TERMS OF SERVICE
EFFECTIVE DATE: Jan 1, 2022
Thank you for joining Crativ! These Terms of Service (the “Terms”) cover your rights and obligations relating to your access and use of Platform (as defined below). All references to “we”, “us”, “our”, “Crativ”refer to Crativ, Inc., a Delaware corporation, and its subsidiaries and affiliates. All references to “you”,“your”, or “user” relate to the person who registered an account on https://www.crativ.io (an “Account”) to use or access the Platform. By visiting our websites, including, but not limited to, https://www.crativ.com, interacting with us on other platforms (including, but not limited to, social media sites such as Facebook, Instagram, LinkedIn and Twitter), and/or submitting anything to us through our websites and mobile applications operated by us or on our behalf (collectively, our “Platform”), you agree to read, comply with and be legally bound by: (1) these Terms; and (2) any additional terms and conditions, agreements, policies and additional terms published on the Platform or otherwise applicable to your use of the Platform(the “Rules”). You also agree that you may be bound by, and agreement to comply with, as applicable to you, any agreements between us and a third-party on whose behalf you access our Platform (“EnterpriseAgreement”). These Terms, the Rules and Enterprise Agreements are collectively referred to in theseTerms as the “Agreements”). In the event of any conflict between these Terms and any other Agreement, these Terms shall control; provided, however, in the event of any conflict between these Terms and an applicable Enterprise Agreement, the terms of the Enterprise Agreement shall control.
IF YOU DO NOT AGREE WITH THE FOREGOING, YOU MAY NOT USE THE PLATFORM.
YOU HEREBY REPRESENT THAT YOU HAVE THE FULL RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS AND TO FULLY PERFORM ALL OF YOUR OBLIGATIONS HEREUNDER AND THAT YOU ARE UNDER NO LEGAL DISABILITY OR CONTRACTUAL RESTRICTION THAT PREVENTS YOU FROM ENTERING INTO THESE TERMS.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND RESPONSIBILITIES, INCLUDING LIMITATION OF OUR LIABILITY AND BINDING ARBITRATION. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAYNOT ACCESS OR USE THE PLATFORM.
Do not hesitate to contact us at email@example.com if you have any questions or want to discuss either of these important documents.
2. OVERVIEW OF THE PLATFORM
The Platform fundamentally provides you with various tools, features and functionalities to, among other things: (a) curate and aggregate searchable and discoverable content; (b) manage your social media accounts and profiles in a centralized platform; (c) link your content to a robust search system; (d) interact with new audiences; (e) learn audience insights from search data; and (f) publish and update content on the Platform or to otherwise make them available through our embeddable content on websites not operated by Crativ (collectively, the “Creator Services”).
Your access to and use of the Platform may be available pursuant to or otherwise subject to an EnterpriseAgreement between Crativ and your employer or another entity on whose behalf you use the Platform. If this is the case, your employer or such other entity may impose additional obligations on your use of thePlatform (“Additional Obligations”). If this is applicable to you, in addition to all other representations, warranties and covenants in the Agreements, you also represent to us that your use of the Platform will comply with any applicable Enterprise Agreement as well as any and all applicable Additional Obligations.
3. AGE POLICY; ACCEPTANCE OF AGREEMENTS
We do not intend that the Platform be used by anyone under 18 years old. If we learn or have reason to suspect that an individual who has created an Account is under 18 years of age, we will promptly revoke such individual’s access to the Platform and delete any personally identifiable information submitted by that individual. Further, you represent and warrant that (1) your use of the Platform does not and will not conflict with any pre-existing obligation in conflict or in any way inconsistent with the provisions of theseTerms; (2) you are 18 years of age or older (or age of majority or older if higher in your place of residence); (3) you are legally able to enter into contracts; (4) that you are not a person barred from receiving or using the Platform under federal, state, local or other laws; and (5) you are not a member of a terror or hate group.
By using the Platform and/or acknowledging that you have read and agree to any or all of theAgreements, you are agreeing to comply with the applicable Agreements. If you fail to comply with any of the applicable Agreements, we may terminate your ability to use the Platform.
