Terms of Service
Fiverfly Inc. Terms of Service
The following terms and conditions of service (the “Terms of Service”) govern Your use of fiverfly.com (the “Site”) and any services made available to You by Fiverfly Inc. (“Fiverfly”, “We”, “Us” and “Our”) on or through the Site (the “Services”). For purposes of the Terms of Service, “You” means the person using the Site or the Services or, if You are using the Site or Services on behalf of Your company (or another entity), then “You” means Your company (or such other entity) and its officers, members, agents, successors and assigns.
PLEASE READ THE TERMS OF SERVICE CAREFULLY BEFORE USING THE SITE OR THE SERVICES. YOUR USE OF THE SITE OR THE SERVICES CONFIRMS YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. IF YOU DO NOT UNCONDITIONALLY ACCEPT THESE TERMS OF SERVICE, DO NOT USE THE SITE OR THE SERVICES. IF YOU ORDER ANY SERVICE PROVIDED BY FIVERFLY, THEN ACCEPTANCE BY FIVERFLY IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO THE TERMS OF SERVICE.
Fiverfly is always looking for ways to improve the Site and the Services and, as a result, may amend the Terms of Service at any time by posting an amended Terms of Service on the Site. Any amended Terms of Service shall automatically be effective on the date that it is initially posted on the Site. By using the Site or the Services, You agree to be bound by the current form of the Terms of Service. It is Your responsibility to return to the Terms of Service from time to time to review the most current Terms of Service.
Fiverfly does not and will not assume any obligation to notify You of changes to the Terms of Service. The current Terms of Service will supersede any prior communications or agreement with respect to the Site or the Services, unless such agreement expressly states that it is not superseded by the Terms of Service.
1. Services and Accounts
Users of the Site, who simply browse the Site (“Guests”), may be able to view information about our Services, request information, or other business transactions (collectively, “Guest Services”).
Other users of the Site, who register an Account (as defined below) with Us (“Members”), may be able to engage in these same activities, as well as other Services, including accessing and using our Basic, Professional, Enterprise or Custom marketing plans, requesting technical support for those plans and participating in blogs and forums that we may provide for Members (the “Member Services”).
Guests and Members may be collectively referred to herein as “Users.”
To become a Member and receive Member Services You must create an account on the Site (an “Account”) by submitting certain requested information, which may include Your individual and/or company name, date of birth, email address, physical address, and credit card and other payment information.
The following additional terms and conditions apply to the creation, maintenance and use of Accounts:
- You must be 13 years or older to use the Member Services. If You are less than 18 years of age, You cannot use the Member Services without the consent of Your parent or guardian, who agrees, on Your behalf, that You will comply with the Terms of Service.
- You must accept and allow any permissions required by Facebook to use the Member Services.
- Your Account may only be used by You or Your employees or agents authorized to act on Your behalf.
- Accounts registered by “bots” or automated methods are not permitted.
- You are responsible for maintaining the security of Your Facebook account and password. Fiverfly cannot and will not be liable for any loss or damage from Your failure to comply with this security obligation.
- You are responsible for all Content posted and activity that occurs under Your Account to any portions of the Site or to Your Facebook account (even when Content is posted by others who have accounts under Your Account or is posted by Fiverfly itself).
- You agree to provide complete and accurate information to create Your Account and to keep Your Account information up-to-date.
- You agree not to access anyone else’s Account without that person’s permission.
Users, who create or administer an Account on the Site for another person or entity, agree to abide by all of the terms and conditions provided above and represent that they are properly authorized to represent the person or entity for which the User created or administered an Account.
Fiverfly reserves the right, for any reason, in its sole discretion, to terminate, change (including, without limitation, modifying, adding or deleting), upgrade, suspend or discontinue any aspect of the Site or the Services, including, but not limited to, the Member Services, prices, content, features, hours of availability, Terms of Service, or methods used for access. We may also impose limits on certain features of the Site or Services, or restrict Your access to part or all of the Site or Services without notice to You or penalty to Us.
