Divendo Ltd ("Divendo") provides a suite of tools and resources to operate and manage an online store, process orders and sell products online and other services (collectively, the "Services"). The following are the terms and conditions for use of the Services (the " Terms"), along with any amendments thereto and any operating rules or policies that may be published from time to time by Divendo.
You agree that you have read and understand, and have the capacity and authority to accept, agree to and be bound by these Terms.
1. Service and Terms
- The Services are provided subject to these Terms and any operating rules or policies that Divendo may publish from time to time (collectively, the "Agreement"). Divendo may make changes or modifications to this Agreement at any time, and such changes or modifications are effective immediately upon the earliest of (a) Divendo’s email notification to you advising you of such changes or modifications, (b) your electronic acceptance of this Agreement after such changes or modifications have been made to this Agreement as indicated by the "Date of Last Revision" date at the top of the Terms, or (c) your continued use of the Services after Divendo posts the updated Agreement to diven.do. In addition, when using particular Divendo services, Customer and Divendo will be subject to any posted guidelines or rules applicable to such Services that may be posted from time to time.
- Customer will be one party to this contract. Divendo Ltd will be the other contracting party.
- The Services are available only to persons who can form legally binding contracts under applicable law.
- The Services provide a collection of tools and resources to manage an online store, process orders and sell products online. In addition, the Services may include migration services relating to your use of the Divendo’s tools and resources.
- Customer must complete a signed contract in order to use the Services. Customer will provide true, accurate, current, and complete information about Customer as requested in the contract and will update the information (via the online account portal) to keep it current. As part of the registration process, Customer will identify an email address and password for Customer's Divendo account. Customer is responsible for maintaining the security of Customer's account, passwords, and files, and for all uses of Customer's account and of the Services in Customer's name. Divendo reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
- Divendo acknowledges that it is responsible for the security of credit cardholder data to the extent that Divendo has control of that data. To that end, Divendo undertakes regular assessments consistent with the Payment Card Industry Data Security Standards. Customer acknowledges that Customer is responsible for determining the PCI DSS merchant requirements applicable to the Customer and Customer's unique use of the Divendo platform and tools.
2. Grant of licence
- Subject to these Conditions and in consideration of the payment by the Customer to Divendo of the Development Charge and the Licence Fee in accordance with Condition 7, Divendo grants to the Customer a non-exclusive non-transferable licence to make Permitted Use of the Deliverables in accordance with these Conditions from the Actual Delivery Date until the Licence and/or Contract is terminated in accordance with Condition 4.
- The Customer shall:
- not use the Deliverables other than for the Permitted Use;
- not, save solely for the purposes expressly permitted by and in accordance with s.296A(l) CDPA and s.50B(2) CDPA copy, adapt or decompile the whole or any part of the Deliverables and in the event that such decompilation or copying is carried out by the Customer pursuant to s.296A(l) or s.50B(2) CPDA all rights in any resultant source code shall belong exclusively to Divendo subject to a non-exclusive non-transferable free licence for the Customer to be able to refer to that source code for the purposes of 550B(2) CDPA only on condition that no disclosure of it is made to any third party;
- not remove or alter any copyright, trade mark or other proprietary notice or mark (whether human-readable or machine-readable) on any of the Deliverables;
- not provide or make available to any third party whether as a gift or for any consideration of any sort any information or knowledge of which it is informed or which it deduces about or relating to the Deliverables;
- reproduce on any copy (whether in machine-readable or human-readable form) of the Deliverables Divendo’s copyright and trade mark notices;
- maintain an up-to-date written record of the number of copies of the Deliverables and their location and upon request forthwith produce such record to Divendo;
- notify Divendo immediately if the Customer becomes aware of any unauthorised use of the whole or any part of the Deliverables by any third party.
- The Customer shall inform all relevant employees, agents and subcontractors that the Deliverables contain confidential information of Divendo and that all Intellectual Property Rights therein are the property of Divendo and the Customer shall take all such steps as shall be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this Condition 2.
