Terms of Service
Terms of Service
Last Updated: February 19th, 2020
PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES. This Agreement includes a class action waiver, a waiver of jury trials, and a requirement for binding arbitration on an individual basis to resolve disputes.
This Terms of Service Agreement (this “Agreement”) is entered into by and between Brighter Vision Web Solutions, Inc., a Colorado corporation (“BVWS”) and You, and is made effective as of the date of Your use of this website (“Site”) or the date of electronic acceptance. This Agreement sets forth the general terms and conditions of Your use of the Site and the products and services purchased or accessed through this Site (individually and collectively, the “Services”), including
- our web blog posting service (“Growth Platform”);
- our hosting and custom website design, operation, and customer support service (“Website Services”);
- our branding and marketing platform for social media post (“Social Genie”);
- our payment service (“Brighter Vision Payment Services”); and
- our website analytics platform (“Brighter Insights”).
Whether You are simply browsing or using this Site or purchase Services, Your use of this Site and Your electronic acceptance of this Agreement signifies that You have read, understand, acknowledge and agree to be bound by this Agreement.
The terms “we”, “us” or “our” shall refer to BVWS. The terms “You”, “Your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement, has access to Your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
BVWS may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute Your acceptance of this Agreement as last revised. If You do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, BVWS may occasionally notify You of changes or modifications to this Agreement by email. It is therefore very important that You keep Your account (“Account”) information current. BVWS assumes no liability or responsibility for Your failure to receive an email notification if such failure results from an inaccurate email address.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT YOUR CURRENT PRICING (OR BVWS’S THEN-CURRENT FEES IF BVWS HAS INCREASED ITS FEES IN ACCORDANCE WITH SECTION 22) FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 22 BELOW.
- ELIGIBILITY; AUTHORITY
This Site and the Services are available only to Users who can form legally binding contracts under applicable law. By using this Site or the Services, You represent and warrant that You are (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, and (iii) are not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction.
If You are entering into this Agreement on behalf of a corporate entity, You represent and warrant that You have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms “You”, “Your”, “User” or “customer” shall refer to such corporate entity. If, after Your electronic acceptance of this Agreement, BVWS finds that You do not have the legal authority to bind such corporate entity, You will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. BVWS shall not be liable for any loss or damage resulting from BVWS’s reliance on any instruction, notice, document or communication reasonably believed by BVWS to be genuine and originating from an authorized representative of Your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, BVWS reserves the right (but undertakes no duty) to require additional authentication from You. You further agree to be bound by the terms of this Agreement for transactions entered into by You, anyone acting as Your agent and anyone who uses Your account or the Services, whether or not authorized by You.
- Compatibility with the Services; DATA CONSENT
You agree to cooperate fully with BVWS in connection with BVWS’s provision of the Services. It is solely Your responsibility to provide any equipment or software that may be necessary for Your use of the Services. To the extent that the performance of any of our obligations under this Agreement may depend upon Your performance of Your obligations, BVWS is not responsible for any delays due to Your failure to timely perform Your obligations.
You are solely responsible for ensuring that all Your content is compatible with the hardware and software used by BVWS to provide the Services, which may be changed by BVWS from time to time in our sole discretion.
BVWS engineers maintain three (3) backups of Your website under the Services at regular intervals, according to its commitment to provide reliability to You. However, You are solely responsible for backing up all Your content, including but not limited to, Your websites. BVWS does not warrant that we will have a back up any content, and You agree to accept the risk of loss of any and all Services content.
In connection with BVWS’s provision of technical support, training and other Services, You agree that we may remotely log-in to Your computers, devices and systems for purposes of providing the support, training or other Services, including, without limitation, technical troubleshooting, answering questions, benchmarking and providing training to You or Your personnel. Remote login may be conducted through the use of third party entities. You further agree that we may also remotely log-in at any time to Your website as necessary or appropriate to maintain BVWS’s Services.
You agree that we may automatically check the version of a Service that You are utilizing and may provide updates or upgrades remotely via the Internet. You consent to the receipt of updates or upgrades by means of download to Your computers and systems.
You agree to keep Your computers powered on during the Services runtimes that You specify. You must add us or BVWS’s third party affiliate to the “allowed” list of programs and ensure that Your firewall and anti-virus software programs do not block us.
- PRODUCT SPECIFIC TERMS
The following terms apply only if You have purchased Growth Platform and only with respect to Your use thereof.
You are solely responsible for the accuracy of any blog posts (“Articles”) You publish using the Growth Platform, including any edits You make to the Articles. You further agree to indemnify BVWS for any liability related to any Articles You post, including, but not limited to BVWS’s legal fees. BVWS is not responsible for any search engine rankings based on Your publishing of the Articles.
You will not copy or distribute in any medium any Articles from the Growth Platform, except publishing on this Site. You further agree You will not publish more Articles than purchased for publication on one location on this Site, as determined by Your Growth Platform Site Settings.
At additional cost, Customers can publish Articles to a location on their Site using the Growth Platform. Customers will be charged a monthly Article fee for the number of Articles published per month.
BRIGHTER VISION PAYMENT SERVICES
The following terms apply only if You have purchased the Brighter Vision Payment Services and only with respect to Your use thereof.
