Provi General Terms of
Service
Last Updated:
November 8, 2021
These General Terms of Service
(these “Terms”
or this “Agreement”) are a legally
binding contract between you and Tiz, Inc. DBA Provi
(collectively "Provi" or "we", "us",
or "our")
regarding your use of the Provi website located at Provi.com
(including any versions optimized for viewing on a wireless or
tablet device) and all other interactive features, services, and
communications provided by Provi (collectively, the
"Site"), however accessed
and/or used, that are operated, made available, or produced and
maintained by us. In addition to the information or content made
available on the Site ("Content"), the Site provides you with
various tools to manage your beverage business through the Provi
communication and ecommerce product display platform (the
"Service"). By using
the Service, you agree to our
Privacy Policy
and any additional terms
specific to the Services you use. The Service is offered to
entities that commercially distribute alcoholic beverage products
(each, a "Distributor”), and to their
customers who are licensed to purchase and re-sell alcoholic
beverage products to individual customers (each, a
"Retailer" and
together with Distributors, “user” or
“you”). Additionally, the Service is only offered to Retailers or
Distributors who are licensed by state and local authorities in
cities where the Service is available (the
“Provi Markets”).
BY USING OUR SITE OR BY CLICKING TO
AGREE WHEN THE OPTION IS MADE AVAILABLE TO YOU, YOU ARE AGREEING TO
THESE TERMS AND CONSENTING TO MODIFICATIONS TO TERMS CONTROLLING
YOUR PRIOR USE OF THE SITE IF APPLICABLE. IF YOU ARE ENTERING INTO
THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR
ACCEPTANCE REPRESENTS THAT YOU ARE 21 YEARS OF AGE OR OLDER, HAVE
ALL NECESSARY RIGHT, POWER, AUTHORITY AND AUTHORIZATION TO BIND
SUCH COMPANY OR ENTITY TO THIS AGREEMENT, TO MAKE PURCHASES THROUGH
THE SERVICE AND TO ENSURE PAYMENT THEREFORE, IN WHICH CASE THESE
TERMS SHALL APPLY TO YOUR ENTITY. IF YOU DO NOT AGREE TO
THESE TERMS AND CONDITIONS, PLEASE DO NOT USE THE SITE OR SERVICES
AND EXIT IMMEDIATELY. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE
TERMS FROM TIME TO TIME AND BY POSTING UPDATED TERMS ON THIS
PAGE.
The Service enables Retailers to place
orders with a Distributor or its sales representatives (each a
“Distributor Sales
Representative”), and for such
Distributor or Distributor Sales Representatives to communicate
with Retailers about products and orders. Provi is not a Retailer,
Distributor, Agent, or Representative of any Distributor or
Retailer. Provi offers information and tools to connect Retailers
and Distributors and facilitate order placement. It is up to
independent Distributors and Distributor Sales Representatives to
offer and distribute products and to Retailers to order those
products, which may be arranged through the use of the
Service.
- Eligibility. The Site and Service
are offered and available to you if you meet and acknowledge the
following requirements:
- You are 21 years of age
or older, and
- You or your business
have all necessary licenses from applicable state and local
government regulatory or licensing authorities in the Provi Markets
to lawfully buy and/or sell alcoholic beverages on a commercial
basis, and all such licenses are in good standing and in full force
and effect, and
- You are located within
the Provi Markets or otherwise located in a jurisdiction where your
access to our Site is not prohibited, and
- You acknowledge that
Provi makes no promise that the Site or Services available on the
Site are appropriate or available for use outside of the Provi
Markets including in territories where its contents are illegal or
prohibited. If you choose to access the Site from locations outside
of the Provi Markets, you do so at your own risk. It is your
responsibility to ascertain and obey all applicable local, state,
federal and international laws (including minimum age requirements)
in regard to Services that you subscribe to on the Site. We are not
responsible for non-compliance with any applicable law or any
resulting civil and criminal penalties. We may, in our sole
discretion, refuse to offer the Site or Services to any person or
entity and change its eligibility criteria at any time.
