Terms of Service - Broadcaster (U.S.) – Grabyo

Terms of Service – Broadcaster (U.S.)

Last updated: October 30th, 2017

Grabyo is a service provided by Grabyo Inc., a company incorporated in the State of Delaware.

These Terms of Service govern all use of the Grabyo website www.grabyo.com (“Grabyo Website”), Grabyo’s (including its Suppliers’) technology, all Contracts, and all Services which are provisioned, provided, and/or performed by Grabyo (“Grabyo”) and/or its Suppliers, including but not limited to other technologies provided by or through Grabyo and/or its Suppliers. By having access to, receiving, and/or using the Services, You agree, without limitation or qualification, to be bound by and to comply with these Terms of Service and any other posted guidelines or rules required by Grabyo that are applicable to any other website where the Services are found.

GRABYO RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TERMS OF SERVICE AND/OR THE SERVICES AT ANY TIME WITH OR WITHOUT NOTICE INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS. BY CONTINUING TO USE THE SERVICES AFTER ANY SUCH CHANGES, YOU AGREE TO BE BOUND BY SUBSEQUENT CHANGES AND ACKNOWLEDGE THAT GRABYO SHALL HAVE NO LIABILITY TO YOU AS A RESULT OF ANY SUCH CHANGES.

YOU ACKNOWLEDGE AND AGREE THAT ANY AND ALL USES OF THE SERVICES ARE FURTHER SUBJECT TO GRABYO'S PRIVACY POLICY LOCATED AT HTTP://ABOUT.GRABYO.COM/PRIVACY-POLICY (“PRIVACY POLICY”) AND ACCEPTABLE USE POLICY LOCATED AT HTTP://ABOUT.GRABYO.COM/ACCEPTABLE-USE-POLICY (“AUP”), EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME BY GRABYO WITH OR WITHOUT NOTICE.

1. Definitions

1.1 “Account” means a Grabyo account issued to You under a Contract that contains a profile created by You or Grabyo and used by You to make selections with respect to the presentation, management, distribution and/or end user access to Content.

1.2 “Content” means any and all audio and video materials including, without limitation, text, images, logos, artwork, graphics, pictures, advertisements, sound and any intellectual property contained in any such materials uploaded or otherwise provided by, or viewed by, You and/or Your agents and/or Your users in connection with the Services.

1.3 “Contract” means a “Grabyo Services Agreement,” “Services Agreement and Order Form,” supplemental order form, and/or similar document(s) provided by Grabyo and/or its resellers which You have signed and/or an online agreement to which You have agreed by way of clicking to accept and/or a statement of work and/or other written agreement between You and Grabyo or its resellers or other authorised agents.

1.4 “Demo Account” means a temporary account provided to You by Grabyo or its Resellers that permits You as a potential customer to use the Services on a temporary trial basis for a limited time period.

1.5 “Fees” means all fees relating to the Services including, without limitation, all fees set forth in a Contract.

1.6 “Player” means Grabyo’s cross-platform video player.

1.7 “Services” means: (i) the Player, and (ii) all other products and/or services provided to You by or through Grabyo and/or its Suppliers pursuant to a Contract including (but not limited to) technical support, engineering work, and/or any other professional services.

1.8 “Suppliers” means, individually and collectively, Grabyo’s licensors, suppliers, vendors, resellers, and partners.

1.9 “Term” and “Initial Term” have the meanings set forth in Section 5 of these Terms of Service.

1.10 “You” or “Your” means the individual, corporation or other entity that (i) has entered into a Contract, (ii) has received a Demo Account through Grabyo or one of its resellers, and/or (iii) otherwise uses Grabyo’s website and/or the Services or any portion thereof. Nothing herein permits You to use the Services without first obtaining the necessary rights and consents described herein and in any Contract.

1.11 “Grabyo”, “us” and “we” are all synonymous, and references construed accordingly.

2. Grant of Licenses; Scope of License; Restrictions

2.1 Grant of Licenses.

(a) Right to Use the Services. Provided You comply at all times with all terms and conditions of Your Contract(s), these Terms of Service, and the AUP, Grabyo grants to You, during the Term specified in the Contract(s) or the limited time period specified for the Demo Account issued to You, a non-exclusive, non-transferable, revocable, limited license, without right of sublicense, to use the Services.

