Welcome, and thank you for your interest in the App Vibey and wearevibey.com (“Vibey,” “us” or “we”) and our services made available through the mobile application and tools (collectively, the “App”) and the website (the “Website” or the “Site”) together with the App, the service (“Service”). Unless otherwise specified, all references to the Service include the services available through the Vibey App or Website, as well as any software that Vibey provides to you that allows you to access the Services. The following Terms of Service are a legally binding contract between you and Vibey regarding your use of the Service. Vibey is owned and operated by Freetopia, Inc, a Delaware corporation.
Please read the following Terms of Service (“Terms”) carefully before accessing or using any of the Service. You unconditionally agree that all claims relating to your access or use of this Website or App, including all disputes arising out of, or related to, any Products or Services purchased from us or through our Services, will be resolved entirely through binding individual arbitration, rather than in court. You may also assert individual claims in small claims court if your claims otherwise qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. Each time you access or use the Service, you agree to be bound by these Terms. If you do not agree to be bound by all of these Terms, you may not access or use the Service. In addition, certain areas of the Service may be subject to additional Terms of Service that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional Terms of Service applicable to such areas. In the event that any of the additional Terms of Service governing such area conflict with these Terms, the additional terms will control.
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. THIS AGREEMENT ALSO CONTAINS AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. PLEASE READ THE FOLLOWING TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SERVICE. EACH TIME YOU ACCESS OR USE THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND THE CLASS ACTION WAIVER YOU MAY NOT ACCESS OR USE THE SERVICE.
YOUR COMPLIANCE WITH THIS AGREEMENT
You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which is hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your ability to visit, use and/or submit and retrieve content and information using our Services. You represent that you have the capacity to be bound by this Agreement, or if you are acting on behalf of a company or other entity, you have the authority to bind such company or entity. In order to determine your compliance with this Agreement, we may monitor your access and use of our Services in accordance with our Privacy Policy.
ELIGIBILITY FOR OUR SERVICE
By using our Services, you represent that you are at least 13 years old. Persons who are at least 13 years of age but under the age of 18 may only use our Services with legal parental or guardian consent. Accordingly, you agree that you are at least 18 years of age or older or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, representations and warranties set forth in the Terms.
DESCRIPTION OF SERVICE
The “Service(s)” means (a) Vibey’s systems, procedures, processes and technologies, and (b) any software, applications, data, reports, and other content made available by or on behalf of Vibey that allows Users of the Services to come together in a marketplace where they can buy items made available by other Users and sell items made available by themselves. The Service does not include your User Content as defined in this Agreement or any software application or service that is provided by you or a third party, which you use in connection with the Service. Any modifications and new features added to the Service are also subject to this Agreement. Vibey reserves the right to modify or discontinue the Service (or any Service plan) or any feature or functionality thereof at any time without notice to you. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to Vibey.
VIBEY IS A VENUE
Vibey provides a venue for Users to interact and is not a Transferor and does not transfer legal ownership of items posted to the Service unless Vibey has listed or posted an item for its own account. Vibey is not responsible for any User Content or posting. Users should use appropriate caution when communicating with other Users and in entering any transaction. You agree and acknowledge that, unless Vibey has listed or posted an item for its own account, Vibey is not a Transferor of the items listed on this Site; that Vibey is not an advertiser of any of the items listed on this Site and that Vibey is not a party to the transactions between Users. The Site only provides the venue for Users to privately enter into a transaction and, unless Vibey has listed or posted an item for its own account, Vibey is not involved in the actual transaction or transfer of Items between Users. Vibey makes no representation as to the accuracy or truthfulness of other Users on this Site. Vibey makes no representation that Users on this Site will complete the transfer of the Item or deliver the Item to the transferee or that the transfer of an Item complies with applicable legal requirements for the transaction. Users are independent contractors. No agency relationship, partnership, joint venture, employer-employee relationship or franchisor-franchisee relationship is intended or created by this Agreement.
YOU AGREE THAT Vibey SHALL NOT BE HELD LIABLE FOR ANY BREACH OF CONTRACT BETWEEN USERS, BREACH OF WARRANTY, DAMAGES, INJURY OR DEATH RESULTING FROM ANY TRANSACTION BETWEEN USERS. PLEASE SEE FURTHER DISCLAIMERS AND TERMS CONTAINED IN THE FOLLOWING SECTIONS OF THIS AGREEMENT: YOUR INTERACTIONS WITH OTHER USERS; DISCLAIMERS; NO WARRANTIES; LIMITATIONS OF LIABILITY; INDEMNITY AND RELEASE.
