Clearvale is an Enterprise 2.0 networking service, owned and operated by, or for, BroadVision, Inc. (“BV”). It is the next-generation e-business network aimed at revolutionizing knowledge flows and performance gains across and beyond enterprise ecosystems. Clearvale allows you (“You” or “Your”), as well as Your constituents, to create, join or browse Networks (defined below), to publicize, personalize, and socialize communication and collaboration directly yielding unprecedented business agility, immediacy and productivity to communicate with Your employees, partners, customers, friends and other stakeholders. (The services offered by BV as performed using Clearvale ("Clearvale" “us” or "we") include the Clearvale website, www.clearvale.com (the "Clearvale Website"), the Clearvale Internet messaging service, and any other features, content, applications, maintenance services, training, set-up services, and/or adoption services offered from time to time by BV in connection with the Clearvale Website (collectively, the "Clearvale Services").
This Terms of Service Agreement ("Agreement") set forth the legally binding terms for use of the Clearvale Services. By using the Clearvale Services, You agree to be bound by this Agreement. Please read this Agreement carefully. If You do not agree with it, You should leave the Clearvale Website immediately. If You wish to use the Clearvale Website, communicate with other Members (defined below) or make any use of the Clearvale Services, You must indicate Your acceptance before accessing any Clearvale Services. You are only authorized to use the Clearvale Services (regardless of whether Your access or use is intended) if You agree to abide by all applicable laws regulating use of such services in the town, state, province and country of Your use and to the terms and conditions of use set forth in this Agreement.
BV may modify this Agreement from time to time and such modification shall be effective upon posting by BV on the Clearvale Website. You agree to be bound to any changes to this Agreement when You use the Clearvale Services after any such modification is posted. It is therefore important that You review this Agreement regularly to ensure You are updated as to any changes.
Please choose carefully the information You post on Clearvale and that You provide to other Users. You may not upload any photographs, videos or other materials to Clearvale that contain nudity, or obscene, lewd, excessively violent, harassing, sexually explicit or otherwise objectionable subject matter. Despite this prohibition, information provided by other Clearvale Members (for instance, in their Profile) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and BV assumes no responsibility or liability for this material.
BV reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by You, or to restrict, suspend, or terminate Your access to all or any part of the Clearvale Services at any time, for any or no reason, with or without prior notice, and without liability.
You represent that You are fully able and competent to enter into this Agreement. If You are using or creating a Clearvale Network as a representative of a company or legal entity, (i) You represent that You have the authority to enter into this Agreement on behalf of that company or legal entity, (ii) You agree that the terms “You” and Your” in this Agreement refers to your company or legal entity, and (iii) You agree that You are responsible for all activities by Your Users (defined below) in connection of using Clearvale Services and liable for the misuse of Clearvale Services by Your Users, whether Your Users use Clearvale Services in a way authorized by You or Your Users use Clearvale Services solely for personal use.
"Clearvale ID" refers to the account You create with Clearvale which includes a name, email address and password. When You register as a Network Member on one or more Networks on the Clearvale Platform, You use the email address and password portion of Your Clearvale ID to authenticate with each such Network. Additionally, each Network of which You become a Network Member will have access to Your email address and name as stored in Your Clearvale ID.
"Clearvale Members" are users who complete a registration process with Clearvale and obtain a Clearvale ID. Clearvale Members may also become Network Members.
"Clearvale Member Data" is data collected from Users by Clearvale, including the data collected for the Clearvale ID and any data provided in Your Profile (as defined below). Clearvale Member Data does not include Network Member Data.
“Clearvale Platform” means the code, technology, and servers used for the operation of the Clearvale networking service.
"Clearvale Technology" means the past, present and future content of the Clearvale Platform, including all software in any format (including the Platform Code and Network Code, both as defined below), embeddable widgets, hardware, products, processes, algorithms, user interfaces, know-how, techniques, organization, designs, text, images, photographs, illustrations, audio or video material, artwork, graphic material, podcasts, advertising copy, databases, proprietary information, all copyrightable or otherwise legally protectable elements of the Clearvale Platform and all other tangible or intangible materials related to, displayed, performed or distributed on the Clearvale Platform and the Clearvale Platform itself, including, the selection, sequence, "look and feel" and arrangement of items on the Clearvale Platform, and all BV marks, domain names, patents, and other intellectual property. Clearvale technology does not include Your Content or Your Code (as defined below).