- Access License and
Restrictions. Provi grants you a
limited, revocable, non-exclusive, non-transferable license to
access and use the Site or its Content solely for their intended
purpose. This license does not include: any right by you to
authorize any third party use of the Site; any collection and use
of any Content, descriptions, any derivative use of the Site; or
any use of data mining, robots, or similar data gathering and
extraction tools. The Site and/or any portion of the Site may not
be reproduced, sold, resold, visited or otherwise exploited for any
commercial purpose without Provi’s express written consent.
You may not frame or utilize framing techniques to enclose any
trademark, logo or other proprietary information (including images,
text, page layout or form) of Provi, its content providers or its
affiliates without Provi’s express written consent. You may
not use any meta tags or any other "hidden text" utilizing our name
or trademarks without our express written consent. 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) interfere
or attempt to interfere with the proper working of the Site or any
activities conducted on the Site; or (iii) bypass any measures we
may use to prevent or restrict access to the Site. Any unauthorized
use automatically terminates the permissions and/or licenses
granted by us to you.
- Orders, Payments and
Billing. Provi may, in its sole
discretion, charge a license, subscription, or service fee for the
use of the Service as Provi may determine from time to time
(“Paid
Services”). Provi will notify
you of any fees applicable to Paid Services prior to incurrence.
Please note that any payment terms presented to you in the process
of using or signing up for a Paid Service are deemed part of this
Agreement.
- Distributors and/or
their Sales Representatives control their own acceptance of orders
and will have the option to reject any order they deem to be
invalid or modify any order based on variations in pricing or
stock. Provi makes no guarantees regarding the availability,
pricing, accuracy or timely delivery of any products ordered by you
through the Service. Any dispute regarding an order must be
resolved between the Retailer and the applicable Distributor or
Distributor Sales Representative, and each Provi user agrees to
fully release Provi from any such claims.
- The prices displayed
through the Services are quoted in U.S. currency and are valid only
in their respective Provi Markets. Prices are subject to change at
any time and Provi makes no representations or guarantees about the
accuracy of any discounted pricing offered by a Distributor Sales
Representative to a Retailer. Sales tax will be determined by the
Distributor. Product deliveries to Retailers will be coordinated by
their respective Distributors. Any payment terms presented to you
in the process of purchasing products are deemed part of these
Terms. You are responsible for making your own determinations that
products ordered through the Service are suitable. Retailers are
responsible for paying for ordered products upon receipt of final
invoice and delivery of ordered products (or acceptable
replacement) from Distributors. Without waiving any of our other
rights or remedies, Provi may refuse additional orders and suspend
any Services until all overdue amounts are paid in
full.
- We may use third-party
payment processors (the “Payment
Processors”) to process certain
orders in the Services and bill you through a payment account
linked to your Account on the Services (your
“Billing Account”). The processing of payments will be subject to the
terms, conditions and privacy policies of the Payment Processors in
addition to the terms of this Agreement (“Payments Platforms”). You have
the right to access and use the Payments Platforms solely for your
use to process transactions on behalf of your customers. You are
prohibited from reverse engineering, disassembling or modifying the
Payments Platforms or using the Payments Platforms in violation of
any applicable law. The Payment Processors disclaim liability for
damages directly to you, whether direct or indirect, incidental or
consequential, arising in connection with your use of the Payments
Platforms. The Payment Processors disclaim any warranty of any kind
directly to you, including any warranty of title, merchantability,
fitness for a particular purpose or
non-infringement.
