RFINDERY TERMS OF SERVICE AGREEMENT
This Terms of Service Agreement (this “Agreement”) is a contract between you (“you” or “User”) and rFindery Inc. (“rFindery”, “we,” or “us”). Users are either “Vendors” or Customers”. “Vendors” are companies and individuals which offer cybersecurity and related products and services, and “Customers” are companies or individuals which desire to evaluate and acquire such products and services. You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at http://rFindery.com, all affiliated websites, including mobile websites and applications, owned and operated by us, our predecessors or successors in interest, or our Affiliates (collectively, the “Site”), all services, applications and products that are accessible through the Site and all rFindery mobile applications that link to or reference this Agreement (together with the Site, the “Service”) whether provided by us or our Affiliates.
Subject to the conditions set forth herein, rFindery may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site and will provide reasonable advance notice of any amendment that includes a Substantial Change. If the Substantial Change includes an increase to Fees charged by rFindery, rFindery will provide at least 30 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in Fees or any temporary or promotional Fee change. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”).
Your continued use of the Site or the Service after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control unless the other Agreement explicitly states that it controls. Capitalized terms are defined throughout this Agreement.
YOU UNDERSTAND THAT BY USING THE SITE OR SERVICE AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE, INCLUDING THE MANDATORY BINDING ARBITRATION PROVISION IN SECTION 11.3 OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SERVICE AFTER THE EFFECTIVE DATE. IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THE TERMS OF SERVICE. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
- DIGITAL SIGNATURE
By registering for a rFindery account on the Site (an “Account”), or by clicking to accept the Terms of Service when prompted on the Site, you are deemed to have executed this Agreement and the other Terms of Service electronically, effective on the date you register your Account or click to accept the Terms of Service, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001, et seq.). Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.
- CONSENT TO USE ELECTRONIC RECORDS
In connection with the Terms of Service, you may be entitled to receive certain records from rFindery or our Affiliates, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Service, you give us permission to provide these records to you electronically instead of in paper form.
2.1 YOUR CONSENT AND YOUR RIGHT TO WITHDRAW CONSENT
By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we or our Affiliates would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via the U.S. Postal Service and other third-party mail services using the address under which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting us at http://support.rFindery.com. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Service, and you will no longer be permitted to use the Site or the Service. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
2.2 KEEPING YOUR ADDRESS AND EMAIL ADDRESS CURRENT WITH US
In order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting us at http://support.rFindery.com. In addition, so that we may communicate with you via the U.S. Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address.
2.3 HARDWARE AND SOFTWARE YOU WILL NEED TO USE THE SERVICE FOR YOUR BUSINESS
To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system or device that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer or device and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records and notices we send to you electronically.
By accepting and agreeing to this Agreement and the other Terms of Service electronically, you represent that (i) you have read and understand the above consent to receive records and notices electronically; (ii) you satisfy the minimum hardware and software requirements specified above; and (iii) your consent will remain in effect until you withdraw your consent as specified above.
- RFINDERY ACCOUNTS
3.1 ACCOUNT ELIGIBILITY
rFindery operates the Site and Service which functions as an online marketplace for cybersecurity vendors and customers. To use the Site and Service, you must register for an Account. To register for an Account, you must be, and hereby represent that you are, a legal entity or an individual 18 years or older who can form legally binding contracts. By registering for an Account, by using the Site or Service, or by clicking to accept the Terms of Service when prompted on the Site, you agree to: (a) abide by this Agreement and the other Terms of Service; (b) be financially responsible for your use of the Site; and (c) perform your obligations as specified by our Terms of Service or by any subsequent agreement you enter into, unless such obligations are prohibited by applicable law or the Terms of Service. rFindery reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Service upon discovery that any information you provided on any form is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in rFindery’s sole discretion.
You represent that you are not: (i) a citizen or resident of a geographic area in which access to or use of the Site or Service is prohibited by applicable law, decree, regulation, treaty, or administrative act; (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (iii) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Service.
