THESE TERMS CONTAIN IMPORTANT DISCLAIMERS AND LEGAL INFORMATION. AMENDED TERMS FOR STATE AND LOCAL GOVERNMENT AGENCIES CAN BE FOUND HERE: http://archivesocial.com/terms-state-local-government
Last Updated: March 17, 2016
1. THE AGREEMENTS: WHAT THEY ARE, WHO THEY APPLY TO AND HOW THEY CHANGE
Applicability of the Agreements to Users, including your Representatives. As used in the Agreements, the terms “you” and “your” shall refer, as applicable, to (a) users of the Website who are not Subscribers (“Non-Subscribers“), (b) users of the Website and/or the Service who are subscribers, whether pursuant to a free trial or a paid subscription, who have completed the required registration process described on the Website (“Subscribers“) or (c) to owners, members, managers, directors, employees, agents, contractors or other third parties who use the Website and/or the Service on behalf of, at the direction of or for the benefit of a Subscriber (collectively, “Representatives” and together with Non-Subscribers and Subscribers, the “Users“). If you are a Representative of a Subscriber, you expressly represent, acknowledge and agree that (i) you have the authority to enter into the Agreements on behalf of such Subscriber and to bind such Subscriber to the terms and conditions set forth in the Agreements and (ii) that the terms and conditions of these Agreements apply both to your use of the Website and/or the Service as an individual user and to the Subscriber by virtue of your relationship with such Subscriber as its Representative. IF YOU DO NOT HAVE THE AUTHORITY SET FORTH ABOVE YOU MUST IMMEDIATELY CEASE ALL USE OF BOTH THE WEBSITE AND THE SERVICE.
2. RULES OF CONDUCT FOR ALL USERS
Restrictions on User Content. All Users shall use the Website and the Service for lawful purposes only. You agree that you will make reasonable efforts to ensure that any information, including any Archived Content, you provide, either directly to us or that we access through our provision of the Service (collectively, “User Content“), does not include content, material, data or information, regardless of form or medium, that:
a) is abusive, vulgar, obscene, hateful, fraudulent, threatening, harassing, defamatory, libelous or which discloses without permission private or personal matters concerning any person other than you;
b) you do not have the right or license to transmit or distribute to third parties under applicable law (such as third-party copyrights, trade secrets, trademarks, securities, or other proprietary rights), including under the other terms of service of any third party providing or assisting in making available such User Content, or under contractual or fiduciary relationships (such as nondisclosure agreements);
c) contains or links to sexually explicit material or other material that is hateful or incites violence or that advocates or encourages any illegal activity;
d) impersonate any person, or falsely state or otherwise misrepresent your identity or your affiliation with a person or entity including, if you are a Representative of a Subscriber, such Subscriber;
e) you know or have reason to believe is provided, transmitted or distributed in violation of any applicable law, regulation, ordinance, contract, order or other agreement that is binding on you and/or your use of the Website or the Service;
f) contains viruses, malicious code, corrupted files, “Trojan Horses,” or any other contaminating or destructive features that may damage someone else’s computer; or
g) otherwise violates the terms or conditions of these Agreements or is designed to interfere or interferes in any way with our continued provision and operation of the Website and the Services, either as presently provided and/or operated or as we may intend, in our sole discretion, to provide and/or to operate the foregoing at any future point.