3. Restrictions and Responsibilities
- This is an Agreement for Services, and Customer is not granted a license to any software by this Agreement. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of or included in the Services or any software, documentation or data related to the Services (" Software"); modify, translate or create derivative works based on the Services or any Software; or copy (except for archival purposes), distribute, pledge, assign or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
- For every email message sent in connection with the Services, Customer acknowledges and agrees that the recipient has agreed to receive such communication and that Customer will not engage in the act of sending unsolicited emails.
- In using the varied features of the Services, Customer may provide information (such as name, contact information, or other registration information) to Divendo. Divendo may use this information and any technical information about Customer's use of this website to tailor its presentations to Customer, facilitate Customer's movement through this website, or communicate separately with Customer. Divendo will not provide information to companies Customer has not authorized, and Divendo will not authorize the companies that get such information to sell and redistribute it without Customer’s prior consent.
- Customer acknowledges and agrees that: (a) the Services including without limitation, any modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, " Proprietary Information") are owned by Divendo and/or its third party sponsors, partners, and other co-branders (collectively, " Content Providers"), (b) the Proprietary Information contains valuable copyrighted material and is protected by U.S. and international copyright and other intellectual property laws, (c) the Proprietary Information is licensed, rather than sold, to Customer pursuant to these Terms, and (d) Customer has no rights in the Proprietary Information, other than the rights and licenses granted to Customer herein.
- Divendo Trademarks. "Divendo" and may content not be copied, imitated or used, in whole or in part without Divendo’s prior express written. In addition, all page headers, graphics, design and user interface elements, and scripts are service marks, trademarks, and/or trade dress of Divendo and may not be copied, imitated, or used, in whole or in part without our prior written permission, which consent may be withheld in our sole discretion. All other marks or logos not owned by Divendo are the property of their respective owners.
- Reservation of Rights. Except for the rights expressly granted to Customer pursuant to these Services, Customer acknowledges that it has no right, title or interest in or to this website, the Services or Proprietary Information. All rights not expressly granted by Divendo in these Terms are hereby reserved by Divendo. There are no implied rights.
4. Term and Termination
- The Contract shall continue in force for the minimum term (if any) specified in the Contract Particulars (the "Minimum Term") and thereafter unless and until it is terminated in accordance with the provisions of this Condition 4.
- The Contract may be terminated forthwith by Divendo if:
- The Customer fails to pay any sum due to Divendo within 14 Working Days of the due date thereof.
- The Customer shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors generally or if the Customer shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Customer or if the Customer goes into administration (otherwise than for the purpose of an amalgamation or reconstruction);
- The Customer sells or disposes of in any way the whole or any substantial part of its business by one or a series of transactions.
- Divendo will have no liability to Customer or any third party because of such termination.
- Upon termination or expiration of this Agreement by either party for any reason, (a) Divendo will cease providing the Services, (b) you will not be entitled to any refunds of any usage fees or any other fees, pro rata or otherwise and (c) any outstanding balance owed to Divendo for your usage of the Services through the effective date of such termination or expiration will immediately become due and payable in full. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, warranty disclaimers and limitations of liability.
- Upon termination or expiration of this Agreement by either party for any reason, Divendo may delete any Customer archived data within 30 days after the date of termination.
5. Disputes Regarding Account or Site Ownership
- The entity or person creating a Divendo account and designated as the owner will be deemed the account owner. For security reasons, only the account owner or the point of contact designated by the account owner will be allowed to make changes, cancellations, or designate a new point of contact. Disputes sometimes arise between or among multiple persons claiming ownership of or rights in a site, store or account. Divendo is not obligated to, and will not, resolve any such disputes.