(b) Content. You hereby grant Grabyo a worldwide, royalty-free, non-exclusive, transferable (solely to Suppliers) license to perform such acts with respect to the Content solely as are reasonable in connection with provisioning the Services including, without limitation, the right to: (i) deliver Content in accordance with the preferences You set using Your Account and any authorised subaccounts; (ii) secure, encode, reproduce, host, cache, route, reformat, analyse and create algorithms and reports based on access to and use of the Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, and/or reproduce (in any form) the Content on or through the Services; and (iv) utilise Content to test Grabyo’s internal technologies and processes.

2.2 Scope of Use.

(a) Responsibility for Content. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content (as defined in the AUP) and does not violate any third party rights, as further described therein and elsewhere in these Terms of Service.

(b) Content. Grabyo, its Suppliers and the Services are passive conduits of the Content and Grabyo and its Suppliers have no obligation to undertake to pre-screen, edit, review, monitor or oversee Content submitted, uploaded, distributed, retrieved, or viewed in connection with use of the Services, and assumes no responsibility or liability relating thereto. You are responsible for Content provided by third parties that may contain errors or omissions, false or defamatory material, and/or material that is offensive, indecent, objectionable, and/or infringing. Under no circumstances will Grabyo or its Suppliers be liable in any way for Content, including, but not limited to, for any defamation, infringement, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed or otherwise transmitted via the Services. You acknowledge Grabyo and its Suppliers are not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and Grabyo and its Suppliers assume no responsibility for screening or monitoring for possible (i) infringement or enforcing Your rights or third party rights with respect to Content, (ii) unlawful, inappropriate or unpermitted use, (iii) libel, falsehoods, errors or omissions contained in Content, or (iv) noncompliance with FCC or other governmental laws and/or regulations. If You are an end user, You acknowledge and agree that by using the Services, You may be exposed to Content that is offensive, indecent or objectionable and that Grabyo does not guarantee that any Content will be to Your satisfaction.

(c) Third Party Materials/Products/Services. Any third party products, content, services or links displayed on or through the Services are not referrals or endorsements of any product, service or provider; any and all such offerings are displayed solely for convenience only. The Services may in some cases be permitted for use with third party components or services that may be subject to their own, separate license agreements or special pass-through terms, and You assume all risks and liabilities associated with the use of any such third party offerings. For clarity, nothing in this Section 2.2(c) diminishes Grabyo’s obligations to You under these Terms of Service with respect to Grabyo’s (or its Suppliers’) technology that is expressly stated as included within the “Services” in Your Contract (the “Grabyo IP”), but instead relates to any access and/or use of third party products and/or services that You elect to utilise in connection with the Grabyo IP (regardless of whether Grabyo provides integration or other services at Your request in connection with enabling or utilising third party products and/or services). If You utilise Grabyo in connection with the Services, Grabyo wants You to know that it is not charging You to view its content, and as such the Fees never include charges for the Grabyo content itself.

(d) The Player. The Player contains software to track and capture user activity to assist Grabyo in optimising the Services and Your use of the Services. Your use of the Player constitutes acceptance of this feature. For further information on how such software is used, please review the Privacy Policy. If You enable syndication of Your Content on third party websites (which You may be permitted to do via Your Account), You, and not Grabyo, are solely responsible for notifying each such third party website that Grabyo may track information regarding the third party users.

(e) Content Preservation and Disclosure. You expressly acknowledge and agree that Grabyo may, but is not required to, preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonable or necessary to: (i) comply with legal process; (ii) enforce a Contract or these Terms of Service; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Grabyo, its Suppliers, users and/or the public. You acknowledge and agree that the technical processing and transmission of the Services, including the Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

(f) Demonstration Accounts. At Grabyo’s discretion, You may receive a Demo Account that may include limited access to test certain features and functionality of the Services. Grabyo is permitted to suspend or terminate the Demo Account at any time with or without notice. At the end of any demonstration period as determined by Grabyo, You are responsible for paying applicable fees for use of the Services pursuant to the payment terms and prices designated in a separate agreement between You and Grabyo (or one of its resellers) or, if no such agreement has been executed, then pursuant to the Grabyo’s then-current standard pricing schedule, which may (but is not required to) be available on the Grabyo Website or Your Account interface.

