Terms of service

Last updated July 29, 2020

  1. Your Acceptance

Provivi, Inc. and its subsidiaries and affiliates (collectively, “Provivi”) provide (1) the websites located at www.provivi.com, provivi.herokuapp.com and any other websites hosted by Provivi (collectively, the “Sites”), (2) services accessible or downloadable through the Sites (“Web Apps”) and (3) software that may be downloaded to your smartphone, tablet or other similar device to access services (“Mobile Apps”), all for use in conjunction with Provivi pheromone products and other products and services provided by Provivi (collectively, “Products”). The term “Services” means the Sites, Web Apps and Mobile Apps.

THESE TERMS OF SERVICE CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION IN SECTION 11, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS OF SERVICE AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH PROVIVI. YOU MAY OPT OUT OF ARBITRATION AND THE CLASS ACTION WAIVER AS PROVIDED IN SECTION 11.

FOR IMPORTANT DISCLAIMERS OF WARRANTY AND WARNINGS CONCERNING USAGE, SEE SECTION 8.

Public Beta. You understand and acknowledge that the Services are being provided as a “Public Beta”, and are made available on an “AS IS” and “AS AVAILABLE” basis for the purpose of providing Provivi with feedback on the quality and usability of the Services. The Services are currently still in development and in experimental form. The Services may contain errors or inaccuracies that could cause failures, corruption or loss of data from your devices and from peripherals (including servers and computers) connected to your devices. Provivi strongly encourages you to back-up all data on your device and any peripherals prior to using the Services. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE SERVICES, INCLUDING ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. In addition, Provivi is not obligated to continue to develop the Services or provide any maintenance, technical or other support for the Services.

Terms of Service. These Terms of Service (these “Terms”) govern your access to and use of the Services. The term “you” and “your”, as used in these Terms, means any person or entity who accesses or uses the Services and any person or entity who creates an account for use of the Services and accepts these Terms, including any individuals that you authorize to access or use the Services, including your independent contractors or employees (“Authorized Users”). Where the term “you” or “your” is used in these Terms, it shall include any Authorized User, regardless of whether “Authorized User” is specifically stated.

Please read these Terms before using our Services. By downloading, installing, accessing or using the Services, you are agreeing to be bound by these Terms. If you do not agree with these Terms, do not otherwise download, install, access or use the Services. These Terms are a binding agreement between you and Provivi. All additional guidelines, terms, or rules on the Services, including our Privacy Policy, are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services.

We may in our sole discretion amend our Terms from time to time. If you object to any such change, your sole recourse will be to cease using the Services. Your continued use of the Services following any such change will constitute acknowledgement of such change and agreement to be bound by the new terms and conditions.

 

  1. User Accounts

Before using Provivi’s Web Apps or Mobile Apps, you will need to sign up for an account. During registration we require that you provide us with your full name, phone number and email address, which we will manage in accordance with our Privacy Policy. We may also require additional information from you if necessary. If you are accepting these Terms on behalf of an entity or individual, you represent and warrant that you have full legal authority to bind such entity or individual to these Terms. You also represent and warrant that: (i) all required registration information you submit is truthful and accurate; (ii) you will maintain the accuracy of such information; (iii) your use of the Services do not and will not violate any U.S. or other applicable law or regulation and (iv) you are at least 18 years old (if you reside in the United States of America), or the equivalent minimum age in the jurisdiction where you reside or access or use the Services.

We have the final discretion in granting accounts and reserve the right to reject users without explanation. We may at our discretion restrict, limit or revoke your ability to register or use the Services at any time. You are fully responsible for the compliance with these Terms by all Authorized Users.

 

  1. License

License Grant. When using any of our Services, subject to your compliance at all times with these Terms, we grant you a worldwide, non-sublicensable, non-transferable, non-exclusive, revocable, limited license to use the Services solely for your personal use to manage and monitor applicable Products. Provivi may, from time to time and at its sole option, provide updates, upgrades, support and maintenance releases or other modifications to the Services, including certain External Software, which items shall be deemed part of the Services or External Software hereunder (as applicable). You hereby consent to any automatic updates, which may be automatically installed without providing any additional notice to you or receiving your additional consent.