In connection with the Brighter Vision Payments Services, BVWS uses the payment processing services of WePay, Inc. (“WePay”). Your use of WePay’s services is subject to WePay’s Terms of Service located: https://go.wepay.com/terms-of-service-us.
The following terms apply only if You have purchased Social Genie and only with respect to Your use thereof.
Subject to the terms of this Agreement, BVWS hereby grants You a limited, revocable, non-assignable, non-transferable license to access, use, and distribute the online library of social media posts and templates (the “Library”). Social Genie also allows you to select and operate social media campaigns consisting of posts created by You, posts selected from our Library, or a combination of both. Different subscriptions to the Services will only authorize access and use of the specific Services described on the Site. For example, depending on the level of Your current subscription to the Services and the type of content You elect to include in Your campaign, some social media networks may not be available to You. Further information regarding the compatibility of specific social media services with specific campaigns can be found on the Site. Our ability to operate the Services depends on the availability of the social media networks with which the Services interact, and the features and functions made available to us by the companies that operate such networks. If at any time a social media network stops making some or all of its features or functionality available to us, or available to us on terms that we in our sole discretion determine to be commercially reasonable, we may stop providing access to those features or functionality and we will not be liable to You or any third party for any such change.
You will comply with all laws and regulations regarding advertising and promotions that are applicable to You, and You will not use anything contained in the Library that would cause you to not comply with any such laws or regulations.
The following terms apply only if You have purchased Websites Services and only with respect to Your use thereof.
Included in Your website and single membership with BVWS are two (2) email addresses. Additional email addresses can be added to Your website and single membership for $3 per additional email address per month.
At additional cost, customers can add multiple websites associated under their single membership with BVWS. The cost of membership is charged on a per website basis. Customers will be charged once per month for ALL websites that have been added to their Account. When a website is added or removed from a customer’s Account, the service charge is pro-rated accordingly and reflected on the next charge.
- ACCOUNTS; SECURITY; TRANSFER OF DATA ABROAD
Accounts. In order to access some of the features of this Site or use BVWS’s Services, You will have to create an Account. You represent and warrant to BVWS that all information You submit when You create Your Account is accurate, current and complete, and that You will keep Your Account information accurate, current and complete. If BVWS has reason to believe that Your Account information is untrue, inaccurate, out-of-date or incomplete, BVWS reserves the right, in its sole and absolute discretion, to suspend or terminate Your Account.
Security. BVWS maintains a strong security maintenance program under the Services. You are responsible for maintaining the security of Your Account and website, and You are fully responsible for all activities that occur under the Account and any other actions taken in connection with Your website. You must notify BVWS immediately of any breach of security or unauthorized use of Your Account. BVWS will not be liable for any loss You incur due to any unauthorized use of Your Account, or for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions. You, however, may be liable for any loss BVWS or others incur caused by Your Account, whether caused by You, or by an authorized person, or by an unauthorized person. You also agree not to circumvent, disable or otherwise interfere with the security-related features of this Site or the Services found at this Site (including without limitation those features that prevent or restrict use or copying of any BVWS Content) or enforce limitations on the use of this Site or the Services found at this Site and the BVWS Content therein.
Transfer of Data Abroad. If You are visiting this Site from a country other than the country in which our servers are located, Your communications with us may result in the transfer of information (including Your Account information) across international boundaries. By visiting this Site and communicating electronically with us, You consent to such transfers.
- AVAILABILITY OF SITE/SERVICES
Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to You or any other party with regard thereto.
- GENERAL RULES OF CONDUCT
You acknowledge and agree that:
- Your use of this Site and the Services , including any content You submit, will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations.
- You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent.
- You will not use this Site or the Services in a manner (as determined by BVWS in its sole and absolute discretion) that:
- Is illegal, or promotes or encourages illegal activity;
- Promotes, encourages or engages in child pornography or the exploitation of children;
- Promotes, encourages or engages in terrorism, violence against people, animals, or property;
- Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
- Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
- Infringes on the intellectual property rights of another User or any other person or entity;
- Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that You owe to another User or any other person or entity;
- Interferes with the operation of this Site or the Services found at this Site;
- Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
- Contains false or deceptive language, defamatory statements or unsubstantiated or comparative claims, regarding BVWS or BVWS’s Services.
- You will not copy or distribute in any medium any part of this Site or the Services, except where expressly authorized by BVWS.
- You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
- You will not (a) transfer any webpage designed by BVWS or via the Services or content therein (including, but not limited to the website theme(s) and design(s)) to another hosting provider or (b) copy any such content for use in connection with another hosting provider.
- You will not access Articles from the Growth Platform, pre-written client content, the BVWS FAQ page, the BVWS Homepage, BVWS intake forms and the like (collectively, “BVWS Content”) through any technology or means other than through this Site itself, or as BVWS may designate.
- You will not access User Content through any technology or means other than through this Site itself, or as BVWS may designate.
- You agree to back-up all of Your User Content so that You can access and use it when needed. While BVWS engineers do implement an internal backup system under the Services, BVWS does not warrant that it backs-up any Account or User Content, and You are ultimately responsible for You User Content and You agree to accept as a risk the loss of any and all of Your User Content.
- You will not re-sell or provide the Services for a commercial purpose, including any of BVWS’s related technologies, without BVWS’s express prior written consent.