Restrictions on Users. In addition to the above restrictions pertaining to User Content, you additionally represent, warrant, covenant and agree that, as a User of the Website and/or Service you will not do, or assist any others in doing, any of the following:
h) use the Website or the Service to engage in or to promote any behavior or activity that is abusive, vulgar, obscene, hateful, fraudulent, threatening, harassing, defamatory, libelous or which discloses private or personal matters concerning any person;
i) use the Website or the Service to access or use any content, information or material to which you do not have the necessary right or license, or otherwise knowingly violate, breach or infringe the intellectual property, contractual or other rights of any third party;
j) use the Website or the Service to engage in or to promote any behavior or activity that involves sexually explicit material or other material that is hateful or incites violence or that advocates or encourages any illegal activity;
k) impersonate any person, or falsely state or otherwise misrepresent your identity or your affiliation with a person or entity including, if you are a Representative of a Subscriber, such Subscriber;
l) use the Website or the Service to engage in or to promote any behavior or activity that constitutes advertising, spam or any other form of solicitation, including chain letters and pyramid schemes, other than as expressly permitted in connection with your use of the Website and/or Service;
m) knowingly violate any applicable law, regulation, ordinance, contract, order or other agreement that is binding on you and/or your use of the Website or the Service;
n) modify, disassemble, decompile, reverse engineer, revise or enhance all or any party of the Website or the Services or create any derivative works or otherwise merge or utilize all or any part of the Service or the Website with or into other computer programs, website, service or other materials or attempt to discover all or any part of the Website’s or the Service’s source code;
o) copy, print, display, publish or transmit all or any part of the Website or the Services except as expressly authorized herein or by us in writing;
p) sell, license (or sublicense), lease, assign, transfer, pledge, or share (including as a time share, service bureau or otherwise) any of your rights under, in or to the Agreements, the Website and/or the Service with or to any third party;
q) send or store any materials, data or information containing viruses, malicious code, corrupted files, “Trojan Horses,” or any other contaminating or destructive features that may damage someone else’s computer, or upload or insert code, scripts, batch files or any other form of scripting or coding into the Website, the Service or any applications thereof or therein;
r) otherwise interfere with or disrupt the integrity or performance of the Website or the Services or any User Content or Our Content contained therein;
s) attempt to gain unauthorized access to the restricted areas of the Website or the Service or its related systems or networks; or
t) use the Website or the Service in any manner not intended by or explicitly prohibited by us.
Not intended for Users under 13 years of age. The Website and the Service are intended for commercial users and is not directed toward any User under 13 years of age. If you are under age 13, please do not attempt to use the Website or the Service, to register with us or to provide us with any User Content, including any Archived Content. If you are an approved User or Subscriber of the site, you may in no event provide us with Archived Content or other User Content with respect to any social media account, whether from a Supported Site or otherwise, with respect to a child under the age of 13. If we learn that we have collected any User Content, Archived Content or other information, including any personal information, from a child under age 13, we will use our best efforts to delete that information as quickly as possible and may immediately terminate, delete and/or suspend your Subscriber account and/or any User Content, if applicable, consistent with these Terms. If you believe that we might have any information from a child under age 13, please contact us at [email protected] We strongly recommend that minors 13 years of age or older ask their parents for permission before sending any information about themselves to anyone over the Internet and we encourage parents to teach their children about safe Internet use practices.
3. ADDITIONAL RULES OF CONDUCT FOR SUBSCRIBERS; CREDENTIALS
The registration process. In order to become a Subscriber, and to provide us access to your Archived Content, you will be required to complete a registration process using the Website. As part of this registration process you will provide us with certain information, including (i) your name, the name of the business for which you are a Representative, payment information and other information and (ii) other information (collectively, “Permitted Accounts Information“) with respect to any Permitted Accounts (as defined below) you or your Representatives intend to use in connection with the Website and/or the Service, including username, login information or other user credentials or permissions. You represent, warrant, covenant and agree that all information (including your Permitted Accounts Information) you provide to us as a Subscriber, including in connection with your registration or otherwise, is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current and complete at all times.
Credentials and your responsibility to protect them. In connection with your registration, you will be asked to create a username and password, and may also receive other information (such as a personalized URL or other profile or registration information) that allows us to associate you with your unique account to enable you to access the Service in the future (collectively, your “Credentials“). THE PRIVACY AND SECURITY OF YOUR CREDENTIALS ARE YOUR RESPONSIBILITY, YOU MAY NOT TRANSFER OR SHARE YOUR CREDENTIALS WITH ANY THIRD PARTIES OTHER THAN YOUR REPRESENTATIVES AND YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF SUCH CREDENTIALS. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR ANY AND ALL USE OF YOUR CREDENTIALS, WHETHER BY YOU, YOUR REPRESENTATIVE OR ANY THIRD PARTY, INCLUDING ALL ACTIVITIES OR LIABILITIES RESULTING FROM THE USE OF THE WEBSITE OR SERVICE IN CONNECTION WITH YOUR CREDENTIALS. You further covenant and agree to at all times update us as necessary to ensure that you, and only you or those people you authorize, control your Credentials, including notifying us immediately if the security of your Credentials is compromised and obtaining new Credentials as directed through the Website.