Limitations on Use. The Services and its contents, features and functionality (including all information, software, text and graphics) (collectively, the “Content”) are protected by United States of America and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. You shall not directly or indirectly do any of the following:

  • sell, offer for sale, license, sublicense or distribute the Services or any Content;

  • copy, transmit, distribute, modify, prepare derivative works of, or display any Content in any way without the prior written permission of Provivi and its applicable licensors;

  • remove or alter any copyright, trademark or other proprietary rights notices from the Content, or use the Content in contravention of any such applicable notices;

  • copy, modify or create derivative works of, or reverse engineer, decompile, translate, disassemble or otherwise attempt to extract the source code of, any software included in the Services;

  • violate any applicable local, state, national or international law or regulation;

  • transmit anything that is illegal, abusive, harassing, harmful to reputation, indecent, profane, obscene, hateful, racist, or otherwise objectionable in our reasonable opinion;

  • transmit any malicious or unsolicited software;

  • impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;

  • jeopardize the security of your account or anyone else’s account, or attempt to obtain the username, password or other personal or security information of any other user;

  • access, view, or use the Services while driving or operating a vehicle or machinery of any kind (including cars, trucks, motorcycles, farming equipment and commercial equipment);

  • remove, circumvent, disable, or otherwise interfere with security-related features of the Services; or

  • create a substantially similar product or service to the Services, or to any component of the Services.

If you undertake any of the aforementioned actions, your privileges to use our Service may at our discretion be terminated or suspended. In addition, Provivi reserves the right to suspend or terminate any account at any time without notice or explanation.

Third-Party Software. Certain content included in, distributed with or downloaded in connection with the Services may include or use third-party proprietary software that is subject to separate terms of use or software licenses (“Third-Party Software”). All such Third-Party Software may include software or software components that are derived, in whole or in part, from software that is distributed as free software, open source software or under similar licensing or distribution models (“Open Source Software,” together with Third-Party Software, “External Software”).

For example, certain content (including certain mapping and weather services) made available through the Services is provided through External Software. Your use of External Software is subject in all cases to the applicable licenses and terms of use from the External Software provider, which shall take precedence over the rights and restrictions granted in these Terms solely with respect to such External Software. You shall comply with the terms of all applicable Third-Party Software and Open Source Software licenses, if any. Copyrights to Open Source Software are held by their respective copyright holders indicated in the copyright notices in the corresponding source files.

FOR THE AVOIDANCE OF DOUBT, PROVIVI PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SUCH EXTERNAL SOFTWARE OR ITS CONTENT. All information and weather data made available to you through the Services are provided to you on an “as-is” basis. You acknowledge that reports, forecasts, and other information regarding weather and climactic conditions are uncertain. Provivi does not provide any warranty, maintenance, technical or other support for any External Software, any content made available through such External Software or its use in any Service. Accordingly, Provivi is not responsible for your use of any External Software or any personal injury, death, property damage, or other harm or losses arising from or relating to your use of any External Software or content made available through such External Software, or any decisions made by you related to any such software or content.

 

  1. Intellectual Property Rights

All copyrights, trade secrets, patents, trademarks and other intellectual property and proprietary rights in any jurisdiction worldwide (collectively, “Intellectual Property Rights”) in and to the Services and the Content are the sole property of Provivi or its licensors. You do not have or receive any right, title or interest in or to the Services or the Content through your use of the Services or otherwise. Except for the limited license provided under “License Grant” in Section 3 of these Terms, Provivi does not grant any express or implied right to you under any of its Intellectual Property Rights. All trademarks, service marks, trade names and logos and the goodwill associated therewith (“Marks”) included or displayed in the Services or Content are the exclusive property of Provivi or their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Provivi or such respective holders.