"Content" means (i) any work of authorship in a Network, including, comments, recommendations, forums, photos, videos, music, sounds, images, text, files, listings, logos, trademarks, postings, messages, tags and other content added to or submitted with any of the foregoing; or (ii) other materials posted on or transmitted through any Network or the Clearvale Services. "Your Content" is any Content that You or Your Users submit to a Network or the Clearvale Services, either as a Clearvale Member, Network Member or Network Creator (all as defined below). If You are a Network Creator, Your Content includes the name, logo, trademark, brand features and other Content that You (and not the Network Members of Your Network(s)) make available. Content does not include Network Code or Platform Code.
“Ecosystem” is a collection of related networks that you can easily manage with an administrative console. An ecosystem offers numerous advantages over having several, separate networks. For example, with ecosystems, a profile can be used across multiple networks within the ecosystem. Network members also have the option of easily sharing files across networks within the ecosystem.
“External Widget(s)” is a small application that is installed within the Clearvale network by a third party. External Widgets display external content, data, or html within the Clearvale network. The content, data, or html resides outside of Clearvale. The external site could be a web site, web service, or some other application.
"Network(s)" consist of Network Code and other Content and are web applications running on top of the Clearvale Platform. Networks are created by Network Creators and are provided for Network Members of that Network to interact , connect, and share information with other Network Members. Network features may include Network Member profiles, communities, blogs, contacts, invitations, discussion forums, file sharing (including documents, photos videos,and audio), events, latest activity streams, RSS feeds, Twitter feeds, polls, pages, ratings, reviews, and recommendations, among others. If You are a Network Creator, "Your Network" is a Network created and operated by You on the Clearvale Platform.
"Network Creator" is You or Your User who create and operate one or more Networks on the Clearvale Platform.
"Network Members" are Clearvale Members who have also registered with a particular Network on the Clearvale Platform using their Clearvale ID. "Your Network Members" are Network Members who have registered with Your Network. Network Creators are also Network Members of each of created Networks.
"Network Member Data" means data provided by or collected from a Network Member by a Network Creator for a particular Network, such as profile data, including certain items of registration information (e.g. email addresses), answers to Network profile questions, forum posts, and statistical information about Content contributed. Network Member Data does not include the Clearvale ID or any Clearvale Member Data.
"Order Form" means the document supplied by BroadVision and accepted by You (as evidenced by your signature thereon). The Order Form sets forth the fees due for Your Clearvale Premium Services.
"Platform Code" means the proprietary portion of the Clearvale Platform that is used to interpret the Network Code and other Clearvale Services available on the Clearvale Platform.
"Premium Services" are services or features offered on Clearvale to Network Creators for a fee.
"Set-Up Services" mean activities performed by BroadVision Global Services Personnel to assist You in setting up your Network(s) on Clearvale. These services are made available to help You and Your Users gain value from the use of Clearvale. In the event you subscribe for Set-Up Services, the description of the particular services to be provided to You will be set forth on Your Clearvale order form and associated Statement of Work. All such services are deemed accepted on delivery.
"Third Party Software" means software that is licensed to You by third parties, including software that is subject to so-called "open source" licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format, and including the GNU General Public License.
"Your Profile" means information that You have entered on Clearvale. When You sign onto Clearvale You provide Your login and password and are shown all the Networks You have joined. When joining Networks, You may be asked to supply additional information which becomes Your Profile for the associated Network. Based upon system setting, Your Profile can be separate on each Network You join or can be synchronized among related Networks You join, or can be synchronized with third party directory services.
“Your Users” are all end users on Your Network(s), including but not limited to Your employees, partners, customers, associates, acquaintances, or other stakeholders, whether they are Visitors (which mean end users that simply browse the Clearvale Website) or registered Members.
2. Eligibility. Use of Clearvale Services is void where prohibited. By using the Clearvale Services, You represent and warrant, (either individually or if You represent a company or other legal entity collectively for the entity) that (a) all registration information You submit is truthful and accurate; (b) You will maintain the accuracy of such information; (c) You are 13 years of age or older; and (d) Your use of the Clearvale Services does not violate any applicable law or regulation. Profiles may be deleted and Memberships may be terminated without warning, if we believe that You are under legal age to enter into a contract.
This Agreement shall remain in full force and effect while You use the Clearvale Services or Your Users are Members. BV may terminate Your Membership at any time, without warning, for Your failure to comply with terms and conditions of this Agreement, including but not limited to Your Users’ misuse of Clearvale Services. The Agreement may also be terminated immediately should you access Premium Services and fail to pay the fees associated therewith according to the terms set forth on the Order Form.