YOUR ACCESS AND USE OF OUR SERVICES
Your right to access and use our Services is personal to you and is not transferable by you to any other person or entity. Access to our Services may not be available in all locations. You are only entitled to access and use our Services for lawful purposes and pursuant to the terms and conditions of this Agreement and the Privacy Policy. Any action by you that, in our sole discretion: (i) violates the terms and conditions of this Agreement and/or the Privacy Policy; (ii) restricts, inhibits or prevents any access, use or enjoyment of our Services; or (iii) through the use of our Services, defames, abuses, harasses, offends or threatens, shall not be permitted, and may result in your loss of the right to access and use our Services. You understand that Vibey may issue upgrade versions of any mobile App and you consent to receiving automatic upgrades on your mobile device. You also acknowledge and agree that standard carrier data charges may apply to your use of the App.
If you are using our Services on a mobile device, do not use such Services in a way that distracts you and prevents you from obeying traffic or safety laws.
Our Services may have “publicly accessible areas” such as message boards, forums, member profiles, yellow pages, job folders or other features that allow users to post User Content that will be accessible by the public or the user population generally. As a user of the Services, you acknowledge and affirmatively agree that in the course of using the Services you may be exposed to User Content that might be offensive, harmful, inaccurate or otherwise inappropriate. You further agree that Vibey shall not, under any circumstances, be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of the use of any User Content made available by the Services in any manner or method.
This Agreement prohibits certain activities and actions regarding the submission of User Content, however you agree that Vibey does not make any representation or warranty that the User Content you may encounter through your use of the Services complies with these acceptable use provisions contained in the “User Content Rights and Related Responsibilities; License” section herein. Your use of the services is solely at your own risk. This Agreement does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these acceptable use provisions.
Vibey reserves the right, but is under no affirmative obligation, to (i) review or screen any User Content submitted to the Site or otherwise submitted through the Services; (ii) edit any User Content posted on the Services; and/or (iii) remove any User Content from the Services for any reason, at any time, without prior notice, at our sole discretion. Vibey will have no liability or responsibility to users of the Vibey Services or any other person or entity for performance or nonperformance of such activities. Vibey’s enforcement of the acceptable use provisions set forth in this Agreement with respect to User Content in some instances does not constitute a waiver of our right to enforce such provisions in other instances involving similar content.
The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive Service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms.
Furthermore, you agree that you will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor our Services or any portion of our Services or for any other purpose, without our prior written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for your personal information) from our Services without our prior written permission and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of our Services or any activities conducted on our Services; (iv) bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Services, or (v) interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. Except as expressly permitted in this Agreement, you shall not collect or harvest any personally identifiable information, including account names, from our Services. You shall not use any communication systems provided on our Services (such as Forums or email) for any commercial or solicitation purposes. You shall not solicit for commercial purposes any users of our Services without our prior written permission.
PROPRIETARY RIGHTS
As between Vibey and you, Vibey or its licensors own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with this Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Vibey.
INTELLECTUAL PROPERTY RIGHTS
Vibey’s names, graphics, videos, logos, page headers, button icons, scripts, and service names are our trademarks or trade dress in the United States and/or other countries (collectively, the “Proprietary Marks”), are owned by Freetopia. You may not use the Proprietary Marks without our prior written permission. We make no proprietary claim to any third-party names, trademarks or service marks appearing on our Services. Any third-party names, trademarks, and service marks are property of their respective owners. The information, advice, data, software and content viewable on, contained in, or downloadable from our Services (collectively, “Our Content”), including, without limitation, all text, graphics, charts, pictures, photographs, images, videos, line art, icons and renditions, are copyrighted by, or otherwise licensed to us or Our Content suppliers. We also own a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of Our Content (the “Collective Work”). All software used on or within our Services is our property or the property of our software vendors and is protected by United States and international copyright laws. Viewing, reading, printing, downloading or otherwise using Our Content and/or the Collective Work does not entitle you to any ownership or intellectual property rights to Our Content, the Collective Work, or the Software.
You are solely responsible for any damages resulting from your infringement of our or any third-party’s intellectual property rights regarding the Trademarks, Our Content, the Collective Work, the Software and/or any other harm incurred by us or our affiliates as a, direct or indirect, result of your copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.