- If multiple persons are claiming ownership of or rights in a site, store or account, and, in Divendo’s sole judgment, there is uncertainty as to the ownership of or rights in such site, store or account, then Divendo will, to the extent of its knowledge and ability, notify such persons of the dispute and demand that such persons promptly, conclusively, and finally resolve the dispute in a manner which makes clear who the owner(s) and/or interest holder(s) is/are and in a manner which relieves Divendo of all liability and obligations concerning the dispute and such site, store or account. If the disputing persons fail to resolve the dispute within what Divendo, in its sole judgment, deems to be a reasonable time, then Divendo, at its sole option and without any obligation to do so, may suspend or terminate the account until such persons resolve such dispute and reach certainty regarding ownership of or rights in such website, store and/or account. The person or persons conclusively and finally determined by court order, binding arbitration or settlement agreement to be the rightful owner(s) or interest holder(s) of such website, store and/or account will be obligated to pay all amounts due and comply with the then current Divendo policy regarding transfers of accounts, if required, to transfer ownership of the site, store and/or account to the rightful owner. Failure of the rightful owner of such site, store and/or account to timely pay in full all of such amounts will be deemed a breach of these Terms and will subject the account to immediate termination.
6. Customer's Name and Trademarks
- Name and Trademarks. Customer hereby grants Divendo a non-exclusive right and license to use Customer’s name and such of Customer’s trade names, trademarks, service marks and logos ("Customer’s Marks") as are used by Customer on Customer’s hosted sites in connection with this Agreement, and images and publicly-facing information about Customer on Customer’s hosted sites including, but not limited to, screenshots of Customer’s hosted sites and associated photographs appearing on Customer’s hosted sites ("Customer Public Information and Images"): (a) on Divendo’s own websites describing and promoting Divendo’s Services, (b) in printed and online advertising, publicity, directories, newsletters and updates describing and promoting Divendo’s Services, and (c) in applications reasonably necessary and ancillary to the foregoing. Customer (i) represents and warrants to Divendo that Customer has all necessary rights to grant Divendo the foregoing rights, and (ii) agrees that neither Customer nor anyone else will be entitled to any compensation for Divendo’s exercise of the foregoing rights.
- Customer Voluntary Suggestions. Some of the features of this website or the Services found at this website may allow Customer to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, feedback or advice (" Customer Feedback"), or (b) literary, artistic or other content, including but not limited to photos and videos (" Customer Submissions") (Customer Feedback together with Customer Submissions, "Customer Voluntary Suggestions"). By providing Customer Voluntary Suggestions to Divendo via any method (e.g. site submission, email, survey responses, etc.), Customer represents and warrants to Divendo that (i) Customer has all necessary rights to distribute Customer Voluntary Suggestions via this website or via the Services found at this website, either because Customer is the author of the Customer Voluntary Suggestions and has the right to distribute the same, or because Customer has the appropriate distribution rights, licenses and/or permissions to use, in writing, from the copyright or other owner of the Customer Voluntary Suggestions, and (ii) Customer does not violate the rights of any third party by providing the Customer Voluntary Suggestions.
- License to Divendo. Divendo will have the right to use and disclose any Customer Voluntary Suggestions posted to Divendo’s websites or submitted directly to Divendo for any lawful purpose. In no event will Customer or anyone else be entitled to any compensation or acknowledgement for Divendo's use of any Customer Voluntary Suggestions. Customer's provision of Customer Voluntary Suggestions is entirely voluntary and will not create any confidentiality obligation for Divendo. By submitting Customer Voluntary Suggestions, Customer hereby grants Divendo an irrevocable, perpetual, transferable, non-exclusive, fully-paid-up, royalty-free, worldwide license (sublicensable through multiple tiers) to: (a) use, copy, distribute, reproduce, modify, create derivative works of, adapt, publish, translate, publicly perform, and publicly display Customer Voluntary Suggestions (or any modification thereto), in whole or in part, in any format, medium or application now known or later developed, and (b) use (and permit others to use) Customer Voluntary Suggestions in any manner and for any purpose (including, but not limited to, commercial purposes) that Divendo deems appropriate in its sole discretion (including, but not limited to, to incorporating Customer Voluntary Suggestions (or any modification thereto), in whole or in part, into any technology, product or service. The provisions in this Section apply specifically to Divendo's use of Customer Voluntary Suggestions posted to Divendo's websites or submitted directly to Divendo, and not to Customer’s hosted sites. Customer will be solely responsible for any and all of the Customer Voluntary Suggestions that are submitted through Customer’s account, and the consequences of, and requirements for, distributing it.