3.2 ACCOUNT REGISTRATION; PROFILE
By registering for an Account, you must complete a User profile (“Profile”), which you consent to be used by rFindery as described in the Terms of Service. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide and to correct any information about you, your location or your business that is or becomes false or misleading. You agree not to register for more than one Account without express written permission from us. You agree not to ask or allow another person to create an Account on your behalf, for your use, or for your benefit.
3.3 IDENTITY VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business on rFindery, if it is a separate legal entity. You authorize rFindery, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and, if applicable, the entity you represent.
3.4 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account (you can change your password at any time). You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password. You authorize rFindery to assume that any person using the Site with your username and password either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password. You further agree not to use any username or password of another User of the Site that you are not authorized to use and not to allow others who are not authorized to do so to use your Account at any time.
You acknowledge and agree that feedback benefits the marketplace and the efficiency of the Site and you specifically authorize rFindery to post on the Site composite or compiled feedback from or about vendors or the Site or Service. You further acknowledge and agree that rFindery may but is not required to make feedback results available to other Users, including composite or compiled feedback. rFindery has no obligation to monitor or censor these opinions.
rFindery has no obligation to investigate any remarks posted by Users for accuracy or reliability but may do so. You may be held legally responsible for damages suffered by other Users or third parties or rFindery as a result of your remarks if such remarks are legally actionable or defamatory. rFindery is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, rFindery reserves the right (but is under no obligation) to remove posted feedback or information that, in rFindery’s sole judgment, violates the Terms of Service or negatively affects the Service. You acknowledge and agree that you will notify rFindery of any error or inaccurate statement in your feedback results and that if you do not do so, rFindery may rely on the accuracy of such information.
- PURPOSE OF THE SITE AND SERVICE
The purpose of the Site and Service includes but is not limited to providing an online marketplace for cybersecurity vendors and customers, using our website and/or mobile applications, where vendors can provide product and service information that will allow customers to evaluate the various products and services and to place orders for and acquire the cybersecurity products and services desired by the customer. Subject to the Terms of Service, rFindery provides the Service, including hosting and maintaining the Site and related services, to registered Users.
- PAYMENT TERMS
5.1 SERVICE FEE
5.1.1 Vendors. rFindery offers its Service to Vendors who subscribe to the Service, complete the required registration form and pay the then current subscription fee for the Service (the “Service Fee”). The Vendor registration form describes Service options and fees. By selecting a level of Service, you agree to pay rFindery the monthly or annual Service Fee indicated for that Service. Payments for the monthly or annual period you subscribe for will be charged on the day you sign up for the Service and will cover the use of that Service for such period (the “Service Period”). Service Fees are not refundable. The Service Fee can be changed at any time provided notice of such change is provided as required by these Terms of Service.
5.1.2 Customers. Use of the Service by Customers does not require the payment of a Service Fee. Sections 5.2 through 5.6 do not apply to Customers.
5.2 PAYMENT PROCESSING
Payment processing services for rFindery are provided by such financial institution as is from time to time designated by us. By registering its Account, each Vendor agrees to be bound by the services agreement of such institution, as modified from time to time. As a condition of rFindery enabling its payment processing services, as a Vendor you agree to provide rFindery accurate and complete information about you and your business, and you authorize rFindery to share with its financial institution such information as well as transaction information related to your use of the payment processing services provided by us. At its discretion, from time to time rFindery may (but shall not be required to) accept and process wire transfers, credit and debit cards and other payment methods (each a “Payment Method”). Payment options will be provided as part of the Account registration process, and any changes in payment options will be provided to each Vendor prior to such Vendor’s renewal date.
If Vendor fails to pay the Service Fee or any other amount due to rFindery or its affiliates, whether by canceling Vendor’s authorization to withdraw the Service Fee from Vendor’s bank account, or canceling Vendor’s credit or debit card, or initiating an improper chargeback, or any other means, rFindery may suspend or close Vendor’s Account and revoke Vendor’s access to the Site. Without limiting other available remedies, Vendor must pay rFindery upon demand for amounts owed under the Terms of Service, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law. To the extent permitted by applicable law, rFindery, at our discretion, may set off amounts due against other amounts received from or held by rFindery for Vendor, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with credit reporting agencies and law enforcement authorities in any resulting investigation or prosecution.