USE OF OUR CONTENT
We grant you a limited license to access, print, download or otherwise make personal use of Our Content and the Collective Work provided, however, that you shall not delete any proprietary notices or materials with regard to the foregoing. You may not modify Our Content or the Collective Work or utilize them for any commercial purpose or any other public display, performance, sale, or rental, decompile, reverse engineer, or disassemble Our Content and the Collective Work, or transfer Our Content or the Collective Work to another person or entity. Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication or use, other than the non-commercial use of Our Content and the Collective Work as permitted by this Agreement, is permitted by you without our prior written permission.
ACCOUNTS AND REGISTRATION
To access some features of the Service you may be required to register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You may also be required to provide us with information about you, which may be of a confidential nature and may include personal identifying information and/or financial information (“Your Information”). If you provide Your Information to us then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity. You also agree to keep Your Information current and to update Your Information if any of Your Information changes. Our collection, use and disclosure of Your Information is governed by this Agreement and our Privacy Policy.
ACCOUNT MANAGEMENT
a) Keep Your Password Secure. If you have been issued an account by Vibey in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Vibey, are responsible for any activity occurring in your account, whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Vibey immediately. Accounts may not be shared and may only be used by one individual per account.
b) Keep Your Details Accurate. Vibey occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.
c) Account Inactivity. Vibey may terminate your account and delete any content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
SUSPENSION AND TERMINATION OF SERVICES
We reserve the right to modify, suspend or terminate the Service or your access to the Service for any reason, without notice, at any time, and without liability to you. You can deactivate your account at anytime. Upon termination or deactivation, all licenses and other rights granted to you in these Terms will immediately cease. WE RESERVE THE RIGHT TO REFUSE ACCESS TO THE SERVICE TO ANYONE FOR ANY REASON AT ANY TIME.
INTERRUPTION OF SERVICE
Your access and use of our Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take. We reserve the right to suspend or discontinue the availability of our Services and/or any portion or feature of our Services at any time in our sole discretion and without prior notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
SOFTWARE
If you receive Software from us, its use is governed in one of two ways: If you’re presented with license terms that you must accept in order to use the Software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the Software.
Any license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Vibey, in the manner permitted by these terms. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software.
We may automatically check your version of the Software. We may also automatically download to your device or computer new versions of the Software.
Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your Service ends. You must then promptly uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software.
The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software or Service without U.S. government permission to anyone on U.S. government exclusion lists. You represent and warrant that you’re not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
THIRD PARTY LINKS, SERVICES AND CONTENT
The Site, App and Services may contain services, features and functionalities linking you to, or providing you with, certain functionality and access to third party services and content, websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. When you visit or use a third party’s website you agree to read and consent to the third party’s Terms of Service and Privacy Policy and you release us from any liability.
YOU ACKNOWLEDGE THAT WE ARE NOT RESPONSIBLE FOR SUCH CONTENT OR SERVICES AND THAT WE ARE NOT AN AGENT OF ANY THIRD PARTY, NOR ARE WE A DIRECT PARTY IN ANY SUCH TRANSACTION WITH A THIRD PARTY. ANY SUCH ACTIVITIES, AND ANY TERMS ASSOCIATED WITH SUCH ACTIVITIES, ARE SOLELY BETWEEN YOU AND THE APPLICABLE THIRD PARTY. SIMILARLY, WE ARE NOT RESPONSIBLE FOR ANY THIRD PARTY CONTENT OR PROCESS YOU ACCESS WITH THE SERVICES, AND YOU IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO SUCH SITES AND THIRD PARTY CONTENT. WE SHALL HAVE NO LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY SUCH CORRESPONDENCE, PURCHASE OR PROMOTION BETWEEN YOU AND ANY SUCH THIRD-PARTY. SHOULD YOU HAVE ANY PROBLEMS RESULTING FROM YOUR USE OF ANY THIRD PARTY SERVICES, OR SHOULD YOU SUFFER DATA LOSS OR OTHER LOSSES AS A RESULT OF PROBLEMS WITH ANY OF YOUR OTHER SERVICE PROVIDERS OR ANY THIRD-PARTY SERVICES, WE WILL NOT BE RESPONSIBLE UNLESS THE PROBLEM WAS THE DIRECT RESULT OF OUR ACTIONS.