3. Automatic Updates/Communication Features

The Services automatically communicate with Grabyo’s servers to check for automatic general release updates such as bug fixes, patches, enhanced functions, and/or security related patches for the particular Services purchased under the Contract(s). At no charge to You, Grabyo may require the installation of software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Account (collectively, “Updates”). All Updates shall be deemed part of the Services and subject to the same terms and conditions of these Terms of Service. Grabyo may (but is not required to) post notices from time to time on the Grabyo website explaining Updates and provide instructions associated with such Updates.

4. Fees/Taxes

In consideration of Your rights in and to the Services, You shall pay Grabyo in GBP, or the currency defined in your Contract, the Fees designated in your Contract(s). You agree to purchase the Services indicated in each applicable Contract for the Initial Term stated therein and any renewal terms. All recurring Fees (including without limitation: Platform Fees, Additional Variable Fees, and Support fees) are due and payable as per the Contract, or where this is not defined shall be payable in advance, all usage-based fees are due and payable monthly in arrears, and all non-recurring Fees are due and payable on the date of the order. Recurring Fees shall be prorated for the first billing cycle of the Term based on the Effective Date. Any unused portions of included and/or bundled use allotments that may be stated in the Contract(s) (including without limitation use allotments relating to streams, transcoding, processed content, and delivery) will expire at the end of each time increment stated in the Contract(s) and do not rollover to subsequent time increments. You are solely responsible for all applicable sales, use, import or export taxes, duties, fees, tax due at source (TDS), value-added taxes (VAT), surcharges, tariffs or other amounts attributable to the Services and exploitation of the Content under the Contract(s) and any withholdings of the same required by Grabyo will be invoiced back to You. Fees not paid when due shall be subject to a late fee equal to the lesser of one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Grabyo may, with or without notice, suspend or terminate access to the Services if You are delinquent in paying any portion of the Fees. In the event that a Contract is terminated prior to the end of the Term for any reason other than an uncured material breach by Grabyo, all committed fees for the Term shall become immediately due and owing in full. After the Initial Term of a Contract or renewal thereof (as applicable), the Fees shall be subject to Grabyo’s standard pricing changes.

4.1 In order to register for or use a paid version of Grabyo, or a version, service level or service plan to which usage and/or overage charges may apply, you may be required to provide Grabyo with billing and account information (“Billing Information”) for a credit card, payment card or other payment system, such as invoice payments, for which you are authorised to approve charges (each, a “Payment Source”) to allow Grabyo to collect payment from you for your use of Grabyo. You must provide Grabyo with true, accurate, current and complete Billing information and maintain and promptly update your Billing Information to keep it true, accurate, current and complete.

4.2 You authorise Grabyo to automatically and immediately bill your Payment Source, or provide an invoice as per the Contract, when charges for your use of the paid version of Grabyo are due, without any further action on your part or other prior notice on the part of Grabyo. You assume full responsibility for such charges, even if such charges are declined or not paid by your Payment Source.

4.3 If your Payment Source is invalid, if charges billed to your Payment Source are declined or not paid or if you fail to pay charges for a paid version of Grabyo when due, your account may be downgraded, suspended or cancelled, at Grabyo’s discretion. If your account is suspended, Grabyo may, but is not obligated to, maintain your account and/or related content and information, in order to allow you to pay the past-due charges and restore your account. If the charges are not paid, your account may be cancelled.

4.4 All fees are non-refundable and non-transferable except as expressly provided in these Terms of Service. Transactions you complete through Grabyo may include VAT or other sales tax based on the bill-to address and the applicable sales tax rate in effect at the time and location your transaction is completed. There is no pro-rated refund of any fees upon any termination or cancellation. You agree to immediately pay any amounts accrued, but remaining unpaid, as of termination (if any).

4.5 In the event that your account is referred for outside collection assistance, you agree to pay all reasonable court costs, collection costs, attorney fees and those of authorized agents.