 

  1. User Content and Comments

When (a) you or your devices send any information, data, text, images or other materials for display, processing, temporary storage or distribution through the Services, or (b) you upload to the Services, or our representatives collect, information related to your fields (including the geographic coordinates of such fields) and crops, including insect, trap or plant data, or other data related to your use of our Products (clauses (a) and (b) collectively, “User Content”), you hereby grant Provivi a non-exclusive, perpetual, sublicensable, royalty-free, irrevocable, worldwide, and transferable right (i) to copy (including to compile into its databases), display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, and prepare derivative works and otherwise use and reuse all or part of your User Content and anything we may make with your User Content through the Services or Products or any other medium currently invented or invented in the future and (ii) to make, have made, use, license, lease, sell, offer for sale and import the User Content and any copies thereof. We reserve the right to display advertisements in connection with User Content and to use your User Content for advertising and promotional purposes.

As between Provivi and you, you own all rights to your User Content. Provivi does not pre-screen User Content and you agree that you are solely responsible for all of your User Content. We are not required to host, display, or distribute any User Content, and we may refuse to accept or transmit User Content and may remove or delete User Content from our Services at any time. Provivi is not responsible for any loss, theft or damage of any kind to any User Content. You represent and warrant that your User Content, and Provivi’s and our licensors’ use thereof, do not and will not infringe the rights of any third party (including Intellectual Property Rights, rights of privacy or publicity, or any other legal or moral rights).

If you provide technical, business or other feedback, suggestions or comments to Provivi concerning the Services or any Product (collectively, “User Feedback”), you hereby assign to Provivi all right, title and interest in and to any User Feedback and all proprietary rights therein, including Intellectual Property Rights. You represent and warrant that the User Feedback are not subject to any license terms that would purport to require Provivi to comply with any additional obligations with respect to any Services that incorporate any User Feedback. To the extent the foregoing present assignment is ineffective for any reason, you hereby grant Provivi a non-exclusive, perpetual, sublicensable, royalty-free, irrevocable, worldwide and transferable right (i) to copy, display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, and prepare derivative works and otherwise use and reuse all or part of your User Feedback and anything we may make with your User Feedback through the Services or Products or any other medium currently invented or invented in the future and (ii) to make, have made, use, license, rent, lease, sell, offer for sale and import the User Feedback and any copies thereof.

 

  1. Data; Confidentiality

Data. You agree that Provivi may from time to time collect and use data in a form that could personally identify you (such as your name, email address, mailing address or other contact information) (collectively “Personal Data”), for any reason, including to promote new Services and Products and verify compliance with these Terms. Your usage of the Services and your Personal Data is also governed by our Privacy Policy.

SECURITY. PROVIVI CARES ABOUT THE INTEGRITY AND SECURITY OF YOUR PERSONAL DATA. HOWEVER, PROVIVI CANNOT GUARANTEE THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR USE YOUR USER CONTENT OR PERSONAL DATA FOR IMPROPER PURPOSES. YOU ACKNOWLEDGE AND AGREE THAT YOU PROVIDE YOUR USER CONTENT AND PERSONAL DATA AT YOUR OWN RISK.

Special Note to International Users. If you are accessing the Services from the European Union, Asia or any other region with laws or regulations governing personal data collection and disclosure that differ from United States of America laws, please be advised that your continued use of the Services will be governed by United States of America law, our Privacy Policy and these Terms. Information about you that we collect or that you submit may be transferred to, processed in or held in countries other than the one in which you reside, including countries, such as the United States of America, which the European Union has deemed do not provide “adequate” protection for personal information. If you are located in a country outside the United States of America and voluntarily submit Personal Data to us, you thereby consent to the general use of such information and the transfer of such information to, and storage of that information in, the United States of America or other locations in which information is stored, in each case as provided in these Terms and our Privacy Policy.

Confidentiality. “Confidential Information” means the Services and any and all business or technical information of Provivi or a third party to whom Provivi has an obligation of confidentiality, whether disclosed in writing, orally, by electronic delivery or otherwise. Confidential Information also includes trade secrets, processes, data, data structures, applications, protocols, know-how, copyrightable material, improvements, inventions (whether or not patentable), business plans, forecasts, customer and supplier lists, business opportunities and research, marketing and development activities and results.

You shall permit to use the Confidential Information only Authorized Users who have a need to know such Confidential Information, and who are informed of the confidential nature of the Confidential Information and are bound by obligations no less restrictive than those set forth herein applicable to such Confidential Information, in each case only for the purpose of exercising the license expressly granted hereunder. You agree not to otherwise transfer, copy, disclose, provide or otherwise make available Confidential Information in any form to any third party without the prior written consent of Provivi. You hereby guarantee the performance of the provisions hereof by any Authorized User, or any other person or entity that may obtain Confidential Information directly or indirectly from you.

