDUALS UNDER THE AGE OF 13 ARE NOT PERMITTED TO MAKE USE OF OUR FEE-BASED SERVICES OR GIVE VISIFY THEIR EMAIL ADDRESS OR ANY OTHER PERSONALLY IDENTIFIABLE INFORMATION.
22. Jurisdiction and Choice of Law; Dispute Resolution.
If there is any dispute arising out of the Website and/or the Service, by using the Website and/or Service, you expressly agree that any such dispute shall be governed by the laws of the State of New York, without regard to its conflict of law provisions, and you expressly agree and consent to the exclusive jurisdiction and venue of the state and federal courts of the State of New York, for the resolution of any such dispute. Acceptance of the terms and conditions of this Agreement constitutes your consent to be sued in such courts and to accept service of process outside the State of New York with the same qs123 and effect as if such service had been made within the State of New York. You hereby agree to accept service of process for any action hereunder by certified mail return receipt requested which service shall have the same force and effect as though service had been effected by personal service in the applicable jurisdiction. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions.
23. Arbitration Provision/No Class Action.
Except where prohibited by law, as a condition of using the Website and/or Service, you agree that any and all disputes, claims and causes of action (collectively, “Claim”) arising out of or connected with the Website and/or Service, shall be resolved individually, without resort to any form of class action, exclusively by binding arbitration under the rules of the American Arbitration Association for full and final settlement of such Claim, and judgment on the award rendered in the arbitration may be entered in any court having jurisdiction thereof. Such arbitration shall be held in accordance with the Rules for Expedited Procedures under the Commercial Arbitration Rules of the American Arbitration Association or other mutually agreeable organization, before a single arbitrator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement), selected by agreement of both parties or by an independent mediator (with knowledge and expertise of copyright law if the claim is all or partially for copyright infringement) if the parties are unable to agree. The parties shall split the arbitration and/or mediator costs. An award rendered by the arbitrator(s) may be entered and confirmed by the courts of the State of New York, County of New York, or the United States District Court for the Southern District of New York. The parties agree that any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts of the State of New York, County of New York, or the United States District Court for the Southern District of New York.
24. No Third Party Beneficiaries.
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
25. Availability Outside the U.S.
26. Entire Agreement.
This Agreement contains the entire agreement between you and Visify regarding the use of the Website and/or the Service.
27. Severability; Waiver.
If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. In addition, Visify’s failure to enforce any term of this Agreement shall not be deemed as a waiver of such term or otherwise affect Visify’s ability to enforce such term at any point in the future.
The section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
Please contact us with any questions regarding this agreement. Visify is a trademark of Visify LLC.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.