7. Payment and Expense
- The Charges shall be paid by the Customer in accordance with the contracted Payment Terms. All payments are NON-REFUNDABLE.
- Divendo shall be entitled to increase the Licence Fee and/or Website Hosting Charges not more than once in every successive period of 6 months upon giving not less than one calendar month's written notice thereof to the Customer. If the Customer does not notify Divendo that it objects to the increase within 10 Working Days of the date of such notice, the Customer shall be deemed to have accepted the increase. If the Customer does notify Divendo within that period that it objects to the increase, then Divendo shall have the right to terminate the Contract as from the date on which the increase was due to take effect.
- Billing Policies and Cycles. All billing invoices and payment notifications will be maintained directly in Customer's Account Portal. Billing related to the purchase of SSLs or Domains are billed once these products/services have been purchased by Customer.
- If at any time the Customer fails to pay the Licence Fee or the Website Hosting Charges or any further fees payable in accordance with the Payment Terms, then Divendo may by written notice to the Customer suspend the Licence and the provision of the Website Hosting Service forthwith.
- Additional Charges (if any) shall be levied by Divendo monthly in arrears.
8. Prohibited Practices
- Prohibited Offerings. Customer may not utilize the Services for unlawful, obscene, offensive or fraudulent content or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, or violating third party rights.
- Profanity. Profanity, profane or otherwise inappropriate subject matter in the site content and in the domain name are prohibited.
- Private Information and Images. Customers may not post or disclose any personal or private information about or images of children or any third party without the consent of such party (or a parent's consent in the case of a minor).
- Violations of Intellectual Property Rights. Any violation of any person's or entity's intellectual property rights, rights of privacy, rights of publicity or other personal rights is prohibited. Divendo may remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see "Reporting Claims of Copyright Infringement" below).
- Misrepresentation of Transmission Information. Forging, misrepresenting, omitting, or deleting message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of a message is prohibited.
- Viruses and Other Destructive Activities. Use of the Services for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for Customer to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment) or conduct their business over the Internet.
- Hacking. "Hacking" and related activities are prohibited. "Hacking" includes, but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in hacking.
- Anonymous Proxies. Divendo does not allow the use of anonymous proxy scripts on its servers. They can be very abusive to the server resources, affecting all users on that server. Customer will not access or copy any portion of the Services through any automated viewing, downloading or crawling systems.
- Child Pornography. The use of the Services to store, post, display, transmit, sell, advertise or otherwise make available child pornography is prohibited. Divendo is required by law to, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
- Other Illegal Activities. The use of the Services to engage in any activity that is determined by Divendo, in its sole and absolute discretion, to be illegal is prohibited. Such illegal activities include, but are not limited to, storing, posting, displaying, transmitting, selling or otherwise making available pyramid schemes, fraudulently charging credit cards or displaying credit card information of third parties without their consent, and failure to comply with applicable online privacy laws. Divendo will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.
- Other Activities. This list of prohibitions provides examples of prohibited conduct and is not intended to be a complete or exclusive list of all prohibitions. Engaging in any activity that, in Divendo’s sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, Divendo’s business, operations, reputation, goodwill, customers and/or customer relations, or the ability of Divendo’s customers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate these Terms. In addition, the failure of Customer to cooperate with Divendo in correcting or preventing violations of these Terms by, or that result from the activity of, a customer, patron, subscriber, invitee, visitor, or guest of Customer constitutes a violation of these Terms by Customer. Without limiting the rights and remedies available to it, Divendo reserves the right in its sole discretion, to suspend or terminate Customer's access to its account and the Services, with or without notice, and to take any other action that Divendo determines in its sole discretion is necessary as a result of any behaviour by Customer that is illegal, inappropriate, disruptive to this website, the Services, or to any other user of this website or the Services, or which otherwise breaches these Terms. Divendo may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required, or otherwise in Divendo’s sole discretion, Divendo will cooperate with law enforcement agencies in any investigation of alleged illegal activity conducted using this website or the Services. These prohibitions do not require Divendo to monitor, police, remove or reject any content, information, graphics, photographs or links on Customer’s hosted sites or any Customer Voluntary Suggestions or other information submitted by Customer or any other user.
