AGREEMENT
AFFILIATE AGREEMENT
AFFILIATE AGREEMENT
1. NON EXCLUSIVE REVOCABLE RIGHT AND LICENSE
Subject to the terms and conditions of this Agreement, LiveSotori LLC (hereinafter “LiveSotori”) hereby grants to You a non-exclusive, revocable, right and license, without right to sublicense, to use the LiveSotori proprietary online platform, including without limitation the website located at _________________________ and any services offered on or through such website, and any servers, computers or networks used to provide such website (the "Livesotori Services") for the purposes set forth in this Agreement.
In the event You want to transfer Your account or ownership of any Product, as defined below, any transferee must agree in writing to be bound by the terms of this Agreement. Any transferee would be required to enter into a written client agreement with LiveSotori
In addition to any other rights or remedies afforded LiveSotori under or otherwise in connection with this Agreement, You agree and acknowledge that You have read and agree to comply with the following policies which are hereby incorporated by reference into, and made a part of, this Agreement:
Vendor and Products Requirements Policy
Digital Millennium Copyright Act ("DMCA") and Trademark Policy
Return and Cancellation Policy
Accounting Policy
Privacy Policy
Security Policy
Network Abuse Policy
Legal Notice
Joint Venture Program Guidelines
2. REGISTRATION.
(a) You will be required to register for an account in order to use certain LiveSotori Services. When You provide information during the registration process, You agree to provide only true, accurate, current and complete information and to update it as necessary to maintain its truth and accuracy.
(b) If You register for a LiveSotori account, You agree to accept responsibility for all activities that occur under Your account or password, if any, and You agree You will not sell, transfer or assign Your subscription or any subscriber rights. You are responsible for maintaining the confidentiality of Your password, if any, and for restricting access to Your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the LiveSotori Services using Your account information in whole or in part. LiveSotori reserves the right to terminate Your account or otherwise deny You access in its sole discretion without notice and without liability.
3. PROMOTING PRODUCTS.
If You promote, market or otherwise advertise ("Promote" or a "Promotion") any product which is registered for sale via the LiveSotori Services, either by You or by another LiveSotori client (each a "Product"), whether via the LiveSotori Services or via any other online or offline channel or medium, including for the purpose of earning a percentage of the sale price of any Product sold as a result of such Promotion ("Commissions"), You agree, acknowledge, represent and warrant that:
(a) You will abide by LiveSotori's Return and Cancellation Policy and You will establish Your Affiliate Return Policy as set forth below.
(b) When You Promote a Product, You will use the applicable Affiliate's trademarks, logos, trade names or service marks in accordance with such Affiliate's trademark guidelines, which will either be supplied by LiveSotori or set forth in the Affiliate Promotional Messaging Guidelines, if applicable. For purposes of this Agreement, "Affiliate" is defined as any person or entity that promotes one or more Products developed by LiveSotori
(c) You will not make any unlicensed or unauthorized use of, or otherwise infringe, violate or misappropriate any patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or other proprietary right (collectively "IP Rights") of any entity or individual affiliated to LiveSotori.
(d) You will not defame any person.
(e) You will not include any trademarks or other brand identifiers, or any copyrighted materials, other than as expressly permitted by this Agreement.
(f) You will not incorporate any variation of or misspell any third-party trademarks or other brand identifiers in any domain name, username or other identifier, including on any social networking site.
(g) You will not in any way copy the "look and feel" of any third party website, or otherwise imply that the Promotion is in fact a third party website.
(h) All communications and/or representations made by You in connection with any Promotions and/or in relation to any Product will be accurate and contain all disclosures and disclaimers necessary to prevent such Promotions from being false or deceptive. Such disclosures and disclaimers must be made in a clear and conspicuous manner, and will otherwise comply with Your country's laws and all U.S. federal and state laws, including U.S. Federal Trade Commission ("FTC") regulations, policies and guidelines governing advertising, disclosure and consumer protection, including the FTC's Endorsement Guidelines.
(i) LiveSotori reserves the right but is not obligated to review Your Promotions. You agree that LiveSotori, in its sole discretion and at any time, may require changes to Product Promotion and landing pages, customer support or other items related to the content of Your Promotions.
(h) You will provide valid contact information, including but not limited to a working email address and phone number, where LiveSotori can send inquiries and receive a non-automated reply by end of the following business day.
(i) LiveSotori does not independently review, verify, guarantee, or assume any responsibility or liability for, the accuracy, completeness, efficacy, or timeliness of any information provided by Affiliates, nor is it responsible for any bonuses, prizes or other incentives offered by Affiliates, as described in this Agreement, or otherwise offered by Affiliates via the LiveSotori Services. Your use of any information presented by an Affiliate is voluntary, and Your reliance is at Your sole risk. You acknowledge and understand that LiveSotori does not verify statements, claims, incentives or Promotions made by Affiliates.
(j) You will comply with all applicable laws, rules and regulations, and will not interfere with any other user’s business or use of the LiveSotori Services. LiveSotori reserves the right to take any action against you for violating this provision, including account suspension and/or termination, in accordance with Section 5(c) hereof.
AVAILABILITY OF SERVICES; SUSPENSION; TERMINATION.
You agree and acknowledge that:
(a) Subject to the terms and conditions of this Agreement and LiveSotori 's policies and procedures, LiveSotori shall use commercially reasonable efforts to provide the LiveSotori Services in a manner that will not disrupt Your business. You acknowledge and agree that from time-to-time the LiveSotori Services may be inaccessible or inoperable for reasons including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that LiveSotori may undertake from time to time; or (iii) causes beyond the reasonable control of LiveSotori or that are reasonably unforeseeable by LiveSotori, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that LiveSotori is not liable for any periodic interruptions in availability of the LiveSotori Services and further acknowledge that LiveSotori does not guarantee access to the LiveSotori Services on a continuous and uninterrupted basis.
(b) LiveSotori may decline, delist or halt sales or Promotion of any Product from the LiveSotori Marketplace, suspend funds, adjust Commissions based on performance, close an account, and/or suspend or terminate the LiveSotori Services at any time, in its sole discretion, without cause or notice to You or any penalty or liability for doing so.
