Effective Date: August 1st 2019
Last Updated Date: October 2nd 2019
BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR USING THE WEBSITE OR SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH VISOR, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF AN ORGANIZATION SUCH AS YOUR EMPLOYER. IF YOU ARE USING THE WEBSITE OR SERVICES ON BEHALF OF AN ORGANIZATION SUCH AS YOUR EMPLOYER, YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF THAT ORGANIZATION, AND REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THIS AGREEMENT ON THE ORGANIZATION'S BEHALF. IN THAT CASE, “YOU” AND “YOUR” WILL REFER TO THAT ORGANIZATION. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU ARE AN ENTITY, THE TERM YOU SHALL REFER TO EACH OF YOUR EMPLOYEES AND INDEPENDENT CONTRACTORS WHO ARE AUTHORIZED BY YOU TO USE THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE THE WEBSITE OR SERVICES.
PLEASE BE AWARE THAT SECTION 17 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR USE OF THE WEBSITE AND/OR THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
1. USE OF THE SERVICES AND VISOR PROPERTIES. The Software (defined in Section 1.1), the Website , the Services, and the information and content available on the Website and in the Services (as these terms are defined herein) (each, a “Visor Property” and collectively, the “Visor Properties”) are protected by copyright and other intellectual property laws throughout the world. Subject to the Agreement, Visor grants you a limited license to reproduce portions of Visor Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Visor in a separate license, your right to use any and all Visor Properties is subject to the Agreement.
1.1 Visor Software. Use of any software and associated documentation that is made available via the Website and the Services (“Software”) is governed by the terms of the Agreement. At no time will Visor provide you with any tangible copy of our Software. Visor shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. Use of the Software will be governed by the Agreement. Subject to your compliance with the Agreement, Visor grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
1.2 Updates. You understand that Visor Properties are evolving. As a result, Visor may require you to accept updates to Visor Properties that you have installed on your computer or mobile device. You acknowledge and agree that Visor may update Visor Properties with or without notifying you. You may need to update third-party software from time to time in order to use Visor Properties.
1.3 Third-Party Materials. As a part of Visor Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Visor to monitor such materials and that you access these materials at your own risk.
2.1 Registering Your Account. In order to access Visor Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website or through the Services (“Account”).
2.2 Registration Data. In registering an account on Visor, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (a) at least eighteen (18) years old; (b) of legal age to form a binding contract; and (c) not a person barred from using Visor Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree that you are responsible for activity on your Account, whether or not you authorized that activity. You are responsible for safeguarding your Account login credentials, and you agree to (y) notify Visor immediately of any unauthorized use of your Account or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Visor has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Visor has the right to suspend or terminate your Account and refuse any and all current or future use of Visor Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use Visor Properties if you have been previously removed by Visor, or if you have been previously banned from any of Visor Properties.
2.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Visor Properties, including but not limited to, a mobile device that is suitable to connect with and use Visor Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Visor Properties.
3.1 Types of Content. You acknowledge that all content and data (collectively, “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Visor, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Visor Properties (“Your Content”), and that you and other Registered Users of Visor Properties, and not Visor, are similarly responsible for all Content that you and they Make Available through Visor Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Visor has no obligation to pre-screen Content (including, but not limited to, User Content), although Visor reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. Without limiting the foregoing, Visor shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
3.3 Storage. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Visor retains the right to create reasonable limits on Visor’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on Visor and as otherwise determined by Visor in its sole discretion.
4.1 Visor Properties. Except with respect to Your Content and User Content, you agree that Visor and its suppliers own all rights, title and interest in Visor Properties (including but not limited to, any computer code, objects, audiovisual effects, methods of operation, moral rights, documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Visor Properties.
4.2 Trademarks. Visor’s stylized name and all related graphics, logos, service marks and trade names used on or in connection with any Visor Properties or in connection with the Services are the trademarks of Visor and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Visor Properties are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in Visor Properties.