4. YOUR ACCOUNT & YOUR INFORMATION
4.1 You Must Register for an Account
You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it up to date. We reserve the right to suspend or terminate your Account according to these Terms if we determine that any information provided by you is inaccurate or incomplete.
Without limiting the foregoing, if your access to the Platform is subject to an Enterprise Agreement, youmust be an authorized user under such Enterprise Agreement and comply with all Additional Obligations,including, but not limited to, those applicable to account registration.
4.2 You Must Safeguard Your Account
If you become aware that an unauthorized third-party is using your information to interact with thePlatform, you must promptly notify us of such use. You agree that we will not be liable for any loss or harm that you incur if someone else uses your information to interact with the Platform, either with or without your knowledge, and that you will be solely responsible for such use, whether or not you authorized the use. You are responsible for safeguarding your Account information, including your password. You agree not to disclose your password to, or share your Account with, any third-party. You are solely responsible for maintaining and protecting your account credentials.
4.3 Sharing Your Information with Third-Party Partners
Throughout the term of this Agreement, we may share information about your Account and your personally identifiable information with our third-party partners (collectively, “Third-Party Partners”) in order to verify your eligibility to use the Platform, conduct risk management and compliance reviews, and facilitate the compliance of Crativ and the Third-Party Partners with applicable laws and regulations, including any rules, guidelines, or by-laws of any of the Third-Party Partners (“Third-Party Rules”).
4.4 Access to the Platform
Access to the Platform requires access to the Internet. You are responsible for providing all equipment necessary to establish a connection to the Internet, access to the Internet and any telephone, wireless or other connection and service fees associated with such access. Using the Platform may allow you to receive content on your mobile phone or wireless device. The manner in which that content is delivered to your phone or device may cause you to incur extra data, text messaging or other charges from your wireless carrier, which are your sole responsibility.
If you open an account, you understand that Crativ will collect and maintain information related to your use of the Platform. Crativ connects, though may not always display, that information to your account in order to conduct our business operations.
4.5 Termination or Suspension of Your Account
Without limiting any other rights we have under the Agreements, in the event we determine, in our sole discretion, that your account information may be compromised due to your personal device being infected with a virus, malware, other malicious code or due to other theft of your account information, we reserve the right to invalidate, delete or otherwise modify your account in order to protect your account, the accounts of other users and our systems from further damage or exposure. This may include proactively changing your password. If we need to do this, we will make reasonable efforts to inform you of any modifications made via the email address listed on your account or other viable means of communication.
5. CREATOR SERVICES
The Creator Services may provide you with the ability to develop, submit, publish, and share content(collectively, “Creator Content”) on the Platform and on websites outside the Platform. In addition to other requirements under the Agreements, Creator Content and your use of the Creator Services must comply with the requirements and restrictions set forth in this Section 5.1. Crativ reserves the right, but not the obligation, to monitor Creator Content, your use of the Creator Services and your activities on thePlatform. We may remove any of Creator Content and/or limit or terminate your access to the CreatorServices and/or the Platform if we determine, in good faith, that Creator Content or your activities violate this Section 5.1.
5.2 Prohibited Content.
You are not permitted to use the Creator Services to develop, submit, publish, or share any content that:
We may provide means to allow you to include closed captioning in Creator Content. If required by applicable law, you must provide closed captioning in Creator Content.
We may provide you the ability to apply ratings or other filters to Creator Content to flag if CreatorContent contains statements, information, or other material that others may find offensive or disturbing. If we provide this ability, you must appropriately rate or apply filters if Creator Content based on the statements, information or other material contained in Creator Content.
In addition to all other applicable requirements and restrictions, you are not permitted to include any links in Creator Content to any websites, online services applications or other resources that contain or promote content that violates the restrictions in Section 5.2 above.