(c) LiveSotori, in its sole discretion, may suspend or terminate Your account and Your rights to use the LiveSotori Services and LiveSotori may retain any or all funds (including future funds that may accrue) in Your LiveSotori account, if: (i) LiveSotori suspects or has reason to believe and/or if a person otherwise claims that You have violated the law or breached any term of this Agreement; (ii) Your account becomes dormant as defined in our Accounting Policy; (iii) or Your account experiences or is reasonably anticipated to experience a negative balance. Upon such termination, You agree to immediately cease all use of the LiveSotori Services and LiveSotori intellectual property licensed in Section 8(b) of this Agreement. Without limiting the foregoing, LiveSotori shall have the right to immediately terminate Your access and use of the LiveSotori Services, or any portion thereof, and to seize funds in your account, in the event of any conduct which LiveSotori, in its sole discretion, considers to be unacceptable.
(d) Following suspension or termination of an account or retaining of funds pursuant to this Section 5, LiveSotori will review Your account in a manner determined by LiveSotori in its sole discretion. You agree to cooperate with this review if asked. If the review concludes that there is a reasonable basis to believe misconduct has occurred, You agree that LiveSotori may retain funds in Your LiveSotori account as liquidated damages and/or for the benefit of LiveSotori or third parties affected by the misconduct. You acknowledge and agree that such liquidated damages: (a) are not a penalty, and (b) are reasonable and not disproportionate to such presumed damages to LiveSotori.
(e) LiveSotori may withhold any portion of the funds in Your LiveSotori account if LiveSotori, in its sole discretion, determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness You may have incurred with LiveSotori or any other Person.
6. EMAIL, TEXT MESSAGES AND TELEMARKETING.
(a) If You send, or cause to be sent any emails in connection with the direct or indirect Promotion or sale of any Product and/or Your use of the LiveSotori Services, then You agree, acknowledge, represent and warrant that all such Emails shall be in compliance with all applicable federal and state laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act") and the Children's Online Privacy Protection Act ("COPPA") (Information on these laws can be found at http://www.ftc.gov/spam/ and http://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
(b) You shall not directly or indirectly exploit documented or undocumented security holes on any client or server machine, or obtain email addresses via automated means or send any email to any address which was obtained via automated means or the use of spyware, viruses, or other means of bypassing system security or invading consumer privacy.
(c) You may not, directly or indirectly, send, initiate or procure the sending of any text message, or use or procure the use of any telemarketing activities, to Promote or sell Products, unless You have received prior written approval from LiveSotori. If You receive such approval and You send, or cause to be sent, any text messages or use or procure telemarketing activities in connection with the direct or indirect Promotion or sale of any Product and/or Your use of the LiveSotori Services, then You represent and warrant that all such text messages or calls will be in full-compliance with all applicable federal and state laws and regulations that apply to sending electronic messages and using telemarketing activities, including without limitation regulations issued by the FTC, the Federal Communications Commission ("FCC"), the CAN-SPAM Act, the Telephone Consumer Protection Act ("TCPA") and state laws regarding anti-spam, text messages and Do-Not-Call Registries (Information on these laws can be found at https://www.fcc.gov/sites/default/files/tcpa-rules.pdf, http://www.fcc.gov/guides/spam-unwanted-text-messages-and-email, and http://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
7. API REQUIREMENTS.
Your use of LiveSotori’s Application Programming Interface ("API") is subject to the API Terms of Service.
8. LIVESOTORI'S IP RIGHTS.
(a) Except as set forth in Section 8(b) below, You may not use LiveSotori's name, trademarks, service marks or any other IP Right of LiveSotori in any manner whatsoever to suggest association or affiliation with or endorsement by LiveSotori without the express prior written consent of LiveSotori, which LiveSotori may withhold at its sole discretion. Promotional use of images or reproductions of payment checks issued by LiveSotori without the express, written consent of LiveSotori is prohibited.
(b) Subject to the following terms and conditions, during the term of this Agreement LiveSotori grants You a limited, revocable license to use LiveSotori 's name: (i) as a watermark, Internet search engine description, keyword, search term or seeding element with any Internet search engines or keyword-triggered advertising programs; (ii) in metatags or hidden text (iii) as a sub domain or second or third level domain name identifier; (iv) to identify Products or (v) in connection with Promotions.
1. LiveSotori may revoke the foregoing license and/or provide restrictions upon Your use of LiveSotori's name, including requiring the use of such disclaimers as LiveSotori may provide, in connection with Your use of LiveSotori's name, at anytime and for any reason in LiveSotori's sole discretion.
2. Failure to comply with any restrictions imposed by LiveSotori upon Your use of LiveSotori's name or failure by You to immediately cease all use of LiveSotori's name if so instructed by LiveSotori shall constitute (1) a breach of the limited license set forth in this Section 8(b); and (2) a breach of this Agreement. In such case, LiveSotori reserves the right to pursue any and all remedies available to it at law or in equity.
3. You may not use or display LiveSotori's name in any manner to disparage LiveSotori or the LiveSotori Services.
(c) Notwithstanding the limited revocable license set forth in Section 8(b) above, as between the parties, LiveSotori shall be and remain the sole owner of all right, title and interest in and to the LiveSotori Services (including, without limitation, all IP Rights therein) and any other IP Rights, materials or other properties owned, licensed or controlled by LiveSotori, and You hereby assign to LiveSotori all right, title and interest You may be deemed to have therein. All rights not specifically granted to You under this Agreement are expressly reserved by LiveSotori.
9. CONFIDENTIALITY & NON-DISCLOSURE OBLIGATIONS.
(a) In connection with this Agreement, LiveSotori may disclose to You and/or You may otherwise receive or have access to sensitive, confidential, and/or proprietary information of LiveSotori (collectively, "Confidential Information"), including, but not limited to (a) the identities of other Affiliates of LiveSotori (collectively, " LiveSotori Clients"); (b) physical and data security information; (c) technical data; (d) LiveSotori Marketplace statistics and sales data; and/or (e) know-how or business information relating to business processes, methods, or marketing strategies. Except as required to perform Your obligations under and in accordance with the terms of this Agreement, You shall not (i) disclose the Confidential Information to any Person, or (ii) use the Confidential Information (whether for Your own benefit or the benefit of any other Person), without the express prior written consent of LiveSotori. You may not use any Confidential Information for the purpose of soliciting, or to permit others to solicit, LiveSotori Clients to subscribe to any other services or promote the sale of any products which compete, either directly or indirectly, with LiveSotori or the LiveSotori Services, including without limitation the functionality offered by the LiveSotori Marketplace. You agree and acknowledge that LiveSotori may be required to provide to governmental agencies or other third parties information in its possession regarding You or the business You conduct with LiveSotori.