- We are not responsible
for Payment Processor errors. By choosing to use any Paid Services
or purchase products, you agree to pay us or the provider (where
applicable) all charges at the prices then in effect for any use of
such Paid Services in accordance with the applicable payment terms,
and you authorize us, through the Payment Processors, to charge
your purchase utilizing your chosen payment method (your
“Payment Method”). You agree to make payment using that selected
Payment Method. We reserve the right to correct any errors or
mistakes that may be made even after payment has already been
requested or received. The terms of your payment will be based on
your payment method and may be determined by agreements between you
and the financial institution, credit card issuer or other provider
of your chosen Payment Method. If we, through the Payment
Processors, do not receive payment from you for any reason, you
agree to pay all amounts due on your Billing Account upon
demand.
- YOU MUST PROVIDE
CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING
ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR
BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN
BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION
DATE). YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSORS IF
YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU
BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE
UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF
YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE
THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES
UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID
SERVICES AS SET FORTH ABOVE.
- Your non-termination or
continued use of a Paid Service reaffirms that we are authorized to
charge your payment method for that Paid Service. We may submit
those charges for payment, and you will be responsible for such
charges. This does not waive our right to seek payment directly
from you. Your charges may be payable in advance, in arrears, per
usage, or as otherwise described when you initially selected to use
the Paid Service.
- Any free trial or other
promotion that provides access to a Paid Service must be used
within the specified time of the trial. You must stop using a Paid
Service before the end of the trial period in order to avoid being
charged for that Paid Service. If you cancel prior to the end of
the trial period and are inadvertently charged for a Paid Service,
please contact us at support@provi.com.
- TAB Lines of
Credit. Provi may, in its sole discretion,
make available to you its commercial line of credit program known
as “TAB”. Provi will notify you if you are operating in
a Provi Market in which TAB is available, and any use of your TAB
will be subject to the
TAB Terms of Service
which are incorporated herein by reference.
- Privacy. Data collection and use, including data
collection and use of Personal Information and Business Data (as
defined below) is governed by
Provi’s Privacy
Policy which is incorporated into and
is a part of this Agreement. You are encouraged to read
Provi’s Privacy Policy as its terms are important to use and
your use of the Site and Services.
- Electronic
Communications. You consent to
receive communications from us electronically. We will communicate
with you by e-mail or by posting notices on the Site. You agree
that all agreements, notices, disclosures, and other communications
we provide to you electronically satisfy any legal requirement that
such communications be in writing. We reserve the right to send you
marketing and promotional emails. You may opt out of receiving
marketing and promotional emails from us by following the
instructions enclosed within those emails. If you opt out, we may
still send you non-promotional emails, such as emails about your
account or our ongoing business relations. You may also send
requests about contact preferences or changes to personal
information, including requests to opt out of sharing personal
information with third parties, to our contact information
below.
- Copyright and
Ownership. All content (other
than User Submissions defined below) featured or displayed on the
Site or as part of the Services, including without limitation text,
graphics, photographs, images, moving images, sound, and
illustrations ("Content"), is owned by Provi, its licensors, vendors, agents and/or
its Content providers. All elements of the Site, including without
limitation the general design and the Content, are protected by
trade dress, copyright, moral rights, trademark and other laws
relating to intellectual property rights. The Site and the Services
may only be used for the intended purpose for which they are being
made available and subject to these Terms.
- Except as may be
otherwise indicated in specific documents within the Site or as
permitted by copyright law, you are authorized to view copyrighted
material found on our Site solely for the purposes intended by
Provi. In no event will you be permitted to copy, distribute,
transmit, display, reproduce, publish, license, create derivative
works from, transfer, sell, download or store any copyrighted
material locally without Provi’s express written permission.
Notwithstanding the foregoing, you will be permitted to print and
save reports, agreements, and other documents made available to
you.
- In accessing the Site
and Services, you may post your own Content on our Site including
messages, photos, and other information about your business or
products, ("User
Submissions"), and in so doing you
expressly grant us a non-exclusive, royalty-free, worldwide, right
to use, reproduce, modify, publish, translate, distribute, perform
and display Content contained in your User Submission, in whole or
in part, and in any form to promote and market the Site and/or
Service on any platform or channel, and to make available the
Content to other users of the Site and Services, in perpetuity
throughout the universe. Please note that all of the following
licenses are subject to our Privacy Policy to the extent they
relate to User Submissions that are also your
personally-identifiable information.