- You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
- You are aware that BVWS may from time-to-time call You about Your Account, and that, for the purposes of any and all such call(s), You do not have any reasonable expectation of privacy during those calls; indeed You hereby consent to allow BVWS, in its sole discretion, to record the entirety of such calls regardless of whether BVWS asks You on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which BVWS is a party.
BVWS reserves the right to modify, change, or discontinue any aspect of this Site or the Services, including without limitation prices and fees for the same, at any time.
- USER CONTENT
Some of the features of this Site or the Services, including those that allow you to compose Your own social media post, may allow Users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice (“User Submissions”), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, “User Content”). You shall be solely responsible for any and all of Your User Content or User Content that is submitted through Your Account, and the consequences of, and requirements for, distributing it. By posting or publishing User Content to this Site or to the Services, You represent and warrant to BVWS that (i) You have all necessary rights to distribute User Content via this Site or via the Services, either because You are the author of the User Content and have the right to distribute the same, or because You have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party. You must not describe or assign keywords on a website created under the Services in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and BVWS may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause BVWS liability.
BVWS generally does not pre-screen User Content (whether posted to a website hosted by BVWS or posted to this Site). However, BVWS reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. BVWS may remove any item of User Content (whether posted to a website hosted by BVWS or posted to this Site) and/or terminate a User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by BVWS in its sole and absolute discretion), at any time and without prior notice. BVWS may also terminate a User’s access to this Site or the Services found at this Site if BVWS has reason to believe the User is a repeat offender. If BVWS terminates Your access to this Site or the Services found at this Site, BVWS may, in its sole and absolute discretion, remove and destroy any data and files stored by You on its servers.
BVWS holds a limited use license from Bigstock (“Big Stock Photo”) for up to ten photographs per site under the Services. This limited use license is non-transferrable to You; if Services are terminated or discontinued, it is up to You to seek out any and all necessary licenses from Big Stock Photo and any other content provided under the Services. It is Your responsibility to read and understand the complete terms of the limited use license for content originating from Big Stock Photo, available here. If You request additional photographs, it is Your responsibility to ensure You have the full rights to use the photographs for their intended purpose and BVWS is absolved of all legal issues that may arise due to a client asking BVWS to utilize an image without the client owning the full rights to said image.
For any additional photographs You add to Your website after the Domain Name’s servers point to BVWS, it is Your responsibility to ensure You have the full rights to use the photographs for their intended purpose and BVWS is absolved of all legal issues that may arise due to client utilizing an image without the full rights to said image.
- THIRD PARTY ACCESS
Some of BVWS’s Services may require You to give us access to or require You to provide login information and password information for accounts or services You may have with third party providers, such as the applicable social media accounts You wish to access through the Services. When You provide this information to BVWS or give BVWS access to these third party accounts, You agree that You have read all contracts and written agreements governing such access, login information and passwords and that You have all the necessary contractual and legal rights to give us such access, login information and passwords. In addition, for certain Services, You grant BVWS permission to create and submit content on Your behalf to press release news outlets, directories, search engines, social media outlasts, and other destinations.
- ADDITIONAL RESERVATION OF RIGHTS
BVWS expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by BVWS in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by BVWS in offering or delivering any Services (including any domain name registration), (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry, (iii) to assist with our fraud and abuse detection and prevention efforts, (iv) to comply with court orders against You and/or Your domain name or website and applicable local, state, national and international laws, rules and regulations, (v) to comply with requests of law enforcement, including subpoena requests, (vi) to comply with any dispute resolution process, (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, or (viii) to avoid any civil or criminal liability on the part of BVWS, its officers, directors, employees and agents, as well as BVWS’s affiliates, including, but not limited to, instances where You have sued or threatened to sue BVWS.
BVWS expressly reserves the right to review every Account for excessive space and bandwidth utilization, and may terminate or apply additional fees to those Accounts that exceed allowed levels.
BVWS expressly reserves the right to terminate, without notice to You, any and all Services where, in BVWS’s sole discretion, You are harassing or threatening BVWS and/or any of BVWS’s employees.
- NO SPAM; LIQUIDATED DAMAGES
No Spam. We do not tolerate the transmission of spam. We monitor all traffic to and from our web servers for indications of spamming and maintain a spam abuse complaint center to register allegations of spam abuse. Customers suspected to be using our products and services for the purpose of sending spam are fully investigated. If we determine there is a problem with spam, we will take the appropriate action to resolve the situation.
We define spam as the sending of Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax), which is email or facsimile sent to recipients as an advertisement or otherwise, without first obtaining prior confirmed consent to receive these communications. This can include, but is not limited to, the following:
- Email Messages
- Newsgroup postings
- Windows system messages
- Pop-up messages (aka “adware” or “spyware” messages)
- Instant messages (using AOL, MSN, Yahoo or other instant messenger programs)
- Online chat room advertisements
- Guestbook or Website Forum postings
- Facsimile Solicitations
- Text/SMS Messages
We will not allow our servers and services to be used for the purposes described above. In order to use our Services, You must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but You must also abide by this no spam policy. Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have “opted-in” to receive messages. They must include a legitimate return address and reply-to address, the sender’s physical address, and an opt-out method in the footer of the email or fax. Upon request by us, conclusive proof of opt-in may be required for an email address or fax number.