4.4 Your Content. Visor does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Visor Properties, you represent that you own and/or have the right to post Your Content through the Website and Services.
4.5 License to Your Content. Subject to any applicable account settings that you select, you grant Visor a fully paid, royalty-free, and non-exclusive right and license to use Your Content (in whole or in part) for the purposes of operating and providing Visor Properties to you. You agree that you, not Visor, are responsible for all of Your Content that you Make Available on or in Visor Properties.
4.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Visor regarding the Website or Services through suggestions, feedback, wikis, forums or similar pages (“Feedback”) is at your own risk and that Visor has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Visor a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Visor Properties and/or Visor’s business.
5. USER CONDUCT.
5.1 Use You may only use the Visor Properties as permitted by law, including all applicable federal, state, local or international laws and regulations. Do not, for example:
(a) Interfere with or damage Visor Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(b) Modify or cause to be modified any files that are a part of Visor Properties;
(c) Disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support Visor Properties; or (ii) the enjoyment of Visor Properties by any other person;
(d) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon Visor Properties, or other attempts to disrupt Visor Properties or any other person’s use or enjoyment of Visor Properties;
(e) Attempt to gain unauthorized access to Visor Properties, accounts registered to others, or to the computers, servers or networks connected to Visor Properties by any means other than the user interface provided by Visor, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of Visor Properties;
(f) Access, tamper with or use non-public areas of Visor Properties, Visor’s computer systems, or the technical delivery systems of Visor’s providers;
(g) Attempt to probe, scan, or test the vulnerability of any Visor system or network, or breach any security or authentication measures;
(h) Disrupt or interfere with the security of, or otherwise cause harm to, Visor Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through Visor Properties or any affiliated or linked sites; or
(i) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Visor or any of Visor’s providers or any other third party (including another user) to protect Visor Properties.
(j) Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of Visor Properties (including your Account), or access to or use of Visor Properties;
(k) Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in connection with any Visor Property;
(l) Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise) in connection with Visor Properties; or
(m) Interfere or attempt to interfere with the proper functioning of Visor Properties or connect to or use Visor Properties in any way not expressly permitted by the Agreement;
(n) Systematically retrieve data or other content from Visor Properties to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods or through the use of bots, crawlers, spiders, or otherwise;
(o) Use, display, mirror or frame Visor Properties, or any individual element within Visor Properties, Visor’s name, any Visor trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Visor’s express written consent;
(p) Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through Visor Properties or that is in transit from or to Visor Properties, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by Visor Properties;
(q) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or Visor Properties, whether through the use of a network analyzer, packet sniffer or other device;
(r) Make any automated use of Visor Properties, or take any action that imposes or may impose (in Visor’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for Visor Properties;
(s) Bypass any robot exclusion headers or other measures Visor takes to restrict access to Visor Properties, or use any software, technology or device to send content or messages, scrape, spider or crawl Visor Properties, or harvest or manipulate data;
(t) Use, facilitate, create, or maintain any unauthorized connection to Visor Properties, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of Visor Properties; or (ii) any connection using programs, tools or software not expressly approved by Visor;
(u) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide Visor Properties;
(v) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through Visor Properties;
(w) Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(x) Use Visor Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
(y) Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use Visor Properties to send altered, deceptive or false source-identifying information; or
(z) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
5.2 General. In connection with your use of Visor Properties, you shall not:
(a) Make Available any Content that, in Visor’s sole discretion, (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not limited to, Visor personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(e) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(f) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(g) Stalk or otherwise harass any other user of our Visor Properties; or
(h) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
7. INTERACTIONS WITH OTHER USERS.
7.1 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Visor reserves the right, but has no obligation, to intercede in such disputes. You agree that Visor will not be responsible for any liability incurred as the result of such interactions.
7.2 Content Provided by Other Users. Visor Properties may contain User Content provided by other Registered Users. Visor is not responsible for and does not control User Content. Visor has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Registered Users at your own risk.