- You may also provide us
with data about your company’s alcoholic beverage product
inventory and/or transaction information and product
information (“Business
Data”), and in so doing you
expressly grant us and our affiliates and service providers, and
each of their and our respective licensees, successors, and assigns
the right to use, reproduce, modify, perform, display, distribute,
and otherwise disclose to third parties any such material, whether
or not in aggregate form, for the purpose of supporting
Provi’s business (including without limitation, for purposes
of providing, improving, testing, operating, promoting and
marketing the Site or Service or any other product or service). You
represent and warrant that you own or control all rights in and to
the Business Data and have the right to grant the license granted
above to us and our affiliates and service providers, and each of
their and our respective licensees, successors, and assigns. You
acknowledge and agree that Provi may internally use Business Data
and freely use and make available Business Data for Provi’s
business purposes. The terms of this section shall survive any
termination of any order or these Terms.
- We may provide users an
opportunity to post comments, and other content; write and send
communications (e.g. email, text message/SMS, etc.); submit
suggestions, ideas, comments, questions, or other information; or
otherwise interact with others and share thoughts, information and
materials. BY SIGNING UP FOR THE SERVICES, YOU AGREE TO RECEIVE
COMMUNICATIONS FROM OR THROUGH PROVI, AND YOU REPRESENT AND WARRANT
THAT EACH PERSON YOU REGISTER FOR THE SERVICES OR FOR WHOM YOU
PROVIDE A WIRELESS PHONE NUMBER HAS CONSENTED TO RECEIVE
COMMUNICATIONS FROM OR THROUGH PROVI.
- You are prohibited from
using the Site or the Services to post or send any unlawful,
infringing, threatening, defamatory, libelous, obscene,
pornographic or profane material or any material that infringes or
misappropriates third party intellectual property or could
constitute or encourage conduct that would be considered a criminal
offense or give rise to civil liability, or otherwise violate any
law. You further understand and agree that sending unsolicited
advertisements or "spam" to any user of the Site is expressly
prohibited by this Agreement.
- User Submissions do not
represent the views of Provi or any individual associated with
Provi, and we do not control this Content. In no event shall you
represent or suggest, directly or indirectly, Provi’s
endorsement of user published Content. We are under no obligation
to monitor, edit, or control User Submissions, and will not be in
any way responsible or liable for User Submissions or any failure
to review or act upon User Submissions. Provi may, however, at any
time and without prior notice, screen, remove, edit, or block any
User Submissions that violates these Terms or is otherwise
objectionable.
- All trademarks, service
marks and trade names of Provi or its licensors used herein
(including but not limited to: Provi name, Provi corporate logo,
the Site name, the Site design, and any logos) (collectively
"Marks") are trademarks or
registered trademarks of Provi or its affiliates, partners, vendors
or licensors. You may not use, copy, reproduce, republish, upload,
post, transmit, distribute, or modify Provi’s trademarks in
any way, including in advertising or publicity pertaining to
distribution of materials on the Site, without Provi’s prior
written consent.
- Reservation of
Rights. Provi reserves all rights not
expressly granted to you in these Terms. Except for the limited
rights and licenses expressly granted under these Terms, nothing in
these Terms grants, by implication, waiver, estoppel, or otherwise,
to you or any third party any intellectual property rights or other
right, title, or interest in or to Provi’s intellectual
property.
- User Account Obligations and
Security. You understand that
you will need to create an account to have access to all of the
parts of the Site and to the Services. In consideration of your use
of the Site and Services, you will: (a) provide true, accurate, and
complete information about yourself and your business as prompted
by the account registration pages, including but not limited to any
requested license information with respect to applicable state,
local or federal laws and regulations ("Registration Data") and (b) maintain
and promptly update the Registration Data to keep it true,
accurate, current and complete. You are entirely responsible for
the security and confidentiality of your password and account.