If we determine the Services are being used in association with spam, we will re-direct, suspend, or cancel any web site hosting, domain registration, email boxes or other applicable services for a period of no less than two (2) days. The registrant or customer will be required to respond by email to us stating that they will cease to send spam and/or have spam sent on their behalf. We will require a non-refundable reactivation fee to be paid before the site, email boxes and/or services are reactivated. In the event we determine the abuse has not stopped after the Services have been restored the first time, we may terminate the hosting and email boxes associated with the domain name in question.
We encourage You and recipients of email generated from our Services to report suspected spam.
Liquidated Damages. You agree that we may immediately terminate any Account which we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay us liquidated damages in the amount of $1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your Account.
- CONFIDENTIAL INFORMATION
“Confidential Information” means all information of the disclosing party disclosed to the receiving party that is marked or identified as confidential or disclosed in circumstances that would lead a reasonable person to believe such information is confidential.
The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) shall not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall disclose the Confidential Information of the Disclosing Party only to the employees, independent contractors, or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party shall protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
The Receiving Party’s obligations under this Section with respect to any Confidential Information of the Disclosing Party shall terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public (including any information made available on the Site that is not protected by confidentiality obligations); or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. The obligations in this section will survive termination of this Agreement for a period of three (3) years thereafter.
- INTELLECTUAL PROPERTY
This Agreement does not transfer, from BVWS to You, any BVWS or third party intellectual property, including, but not limited to: (i) any content contained in the Library or any logos designed or authored by BVWS for you under the Services; (ii) any Articles published using the Growth Platform; (iii) any webpage designed by BVWS or via the Services (including, but not limited to the website theme(s) and design(s)), and any (iv) any content generated by BVWS or via the Services (including, but not limited to, via the BVWS homepage generator, specialty pages, and FAQs) (collectively “BVWS Intellectual Property”). All right, title and interest in and to BVWS Intellectual Property will remain (as between the parties) solely with BVWS. BVWS, BrighterVision.com, the BrighterVision.com logo, and all other trademarks, service marks, graphics and logos used in connection with BrighterVision.com, or the Site are owned by BVWS. Other trademarks, service marks, graphics and logos used in connection with the Site may be the trademarks of other third parties. Your use of the Site grants You no right or license to reproduce or otherwise use any BVWS or third-party trademarks.
- TRADEMARK AND/OR COPYRIGHT CLAIMS
BVWS supports the protection of intellectual property. If You would like to submit (i) a trademark claim for violation of a mark on which You hold a valid, registered trademark or service mark, or (ii) a copyright claim for material on which You hold a bona fide copyright, BVWS has established to following policies for considering trademark and/or copyright infringement claims.
A. Domain Name Dispute Claims (As Approved by ICANN on October 24, 1999)
This Uniform Domain Name Dispute Resolution Policy (the “Policy”) has been adopted by the Internet Corporation for Assigned Names and Numbers (“ICANN”), is incorporated by reference into this Agreement, and sets forth the terms and conditions in connection with a dispute between You and any party other than us (the registrar) over the registration and use of an Internet domain name registered by You. Proceedings under Paragraph 13(A)(iv) of this Policy will be conducted according to the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules of Procedure”), which are available here, and the selected administrative-dispute-resolution service provider’s supplemental rules.
ii. Your Representations
By applying to register a domain name, or by asking us to maintain or renew a domain name registration, You hereby represent and warrant to us that (a) the statements that You made in Your Registration Agreement are complete and accurate; (b) to Your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) You are not registering the domain name for an unlawful purpose; and (d) You will not knowingly use the domain name in violation of any applicable laws or regulations. It is Your responsibility to determine whether Your domain name registration infringes or violates someone else’s rights.
iii. Cancellations; Transfers; Changes
We will cancel, transfer or otherwise make changes to domain name registrations under the following circumstances:
- Subject to the provisions of Paragraph 13(A)(viii), our receipt of written or appropriate electronic instructions from You or Your authorized agent to take such action;
- Our receipt of an order from a court or arbitral tribunal, in each case of competent jurisdiction, requiring such action; and/or
- Our receipt of a decision of an Administrative Panel requiring such action in any administrative proceeding to which You were a party and which was conducted under this Policy or a later version of this Policy adopted by ICANN. (See Paragraph 13(A)(iv) below.)
We may also cancel, transfer or otherwise make changes to a domain name registration in accordance with the terms of Your Registration Agreement or other legal requirements.
iv. Mandatory Administrative Proceeding
This Paragraph sets forth the type of disputes for which You are required to submit to a mandatory administrative proceeding. These proceedings will be conducted before one of the administrative-dispute-resolution service providers listed here (each, a “Provider”).
A. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a “complainant”) asserts to the applicable Provider, in compliance with the Rules of Procedure, that
- Your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
- You have no rights or legitimate interests in respect of the domain name; and
- Your domain name has been registered and is being used in bad faith.
In the administrative proceeding, the complainant must prove that each of these three elements is present.
B. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 13(A)(iv)(A)(3), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
- circumstances indicating that You have registered or You have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of Your documented out-of-pocket costs directly related to the domain name; or
- You have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that You have engaged in a pattern of such conduct; or
- You have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
- by using the domain name, You have intentionally attempted to attract, for commercial gain, Internet users to Your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Your web site or location or of a product or service on Your web site or location.