- Virtual Machine Commands and Runtime Engines. Use of Divendo’s ecommerce website design platform to author webpages (or portions thereof) that are displayed through the use of virtual machine commands or a runtime engine is prohibited.
9. Backup Storage
- Divendo offers its Services to host ecommerce websites, not to store data. Using an account as an online storage space for archiving electronic files is prohibited and will result in termination of Services without prior notice. For its own operational efficiencies and purposes, Divendo from time to time backs up data on its servers but is under no obligation or duty to Customer to do so under these Terms.
IT IS SOLELY CUSTOMER'S DUTY AND RESPONSIBILITY TO SEPARATELY BACKUP CUSTOMER’S FILES AND DATA WHICH MAY RESIDE ON DIVENDO SERVERS. UNDER NO CIRCUMSTANCES WILL DIVENDO BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF CUSTOMER’S FILES AND/OR DATA ON ANY DIVENDO SERVER.
10. Copyright Infringement
- Reporting Claims of Copyright Infringement. Divendo will respond to notices of copyright infringement that comply with applicable law. If a copyright holder believes that there has been a violation of his/her copyright on a site that is hosted by Divendo, the copyright holder may request that Divendo remove or disable the material by submitting written notification to our Copyright Agent (designated below). In accordance with the Digital Millennium Copyright Act (" DMCA"), the written notice must include substantially the following:
- A signature (physical or electronic) of a person authorized to act on the copyright owner's behalf.
- Identification of the copyrighted work that is claimed to have been infringed, or, if the claim involves multiple copyrighted works, a representative list of such works.
- Identification of the material that is claimed to be infringing, with information sufficient to permit us to locate the material.
- Contact information for the person giving the notification, including name, address, telephone, and email address.
- A statement that the person giving the notification has a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the copyright owner.
Our designated Copyright Agent to receive DMCA notices is:
20-22 Wenlock Road
Please be aware that if you knowingly make a material misrepresentation that material or activity is infringing your copyright, you may be held liable for damages under the DMCA.
- Copyright Counter-Notifications. If Customer believes that it has had material removed or disabled by mistake or misidentification, Customer may file a counter-notification with Divendo by submitting written notification to our copyright agent (identified above). Pursuant to the DMCA, the Counter-Notice must contain substantially all the following:
- A signature (physical or electronic) of the person submitting the counter-notification.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
- Contact information for the person submitting the counter-notification, including name, address, telephone, and email address.
- A statement under penalty of perjury by the person submitting the counter-notification that he/she has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification.
- A statement by the person submitting the counter-notification that Customer will consent to the jurisdiction of the Federal District Court for the judicial district in which it is located (or if Customer resides outside the United States for any judicial district in which Customer's website may be found) and that Customer will accept service from the person (or an agent of that person) who submitted the DMCA notice at issue.
The DMCA allows Divendo to restore the removed content if the party filing the original DMCA Notice does not file a court action against Customer within ten business days of receiving the copy of Customer’s Counter-Notice.
Please be aware that if you knowingly make a material misrepresentation that material or activity was removed or disabled by mistake or misidentification, you may be held liable for damages under the DMCA.
- Repeat Infringers. It is Divendo’s policy in appropriate circumstances to disable and/or terminate the accounts of Customers who repeatedly infringe copyrights.