Furthermore, you are entirely responsible for any and all
activities that occur under your account. You agree to immediately
notify us of any unauthorized use of your account or any other
breach of security of which you become aware. You are responsible
for taking precautions and providing security measures best suited
for your situation and intended use of the Services and
Site.
- Advertising
Rights. Provi reserves the right
to sell, license and/or display any advertising, attribution,
links, promotional and/or distribution rights in connection with
your User Submissions, and Provi and its licensors or affiliates
will be entitled to retain any and all revenue generated from any
sales or licenses of such advertising, attribution, links, or
promotional or distribution rights. Nothing in these additional
terms obligates or may be deemed to obligate Provi to sell, license
or offer to sell or license any advertising, promotion or
distribution rights.
- Representations and
Warranties. You represent that
you, and your employees, are fully able and competent to satisfy
the terms, conditions, and obligations herein, and your use of the
Site and Services is and will be in compliance with all applicable
laws.
- Third Party
Resources. Creating or
maintaining any link from another web site to any page on the Site
without our prior written permission is prohibited. From time to
time, the Site or Services may contain links to websites that are
not owned, operated or controlled by Provi or its affiliates. If
you use these links, you will leave the Site. Neither we nor any of
our respective affiliates are responsible for any content,
materials or other information located on or accessible from any
other website. Neither we nor any of our respective affiliates
endorse, guarantee, or make any representations or warranties
regarding any links that direct you away from the Service or any
integration with outside software, including but not limited to
User Submissions sent and received through our messaging platform
or posted by Distributors to our Storefronts feature
(“Third Party
Resources”). The use of the Third
Party Resources is at your own discretion and risk and with
agreement that you will be solely responsible for any results or
lack thereof from such activities. When visiting or using these
Third Party Resources or using their services as-integrated into
the Service, you are subject to their privacy policies as well as
any terms of use or service.
- Disclaimers. YOUR USE OF THE SITE AND THE SERVICES IS AT YOUR
RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR
THROUGH THE SITE AND SERVICES ARE PROVIDED "AS IS" WITHOUT ANY
WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT OF
INTELLECTUAL PROPERTY. NEITHER PROVI, NOR ANY OF ITS AFFILIATES
WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS
OR SERVICES PROVIDED ON OR THROUGH THE SITE. THE INFORMATION,
MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE SITE MAY BE OUT
OF DATE, AND NEITHER PROVI, NOR ANY OF ITS AFFILIATES MAKES ANY
COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION,
MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED
WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE
REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROVI OR
THROUGH PROVI SITE AND SERVICES WILL CREATE ANY WARRANTY NOT
EXPRESSLY MADE HEREIN.
- Limitations of
Liability. Provi does not assume
any responsibility, or will be liable, for any damages to, or any
viruses that may infect your computer or other property caused by
or arising from your access to, use of, browsing, or downloading
materials from the Site or Service. IN NO EVENT WILL PROVI, OR ANY
OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES,
AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE
CREATION, PRODUCTION OR TRANSMISSION OF THE SITE OR SERVICES, BE
LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,
THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS
INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE
RESULTS OF USE OF THE SITE OR SERVICES, WHETHER BASED ON WARRANTY,
CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE
THAT PROVI SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE
DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND
THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY
WITH YOU. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO
THE EXTENT PROHIBITED BY LAW. IN THE EVENT OF ANY PROBLEM WITH THE
SITE OR ANY CONTENT OR SERVICES THEREON, YOU AGREE THAT YOUR SOLE
REMEDY IS TO CEASE USING THE SITE OR SERVICE. IN NO EVENT
SHALL PROVI'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND
CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT
LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE GREATER OF (A) ONE
HUNDRED DOLLARS (US $100.00) OR (B) THE VALUE OF FREES PAID (IF
ANY) FOR PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE
(3) MONTH PERIOD.