C. How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint. When You receive a complaint, You should refer to Paragraph 5 of the Rules of Procedure in determining how Your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate Your rights or legitimate interests to the domain name for purposes of Paragraph 13(A)(iv)(A)(2):
- before any notice to You of the dispute, Your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
- You (as an individual, business, or other organization) have been commonly known by the domain name, even if You have acquired no trademark or service mark rights; or
- You are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
D. Selection of Provider. The complainant shall select the Provider from among those approved by ICANN by submitting the complaint to that Provider. The selected Provider will administer the proceeding, except in cases of consolidation as described in Paragraph 13(A)(iv)(F).
E. Initiation of Proceeding and Process and Appointment of Administrative Panel. The Rules of Procedure state the process for initiating and conducting a proceeding and for appointing the panel that will decide the dispute (the “Administrative Panel”).
F. Consolidation. In the event of multiple disputes between You and a complainant, either You or the complainant may petition to consolidate the disputes before a single Administrative Panel. This petition shall be made to the first Administrative Panel appointed to hear a pending dispute between the parties. This Administrative Panel may consolidate before it any or all such disputes in its sole discretion, provided that the disputes being consolidated are governed by this Policy or a later version of this Policy adopted by ICANN.
G. Fees. All fees charged by a Provider in connection with any dispute before an Administrative Panel pursuant to this Policy shall be paid by the complainant, except in cases where You elect to expand the Administrative Panel from one to three panelists as provided in Paragraph 5(b)(iv) of the Rules of Procedure, in which case all fees will be split evenly by You and the complainant.
H. Our Involvement in Administrative Proceedings. We do not, and will not, participate in the administration or conduct of any proceeding before an Administrative Panel. In addition, we will not be liable as a result of any decisions rendered by the Administrative Panel.
I. Remedies. The remedies available to a complainant pursuant to any proceeding before an Administrative Panel shall be limited to requiring the cancellation of Your domain name or the transfer of Your domain name registration to the complainant.
J. Notification and Publication. The Provider shall notify us of any decision made by an Administrative Panel with respect to a domain name You have registered with us. All decisions under this Policy will be published in full over the Internet, except when an Administrative Panel determines in an exceptional case to redact portions of its decision.
K. Availability of Court Proceedings. The mandatory administrative proceeding requirements set forth in Paragraph 13(A)(iv) shall not prevent either You or the complainant from submitting the dispute to a court of competent jurisdiction for independent resolution before such mandatory administrative proceeding is commenced or after such proceeding is concluded. If an Administrative Panel decides that Your domain name registration should be canceled or transferred, we will wait ten (10) business days (as observed in the location of our principal office) after we are informed by the applicable Provider of the Administrative Panel’s decision before implementing that decision. We will then implement the decision unless we have received from You during that ten (10) business day period official documentation (such as a copy of a complaint, file-stamped by the clerk of the court) that You have commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under Paragraph 3(b)(xiii) of the Rules of Procedure. (In general, that jurisdiction is either the location of our principal office or of Your address as shown in our Whois database. See Paragraphs 1 and 3(b)(xiii) of the Rules of Procedure for details.) If we receive such documentation within the ten (10) business day period, we will not implement the Administrative Panel’s decision, and we will take no further action, until we receive (i) evidence satisfactory to us of a resolution between the parties; (ii) evidence satisfactory to us that Your lawsuit has been dismissed or withdrawn; or (iii) a copy of an order from such court dismissing Your lawsuit or ordering that You do not have the right to continue to use Your domain name.
v. All other disputes and litigation
All other disputes between You and any party other than us regarding Your domain name registration that are not brought pursuant to the mandatory administrative proceeding provisions of Paragraph 13(A)(iv) shall be resolved between You and such other party through any court, arbitration or other proceeding that may be available.
vi. Our Involvement in Disputes
We will not participate in any way in any dispute between You and any party other than us regarding the registration and use of Your domain name. You shall not name us as a party or otherwise include us in any such proceeding. In the event that we are named as a party in any such proceeding, we reserve the right to raise any and all defenses deemed appropriate, and to take any other action necessary to defend ourselves.
vii. Maintaining the Status Quo
We will not cancel, transfer, activate, deactivate, or otherwise change the status of any domain name registration under this Policy except as provided in Paragraph 13(A)(iii) above.
viii. Transfers During a Dispute
Transfers of a Domain Name to a New Holder. You may not transfer Your domain name registration to another holder (i) during a pending administrative proceeding brought pursuant to Paragraph 13(A)(iv) or for a period of fifteen (15) business days (as observed in the location of our principal place of business) after such proceeding is concluded; or (ii) during a pending court proceeding or arbitration commenced regarding Your domain name unless the party to whom the domain name registration is being transferred agrees, in writing, to be bound by the decision of the court or arbitrator. We reserve the right to cancel any transfer of a domain name registration to another holder that is made in violation of this subparagraph.