(b) LiveSotori does not invite and cannot accept any ideas or information You consider to be confidential and/or proprietary. Except with respect to Your personally identifiable information (as expressly provided for in the LiveSotori Privacy Policy, any suggestions, submissions, comments, ideas, concepts, know-how, techniques material or feedback conveyed, offered or transmitted by You to LiveSotori, or otherwise in connection with the LiveSotori Services (collectively, the "Submissions"), shall be deemed to be non-confidential and non-proprietary and LiveSotori shall have no obligation of any kind with respect to such Submissions, unless otherwise expressly agreed to in a writing executed by You and a duly authorized officer of LiveSotori. You hereby grant to LiveSotori and its licensees a worldwide, perpetual, non-exclusive, fully-paid, royalty-free, transferable right and license, with right to sublicense, to reproduce, publicly display, distribute, perform, transmit, edit, modify, create derivatives works of, publish, sell, commercially exploit, use, and disclose the Submissions for any purpose and in all forms and all media whether now known or to become known in the future. LiveSotori shall have no obligation to compensate You for any such Submissions in any manner. You hereby represent and warrant that: (a) You own or otherwise have the right to grant the foregoing license to LiveSotori with respect to Your Submissions; and (b) Your Submissions and any use thereof by LiveSotori will not infringe or violate the rights of any Person. You are and shall remain solely responsible for the content of any Submissions You make and acknowledge that LiveSotori is under no obligation to respond to or use any Submission You may provide.
12. REPRESENTATIONS AND WARRANTIES.
You represent, acknowledge and warrant that:
(a) You, Your Products Your Promotions, and/or Your Submissions, as applicable, do not and will not, directly or indirectly: (i) violate the right of privacy or publicity of any Person; (ii) contain any libelous, obscene, indecent or otherwise unlawful material; (iii) infringe any IP Rights in any jurisdiction or otherwise contravene any rights of any Person; (iv) violate any laws, FTC rules, regulations, guidelines, or industry standards; or (v) violate LiveSotori's Privacy Policy.
(b) You may not: (i) frame, copy or mirror any content forming part of the LiveSotori Services; (ii) reverse engineer the LiveSotori Services or otherwise attempt to derive its source materials; (iii) access the LiveSotori Services for the purpose of (A) building a competitive product or service, or (B) copy any features, functions or graphics of the LiveSotori Services; (iv) interfere with or disrupt the LiveSotori Services or any data contained therein; (v) attempt to gain unauthorized access to the LiveSotori Services, its related systems or networks; or (vi) use the LiveSotori Services for any unlawful purpose or in violation of the rights of any Person.
13. INDEMNIFICATION.
To the fullest extent permitted by Law, You agree that
(a) In the event a third party makes any demand or complaint, or commences any action or files any claim whatsoever ("Claim") in connection with Your use of the LiveSotori Services, You shall defend, indemnify and hold harmless LiveSotori, its related parties and affiliates, and its officers, directors, employees, representatives, agents, licensors, attorneys, heirs, successors, and assignees (the " LiveSotori Parties"), from and against any and all damages, liabilities, claims or costs (including the costs of investigation, defense, reasonable attorneys' fees and costs) ("Losses") incurred by any LiveSotori Party as a result of such Claim, regardless of whether such Losses are direct, incidental, consequential, punitive or statutory.
(b) Upon receiving notice of a Claim for which LiveSotori is entitled to indemnification by You, LiveSotori shall provide You with written notification and the opportunity to assume sole control over the defense or settlement of the Claim and reasonable assistance to settle and/or defend the Claim at Your sole expense; provided, however, that (i) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by LiveSotori will require LiveSotori's prior written consent; (ii) the failure to provide timely notice, control, or assistance shall not relieve You of Your indemnification obligations; and (iii) LiveSotori may have its own counsel present at and participating in all proceedings or negotiations relating to a Claim, at LiveSotori's own expense, unless You fail or refuse to secure legal counsel to defend any Claim in a timely manner, in which case You shall pay all expenses related to LiveSotori's use of such counsel.
(c) In the event that LiveSotori incurs costs, attorneys' fees or other expenses responding to any complaint other than a Claim, in connection with or in relation to Your Products or Promotions, including copyright infringement complaints under the DMCA, LiveSotori reserves the right, in its sole discretion, to recover such costs and expenses by deducting a reasonable, commensurate amount from any monies owed to You by LiveSotori up to a maximum of ten thousand dollars ($10,000) per event. In the event that LiveSotori incurs any Losses relating to Your violation of LiveSotori 's Email/Text Message/Telemarketing policy, as set forth in Section 6 above, LiveSotori reserves the right, in its sole discretion, first to recover such Losses by deducting a reasonable, commensurate amount from any monies owed to You by LiveSotori up to a maximum of twenty thousand dollars ($20,000) per event. You understand and agree that the remedies set forth above are not exhaustive and that LiveSotori retains all rights to indemnification described herein. You authorize LiveSotori to make, and release LiveSotori from any liability in connection with, any such deductions.
14. LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL ANY LIVESOTORI PARTY, OR ITS HEIRS, SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY (A) USE OF OR INABILITY TO USE THE LIVESOTORI SERVICES, (B) PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES OF ANY KIND, RESULTING FROM YOUR ACCESS TO AND/OR USE OF THE LIVESOTORI SERVICES, (C) UNAUTHORIZED ACCESS TO OR USE OF ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE LIVESOTORI SERVICES, AND/OR (E) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE LIVESOTORI SERVICES, WHETHER OR NOT LIVESOTORI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF LIVESOTORI FOR ALL COSTS, LOSSES OR DAMAGES FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS DUE AND PAYABLE BY LIVESOTORI TO YOU UNDER THIS AGREEMENT FOR THE MONTH IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH DAMAGES ACCRUE. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE LIVESOTORI SERVICES, AND ANY SERVICES OR INFORMATION OFFERED THROUGH THE LIVESOTORI SERVICES, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF LIVESOTORI SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
15. DATA PROCESSING.
You agree to comply with all data protection laws and regulations, including the E.U.’s data protection regulation, the General Data Protection Regulation (“GDPR”). You agree not to market to persons subject to GDPR who have not consented to receive marketing communications.
Persons subject to GDPR are entitled to demand that you take certain actions with respect to their data, including, without limitation, that you delete it, correct it, or restrict processing of it. If you receive a data request from a person subject to GDPR, or if LiveSotori receives any such request with respect to data you are processing, you agree to honor the request within 30 days. You agree to implement appropriate systems and processes to comply with this requirement.