A. Failure to Renew Termination Policy. Should You fail to renew, either by way of Your explicit declaration not to renew or Your failure to make timely payments, You will receive an immediate time-stamped notice of termination (“Termination Notice”). (i) For a period of 90 days from the Termination Notice date (“Grace Period”) Your Network will effectively be "frozen". During this Grace Period all Admin and other privileged roles shall be turned off and all Members shall be put into a read only mode ("Readers"). Readers are allowed read/download operations only (all access controls will remain in place during the Grace Period). Readers shall be prohibited from adding anything new to the Network. (ii).At any time during the Grace Period, You can choose any of the following two (2) options in order to continue using Your Network(s): (1) Renew Your subscription at the current fees as set forth in Your renewal invoice from BroadVision; (2) Continue in a Readers only mode for all Members by paying a fee equal to the greater of 25% of the cost of Your original subscription or Two Thousand Dollars per month (USD$2000.00). Each of the two options requires You to commit to the chosen service for a minimum term of one full-year from the Termination Notice date and requires the full fee paid upon commitment. (iii.) If none of the above 2 options are exercised, upon expiration of the Grace Period Your Network shall no longer be accessible by You or any of Your Members. You may make an explicit request in writing to have Your frozen Network along with all its backup data destroyed. BroadVision will use reasonable commercial efforts to honor your request. (iv.) If You do not explicitly request destruction of Your Network and its backup data, and at some future date beyond the Grace Period (“Reinstatement Date”) You desire to exercise one of the two options set forth above, BroadVision cannot guarantee that Your network and its data will still exist. In the event Your Network and its data still exist, You will be required to: (1) Pay a Three Thousand Dollar (USD$3,000.00) one-time reinstatement fee, and (2) Pay a True-up fee for the service from the Termination Notice Date to Reinstatement Date, and (3) Pay the required fee for the requested service for a minimum of one full-year beginning on the Reinstatement Date.
B. Termination for Other Reasons. Upon termination or deactivation of Your account for any other reason, You will no longer have a right to access Clearvale Services, Your account, Your configuration, Your Content, Your Clearvale Member Data, or Your Network Member Data. BV will have no obligation to assist You in migrating Your Clearvale Member Data, Your Content, Your Network Member Data, Your configuration or Your Network(s) off of the Clearvale Platform without You paying BV additional fees. BV is not responsible for deleting Your configuration or Content on Your behalf. Note that, even if Your configuration or Content is deleted from Clearvale’s runtime environment, it may remain in our archives and subject to the licenses set forth in this Agreement.
C. Survival. The following sections will survive termination of this Agreement for any reasons: Section 1, 2, 3, 5-8, 10, 12-16.
4. Password. When You sign up to become a Member, You will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of Your password. You agree not to use the Clearvale ID, username, or password of another Member at any time or to disclose Your Clearvale ID, username or password to any third party and You agree to notify BV immediately if You suspect any unauthorized use. You are solely responsible for any and all use of Your Clearvale ID, username and password.
5. Proprietary Rights in Content on Clearvale.
A. Content You Post of Clearvale. (1) BV does not claim any ownership rights in Content that You post to the Clearvale Services. After posting Your Content to the Clearvale Services, You continue to retain all ownership rights in such Content, and You continue to have the right to use Your Content in any way You choose. By displaying or publishing ("posting") any Content on or through the Clearvale Services, You hereby grant to Clearvale/BV a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content solely on and through the Clearvale Services. This license is necessary for Clearvale/BV to provide the Clearvale Services. For example, without the right to modify Member Content, Clearvale would not be able to format Content to satisfy technical requirements for online display.. The license You grant to Clearvale/BV is non-exclusive (meaning You are free to license Your Content to anyone else in addition to Clearvale), fully-paid and royalty-free (meaning that Clearvale/BV is not required to pay You for the use on the Clearvale Services of the Content that You post), sublicensable (so that Clearvale/BV is able to use its affiliates and subcontractors such as Internet content delivery networks to provide the Clearvale Services), and worldwide (because the Internet and the Clearvale Services are global in reach). This license will terminate at the time You remove Your Content from the Clearvale Services. The license does not grant Clearvale/BV the right to sell Your Content, nor does the license grant Clearvale/BV the right to distribute Your Content outside of the Clearvale Services. (2) You represent and warrant that: (i) You own the Content posted by You on or through the Clearvale Services or otherwise have the right to grant the license set forth in this section, and (ii) the posting of Your Content on or through the Clearvale Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any Content posted by You to or through the Clearvale Services.