Changing Registrars. You may not transfer Your domain name registration to another registrar during a pending administrative proceeding brought pursuant to Paragraph 13(A)(iv) or for a period of fifteen (15) business days (as observed in the location of our principal place of business) after such proceeding is concluded. You may transfer administration of Your domain name registration to another registrar during a pending court action or arbitration, provided that the domain name You have registered with us shall continue to be subject to the proceedings commenced against You in accordance with the terms of this Policy. In the event that You transfer a domain name registration to us during the pendency of a court action or arbitration, such dispute shall remain subject to the domain name dispute policy of the registrar from which the domain name registration was transferred.
ix. Policy Modifications
We reserve the right to modify this Policy at any time with the permission of ICANN. We will post our revised Policy at this location at least thirty (30) calendar days before it becomes effective. Unless this Policy has already been invoked by the submission of a complaint to a Provider, in which event the version of the Policy in effect at the time it was invoked will apply to You until the dispute is over, all such changes will be binding upon You with respect to any domain name registration dispute, whether the dispute arose before, on or after the effective date of our change. In the event that You object to a change in this Policy, Your sole remedy is to cancel Your domain name registration with us, provided that You will not be entitled to a refund of any fees You paid to us. The revised Policy will apply to You until You cancel Your domain name registration.
B. Copyright and Trademark Claims
To notify BVWS that there has been a copyright or trademark violation, please follow the specific instructions in (A) for filing a trademark claim, or (B) filing a copyright complaint. If You are responding to a complaint of infringement, You will need to follow our Counter Notification policy in (C).
i. Trademark Claims
If You (the “Complaining Party”) would like to submit a trademark claim for violation of a mark on which You hold a valid, registered trademark or service mark (registered with the United States Patent and Trademark Office on the Principal Register or, for foreign marks, registered with the appropriate intellectual property organization of Your country; state registrations and registrations on the Supplemental Register are not considered valid for these purposes), BVWS requests that the Complaining Party substantiate such claim by either: (i) filling out the form available here, or (ii) providing the following information via email to [email protected] The words “Trademark Claim” should appear in the subject line.
To be considered effective, a notification of a claimed trademark violation must include the following information:
- The trademark, service mark, trade dress, name, or other indicia of origin (“mark”) that is claimed to be infringed, including registration number.
- The jurisdiction or geographical area to which the mark applies.
- The name, post office address and telephone number of the owner of the mark identified above.
- The goods and/or services covered by or offered under the mark identified above.
- The date of first use of the mark identified above.
- The date of first use in interstate commerce of the mark identified above.
- A description of the manner in which the Complaining Party believes its mark is being infringed upon.
- Sufficient evidence that the owner of the website that is claimed to be infringing is a BVWS customer.
- The precise location of the infringing mark, including electronic mail address, etc.
- A good faith certification, signed under penalty of perjury, stating:
i. The content of the website (identify website) infringes the rights of another party,
ii. The name of such said party,
iii. The mark (identify mark) being infringed, and
iv. That use of the content of the website claimed to be infringing at issue is not defensible.
Upon receipt of the appropriate information identified in Section 15(B)(i) above, for trademark claims, BVWS will initiate an investigation and forward the Complaining Party’s written notification to the alleged infringer. While BVWS is investigating the claim, BVWS, at its sole discretion and without any legal obligation to do so, may temporarily remove the allegedly infringing material from the Site, notify the alleged infringer it will lock down the domain name(s), redirect the DNS, and/or if it is solely stored on a BVWS server, temporarily remove or deny access to the allegedly infringing material.
If BVWS concludes that the Complaining Party has raised a legitimate trademark claim, it may, at its sole discretion and without any legal obligation to do so, permanently remove the challenged material from the Site, continue to suspend the alleged infringer’s BVWS account and/or if it is solely stored on a BVWS server, deny access to the allegedly infringing material. If BVWS concludes that the Complaining Party has not raised a legitimate claim, BVWS will restore access to the allegedly infringing material.
The Complaining Party should understand that BVWS, an ICANN accredited registrar, and its customers are bound by the UDRP. Nothing in this Policy should be construed to supersede the UDRP, nor the obligation of BVWS and its customers to abide by it in the context of domain name disputes.
ii. Copyright Claims
BVWS is a DMCA Compliant Service Provider under the Digital Millennium Copyright Act (DMCA). If the Complaining Party would like to submit a copyright claim for material on which You hold a bona fide copyright, BVWS requests that the Complaining Party substantiate such claim by providing BVWS with the following information via email to [email protected] The words “Copyright Claim” should appear in the subject line. A copyright claim can also be submitted by mail to: Copyright Agent, BVWS, 2569 Park Ln. Suite 200, Lafayette, Colorado 80026.
To be considered effective, a notification of a claimed copyright infringement must be provided to BVWS and must include the following information:
- An electronic signature of the copyright owner, or a person authorized to act on behalf of the owner, of an exclusive copyright that has allegedly been infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit BVWS to locate the material.
- Information reasonably sufficient to permit BVWS to contact the Complaining Party, such as an address, telephone number, and, if available, an electronic mail address at which the Complaining Party may be contacted.
- A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is the owner, or is authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.
For Copyright Claims, upon receipt of appropriate notification from the Complaining Party, pursuant to this Section, BVWS will initiate an investigation and forward the Complaining Party’s written notification to the alleged infringer. While BVWS is investigating the claim, BVWS, at its sole discretion and without any legal obligation to do so, may notify the alleged infringer it will lock down the domain name(s), redirect the DNS, and/or if it is solely stored on a BVWS server, temporarily remove or deny access to the allegedly infringing material.
