Terms of Service
Effective Date: March 1, 2018
Thank you for using Cleverific! These terms of service (“Terms”) constitute an agreement between you and Cleverific, Inc. and its affiliates, subsidiaries, parent companies, joint ventures, other corporate entities under common ownership, and/or any of their agents, consultants, employees, officers and directors (collectively, “Cleverific”, “we” or “us”). The term “you” refers to the person or representative of an entity visiting the Site or using the Service.
Your right to use Cleverific.com (and/or any other domains provided by Cleverific) (“Site”), our software applications (including mobile applications), which means all software programs distributed, published or made available by Cleverific, including but not limited to business productivity and marketing applications accessed through a browser, mobile device, or other online communication method, and any upgrades or updates, (“Software,” “App”), and services provided through the Site, Software or App (all together, the “Service”), are governed by the Terms as described below.
By accessing, browsing, and/or using our Service via any medium, you acknowledge that you have read, understood, and agree to be bound by these Terms and to comply with all applicable laws and regulations.
IMPORTANT NOTICE: FOR U.S. AND CANADIAN USERS, DISPUTES ABOUT THESE TERMS OR RELATING TO THE SERVICE GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY. For more details, please see Paragraph 24.
IF YOU ARE A USER LOCATED IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND OR UNITED KINGDOM, THE DATA PROCESSING ADDENDUM ACCOMPANIES THESE TERMS AND SETS FORTH OTHER TERMS OF OUR AGREEMENT THAT APPLY SOLELY TO THE EXTENT ANY INFORMATION YOU PROVIDE TO CLEVERIFIC INCLUDES PERSONAL DATA OF INDIVIDUALS LOCATED IN THE EUROPEAN ECONOMIC AREA, SWITZERLAND AND THE UNITED KINGDOM.
1. Use of the Service and License
The Service provides productivity and marketing software and applications that help you increase traffic and revenue, expand brand loyalty and develop new business opportunities. It is intended only to allow you to upload, view, and share data and to use certain data pertaining to you with regard to this purpose. You may not access or use the Service for any other purpose.
Cleverific owns and operates the Service. The information and content available on the Service (the “Site Content“) are protected by copyright and other intellectual property laws throughout the world. You must retain all copyright and other proprietary notices on copies of any Site Content. Any unauthorized reproduction, modification, distribution, public display or public performance of any Site Content is strictly prohibited. Cleverific reserves all rights not expressly granted in these Terms.
Subject to the restrictions set forth in these Terms, Cleverific grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the App in object code format on devices that you own or control, solely for use with the Service. By downloading or using the App, you acknowledge that the App is licensed and not sold to you.
You must be at least 18 years of age to use the Service. By agreeing to these Terms, you represent and warrant that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with all applicable laws and regulations of your local jurisdiction. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that entity, organization, or company to these Terms and you agree to be bound by these Terms on behalf of that entity, organization, or company.
3. Accounts and Privacy
You must register for an account to access most features of the Service. When creating your account, you may be required to provide information about you, such as your email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When creating an account, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password and you accept responsibility for all activities that occur under your account.
The Services are personal to you and you agree that you will not sell, transfer, license or assign your account, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, Cleverific prohibits the creation of, and you agree not to create, an account for anyone other than yourself. You agree that you will not solicit, collect or use the login credentials of other Cleverific users.
If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org. Your account may automatically expire following any period of inactivity in excess of twelve (12) consecutive months.
4. Payment of Service Fees
You may be required to pay fees to access the Service or to access certain features of the Service. The fees and charges for use and access to the Service will be as described on the Site, Software, or App, as applicable. You will be able to review and accept the fees before you will be charged. You authorize us to charge you the fees incurred with your use of the Service each month until you cancel the Service. You acknowledge that the amount billed each month may vary from month to month depending upon your use of the Service and possible transaction fees. We reserve the right to adjust pricing and fees at any time. If we change the fees for the Service, including by adding additional fees or charges, we will provide you advance notice of those changes. If you do not accept the changes to the fees or charges, we may discontinue providing you the Service. All amounts due and payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding.