4. DESCRIPTION OF THE SERVICE; ARCHIVING AND ARCHIVED CONTENT
Archived Content. As part of the Service provided to active Subscribers, we will attempt to provide you with the ongoing ability to periodically and automatically capture, generate, create, maintain and/or archive copies of certain content, data and/or information that you transmit to and through certain social media websites (your “Archived Content“), all as described in more detail on the website. You hereby grant us a limited, worldwide, royalty-free, perpetual and irrevocable license, with right to sublicense, to use, reproduce, copy, access, view, modify, edit, perform, display, prepare derivative works of, reformat, translate, distribute and transfer your Archived Content, solely and to the limited extent necessary to perform our obligations hereunder and to provide you with the Services including, without limitation, to disclose such Archived Content to the applicable Supported Site as necessary to comply with our or your terms and conditions of using such Supported Site.
Supported Sites and Permitted Accounts. In addition to the above license, in order for us to provide the Service and to capture and to maintain Archived Content for you, you will need to provide us with certain information with respect to any social media account through a website, platform or service that we support (a “Supported Site“) and that you would like to be included as part of your Archived Content. You represent, warrant, covenant and agree that you have not, and that you will not, provide us with any Permitted Accounts Information or any other information in connection with any user account for a Supported Site or other social media site in connection with your use of the Service and our archival of any Archived Content other than with respect to user accounts for which (i) you are the actual owner or (ii) you have been explicitly authorized to provide such access (for example, if you are an authorized Representative of a Subscriber)(collectively, “Permitted Accounts“). If you fail to abide by the foregoing provision, we may, in our discretion, immediately terminate your Subscriber account, revoke or restrict your right to access or to use the Website, Service or your Archived Content and/or delete or move any or all of your Archived Content.
Use by your Representatives. As part of using the Service, you may choose to grant one or more of your Representatives with access to your Archived Content, to your Credentials, to your Permitted Accounts Information and/or to additional information or credentials providing varying degrees of access to your Subscriber account as created by us at your direction via the Website, including for purposes of adding or removing one or more Permitted Accounts for use in connection with the Service. In the event that you undertake any of the foregoing, you acknowledge and agree that you are responsible for, and may be held liable in full, for the actions and omissions of such Representatives.
AS A RESULT, WHILE WE WILL UNDERTAKE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICE (INCLUDING WITH RESPECT TO ARCHIVED CONTENT) TO OUR SUBSCRIBERS AS DESCRIBED IN MORE DETAIL ON OUR WEBSITE, WE CANNOT AND DO NOT REPRESENT, WARRANT OR GUARANTEE THAT WE WILL BE ABLE TO DO SO IN FULL AT ALL TIMES OR AT ANY PARTICULAR TIME, NOR DO WE REPRESENT, WARRANT OR GUARANTEE THAT WE WILL BE ABLE TO CAPTURE OR TO MAINTAIN FULL AND ACCURATE RECORDS OF YOUR ARCHIVED CONTENT AT ALL TIMES OR AT ANY PARTICULAR TIME, NOR DO WE REPRESENT, WARRANT OR GUARANTEE THAT ANY WEBSITE, PLATFORM OR SERVICE THAT IS CURRENTLY A SUPPORTED SITE WILL REMAIN A SUPPORTED SITE. ACCORDINGLY, YOUR USE OF THE WEBSITE AND THE SERVICE IS EXPRESSLY CONDITIONED ON YOUR ACKNOWLEDGEMENT AND ACCEPTANCE OF THE LIMITATIONS SET FORTH IN THIS SECTION 4 AND THE LIMITATION OF LIABILITY SET FORTH IN SECTION 11 OF THESE TERMS.
5. OWNERSHIP OF USER CONTENT, INCLUDING ARCHIVED CONTENT
We do not claim ownership of any User Content, including any Archived Content, except as expressly described in this section with respect to Feedback; provided, however, that your use of the Service is subject to your granting of the license to your Archived Content set forth in Section 4, as well as any other reasonably necessary license to any other User Content, in order for us to perform our obligations hereunder and to provide you with the Service. Notwithstanding the foregoing, any comments, feedback, ideas and/or reports about the Website or the Service that you provide to us, whether in written, electronic or any other form (collectively, “Feedback“), shall be considered our proprietary and confidential information, and you hereby irrevocably automatically transfer and assign to us, immediately upon creation, all of your right, title and interest in and to such Feedback, including all intellectual property rights embodied in or arising in connection with such Feedback and any other rights or claims that you may have with respect to any such Feedback.