5.6 Ownership; License.
As between you and Crativ, you own all right, title and interest in and to any of Creator Content, excluding any Crativ intellectual property incorporated therein or otherwise utilized by Creator Content. By using the Creator Services in any way, you grant Crativ a license to reproduce, translate, encode, publish, stream, use and distribute any and all of Creator Content to the extent necessary to make CreatorContent available on the Platform and/or on any website outside the Platform and as otherwise necessary for Crativ to provide and operate the Platform. If you place any restrictions on Creator Content through the features and functionalities available through the Creator Services, which may include, without limitation, disabling downloads, limiting the availability of Creator Content to specific users or otherwise limiting distribution or availability of Creator Content, Crativ will use and distribute Creator Content in accordance with those restrictions. The license for each specific piece of Creator Content is effective when you use the Creator Services with respect to such specific piece of Creator Content and ends when you or Crativ delete or otherwise remove such specific piece of Creator Content from the Platform; provided, however, Crativ may retain archival copies of Creator Content: (1) for a limited period of time if you wish to republish or otherwise restore any of Creator Content that you removed from the Platform; (2) when CreatorContent is subject to a DMCA notice, legal claim or other dispute; or (3) if Crativ reasonably believes it is required to do so. The licenses you grant to Crativ are non-exclusive, worldwide, and royalty-free and specifically include necessary rights for Crativ to exercise its rights and perform its obligations. You waive any “moral rights” that you may have in Creator Content. Further, you agree that any terms set forth in theAgreements are not a license condition; thus, the event Crativ breaches any term of the Agreements, such breach shall only give rise, if applicable, to a breach of contract. For clarity, Crativ's breach of theAgreements shall not give rise to any claim of infringement or similar claim of any rights you have in and to Creator Content, including, without limitation, any intellectual property rights you have.
6. PERMITTED USE OF THE PLATFORM
You may only use the Platform for its intended purpose. You may not use the Platform for any other purpose. Any non-permitted use of the Platform, as determined in our sole discretion, shall be grounds for immediate termination of these Terms and immediate termination of your use of, and access to, the Platform. Further, you represent and warrant that your use of the Platform does not and will not conflict with any pre-existing obligation in conflict or in any way inconsistent with the provisions of these Terms.
You are prohibited from violating or attempting to violate any security features of the Platform, including, without limitation, taking any of the following actions:
Further, you agree not to take any of the following actions when using the Platform:
In addition, you may not use the Platform to enable any person (including you) to benefit from any activities Crativ has identified as a restricted business or activity (collectively, “Restricted Businesses”).Restricted Businesses include use of the Platform in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC). Restricted Businesses shall also include, but not be limited to, any party participating in:
If you are uncertain whether a category of business or activity is restricted or have questions about how these restrictions apply to you, please contact us at firstname.lastname@example.org. We may add to or update the Restricted Businesses at any time.
7. OWNERSHIP OF THE PLATFORM
All right, title and interest in and to the Platform, including, but not limited to, all of the software and code that comprise and operate the Platform (collectively, the “Software”), and all of the text, photographs, illustrations, images, graphics, audio, video, URLs, advertising copy and other materials provided through the Platform (collectively, the “Crativ Content”) are owned by us or by third parties who have licensed Crativ Content to us. The Platform is protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. In addition, the entire Crativ Content of the Platform is a collective work under U.S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement, and enhancement of the Crativ Content.
Subject to your acceptance of, and compliance with, the applicable Agreements and your payment of any applicable fees or charges, depending on how you use or interact with our Platform, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Platform in a manner that is consistent with the Agreements and the Platform’s intended purpose(s). You obtain no rights to the Platform except to use it in accordance with the Agreements.
The Crativ names and logos (including, but not limited to, those of our affiliates), all product and service names, all graphics, all button icons and all trademarks, service marks and logos appearing within the Platform, unless otherwise noted, are trademarks (whether registered or not), service marks and/or trade dress of Crativ (collectively, “Our Marks”). All other trademarks, product names, company names, logos, service marks and/or trade dress (collectively, “Marks”) mentioned, displayed, cited, or otherwise indicated within the Platform are the property of their respective owners. You are not authorized to display Our Marks in any manner without our prior written permission. You are not authorized to display or use the Marks of any third-party that appear within the Platform without the prior written permission of the applicable third-party.
Further, you may choose to, or we may invite you to submit comments, suggestions, or ideas about the Platform or the App, including how to improve the Platform (“Feedback”). By submitting any Feedback, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place us under any fiduciary or other obligation. We may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that we do not waive any rights to use similar or related ideas previously known to us, developed by its employees, or obtained from other sources.
