IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION 16.
This Agreement constitutes a legal agreement between you (“you” or “User”) and Silbo, Inc. (together with its subsidiaries and affiliates, if any, referred to herein as “Silbo”, “we”, “our” or “us”). This Agreement governs your use of our services and platform that facilitates communications between Users offered through our website located at www.gosilbo.com, as it may be modified, relocated and/or redirected from time to time (the “Site”), and the mobile applications offered by us (each, an “App” and collectively, the “Apps”). Our services, platform, Site and Apps are collectively referred to as the “Silbo Platform”.
By accessing, using or registering with the Silbo Platform or any portions thereof, you hereby expressly acknowledge and agree to be bound by the terms and conditions of this Agreement, and any future amendments and additions to this Agreement as we may publish from time to time. Please read this Agreement carefully. If you do not agree to accept and be bound by this Agreement, you must immediately stop using the Silbo Platform. Silbo’s acceptance is expressly conditioned upon your assent to this Agreement in its entirety. If this Agreement is considered to be an offer by us, acceptance is expressly limited to this Agreement.
By using the Silbo Platform, you represent and warrant that: (i) you are at least 18 years old or you are at least of the legally required age in the jurisdiction in which you reside; (ii) you are otherwise capable of entering into binding contracts; and (iii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement.
To the extent permitted and except where prohibited by applicable law, this Agreement includes:
- Your agreement that either party may compel binding arbitration for most types of disputes, and your agreement to submit to an informal dispute resolution process for at least 30 days prior to the initiation of any claim (Section 16).
- Your agreement that no claims can be adjudicated on a class basis (Section 16).
- Your agreement that the Silbo Platform is provided “as is” and without warranty (Section 14).
- Your agreement that the Silbo Platform is solely a communications platform providing a method for Official Services to be booked, that all Official Services are performed by third parties, and that Silbo has no liability for any Official Services or any acts or omissions of third parties (Sections 1 and 14).
- Your acknowledgment of and agreement to Silbo’s cancellation policies and cancellation fees, if any (Section 4).
- Your agreement to release Silbo from liability based on claims relating to Services and otherwise (Section 14) and your agreement to the limitation of time within which a claim can be brought (Section 19).
- Your agreement to indemnify Silbo from claims due to your use, misuse or inability to use the Silbo Platform and/or Official Services, your violation of this Agreement, applicable laws or third party rights, and/or content or information submitted from your account to the Silbo Platform (Section 15).
- Your consent to any modifications or amendments to this Agreement (Section 20).
1. The Silbo Platform is Solely a Venue for Communications; Background Checks.
a. The Silbo Platform is Solely a Venue for Communications. The Silbo Platform is a communications platform for enabling the connection and exchange of information between individuals seeking to obtain services (“Requesters”) and/or individuals seeking to provide refereeing and/or officiating services (“Officials”). Requesters and Officials together are referred to as “Users”. The refereeing and/or officiating services requested by the Requesters, which are to be completed by the Officials, are hereinafter referred to as “Official Services”. Silbo does not itself provide Official Services. The provision of all Official Services is up to the Officials, which may be scheduled through use of the Silbo Platform. SILBO, THROUGH THE SILBO PLATFORM, OFFERS INFORMATION AND A METHOD TO OBTAIN SUCH OFFICIAL SERVICES, BUT DOES NOT AND DOES NOT INTEND TO (I) PROVIDE OFFICIAL SERVICES ITSELF, OR (II) PROCESS PAYMENT FOR SUCH SERVICES OR ACT IN ANY WAY AS A RETAILER, MANUFACTURER, OR SPORTS OFFICIAL. SILBO HAS NO RESPONSIBILITY OR LIABILITY FOR ANY OFFICIAL SERVICES PROVIDED TO THE REQUESTER BY OFFICIALS, INCLUDING, BUT NOT LIMITED TO, A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH ANY LAW, REGULATION OR CODE.
b. Background Checks. Silbo checks the backgrounds of Officials via third party background check services. However, each Requester should exercise caution and common sense to protect its personal safety and property, just as you would when interacting with any person whom you do not know. BY USING THE SILBO PLATFORM, THE REQUESTER AGREES TO HOLD SILBO FREE FROM THE RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF THE OFFICIAL SERVICES. SILBO IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER INCLUDING OFFICIALS, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY OFFICIAL SERVICES.
c. Training. In the event Silbo offers or requires training related to the provision of Official Services (“Official Training”), this Agreement shall apply to such Official Training as if it was a scheduled assignment.