If you receive any personal data from LiveSotori or process personal data on LiveSotori’s behalf, you will: (1) implement appropriate technical and organizational measures to ensure the security of the data; (2) only process personal data for purposes approved by LiveSotori; (3) cease processing such data upon request from LiveSotori; (4) transfer such data only for purposes authorized by law, with prior notification to LiveSotori, and only pursuant to an appropriate subprocessing agreement; (5) indemnify LiveSotori for any claim, expense, demand or cost related to your receipt or use of such data; and (6) upon request, provide LiveSotori with information sufficient to demonstrate your compliance with this section, and allow LiveSotori to audit your data practices if necessary in LiveSotori’s sole discretion.
16. NO GUARANTEE OF VALIDITY.
LiveSotori does not endorse, approve, or certify any information provided on or through the LiveSotori Services, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information. Information provided on or through the LiveSotori Services may or may not be current as of the date of Your access, and LiveSotori has no duty to update and maintain such information. Additionally, the information provided on or through the LiveSotori Services may be changed periodically without prior notice. All content provided on or through the LiveSotori Services is provided "AS IS." Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness.
17. NO PROFESSIONAL ADVICE.
LiveSotori provides professional information (for example, financial or compliance) for informational purposes only, which should not be construed as legal or accounting advice. You should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information, fact or opinion provided on or through the LiveSotori Services. You understand that LiveSotori employees, representatives, and/or agents do not provide advice pursuant to the authority of professional certifications or licenses and You will not treat information provided by our employees, representatives, and/or agents as such. You further understand that by receiving information, facts or opinions on or through the LiveSotori Services, You are not entering into a relationship with LiveSotori or its employees, representatives and/or agents that entitles You to client privileges that may be associated with any professional certifications or licenses.
18. DISCLAIMER.
YOU ASSUME ALL RISK AND RESPONSIBILITY FOR YOUR DECISION TO USE THE LIVESOTORI SERVICES. THE LIVESOTORI SERVICES AND ALL RELATED SERVICES ARE OFFERED "AS IS" AND LIVESOTORI DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER LIVESOTORI NOR ITS RELATED PARTIES AND AFFILIATES ENDORSE OR ARE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY INFORMATION, FACT OR OPINION PROVIDED ON OR THROUGH THE LIVESOTORI SERVICES.
19. GENERAL TERMS AND CONDITIONS.
a) Governing Law; Dispute Resolution, Attorneys' Fees. You agree that Florida law will govern this Agreement and that any action, suit, proceeding, or claim arising out of or related to this Agreement must be brought exclusively in federal or state courts located in Boise, Idaho. You hereby submit to the in personam jurisdiction and venue of such courts and waive any objection based on inconvenient forum. You agree to indemnify LiveSotori for all of its reasonable attorneys' fees and costs incurred as a result of any action, suit, proceeding or claim brought by You or LiveSotori in which LiveSotori is found to be the prevailing party. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING UNDER OR IN RELATION TO THIS AGREEMENT. You and LiveSotori agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class action or representative action.
b) English is Governing Language. This Agreement is in English and all disputes between the parties shall be resolved in English. You understand and acknowledge that any foreign language services provided by LiveSotori are for informational purposes only and it is Your obligation to obtain independent legal advice at Your own expense to ensure You understand the terms of this Agreement.
c) Our Relationship. This Agreement does not create any relationship of principal and agent, partners, joint venturers, employer and employee, fiduciary or similar relationship between the parties. You are prohibited from making any promise, warranty or representation on behalf of LiveSotori or obligating LiveSotori in any way. You may not represent to any person that You are the agent of LiveSotori, or are authorized to act on its behalf.
d) Assignment. LiveSotori may freely assign or transfer any or all of the rights and obligations described in this Agreement. You may not assign this Agreement or any of Your rights and duties hereunder without the prior written consent of LiveSotori. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
e) Severability. If any provision of this Agreement is determined by a court to be unenforceable or invalid, the validity of the remaining parts, terms or provisions shall not be affected by that determination, and such court shall substitute a provision that is legal and enforceable and is as close to the intentions underlying the original provision as possible.
(f) Publicity. You may not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement: (i) relating to this Agreement; (ii) using LiveSotori's name or referencing the LiveSotori Services; or (iii) suggesting or implying any endorsement by LiveSotori of You and/or any Products without the prior written approval of LiveSotori, which LiveSotori may withhold in its sole discretion. You hereby authorize LiveSotori to include your name, business name, and general information about your use of the LiveSotori services in LiveSotori’s marketing and promotional materials.
(g) Entire Agreement; Amendment. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter. LiveSotori reserves the right to amend this Agreement at any time. When LiveSotori amends this Agreement, LiveSotori shall make reasonable efforts to provide You with general, not specific, notice of such changes by posting a conspicuous announcement at www.livesotori.com that such changes or amendments have occurred and identifying which particular provisions have changed. Such announcement shall be maintained for no less than 30 days following the effective date of such amendment. Your continued use of the LiveSotori Services, following the posting of such amendment will signify and be deemed Your assent to and acceptance of the revised Agreement. You agree that You have the burden to review periodically www.livesotori.com to inform Yourself of any such changes.
(h) Waiver. The waiver or failure by LiveSotori to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of LiveSotori set forth in this Agreement are cumulative and are in addition to any rights or remedies LiveSotori may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
(i) Equitable Actions. You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to LiveSotori which would not be adequately compensated by monetary damages and that LiveSotori may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security. Notwithstanding any other provision of this Agreement, any such relief may be sought in the state or federal courts of the State of Florida or any other court of competent jurisdiction anywhere in the world (at LiveSotori's sole discretion), and, You hereby consent to the jurisdiction of any such court and waive any objection to venue laid therein. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
(j) Force Majeure. You nor LiveSotori shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
(k) Notices. Any notice, request, approval, authorization, consent, demand or other communication required or permitted pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of: (i) actual receipt, irrespective of the method of delivery; (ii) the time of transmission from LiveSotori if sent via email, as date stamped by LiveSotori's systems; (iii) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (iv) on the sixth (6th) day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the last address provided by a party.
This contract constitutes a legally binding agreement between LiveSotori and you. By registering with LiveSotori, you agree and consent to be bound by the terms and conditions of this agreement, including any changes to this agreement or additional policies that may be incorporated by reference, which LiveSotori may make in its sole and absolute discretion in the future, for as long as you use the LiveSotori services.
(l) Headings/Interpretation. The section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.
(m) Survival. Sections 5, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, and 19 shall survive termination of this Agreement.
