Provi General Terms of Service
Each Product/Service Addendum can be viewed at the respective URLs below:
Effective Date: September 1, 2023
These General Terms of Service together with any applicable Product/Service Addenda, and other attachments or exhibits hereto, (these “Terms” or this “Agreement”) are a legally binding contract between you and Tiz, Inc., and its affiliates including but not limited to SevenFifty Technologies, LLC,
BY USING OUR SITE OR BY CLICKING “CONTINUE” 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 OR CONTENT 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 SERVICES 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, CONTENT 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.
SECTION 21 OF THE TERMS GOVERNS HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 21 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. PLEASE SEE SECTION 21 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
Certain Services enable 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 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 Services.
1. Eligibility. The Site, Content, and Services 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 the available 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 agree that you will comply with all applicable laws and not cause Provi or any of its affiliates to contravene any applicable laws. You may have the option to order other restricted products, aside from alcoholic beverages, in some locations and you agree that you will comply with all applicable laws and not cause Provi or any of its affiliates to contravene any applicable laws. You are solely responsible for ensuring that your use of the Services are in compliance with all laws, rules, and regulations applicable to you and the right to access the Services is revoked where use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation.
- 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.
2. 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.
3. Orders, Payments and Billing. Provi may, in its sole discretion, charge a license, subscription, or service fee for the use of the Services 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 Paid Services 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. In the event you fail to make full payment within sixty (60) of the due date, Provi shall have the right to charge you a late fee in the amount of the lesser of either 1.5% of the current charges per month or the maximum lawful rate under applicable state law. Late fees shall accrue from the due date. You shall pay any amounts incurred by Provi in the collection of past due amounts owed including, but not limited to, reasonable attorneys’ fees and costs.
- 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, credit 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 firstname.lastname@example.org.
6. Copyright, Data and Ownership. All information, publications, mailings, or 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 or Provi owned material locally without Provi’s express written permission. Notwithstanding the foregoing, you will be permitted to internally print and save reports, agreements, and other documents made available to you.
- You shall also provide us with data about your company’s product inventory, transaction or business 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, display, distribute, and otherwise disclose to third parties any such material, whether or not in aggregate form, for the business purposes (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.
- Provi is the owner of all information Provi provides, makes accessible, or which relates to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, data derived from Business Data) (collectively, "Provi Data"). You acknowledge that Provi may compile Provi Data based on Business Data. You agree not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Provi Data, including without limitation Personal Information, except as required to perform under this Agreement. You shall keep Provi Data secure from unauthorized access and maintain the accuracy and integrity of Provi Data in your custody or control by using appropriate organizational, physical and technical safeguards. If you become aware of any unauthorized access to Provi Data, you will immediately notify Provi, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Provi. You agree to implement and use security procedures, protocols, or access credentials as reasonably requested by Provi and will be responsible for damages resulting from your failure to comply. You will not allow any third party to use the Site, Services, or Provi Data and will be responsible for damages resulting from sharing your login credentials with unauthorized third parties or otherwise permitting unauthorized access to your account. You may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Site; damage, destroy or impede the services provided through the Site; transmit injurious code; or bypass or breach any security protection on the Site. For purposes of clarity, Provi Data is Confidential Information of Provi.
- 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, INCLUDING MARKETING 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 violate 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, SevenFifty name, SevenFifty 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.
- You may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Provi with respect to the Services. Provi will have full discretion to determine whether or not to use the Feedback, and will have the full, unencumbered right to copy, distribute, transmit, display, perform, create derivative works of, use and otherwise fully exploit the Feedback in connection with its products and services without any compensation or attribution to you. You hereby assign to Provi all right, title, and interest in and to such Feedback, and Provi is free to use the feedback without payment or restriction.
7. 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.
8. 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.
9. Confidentiality. Confidential Information includes confidential, proprietary, or nonpublic information provided by the disclosing party (“Discloser”) about the Discloser’s business, including software, technology, financial information, marketing plans, business opportunities, inventions, know-how, product designs, and other information that the receiving party (including the receiving party’s personnel) (“Recipient”) knew, or reasonably should have known, was confidential information of the Discloser (“Confidential Information”). Confidential Information includes trade secrets as defined under applicable law (which includes the Uniform Trade Secrets Act). Confidential Information does not include information that: (a) is independently developed; (b) is or becomes public knowledge through no breach of this Agreement; or (c) is received from a third party under circumstances that do not create a reasonable suspicion that such information has been misappropriated or improperly disclosed. The Recipient shall: (a) use Confidential Information only as necessary to perform its obligations and/or exercise its rights under this Agreement; (b) hold Confidential Information in strict confidence and take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential materials); (c) not divulge any Confidential Information to any third party except as provided herein; and (d) not copy or reverse engineer any materials disclosed under this Agreement, or remove any proprietary markings from any Confidential Information. A Recipient may disclose Confidential Information as compelled by a court or regulator of competent authority, provided that the Recipient provides the Discloser with prompt written notice of such request, to the extent such notice is legally permissible and reasonably practicable.