Notwithstanding anything to the contrary, Crativ shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Platform and shall be free (during and after the term hereof) to (a) use such data and other information to develop and improve the Platform and other Crativ offerings, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify you or any individual.
8. THIRD-PARTY SITES AND SERVICES
As referenced above, our Platform may be integrated with services provided by third parties as part of the functionality of the Platform. You understand that we do not have control over third parties and that such third parties are not agents of Crativ. You acknowledge and agree that we make no representation or warranty about, do not endorse, and will not be liable for any third-party’s products or services or the information provided by third parties, whether through the Platform or otherwise. Accordingly, we are not responsible for your use of any third-party product or service or any harm or losses arising from or relating to your use of any third-party products or services. You should contact the third-party with any questions about their products and services. Reliance on User Content (as defined below) is at your own risk. You acknowledge and agree that we are not responsible or liable for, nor do we endorse, any User Content that appears on the Platform. We hereby disclaim and you hereby discharge, waive and release us and our licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, 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 ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
9. UPDATES TO THE PLATFORM
We may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Platform (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. If you do not want such Updates, your remedy is to terminate your Account and stop using the Platform. If you do not terminate a previously created Account, you may receive Updates automatically. You acknowledge that you may be required to install Updates to use the Platform. Your continued use of the Platform is your agreement to these Terms with respect to the Platform.
10.1 Individual Subscriptions. We offer one subscription level that individual users can sign up for online, a Free Version account. Your use of the Platform under a Free Version account is subject to these Terms, as well as any applicable Rules we publish on the Platform or otherwise make available to you from time to time. Advertised prices, features, benefits, and other terms applicable to each subscription level is subject to change.
10.2 Enterprise Subscriptions. We offer accounts and additional services to businesses. Business accounts are subject to a separate Enterprise Agreement directly between the business and Crativ. If you are interested in creating a business account with us, please contact us at email@example.com.
10.3 Taxes; Fees. You are required to pay all fees and charges imposed by Crativ arising from your use of the Platform, if any, including, without limitation, fees that must be paid in advance and any fees arising from your use of the Platform. Your authorization to use the Platform is contingent on your payment of all applicable fees. All fees are exclusive of any applicable use, sales, value added, exciseand other similar taxes and government charges (collectively, “Taxes”). Taxes do not include any taxes on the net income of Crativ or any of its affiliates.
10.4 Downgrades. If you're interested in upgrading to or downgrading from an Enterprise plan, please contact Support at firstname.lastname@example.org. For annual Enterprise accounts that downgrade we will offer a prorated credit for the remaining contract.
10.5 Subscription Term and Renewal. Free Version accounts remain in effect from the date they are created until they are cancelled or terminated in accordance with the Agreements.
10.6 Cancellation. You may close your account at any time by contacting us at email@example.com and following the instructions we provide.
(a) If you cancel your Free Version account, upon Crativ's acceptance of your cancellation, these Terms shall be terminated and your license to access and use the Platform shall immediately terminate and you must discontinue all use of the Platform.
(b) Without limiting anything set forth in these Terms, cancelling your account will not: (1) terminate any applicable Enterprise Agreement; or (2) relieve you of any liabilities or obligations arising from your activity on the Platform prior to cancellation.
11. INFORMATION WE MAKE AVAILABLE TO YOU
As part of the Platform, we may provide you with various information in furtherance of the Platform. Our intention in doing so is to be helpful and to make the Platform more useful to you. However, you agree that all information and suggestions that we provide to you through the Platform is strictly for informational purposes and shall not be construed or relied upon in any way, and specifically shall not be construed or relied upon as professional advice of any kind. You agree that, to the fullest extent permitted by law, and as detailed below in the “Limitation of Liability” section of these Terms, we will not incur any liability at all whatsoever in the event that your reliance on any information provided by us results in harm or damage to you or your property.