If BVWS concludes that the Complaining Party has raised a legitimate copyright claim, it will continue to suspend the alleged infringer’s BVWS account and/or if it is solely stored on a BVWS server, deny access to the allegedly infringing material. If BVWS concludes that the Complaining Party has not raised a legitimate claim, BVWS will restore access to the allegedly infringing material.
iii. Counter Notification Policy
If You have received a notice of copyright or trademark infringement that You wish to challenge based on a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled, You may provide Counter Notification by emailing [email protected] and including the following:
- An electronic signature of the alleged infringer.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the alleged infringer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- The alleged infringer’s name, address, and telephone number, and a statement that the Infringer consents to the jurisdiction of the Federal District Court for the judicial district of Colorado, or if the alleged infringer’s address is outside of the United States, for any judicial district in which BVWS may be found, and that the alleged infringer will accept service of process from the Complaining Party or an agent of such Party.
Upon receipt of a Counter Notification as described in this Section, BVWS shall promptly provide the Complaining Party with a copy of the Counter Notification, and inform such Party that it will replace the removed material or cease disabling access to it in ten (10) business days. BVWS will replace the removed material and cease disabling access to it in not less than ten (10), nor more than fourteen (14), business days following receipt of the Counter Notification, unless BVWS first receives notice from the Complaining Party that such Complaining Party has filed an action seeking a court order to restrain the alleged infringer from engaging in infringing activity relating to the material on BVWS’s system or network.
iv. Repeat Infringers
It is BVWS’s policy to provide for the termination, in appropriate circumstances, of BVWS customers and account holders who repeatedly violate this policy or are repeat infringers of copyrighted works, trademarks or any other intellectual property.
- LINKS TO THIRD-PARTY WEBSITES
This Site and the Services found at this Site may contain links to third-party websites that are not owned or controlled by BVWS. BVWS assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. In addition, BVWS does not censor or edit the content of any third-party websites. By using this Site or the Services found at this Site, You expressly release BVWS from any and all liability arising from Your use of any third-party website. Accordingly, BVWS encourages You to be aware when You leave this Site or the Services found at this Site and to review the terms and conditions, privacy policies, and other governing documents of each other website that You may visit.
- DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND AT THIS SITE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. BVWS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BVWS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND BVWS ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY BVWS, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES), AND THIRD PARTY SERVICE PROVIDERS WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND shall survive any termination or expiration of this Agreement or Your use of this Site or the Services found at this Site.
- LIMITATION OF LIABILITY
OUR CUMULATIVE LIABILITY TO YOU FOR ANY LOSS OR DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICES, OR ANY CONTENT AVAILABLE THROUGH THE SERVICES, WILL NOT EXCEED $50 OR THE AMOUNT OF FEES PAID TO US BY YOU UNDER THESE TERMS DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER, WHICHEVER IS GREATER. IN NO EVENT SHALL BVWS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT BVWS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You SPECIFICALLY ACKNOWLEDGE AND agree that any cause of action arising out of or related to this Site or the Services found at this Site must be commenced within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently barred.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to You.
- EXCLUSIVE REMEDY
IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICES, OR THE MATERIALS, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE, THE SERVICES AND THE MATERIALS. UNDER NO CIRCUMSTANCE WILL COMPANY, ITS AFFILIATES, OR LICENSORS BE LIABLE IN ANY WAY FOR YOUR USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, ANY INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR RELATED TO, THE USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE.
You agree to protect, defend, indemnify and hold harmless BVWS and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by BVWS directly or indirectly arising from (i) Your use of and access to this Site or the Services found at this Site; (ii) Your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; (iii) any Article You publish using the Growth Platform; (iv) any User Content, including the posting of any such User Content to any social media network via the Services, and/or (v) Your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or Your use of this Site or the Services found at this Site.
This Agreement is effective as of the date You accept them (as provided in the preamble) and will continue until terminated as provided herein. We may immediately terminate this Agreement if You fail to comply with the terms contained herein or if we decide to cease making the Services generally available. You may terminate this Agreement by closing Your Account with us, however this will not immediately terminate any ongoing rights or obligations You or we may have. Upon any such termination, You must immediately stop using the Services. Sections 13, 14, 17 – 23, and 24 – 33 will survive any termination of this Agreement.
- FEES AND PAYMENTS
Fees for all Services are available on the Site. By selecting a paid Service You agree to pay BVWS the fees indicated for that service. You hereby authorize BVWS to charge You for all such applicable fees in advance using Your selected method of payment. For monthly subscribers, we are unable to offer refunds at this time. For annual subscribers, if You decide Brighter Vision is not the right solution for You before Your first draft is built, we will refund Your full amount, minus the setup fee, first month and a $100 cancellation fee..