1. Payment Terms for Member Services
Subject to these Terms of Service, Fiverfly will provide the Member Services to Members in accordance with its then-current pricing and other policies and procedures, as set forth on the Site or otherwise provided to Members from time to time. For Member Services offered on a payment or subscription basis, the following terms apply unless We notify You otherwise in any payment terms on the Site or otherwise in writing:
- You must pay with one of the following: (a) a valid credit card acceptable to Us; (b) a valid debit card acceptable to Us; or (c) by another payment option We provide to You in writing.
- If You do not notify Us of updates to Your payment method (e.g., credit or debit card expiration date or change in card number), to avoid interruption of the Member Services, we may participate in programs supported by Your card provider (e.g., updater services, recurring billing programs, etc.) to try to update Your payment information, and You hereby authorize Us to continue billing Your Account with the updated information that We obtain.
- If You initially sign up for a Fiverfly monthly plan account, and You don’t cancel that account within 30 days of signing up as per Our Terms of Service, You will be recurringly billed monthly on the date of sign up and thereafter each 30 days from the date Your paid account was initially created. If You cancel as per Our Terms of Service prior to the processing of Your first renewal invoice on the 30th day, You will not be charged further and are eligible for a full refund.
- The Member Services are billed in advance on a monthly basis depending on Your plan, and the amount billed is non-refundable except for within 30 days from the date of Your original sign up as per Our Terms of Service. There will be no refunds for partial months of service, or for days unused with an open account.
- All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties.
- Additional ordering, payment, cancellation or renewal terms may be provided to You on the Site or in communications or notices from Us, and the Terms of Services incorporate such terms by reference.
1. Cancellation and Termination
Our policy with respect to cancelling or terminating Member Services is set forth in the Site’s Cancellation Policy which is incorporated herein by reference for all purposes. You acknowledge and agree that You are solely responsible for properly cancelling Your account and agree to be bound by the Cancellation Policy, subject to change in accordance with its terms.
1. User Information and Privacy
Although We will take reasonable security precautions regarding User Information and other information stored on the Site, due to the open nature of the Internet, We cannot guarantee that any information stored on our servers, or transmitted to or from a User, will be free from unauthorized access, and We disclaim any and all liability for any theft or loss of, unauthorized access or damage to, or interception of any User Information or other information, data or communications. WITHOUT LIMITING THE FOREGOING, FIVERFLY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ITS ABILITY TO GUARD AGAINST THE LOSS OF USER INFORMATION. By using the Site, You acknowledge that You understand and agree to assume these obligations and risks.
1. Proprietary Rights
The Site, all the content (including, for example, audio, photographs, illustrations, graphics, video and software), code, data, works of authorship and materials thereon, the look and feel, design and organization of the Site, and the compilation of the material on the Site (collectively, the “Content”) are protected by U.S. and international copyright, trademark and other laws. Fiverfly and its licensors own, solely and exclusively, all rights, title and interest in and to the Site, the Content, including, but not limited to, all intellectual property and proprietary rights therein. Your use of the Site and/or the Content does not grant to You any ownership of any Content You may access on the Site.
Any trademarks, logos, service marks and trade names (collectively, the “Trademarks”) displayed on the Site or in connection with the Content made available through the Site are registered and unregistered Trademarks of Fiverfly and its licensors and may not be used except with written permission of the respective Trademark owner. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of Fiverfly or the third party that may own the applicable Trademark. Your misuse of the Trademarks displayed on the Site or on or through any of the Services is strictly prohibited.
Notwithstanding anything in the Terms of Service to the contrary, in the event that You submit to Fiverfly any ideas, creative suggestions, photographs, information, advertisements or proposals, including ideas for new or improved products, services, features, technologies or promotions, You expressly agree that such submissions will automatically be treated as non-confidential and non-proprietary and will become the sole property of Fiverfly without any compensation or credit to You whatsoever. Fiverfly and its affiliates shall have no obligations with respect to such submissions and may use the ideas contained in such submissions for any purpose in any medium in perpetuity, including, but not limited to, developing, manufacturing and marketing products and services using such ideas.
1. Fiverfly’s Rights
1. Prohibited Uses
You may use the Site and the Services only for lawful purposes. You may not transmit, post, store, distribute, display or present any information, software, data, file or material in violation of any applicable law or regulation. You may not use the Site or the Services to facilitate, or otherwise assist others in, the violation of any law or regulation.