B. BV/Clearvale Services. (1)The Clearvale Services contain Content of Clearvale/BV ("Clearvale Content"). Clearvale Content is protected by copyright, trademark, patent, trade secret and other laws, and BV owns and retains all rights in the Clearvale Content and the Clearvale Services. BV hereby grants You a limited, revocable, nonsublicensable license to reproduce and display the Clearvale Content (excluding any software code) in connection with viewing the Clearvale Website and using the Clearvale Services. (2) BV/Clearvale shall have title to the software, systems design, and documentation arising out of performance of any services under this Agreement. The parties acknowledge that performance under this Agreement may result in the development of new concepts, software, methods, techniques, processes, adaptations, tools, and ideas, in addition to BV/Clearvale’s prior technology which may be incorporated in BV/Clearvale’s performance. The parties agree that the same shall belong exclusively to BV/Clearvale. (3) The Clearvale Services contain Content of Users and other BV/Clearvale licensors. Except for Content posted by You, You may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the Clearvale Services.
6. Content Posted.
A. BV may delete any Content that in its sole judgment violates this Agreement or which may be offensive, illegal or violate the rights of, or harm, or threaten the safety of any person. BV assumes no responsibility for monitoring the Clearvale Services for inappropriate Content or conduct. If at any time BV chooses, in its sole discretion, to monitor the Clearvale Services, BV nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
B. You are solely responsible for the Content that You or Your Users post on or through any of the Clearvale Services, and any material or information that You or Your Users transmit to other Members and for Your or Your Users interactions with other Users. BV does not endorse and has no control over the Content. Content is not necessarily reviewed by BV prior to posting and does not necessarily reflect the opinions or policies of BV. BV makes no warranties, express or implied, as to the Content or to the accuracy and reliability of the Content or any material or information that You or Your Users transmit to other Members.
7. Content/Activity Prohibited on Clearvale. The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the Clearvale Services. BV reserves the right to investigate and take appropriate legal action against anyone who, in BV's sole discretion, violates this provision, including without limitation, removing the offending communication from the Clearvale Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to Content that, in the sole discretion of BV: is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; harasses or advocates harassment of another person; exploits people in a sexual or violent manner; contains nudity, violence, or offensive subject matter or contains a link to an adult website; solicits personal information from anyone under 13; provides any personal information about or photographs of another person without that person’s express authorization; promotes information that You know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files; involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spamming" or “spimming”; contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page); furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; solicits passwords or personal identifying information for unlawful purposes from other Users; engages in any unlawful activity, uses sexually suggestive imagery or any other unfair, misleading or deceptive Content intended to draw traffic to the profile.
Following is a partial list of the kind of activity that is illegal or prohibited on the Clearvale Website and through Your use of the Clearvale Services. BV reserves the right to investigate and take appropriate legal action against anyone who, in BV's sole discretion, violates this provision, including without limitation, reporting You to law enforcement authorities. Prohibited activity includes, but is not limited to: criminal or tortuous activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets; advertising to, or solicitation of, any Member to buy or sell any products or services through the Clearvale Services. You may not transmit any chain letters or junk email to other Members. It is also a violation of these rules to use any information obtained from the Clearvale Services in order to contact, advertise to, solicit, or sell to any Member without their prior explicit consent. In order to protect our Members from such advertising or solicitation, BV reserves the right to restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which BV deems appropriate in its sole discretion.
8. Installation and Use of External Widget(s). Your use of an External Widget will be governed by this Agreement. Your use and installation of External Widgets is at Your own discretion and risk and You are solely responsible for any damage to Your computer system, mobile device, or other device, or loss of data that results from such use.
9. Access to Your Data by External Widget(s). If You use and install an External Widget, Your data may be transmitted outside of the cleavale.com’s system, and the provider of the External Widget may be able to obtain access to Your data in clearvale.com’s systems through clearvale.com application programming interface (API). This may result in the disclosure, modification or deletion of your data by the External Widget provider. Further, the External Widget provider and its agents and partners may collect and use data pertaining to Your configuration and use of the External Widget. Clearvale.com is not responsible for any transmission, collection, disclosure, modification, use or deletion of Your data, as described in this paragraph, by or through third-party External Widget or their provider or any of its agents and partners.