2. Personal Information; User Accounts.
b. Account, Password and Security. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any username, password and account provided by you or us for accessing the Silbo Platform. You are solely and fully responsible for all activities that occur under your password or account, except that Silbo may, in certain circumstances, access your account to make changes that you request, such as rescheduling an Official reservation and/or a game date or time. Silbo has no control over the use of any User’s account by the User or third parties and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account, or you suspect any other breach of security, you must contact us immediately at www.gosilbo.com/help. Nothing in this Section 2 shall affect Silbo’s rights to limit or terminate the use of the Silbo Platform, as provided below in Section 4.b.
c. Proof of Identity. You will provide us with such proof of identity as we may reasonably request from time to time.
d. Text Messages and Phone Calls. By providing your phone number and using the Silbo Platform, you agree that we may, to the extent permitted by applicable law, use your mobile phone number for calls and, if such phone number is a mobile number, for text (SMS) messages, in order to assist with facilitating the requested Official Services. Standard call or message charges or other charges from your phone carrier may apply to calls or text (SMS) messages we send you. You may opt-out of receiving text (SMS) messages from us by sending an email to email@example.com with the words “STOP TEXT” in the subject line. You acknowledge that opting out of text (SMS) messages may impact your ability to use the Silbo Platform.
You agree to Silbo’s use of a service provider to mask your telephone number when you call or exchange text (SMS) messages with an Official or Requestor using a telephone number provided by Silbo. During this process, Silbo and its service provider will receive in real time and store call data, including the date and time of the call or text (SMS) message, the parties’ phone numbers, and the content of the text (SMS) messages. You agree to the masking process described above and to Silbo’s use and disclosure of this call data for its legitimate business purposes.
e. Emails. Silbo may send you confirmation and other transactional emails regarding the Official Services. Silbo may also send you emails about services that we think might interest you (“Promotional Emails”). You can unsubscribe from Promotional Emails at any time by clicking unsubscribe in our email communications or contacting us.
a. Payments. The Silbo Platform supplies a medium through which Requesters can make payments to Officials, schedule Official Services, and make payments for Official Services (“Payments”). After an Official performs Official Services ordered by the Requester, Requesters are obligated to pay for the Official Services they order through the Silbo Platform. We will charge the Requester’s bank account via Automated Clearing House and/or credit card according to the amount the Requester has agreed to on the Silbo Platform with respect to all Official Services the Requester has ordered, and for all purchases and payments for reimbursement costs, fees or expenses associated with an Official Service, and the Requester hereby authorizes us to charge the bank account and/or credit card on file in the Requester’s Silbo Platform account for such amounts.
Silbo does not process payments for Users on the Silbo Platform. Payment processing services for Users on the Silbo Platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service available at Stripe (collectively, the “Stripe Services Agreement”). By agreeing to these Terms of Service or continuing to operate as a User on the Silbo Platform, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of the Silbo Platform enabling payment processing services through Stripe, you agree to provide the Silbo Platform accurate and complete information about you and your business, and you authorize the Silbo Platform to share it and transaction information related to your use of the payment processing services provided by Stripe.
By accepting this Agreement, you are giving Silbo (or Stripe on Silbo’s behalf) permission to charge your on-file bank account, credit card, debit card, or other approved methods of payment for fees that you owe Silbo. Depending on the transaction you selected or services requested, Silbo may charge you on a one-time or recurring basis. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Official Services must be accurate, complete, and current. You agree to pay all charges incurred by users of your bank account, credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with Silbo at the prices in effect when such charges are incurred.
We retain the right, in our sole discretion, to (i) place a hold on the Requester’s bank account and/or credit card for an ordered or completed Official Service transaction and (ii) correct any processing errors by debiting or crediting the payment method used for any erroneous payment(s).
All Payments by Requesters must be made through the Silbo Platform. While we will use commercially reasonable efforts to ensure the security of all bank account and/or credit card and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. Requesters will be liable for all transaction taxes on the Official Service(s) provided (other than taxes based on Silbo’s income). Any payments made to Officials by Requesters outside of the Silbo Platform must be returned to the Requester in full by the Official; failure to do so may lead to possible suspension or termination of this Agreement and/or the Official’s right to use the Silbo Platform.
b. Pay Rate. The pay rate per hour or pay rate per event for an Official Service depends on both proprietary and publicly available factors, such as location and how frequently an Official Service is ordered, and payment terms may change. Therefore, the same Official Service may cost more in a different location or if the Official Service is ordered less frequently. However, you will be notified prior to any such payment increase with sufficient notice to enable you to cancel the Official Service as set forth herein.
c. No Refunds. No refunds or credits will be provided once the Requester’s bank account and/or credit card has been charged, except that at our sole discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific promotions, or to correct any errors we have made.
d. Event and Official Availability. The list of potential events available for any Official to sign up to provide Official Services may vary based on Silbo’s proprietary selection system. Silbo cannot and does not guarantee that all jobs requested to be filled by a Requester will be filled.