You are solely responsible for ensuring that materials transmitted, posted, stored, distributed, displayed or presented using the Site or the Services comply with the Terms of Service and all applicable laws and regulations. Fiverfly does not have any obligation to review, edit, censor or take responsibility for any information that You, or other Users, may create, transmit, post, store, distribute, display or present using the Site or the Services.
You may not use the Site or the Services to: (1) post content or information that is obscene, hateful, threatening, defamatory, includes child pornography, or creates a risk to anyone’s privacy or safety; (2) promote, do or further any unlawful, misleading, discriminatory or malicious activity; (3) solicit personal information from anyone under 18 years of age; (4) transmit unsolicited commercial messages (Spam), junk mail, pyramid schemes, chain letters or similar materials or information; (5) upload or transmit viruses, worms or other malicious code; (6) violate or infringe anyone’s intellectual property rights, including copyrights, trademarks, patents and trade secrets (for instance, You may not use the Site or the Services to provide pirated or counterfeit works, information to circumvent copyright protection devices or links to such works or information or impermissibly use someone else’s copyrighted work or trademarks); (7) violate or infringe anyone’s privacy or publicity rights, such as impersonating another person or entity or posting images of someone without their permission; (8) forge or otherwise manipulate headers, tags or identifiers in order to disguise the origin of any message or transmittal that You send or receive on or through the Site or the Services; (9) falsely express or imply that Fiverfly sponsors, endorses or is otherwise affiliated with You or Your content; (10) violate any law, statute, ordinance or regulation including export, intellectual property and privacy laws; (11) interfere with, circumvent, disable or attempt to interfere with, circumvent or disable the Site or the Services, the proper working of the Site or the Services, security features of the Site or the Services, or the equipment connected to the Site or the Services; (12) impose an unreasonable or disproportionately large load on the infrastructure of the Site or Fiverfly’s systems or networks; (13) restrict or inhibit any other person from using the Site or the Services (including without limitation by hacking or defacing any portion of the Site); (14) create a database by downloading and storing the Content or any part thereof; or (15) violate the Terms of Service or encourage or assist anyone else to violate the Terms of Service.
In addition to any remedies that Fiverfly may have at law or in equity, if Fiverfly reasonably determines that You have violated or are likely to violate the foregoing prohibitions, Fiverfly may take any action it reasonably deems necessary to cure or prevent the violation, including, without limitation, the immediate removal of materials that violate the foregoing prohibitions from the Site. Fiverfly may cooperate with any law enforcement authorities or court order or subpoena or third party requesting or directing Fiverfly to disclose the identity of anyone posting such materials.
1. Violations of Terms of Service and Termination
Fiverfly may suspend and terminate Your use of the Site or Services without notice to You for breach of the Terms of Service. Fiverfly may also report Your activities to federal and/or state law enforcement agencies.
Without limiting its other remedies, Fiverfly may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate the Terms of Service and Your access to the Site or the Services and Your Accounts if You fail to comply with any term or condition of the Terms of Service. Fiverfly may take such actions without providing You prior notice and at its sole discretion. Upon the occurrence of such a violation, You agree to terminate access to the Site and Services. Upon termination, those provisions of the Terms of Service that expressly or by their nature survive will continue in full force and effect.
1. Third Party Products and Links to and from the Site
The Site and Services may contain information and content provided by third parties not related to Fiverfly. Such third party information and content do not constitute or imply an endorsement, sponsorship, or recommendation by Fiverfly of the third party or such information or content. You acknowledge and agree that Fiverfly is not responsible for the availability of any such information or content and that Fiverfly does not endorse or warrant, and is not responsible for, any such information or the content.
You may link to the Site so long as You (a) link to the full version of an HTML formatted page of the Site; (b) do not link directly to any image hosted on the Site, such as using an “in-line” linking method to cause the image hosted by us to be displayed on another website; and (c) do not link from any other website to the Site in any manner such that the Site, or any page of the Site, is “framed,” surrounded or obfuscated by any third party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Site be discontinued, and to revoke Your right to link to the Site from any other website at any time.
