Tr.im Terms of Service
Acceptance of Terms
- By registering for and/or using the Services in any manner, including but not limited to visiting, browsing and using the Services to shorten a uniform resource locator (“URL”), you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Services by Davinci11, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
- Certain of the Services may be subject to additional terms and conditions specified by Davinci11 from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
- These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
Davinci11 reserves the right, at its sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice or by sending you notice through the Services or by email. Davinci11 may also impose limits on certain features of the Services or restrict your access to parts or all of the Services without notice or liability. It is your responsibility to check these Terms of Service periodically for changes. Your use of the Services following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
You must be an individual at least 13 years old to use the Services. By using the Service, you represent that you are at least 13 years old and that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms, to abide by and comply with these Terms, and that you are accepting the benefit of the Services. You represent and warrant that you are at least 13 years of age. If you are under age 13, you may not, under any circumstances, use the Services. Davinci11 may, in its sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. If you are older than 13 but younger than 18 years of age (a "Minor Child"), you must have parental consent before registering for an account on the Services and your parent must accept these Terms on your behalf. If you, as a parent or legal guardian, have agreed to allow your Minor Child to use the Services, you agree that you shall be solely responsible for: (i) the online conduct of such Minor Child; (ii) monitoring such Minor Child’s access to and use of the Services; and (iii) the consequences of any use of the Services by such Minor Child. Furthermore, if you are using the Service on behalf of a company, entity, or organization, or group or division of any of the aforementioned parties (collectively, an "Organization"), then you represent and warrant that you: are an authorized representative of that Organization with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such Organization. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
While some features of the Service are available to unregistered users, for broader access to the Services you must register with Tr.im (creating an “Account”). In order to register, you must provide an accurate email address and select a username. You are responsible for updating the accuracy of the email address that you provide to Davinci11 to be associated with your Account. Regarding usernames, you shall not (i) select or use, as your username, the name of another person with the intent to impersonate that person; (ii) select or use, as your username, a name subject to any rights of a person or entity other than you without appropriate authorization or (iii) select or use, as your username, a name that is otherwise offensive, vulgar or obscene.
You are solely responsible for the activity that occurs on your Account, and for keeping your Account secure. You are not permitted to use another Account without permission. You must notify us immediately of any breach of security or other unauthorized use of your Account. You should never publish, distribute or post login information for your Account.
Proprietary Rights Notice
The Service is owned and operated by Davinci11. The content, visual interfaces, multimedia content (including musical works and sound recordings), features, information, graphics, design, compilation, computer code, software, products, and all other elements of the Service provided by Davinci11 ("Davinci11 Materials") are the valuable proprietary and intellectual property of Davinci11 or its licensors. Davinci11 Materials does not include User Content (as defined in the Intellectual Property Policy), [including but not limited to links] Davinci11 Materials are protected by applicable international, federal, and state laws, rules, and regulations relating to intellectual or proprietary property, including, but not limited to, patent, copyright, trademark and trade secret laws. You agree not to reproduce, distribute, display, revise, create derivatives of, copy, publish, sell, license, or edit any Davinci11 Materials. Any attempt to download, print, publish or maintain the Davinci11 Materials in violation of these Terms or any applicable license, to distribute copies of the Davinci11 Materials, or to otherwise exploit the Davinci11 Materials in violation of the intellectual property or proprietary rights of others is strictly prohibited by these Terms.
The Services allow you to shorten and track URLs using the Tr.im domain as the link. As long as you comply with these Terms of Service, you may use the Services your personal, non-commercial purposes. Please contact us if you would like to use the Services for your business.
We provide a web-based software application (and supporting technologies) that you can access to use the Services. As long as you comply with these Terms of Service, you have the right to use this software to access and use the Services. This license is for the sole purpose of enabling you to use the Services, as permitted by these Terms of Service. You may not modify, re-distribute, or sell the software, nor may you decompile or attempt to extract the source code of that software. If you download software from the Apple App Store, Google Play or other app store (a "Third Party App Provider"), please note that:
- These Terms of Service are concluded between us, and not with the Third Party App Provider, and that we (not the Third Party App Provider), are responsible for the software.
- The Third Party App Provider has no obligation to furnish any maintenance and support services with respect to that software or handle any warranty claims.
- The Third Party App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the software, such as, product liability claims, consumer protection claims, intellectual property infringement claims, or any claim that the software fails to conform to any applicable legal or regulatory requirement.
- The Third Party App Provider is a third party beneficiary of these Terms of Service as related to your license of the software, and the Third Party App Provider will have the right to enforce these Terms of Service as related to your license of the software against you.