4. Term and Termination; Cancellation of Official Services; Survival.
a. Term. This Agreement shall continue in full force and effect until such time as it is terminated by you or by us.
b. Termination by Silbo. We may terminate this Agreement or terminate or suspend your right to use the Silbo Platform at any time for any or no reason (including, without limitation, in the event that we believe that you have breached this Agreement or any policy posted on the Silbo Platform, or if we otherwise find that you have engaged in inappropriate and/or offensive behavior (collectively, “Prohibited Conduct”) by providing you with written or email notice of such termination to the physical or email address you have provided us, and termination will be effective immediately upon such notice. Except in the event that we terminate or suspend your right to use the Silbo Platform due to any Prohibited Conduct, we will refund in full any payments for Silbo services or Official Services that have not been performed or completed. If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. When terminating your account, Silbo may delete the account and all the information in it. You have no ownership rights to your account.
c. Termination by You. You may terminate this Agreement by completely and permanently ceasing to use the Silbo Platform (provided that there are no outstanding Official Services ordered under your password or account) and by closing any account you have opened on the Silbo Platform. If you attempt to terminate this Agreement while there are still outstanding Official Services ordered under your password or account, this Agreement shall not terminate until such Official Services have been performed or otherwise canceled as permitted by Silbo.
d. Policy for Official Service Cancellation by Official. If an Official cancels a scheduled assignment prior to check-in, the Silbo Platform generally notifies the Requester and makes the Requester’s Official Service request available for another Official to select. However, Silbo cannot guarantee that a canceled Official Service appointment will be selected by another Official and rescheduled or that the Official Service request will be completed. If an Official Service appointment is canceled by an Official, the Requester will not be charged for that Official Service appointment. Officials who cancel a scheduled Official Service appointment may incur fees as provided in the Service Agreement.
e. Discretionary Cancellations. If, after check-in, an Official cancels an assignment at the direction of Requester or as a result of forfeiture, weather, harassment, unsafe conditions, or unreasonable delay, the Requester shall still pay the Official as if the assignment was completed.
f. Survival. All provisions that should by their nature survive the expiration or termination of this Agreement, including without limitation, Sections 8, 9 and 12-22, shall so survive.
5. Links to and Plug-Ins from Other Web Sites or Media.
6. Submission Areas.
The Silbo Platform may contain, from time to time, blogs, message boards, applications, opportunities to provide reviews, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities that allow Users to communicate with other Users and with Silbo (collectively, “Submission Areas”). Some areas in the Submission Areas within the Silbo Platform will be public and Silbo will not be responsible for any information or materials posted in such public areas. Silbo may, in its discretion, publicly post submissions you submit to a non-public area of the Silbo Platform. You may only use Submission Areas to send and receive messages and material that are relevant and proper to the applicable forum and that comply with this Agreement. “Your Information” is defined as any information and materials you provide to us or other Users in connection with your registration for and use of the Silbo Platform, including without limitation, information and materials that are posted or transmitted for use in Submission Areas. You are solely responsible for Your Information, and we are merely a passive conduit for your online distribution and publication of Your Information. You hereby represent and warrant that Your Information: (a) will comply at all times with this Agreement, including but not limited to Section 7 (Rules for Use of the Silbo Platform) below, and with Section 2 (Personal Information; User Accounts) above; and (b) will not create liability for us or cause us to lose (in whole or in part) the services of our Internet Service Providers (ISPs), customers, or other partners or suppliers. You hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute all of Your Information that is posted to Submission Areas from or through your account on the Silbo Platform, including but not limited to all images, videos, musical works and text included in such postings. The rights you grant in this license are for the limited purpose of operating, promoting, and improving the Silbo Platform. We reserve the right to remove postings from Submission Areas in our sole discretion.
7. Rules for Use of the Silbo Platform.
During the term of this Agreement, Requesters may use the Silbo Platform for your personal use only (or for the use of a person, including a company or other organization that you validly represent). Requesters may use the Silbo Platform to book Official Services solely with respect to a location where the Requester is legally authorized to have Official Services performed. Requesters may not use the Silbo Platform for any other purposes or in connection with any commercial endeavors whatsoever without our express prior written consent. Requesters agree that an order for Official Services is an offer, which is only accepted when the Requester receives a confirmation of the order. Requesters agree to treat Officials courteously and lawfully, to provide a safe and appropriate working environment for them that is in compliance with all applicable laws and regulations, and to provide reasonable co-operation to Officials to enable them to supply Official Services. Requesters agree to communicate any complaints to us and not to the Officials. Requesters agree to comply with our complaint and other policies, if any, designated on the Site. Requesters acknowledge that their selected or scheduled Official may be unavailable from time to time, e.g. due to illness, vacation or leaving the Silbo platform. Officials agree to provide Official Services in accordance with all applicable laws and regulations and with the Service Agreement. You shall NOT use the Silbo Platform (including but not limited to any Submission Areas) to do any of the following:
- a. Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
- b. Upload files that contain software or other material that violates the intellectual property rights or rights of privacy or publicity of any third party.