12. INFORMATION YOU PROVIDE TO US
The Platform may provide you with the ability to add, create, upload, submit, distribute, post, or share content on or through the Platform, including, but not limited to, Creator Content (with respect to Creator Services), website links, opinions, information, photos, profiles, videos and audio clips (collectively, “User Content”). By providing any User Content on the Platform, you expressly grant, and represent and warrant that you have the right to grant, us a non-exclusive, irrevocable, worldwide, transferable, royalty-free, perpetual license to publicly display, publicly perform, reproduce, distribute, create derivative works of, and sublicense your User Content in any manner or through any media now known or later
developed without any payment obligation to you. Without limiting the foregoing, any User Content you provide on the Platform may be viewable by any other users of the Platform (whether registered or unregistered). Further, you understand and agree that we have the right, but not the duty, to pre-screen, edit, refuse, move or remove any User Content posted to the Platform.
In addition, we should not be relied upon as a means to store your data or information and we assume no responsibility for such activities.
13. INAPPROPRIATE AND ILLEGAL CONTENT PROHIBITED
You agree not to transmit any inappropriate content on the Platform including, but not limited to, libelous, defamatory, obscene, pornographic, abusive, or threatening content; content that advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; content that is misleading or not true; or advertise or otherwise solicits funds for goods or services. We may remove such content from our servers, and we may suspend or revoke your access to the Platform, and we reserve the right to investigate, and seek applicable remedies for, violations of applicable law to the fullest extent of the law.
14. NOTICE AND PROCEDURE FOR MAKING U.S. CLAIMS OF COPYRIGHT OR TRADEMARK INFRINGEMENT
If you believe that your work has been copied in a way that constitutes copyright and/or trademark infringement, please provide a notice (a “DMCA Notice”) with the following information to Crativ's Copyright Agent:
Crativ's Copyright and Trademark Agent for DMCA Notices is:
By email to: firstname.lastname@example.org
By Mail to:
9450 SW Gemini Dr
Beaverton, Oregon 97008-7105
We may give notice to our users by means of a general notice on our Platform, electronic mail to a user’s email address in our records, or by written communication sent by first-class mail to a user’s physical address in our records. If you receive such a notice, you may provide counter-notification in writing to the designated Copyright and Trademark Agent. To be effective, the counter-notification must be a written communication that includes the following:
Crativ may terminate Accounts that have been the subject of five (5) separate DMCA notices. In the event a user’s materials are removed due to a DMCA Notice and then subsequently restored due to the filing of a counter-notification, Crativ will treat the underlying DMCA Notice as withdrawn. Crativ reserves the right to terminate Accounts that are the subject of fewer than five (5) DMCA Notices in appropriate circumstances - such as where the user has a history of violating or willfully disregarding these Terms.
15. YOUR USE OF OTHERS’ INTELLECTUAL PROPERTY
Although you may provide information and content to Crativ as part of your use of the Platform, you agree to be respectful of others’ intellectual property rights. You may not upload, transmit, or otherwise distribute any information or content in violation of intellectual property laws or proprietary rights of any third parties. If you do not respect a third-party’s intellectual property or proprietary rights, you are solely responsible for any violations of law. In addition, you are solely responsible for infringement of third-party rights caused by any information that is generated or submitted through your use of the Platform. We take claims of intellectual property infringement seriously. As such, we reserve the right to suspend and/or revoke access to the Platform for any user who is found to have infringed on the intellectual property rights of third parties, or us, or otherwise is found to have violated any intellectual property laws.
16. TERMINATION OF YOUR USE OF THE PLATFORM
After termination by either party, you shall no longer have access to, and shall cease all use of the Platform. Any termination of this Agreement does not relieve you of any obligations to pay any Fees, fines, or any other financial obligation incurred by you or through your use of the Platform prior to or after termination. In addition, your license to access and use our Platform shall immediately terminate and you must discontinue all use of the Platform affected by such termination.
The provisions of these Terms which by their nature are intended to survive the termination or cancellation of these Terms shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Without limiting the foregoing, the provisions of these Terms regarding indemnity and limitations of liability shall survive the termination or cancellation of these Terms
17. ASSUMPTION OF RISK
YOUR USE OF THE PLATFORM IS ENTIRELY AT YOUR OWN RISK.
YOU AGREE THAT IF YOU CHOOSE TO USE THE PLATFORM, YOU ARE DOING SO VOLUNTARILY. YOU ASSUME ALL SUCH RISKS WITHOUT LIMITATION.