AFFILIATE AGREEMENT
1. NON EXCLUSIVE REVOCABLE RIGHT AND LICENSE
Subject to the terms and conditions of this Agreement, LiveSotori LLC (hereinafter “LiveSotori”) hereby grants to You a non-exclusive, revocable, right and license, without right to sublicense, to use the LiveSotori proprietary online platform, including without limitation the website located at _________________________ and any services offered on or through such website, and any servers, computers or networks used to provide such website (the "Livesotori Services") for the purposes set forth in this Agreement.
In the event You want to transfer Your account or ownership of any Product, as defined below, any transferee must agree in writing to be bound by the terms of this Agreement. Any transferee would be required to enter into a written client agreement with LiveSotori
In addition to any other rights or remedies afforded LiveSotori under or otherwise in connection with this Agreement, You agree and acknowledge that You have read and agree to comply with the following policies which are hereby incorporated by reference into, and made a part of, this Agreement:
Vendor and Products Requirements Policy
Digital Millennium Copyright Act ("DMCA") and Trademark Policy
Return and Cancellation Policy
Accounting Policy
Privacy Policy
Security Policy
Network Abuse Policy
Legal Notice
Joint Venture Program Guidelines
2. REGISTRATION.
(a) You will be required to register for an account in order to use certain LiveSotori Services. When You provide information during the registration process, You agree to provide only true, accurate, current and complete information and to update it as necessary to maintain its truth and accuracy.
(b) If You register for a LiveSotori account, You agree to accept responsibility for all activities that occur under Your account or password, if any, and You agree You will not sell, transfer or assign Your subscription or any subscriber rights. You are responsible for maintaining the confidentiality of Your password, if any, and for restricting access to Your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the LiveSotori Services using Your account information in whole or in part. LiveSotori reserves the right to terminate Your account or otherwise deny You access in its sole discretion without notice and without liability.
3. PROMOTING PRODUCTS.
If You promote, market or otherwise advertise ("Promote" or a "Promotion") any product which is registered for sale via the LiveSotori Services, either by You or by another LiveSotori client (each a "Product"), whether via the LiveSotori Services or via any other online or offline channel or medium, including for the purpose of earning a percentage of the sale price of any Product sold as a result of such Promotion ("Commissions"), You agree, acknowledge, represent and warrant that:
(a) You will abide by LiveSotori's Return and Cancellation Policy and You will establish Your Affiliate Return Policy as set forth below.
(b) When You Promote a Product, You will use the applicable Affiliate's trademarks, logos, trade names or service marks in accordance with such Affiliate's trademark guidelines, which will either be supplied by LiveSotori or set forth in the Affiliate Promotional Messaging Guidelines, if applicable. For purposes of this Agreement, "Affiliate" is defined as any person or entity that promotes one or more Products developed by LiveSotori
(c) You will not make any unlicensed or unauthorized use of, or otherwise infringe, violate or misappropriate any patent, copyright, trademark, trade secret, right of privacy, right of publicity or other intellectual property or other proprietary right (collectively "IP Rights") of any entity or individual affiliated to LiveSotori.
(d) You will not defame any person.
(e) You will not include any trademarks or other brand identifiers, or any copyrighted materials, other than as expressly permitted by this Agreement.
(f) You will not incorporate any variation of or misspell any third-party trademarks or other brand identifiers in any domain name, username or other identifier, including on any social networking site.
(g) You will not in any way copy the "look and feel" of any third party website, or otherwise imply that the Promotion is in fact a third party website.
(h) All communications and/or representations made by You in connection with any Promotions and/or in relation to any Product will be accurate and contain all disclosures and disclaimers necessary to prevent such Promotions from being false or deceptive. Such disclosures and disclaimers must be made in a clear and conspicuous manner, and will otherwise comply with Your country's laws and all U.S. federal and state laws, including U.S. Federal Trade Commission ("FTC") regulations, policies and guidelines governing advertising, disclosure and consumer protection, including the FTC's Endorsement Guidelines.
(i) LiveSotori reserves the right but is not obligated to review Your Promotions. You agree that LiveSotori, in its sole discretion and at any time, may require changes to Product Promotion and landing pages, customer support or other items related to the content of Your Promotions.
(h) You will provide valid contact information, including but not limited to a working email address and phone number, where LiveSotori can send inquiries and receive a non-automated reply by end of the following business day.
(i) LiveSotori does not independently review, verify, guarantee, or assume any responsibility or liability for, the accuracy, completeness, efficacy, or timeliness of any information provided by Affiliates, nor is it responsible for any bonuses, prizes or other incentives offered by Affiliates, as described in this Agreement, or otherwise offered by Affiliates via the LiveSotori Services. Your use of any information presented by an Affiliate is voluntary, and Your reliance is at Your sole risk. You acknowledge and understand that LiveSotori does not verify statements, claims, incentives or Promotions made by Affiliates.
(j) You will comply with all applicable laws, rules and regulations, and will not interfere with any other user’s business or use of the LiveSotori Services. LiveSotori reserves the right to take any action against you for violating this provision, including account suspension and/or termination, in accordance with Section 5(c) hereof.
AVAILABILITY OF SERVICES; SUSPENSION; TERMINATION.
You agree and acknowledge that:
(a) Subject to the terms and conditions of this Agreement and LiveSotori 's policies and procedures, LiveSotori shall use commercially reasonable efforts to provide the LiveSotori Services in a manner that will not disrupt Your business. You acknowledge and agree that from time-to-time the LiveSotori Services may be inaccessible or inoperable for reasons including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that LiveSotori may undertake from time to time; or (iii) causes beyond the reasonable control of LiveSotori or that are reasonably unforeseeable by LiveSotori, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that LiveSotori is not liable for any periodic interruptions in availability of the LiveSotori Services and further acknowledge that LiveSotori does not guarantee access to the LiveSotori Services on a continuous and uninterrupted basis.
(b) LiveSotori may decline, delist or halt sales or Promotion of any Product from the LiveSotori Marketplace, suspend funds, adjust Commissions based on performance, close an account, and/or suspend or terminate the LiveSotori Services at any time, in its sole discretion, without cause or notice to You or any penalty or liability for doing so.
(c) LiveSotori, in its sole discretion, may suspend or terminate Your account and Your rights to use the LiveSotori Services and LiveSotori may retain any or all funds (including future funds that may accrue) in Your LiveSotori account, if: (i) LiveSotori suspects or has reason to believe and/or if a person otherwise claims that You have violated the law or breached any term of this Agreement; (ii) Your account becomes dormant as defined in our Accounting Policy; (iii) or Your account experiences or is reasonably anticipated to experience a negative balance. Upon such termination, You agree to immediately cease all use of the LiveSotori Services and LiveSotori intellectual property licensed in Section 8(b) of this Agreement. Without limiting the foregoing, LiveSotori shall have the right to immediately terminate Your access and use of the LiveSotori Services, or any portion thereof, and to seize funds in your account, in the event of any conduct which LiveSotori, in its sole discretion, considers to be unacceptable.