- You must also comply with any applicable terms from any third party services that you access when using the software.
Certain features of the Services allow Davinci11 to collect and track metrics, and generate analytics, relating to URLs shortened using the Services, bundles of shortened URLs created using the Services, and other metrics and analytics related to use of the Services (“Tr.im Analytics”). Tr.im Analytics include, but are not limited to:
- A history of all URLs shortened by a particular Account.
- A history of all clicks on a shortened URL.
- A history of all sharing of a shortened URL through third-party services such as Facebook, LinkedIn, Twitter, etc. as well as any other applications owned by Davinci11.
- A history of referral URLs for clicks of a shortened URL.
- A history of IP addresses used to access a shortened URL.
- Visual presentation of any or all of the above (excluding IP addresses).
You acknowledge and agree that all Tr.im Analytics that are collected and/or generated are owned by Davinci11, and that Davinci11 has the right to use, license, sell or otherwise dispose of Tr.im Metrics for any purpose.
Publisher Terms for Branded URL Service
The Service also allows for the use of branded URLs ("Branded URLs") using a different domain (for example, http://www.innovationcentral.com/example) that relate to a Publisher’s brand and allows the Publisher to share and track the use of Branded URLs (collectively, the "Branded URL Service"). The Branded URLs may be designated by the Publisher in an insertion order or through the web interface provided for the Branded URL Service. If you are a Publisher and wish to use the Branded URL Service as part of the Service, the following terms apply.
(a) License to Branded URL. Subject to the terms and conditions herein and your acceptance of these Terms, Publisher grants to Davinci11 a non-exclusive, royalty-free, non-sublicensable license to use Branded URLs solely as needed for Davinci11 to provide the Branded URL Service. Publisher shall retain all ownership rights in the Branded URLs. Publisher represents and warrants that (i) it maintains adequate rights in and to the Branded URLs (including without limitation under the intellectual property rights in and to any third party content contained therein) in order to engage in the Service, including without limitation the right to modify and create derivative works of any materials on the Branded URLs. Publisher will indemnify, defend, and hold Davinci11 harmless from and against all damages, liabilities, costs, and expenses (including, without limitation attorney fees) that Davinci11 may incur as the result of any action brought against Davinci11 arising out of the acts of Publisher in breach of this Section 5(a).
(b) API License. Subject to these Terms, Davinci11 hereby grants to Publisher a non-exclusive, non-transferable, non-sublicensable license to use Davinci11’s Tr.im application programming interface ("Tr.im API") for the sole purpose of participating in, implementing, and using the Branded URL Service. Davinci11’s provision of the Branded URL Service is conditioned on Publisher’s use of the Tr.im API and compliance with these Terms.
(c) API License Restrictions. Publisher shall not use the Tr.im API for any other purpose other than that set forth in Section 5(b) above. Without limiting the foregoing, Publisher shall not: (i) use the Tr.im API for the purposes of developing a product that will be owned by a third party or that would compete with Davinci11 products or services; (ii) sublicense, rent, lend, lease, permit third party access to, or use of, the Tr.im API; (iii) copy, distribute, reproduce, sell, use or allow access to the Tr.im API, except as explicitly permitted under these Terms; (iv) modify, adapt, translate, reverse engineer or decompile (except to the extent expressly authorized by law), or prepare derivative works from the Tr.im API; (v) remove, obscure, or alter Davinci11’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the Tr.im API; or (vi) use the Tr.im API to disable, override, or otherwise interfere with the Service.
(d) Ownership of Branded URLs. As between Company and Davinci11, (i) Company retains all right, title and interest in and to the Branded URLs, including content thereon, and (ii) subject to the limited rights and licenses granted to Company pursuant to these Terms, Davinci11 retains all right, title and interest in and to the Service and the Tr.im API. Davinci11 shall own any data or information that we collect through our network from use of the Service, while you will own all data or information that you collect from users of your websites.
Publisher Terms for Widgets
If you are a Publisher and wish to use the Service to allow users to share content located on your Publisher Websites, the following terms apply to you.
(a) Site Approval and License. Subject to these Terms, you may implement the Service on Publisher Websites without Davinci11’s prior approval, and Davinci11 hereby grants to Publisher a non-exclusive, non-transferable, non-sublicensable license to use Widgets on Publisher Websites for the sole purpose of participating in the Service. Davinci11 reserves the right to deny or revoke participation of any website in the Service and/or terminate this license at any time in its sole discretion.
(b) Implementation. The Widget and instructions to implement the Widget on Publisher Websites are available here. Publisher shall follow such instructions in implementing the Widget, and shall implement the Widget on all Publisher Websites.