8. THIRD-PARTY SERVICES.
8.1 Third-Party Websites, Applications and Ads. Visor Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Visor Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Visor. Visor is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Visor provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website or Visor, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9. FEES AND PURCHASE TERMS.
9.1 General Purpose of Agreement: Sale of Service, not Software. The purpose of the Agreement is for you to secure access to the Services. All fees set forth within and paid by you under the Agreement shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Visor’s Software, and, furthermore, any use of Visor’s Software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.
9.2 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Visor with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal or other applicable payment processor account that Visor utilizes (each, a “Payment Provider”), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated Payment Provider account, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Visor with your credit card number or other Payment Provider account and associated payment information, you agree that Visor is authorized to immediately invoice your Account for all fees and charges due and payable to Visor hereunder and that no additional notice or consent is required. You agree to immediately notify Visor of any change in your billing address or the credit card or other Payment Provider account used for payment hereunder. Visor reserves the right at any time to change its prices and billing methods, either immediately upon posting on Visor Properties or by e-mail delivery to you. You acknowledge that certain credit cards or other Payment Providers may charge you foreign transaction fees or other charges. If your payment is not successfully settled for any reason, you remain responsible for any amounts not remitted to Visor. Each net new use beyond the scope of the initial Online Subscription or Order Form Subscription, as applicable, will incur an additional charge, and will be included in a true-up invoice or charged automatically via Credit Card, as applicable. Visor may terminate your subscription if you fail to promptly pay any outstanding fees.
9.3 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your annual or monthly package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Visor for the Services until Visor accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
9.4 Taxes. The payments required under Section 9.2 and Section 9.3 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Visor determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Visor shall collect such Sales Tax in addition to the payments required under Section 9.2 and Section 9.3 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Visor, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Visor for any liability or expense Visor may incur in connection with such Sales Taxes. Upon Visor’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. You are also responsible for any payment-related fees such as wire transfer or credit card processing fees.
9.5 Withholding Taxes. You agree to make all payments of fees to Visor free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Visor will be your sole responsibility, and you will provide Visor with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
9.6 Expenses. You are responsible for all fees or expenses related to accessing or using the Services that are extrinsic to the Services. This includes, without limitation, your own internet service provider fees.
9.7 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Visor’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Visor that your subscription will be automatically renewed, you will have thirty days from the date of the Visor notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Visor at email@example.com or log in and manage your subscription. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Visor to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Visor does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Visor may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
9.8 Disputes. Unless otherwise provided by the applicable Payment Provider agreement used in connection with your payment for Services, you must notify us in writing within seven (7) days after receiving your Payment Provider statement if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: firstname.lastname@example.org.
10. INDEMNIFICATION. You agree to indemnify and hold Visor, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Visor Party” and collectively, the “Visor Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Visor Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Visor reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Visor in asserting any available defenses. This provision does not require you to indemnify any of the Visor Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with Visor or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Visor Properties.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF VISOR PROPERTIES IS AT YOUR SOLE RISK, AND VISOR PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. VISOR PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF VISOR.
(a) VISOR PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) VISOR PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF VISOR PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF VISOR PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH VISOR PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS VISOR PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. VISOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Visor OR THROUGH Visor PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, VISOR MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT VISOR’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT VISOR PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD VISOR PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF VISOR PROPERTIES. YOU UNDERSTAND THAT VISOR DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF VISOR PROPERTIES.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL VISOR PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT Visor HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF VISOR PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE VISOR PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH VISOR PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON VISOR PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO VISOR PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING EXCLUSIONS OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A VISOR PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A VISOR PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A VISOR PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL VISOR PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO VISOR BY YOU DURING THE THREE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A VISOR PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A VISOR PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A VISOR PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN VISOR AND YOU.
13. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. We respect the intellectual property rights of others, and expect you to do the same. It is Visor’s policy to terminate membership privileges of any Registered User who repeatedly infringes the copyright or intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998, Visor will respond expeditiously to claims of copyright infringement committed using Visor as reported to our Designated Copyright Agent. If you believe that any materials you or others access via the Services infringe your copyright or other intellectual property rights (e.g., trademark infringement or right of publicity), please contact our Copyright Agent at the address below and provide the following information:
Upon receipt of notice as described above, we will seek to confirm the existence of the IP on Visor and take whatever action, in its sole discretion, we deem appropriate.
Our designated Copyright Agent for notices of copyright infringement and counter-notices is:
ATTN: Copyright Agent
14.2 Breach. In the event that Visor determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Visor Properties, Visor reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Visor) that you have violated the Agreement;
(b) Delete any of Your Content provided by you or your agent(s) to Visor Properties;
(c) Discontinue your registration(s) with any of Visor Properties, including any Services or any Visor community;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which Visor deems to be appropriate.
15. TERM AND TERMINATION.
15.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Visor Properties, unless terminated earlier in accordance with the Agreement.
15.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Visor Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Visor Properties, unless earlier terminated in accordance with the Agreement.
15.3 Termination of Services by Visor. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Visor is required to do so by law (e.g., where the provision of Visor, the Software or the Services is, or becomes, unlawful), Visor has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Visor’s sole discretion and that Visor shall not be liable to you or any third party for any termination of your Account.
15.4 Termination of Services by You. If you want to terminate the Services provided by Visor, you may do so by (a) notifying Visor at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Visor’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 9.7.
15.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Visor will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.6 No Subsequent Registration. If your registration(s) with or ability to access Visor Properties, or any other Visor community is discontinued by Visor due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Visor Properties or any Visor community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Visor Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Visor reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
16. INTERNATIONAL USERS. Visor Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Visor intends to announce such Services or Content in your country. Visor Properties are controlled and offered by Visor from its facilities in the United States of America. Visor makes no representations that Visor Properties are appropriate or available for use in other locations. Those who access or use Visor Properties from other countries do so at their own volition and are responsible for compliance with local law.
17. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Visor and limits the manner in which you can seek relief from us.
17.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of Visor, to any products sold or distributed through Visor, or to any aspect of your relationship with Visor, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify,; and (2) you or Visor may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
17.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Michael Yaroshefsky, 885 Avenue of the Americas, Apt 33G, New York, NY, 10001. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Visor will pay them for you. In addition, Visor will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
17.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Visor. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
17.4 Waiver of Jury Trial. YOU AND VISOR HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Visor are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other claims shall be arbitrated.
17.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Visor username (if any), the email address you used to set up your Visor account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
17.7 Severability. Except as provided in subsection 17.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
17.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Visor.
17.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Visor makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Visor at the following address: firstname.lastname@example.org
18.1 Electronic Communications. The communications between you and Visor may take place via electronic means, whether you visit Visor Properties or send Visor e-mails, or whether Visor posts notices on Visor Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Visor in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Visor provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
18.2 Publicity. Unless otherwise specified, Visor may use Customer’s name, logo and marks (including marks on Customer Properties) to identify Customer as a Visor customer on Visor's website and other marketing materials.
18.3 Release. You hereby release Visor Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Visor Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Visor Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Visor Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with Visor or any Services provided hereunder.
18.4 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Visor’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.5 Force Majeure. Visor shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.6 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Visor Properties, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.8 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Visor agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York.
18.10 Notice. Where Visor requires that you provide an e-mail address, you are responsible for providing Visor with your most current e-mail address. In the event that the last e-mail address you provided to Visor is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Visor’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Visor at the following address: firstname.lastname@example.org. Such notice shall be deemed given when received by Visor by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
18.11 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.12 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.13 Export Control. You may not use, export, import, or transfer Visor Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Visor Properties, and any other applicable laws. In particular, but without limitation, Visor Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Visor Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Visor Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Visor are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Visor products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.14 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.15 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
If you have any questions about these Terms, please contact us at email@example.com.