18. DISCLAIMER OF WARRANTIES; “AS IS”
WE ARE MAKING THE PLATFORM AVAILABLE “AS IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE PLATFORM WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS OR OTHER HARMFUL SOFTWARE OR HARDWARE. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE PLATFORM. WE DO NOT WARRANT THAT OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.
YOU HEREBY ACKNOWLEDGE THAT THE PLATFORM MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF THE PLATFORM AND/OR TELECOMMUNICATIONS INFRASTRUCTURE OR DISRUPTION, AND THEREFORE WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY OR PERFORMANCE OF THE PLATFORM CAUSED BY SUCH FACTORS.
WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER DATA, INCLUDING WITHOUT LIMITATION, ANY USER CONTENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
YOUR ACCESS TO THE PLATFORM, DOWNLOAD OF ANY SOFTWARE RELATING TO THE PLATFORM AND USE OF ANY INFORMATION WE MAY PROVIDE IN CONNECTION WITH YOUR USE OF THE PLATFORM IS AT YOUR SOLE OPTION, DISCRETION AND RISK. WE SHALL NOT BE LIABLE FOR ANY MALFUNCTIONS OF THE COMPUTER PROGRAMS RELATING TO THE PLATFORM, BUGS OR VIRUSES RESULTING IN LOST DATA OR ANY OTHER DAMAGE TO YOUR COMPUTER EQUIPMENT, MOBILE PHONE OR MOBILE DEVICE OR SOFTWARE. FURTHERMORE, WE SHALL NOT BE LIABLE FOR ANY ATTEMPTS BY YOU TO USE THE PLATFORM BY METHODS, MEANS OR WAYS NOT INTENDED BY US. WE ARE NOT REQUIRED TO PROVIDE REDUNDANT OR BACKUP NETWORKS AND/OR SYSTEMS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN OBTAINED BY YOU FROM ANY OF THE RELEASED PARTIES THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR STATEMENTS, ADVICE AND OPINIONS MADE BY ANYONE OTHER THAN AUTHORIZED CRATIV SPOKESPERSONS. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR ANY STATEMENTS, ADVICE OR OPINIONS CONTAINED PROVIDED BY ANY THIRD PARTIES, AND SUCH STATEMENTS, ADVICE AND OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE OR OPINIONS OF CRATIV.
19. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE PLATFORM INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM OR RELATED TO ANY OF THE FOLLOWING: ANY CLAIM RELATED TO PERSONAL OR BODILY INJURY IN CONNECTION WITH THE USE OF THE PLATFORM; ANY HARM OR DAMAGE CAUSED BY, OR OTHERWISE RELATED TO, YOUR RELIANCE ON INFORMATION PROVIDED THROUGH THE PLATFORM; ANY LOSS OR UNAUTHORIZED DISCLOSURE OF DATA; ANY HARM OR DAMAGE CAUSED BY, OR OTHERWISE RELATED TO, YOUR USE OF OR INTERACTION WITH ANY SERVICES OFFERED THROUGH THE PLATFORM; AND ANY VIOLATIONS OF APPLICABLE LAWS, RULES, REGULATIONS, AND OTHER AGREEMENTS. THIS LIMITATION SHALL APPLY REGARDLESS OF THE LEGAL THEORY OR FORM OF ACTION. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE PLATFORM EXCEED ONE HUNDRED DOLLARS ($100.00).
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES OR CAUSES OF ACTION, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASED, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
In the event that any third-party brings a claim against us related to your actions, content (including without limitation, User Content and/or Creator Content), information, or any other use of the Platform by you, you agree to indemnify, defend, and hold us, our subsidiaries and affiliates, and our and their respective directors, officers, employees, agents, and other partners (the “Released Parties”) harmless from and against any and all third-party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) relating to such claim. We will notify you promptly of any such claim and will provide you with reasonable assistance, at your expense, in defending any such claim, provided, however, that our failure to so notify you shall not relieve you of your indemnity obligations, but instead shall reduce those obligations by the amount of damages or increased costs and expenses attributable to our failure to give notice. We reserve the right to approve counsel retained by you, to take control of the defense (at our expense) of any claim for which indemnity is required, and to participate in the defense of any claim (at our expense) for which indemnity is required. You may not settle any claim without our prior consent.