5. Method of Payment
We will charge the payment method you specify at the time of purchase for all initial and subsequent charges. You authorize us to charge all sums as described in these Terms to that payment method for the Service you purchase. If fees are paid with a credit card, we may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to pay for your purchase. The Service may include functionality for activating, updating or canceling recurring payments for periodic charges. If you activate or update recurring payments through the Service, you authorize us to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. Please note that it may take several business days for any update or cancellation of any existing authorized one-time or recurring payment to take effect.
We may, in our sole discretion, enable you to purchase and/or pay for the Service through an authorized third party reseller or payment processing firm (including, for example, a telecommunications provider or a mobile app marketplace like Apple iTunes or Google Play). Your obligation for payment to, and relationship with, such third party reseller or payment processor is a contractual matter between you and that third party. We are not a party to, or responsible on account of, such contract and agreement. We do not control how you can pay that third party or how any refunds may be issued by that third party. Please review the terms of service with that third party carefully. While we select our third party resellers and payment processors carefully, we cannot and do not guaranty their performance. We encourage you to provide any feedback to email@example.com regarding any third party reseller or payment processor, as we value your input.
You agree to pay the charges for the Service in the currency specified by Cleverific (or any third party reseller or payment processor from which you may purchase the Service), and you assume all risks associated with any changing value in the currency compared with other currencies. The charge for the Service may include VAT and sales tax and certain other taxes or delivery or similar charges applicable to your purchase. If any applicable tax or charge is not charged by us (or a third party reseller or payment processor), you acknowledge that you are solely responsible for paying the tax or other such charge.
All fees and sales are FINAL AND NON-REFUNDABLE to the fullest extent permitted by law and any refunds shall be made in our sole and absolute discretion. Our decision, if any, to issue a refund shall not entitle you or any other user of the Service to any discounts or refunds in the future for similar events and/or occurrences.
6. Third Party Fees
You are also responsible for all third party charges and fees associated with your use and accessing the Service, including, without limitation, internet service provider fees, telephone and computer equipment charges, and taxes of any kind.
7. Cancellation of Service
You may terminate or cancel your account or the Service at any time by:
Following the procedures detailed on the Cleverific website;
Uninstalling our App from your online store through your ecommerce website provider (e.g., Shopify) ;
Contacting customer service at firstname.lastname@example.org; or
Going to the “Edit your Profile” page and clicking the “Cancel Service” button.
8. Termination and Modification of the Service
At any time and without prior notice Cleverific may (1) terminate, cancel, deactivate and/or suspend your access to or use of the Service (or any portion thereof), your user account, and any orders placed and/or (2) temporarily or permanently discontinue, modify or alter any aspect, feature or policy of the Service. If we determine, in our sole and absolute discretion, that you violated any provision of these Terms, your permission to use the Service will terminate automatically. We also reserve the right to terminate your account or suspend access to the Service if we discontinue the Service, or a part of the Service, or for any reason, with or without notice. To the fullest extent permitted under applicable law, we will have no liability on account of any change to the Service or any suspension or termination of your access to or use of the Service. Cleverific will not be liable to you or any third party for any termination or modification of the Service or other products provided by Cleverific regardless of the reason for such termination, discontinuation or modification. Upon any termination or discontinuation, we may immediately deactivate, terminate and/or suspend your account; bar any further access to your account and the Service; and/or delete any data associated with your account. You acknowledge that your only right with respect to any dissatisfaction with any such modification or discontinuation made by us is to cancel or terminate your account and the Service.