- Indemnity. You agree to defend, indemnify and hold Provi and
any affiliated company or individual harmless from any and all
liabilities, costs, and expenses, including reasonable
attorneys’ fees, related to or in connection with (i) the use
of the Site, the Services or any Third Party Resources, or your
placement or transmission of any message or information by you or
your authorized users; (ii) your violation of any term of this
Agreement, including without limitation, your breach of any of the
representations and warranties above; (iii) your violation of any
third party right, including without limitation any right of
privacy, publicity rights or Intellectual Property Rights; (iv)
your violation of any law, rule or regulation of the United States
or any other country; (v) any claim or damages that arise as a
result of any User Submission that you provide to Provi; or (vi)
any other party's access and use of the Site with your unique
username, password or other appropriate security code.
- Release. In the event that you have a dispute with one or
more other users of the Site or any Third Party Resource integrated
with or linked from the Site or included in the Services, you
release Provi (and our officers, directors, agents, subsidiaries,
joint ventures 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 such
disputes.
- Termination. You or we may suspend or terminate your account or
your use of the Site at any time, for any reason or for no reason.
You are personally liable for any charges incurred through your
account prior to termination. We may also block your access to our
Site or Services in the event that (a) you breach this Agreement;
(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.
- Force Majeure. Neither Provi nor you shall be responsible for
damages or for delays or failures in performance resulting from
acts or occurrences beyond their reasonable control, including,
without limitation: fire, lightning, explosion, power surge or
failure, water, acts of God, war, revolution, civil commotion,
pandemic or acts of civil or military authorities or public
enemies: any law, order, regulation, ordinance, or requirement of
any government or legal body or any representative of any such
government or legal body; or labor unrest, including without
limitation, strikes, slowdowns, picketing, or boycotts; inability
to secure raw materials, transportation facilities, fuel or energy
shortages, or acts or omissions of other common
carriers.
- General. All matters relating to the Site, Services and
this Agreement and any dispute or claim arising therefrom or
related thereto (in each case, including non-contractual disputes
or claims), shall be governed by and construed in accordance with
the internal laws of the State of Illinois. A printed version of
this Agreement will be admissible in judicial and administrative
proceedings based upon or relating to these Terms to the same
extent and subject to the same conditions as other business
documents and records originally generated and maintained in
printed form.
- Arbitration
Agreement. Please read the following
ARBITRATION AGREEMENT carefully because it requires you to
arbitrate certain disputes and claims with Provi and limits the
manner in which you can seek relief from Provi. Both you and Provi
acknowledge and agree that for the purposes of any dispute arising
out of or relating to the subject matter of these Terms,
Provi’s officers, directors, employees and independent
contractors (“Personnel”) are
third-party beneficiaries of these Terms and that upon your
acceptance of these Terms, Personnel will have the right (and will
be deemed to have accepted the right) to enforce these Terms
against you as the third-party beneficiary hereof.
- The parties to these
Terms shall use their best efforts to settle any dispute, claim,
question, or disagreement arising out of or relating to the subject
matter of these Terms directly through good-faith negotiations,
which shall be a precondition to either party initiating
arbitration. If such negotiations do not resolve the dispute, it
shall be finally settled by binding arbitration in Chicago,
Illinois. To the fullest extent permitted under applicable law, any
arbitration between you and Provi will be settled under the Federal
Arbitration Act, and governed by the Commercial Dispute Resolution
Procedures and the Supplementary Procedures for Consumer Related
Disputes (collectively, “Rules”) of the American
Arbitration Association (“AAA”), as modified by these
Terms, and will be administered by the AAA. The Rules and filing
forms are available online at www.adr.org, by calling the AAA at
1-800-778-7879, or by contacting Provi. Judgment upon the award
rendered by such arbitrator may be entered in any court of
competent jurisdiction
- The Rules will govern
payment of all arbitration fees. If the arbitrator finds that
either the substance of your claim or the relief sought in the
Demand is frivolous or brought for an improper purpose (as measured
by the standards set forth in Federal Rule of Civil Procedure
11(b)), then you agree to reimburse Provi for all monies previously
disbursed by it that are otherwise your obligation to pay under the
Rules. Regardless of the manner in which the arbitration is
conducted, the arbitrator must issue a reasoned written decision
sufficient to explain the essential findings and conclusions on
which the decision and award, if any, are based. The arbitrator may
make rulings and resolve disputes as to the payment and
reimbursement of fees or expenses at any time during the proceeding
and upon request from either party made within 14 days of the
arbitrator’s ruling on the merits.