6. OWNERSHIP OF THE WEBSITE, SERVICE, OUR TECHNOLOGY AND OUR CONTENT
Other than with respect to the User Content, as described in Section 5 above, you acknowledge and agree that we are the sole owners of all right, title and interest in and to all other portions of the Website and the Service, including all software, software code, trade secrets, trademarks, confidential or proprietary information or other intellectual property or intellectual property rights or claims embodied therein or arising in connection therewith (collectively, “Our Technology“). You acknowledge and agree that Our Technology is subject to copyright and other intellectual property rights and laws, and that Our Technology may not be used, copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in these Agreements grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted to like Users of the Website or the Service according to these Agreements. Furthermore, nothing in these Agreements or your use of the Website or Service will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology.
Certain of the names, logos, and other materials displayed on the Website or in the Service constitute trademarks, trade names, service marks or logos (“Marks“) of ArchiveSocial or our applicable licensors and you acknowledge and agree that you shall have no right, license or authority to use such Marks without our prior written consent and that the ownership of all such Marks and the goodwill associated therewith remains with and will inure to us or to our licensors, as applicable. To the extent indicated, any use of third party software or other technology provided in connection with the Website or Service will be governed by the applicable third party licenses and not by these Terms.
In addition to Our Technology, the Website and the Services may contain other text, images, audiovisual productions, opinions, statements, facts, articles, or other information created by us or by third parties (“Our Content“). Our Content is for your reference only and, except as expressly indicated otherwise, may not be relied upon by you for any purpose. We are not responsible for Our Content’s accuracy or reliability. In addition to any protections Our Content may have to the extent it also constitutes Our Technology, you hereby acknowledge and agree that Our Content may not be copied, duplicated, distributed, downloaded, sold or otherwise exploited by you in any way, except as agreed to in writing by us.
7. FEES PAID BY SUBSCRIBERS
Fees in general. As a Subscriber, you agree to pay our applicable subscription fees (as listed on the Website) for the Service, based on the level and/or type of Service for which you sign up. Your use of the Service is limited to the restrictions established in your applicable Service plan (e.g., the number of Permitted Accounts, the volume of new Archived Content, etc.).
All fees with respect to the Service will be billed in advance and any delay or non-payment of such fees may result, in our discretion, in the termination, deletion and/or suspension of your Subscriber account and/or any User Content (including Archived Content) consistent with these Terms.
In the event we are unable to collect the fees you owe us, we may take any other steps we deem necessary to collect such fees from you, and that you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys’ fees. Any amounts not paid when due shall bear interest at the lesser of 1.5% per month, compounded monthly, or the maximum rate allowable pursuant to applicable law.
Renewal. Unless specifically agreed upon in writing between you and us at commencement of your subscription to the Service, or unless you cancel the subscription using the appropriate mechanism provided within the Service or notify us by email at [email protected] and receive confirmation from us that you do not want your subscription to the Service to be automatically renewed, you agree that we may automatically renew your subscription and automatically charge you the applicable renewal or Service fees for such renewed subscription (as listed on the Website) for the Service using the credit card or other payment information associated with your Subscriber account at the expiration of each period of Service for which you have already paid.
Free Trials. If you register on the Website for a free trial of the Service (a “Trial“), we may make certain aspects of the Service available to you on a trial basis free of charge until the earlier of (a) the end of the Trial period for which you registered or are registering to use the Service or (b) the start date of your subscription to all or part of the Service. The Agreements, along with any additional terms and conditions provided to you in connection with such Trial, shall apply to you as if you were a Subscriber during the entirety of any such Trial. ANY ARCHIVED CONTENT CAPTURED OR MAINTAINED IN CONNECTION WITH THE SERVICE DURING ANY TRIAL WILL BE PERMANENTLY DELETED UPON THE EXPIRATION OF YOUR TRIAL PERIOD UNLESS YOU PURCHASE A PAID SUBSCRIPTION TO THE FULL SERVICE OR TO THE SAME PORTION OF THE SERVICE AS COVERED BY YOUR TRIAL PRIOR TO SUCH DATE. AT OUR SOLE DISCRETION WE MAY PROVIDE YOU WITH A MECHANISM TO EXPORT SUCH ARCHIVED CONTENT PRIOR TO THE CONCLUSION OF SUCH TRIAL PERIOD.