5.4 NO RETURN OF FUNDS
Vendor acknowledges and agrees that rFindery will charge Vendor’s designated Payment Method for the Service Fee for each Service Period. In consideration of the Service provided by rFindery, Vendor agrees that once rFindery charges the Vendor’s designated Payment Method as provided in this Agreement or the other Terms of Service, the charge for the Service Fee is non-refundable, except as otherwise required by applicable law. Vendor also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Vendor to resolve disputes. To the extent permitted by applicable law, Vendor therefore agrees not to ask its credit card company, bank, or other payment provider to charge back any Service Fee charged pursuant to the Terms of Service for any reason. A chargeback in breach of the foregoing obligation is a material breach of the Terms of Service. If Vendor initiates a chargeback in violation of this Agreement, Vendor agrees that rFindery may dispute or appeal the chargeback and institute collection action against Vendor and may pursue any and all other remedies allowed by law.
5.5 PAYMENT METHODS
By providing Payment Method information through the Site, Vendor represents, warrants, and covenants that: (a) Vendor is legally authorized to provide such information; (b) Vendor is legally authorized to perform payments using the Payment Method(s); and (c) such action does not violate the terms and conditions applicable to Vendor’s use of such Payment Method(s) or applicable law. When Vendor authorizes a payment using a Payment Method via the Site, Vendor represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from Vendor’s Payment Method(s), Vendor is solely responsible for paying such amounts by other means.
5.6 US DOLLARS AND FOREIGN CURRENCY CONVERSION
The Site and the Service operate in U.S. Dollars. If Vendor’s currency, charge or debit card is denominated in a currency other than U.S. Dollars and requires currency conversion to make payments in U.S. Dollars, rFindery will charge Vendor’s Payment Method in U.S. Dollars and Vendor’s Payment Method provider will convert the payment at a foreign currency conversion rate selected by Vendor’s Payment Method provider. Vendor’s Payment Method provider may also charge fees directly to the Payment Method used to fund a cross-border payment even when no currency conversion is involved. Vendor’s authorization of a payment using a foreign currency conversion rate displayed on the Site is at Vendor’s sole risk. rFindery and its Affiliates are not responsible for currency fluctuations that occur when billing or crediting a Payment Method denominated in a currency other than U.S. Dollars. rFindery is not responsible for currency fluctuations that occur when receiving or sending payments to and from the rFindery payment processing system.
- LICENSES AND THIRD-PARTY CONTENT
6.1 SITE LICENSE AND INTELLECTUAL PROPERTY RIGHTS
All content included on the Site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of rFindery or its content suppliers and protected by United States and international copyright laws. The compilation of all content on the Site is the exclusive property of rFindery and protected by the United Stayets and international copyright laws. All software used on (or provided through) the Site is the property of rFindery or its software suppliers and protected by United States and international copyright laws. rFindery and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Service. The rFindery logos and names are trademarks of rFindery and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Service may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Terms of Service confers any license under any of rFindery’s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise. Subject to and conditioned upon your compliance with the Terms of Service, rFindery grants you a limited license to access and, if you have created an Account, to use the Site for the purpose of using the Service. Without limiting the generality of the foregoing, the following are prohibited, and by establishing an Account and/or using the Site and Service you warrant, represent and covenant that you and all persons acting through you or on your behalf or with your knowledge will comply with the following provisions and restrictions:
(a) You must not access (or attempt to access) the Site or Service by any means other than the interface provided, and you must not use information from the Site or Service for any purposes other than the purposes for which it was made available.
(b) You must not use the Site or Service for offering any goods or services other than as permitted by this Agreement.
(c) You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Service in any way for any public or commercial purpose without rFindery’s prior written consent.
(d) You must not use any content of the Site or Service on any other website or in a networked computer environment for any purpose except your own viewing without rFindery’s prior written consent.
(e) You must not frame or link to the Site or Service except as permitted in writing by rFindery.
