User Agreement with Vivitech® (Gigshowcase.com is a subscription-based service of Vivitech®)
THE FOLLOWING DESCRIBES THE TERMS ON WHICH VIVITECH® OFFERS YOU ACCESS TO OUR GIGSHOWCASE.COM SERVICES.
Welcome to the user agreement (the "Agreement" or "User Agreement") for gigshowcase.com services. This Agreement describes the terms and conditions applicable to your use of our services available under the domain and sub-domains of gigshowcase.com (the "Site"), including your participation as a gig host or a customer/site visitor. If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access our services.
We may amend this Agreement at any time by posting the amended terms on the Site. Except as stated below, all amended terms shall automatically be effective 30 days after they are initially posted on the Site. This Agreement may not be otherwise amended except in a writing signed by you and Vivitech®. This Agreement is effective upon acceptance during new user registration or upon use of gigshowcase.com to create a website.
1. User Eligibility. Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18) or to temporarily or indefinitely suspended gigshowcase.com users. If you are under the age of 18, you can use this service only in conjunction with, and under the supervision of your parents or guardians. If you do not qualify, please do not use our Site. Further, your gigshowcase.com account and username may not be transferred or sold to another party. If you are registering as a business entity, you personally represent that you have the authority to bind the entity to this Agreement.
2. Fees and Services.
2.1. Types of Fees. In exchange for using gigshowcase.com to create a website, a gig host agrees to pay two types of fees: (1) a monthly fee; and (2) a transaction fee. The monthly fee is due in advance for each month you utilize our services as a gig host. For example, if you initiate our services on February 22, your initial monthly fee will be due February 22 and your next monthly fee will be due on March 21. The amount of the monthly fee is described in the Site. The transaction fee is a percentage of the gross amount (if any) you charged your customer/site visitor for the month, regardless of whether you actually collected such amount from your customer/site visitor or whether you grant your customer/site visitor a refund. The gross amount includes without limitation shipping and handling and taxes and excludes refunds or other credits. The percentage amount is described in the Site. Transaction fees are payable on the first calendar day of each month with respect to the gross amounts you charged for the prior month. If you fail to pay the fees when due or your credit card fails, your account will automatically be suspended and your web sites shut down without notice. If your account is suspended for any reason, any amounts due on your account will immediately become due and payable. Vivitech® reserves the right to immediately charge any amounts you have not previously disputed to the billing method that you are using. Neither the monthly fee nor the transaction fee shall be refunded for any reason.
2.2. Service Terms. We may change our fees from time to time. Such changes are effective after we provide you with at least fourteen days' notice of the changes by posting the changes on the Site. We may choose to temporarily change our fees for our services for promotional events (for example, free listing days) and such changes are effective when we post the temporary promotional event on the Site. We may in our sole discretion change some or all of our services at any time. If we introduce a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with using our service and the Site and all applicable taxes.
3. Gigshowcase.com Credits. Users do not purchase exclusive rights to Web pages created using gigshowcase.com. Vivitech® may, in our sole discretion, and without your consent or payment to you, place references to gigshowcase.com and its affiliates on any Web page within our site.
4. Gigshowcase.com is a tool. Gigshowcase.com is a tool for creating websites. We are not involved in any transaction between gig hosts and customers/site visitors. As a result, we have no control over the quality, safety or legality of the events or other content, the truth or accuracy of the listings, or the ability of gig hosts to produce an event. We cannot ensure that a gig host or customer/site visitor will actually complete a transaction or that an event will be held. Consequently, we do not transfer legal rights with respect to transaction, and nothing in this agreement shall modify the governing provisions of the Uniform Commercial Code.
5. Identity Verification. We use many techniques to verify the accuracy of the information our users provide us when they register on the Site. However, because user verification on the Internet is difficult, Vivitech® cannot and does not confirm each user's purported identity.
6. Release. Because we are merely a tool for creating websites, you release Vivitech Software, LLC (and our officers, directors, agents, subsidiaries, joint ventures, affiliates and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the use of a website created using gigshowcase.com. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
7. Information Control. We do not control the information provided by users that is made available through our system. You may find user's information to be offensive, harmful, inaccurate, or deceptive. Please use caution and common sense when using the Site. Please note that there are also risks of dealing with underage persons or people acting under false pretense. By using this Site, you agree to accept such risks and Vivitech Software, LLC is not responsible for the acts or omissions of users on the Site or on websites created using gigshowcase.com.