ELECTRONIC COMMUNICATIONS
When you use our Services or send email to us, you are communicating with us electronically. You consent to receive communications from us electronically. Although we may choose to communicate with you by regular mail, we may also choose to communicate with you by email or by posting notices on our Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
ELECTRONIC TRANSACTIONS
Your use of the services includes the ability to enter into agreements and/or to make transactions electronically including, without limitation, in application purchases and other financial transaction. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this site, including in application purchases, financial transactions, notices of cancellation, policies, contracts, and applications. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
USER CONTENT RIGHTS AND RELATED RESPONSIBILITIES; LICENSE
“User Content” means, without limitation, any digital files, images, photos, artwork, videos, audio and documents, or other content you upload, transmit or otherwise make available to Vibey and its users via the Services. Vibey will make commercially reasonable efforts to ensure that all facilities, and third parties used to process and store your Content meet a high standard for security.
In order for us to provide the Service to you, we require that you grant us certain rights with respect to User Content, including the ability to display on Services, transmit, manipulate, process, store and copy User Content in order to provide our Services. Your acceptance of this Agreement gives us the permission to do so and grants us any such rights necessary to provide the Service to you. THIS PERMISSION INCLUDES ALLOWING US TO TRANSMIT USER CONTENT TO THIRD-PARTY SERVICE PROVIDERS FOR USE IN THE OPERATION, PROCESSING AND ADMINISTRATION OF THE SERVICE AND THE RIGHTS GRANTED TO US ARE EXTENDED TO THESE THIRD PARTIES TO THE DEGREE NECESSARY IN ORDER FOR THE SERVICE TO BE PROVIDED.
With regard to User Content, you represent and warrant that: (i) you have all necessary rights, including intellectual property rights, to submit User Content to Vibey and grant the licenses set forth herein; (ii) Vibey will not need to obtain licenses from any third party or pay royalties to any third party with respect to User Content; (iii) User Content does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (iv) User Content complies with these Terms of Service and all applicable laws.
By uploading User Content, you grant Vibey a perpetual, limited, worldwide, non-exclusive, royalty-free license (the “License”) and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from User Content for the purpose of allowing us to edit and display User Content using Vibey Services and archiving or preserving User Content for disputes, legal proceedings, or investigations. The license for legal archival/preservation purposes will continue indefinitely.
You retain ownership of all of User Content and all of the intellectual property rights in User Content. Vibey does not claim ownership over any of your User Content. These Terms do not grant us any licenses or rights to your User Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
You agree to use our Services and the Content (whether provided by us or others), as well as any Software provided in connection with the Services, in a manner consistent with all applicable laws and regulations. You agree not to post as part of the Service any offensive, inaccurate, incomplete, abusive, obscene, profane, threatening, intimidating, harassing, racially offensive, or illegal material. The following includes, without limitation, examples of the things you may not do:
· Impersonate any person or entity.
· Stalk, harass, defame, abuse, bully, threaten or otherwise violate the legal rights of others.
· Promote information that is false or misleading.
· Promote illegal activities or conduct that is defamatory, libelous or otherwise objectionable.
· Promote violence, racism, bigotry, hatred or physical harm of any kind against any group or individual.
· Submit anything that exploits children or minors or that depicts cruelty to animals.
· Solicit personal information from anyone under the age of 18.
· Solicit money from other users.
· Use the service in an illegal manner or to commit an illegal act.
· Transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware.
· Transmit any content that contains video, audio, or images of another person without his or her permission or that of their legal guardian.
· Promote material that exploits people in a sexual, pornographic or violent manner.
· Provide instructional information about illegal activities.
· Infringes someone else’s patent, trademark, trade secret, copyright or other intellectual property or other rights.
· Promote commercial activities including without limitation sales, contests, sweepstakes, barter, advertising, and business offers.
· Alter the opinions or comments posted by others on the Services.
You are solely responsible for User Content. We may, at our discretion, choose to review and/or listen to User Content for compliance with these Terms, however, Vibey is under no obligation to do so. Vibey may remove or return any of User Content at any time for any reason or for no reason at all. We are not responsible for the accuracy, appropriateness, or legality of User Content.
SAVED CONTENT
The App and Services may provide you with the ability to save certain User Content, (“Saved Content”) however Vibey expressly disclaims any liability for the loss or damage to any saved content or any losses or damages you incur as a result of the loss or damage of any Saved Content. It is your responsibility to back-up any User Content to prevent it’s loss.