Refunds and Changes to Service. In the event that you cancel your subscription to the Service (but not, for the avoidance of doubt, in the event that your subscription is terminated by us, including as a result of your violation of the Agreements), you shall continue to have access to the portion of the Service during the remaining period of time, if any, for which you have already paid to access and to use the Service. You will not be entitled to any refund with respect to all or any portion of your subscription to the Service or related Service fees which you may have paid in advance, regardless of the reason you cease to use such Service or choose to cancel your subscription to such Service, although we may elect to provide such a full or partial refund in our discretion. In the event that you change subscription plans during the term of your current subscription to the Service you may be eligible for a pro rata credit against the cost of any new Service fee or subscription amount based on the remaining unused and prepaid portion of your prior subscription.
Promotions. We may run promotional offers from time to time on the Website with respect to the Service. The terms of any such promotion will be posted on the Website or otherwise conveyed to you. Unless otherwise indicated, we may establish and modify, in our sole discretion and at any point in time, the terms and conditions of any such promotional offers.
8. PRIVACY STATEMENT AND SECURITY
9. COPYRIGHT INFRINGEMENT
Users or others that believe their copyright or other rights have been infringed by User Content (“Claimant“) may provide ArchiveSocial’s Designated Agent (identified below) written notice thereof by including the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other interest.
- A description of the copyrighted work or other work that is alleged to have been infringed.
- A description of where the User Content that is allegedly infringing is located on the Website.
- The Claimant’s address, telephone number, and email address.
- A written statement by the Claimant that he/she/it has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- A statement by the Claimant, made under penalty of perjury, that the above information in the Claimant’s notice is accurate and that the Claimant is the copyright owner or is authorized to act on the copyright owner’s behalf.
ArchiveSocial’s Designated Agent for notice of claims of copyright or other forms of proprietary rights infringement can be reached as follows:
ArchiveSocial, Inc. d/b/a ArchiveSocial
PO Box 3330
Durham, NC 27702
Email: [email protected]
If the disputed User Content was posted by a third-party identifiable through reasonable efforts, we will provide reasonable notice to the third-party of the charge. If the third-party responds with a valid counter-notification, we will provide the Claimant with a copy so that the Claimant may take any other steps he/she/it may consider appropriate.
10. USER INDEMNITY
You agree to defend, indemnify and hold harmless us, our affiliates, agents, employees, directors, officers, donors, grantees, licensors, content providers, service providers and volunteers from any claims, actions, losses, damages, liabilities, judgments, settlements, and other costs and expenses (including attorneys’ fees and disbursements) arising out of or relating to: (a) your breach or failure of your obligations under the Agreements, including any representation, warranty, covenant or guarantee made by you or by your Representative on your behalf pursuant to these Terms or as a condition of your use of the Website and/or the Service, (b) the placement by you of a link to the Website on or in any website, service, software program or in any e-mail, or (c) your access to and use of the Website or the Service or participation in any activities arising from this Website or the Service. Such indemnity shall include any costs and expenses incurred by us in any actions taken to enforce this indemnity. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims, and you agree not to settle any such matter without our prior written consent. We will use commercially reasonable efforts to notify you of any claim, action or proceeding to which we are entitled to indemnification upon becoming aware of it.
11. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
THIS DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY ACT OR OMISSION OF OURS OR ANY OF OUR AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF DATA (INCLUDING ANY ARCHIVED CONTENT AND/OR OTHER USER CONTENT), WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER WE NOR ANY OF OUR AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS ARE LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU AGREE THAT USE OF OUR WEBSITE AND THE SERVICE IS ENTIRELY AT YOUR OWN RISK. WE MAKE NO WARRANTY THAT THE WEBSITE AND/OR SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE WEBSITE AND/OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR SERVICE, OR THAT DEFECTS IN THE WEBSITE OR SERVICE WILL BE CORRECTED. OUR WEBSITE, ALL CONTENT (INCLUDING BOTH USER CONTENT AND OUR CONTENT) AND SERVICE ARE PROVIDED “AS IS,” AND “AS AVAILABLE” FOR YOUR USE ONLY, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY FOR INFORMATION, SERVICES, UNINTERRUPTED ACCESS OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH US OR THE WEBSITE. WE SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES CONCERNING THE AVAILABILITY AND ACCURACY OF ANY CONTENT OR THE SERVICE (INCLUDING WITH RESPECT TO YOUR ARCHIVED DATA) OR OTHER INFORMATION, PRODUCTS OR SERVICES PROVIDED BY US, AS WELL AS ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER ARCHIVESOCIAL NOR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE WEBSITE OR YOUR INABILITY TO GAIN ACCESS TO OR USE THE WEBSITE OR THE SERVICE. YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT PROVIDED, ACCESSED, CONTROLLED OR USED BY US IN CONNECTION WITH THE WEBSITE OR THE SERVICE, INCLUDING THE ARCHIVED CONTENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU; IN SUCH JURISDICTIONS, OUR POTENTIAL LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL OUR AGGREGATE LIABILITY, IF ANY, FOR ALL CLAIMS, ACTIONS AND/OR OMISSIONS ARISING FROM OR RELATED TO THE AGREEMENTS, THE WEBSITE AND/OR THE SERVICE EXCEED THE FEES PAID BY YOU FOR USE OF THE SERVICE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, OR, IF NO SUCH FEES HAVE BEEN PAID BY YOU, ONE U.S. DOLLAR ($1.00 US).
IN THE EVENT THAT THIS SECTION 11 IS DETERMINED BY ANY COURT TO BE UNENFORCEABLE, YOU AGREE THAT ANY CLAIM THAT YOU BRING AGAINST ARCHIVESOCIAL OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, DIRECTORS, OFFICERS, DONORS, GRANTEES, LICENSORS, CONTENT PROVIDERS, SERVICE PROVIDERS OR VOLUNTEERS THEREOF SHALL BE BROUGHT ONLY IN YOUR INDIVIDUAL CAPACITY, AND SUCH CLAIM SHALL NOT BE CONSOLIDATED WITH THE ARBITRATION, HEARING OR OTHER PROCEEDING (INCLUDING WITHOUT LIMITATION ANY OTHER SUIT OR CLASS ACTION) BROUGHT BY OR AGAINST ANOTHER USER OR US WITHOUT OUR EXPRESS WRITTEN CONSENT.
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, THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
12. FORCE MAJEURE
Without limiting the provisions of Section 11 or any other provision of the Agreements, under no circumstances will we or any of our affiliates, agents, employees, directors, officers, donors, grantees, licensors, content providers, service providers or volunteers be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or the non-performance of third parties.
13. ELECTRONIC COMMUNICATIONS
We can only give you the benefits of this Website and our Service by conducting business through the Internet, and therefore we require you to consent to our giving you Communications electronically. ThisSection 13 informs you of your rights when receiving Communications from us electronically. For contractual purposes, and as a necessary condition to our agreeing to allow you to use the Website and/or the Service, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications“) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing and shall have the same meaning, force and effect as if executed by hand, and all of the laws to which a hand executed agreement are subject will govern the Agreements. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent to receive Communications electronically you must, at that time and in order to give effect to such withdrawal, immediately cease using the Website and the Service. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. You hereby agree to keep us reasonably informed of any changes in your email, mailing address or other applicable contact information so that you continue to receive all Communications without interruption. A printed version of the Agreements shall be admissible in judicial or administrative proceedings based upon or relating to the Agreements to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
14. CHOICE OF LAW
THE AGREEMENTS WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA, APPLICABLE TO AGREEMENTS MADE AND WHOLLY PERFORMED IN THAT STATE, WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF. HOWEVER, IF YOU ARE AN EDUCATIONAL INSTITUTION THAT IS WHOLLY OWNED BY A STATE, OR A STATE GOVERNMENT INSTITUTION, THEN THE AGREEMENTS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THAT STATE, WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
Users will resolve any claim, cause of action or dispute with ArchiveSocial arising out of or relating to the Agreements or the Website exclusively in state or federal court located in Durham County, North Carolina. Users agree to submit to the personal jurisdiction of the courts located in Durham County, North Carolina for the purpose of litigating all such claims.