10. Copyright Policy. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is our policy to terminate Membership privileges of any Member who repeatedly infringes the copyright rights of others.. Without limiting the foregoing, if You believe that Your work has been copied and posted on the Clearvale Services in a way that constitutes copyright infringement, please provide our Copyright agent, at the address set forth on our homepage, with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that You claim has been infringed; (iii) a description of where the material that You claim is infringing is located on the Clearvale Services; (iv) Your address, telephone number, and email address; (v) a written statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf.
11. Member Disputes. You are solely responsible for Your interactions with other Clearvale Members. BV reserves the right, but has no obligation, to monitor disputes between You and other Members.
12. Disclaimers. BV IS NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON THE CLEARVALE WEBSITE OR IN CONNECTION WITH THE CLEARVALE SERVICES, WHETHER CAUSED BY USERS OF THE CLEARVALE SERVICES OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE CLEARVALE SERVICES. PROFILES CREATED AND POSTED BY MEMBERS ON THE CLEARVALE WEBSITE MAY CONTAIN LINKS TO OTHER WEBSITES. BV IS NOT RESPONSIBLE FOR THE CONTENT, ACCURACY OR OPINIONS EXPRESSED ON SUCH WEBSITES, AND SUCH WEBSITES ARE IN NO WAY INVESTIGATED, MONITORED OR CHECKED FOR ACCURACY OR COMPLETENESS BY CLEARVALE/BV. INCLUSION OF ANY LINKED WEBSITE ON THE CLEARVALE SERVICES DOES NOT IMPLY APPROVAL OR ENDORSEMENT OF THE LINKED WEBSITE BY CLEARVALE/BV. WHEN YOU ACCESS THESE THIRD-PARTY SITES, YOU DO SO AT YOUR OWN RISK. ANY MATERIALDOWNLOADED OTHERWISE OBTAINED THROUGH THE USE OF THE CLEARVALE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
EXTERNAL WIDGETS ON CLEARVALE ARE SUBMITTED BY PARTIES OTHER THAN BV AND BV IS NOT RESPONSIBLE FOR AND HAS NO CONTROL OF SUCH EXTERNAL WIDGETS AND CONTENT ON ANY EXTERNAL WIDGETS, WHETHER OR NOT BV REVIEWED OR APPROVED SUCH EXTERNAL WIDGET TO BE INSTALLED ON CLEAVALE. YOU AGREE THAT YOU BEAR ALL RISKS ASSOCIATED WITH INSTAILLING, USING OR RELYING ON EXTERNAL WIDGETS AND CONTENT ON EXTERNAL WIDGETS AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR OTHER DEVICE, OR LOSS OF DATA THAT RESULTS FROM SUCH USE. WE DO NOT IN ANY WAY WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, NON-INFRINGEMENT, OR QUALITY OF ANY EXTERNAL WIDGETS OR CONTENT ON EXTERNAL WIDGETS, REGARDLESS OF WHO ORIGATED THAT CONTENT (INCLUDING OUR EMPLOYEES, PARTNERS, OR AFFILIATES). BV HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELATING TO SUCH EXTERNAL WIDGETS OR CONTENT. BV SHALL NOT BE LIBABLE OR RESPONSIBLE IN ANY WAY FOR ANY LOSSES OR DAMAGE OF ANY KIND,INCLUDING LOST PROFITS OR OTHER INDIRECT OR CONSEQUENTIAL DAMAGES, RELATING TO YOUR USE OR RELIANCE UPON ANY EXTERNAL WIDGETS OR CONTENT ON EXTERNAL WIDGETS.