(c) License Restrictions. Publisher shall not use the Widget for any other purpose other than that set forth in Section 6(a) above. Without limiting the foregoing, Publisher shall not: (i) use the Widget for the purposes of developing a product that will be owned by a third party or that would compete with Davinci11’s products or services; (ii) sublicense, rent, lend, lease, permit third party access to, or use of, the Widget; (iii) copy, distribute, reproduce, sell, use or allow access to the Widget, except as explicitly permitted under these Terms; (iv) modify, adapt, translate, or prepare derivative works from the Widget; (v) remove, obscure, or alter Davinci11’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the Widget; or (vi) copy, distribute, reproduce, sell, use or allow access to Davinci11's advertising tags for use in banner advertisements or for any purpose that is not expressly approved by Davinci11 in writing.
(d) Publisher Websites. Publisher represents and warrants that (i) it maintains adequate rights in and to the Publisher Websites (including without limitation under the intellectual property rights in and to any third party content contained therein) in order to engage in the Service, including without limitation the right to modify and create derivative works of any materials on the Publisher Websites and (ii) the Publisher Websites do not portray illicit drugs; and do not contain pornography, adult or mature content; or any content that otherwise promotes violence, illegal activity or infringes on the rights of others. Publisher will indemnify, defend, and hold Davinci11 harmless from and against all damages, liabilities, costs, and expenses (including, without limitation attorney fees) that Davinci11 may incur as the result of any action brought against Davinci11 arising out of the acts of Publisher in breach of this Section 6(d).
(e) Sharing of Content. The Service is designed to allow users to easily share content from Publisher Websites with other parties. As such, we do not claim any ownership rights in any content on the Publisher Websites. By placing the Widget on your websites, you grant us a worldwide, nonexclusive, fully-paid-up, assignable, and royalty-free right and license to distribute, perform, display, and reproduce your content solely as necessary to provide your content through the Service.
(f) Ownership of Publisher Websites. As between Publisher and Davinci11, (i) Publisher retains all right, title and interest in and to the Publisher Website including content thereon and (ii) subject to the limited rights and licenses granted to Publisher pursuant to these Terms Davinci11 retains all right, title and interest in and to the Service and the Widget. Davinci11 shall own any data or information that we collect through our network from use of the Service, while you will own all data or information that you collect from users of your websites.
For purposes of these Terms of Service, the term “Content” includes, without limitation, URLs, shortened URLs, custom vanity URLs, curated URLs, bundles or packages of URLs, videos, audio clips, written posts and comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services.
The Services contain Content specifically provided by Davinci11 or its partners and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Such Content includes, but is not limited to, Tr.im Metrics. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
Subject to these Terms of Service, Davinci11 grants each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use the Content, solely for personal, non-commercial use as part of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use is expressly prohibited without prior written permission from Davinci11, or from the copyright holder identified in such Content’s copyright notice. If you would like to use the Services for commercial purposes, you must enter into a license agreement for our Tr.im Enterprise tools, or contact us regarding other types of uses.
License to Davinci11
By submitting User Content through the Services, you hereby do and shall grant Davinci11 a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Services and Davinci11’s (and its successors and assigns’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds).
License to Users
You also hereby do and shall grant each user of the Services a non-exclusive license to access your User Content through the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content.
You also hereby do and shall grant each user of the Services a non-exclusive license to access your User Content through the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content.
Availability of Content
Davinci11 does not guarantee that any Content will be made available through the Services. Further, Davinci11 has no obligation to monitor the Services. However, Davinci11 reserves the right to (i) remove, edit or modify any Content in its sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Davinci11 is concerned that you may have violated these Terms of Service), or for no reason at all and (ii) remove or block any Content from the Services.