(f) You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code or underlying algorithms from any part of the Site or Service unless expressly permitted by applicable law.
(g) You must not access the Service in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Service.
(h) You must not rent, lease, or use the Service for timesharing or service bureau purposes.
(i) You must not remove or obscure any proprietary notices on the Service.
(j) You must not not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service or any content, or in any way reproduce or circumvent the navigational structure or presentation of the Service or any content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service.
(k) You must not attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any rFindery server, or to any of the services offered on or through the Service, by hacking, password “mining”, or any other illegitimate means.
(l) You must not probe, scan or test the vulnerability of the Service or any network connected to the Service, nor breach the security or authentication measures on the Service or any network connected to the Service.
(m) You must not use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any transaction being conducted on the Service, or with any other person’s use of the Service.
(n) You must not distribute pornographic content.
6.2 USER CONTENT LICENSE
(a) When you post Content on the Site or through the Service or provide rFindery with User Content, you represent and warrant that you have the right, power, and authority to post that User Content and grant the licenses specified below. You further represent and warrant that by providing such User Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your User Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such User Content and that rFindery may exercise the rights to your User Content granted under the Terms of Service without any liability or obligation for any payment.
(b) You retain all ownership rights in any User Content you post on rFindery. To the extent permitted by applicable law, you also grant to rFindery and our successors and Affiliates a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with the Site and rFindery’s (and our successors’ and Affiliates’) business, including, without limitation, for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels.
(d) The licenses to User Content granted by you in this Agreement will terminate within a commercially reasonable time after you remove or delete your User Content from the Site, except that you grant rFindery and our successors and Affiliates the irrevocable and perpetual license to retain and use, but not publicly display or distribute, server or archival copies of all User Content that you have removed or deleted to the extent permitted by applicable law.
(e) You may submit comments or ideas about the Site and Service, including without limitation about how to improve the Site or Service (collectively, “Ideas”). By submitting any Ideas, you agree that: (a) your disclosure is voluntary, gratuitous, unsolicited, and without restriction and will not place rFindery under any fiduciary or other obligation, (b) your Ideas do not contain the confidential or proprietary information of third parties, and (c) we are free to use the Ideas without any additional compensation to you and to disclose the Ideas on a non-confidential basis or otherwise to anyone. You further acknowledge and agree that, by acceptance of your submission, rFindery does not waive any rights to use similar or related ideas known or developed by rFindery or obtained from sources other than you.
6.3 UNAUTHORIZED ACCESS AND USE; SITE INTERFERENCE; MALICIOUS SOFTWARE
You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission. You will not access the audiovisual content available on the Site for any purpose or in any manner other than streaming. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site’s infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of rFindery and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of rFindery or any third party
6.4 THIRD-PARTY VERIFICATION
The Site may make available various services provided by third parties to verify a User’s credentials and provide other information. Any information or content expressed or made available by these third parties or any other Users is that of the respective author(s) or distributor(s) and not of rFindery. rFindery neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than rFindery’s authorized employees acting in their official capacities.
6.5 LINKS AND APPLICATIONS
The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and agree that rFindery is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an “as is” and “as available” basis without any warranty for any purpose.
6.6 MOBILE AND OTHER DEVICES
When using our mobile applications, please be aware that your carrier’s normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the Site.
6.7 SITE UPDATES
We may from time to time in our sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You will promptly download and install all Updates and acknowledge and agree that Service or portions thereof may not work properly should you fail to do so. You further agree that all Updates will be subject to the terms of the Terms of Service, unless otherwise provided in terms associated with such Update. rFindery reserves the right, at any time, to modify, suspend, or discontinue Service or any part thereof without notice. You agree rFindery will not be liable to you or any third party for any modification, suspension, or discontinuance of Service or any part thereof.
- YOUR RELATIONSHIP WITH RFINDERY
You acknowledge and agree that, except for the Service provided by rFindery and your payment of the Service Fee if you are a Vendor, you have no relationship with rFindery. Neither this Agreement, the Terms of Service nor any Account registration will be construed as creating or implying any relationship of agency, franchise, partnership, or joint venture between any your and rFindery, except and solely to the extent expressly stated in these Terms of Service.