- YOU AND PROVI WAIVE ANY
CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL
IN FRONT OF A JUDGE OR JURY. You and Provi are instead choosing to
have claims and disputes resolved by arbitration. Arbitration
procedures are typically more limited, more efficient, and less
costly than rules applicable in court and are subject to very
limited review by a court. In any litigation between you and Provi
over whether to vacate or enforce an arbitration award, YOU AND
PROVI WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have
the dispute be resolved by a judge.
- ALL CLAIMS AND DISPUTES
WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED
OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.
CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED
JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
If however, this waiver of class or consolidated actions is deemed
invalid or unenforceable, neither you nor Provi is entitled to
arbitration; instead all claims and disputes will be resolved in a
court as set forth below.
- You have the right to
opt out of the provisions of this Section by sending written notice
of your decision to opt out to the address listed below postmarked
within thirty (30) days of first accepting these Terms. You must
include (i) your name and residence address, (ii) the email address
and/or telephone number associated with your Account, and (iii) a
clear statement that you want to opt out of these Terms arbitration
agreement. If you send the opt-out notice in, and/or in any
circumstances where the foregoing arbitration agreement permits
either you or Provi to litigate any dispute arising out of or
relating to the subject matter of these Terms in court, then the
foregoing arbitration agreement will not apply to either party, and
both you and Provi agree that any judicial proceeding (other than
small claims actions) will be brought in the state or federal
courts located in, respectively, Cook County, Illinois, or the
federal district in which that county falls.
- If the prohibition
against class actions and other claims brought on behalf of third
parties contained above is found to be unenforceable, then all of
the preceding language in this Arbitration Agreement section will
be null and void. This arbitration agreement will survive the
termination of your relationship with Provi.
- To the fullest extent
permitted under applicable law, no action arising out of, in
connection with, or relating to these Terms shall be brought by you
more than one (1) year after the accrual of the cause of action.
This period shall not be extended for any reason, except by the
written consent of both parties. All statutes or provisions of law
which would toll or otherwise affect the running of the period of
limitation are hereby waived, and no such statute or provision of
law shall operate to extend the period limited in this paragraph,
to the fullest extent permitted under applicable law.
- Warranty Disclaimer.
We do not guarantee continuous, uninterrupted or
secure access to our Site or 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 Provi 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. These Terms set forth the entire
understanding and agreement between us with respect to the subject
matter hereof. All provisions herein regarding Site Access
License and Restrictions, Limitations of Liability, Indemnity,
Releases, and any other terms that are intended to survive any
termination of the customer relationship or use of the Services
shall survive any termination or expiration of this
Agreement.
- Consumer Protection
Notice. Please note that, if you are a
consumer, the limitations in these Terms are intended to be only as
broad and inclusive as is permitted by the laws of your state of
residence.
- Entire
Agreement. These Terms are the
entire agreement between you and Provi and supersede any prior
understandings or agreements (written or oral), with the exception
of any additional terms and conditions that may be specifically
agreed to and applicable to Paid Services.
- Additional
Assistance. If you do not
understand any of the foregoing Terms or if you have any questions
or comments, we ask you to contact us at by email
at: support@provi.com.
- Copyright
Notice. All Site design,
graphics, text selections, arrangement and all software are
Copyright © 2020 Provi, Inc. or its licensors. ALL RIGHTS
RESERVED.