You agree to implement reasonable security measures to protect Confidential Information and shall use best efforts to maintain the security of the Services and its Content. You shall not make any copies or extracts of Confidential Information or include Confidential Information in your own materials except as reasonably required to exercise the license provided under “License Grant” in Section 3 of these Terms. Any copies or extracts so made or information so included will include an appropriate legend identifying the same as constituting or containing Confidential Information of Provivi.

You will use best efforts to cooperate with and assist Provivi in identifying and preventing any unauthorized use, copying, or disclosure of the Confidential Information, or any portion thereof. You will notify Provivi immediately in the event of any unauthorized disclosure of any Confidential Information, and will use best efforts to assist Provivi in remedying such unauthorized disclosure.

 

  1. Service Costs

Provivi reserves the right at any time to charge fees for access to the Services, or current or new services included in the Services. In no event will you be charged for access to such services unless Provivi obtains your prior agreement to pay such fees. If you do not consent to the payment of such fees, however, you may not have access to such paid services. Details regarding the services you will receive in exchange for the payment of fees, as well as any payment terms and conditions that apply, will be disclosed to you prior to your agreement to pay such fees. All such terms will be deemed to be a part of (and are hereby incorporated by reference into) these Terms.

 

  1. Representations and Warranties

NO WARRANTIES. All information and weather data made available to you through the Services are provided to you on an “as-is” basis. We make no representations or warranties of any kind, whether express, implied, statutory or otherwise, with respect to the Services, including as to the merchantability of our SERVICES, fitness for any particular purpose, TITLE, non-infringement OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE OR TRADE USAGE. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SERVICES AND ITS FEATURES OR FUNCTIONALITY AND ANY COMMUNICATION WITH YOU IS FOR INFORMATION PURPOSES ONLY, AND DOES NOT CONSTITUTE A WARRANTY OR REPRESENTATION. WITHOUT LIMITING THE FOREGOING, PROVIVI DOES NOT WARRANT THAT THE OPERATION, OUTPUT OR IMPLEMENTATION OF THE SERVICES WILL: (I) MEET YOUR REQUIREMENTS; (II) BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE OR COMPLETE; (III) BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; OR (IV) THAT PROVIVI OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR FIX ANY ERRORS OR THAT SUCH RESOLUTION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.

Delays. You acknowledge and agree that the Services are intended to be accessed and used for non-time-critical information, and are subject to sporadic interruptions and failures for a variety of reasons beyond Provivi’s control, including Wi-Fi intermittency, service provider uptime and carrier failures. You acknowledge these limitations and agree that Provivi is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications.

Data Storage. Provivi is not responsible or liable for the deletion of or failure to store or process any information or other content provided by you, including any User Content or User Feedback, or transmitted in the course of using the Services. You are solely responsible for securing and backing up such submissions.

Release from Liability. You agree that you are releasing us from any liability that we may otherwise have to you in relation to or arising from these Terms or our Services, including related to decisions made by you regarding your use of the Products or your crops (including your decisions with respect to the application of pesticides), failure of the Services, negligence, or any other tort. To the extent that applicable law restricts this release of liability, you agree that we are only liable to you for the minimum amount of damages that the law restricts our liability to, if such a minimum exists. You agree that we are not responsible in any way for damages caused by third parties who may use our Services, including people who commit intellectual property infringement, defamation, tortious interference with economic relations, or any other actionable conduct towards you.

The provision of the Services to you is contingent on your agreement with this and all other sections of these Terms. Nothing in the provisions of this “Representations & Warranties” section shall be construed to limit the generality of the first paragraph of this section.

 

  1. Limitations on Liability

In no event shall Provivi, its officers, directors, employees, shareholders, licensors, employees or agents, be liable to you for any direct, indirect, incidental, special, punitive, exemplary or consequential damages, INCLUDING DAMAGES FOR LOSS OF MONEY, REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, whatsoever resulting from your or your authorized user’s use of the services, however caused, whether based on warranty, contract, tort, or any other legal theory of LIABILITY, and whether or not PROVIVI is advised of the possibility of such damages. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.