- COMMUNICATIONS FROM YOU TO RFINDERY
All notices to rFindery intended to have a legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: rFindery Inc., 800 N 3rd Street #437, Minneapolis, Minnesota 55401; or (c) in writing via email to support@rFindery.com. All such notices are deemed effective upon actual receipt by rFindery. rFindery does not accept service of any legal process by email or mail; all such service should occur by hand delivery on rFindery or its registered agent for service of process.
- WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE SITE, THE SERVICE, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. RFINDERY MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SERVICE, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE OTHER TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RFINDERY DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 10 (LIMITATION OF LIABILITY) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST RFINDERY WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
- LIMITATION OF LIABILITY
rFindery is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Site, the Service or the Terms of Service, including, but not limited to:
- your use of or your inability to use the Site or Service;
- delays or disruptions in the Site or Service;
- viruses or other malicious software obtained by accessing, or linking to, the Site or Service;
- glitches, bugs, errors, or inaccuracies of any kind in the Site or Service;
- damage to your hardware device from the use of the Site or Service;
- the content, actions, or inactions of third parties’ use of the Site or Service;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL RFINDERY, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF RFINDERY, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $1,000; OR (B) ANY FEES PAID BY YOU TO RFINDERY DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
- DISPUTE RESOLUTION
11.1 DISPUTE PROCESS AND SCOPE
If a dispute arises between you and rFindery or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, rFindery, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with rFindery (including any claimed employment with rFindery or one of its Affiliates or successors), the termination of your relationship with rFindery, or the Service (each, a “Claim”) in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the Terms of Service, any payments or monies you claim are due to you from rFindery or its Affiliates or successors, trade secrets, unfair competition, false advertising, consumer protection, privacy, compensation, classification, minimum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, discrimination or harassment and claims arising under the Uniform Trade Secrets Act as enacted in any state, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with rFindery or the termination of that relationship. Only with respect to the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded from the coverage of the Arbitration Provision. You agree that any Claim must be resolved as described in the subsections below titled “Informal Dispute Resolution” and “Mandatory Binding Arbitration”.
11.2 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you agree to first notify rFindery of the Claim at 800 N 3rd Street #437, Minneapolis, Minnesota 55401 or by email to support@rFindery.com, and rFindery agrees to provide to you a notice at your email address on file (in each case, a “Notice”) and seek informal resolution of the Claim. Any Notice from you must include your name, pertinent Account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from rFindery must include pertinent account information, a brief description of the Claim, and rFindery’s contact information, so that you may evaluate the Claim and attempt to informally resolve the Claim. Both you and rFindery will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
11.3 MANDATORY BINDING ARBITRATION
Any unresolved controversy or Claim between you and rFindery arising out of or relating to this Agreement or the Terms of Service and not resolved informally, except as (i) otherwise provided in this Agreement, or (ii) any such controversies or Claims arising out of either party’s intellectual property rights for which a provisional remedy or equitable relief is sought, shall be submitted to arbitration by one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by the American Arbitration Association (“AAA”), then by one arbitrator having reasonable experience in corporate transactions of the type provided for in this Agreement and who is chosen by AAA. The arbitration shall take place in Minneapolis, Minnesota, in accordance with the AAA rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. There shall be limited discovery prior to the arbitration hearing as follows: (a) exchange of witness lists and copies of documentary evidence and documents relating to or arising out of the issues to be arbitrated, (b) depositions of all party witnesses and (c) such other depositions as may be allowed by the arbitrators upon a showing of good cause. Depositions shall be conducted in accordance with the Minnesota Rules of Civil Procedure, the arbitrator shall be required to provide in writing to the parties the basis for the award or order of such arbitrator, and a court reporter shall record all hearings, with such record constituting the official transcript of such proceedings. The prevailing party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled. You and rFindery each consent to personal jurisdiction for any equitable action sought in any court of the State of New York having subject matter jurisdiction. You agree that this dispute process is the EXCLUSIVE method of resolving all such disputes.