9. Prohibited Conduct
You promise not to: (i) Harass, threaten, or defraud users or staff of Cleverific; (ii) Make unsolicited offers, advertisements, proposals, or send junk mail or “spam” to users or staff of Cleverific; (iii) Impersonate another person or access another user’s account without that person’s permission; (iv) Share passwords for the Service with any third party or encourage any other user to do so; (v) Commercially exploit the Service or permit third parties to use any Services under your account or sell, transfer, license or assign your account, username, or any account rights; (vi) Disparage Cleverific with its employees, users or third parties; (vii) Misrepresent the source, identity, or content of information transmitted via the Software or App, including deleting or obscuring the copyright, trademark or other proprietary rights; (viii) Upload material (e.g. virus, adware, spyware, worm, or other malicious code) that is damaging to computer systems or data of Cleverific or users of the Service; (ix) Modify, translate, or create derivative works, adaptations or compilations of, or based on, the Service or part thereof, or use, copy or reproduce the Service or any part thereof other than as expressly permitted in these Terms; (x) transport, export or re-export (directly or indirectly) into any country forbidden to receive such Services by any U.S. or other export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time; or (xi) Attempt to do any of the acts described in this Section, or assist or permit any person in engaging in any of the acts described in this Section.
Any such suspected activity or conduct may be grounds for termination of your use of the Service or your account may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Cleverific may have at law or in equity.
10. Prohibited Uses
As a condition of your use of the Service, you will not use or access the Service for any purpose that is (a) unlawful, (b) from a jurisdiction where such use or access is not authorized, (c) in violation of any local, state, national, or international law, or (d) prohibited by these Terms. You may not use the Service in any manner that, in our sole discretion, could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Service. You may not attempt to gain unauthorized access to the Service, or any part of the Service, other accounts, computer systems or networks connected to the Service, or any part of them, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service. You may not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, any features that prevent or restrict use or copying of any content accessible through the Service, or any features that enforce limitations on the use of the Service or the content therein. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree neither to modify the Service in any manner or form, nor to use modified versions of the Service, including (without limitation) for the purpose of obtaining unauthorized access to the Service. The Service may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service.
11. Infringing or Fraudulent Activity
Cleverific does not permit copyright infringing, fraudulent, abusive or other illegal activities and reserves the right to terminate access to the Service or terminate the account of any person(s) determined to be in violation of this term, which determination shall be made in Cleverific’s sole and absolute discretion. Any such suspected activity that may be grounds for termination of your use of the Service or your account may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Cleverific may have at law or in equity.
12. User Content
User Content Generally. Certain features of the Service may permit you or other users to upload content to the Service, including messages, images, data, text, location information, and other types of information (“User Content”) and to publish User Content on the Service. You retain the copyrights and any other proprietary rights that you may hold in the User Content that you post to the Service.
Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
You are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Cleverific and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Cleverific, the Service, and these Terms; and
Your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate 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) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Cleverific to violate any law or regulation.
You agree to pay for any and all royalties, fees, or other monies owing any person by reason of User Content you post on or through the Service.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Cleverific reserves the right, at any time and without prior notice, to screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. To the fullest extent allowed under applicable law, you agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Cleverific with respect to User Content. We expressly disclaim any and all liability in connection with User Content, to the fullest extent allowed under applicable law. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
13. Procedure for Unlawful User Content
If you believe that any User Content does not conform to these Terms, please notify us.
We comply with the provisions of the Digital Millennium Copyright Act (the “DMCA”) applicable to our operations (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our designated agent at the following address:
ATTN: Legal (Copyright Notification)
27 West Anapamu Street #304
Santa Barbara, CA 93101
Please note that under applicable law, if you knowingly give false, misleading or inaccurate information that User Consent is infringing, you may be subject to civil or criminal penalty. Any notice under DMCA alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include all of the information required by the DMCA for such notices.