5. Term and Termination

The term of a Demo Account shall be as determined by Grabyo in its sole discretion. The term of all other Contracts shall be the initial committed term (the “Initial Term”) and all renewals (collectively referred to herein as the “Term”). Each Contract will automatically renew for a one (1) month term unless either party terminates the applicable Contract effective as of the end of the then-current term by notifying the other party in writing or email at least thirty (30) days prior to the end of then-current term. Upon the termination of a Contract for any reason, You shall immediately discontinue all use of the Services and Grabyo is not obligated to provide you with any Services. You may suspend or terminate a Contract if Grabyo materially breaches a term or condition of the Contract and such breach has not been cured within thirty (30) days of written notice by providing Grabyo with written notice of such suspension or termination, provided however that all Fees that were incurred prior to the date of termination shall be immediately due and payable upon termination and provided further that nothing herein shall be deemed a waiver of any claims that Grabyo may have against You. Grabyo may in its sole discretion terminate or suspend the Contract and/or Your access to the Services: (a) should You fail to comply with a term or condition of Your Contract, these Terms of Service and/or the AUP; (b) based on any conduct that Grabyo believes is or may be directly or indirectly harmful to other users, to Grabyo or its suppliers (including their respective systems and/or the Services); (c) based on any conduct that Grabyo reasonably believes may be a violation of law, third party rights, and/or Grabyo’s Prohibited Activities or restrictions on Prohibited Content (each as described in the AUP), or repeated breaches thereof; and/or (d) in the event of any legal restriction imposed on You, Grabyo, and/or its suppliers with respect to provision of the Services. Grabyo’s right to suspend or terminate Services as set forth in this Section shall not absolve You of any payment or indemnification obligations described herein or diminish any other remedy available to Grabyo and/or its Suppliers. All terms and conditions set forth herein that should by their nature survive termination (including without limitation all provisions relating to payment, intellectual property, ownership, and indemnification) in order to be given full effect shall continue in full force and effect after any expiration or termination of the Contract(s).

6. Title and Ownership

You and Your suppliers and licensors own all right, title and interest in and to Content (excluding any content that might be provided to You by Grabyo and/or its Suppliers) including associated intellectual property rights under copyright, trademark and/or other applicable domestic and international laws. Grabyo and its Suppliers own all right, title and interest in and to the Services including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. In no event shall the Services (or any portion thereof) be deemed sold or assigned to You. Any and all rights not expressly granted by Grabyo are reserved to Grabyo and its Suppliers. Grabyo is not required to accept unsolicited feedback. If You provide feedback about the Services to Grabyo, Grabyo shall own all rights in and to such feedback and any derivative technologies and compilations based on or developed through or by using such feedback and You shall take all necessary actions to affect Grabyo’s rights in and to such feedback.

7. Warranties

You represent and warrant that You are solely responsible and liable for: (i) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilised in the Content; (ii) obtaining any required synchronisation and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (iii) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees); (iv) obtaining public performance licenses from public performance rights collection organisations; (v) complying with all laws, rules and applicable regulations; (vi) any Prohibited Content; and (vii) abiding by these Terms of Service.

8. Disclaimer of Warranties

GRABYO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY FOR YOUR PURPOSES OF THE SERVICES, THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. IF YOU ARE AN END USER, THEN GRABYO ALSO DISCLAIMS ALL LIABILITY FOR CONTENT YOU MAY RETRIEVE BY OR THROUGH THE SERVICES. THE SERVICES, AND ANY CONTENT PROVIDED BY GRABYO AND/OR ITS SUPPLIERS THAT IS RETRIEVED BY OR THROUGH THE SERVICES, ARE PROVIDED “AS IS” AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND GRABYO AND ITS SUPPLIERS ARE NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND THEIR REASONABLE CONTROL. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT OR OTHER MATERIAL. THIS SECTION 8 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

9. Indemnification

You shall defend, indemnify and hold harmless Grabyo and its Suppliers and their respective officers, employees, licensors, agents, and affiliates, and all successors in interest to the foregoing, from and against any and all third party claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) relating to, arising out of, or in connection with the Content and/or Your use (which includes use by Your employees, agents, customers, and/or users) of the Services, including but not limited to claims relating to, arising out of, or in connection with Prohibited Activities, Prohibited Content, and/or Your breach of any of these Terms of Service, the AUP, and/or Your Contract(s), including but not limited to any of the representations or warranties set forth in any of the foregoing.

10. Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL GRABYO OR ITS SUPPLIERS OR ANY OF THEIR SUCCESSORS IN INTEREST BE LIABLE TO YOU OR ANY USER BASED ON YOUR OR THAT USER’S USE OR MISUSE OF AND/OR RELIANCE ON THE SERVICES OR THE CONTENT YOU RETRIEVE BY OR THROUGH THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT SHALL GRABYO OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, GOODWILL, USE, DATA, OR OTHER INTANGIBLE OR OTHER PECUNIARY LOSS) ARISING OUT OF THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICES OR RETRIEVE THE CONTENT BY OR THROUGH THE SERVICES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) YOUR EXCLUSIVE REMEDY AND GRABYO’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS COMBINED RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE SERVICES, THE CONTRACT(S) AND/OR THESE TERMS OF SERVICE FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU UP TO THE GREATER OF THE FEES FOR USE OF THE SERVICES THAT YOU ACTUALLY PAID DIRECTLY TO GRABYO IN THE TWELVE MONTH PERIOD PRECEDING THE FIRST SUCH CLAIM OR ONE THOUSAND GBP (£1,000.00). SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN OR THROUGH THE SERVICES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. THIS SECTION 10 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