SECURITY
Violating the security of our Site is prohibited and may result in criminal and civil liability. Vibey may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Service or Site or to breach security or authentication measures, unauthorized monitoring of data or traffic and interference with service to any user, host, or network.
PRIVACY AND YOUR PERSONAL INFORMATION
For information about the Vibey data protection practices and privacy policies, please read our Privacy Policy where you accessed these Terms of Service. This policy explains how we treat your personal information, and protect your privacy when you use the Services. You agree to the use of your data in accordance with Vibey Privacy Policy.
COPYRIGHT POLICY
We respect the intellectual property rights of others. Please notify us by e-mail at thevibeyapp@gmail.com, if you believe that a user of the website or Services has infringed your intellectual property rights. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act (“DMCA”).
YOUR INTERACTIONS WITH OTHER USERS
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS. YOU UNDERSTAND THAT THE COMPANY CURRENTLY DOES NOT CONDUCT ANY BACKGROUND CHECKS INCLUDING, BUT NOT LIMITED TO, CRIMINAL, FINANCIAL , SEX OFFENDER OR ANY OTHER BACKGROUND CHECKS OR SCREENINGS ON ITS USERS. THE COMPANY ALSO DOES NOT INQUIRE INTO THE BACKGROUNDS OF ALL OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS. THE COMPANY, WHILE NOT BEING OBLIGATED TO DO SO, RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
THE COMPANY IS NOT RESPONSIBLE FOR THE CONDUCT OF ANY USER. IN NO EVENT SHALL THE COMPANY, ITS EXECUTIVES, EMPLOYEES, AFFILIATES OR PARTNERS BE LIABLE (DIRECTLY OR INDIRECTLY) FOR ANY LOSSES OR DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE INCLUDING, WITHOUT LIMITATION, DEATH, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OR PERSONS YOU MEET THROUGH THE SERVICE. YOU AGREE TO TAKE ALL NECESSARY PRECAUTIONS IN ALL INTERACTIONS WITH OTHER USERS, PARTICULARLY IF YOU DECIDE TO COMMUNICATE OFF THE SERVICE OR MEET IN PERSON, OR IF YOU DECIDE TO SEND MONEY TO ANOTHER USER. YOU SHOULD NOT PROVIDE YOUR FINANCIAL INFORMATION (FOR EXAMPLE, YOUR CREDIT CARD OR BANK ACCOUNT INFORMATION), OR WIRE OR OTHERWISE SEND MONEY, TO OTHER USERS.
DISCLAIMERS; NO WARRANTIES
OUR CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF OUR SERVICES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF OUR SERVICES AND ALL PRODUCTS AND SERVICES INCLUDED ON OR ASSOCIATED WITH OUR SERVICES IS AT YOUR SOLE RISK.
WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THIRD-PARTY SERVICE PROVIDERS THAT WE MAY USE IN THE OPERATION, PROCESSING AND ADMINISTRATION OF THE SERVICES.
WE DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES, OR THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES. IT IS YOUR SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS OR COMPLETENESS OF THE CONTENT AND THE SERVICES AND PRODUCTS ASSOCIATED WITH OUR SERVICES. WE MAKE NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE FOR DOWNLOADING FROM OUR SERVICES IS FREE OF INFECTION FROM ANY VIRUSES, MALICIOUS SOFTWARE OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION. WE DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING ANY INFORMATION OR OFFERS PROVIDED ON OR THROUGH OUR SERVICES.
WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISS DELIVERY, OR UNTIMELY DELIVERY OF ANY CONTENT, INFORMATION OR MATERIAL.
WE DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES. WE DISCLAIM, ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE SERVICES. WE DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE SERVICE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE.
YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
WE MAKE NO REPRESENTATIONS THAT OUR SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN ANY JURISDICTIONS. WHEN YOU ACCESS OR USE OUR SERVICES FROM A JURISDICTION, THEN YOU DO SO BY YOUR OWN VOLITION AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
LIMITATIONS OF LIABILITY
IN NO EVENT SHALL WE BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOUR ACCESS AND USE OF OUR SERVICES; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE OUR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF OUR CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; (V) YOUR RELIANCE UPON OR USE OF OUR CONTENT OR THE COLLECTIVE WORK, OR (VI) ANY DIGITAL DATA, IMAGES, PHOTOS, ARTWORK, VIDEOS, AUDIO, DOCUMENTS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH OUR SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF OUR SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE APP OR WEBSITE, OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE APP OR WEBSITE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICE. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE APP OR THE WEBSITE SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE APP OR THE WEBSITE SERVICE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL WE BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND THEIR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS OR NON-PERFORMANCE OF THIRD PARTIES.
OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED $100.
YOU SPECIFICALLY ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE FOR USER GENERATED CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM SUCH USER GENERATED CONTENT AND THIRD-PARTY CONDUCT RESTS ENTIRELY WITH YOU.
YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
CERTAIN STATE OR JURISDICTIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
INDEMNITY
You agree that you will be personally responsible for your use of the Service, and you agree to defend, indemnify and hold harmless Vibey and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ and accounting fees and costs, arising out of or in any way connected with (i) your access to, use of or alleged use of the Service; (ii) your violation of these Terms of Service or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party or other User of the Services. We reserve the right, at our 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 our defense of such claim.
If you are using our Services on behalf of a business, that business accepts these terms. It will hold harmless and indemnify Vibey and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
RELEASE
By using the Services, the Site or the App, you release, to the maximum extent allowed by law, Vibey, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of the Services, the Site or the App, and any transaction effected through the Services, the Site or the App.
In the event that you have a dispute with any third party related to the Services, the Site or the App, you release, to the maximum extent allowed by law, Vibey, its officers, directors, employees, affiliates, and agents from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, 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.”
AMENDMENTS TO THIS AGREEMENT
We reserve the right to update, amend and/or change this Agreement at any time in our sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon us posting the updated Agreement on our Services. You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately below this Agreement. Your continued access and use of our Services following the posting of any such changes shall automatically be deemed your acceptance of all changes.
OUR REMEDIES
You acknowledge that we may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of the District of Columbia, or a United States District Court for the District of Columbia. You consent to the jurisdiction of such court and waive any objection to the venue of any such action or proceeding in such court.
DISPUTE RESOLUTION
For any dispute you have with Vibey, you agree to first contact us at thevibeyapp@gmail.com and attempt to resolve the dispute with us informally. If Vibey has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy as follows:
You and we agree that any claim or dispute at law or equity between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved in accordance with the provisions set forth in this Legal Disputes section. Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
a) Applicable Law. You agree that the laws of the District of Columbia, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated in this Agreement.
b) Agreement to Arbitrate. You and we each agree that any and all disputes or claims between you and us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to our Services, or any products or services displayed, offered, sold, delivered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify.
c) Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OUR OTHER USERS.
d) Arbitration Procedures. Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Agreement as a court would. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of this Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or this Agreement is void or voidable.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The arbitrator will decide the substance of all claims in accordance with the laws of the District of Columbia, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving our other users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
e) Judicial Forum for Legal Disputes. Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in the District of Columbia. You and we agree to submit to the personal jurisdiction of the courts located within the District of Columbia for the purpose of litigating all such claims or disputes. You also agree that: (i) our Services shall be deemed solely based in the District of Columbia; and (ii) our Services shall be deemed passive Services that do not give rise to personal jurisdiction over us and our assigns, either specific or general, in jurisdictions other than the District of Columbia.
LAW ENFORCEMENT
Vibey is committed to cooperating with law enforcement while respecting each individual’s right to privacy. If Vibey receives a request for user account information from a government agency investigating criminal activity, we will review the request to be certain that it satisfies all legal requirements before releasing information to the requesting agency.
Furthermore, under 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) (Voluntary Disclosure Of Customer Communications or Records), Vibey may disclose user account information to law enforcement, without a subpoena, court order, or search warrant, in response to a valid emergency when we believe that doing so is necessary to prevent death or serious physical harm to someone. Vibey will not release more information than it prudently believes is necessary to prevent harm in an emergency situation.
MISCELLANEOUS
SEVERABILITY
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
NO WAIVER
Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
SURVIVAL
All covenants, agreements, representations and warranties made in this Agreement, as may be amended by us, from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.
ENTIRE UNDERSTANDING
This Agreement and the Privacy Policy represent the entire understanding and agreement between you and us regarding the subject matter of the same, and supersede all other previous agreements, understandings and/or representations regarding the same.
If you have questions, comments, concerns or feedback regarding this Agreement or our Services, please contact us at thevibeyapp@gmail.com.
Last updated: March 25, 2023