Rules of Conduct
- By using the Tr.im Services, you agree not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
You shall not, and shall not permit any third party to, either (a) take any action or (b) upload,
download, post, submit or otherwise distribute or facilitate distribution of any Content (including User
Content) on or through the Service that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (Davinci11's DMCA Copyright Policy [http://www.davinci11.com/legal/dmca-copyright-policy]);
- undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service, Davinci11 Materials or User Content (as defined in the Intellectual Property Policy) or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access any of the Service other than as intended;
- reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any part of the Service, use of the Service, access to the Service, or content obtained through the Service (including without limitation Davinci11 Materials and User Content) except and solely to the extent permitted by these Terms;
- access or use the Service for comparative or competitive research purposes;
- remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any part of the Service, or features that enforce limitations on the use of the Service or any content therein;
- use any robot, spider, scraper, or other automated means of any kind to access the Service, except and solely to the extent permitted by these Terms and the features of the Service, deep-link to any feature or content on the Service, frame or otherwise enclose any Davinci11 trademark or any portion of the Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service;
- is unlawful, such as content that is threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another’s privacy, or tortuous;
- constitutes unauthorized or unsolicited advertising, junk or bulk email (“spamming”);
- publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
- create a false identity or impersonate another for the purpose of misleading others as to the identity of the sender or the origin of a message, including, but not limited to, providing misleading information to any feedback system employed through the Service;
- transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs;
- redirects, distribute, or is used to surreptitiously collect private information from another User’s account (“phishing”);
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Davinci11 or any third party;
- impersonates any person or entity, including any employee or representative of Davinci11;
- includes anyone’s identification documents or sensitive financial information; or
- interfere with or disrupt the Service, networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers;
- upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation (commercial or otherwise); or
- use the Service in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
- is otherwise determined by Davinci11 to be inappropriate at its sole discretion.
- You shall not: (i) take any action that imposes or may impose (as determined by Davinci11 in its sole discretion) an unreasonable or disproportionately large load on Davinci11’s (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass any measures Davinci11 may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Services; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of Davinci11’s guidelines and policies.
- You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any aspect, feature or part of the Services, except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Services; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
- Davinci11 also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms of Service, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of Davinci11, its users and the public. This includes exchanging information with other companies and organizations for fraud protection and spam prevention.
Third Party Content, Links and Services
Content shared or linked to on the Service may contain references or links to third-party materials and services (including, without limitation, web sites from third parties) not controlled by Davinci11 or its suppliers or licensors.
Davinci11 provides such information and links as a convenience to you and should not be considered endorsements of such sites or any content, products or information offered on such sites. The Tr.im Services may permit you to link to other websites, services or resources on the Internet, such as Twitter and Facebook, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under the control of Davinci11, and you acknowledge that Davinci11 is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by Davinci11 or any association with its operators. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service are solely between you and such advertiser. YOU AGREE THAT DAVINCI11 WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SERVICE. Additionally, when you leave the Service for example by clicking on a link, these Terms no longer govern. You should review applicable terms and policies, including any relevant privacy policies, associated with any third party web sites, software, or services you utilize.
Required Disclosure for Publishers
Your use of the Service may bring you into contact with other users, and their User Content, such as by sharing links with other users of the Service. You are solely responsible for your involvement with other users. If you have a dispute with one or more Users, you release Davinci11 (and Davinci11's officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (including, but not limited to, actual, special, consequential and punitive) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
(a) By Davinci11. Davinci11, in its sole discretion and for any reason or no reason, may terminate any user or user account (or any part thereof) you may have on the Service, disable your access to the Service (or any part thereof), discontinue the Service and any related services including support (or any part thereof), or terminate any license or permission granted to you hereunder, at any time, with or without notice. You agree that Davinci11 shall not be liable to you or any third-party for any such termination. Davinci11 does not permit unlawful, infringing, fraudulent, or otherwise illegitimate activities on the Service, and reserves the right to halt, suspend, or terminate access to the Service, in cases of actual or suspected fraud, or violations of these Terms or other laws or regulations. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. Davinci11 will not have any responsibility to deliver or allow you access to any of your User Content or other information you may have stored with Davinci11 in connection with your use of the Service. These remedies are in addition to any other remedies Davinci11 may have at law or in equity.
(b) By You. If you are dissatisfied with the Service, then please let us know by emailing us at firstname.lastname@example.org. Your only remedy with respect to any dissatisfaction with (i) the Service, (ii) any of these Terms, (iii) any policy or practice of Davinci11 in operating the Service, or (iv) any content or information transmitted or made available through the Service, is to terminate your use of the Service. You may terminate your use by (i) closing your account and discontinuing your use of any and all parts of the Service, or (ii) providing Davinci11 with notice of termination at email@example.com.
(c) Survival; Rights and Obligations upon Termination. Upon termination of these Terms, your right to use the Service shall immediately terminate. Publishers shall immediately (i) remove the Widget from all Publisher Websites and (ii) cease use of the Tr.im API and Services. In addition, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 2, 5(d), 6(f), 7, 11, 13-24, and 26, the Parties’ indemnification obligations in Sections 5(a), 6(d), 12, and the Intellectual Property Policy.
Davinci11 has no special relationship with or fiduciary duty to you. You acknowledge that Davinci11 has no control
over, and no duty to take any action regarding:
- which users gains access to the Services;
- what Content you access via the Services;
- what effects the Content may have on you;
- how you may interpret or use the Content; or
- what actions you may take as a result of having been exposed to the Content.