11.4 CHOICE OF LAW
This Agreement, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of Minnesota, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
You will indemnify, defend, and hold harmless rFindery, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Site and the Service by you or your agents, including any payment obligations incurred through use of the Service; (b) failure to comply with the Terms of Service by you or your agents; (c) failure to comply with applicable law by you or your agents; (d) negligence, willful misconduct, or fraud by you or your agents; and (e) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents.
- AGREEMENT TERM AND TERMINATION
13.1 EFFECTIVE DATE; METHOD OF TERMINATION
The Terms of Service as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Service. Unless both you and rFindery expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice of termination to support@rFindery.com. We may provide written notice of termination to your email address on file. In the event this Agreement is terminated, your right to use the Site is automatically revoked, and your Account will be closed; however, you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination to rFindery for any Service. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or rFindery from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination. Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason.
13.2 ACCOUNT SUSPENSION, REVOCATION OR CLOSURE
(a) Without limiting rFindery’s other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Service to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or rFindery or our Affiliates or may be contrary to the interests of the Site or the User community or may involve illicit activity. If your Account is suspended or closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without rFindery’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available bank account or charge or debit card or other Payment Method you have provided to pay for any amounts owed by you to the extent permitted by applicable law.
(b) If your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable or required by law, rFindery will retain this information for a period of up to five years from the date of closure. However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which rFindery will have no liability whatsoever.
13.3 CONSEQUENCES OF AGREEMENT TERMINATION
(a) Termination of this Agreement and/or closing of your Account will not relieve you of the requirement to pay Service Fees incurred before termination of this Agreement, which fees, together with any applicable taxes, you hereby authorize rFindery to charge to your financial account or credit or debit card pursuant to Section 5 (Payment Terms).
(b) Except as otherwise required by applicable law, we will notify you if we close your Account, unless we believe, in our sole judgment, that giving notice may cause damage.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions protecting Confidential Information, requiring arbitration, protecting intellectual property, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
14.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and rFindery relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though rFindery drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or rFindery because of the authorship of any provision of the Terms of Service.
14.2 SIDE AGREEMENTS
The terms and conditions of this Agreement and the other Terms of Service will govern and supersede any term or condition in any previous agreement or subsequent side agreement that purports to expand rFindery’s obligations or restrict rFindery’s rights under the Terms of Service.
User will not violate any applicable foreign, federal, state, or local laws or third-party rights on or related to the Site or Service. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties’ Intellectual Property Rights.
No modification or amendment to the Terms of Service will be binding upon rFindery unless in a written instrument signed by a duly authorized representative of rFindery. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section 14.4 (Modifications) does not apply to amendments to the Terms of Service posted by rFindery to the Site from time to time.
14.5 NO WAIVER
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
User may not assign this Agreement or the Terms of Service or any of its rights or obligations hereunder without rFindery’s prior written consent in the form of a written instrument signed by a duly authorized representative of rFindery (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). rFindery may freely assign this Agreement or the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
14.8 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party will be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day notice of termination. If, at the end of the 30 day period, the effect of the Force Majeure continues, the Agreement and the other Terms of Service will terminate.
14.9 COMMUNICATIONS DECENCY ACT
We are not liable for any defamatory Content posted on the Site by any third party. Although we may choose to edit or delete any clearly defamatory Content, we are not required to do so, and we reserve all defenses for such speech made available to us by Section 230 of the Communications Decency Act, applicable statutes, the common law, and the First Amendment to the Constitution of the United States of America. If you are considering attempting to circumvent these defenses by filing suit against us in another country for Content that a third party has posted to the Site, we recommend that you review the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act as passed by the United States Congress, which makes foreign libel judgments unenforceable in U.S. courts, unless those judgments comply with the First Amendment to the Constitution of the United States of America.
14.10 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States. rFindery makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. You may not use or access the Site if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site; or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
14.1 CONTACTING US
If you have questions or need assistance, please contact us at support@rFindery.com.
This Terms of Service Policy is effective as of February 1, 2017.