WARRANTY DISCLAIMER. CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ITS USE OF THIS WEBSITE AND THE SERVICES FOUND AT THIS WEBSITE WILL BE AT ITS OWN RISK AND THAT THIS WEBSITE AND THE SERVICES FOUND AT THIS WEBSITE ARE PROVIDED "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS". DIVENDO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. DIVENDO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT (A) THE ABILITY OF THE SERVICES OR SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT, (B) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS WEBSITE OR THE SERVICES OR SOFTWARE, (C) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS WEBSITE, AND/OR (D)) THE SERVICES FOUND AT THIS WEBSITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS WEBSITE, AND DIVENDO ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
- IN ADDITION, CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY DIVENDO, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES), WHETHER DIRECTLY OR INDIRECTLY, WILL (A) CONSTITUTE PERSONAL, LEGAL OR FINANCIAL ADVICE OR (B) CREATE A WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND WITH RESPECT TO THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE. CUSTOMER SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE, AND CUSTOMER SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO ITS SITUATION.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS, CONDITIONS AND WARRANTIES WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR CUSTOMER’S USE OF THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN SUCH EVENT, DIVENDO’S WARRANTIES, CONDITIONS AND REPRESENTATIONS WITH RESPECT TO THIS WEBSITE, THE SERVICES, AND SOFTWARE WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
- LIMITATION OF LIABILITY. DIVENDO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS ASSUME NO RESPONSIBILITY WITH RESPECT TO CUSTOMER’S OR ITS END USER'S USE OF THE SERVICES AND WILL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, LOSS OF PROFITS, AND LOST REVENUE, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT DIVENDO IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. DIVENDO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY DIVENDO FROM CUSTOMER FOR THE SERVICES DURING THE 12-MONTH PERIOD BEFORE THE CLAIM OR CAUSE OF ACTION AROSE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN SUCH EVENT, THE LIABILITY OF DIVENDO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FOR SUCH DAMAGES WITH RESPECT TO THIS WEBSITE AND THE SERVICES WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR CUSTOMER’S USE OF THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE.
- Indemnification of Divendo. Customer agrees to defend, indemnify and hold Divendo and its Content Providers and the respective directors, officers, employees and agents of each harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys' fees and court costs) arising out of or relating to Customer's breach of any of these Terms or use by Customer or any third party (authorized, permitted or enabled by Customer) of the Services, except to the extent the foregoing directly result from Divendo’s own gross negligence or wilful misconduct. Divendo reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by Customer. THIS FOREGOING INDEMNIFICATION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR CUSTOMER'S USE OF THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE.
- Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- No Assignment by Customer. Customer may not assign this Agreement without the prior written consent of Divendo, which Divendo may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written consent from Divendo will be deemed null and void. Divendo may assign this Agreement at any time. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Waiver. The failure of Divendo to exercise or enforce any right or provision of these Terms or this Agreement will not constitute a waiver of such right or provision.
- Entire Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. The section headings and titles in these Terms and this Agreement are for convenience only and have no legal or contractual effect. These Terms and this Agreement will be interpreted without application of any strict construction in favour of or against Customer or Divendo.
- Independent Contractors. No agency, partnership, joint venture or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Divendo in any respect whatsoever.
- Attorneys' Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
- Force Majeure. Divendo will have no liability to Customer or any third party for any failure by Divendo to perform its obligations under these Terms in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of Divendo, including without limitation an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder, or civil commotion or other event of force majeure.
12. Additional Service Specific Terms
In addition to the Terms above, Customer also agrees to be bound by the additional service specific terms applicable to the Services Customer purchases or uses provided by Divendo or its partners. The following Service Specific Terms are hereby incorporated by reference and are binding upon Customer.
DIVENDO MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD PARTY SOFTWARE, PRODUCTS OR SERVICES AND WILL NOT BE LIABLE FOR ANY SOFTWARE, PRODUCTS OR SERVICES CUSTOMER RECEIVES FROM THIRD PARTIES.