1. ACCEPTANCE OF TERMS. livible, Inc. ("We", "Our" or "Us") provides its services to Customer ("You" or "Your") through its web site located at www.livible.com (the "Site"), subject to these Terms.
By accessing the Site, You represent and acknowledge that You have read, understood, and agree to be bound by these Terms, You acknowledge that these Terms constitute an agreement between You and livible, even though it is electronic and is not physically signed by either party, and that these Terms govern Your use of the Site.
2. DESCRIPTION. The Site includes the application ("App"), and storage services you register and purchase from Us that are accessed through the Site including all software, data, text, images, sounds, videos, and other content made available through the Site (collectively, "Content"). Any new features added to or augmenting the Site are also subject to these Terms. The specific terms and conditions by which you purchase our services and remit payment are set out in a separate Customer Agreement that you accept when you register to use our services.
3. LICENSE. Subject to the terms and conditions stated herein, You agree to access and use the Site only for Your internal business purposes as contemplated by these Terms. We grant you a limited non-exclusive, non-transferable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal use. With regard to access of our App through or downloaded from any third party application store or web site, you agree to full comply with all terms and conditions of any usage rules required by such third party.
3.1 USE OF THE SITE. You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit or make the App available to any third party, other than as expressly permitted by these Terms; (b) use the App to process data on behalf of any third party, (c) modify, adapt or hack the Site to falsely imply any sponsorship or association with Us, or otherwise attempt to gain unauthorized access to the Site or its related systems or networks; (d) use the Site or the App in any unlawful manner, including but not limited to violation of any person's privacy rights, infringing any person's intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) use the Site in any manner that interferes with or disrupts the integrity or performance of the Site and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Site or the App; (g) use the Site to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; or (h) try to use, or use the Site or the App in violation of these Terms.
3.2 AVAILABILITY. We make commercially reasonable efforts to have the Site and App available 24x7, except for: (a) planned downtime or (b) circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, or technical failures beyond Our control, but otherwise we make no warranty regarding our Site's availability.
3.3 NO WAIVER. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
4. DATA, PRIVACY AND SECURITY. We shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of the account information and related information ("Data") you provide us during the registration process or thereafter. These safeguards include, where applicable, encryption of Your Data in transmission (using SSL or similar technologies).
5. INTELLECTUAL PROPERTY RIGHTS. We shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, "Intellectual Property Rights"). The rights granted to You under these Terms do not convey any additional rights in any Intellectual Property Rights associated with this Site or our services. You grant to Us a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the service or otherwise use any suggestions, enhancement requests, recommendations or other feedback in any form that We receive from You. Our product and service names, and logos used or displayed on the Site or in connection with the Service are Our registered or unregistered trademarks (collectively, "Marks"), and You may only use such Marks to identify yourself as a customer and user of the Site or our service; provided You do not attempt, now or in the future, to claim any rights in the Marks.
6. THIRD PARTY WEBSITES. You may access our Site and register for our Service, using links from other third party web sites, or you may use links on our Site to connect to and use certain third party products, services or software under separate terms and conditions, (collectively, "Other Services") whether or not in conjunction with Our service. If You decide to access and use such Other Services, be advised that Your use is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Your Data. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your access or use of any such Other Services, or Your reliance on the privacy practices or other policies of such Other Services.
6.1 INTEGRATION. The Site may contain features that enable various Other Services (such as social media services like Facebook and Twitter) to be directly integrated into Your experience. To take advantage of these features, You will be required to register for or log into such Other Services on their respective websites. By enabling third party services within the Site, You are expressly allowing Us to pass Your log-in information to these Other Services for this purpose.
7. MODIFICATION, SUSPENSION OR TERMINATION OF THE SERVICE. We reserve the right to (i) modify or discontinue, temporarily or permanently, any of the Apps or the service (or any part thereof) and (ii) refuse any/all current and future use of the service, suspend or terminate your account. We will use commercially reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your use of service, and may be referred to law enforcement authorities. You agree that We are not be liable to You, or any third party, for any modification, suspension or discontinuation of the service.
8. DISCLAIMER OF WARRANTIES. THE SITE AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY'S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY IN THESE TERMS, OUR (INCLUDING ANY OF OUR AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OUR SERVICE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE SIX (6) MONTH PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You.
10. INDEMNIFICATION. We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Site as permitted hereunder, brought by a third party alleging that the Site infringes a valid U.S. patent or U.S. registered copyright, or misappropriates a third party's trade secret (such claims, collectively, "Claims"). We shall, at our expense, defend such Claims and pay direct damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us for such defense, provided that (i) You promptly notify Us in writing of the threat or notice of such Claim, (ii) We have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) You fully cooperate with Us in connection with such action.
10.1 INDEMNIFICATION BY YOU. You agree to defend, indemnify, and hold Us harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms or negligent actions in connection with your use of this Site. We will provide You notice of any such claim, suit, or proceeding.
11. ENTIRE AGREEMENT, REVISIONS. These Terms state the entire terms and conditions for your access of the Site and supersede prior versions of these Terms, or any other discussions, agreements or understandings by or among the parties (other than written agreements expressly accepted and executed by both parties). We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of such changes and direct You to the latest version.
12. SEVERABILITY. If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
13. RELATIONSHIP OF THE PARTIES. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
14 SURVIVAL. Sections 3 (License and Use of the Service), 5 (Intellectual Property Rights), 7 (Modification, Suspension or Termination of Service), 8 (Disclaimer of Warranties), 9 (Limitation of Liability), 10 (Indemnification), 11 (Entire Agreement; Revisions), 12 (Severability), 13 (Relationship of the Parties) and 15 (Governing Law; Venue; Attorney's Fees) will survive any termination of these Terms.
15. GOVERNING LAW, VENUE, ATTORNEY'S FEE'S. These Terms shall be governed by the laws of the State of Washington without regard to conflict of laws principles. Exclusive venue for any legal action shall be in the federal and state courts of the State of Washington, King County. You hereby expressly agree to submit to the exclusive personal jurisdiction of the for the purpose of resolving any dispute relating to Your access to or use of the Site. In the event of any legal action between You and Us, the substantially prevailing party shall receive from the losing party its reasonable costs and attorney's fees incurred in the action and in any appeal.