8. Fraud. Without limiting any other remedies, Vivitech® may suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.
9. Interference. You may not interfere with other user's event listings or transactions.
10. Your Information.
10.1. Definition. "Your Information" is defined as any information you provide to us or other users in the registration or event listing process. You are solely responsible for Your Information, and we act as a passive conduit for your online publication of Your Information.
10.2. Restricted Activities. Your Information, your event and your activities on the Site shall not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the sale of counterfeit or stolen items; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) be defamatory, trade libelous, unlawfully discriminatory, threatening, or harassing; (f) be obscene or contain or involve pornography or be harmful to minors; (g) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and (i) link directly or indirectly to or include descriptions of goods, services or events that: (aa) are prohibited under this Agreement; or (bb) you do not have a right to link to or include. Furthermore, you may not list any event, services or goods on the Site (or consummate any transaction that was initiated using our service or via a website creating using the Site) that, by paying to us the fees could cause us to violate any applicable law, statute, ordinance or regulation.
11. Access and Interference. Much of the information on the Site is updated on a real time basis and is proprietary or is licensed to gigshowcase.com and/or Vivitech® by our users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Your Information) from the Site without the prior expressed written permission of Vivitech® and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
12. Breach. Without limiting other remedies, we may limit your activity, immediately remove your site or event listings, warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your usership and refuse to provide our services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us.
14. No Warranty. WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state. You acknowledge that our Site, and any site you create through our services, may occasionally be unavailable. We expressly and specifically disclaim damages to you for any unavailability less than 24 hours a month. Our damages with respect to any unavailability at or greater than 24 hours a month shall be limited to the pro-rata monthly fee. We expressly and specifically disclaim damages arising as a consequence of any unavailability for any reason.
15. Liability Limit. IN NO EVENT SHALL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
16. Indemnity. You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
17. Legal Compliance. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your listing of events and soliciting and consummating transactions.
18. No Agency. You and Vivitech® are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
19. Notices. Except as explicitly stated otherwise, any notices shall be given by postal mail to Vivitech Software, LLC, Attn: Jennifer A. Davis, 16417 CR 325, Buena Vista, CO 81211 (in the case of providing notice to us) or to the email address you provide to gigshowcase.com during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to gigshowcase.com during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.
20. Resolution of Disputes.
20.1. Policy. If a dispute arises between you and us, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you agree that any claim or controversy at law or equity that arises out of this Agreement or our services ("Claims") shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation. All Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section by the first party to file a Claim. Should either party file an action contrary to this Section, the other party may recover attorneys' fees and costs up to $1000, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.
20.2. Binding Arbitration. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, you or Vivitech® may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association or JAMS in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
20.3. Court. Alternatively, any Claim may be adjudicated by a court of competent jurisdiction located in Chaffee County, Colorado or where the defendant is located (in our case Chaffee County, Colorado, and in your case your home address or principal place of business). You agree to submit to the personal jurisdiction of the courts located within Chaffee County, Colorado.
20.4. Alternative Dispute Resolution. Alternatively, we will consider use of other alternative forms of dispute resolution, such as binding arbitration to be held in Chaffee County, Colorado or another location mutually agreed upon by the parties.
21. Additional Terms. We are not responsible for investigating transactions between gig hosts and customers/site visitors and are not responsible for any such activities including, without limitation, a gig hosts failure to hold an event or provide listed goods or services, or a customer/site visitors failure to pay for tickets, fees, goods, services or other transactions, or other transaction failures. Independent legal recourse may, of course, be available.
22. General. This Agreement shall be governed in all respects by the laws of the State of Colorado as such laws are applied to agreements entered into and to be performed entirely within Colorado between Colorado residents. We do not guarantee continuous, uninterrupted or secure access to our services, and operation of the Site may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by gigshowcase.com in accordance with the "Notices" section, above, in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. The Sections regarding Fees and Services, Release, License, Access and Interference, No Warranty, Liability Limit, Indemnity, Resolution of Disputes and Additional Terms shall survive any termination or expiration of this Agreement.
23. Disclosures. The services hereunder are offered by gigshowcase.com, a trademark of Vivitech Software, LLC, registered to do business in Colorado. Gigshowcase.com is also registered as a tradename of Vivitech Software, LLC in Colorado. Vivitech® is a registered service mark of Vivitech Software, LLC.