To the maximum extent permitted by law, You agree to indemnify, defend and hold Fiverfly and its affiliates, members, officers, directors, employees, agents, and licensors harmless from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees), arising out of or related in any way to (1) Your use of the Site and Services, (2) Your submission, posting, transmittal, display, storage, distribution, removal or any other use of any User Information, Content and/or any other materials or content, (3) Your violation of the Terms of Service, (4) Your violation of any law or regulation, or violation of any proprietary or privacy right, (5) Your violation of any third party intellectual property right, including, without limitation, copyright, patent, trademark or trade secret; or (6) any claim that Your User Information or submission of any other information or content by You caused damage to a third party. This indemnification obligation will survive any termination of the Terms of Service and Your use of the Site and Services. Fiverfly reserves the right, but not the obligation, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with Fiverfly’s defense of such claim.
1. Disclaimer of Warranties
YOU AGREE TO ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE, THE SERVICES AND THE CONTENT. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER FIVERFLY NOR ITS OFFICERS, MEMBERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, INFORMATION PROVIDERS, LICENSORS OR LICENSEES (“RELATED PARTIES”) MAKE ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE SITE, THE SERVICES OR THE CONTENT, AND HEREBY SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER FIVERFLY NOR ANY RELATED PARTIES ENDORSE OR MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF THE SITE, THE SERVICES OR THE CONTENT OR THAT THE SITE, THE SERVICES OR THE CONTENT IS NON-DEFAMATORY, NON-INFRINGING OR OTHERWISE LAWFUL. NEITHER FIVERFLY NOR ANY RELATED PARTIES WARRANT THAT THE FUNCTIONS PERFORMED BY THE SITE, THE SERVICES OR THE CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS IN THE SITE, THE SERVICES OR THE CONTENT WILL BE CORRECTED. NEITHER FIVERFLY NOR ANY RELATED PARTIES GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING WILL BE FREE FROM INFECTION BY SOFTWARE VIRUSES OR OTHER HARMFUL COMPUTER CODE, FILES OR PROGRAMS. IN ADDITION, INFORMATION PROVIDED ON OR THROUGH THE SITE, SUCH AS PRICE QUOTES MAY BE TIME SENSITIVE, MAY BE OUTDATED, MAY BE SUBJECT TO CERTAIN REQUIREMENTS OR MAY BE INACCURATE FOR ADDITIONAL REASONS; ACCORDINGLY, FIVERFLY DISCLAIMS THE ACCURACY AND COMPLETENESS OF ALL CONTENT ON THE SITE. THE SITE, THE SERVICES AND THE CONTENT ARE PROVIDED ON AN “AS IS,” “WHERE IS,” “WHERE AVAILABLE” AND “AS AVAILABLE” BASIS. YOU ACKNOWLEDGE THAT ANY RELIANCE ON OR USE OF THE SITE, THE SERVICES OR THE CONTENT IS AT YOUR SOLE RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FIVERFLY HAS NO OBLIGATION TO INDEMNIFY, DEFEND OR HOLD YOU HARMLESS FROM OR AGAINST ANY CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimer may not apply to You.
1. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER FIVERFLY NOR ANY RELATED PARTY WILL BE LIABLE TO ANY PERSON OR ENTITY FOR ANY CLAIM RELATING TO THE SUBJECT MATTER OF THE TERMS OF SERVICE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR (I) ANY AMOUNTS IN EXCESS OF THE AGGREGATE AMOUNT OF FEES PAID BY YOU TO FIVERFLY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO SUCH CLAIM ARISING, (II) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE LOSS OR DAMAGE, (II) LOST PROFITS, SAVINGS OR REVENUE, (III) BUSINESS INTERRUPTION, (IV) LOSS OF USE, (V) PERSONAL INJURY, (VI) FINES, FEED OR PENALTIES, (VI) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, (VII) LOSS OR CORRUPTION OF DATA OR CONTENT, (VIII ) INTERRUPTION OF USE, OR (IX) ANY OTHER LOSSES OR DAMAGES WHETHER OR NOT FIVERFLY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY AGREE THAT FIVERFLY WILL NOT BE LIABLE FOR ANY USERS’ CONTENT, USER FILES OR DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT YOU ASSUME THE FULL RISK OF HARM OR DAMAGE FROM THE FOREGOING.