The Released Parties reserve the right to seek all remedies available at law and in equity for violations of the applicable Agreements, including the right to block access from a particular Internet address to the Platform or report misuses to law enforcement.
21. DISPUTE RESOLUTION
PLEASE READ THIS SECTION 21 CAREFULLY. IT IS PART OF THE AGREEMENTS AND AFFECTS YOUR RIGHTS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
You agree to resolve any dispute, claim, or controversy with Crativ arising out of or relating to your use in any way of the Platform in the following manner. First, we both agree to attempt in good faith to resolve the dispute informally by contacting each other by email (you can email us at email@example.com). Second, if the dispute is not resolved through informal resolution, we both agree to attempt in good faith to resolve the dispute through mediation administered by JAMS, which shall take place in San Francisco County, California, and the costs of which shall be divided equally between you and Crativ. Third, if the dispute is not resolved through informal resolution and mediation, we both agree to participate in binding arbitration administered by JAMS, which shall take place in San Francisco County, California.
Either you or we may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described above.
We both agree that, in the event of arbitration, or in the event of a lawsuit as permitted by this section or otherwise, the prevailing party shall be entitled to costs and fees (including reasonable attorneys’ fees). Arbitration pursuant to this section shall be confidential, and neither you, nor Crativ, nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general). If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, INSTEAD ELECTING THAT ALL CLAIMS AND DISPUTES SHALL BE RESOLVED BY ARBITRATION UNDER THIS SECTION 21. ARBITRATION PROCEDURES ARE TYPICALLY MORE LIMITED, MORE EFFICIENT AND LESS COSTLY THAN RULES APPLICABLE IN A COURT AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT. IN THE EVENT ANY LITIGATION SHOULD ARISE BETWEEN YOU AND CRATIV IN ANY STATE OR FEDERAL COURT IN A SUIT TO VACATE OR ENFORCE AN ARBITRATION AWARD OR OTHERWISE, YOU AND CRATIV WAIVE ALL RIGHTS TO A JURY TRIAL, INSTEAD ELECTING THAT THE DISPUTE BE RESOLVED BY A JUDGE.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the state courts and federal courts located in San Francisco County, California for such purpose.
Nothing contained in this section shall limit our ability to take action related to your access to the Platform as provided in these Terms.
22. GOVERNING LAW, VENUE, & PERSONAL JURISDICTION
These Terms shall be governed by, and construed and interpreted in accordance with the laws of the State of California to the exclusion of its conflict of laws provisions.
23. SEVERABILITY; WAIVER; ASSIGNMENT
If, for whatever reason, any term or condition in these Terms is found unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
The failure to enforce any provision of these Terms is not a waiver of our right to do so later, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
We reserve the right to transfer, assign, sublicense, or pledge any or all of the Agreements, in whole or in part, to any person without notice, provided that any such assignment will be on the same terms or terms that are no less advantageous to you. You may not assign, sublicense, or otherwise transfer in any manner whatsoever any of your rights or obligations under these Terms.
24. CHANGES TO THESE TERMS
Crativ reserves the right to change these Terms from time to time, with or without notice to you. If you continue to use the Platform, you consent to the new Terms. Any changes to these Terms will become effective on the “Effective Date” indicated above. If you continue to use the Platform after the Effective Date, you consent to the new Terms. Crativ will always have the latest Terms posted on the Platform.
We have the right, but not the obligation, to take any of the following actions in our sole discretion without providing any prior notice to you and without any liability to you or any third-party:
A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
You agree that Crativ may refer to you as a Crativ customer and use your name, logo, and other trademarks in Crativ marketing materials, website and other publicity items in other mediums; however, Crativ will not use your name. logo or other trademarks in any joint press releases, customer references, or case studies without your prior written consent (which may be by email).
26. CONTACT US
If you have any questions about these Terms or our Platform, please feel free to contact us by email at firstname.lastname@example.org.
Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
28. HEADINGS USED IN THESE TERMS
The section headings contained in these Terms are for reference purposes only and shall not affect the meaning or interpretation of these Terms in any way.
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