Your subscription to the Services purchased will continued indefinitely until terminated in accordance with this 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 YOUR CURRENT PRICING (OR BVWS’S THEN-CURRENT FEES IF BVWS HAS INCREASED ITS FEES IN ACCORDANCE WITH SECTION 22). You agree that your subscription will be subject to this automatic renewal feature unless you cancel your subscription at least TWENTY FOUR (24) HOURS prior to the Renewal Commencement Date BY EMAILING [email protected] OR (IF AVAILABLE) CANCELLING YOUR SUBSCRIPTION VIA YOUR DASHBOARD. You hereby agree and authorize us to CHARGE YOUR SELECTED PAYMENT METHOD AUTOMATICALLY FOR SUCH RENEWAL, UNLESS YOU NOTIFY US THAT THE YOU WANT TO CANCEL THE SUBSCRIPTION OR DISABLE AUTO-RENEWAL PRIOR TO THE RENEWAL SATE OF YOUR SUBSCRIPTION. You will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period, except as provided for in this Section. If BVWS does not receive payment for a renewal prior to the date of renewal, BVWS may, in its discretion, do one or more of the following: (i) demand full payment, (ii) charge any form of payment You have obtained to replace its provided form of payment (e.g., You have obtained a replacement credit card number), and You hereby authorize BVWS to do so, and (iii) terminate or suspend Your subscription. You may provide notice of Your desire to cancel Your subscription at any time by emailing BVWS at [email protected]
BVWS reserves the right to increase its prices at any time by notifying You of such price increases. Any such price increases will become effective as of Your next renewal period.
- HIPAA DISCLAIMER
You are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. You acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. BVWS does not control or monitor the information or data You store on, or transmit through, the Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” as defined under HIPAA are expressly prohibited from using the Services for such purposes. Storing and permitting access to “protected health information” is a material violation of this Agreement, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and You agree that BVWS is not a Business Associate or subcontractor or agent of Yours pursuant to HIPAA. If You have questions about the security of Your data, You should contact [email protected].
- INDEPENDENT CONTRACTOR
BVWS and You are independent contractors and nothing contained in this Agreement places BVWS and You in the relationship of principal and agent, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
- SUCCESSORS AND ASSIGNS
You may not assign this Agreement or any of your rights or obligations hereunder and any attempted assignment in violation of the foregoing is null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
- NO THIRD-PARTY BENEFICIARIES
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
- S. EXPORT LAWS
This Site and the Services found at this Site are subject to the export laws, restrictions, regulations and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). Users shall not use the Services found at this Site to collect, store or transmit any technical information or data that is controlled under U.S. Export Laws. Users shall not export or re-export, or allow the export or re-export of, the Services found at this Site in violation of any U.S. Export Laws. None of the Services found at this Site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using this Site and the Services found at this Site, You agree to the foregoing and represent and warrant that You are not a national or resident of, located in, or under the control of, any restricted country; and You are not on any denied parties list; and You agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If You access this Site or the Services found at this Site from other countries or jurisdictions, You do so on Your own initiative and You are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, You shall not access this Site or the Services found at this Site. The obligations under this section shall survive any termination or expiration of this Agreement or Your use of this Site or the Services found at this Site.
- COMPLIANCE WITH LOCAL LAWS
BVWS makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited.
- GOVERNING LAW; VENUE
Except for disputes governed by the Uniform Domain Name Dispute Resolution Policy referenced above and available here, this Agreement shall be governed by and construed in accordance with the federal law of the United States and the state law of Colorado, whichever is applicable, without regard to conflict of laws principles. You agree that any action relating to or arising out of this Agreement shall be brought in the state or federal courts of Denver County, Colorado, and You hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) jurisdiction and venue in the state and federal courts of Denver County, Colorado.
- ARBITRATION AGREEMENT
Please read this Arbitration Agreement carefully. It is part of Your contract with us and affects Your rights. It contains procedures for mandatory binding arbitration and a class action waiver.
All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of the Services that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to You and BVWS.
Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to BVWS should be sent to: 2569 Park Lane, Suite 200, Lafayette, CO 80026. After the Notice is received, You and BVWS may attempt to resolve the claim or dispute informally. If You and BVWS do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider that offers arbitration as set forth in this section, or if JAMS is not available to arbitrate, the parties shall agree to select an alternative provider (“ADR Provider”). This Agreement and the rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement (“Arbitration Rules”). The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of Your residence, unless You reside outside of the United States, and unless the parties agree otherwise. If You reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants You an award that is greater than the last settlement offers that BVWS made to You prior to the initiation of arbitration, BVWS will pay You the greater of the award or 125% of the settlement offer. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
If non-appearance-based arbitration is elected pursuant to Section “(c)” above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
If You or BVWS pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.
If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of You and BVWS, and the dispute 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 ADR Provider’s rules, and the 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 BVWS.
The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between You and BVWS in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, You and BVWS waive all rights to a jury trial, instead electing that 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 and claims of more than one User cannot be arbitrated or litigated jointly or consolidated with those of any other User.
All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
This Arbitration Agreement will survive the termination of Your relationship with BVWS.
Notwithstanding the foregoing, either You or BVWS may bring an individual action in small claims court.
Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
The foregoing claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the state and federal courts located in Denver, Colorado, for such purpose.
- TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
- Entire Agreement
- CONTACT INFORMATION
If You have any questions about this Agreement, please contact us by email or regular mail at the following address:
Brighter Vision Web Solutions, Inc.
2569 Park Lane
Lafayette, CO 80026