(d) Following suspension or termination of an account or retaining of funds pursuant to this Section 5, LiveSotori will review Your account in a manner determined by LiveSotori in its sole discretion. You agree to cooperate with this review if asked. If the review concludes that there is a reasonable basis to believe misconduct has occurred, You agree that LiveSotori may retain funds in Your LiveSotori account as liquidated damages and/or for the benefit of LiveSotori or third parties affected by the misconduct. You acknowledge and agree that such liquidated damages: (a) are not a penalty, and (b) are reasonable and not disproportionate to such presumed damages to LiveSotori.
(e) LiveSotori may withhold any portion of the funds in Your LiveSotori account if LiveSotori, in its sole discretion, determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness You may have incurred with LiveSotori or any other Person.
6. EMAIL, TEXT MESSAGES AND TELEMARKETING.
(a) If You send, or cause to be sent any emails in connection with the direct or indirect Promotion or sale of any Product and/or Your use of the LiveSotori Services, then You agree, acknowledge, represent and warrant that all such Emails shall be in compliance with all applicable federal and state laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act") and the Children's Online Privacy Protection Act ("COPPA") (Information on these laws can be found at http://www.ftc.gov/spam/ and http://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
(b) You shall not directly or indirectly exploit documented or undocumented security holes on any client or server machine, or obtain email addresses via automated means or send any email to any address which was obtained via automated means or the use of spyware, viruses, or other means of bypassing system security or invading consumer privacy.
(c) You may not, directly or indirectly, send, initiate or procure the sending of any text message, or use or procure the use of any telemarketing activities, to Promote or sell Products, unless You have received prior written approval from LiveSotori. If You receive such approval and You send, or cause to be sent, any text messages or use or procure telemarketing activities in connection with the direct or indirect Promotion or sale of any Product and/or Your use of the LiveSotori Services, then You represent and warrant that all such text messages or calls will be in full-compliance with all applicable federal and state laws and regulations that apply to sending electronic messages and using telemarketing activities, including without limitation regulations issued by the FTC, the Federal Communications Commission ("FCC"), the CAN-SPAM Act, the Telephone Consumer Protection Act ("TCPA") and state laws regarding anti-spam, text messages and Do-Not-Call Registries (Information on these laws can be found at https://www.fcc.gov/sites/default/files/tcpa-rules.pdf, http://www.fcc.gov/guides/spam-unwanted-text-messages-and-email, and http://www.ftc.gov/privacy/privacyinitiatives/childrens.html).
7. API REQUIREMENTS.
Your use of LiveSotori’s Application Programming Interface ("API") is subject to the API Terms of Service.
8. LIVESOTORI'S IP RIGHTS.
(a) Except as set forth in Section 8(b) below, You may not use LiveSotori's name, trademarks, service marks or any other IP Right of LiveSotori in any manner whatsoever to suggest association or affiliation with or endorsement by LiveSotori without the express prior written consent of LiveSotori, which LiveSotori may withhold at its sole discretion. Promotional use of images or reproductions of payment checks issued by LiveSotori without the express, written consent of LiveSotori is prohibited.
(b) Subject to the following terms and conditions, during the term of this Agreement LiveSotori grants You a limited, revocable license to use LiveSotori 's name: (i) as a watermark, Internet search engine description, keyword, search term or seeding element with any Internet search engines or keyword-triggered advertising programs; (ii) in metatags or hidden text (iii) as a sub domain or second or third level domain name identifier; (iv) to identify Products or (v) in connection with Promotions.
1. LiveSotori may revoke the foregoing license and/or provide restrictions upon Your use of LiveSotori's name, including requiring the use of such disclaimers as LiveSotori may provide, in connection with Your use of LiveSotori's name, at anytime and for any reason in LiveSotori's sole discretion.
2. Failure to comply with any restrictions imposed by LiveSotori upon Your use of LiveSotori's name or failure by You to immediately cease all use of LiveSotori's name if so instructed by LiveSotori shall constitute (1) a breach of the limited license set forth in this Section 8(b); and (2) a breach of this Agreement. In such case, LiveSotori reserves the right to pursue any and all remedies available to it at law or in equity.
3. You may not use or display LiveSotori's name in any manner to disparage LiveSotori or the LiveSotori Services.
(c) Notwithstanding the limited revocable license set forth in Section 8(b) above, as between the parties, LiveSotori shall be and remain the sole owner of all right, title and interest in and to the LiveSotori Services (including, without limitation, all IP Rights therein) and any other IP Rights, materials or other properties owned, licensed or controlled by LiveSotori, and You hereby assign to LiveSotori all right, title and interest You may be deemed to have therein. All rights not specifically granted to You under this Agreement are expressly reserved by LiveSotori.
9. CONFIDENTIALITY & NON-DISCLOSURE OBLIGATIONS.
(a) In connection with this Agreement, LiveSotori may disclose to You and/or You may otherwise receive or have access to sensitive, confidential, and/or proprietary information of LiveSotori (collectively, "Confidential Information"), including, but not limited to (a) the identities of other Affiliates of LiveSotori (collectively, " LiveSotori Clients"); (b) physical and data security information; (c) technical data; (d) LiveSotori Marketplace statistics and sales data; and/or (e) know-how or business information relating to business processes, methods, or marketing strategies. Except as required to perform Your obligations under and in accordance with the terms of this Agreement, You shall not (i) disclose the Confidential Information to any Person, or (ii) use the Confidential Information (whether for Your own benefit or the benefit of any other Person), without the express prior written consent of LiveSotori. You may not use any Confidential Information for the purpose of soliciting, or to permit others to solicit, LiveSotori Clients to subscribe to any other services or promote the sale of any products which compete, either directly or indirectly, with LiveSotori or the LiveSotori Services, including without limitation the functionality offered by the LiveSotori Marketplace. You agree and acknowledge that LiveSotori may be required to provide to governmental agencies or other third parties information in its possession regarding You or the business You conduct with LiveSotori.