In the event of any problem with the Services, you agree that your sole remedy is to terminate use of our Services.

For jurisdictions that do not allow us to limit our liability: notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above, then our liability is limited to the minimum extent possible by law.

If you are a resident of a jurisdiction that requires a specific statement regarding release then the following applies. For example, California residents must, as a condition of these Terms, waive the applicability of California civil code section 1542, which states, “a general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” You hereby waive this section of the California civil code. You hereby waive any similar provision in law, regulation, or code that has the same intent or effect as the aforementioned release.

 

  1. Indemnity

You agree to defend, indemnify, and hold harmless Provivi, and its officers, directors, employees, consultants and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including reasonable attorney’s fees) arising from: (i) your AND your AUTHORIZED User’s use of and access to the Services; or (ii) your violation of any term of these Terms. This defense and indemnification obligation will survive any termination of these Terms and your use of the Services.

You also agree that you have a duty to defend us against such claims and not to settle any such claim without Provivi’s prior written consent. PROVIVI RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND IN SUCH CASE, YOU AGREE TO COOPERATE WITH PROVIVI’S DEFENSE OF SUCH CLAIM.

 

  1. Mandatory Arbitration

Customer Support. We strongly encourage you to contact our customer support team at support@provivi.com in the event of any disputes or misunderstandings.

Arbitration. If we can’t resolve a dispute through customer support, you agree to resolve any claims arising out of or relating to the Terms, our Privacy Policy, or your access to or use of the Services, through final and binding arbitration. An arbitration proceeding is before a neutral arbitrator instead of a judge and jury, so you acknowledge and agree that you are giving up your right to a trial before a judge and jury in a court of law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules (the “AAA Rules”). The AAA Rules are available at www.adr.org. Judgment on any award granted by the arbitrator may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Unless you and Provivi agree otherwise, any arbitration hearings between Provivi and you will take place in the county (or similar geographical area) of your billing address. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. The arbitration will be conducted in English and a translator may be utilized as the expense of the party requiring the translation services. Your right to a hearing will be determined by the AAA Rules.

How to Opt-Out of Mandatory Arbitration. Notwithstanding the above, you or Provivi may choose to file a lawsuit in court rather than resolving your dispute by arbitration. You may opt-out of mandatory arbitration if (a) the dispute qualifies for small claims court (there are monetary limitations for small claims court) or (b) YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU ACCEPT THESE TERMS (the “Opt-Out Deadline”). In order to opt out of mandatory arbitration, you need to (i) mail written notification to Provivi, Inc., c/o Customer Support, 1701 Colorado Avenue, Santa Monica, California 90404, USA; or (ii) email written notification to support@provivi.com. In either case, your written notification must include: (1) your name, (2) your address, (3) a copy of your email confirmation of your registration for the Services, and (4) a clear statement that you do not wish to resolve disputes with Provivi through arbitration. Your decision to opt-out of this provision will have no adverse effect on your relationship with Provivi. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or, if the dispute qualifies, in small claims court.

No Class Actions. YOU AND PROVIVI AGREE THAT YOU AND PROVIVI MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISON IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID. IF YOU CHOOSE TO PURSUE YOUR DISPUTE IN COURT BY OPTING OUT OF THIS MANDATORY ARBITRATION SECTION, AS SPECIFIED ABOVE, THIS CLASS ACTION WAIVER WILL NOT APPLY TO YOU. NEITHER YOU, NOR ANY OTHER USER OF THE PRODUCTS OR SERVICES CAN BE A CLASS REPRESENTATIVE, CLASS MEMBER, OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING WITHOUT HAVING COMPLIED WITH THE OPT-OUT REQUIREMENTS ABOVE.

 

  1. Choice of Law

These Terms shall be governed by the laws in force in the State of Delaware, U.S.A. (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods).