YOUR USE OF THE CLEARVALE SERVICES, EXTERNAL WIDGETS, AND ALL THIRD PARTY SOFTWARE, NON-CLEARVALE CODE, AND CONTENT (INCLUDING THIRD PARTY CONTENT AND CONTENT ON EXTERNAL WIDGETS), ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE CLEARVALE SERVICES, EXTERNAL WIDGETS, AND ALL THIRD PARTY SOFTWARE, NON-CLEARVALE CODE AND CONTENT (INCLUDING THIRD PARTY CONTENT AND CONTENT ON EXTERNAL WIDGETS) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BV AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. BV AND ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS AND AGENTS DISCLAIM ANY WARRANTY THAT THE CLEARVALE SERVICES, EXTERNAL WIDGETS, OR ANY THIRD PARTY SOFTWARE, NON-CLEARVALE/BV CODE OR CONTENT (INCLUDING THIRD PARTY CONTENT AND CONTENT ON EXTERNAL WIDGETS) WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CLEARVALE SERVICES OR THE SERVER THAT MAKES THE CLEARVALE SERVICES AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BV MAKES NO GUARANTEE REGARDING (A) THE AMOUNT, TIMING AND DELIVERY OF ANY CLICKS OR IMPRESSIONS WITH RESPECT TO ANY CONTENT (INCLUDING THIRD PARTY CONTENT AND CONTENT ON EXTERNAL WIDGETS) OR ADVERTISING ON THE CLEARVALE OR YOUR NETWORK (B) THE VOLUME AND QUALITY OF ANY TRAFFIC TO YOUR NETWORK OR (C) THE COMPATIBILITY OF YOUR CODE OR ANY NON-CLEARVALE CODE WITH ANY CLEARVALE SERVICES. BV ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER OR MEMBER COMMUNICATION. BV IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF ANY EMAIL OR PLAYERS DUE TO TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON ANY OF THE CLEARVALE SERVICES OR COMBINATION THEREOF, INCLUDING ANY INJURY OR DAMAGE TO USERS OR TO ANY PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE CLEARVALE SERVICES. UNDER NO CIRCUMSTANCES SHALL BV BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE CLEARVALE SERVICES, ATTENDANCE AT A CLEARVALE EVENT, FROM ANY CONTENT POSTED ON OR THROUGH THE CLEARVALE SERVICES, OR FROM THE CONDUCT OF ANY USERS OF THE CLEARVALE SERVICES, WHETHER ONLINE OR OFFLINE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BV OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, OR THROUGH OR FROM THE CLEARVALE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
13. Limitation on Liability. YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL BV, OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, SUPPLIERS, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF BV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OR THE INABILITY TO USE THE CLEARVALE PLATFORM; OR (B) ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) IN EXCESS OF THE GREATER OF (i) $100 OR (ii) THE TOTAL AMOUNTS PAID TO BV BY YOU FOR CLEARVALE SERVICES IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL NOTICE OF ANY CLAIM.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN BV (INCLUDING THIRD PARTY APPLICATION DEVELOPERS) AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE CLEARVALE PLATFORM OR RECEIVED BY YOU ON ANY THIRD PARTY SITES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
14. Disputes. If there is any dispute about or involving the Clearvale Services, You agree that the dispute shall be governed by the laws of the State of California without regard to conflict of law principles. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this Agreement or any transactions hereunder.
15. Arbitration. Any controversy, claim or dispute (“Dispute”) arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. Before commencing any such arbitration, the parties agree to enter into negotiations to resolve the Dispute. If the parties are unable to resolve the Dispute by good faith negotiation, either party may refer the matter to arbitration. The arbitration shall take place in San Francisco, California. The arbitrator shall be bound to follow the provisions of this Agreement in resolving the Dispute, and may not award punitive damages or any damages excluded by this Agreement. The decision of the arbitrator shall be final and binding on the parties, and any award of the arbitrator may be entered or enforced in any court of competent jurisdiction.
16. Indemnity. You agree to indemnify and hold BV, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Your use of the Clearvale Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of Your representations and warranties set forth above and/or if any Content that You post on the Clearvale Website or through the Clearvale Services causes BV to be liable to another.
17. Consulting Services. In the event You desire any consulting services, You can enter into a separate agreement with BV.
18. Marketing. BV may include Your name, if You are a company or legal entity, in a list of Clearvale customers and You hereby expressly authorize BV to publicize the execution of this Agreement and Your use of Clearvale Services. In addition, You agree that BV may refer to You on BV’s marketing materials and upon reasonable request, You will speak to members of the press and prospective BV customers to discuss how You are using Clearvale.
The failure of BV to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
You may not delegate your duties under this Agreement or assign this Agreement or your Clearvale accounts or Clearvale IDs, in whole or in part, provided, however, that you may assign this Agreement in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. BV may assign any of its rights and obligations under this Agreement without consent, including, in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. This Agreement shall be binding on the parties' permitted assignees, transferees and successors.
The terms "including" and "includes" shall be deemed to be followed by the statement "without limitation" and neither of these terms shall be construed to limit any word or statement it follows to the specific or similar terms or matters immediately following it.
BV may provide you with notices, including those regarding changes to this Agreement or any of its terms and conditions, by email, regular mail, or postings on the Clearvale Website. Notice will be deemed given upon posting.
This Agreement is accepted upon Your use of the Clearvale Website or any of the Clearvale Services and is further affirmed by You becoming a Member. This Agreement constitutes the entire agreement between You and BV regarding the use of the Clearvale Services. The failure of BV to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.