Some jurisdictions do not allow the limitation of liability for certain damages so the above limitation of liability may not apply to You. If applicable law limits the application of the provisions of this Section, Fiverfly’s liability will be limited to the maximum extent permitted by applicable law.
1. Your Representations and Warranties
By using the Site, the Services or the Content You represent and warrant that (1) if You have an Account, You have truly, accurately and completely identified Yourself through Your Account and will maintain the accuracy and completeness of such identification; (2) You are a corporation or other business entity authorized to do business pursuant to applicable law, or an individual 13 years of age or older; (3) if You are an individual 17 years of age or Younger, Your parent or guardian consents to Your use of the Site and Service and agrees, on Your behalf, that You will comply with the Terms of Service; (4) You have the full right and authority to enter into, execute and perform Your obligations under the Terms of Service and that no pending or threatened claim or litigation known to You would have a material adverse impact on Your ability to perform as required by these Terms of Service; (5) Your activities on the Site do not and will not violate the Terms of Service or the rights of any third party, including infringing or misappropriating any third parties’ intellectual property and publicity rights; (6) You understand and agree that the Terms of Service is a legally binding agreement and the equivalent of a signed, written contract; (7) You will use the Site and the Services in a manner consistent with all laws and regulations and in accordance with the terms and conditions of the Terms of Service; (8) You are authorized to sign for and bind the person or entity using the Site or the Services; and (9) You will not impersonate any person or entity, misrepresent any affiliation with another person, entity, or association, use false headers, or otherwise conceal Your identity from Fiverfly or in any material that You post or submit on the Site for any purpose.
You acknowledge and agree that damages are an inadequate remedy in the event of an actual, intended or threatened breach of the Terms of Service and that any such breach by You will cause Us irreparable injury and damage. Accordingly, You agree that We shall be entitled to preliminary and permanent injunctive relief in the event of an actual, intended or threatened breach by You, without any requirement to post a bond or prove any actual damages to You (and without waiving any additional rights or remedies, including monetary damages, otherwise available to Us at law, in equity or by statute).
1. Governing Law; Exclusive Jurisdiction
The Terms of Service and any disputes relating to the Site, the Services or the Terms of Service shall be governed by and construed in accordance with the laws of the State of California. The Uniform Computer Information Transactions Act is hereby excluded and shall not apply to the Terms of Service. Any disputes hereunder shall be within the exclusive jurisdiction of the state and/or federal courts located within San Diego County, California, and the parties hereby consent to such exclusive jurisdiction and waive objections to venue therein and jurisdiction thereof. In any action to enforce the Terms of Service, the prevailing party will be entitled to recover its costs and attorney’s fees. Any cause of action You may have with respect to Your use of the Site or the Services must be commenced within one (1) year after the claim or cause of action arises.
If any portion of the Terms of Service is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of the Terms of Service will remain in full force and effect and, upon our request, the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from the Terms of Service and the rest of the Terms of Service shall remain in full force and effect.
The Terms of Service together with all policies and agreements referenced herein constitutes the entire agreement between Fiverfly and You with respect to the Site, the Services and the Content, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between You and Fiverfly with respect to the Site, the Services and the Content, unless an agreement specifically provides that it is not superseded by the Terms of Service. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. You may not assign the Terms of Service or any part of the Terms of Service without the express written consent of Fiverfly. You agree that Fiverfly may assign the Terms of Service or any part of the Terms of Service at any time and for any reason without notice or Your consent. Fiverfly may also delegate, subcontract or engage any third party to perform any part of the Services or any of Fiverfly’s obligations under these Terms of Service at any time and for any reason without notice or Your consent. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way. Neither party will be deemed to have waived any of its rights under the Terms of Service by lapse of time or by an statement or representation other than (a) by an authorized representative and (b) in an explicit written waiver. No waiver of a breach of the Terms of Service constitute a waiver of any prior or subsequent breach of the Terms of Service.
1. Notice for California Users
This notice is for California users of the Site: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (914) 445-1254 or (800) 952-5210.