(b) LiveSotori does not invite and cannot accept any ideas or information You consider to be confidential and/or proprietary. Except with respect to Your personally identifiable information (as expressly provided for in the LiveSotori Privacy Policy, any suggestions, submissions, comments, ideas, concepts, know-how, techniques material or feedback conveyed, offered or transmitted by You to LiveSotori, or otherwise in connection with the LiveSotori Services (collectively, the "Submissions"), shall be deemed to be non-confidential and non-proprietary and LiveSotori shall have no obligation of any kind with respect to such Submissions, unless otherwise expressly agreed to in a writing executed by You and a duly authorized officer of LiveSotori. You hereby grant to LiveSotori and its licensees a worldwide, perpetual, non-exclusive, fully-paid, royalty-free, transferable right and license, with right to sublicense, to reproduce, publicly display, distribute, perform, transmit, edit, modify, create derivatives works of, publish, sell, commercially exploit, use, and disclose the Submissions for any purpose and in all forms and all media whether now known or to become known in the future. LiveSotori shall have no obligation to compensate You for any such Submissions in any manner. You hereby represent and warrant that: (a) You own or otherwise have the right to grant the foregoing license to LiveSotori with respect to Your Submissions; and (b) Your Submissions and any use thereof by LiveSotori will not infringe or violate the rights of any Person. You are and shall remain solely responsible for the content of any Submissions You make and acknowledge that LiveSotori is under no obligation to respond to or use any Submission You may provide.
12. REPRESENTATIONS AND WARRANTIES.
You represent, acknowledge and warrant that:
(a) You, Your Products Your Promotions, and/or Your Submissions, as applicable, do not and will not, directly or indirectly: (i) violate the right of privacy or publicity of any Person; (ii) contain any libelous, obscene, indecent or otherwise unlawful material; (iii) infringe any IP Rights in any jurisdiction or otherwise contravene any rights of any Person; (iv) violate any laws, FTC rules, regulations, guidelines, or industry standards; or (v) violate LiveSotori's Privacy Policy.
(b) You may not: (i) frame, copy or mirror any content forming part of the LiveSotori Services; (ii) reverse engineer the LiveSotori Services or otherwise attempt to derive its source materials; (iii) access the LiveSotori Services for the purpose of (A) building a competitive product or service, or (B) copy any features, functions or graphics of the LiveSotori Services; (iv) interfere with or disrupt the LiveSotori Services or any data contained therein; (v) attempt to gain unauthorized access to the LiveSotori Services, its related systems or networks; or (vi) use the LiveSotori Services for any unlawful purpose or in violation of the rights of any Person.
13. INDEMNIFICATION.
To the fullest extent permitted by Law, You agree that
(a) In the event a third party makes any demand or complaint, or commences any action or files any claim whatsoever ("Claim") in connection with Your use of the LiveSotori Services, You shall defend, indemnify and hold harmless LiveSotori, its related parties and affiliates, and its officers, directors, employees, representatives, agents, licensors, attorneys, heirs, successors, and assignees (the " LiveSotori Parties"), from and against any and all damages, liabilities, claims or costs (including the costs of investigation, defense, reasonable attorneys' fees and costs) ("Losses") incurred by any LiveSotori Party as a result of such Claim, regardless of whether such Losses are direct, incidental, consequential, punitive or statutory.
(b) Upon receiving notice of a Claim for which LiveSotori is entitled to indemnification by You, LiveSotori shall provide You with written notification and the opportunity to assume sole control over the defense or settlement of the Claim and reasonable assistance to settle and/or defend the Claim at Your sole expense; provided, however, that (i) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by LiveSotori will require LiveSotori's prior written consent; (ii) the failure to provide timely notice, control, or assistance shall not relieve You of Your indemnification obligations; and (iii) LiveSotori may have its own counsel present at and participating in all proceedings or negotiations relating to a Claim, at LiveSotori's own expense, unless You fail or refuse to secure legal counsel to defend any Claim in a timely manner, in which case You shall pay all expenses related to LiveSotori's use of such counsel.
(c) In the event that LiveSotori incurs costs, attorneys' fees or other expenses responding to any complaint other than a Claim, in connection with or in relation to Your Products or Promotions, including copyright infringement complaints under the DMCA, LiveSotori reserves the right, in its sole discretion, to recover such costs and expenses by deducting a reasonable, commensurate amount from any monies owed to You by LiveSotori up to a maximum of ten thousand dollars ($10,000) per event. In the event that LiveSotori incurs any Losses relating to Your violation of LiveSotori 's Email/Text Message/Telemarketing policy, as set forth in Section 6 above, LiveSotori reserves the right, in its sole discretion, first to recover such Losses by deducting a reasonable, commensurate amount from any monies owed to You by LiveSotori up to a maximum of twenty thousand dollars ($20,000) per event. You understand and agree that the remedies set forth above are not exhaustive and that LiveSotori retains all rights to indemnification described herein. You authorize LiveSotori to make, and release LiveSotori from any liability in connection with, any such deductions.
14. LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL ANY LIVESOTORI PARTY, OR ITS HEIRS, SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY (A) USE OF OR INABILITY TO USE THE LIVESOTORI SERVICES, (B) PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES OF ANY KIND, RESULTING FROM YOUR ACCESS TO AND/OR USE OF THE LIVESOTORI SERVICES, (C) UNAUTHORIZED ACCESS TO OR USE OF ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE LIVESOTORI SERVICES, AND/OR (E) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE LIVESOTORI SERVICES, WHETHER OR NOT LIVESOTORI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF LIVESOTORI FOR ALL COSTS, LOSSES OR DAMAGES FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS DUE AND PAYABLE BY LIVESOTORI TO YOU UNDER THIS AGREEMENT FOR THE MONTH IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH DAMAGES ACCRUE. THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE LIVESOTORI SERVICES, AND ANY SERVICES OR INFORMATION OFFERED THROUGH THE LIVESOTORI SERVICES, WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF LIVESOTORI SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
15. DATA PROCESSING.
You agree to comply with all data protection laws and regulations, including the E.U.’s data protection regulation, the General Data Protection Regulation (“GDPR”). You agree not to market to persons subject to GDPR who have not consented to receive marketing communications.
Persons subject to GDPR are entitled to demand that you take certain actions with respect to their data, including, without limitation, that you delete it, correct it, or restrict processing of it. If you receive a data request from a person subject to GDPR, or if LiveSotori receives any such request with respect to data you are processing, you agree to honor the request within 30 days. You agree to implement appropriate systems and processes to comply with this requirement.