14. User Feedback
If you provide Cleverific with any comments, bug or system problem reports, feedback, or modifications proposed or suggested by you to the Service (“Feedback”), Cleverific shall have the right to use such Feedback at its sole and absolute discretion, including, but not limited to, the incorporation of such suggested changes into the Service or the offered products. You hereby grant Cleverific a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
15. Other Websites and Applications
Through the Service we may provide you with links to other websites and applications for your convenience. These websites and applications may be third parties and independent from us with their own privacy policies and rules and we do not review, approve, monitor, endorse, warrant, or make any representations with respect to third-party web sites. You agree that with regard to any third-party websites or applications that are not owned or controlled by us, we are not responsible for the sites’ or applications’ content, any use of the sites or applications, the sites’ or applications’ practices, or the privacy practices of the sites or applications. If you use a third-party website or application and allow them to access your personal information, you do so at your own risk. ACCESS AND USE OF THIRD PARTY WEBSITES OR APPLICATIONS, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON SUCH WEBSITES OR APPLICATIONS OR AVAILABLE THROUGH SUCH WEBSITES OR APPLICATIONS, IS SOLELY AT YOUR OWN RISK.
16. Additional Terms
Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that are applicable to a particular feature, offer, application or content on the Service. All such Additional Terms are hereby incorporated by reference into the Terms, provided that in the event of any conflict between the Additional Terms and the Terms, the Additional Terms shall control.
17. Modifications to the Terms
We reserve the right, at our discretion, to amend these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we will notify you of the modified Terms by email to the address you provided in your user profile and/or in a notification in the Service or on the Site. Material modifications will be effective upon your acceptance of such modified Terms or upon your continued use of the Service after we send or post our notification of the changes, whichever is earlier. Immaterial modifications are effective upon posting of such updated Terms. Your sole and exclusive remedy if you do not agree with any modification to these Terms is to cancel your account or discontinue your use of the Service.
18. Ownership; Proprietary Rights
The Service is owned and operated by Cleverific. The visual interfaces, graphics, logos, design, compilation, information, data, computer code (including source code or object code), products, software (including any downloadable software or applications), services, and all other elements of the Service provided by Cleverific (“Materials”) are protected by the copyright, trade dress, patent, and trademark laws of the Unites States and other countries, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Site, App and Service are the copyrighted property of Cleverific or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Cleverific or its affiliates and/or third-party licensors. Cleverific reserves all rights to the Materials not granted expressly in these Terms.
19. Service Providers
You hereby consent to our engagement of third parties (including Cleverific’s affiliates) to perform, or support the performance of, all or any portion of the Service.
20. Indemnification; Hold Harmless
You acknowledge and agree that, to the fullest extent permitted under applicable law, you are responsible for your use of the Service, and you will indemnify, hold harmless, and, if so directed by Cleverific, defend Cleverific and its officers, directors, employees, consultants, affiliates, representatives, subsidiaries and agents and their respective successors and assigns (together, the “Cleverific Entities”) from and against every responsibility, claim, liability, action, suits, procedures, damage, loss, costs, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with your misuse of the Site, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. To the fullest extent permitted under law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter). You agree to cooperate with our defense of that claim.
21. Disclaimers; No Warranties
THE SERVICE AND ANY DOWNLOADABLE SOFTWARE, APPLICATIONS, CONTENT, PRODUCTS, SERVICES AND MATERIALS AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, THE CLEVERIFIC ENTITIES DISCLAIM AND EXCLUDE ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, PRODUCTS, SERVICES AND MATERIALS AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
WITHOUT LIMITING THE FOREGOING, THE CLEVERIFIC ENTITIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE SERVICE AND ANY DOWNLOADABLE SOFTWARE, WEBSITE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE AND ANY DOWNLOADABLE SOFTWARE, WEBSITE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE, THE SERVER THAT MAKES THEM AVAILABLE, OR THIRD-PARTY CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (II) REGARDING THE USE OF THE SERVICE AND ANY DOWNLOADABLE SOFTWARE, WEBSITE, CONTENT, SERVICES, OR APPLICATIONS OR THIRD-PARTY CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE, AND/OR (III) THAT THE SERVICE AND ANY DOWNLOADABLE SOFTWARE, WEBSITE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE OR THIRD-PARTY CONTENT WILL BE SECURE OR NT OTHERISE LOST OR ALTERED. ANY MATERIAL OR DATA THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE SERVICE IS AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OF SUCH MATERIAL OR DATA.