10. 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.
11. 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.
13. App Stores. You acknowledge and agree that the availability of our Site and Services including the SevenFifty mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such stores. You acknowledge and agree that this Agreement is between you and Provi only, and not with the App Store. Provi, not the App Store, is solely responsible for the Site or Services, including mobile application(s), the content thereof, maintenance, support services, and warranty therefore, and addressing any claims relating thereto (for example, product liability, legal compliance, or intellectual property infringement). In order to use the Site and the Services, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Site or the Services. You agree to comply with, and your license to use the Site and the Services is conditioned upon your compliance with, all applicable third-party terms or agreements (for example, the App Store’s terms and policies) when using the Site or the Services. You represent and warrant that you are not located in a country that is subject to a United States Government embargo or similar laws of other countries where applicable, or that has been designated by the United States or Canadian Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any United States or Canadian Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.
14. 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. 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, INCLUDING BUT NOT LIMITED TO INTERNET DELAYS. PROVI DOES NOT WARRANT THAT THE SITE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SITE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SITE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, PROVI SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS. 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 OR WRITTEN, OBTAINED FROM PROVI OR THROUGH PROVI’S SITE AND SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
15. 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 FEES PAID (IF ANY) FOR PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS THREE (3) MONTH PERIOD.
16. 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.
17. Release. In the event that you have a dispute with one or more other users of the Site or any Third Party Resources 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.
18. 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. Sections 2 (Access License and Restrictions), 3 (Orders, Payments and Billing), 6 (Copyright, Data, and Ownership), 7 (Reservation of Rights), 9 (Confidentiality), 10 (Representations and Warranties), 14 (Disclaimers), 15 (Limitations of Liability), 16 (Indemnity), 17 (Releases), 18 (Termination), 20 (Controlling Law), 21 (Arbitration Agreement), 22 (Miscellaneous) and any other terms, rights and obligations in this Agreement which, by their nature, should (or by their express terms do) survive or extend beyond any termination or expiration of this Agreement or the use of the Services shall so survive and extend.
19. 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.
20. Controlling Law. 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.
21. 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 any dispute, claim, or controversy arising out of or relating to the subject matter of these Terms, including breach, termination, enforcement, interpretation or validity thereof or the relationship between the Parties, their affiliates, and subsidiaries, and each of their respective officers, directors, employees (“Disputes”) shall be finally resolved by binding arbitration (except as otherwise stated herein). The Parties agree that this Arbitration Agreement shall apply to all Disputes and shall be binding upon and enforceable by not only the Parties, but also their affiliates, subsidiaries, and their respective owners, officers, directors, manager, employees, and independent contractors (“Personnel”) who are third-party beneficiaries of these Terms. This Arbitration Agreement shall apply, without limitation, to all claims or Disputes that arose or were asserted before the Effective Date of this Agreement.
- Any Dispute shall be finally resolved by binding arbitration except claims: (a) in small claims court, so long as the matter advances only on an individual (nonclass, non-representative) basis; and (b) for injunctive relief arising out of the infringement or other misuse of intellectual property rights.
- Informal Resolution and Forum. The parties to these Terms shall use their best efforts to settle any Dispute directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice unless an extension is mutually agreed upon by the parties. To notify Provi that you intend to initiate an informal dispute resolution conference, email email@example.com, stating “Legal Notice - Informal Resolution” in the subject line, providing your name, telephone number associated with your account (if any), the email address associated with your account, and a description of your claim. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this section.
- Rules and Forum. If such informal resolution 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.
- Waiver of Jury Trial. YOU AND PROVI WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR 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.
- Waiver of Class or Consolidated Actions. YOU AND PROVI AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS OR DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED 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.
- Opt Out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out by First Class Mail, to Tiz, Inc., 1 N. Dearborn Street, Suite 700, Chicago, Illinois 60602. Any attempt to opt out by email will be ineffective. To be effective, your opt out notice must be postmarked within the later of (a) thirty (30) days of first accepting these Terms or (b) thirty (30) days after your first order on the Site. Your notice 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 this Arbitration Agreement. Provi’s updates to these Terms do not provide a new opportunity to opt out of the Arbitration Agreement if you had previously agreed to a version of Provi’s Terms and did not validly opt out of arbitration. Provi will continue to honor the valid opt outs of Users who validly opted out of the Arbitration Agreement in a prior version of the Terms. 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.
22. Miscellaneous. 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 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
23. 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.
24. 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 by email at: firstname.lastname@example.org.
25. Copyright Notice. All Site design, graphics, text selections, arrangement and all software are Copyright © 2023 Tiz, Inc. or its licensors. ALL RIGHTS RESERVED.