If you wish to contact us for any reason, please contact us at: Email: [email protected], or use the “Contact Us” link on this Website.
16. TERMINATION; SURVIVAL OF TERMS
Termination. You agree that we, in our sole discretion, may immediately terminate your access to the Website and Services at any time, for any reason, in our sole discretion. We may provide you refunds in our sole discretion and subject to the terms and conditions of Section 7 of these Terms. Upon termination or expiration of your access to the Service, you will no longer have the right to access or retrieve your Archived Content through the Website or the Service.
If you are a Subscriber, we will use commercially reasonable efforts to cease our archival of any new Archived Content in connection with any of your Permitted Accounts promptly following the termination of the termination or expiration of your subscription.
If you contact us within thirty (30) days of the date of the termination or expiration of a paid subscription to the Service, and request a copy of your Archived Content, we will use commercially reasonable efforts to provide you a copy of your Archived Content in a format determined by us. Thereafter, and immediately in the event of any other termination or expiration of your right to use the Service, you acknowledge and agree that we may delete any or all of your Archived Content and that it is solely your responsibility to seek another source for your backup needs. We shall also use our commercially reasonable efforts to delete all of your Archived Content promptly upon your written and acknowledged request to us that we do so. NOTWITHSTANDING THE FOREGOING, IN CERTAIN CIRCUMSTANCES WE MAY BE REQUIRED TO MAINTAIN OR OTHERWISE PRESERVE A COPY OF SOME OR ALL OF YOUR ARCHIVED CONTENT FOR A SPECIFIED PERIOD OF TIME OR FOR AN INDEFINITE PERIOD OF TIME IN ORDER TO COMPLY WITH APPLICABLE LAWS, RULES AND REGULATIONS OR, IF YOU ARE A REPRESENTATIVE OF A SUBSCRIBER, IN ORDER TO COMPLY WITH SUCH SUBSCRIBER’S POLICIES OR PROCEDURES AS THEY PERTAIN TO THE SERVICE, AND YOU AGREE AND CONSENT TO OUR SO MAINTAINING OR PRESERVING SUCH ARCHIVED CONTENT.
YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE WEBSITE OR SERVICES OR DELETION OF YOUR ARCHIVED CONTENT. TERMINATION OR EXPIRATION OF YOUR SUBSCRIPTION TO THE SERVICE OR OF YOUR RIGHT TO ACCESS OR TO USE THE WEBSITE OR THE SERVICE WILL IN NO WAY MODIFY, CHANGE OR VOID ANY PAYMENT OBLIGATIONS YOU MAY HAVE INCURRED UP TO THE DATE OF SUCH TERMINATION OR EXPIRATION.
Survival of terms. Except as set forth in the Agreement, in the event of termination or expiration of your subscription to the Service or your right to otherwise access or to use the Website or the Service or of these Terms, all of your rights pursuant to these Terms, the Service and the Website shall terminate immediately; provided, however, that, as described above, any payment or other obligation that has accrued as of such termination date shall survive such termination; provided, further, that rights and the obligations of the parties set forth in Sections ‚Äé1, 5 and 6 and Sections 10 through 17, along with any other provision of these Terms required to enforce your or our rights and obligations hereunder, shall survive the termination or expiration of these Terms and shall continue in effect as described therein.
Use of the Website is unauthorized in any jurisdiction that does not give effect to all provisions of the Agreements, including without limitation this Section 17. Paragraph headings and sub-headings are solely for the convenience of reference and shall not be given any weight or effect in the interpretation or construction of the Agreements. Waiver of any breach or default under any provision of the Agreements shall not be effective unless it is in writing and executed by us, and shall not be deemed to be, and shall not be, a waiver of any subsequent or continuing breach of, or default under, such provision or of any other provision. The Agreements constitute the entire agreement between you and us and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and us with respect to the Website or the Service. The Agreements, including these Terms, are personal to you, and you may not transfer, assign or delegate your right and/or duties under the Agreements to any third party. Any attempted transfer, assignment or delegation in violation hereof is void. If any provision of the Agreements is deemed invalid or unenforceable for any reason, such provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreements shall continue in full force and effect. Any rights not expressly granted herein are reserved.