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.
22. Limitation of Liability
UNDER NO CIRCUMSTANCES WILL THE CLEVERIFIC ENTITIES AND OUR AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE, EVEN IF THE CLEVERIFIC ENTITIES OR OUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, CLEVERIFIC’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
THE TOTAL LIABILITY OF THE CLEVERIFIC ENTITIES TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION IS LIMITED TO $100 OR THE AMOUNTS, IF ANY, PAID BY YOU TO USE THE SERVICE, WHICHEVER IS MORE. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER CLEVERIFIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN WHICH CASE SUCH LIMITATIONS SHALL APPLY TO YOU TO THE EXTENT PERMITTED IN SUCH JURISDICTION. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW, SUCH AS LIABILITY FOR INTENTIONAL VIOLATION OF THESE TERMS. NOTHING IN THESE TERMS AFFECTS YOUR LEGAL RIGHTS AS A CONSUMER.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
23. Force Majeure
Cleverific shall be excused from performance under these Terms for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a result of: (1) inclement weather or acts of God; (2) acts of war, terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes; (4) labor trouble; (5) acts of government or public bodies; (6) telecommunications, network, computer, server or Internet downtime; (7) unauthorized access to Cleverific’s information technology systems by third parties; or (8) other causes unforeseen by Cleverific and beyond our reasonable control.
24. Governing Law and Dispute Resolution
This Agreement shall be subject to and construed under the laws of the State of California, United States, without reference to the conflicts of law provisions thereof.
Before filing a claim against Cleverific, you agree to attempt to informally resolve your dispute with Cleverific by contacting email@example.com. We will contact you via email to try to resolve the dispute. If the dispute is not resolved within 15 days of submission, you or Cleverific may bring a formal proceeding. You and Cleverific agree that any judicial proceeding to resolve claims relating to these Terms or the Services will be brought in Santa Barbara County, California, United States, subject to the mandatory arbitration provisions below. Both you and Cleverific consent to venue and personal jurisdiction in such courts.
IF YOU’RE A U.S. OR CANADIAN RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:
You understand and agree that all claims, disagreements, disputes or controversies between you and Cleverific, and its officers, directors, employees, representatives, agents, parents, affiliates, subsidiaries and/or related companies, shall be resolved by final and binding, individual arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed. The arbitration shall take place in Santa Barbara County, California, United States. The parties voluntarily and knowingly waive any right they have to a jury trial. You may decline this agreement to arbitrate by notifying Cleverific in writing within 30 days of the date that you first became subject to this arbitration provision. To opt out, you must send your written notification to the address below:
Cleverific, Inc., 27 West Anapamu Street, Santa Barbara, CA 93101
Your notification must include your name and residence address, the email address you use for your Cleverific account, and a clear statement that you want to opt out of this arbitration agreement.
This arbitration agreement will survive the termination of your relationship with Cleverific.
Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Cleverific must be resolved by a court located in Santa Barbara County, California, except as otherwise agreed by the parties or as described in the Arbitration Agreement paragraph above. You agree to submit to the personal jurisdiction of the courts located within Santa Barbara County, Santa Barbara for the purpose of litigating all such claims or disputes.
Assignment. We may assign our rights and obligations under these Terms. The Terms will inure to the benefit of our successors, assigns and licensees. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent, which may be granted or withheld at our sole and absolute discretion. Any attempted assignment by you without such consent shall be null and void.
Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
Claims; Statute of Limitations. YOU AND CLEVERIFIC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Disclosures. The services hereunder are offered by Cleverific, Inc., located at: 924 Anacapa Street, Santa Barbara, CA 93101 and email: firstname.lastname@example.org. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information. In addition, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at 1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
Waiver. No waiver of any of these Terms by Cleverific is binding unless authorized in writing by an executive officer of Cleverific. In the event that Cleverific waives a breach of any provision of these Terms, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of these Terms and will in no manner affect the right of Cleverific to enforce such rights and terms at a later time.
Last Revised: [03/01/18]