- You release Davinci11 from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Davinci11 makes no representations concerning any Content contained in or accessed through the Services, and it will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services.
- THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. DAVINCI11, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
- ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18 USC 2701-2711): DAVINCI11 MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SERVICES OR ANY WEBSITE LINKED TO THE SERVICES. Davinci11 will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Davinci11’s equipment, transmitted over networks accessed by the Services, or otherwise connected with your use of the Services.
You shall defend, indemnify, and hold harmless Davinci11, its affiliates and each of their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your use or misuse of, or access to, the Services, Content, or which otherwise arise from your User Content, violation of these Terms of Service, or infringement by you, or any third party using your Account, of any intellectual property or other right of any person or entity. Davinci11 reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will assist and cooperate with Davinci11 in asserting any available defenses.
Limitation of Liability
IN NO EVENT SHALL DAVINCI11, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, PARTNERS, SUPPLIERS, REPRESENTATIVES OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING); OR (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION). NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL SUCH LIABILITY EXCEED ANY DAMAGES IN EXCESS OF ONE HUNDRED U.S. DOLLARS ($100.00) IN THE AGGREGATE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Disclaimers THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT, OR ANY OTHER SERVICE OR INFORMATION PROVIDED BY Davinci11), USER CONTENT AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE, ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", "WITH ALL FAULTS" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DAVINCI11 AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Davinci11 AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY USER CONTENT, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, SOFTWARE, CONTENT, OR DATA THROUGH THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
Limitations; Basis of the Bargain
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND Davinci11, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND DAVINCI11, DAVINCI11'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT DAVINCI11 WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
Governing Law and Jurisdiction.
These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and federal courts of San Francisco County, San Francisco, CA.
Davinci11 may provide you with notices by electronic mail, regular mail or postings on the Service. If notice is provided by electronic mail, notice will be deemed given twenty-four hours after electronic mail is sent, unless the sending party is notified that the electronic mail address is invalid. If notice is provided by posting through the Service, then notice will be deemed given upon your viewing of such posting. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Service. In such case, notice will be deemed given three days after the date of mailing.
We enjoy hearing from you and welcome your comments about the Service. However, if you send us a business idea or suggestion (for example, about how to improve or expand our products and services), you agree that we will be completely free to implement, use, or modify, in any way, your idea or suggestion (or any part of it), without any payment or other obligation to you.
You may not export or re-export the Service, the Tr.im API, the Widget, or any portion of the Service without complying with applicable export control laws and obtaining any necessary permits and licenses. In the event you do so, you agree to comply with such laws at your own expense, and agree to indemnify and hold Davinci11 harmless for any noncompliance.
The Widget, Tr.im API, and any software or code provided by us are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Section 25 of the Terms applies solely to Publishers that are incorporated in countries located within the European Union.
(e) Publisher and Davinci11 agree to work together in good faith in respect of any other best practice or legally necessary privacy or metrics and analytics related disclosures which may now or in the future be required on the Publisher Website(s) in relation to the Services and Publisher's use or deployment of these Services.
Entire Agreement and Severability
These Terms of Service are the entire agreement between you and Davinci11 with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Davinci11 with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. These Terms shall not be modified or waived except in a writing signed by both parties, or by a change to these Terms as provided in Section 10 above. The failure of Davinci11 to enforce, in any one or more instances, any of the provisions herein shall not be construed as a waiver of the prior or future performance of any such terms or conditions. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Davinci11 as a result of these Terms or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between you and Davinci11 other than pursuant to these Terms. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Davinci11 without restriction, including by operation of law, reorganization, reincorporation, merger, or sale of all or substantially all of the assets to which this agreement pertains. Any assignment attempted to be made in violation of these Terms shall be void.
Davinci11 shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Davinci11’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with Davinci11’s prior written consent. Davinci11 may assign, transfer or delegate any of its rights and obligations hereunder without consent.
No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
The failure of Davinci11 to enforce any part of these Terms of Service shall not constitute a waiver of its right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance, does not mean that we will do so in the future. In order for any waiver of compliance with these Terms of Service to be binding, Davinci11 must provide you with written notice of such waiver, provided by one of its authorized representatives.
The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.
You may contact Davinci11: by mail at One Market Plaza, 1 Market St., 27th Floor, San Francisco, CA 94105; or by email at firstname.lastname@example.org. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your electronic mail address and a request for this information.
Effective Date of Terms of Service: September 12, 2014.