11. Compliance With Laws; Government Restricted Rights

The Services are of United States origin. You shall adhere to all applicable national, local and international laws and treaties in all jurisdictions in which You use the Services, including, without limitation, all end-user, end-use and destination restrictions issued by United States and other governments. The Services are protected by copyright laws and international treaty provisions. You agree that the Services, and any accompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the United States. You agree not to export or re-export the Services, directly or indirectly, to any countries that are subject to United States export restrictions.

12. Publicity and Marketing

Grabyo shall be permitted to line-list You as a customer and use Your standard logo for Grabyo’s promotional and marketing use during the Term.

13. Trademark Information; Copyrights

Grabyo, the Grabyo logo and product and service names are trademarks of Grabyo Limited. (“Grabyo Marks”). You agrees not to remove any Grabyo Marks that are contained within and/or affixed to the Services as provided to You. Except with respect to the foregoing, You agree not to display or use in any manner the Grabyo Marks without Grabyo’s prior written permission. All contents of the Grabyo website and Services are: Copyright Grabyo Limited. All rights reserved.

14. Consent to Electronic Communications

By using the Grabyo Service, You consent to receiving certain electronic communications from us as further described in the Privacy Policy. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

15. Governing Law; Dispute Resolution

You understand and agree that the Contract(s) and these Terms of Service shall be governed, construed, and enforced in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules. Any action or proceeding arising from or relating to these Terms of Service may only be brought in courts located in Delaware and each party irrevocably submits to such exclusive jurisdiction and venue. YOU AND GRABYO AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

16. Interpretation

In the event of any conflict between or among any Contract(s) executed by both You and Grabyo and these Terms of Service, the Contract shall control to the extent of such conflict and all other terms and conditions of each shall continue to remain in full force and effect.

17. General Provisions

These Terms of Service, including all URLs incorporated herein (i.e., the Acceptable Use Policy located at http://www.grabyo.com/acceptable-use-policy, and the Grabyo Privacy Policy located at http://www.grabyo.com/privacy-policy) constitute the complete and exclusive agreement between You and Grabyo with respect to its subject matter; provided, however, that if You accept or enter into a Contract or some other written agreement with Grabyo or its authorised agents (including its resellers) that expressly incorporates these Terms of Service by reference, then these Terms of Service shall be subject to such other agreement as set forth therein. If any provision of a Contract or these Terms of Service is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. Notwithstanding anything to the contrary herein, if You receive the Service through one of Grabyo’s resellers instead of directly from Grabyo, then Grabyo has no direct liability to You in connection with the Services. You and Grabyo are independent contractors, no joint venture, partnership, employment, agency or exclusive relationship exists between You and Grabyo as a result of these Terms of Service or Your use of the Services as authorised hereunder. Any written notice required hereunder may be transmitted via email. Your Contract(s) (including these Terms of Service) constitute the entire agreement between the parties, and supersedes any and all prior written or oral agreement or understanding relating to the same subject matter. The Contract(s) (including these Terms of Service) constitute the entire agreement between the parties, and supersedes any and all prior written or oral agreement or understanding relating to the same subject matter. A Contract may only be modified by written amendment signed by authorised representatives of both You and Grabyo. All waivers must be made in writing and the failure of You or Grabyo to enforce any right or provision in a Contract or in these Terms of Service shall not constitute a waiver of such right or provision. Any waiver on one occasion shall not imply or constitute a waiver on any other occasion. Grabyo shall not be responsible for any failure to perform, or delay in performing any of its obligations under a Contract or these Terms of Service to the extent that such a failure or delay results from force majeure causes beyond its control, such as acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like. You may not transfer or assign these Terms of Service or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Grabyo and any such assignment shall be null and void from the beginning. These Terms of Service shall inure to the benefit of and be binding upon Grabyo’s or Your respective permitted successors and assigns.

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