If you receive any personal data from LiveSotori or process personal data on LiveSotori’s behalf, you will: (1) implement appropriate technical and organizational measures to ensure the security of the data; (2) only process personal data for purposes approved by LiveSotori; (3) cease processing such data upon request from LiveSotori; (4) transfer such data only for purposes authorized by law, with prior notification to LiveSotori, and only pursuant to an appropriate subprocessing agreement; (5) indemnify LiveSotori for any claim, expense, demand or cost related to your receipt or use of such data; and (6) upon request, provide LiveSotori with information sufficient to demonstrate your compliance with this section, and allow LiveSotori to audit your data practices if necessary in LiveSotori’s sole discretion.
16. NO GUARANTEE OF VALIDITY.
LiveSotori does not endorse, approve, or certify any information provided on or through the LiveSotori Services, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information. Information provided on or through the LiveSotori Services may or may not be current as of the date of Your access, and LiveSotori has no duty to update and maintain such information. Additionally, the information provided on or through the LiveSotori Services may be changed periodically without prior notice. All content provided on or through the LiveSotori Services is provided "AS IS." Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness.
17. NO PROFESSIONAL ADVICE.
LiveSotori provides professional information (for example, financial or compliance) for informational purposes only, which should not be construed as legal or accounting advice. You should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information, fact or opinion provided on or through the LiveSotori Services. You understand that LiveSotori employees, representatives, and/or agents do not provide advice pursuant to the authority of professional certifications or licenses and You will not treat information provided by our employees, representatives, and/or agents as such. You further understand that by receiving information, facts or opinions on or through the LiveSotori Services, You are not entering into a relationship with LiveSotori or its employees, representatives and/or agents that entitles You to client privileges that may be associated with any professional certifications or licenses.
18. DISCLAIMER.
YOU ASSUME ALL RISK AND RESPONSIBILITY FOR YOUR DECISION TO USE THE LIVESOTORI SERVICES. THE LIVESOTORI SERVICES AND ALL RELATED SERVICES ARE OFFERED "AS IS" AND LIVESOTORI DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER LIVESOTORI NOR ITS RELATED PARTIES AND AFFILIATES ENDORSE OR ARE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY INFORMATION, FACT OR OPINION PROVIDED ON OR THROUGH THE LIVESOTORI SERVICES.
19. GENERAL TERMS AND CONDITIONS.
a) Governing Law; Dispute Resolution, Attorneys' Fees. You agree that Florida law will govern this Agreement and that any action, suit, proceeding, or claim arising out of or related to this Agreement must be brought exclusively in federal or state courts located in Boise, Idaho. You hereby submit to the in personam jurisdiction and venue of such courts and waive any objection based on inconvenient forum. You agree to indemnify LiveSotori for all of its reasonable attorneys' fees and costs incurred as a result of any action, suit, proceeding or claim brought by You or LiveSotori in which LiveSotori is found to be the prevailing party. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING UNDER OR IN RELATION TO THIS AGREEMENT. You and LiveSotori agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class action or representative action.
b) English is Governing Language. This Agreement is in English and all disputes between the parties shall be resolved in English. You understand and acknowledge that any foreign language services provided by LiveSotori are for informational purposes only and it is Your obligation to obtain independent legal advice at Your own expense to ensure You understand the terms of this Agreement.
c) Our Relationship. This Agreement does not create any relationship of principal and agent, partners, joint venturers, employer and employee, fiduciary or similar relationship between the parties. You are prohibited from making any promise, warranty or representation on behalf of LiveSotori or obligating LiveSotori in any way. You may not represent to any person that You are the agent of LiveSotori, or are authorized to act on its behalf.
d) Assignment. LiveSotori may freely assign or transfer any or all of the rights and obligations described in this Agreement. You may not assign this Agreement or any of Your rights and duties hereunder without the prior written consent of LiveSotori. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
e) Severability. If any provision of this Agreement is determined by a court to be unenforceable or invalid, the validity of the remaining parts, terms or provisions shall not be affected by that determination, and such court shall substitute a provision that is legal and enforceable and is as close to the intentions underlying the original provision as possible.
(f) Publicity. You may not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement: (i) relating to this Agreement; (ii) using LiveSotori's name or referencing the LiveSotori Services; or (iii) suggesting or implying any endorsement by LiveSotori of You and/or any Products without the prior written approval of LiveSotori, which LiveSotori may withhold in its sole discretion. You hereby authorize LiveSotori to include your name, business name, and general information about your use of the LiveSotori services in LiveSotori’s marketing and promotional materials.
(g) Entire Agreement; Amendment. This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter. LiveSotori reserves the right to amend this Agreement at any time. When LiveSotori amends this Agreement, LiveSotori shall make reasonable efforts to provide You with general, not specific, notice of such changes by posting a conspicuous announcement at www.livesotori.com that such changes or amendments have occurred and identifying which particular provisions have changed. Such announcement shall be maintained for no less than 30 days following the effective date of such amendment. Your continued use of the LiveSotori Services, following the posting of such amendment will signify and be deemed Your assent to and acceptance of the revised Agreement. You agree that You have the burden to review periodically www.livesotori.com to inform Yourself of any such changes.
(h) Waiver. The waiver or failure by LiveSotori to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of LiveSotori set forth in this Agreement are cumulative and are in addition to any rights or remedies LiveSotori may otherwise have at law or equity, except with respect to any sole and exclusive remedies expressly provided for herein.
(i) Equitable Actions. You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to LiveSotori which would not be adequately compensated by monetary damages and that LiveSotori may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security. Notwithstanding any other provision of this Agreement, any such relief may be sought in the state or federal courts of the State of Florida or any other court of competent jurisdiction anywhere in the world (at LiveSotori's sole discretion), and, You hereby consent to the jurisdiction of any such court and waive any objection to venue laid therein. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
(j) Force Majeure. You nor LiveSotori shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
(k) Notices. Any notice, request, approval, authorization, consent, demand or other communication required or permitted pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of: (i) actual receipt, irrespective of the method of delivery; (ii) the time of transmission from LiveSotori if sent via email, as date stamped by LiveSotori's systems; (iii) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (iv) on the sixth (6th) day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the last address provided by a party.
This contract constitutes a legally binding agreement between LiveSotori and you. By registering with LiveSotori, you agree and consent to be bound by the terms and conditions of this agreement, including any changes to this agreement or additional policies that may be incorporated by reference, which LiveSotori may make in its sole and absolute discretion in the future, for as long as you use the LiveSotori services.
(l) Headings/Interpretation. The section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.
(m) Survival. Sections 5, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, and 19 shall survive termination of this Agreement.