 

  1. Forum of Dispute

Subject to the requirements on mandatory arbitration set forth in Section 11 above, you agree that any dispute arising from or relating to these Terms will be heard solely by a court of competent jurisdiction in Los Angeles, California. Both you and Provivi consent to venue and personal jurisdiction in such courts; provided, however, that Provivi reserves the right to institute proceedings against you in the courts having jurisdiction in the places where you reside, do business, have assets, or in any jurisdiction where a harm to Provivi is occurring or has occurred.

If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorney’s fees, court costs, and disbursements in doing so. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover reasonable costs and attorney’s fees.

Notwithstanding anything herein (including the mandatory arbitration provision above in Section 11), in the event you infringe or misappropriate any of Provivi’s Intellectual Property Rights, Provivi is entitled to seek any permanent or temporary remedies (including compensation for damages, ceasing of infringement act, injunctive reliefs) against you in accordance with the applicable laws of your resident country or the jurisdiction where such infringing act has transpired. You acknowledge that, in the event Provivi or a third party breaches these Terms, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Provivi, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in these Terms.

 

  1. Digital Millennium Copyright Act

Infringement Notices. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the U.S. Digital Millennium Copyright Act (“DMCA”) by providing the Provivi agent listed below with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly 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 at 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 the service provider to locate the material;

  • Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;

  • A statement that you have 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; and

  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

DMCA Agent. Provivi’s designated agent to receive notifications of claimed infringement is Provivi, Inc., c/o Customer Support, 1701 Colorado Avenue, Santa Monica, California 90404, USA (email: support@provivi.com). You acknowledge that if you fail to comply with all of the requirements of the preceding paragraph and this paragraph, your notice may not be valid.

Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the agent listed above:

  • Your physical or electronic signature;

  • Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;

  • A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and

  • Your name, address, telephone number, and e‑mail address, a statement that you consent to the jurisdiction of the federal courts in Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

Please also note that for copyright infringements under Section 512(f) of the U.S. Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Repeat Infringers. In accordance with the DMCA, it is Provivi’s policy in appropriate circumstances and at our sole discretion to terminate the accounts of users who are deemed to be repeat infringers or are repeatedly charged with infringement. Provivi may also at its sole discretion limit access to the Services or terminate the accounts any users who infringe any intellectual property rights of others, whether or not there is repeat infringement.

 

  1. Force Majeure

You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including natural disasters, war, weather, insurrection, riots, terrorism, crime, labor shortages, embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.

 

  1. Severability

In the event that a provision of these Terms is found to be unlawful, conflicting with another provision of these Terms, or otherwise unenforceable, these Terms will remain in force as though it had been entered into without that unenforceable provision being included in it.

If two or more provisions of these Terms are deemed to conflict with each other’s operation, Provivi shall have the sole right to elect which provision remains in force.

 

  1. Non-Waiver

We reserve all rights permitted to us under these Terms as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of these Terms or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.

 

  1. Term, Termination and Cancellation

These Terms will remain in full force and effect so long as you continue to use the Services or Products, or until terminated in accordance with these Terms. You may discontinue your participation in and access to the Services at any time. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use that Product or any Services under your account and will need to register for a separate account with Provivi.

We may terminate or suspend service or your account or any other provision of the Services to you at our discretion without explanation and notice. Cancellation may result in the immediate deletion of any User Content that you have submitted to Provivi. All provisions of these Terms that, by their nature, should survive termination shall survive termination, including ownership and confidentiality provisions, warranty disclaimers, indemnity and limitations of liability.

 

  1. Assignment

You may not assign your rights or obligations under these Terms to any other party without our prior written consent. Any such purported assignment is null and void. We may assign our rights or obligations under these Terms to any other party at our discretion.

 

  1. Amendments

We are always working to improve the Services for our users, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice in the Services or by sending you an email. If you do not agree with the new Terms, you are free to reject them; but that means you will no longer be able to use the Services.

 

  1. Statute of Limitations

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one year after such claim or cause of action arose or be forever barred.

 

  1. Interpretation

As used herein, unless the context requires otherwise, the word “or” is not exclusive and the words “will,” “will not,” “shall,” and “shall not” are expressions of command and not merely expressions of future intent or expectation. Whenever the words “include,” “includes” or “including” are used in these Terms, they shall be deemed to be followed by the words “without limitation.” The section headings in these Terms are for convenience only and have no legal effect.