- c. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including but not limited to our staff and other Users.
- d. Post a review or rating unless such review or rating contains your independent, honest, genuine opinion.
- e. For any purpose or in any manner that is in violation of local, state, national, or international law.
- f. Publish, post, upload, distribute or disseminate any profane, defamatory, false, misleading, fraudulent, threatening or unlawful topics, names, materials or information, or any materials, information or content that involve the sale of counterfeit or stolen items.
- g. Advertise or offer to sell any goods or services for any commercial purpose or solicit employment or contract work which is not relevant to services offered through the Silbo Platform. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to Official Services facilitated through the Silbo Platform without express written permission from us.
- h. Collect usernames and/or email addresses of members by electronic or other means without our express prior written consent.
- i. Conduct or forward surveys, contests, pyramid schemes, or chain letters.
- j. Impersonate another person or allow any other person or entity to use your identification to post or view comments or otherwise use your account.
- k. Post the same note repeatedly (referred to as ‘spamming’). Spamming is strictly prohibited.
- l. Download any file posted by another User that you know, or reasonably should know, cannot be legally distributed through the Silbo Platform, or post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
- m. Restrict or inhibit any other User from using and enjoying the Silbo Platform.
- n. Imply or state that any statements you make are endorsed by us, without our prior written consent.
- o. Reverse engineer, disassemble, decompile, translate, modify, adapt, license, sublicense, alter, copy, distribute, hack or interfere with the Silbo Platform, its servers or any connected networks, use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Silbo Platform in any manner, or attempt to do any of the foregoing.
- p. Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by us.
- q. Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- r. Upload content that provides materials or access to materials that are obscene, adult or sexual or that exploit anyone, and in particular people under the age of 18, in an abusive, violent or sexual manner.
- s. Register to use the Silbo Platform under different usernames or identities, after your account has been suspended or terminated.
- t. Mirror or archive any part of the Silbo Platform or any content or material contained on the Silbo Platform without Silbo’s written permission.
- u. Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting or providing false or misleading representations in the sender information, subject line, locator, or content of any electronic message.
- v. Alter transmission data without Silbo’s consent.
8. No Employment.
Silbo provides a software platform which allows you to connect with independent Officials. Silbo is not the employer of any Official. You acknowledge that we do not supervise, direct, or control any Official’s work or Official Services performed in any manner. An Official provides services as an independent contractor of Silbo, and is not an employee, partner, or franchisee of Silbo for any purpose whatsoever.
9. Intellectual Property Rights.
The Silbo Platform, and the information, data, content and materials, which it contains (“Silbo Materials”), are the property of Silbo and/or its affiliates and licensors, excluding User-generated content, which Silbo has a right to use as described in this Agreement. The Silbo Materials are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. Silbo and/or its affiliates and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to all intellectual property rights associated with the Silbo Materials. Any use of Silbo Materials, other than as expressly permitted herein, is prohibited without the prior permission of Silbo and/or the relevant right holder. The service marks and trademarks of Silbo, including without limitation gosilbo.com, silbo.com and the Silbo logo are service marks owned by Silbo. Any other trademarks, service marks, logos and/or trade names appearing on the Silbo Platform are the property of their respective owners. You may not copy or use any of the marks, logos or trade names appearing on the Silbo Platform without the express prior written consent of the owner.
10. Copyright Complaints and Copyright Agent.
Silbo respects the intellectual property of others and expects Users to do the same. Silbo will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided on or in connection with the Silbo Platform infringe upon that person’s or entity’s copyright or other intellectual property right (such person or entity, a “Complainant”) and sends to Silbo a properly submitted copyright notice as indicated below, Silbo will investigate, and if it determines, in its discretion, that the material is infringing, Silbo will remove the content and may terminate the access of the User who posted such content to the Silbo Platform in the case of repeat infringers. All notices claiming an infringement of copyright rights must contain the following:
- (i) Identification of the intellectual property right that is allegedly infringed. All relevant registration numbers, or a statement concerning the Complainant’s ownership of the work, should be included.
- (ii) A statement specifically identifying the location of the infringing material, with enough detail that Silbo may find it on the Silbo Platform. Please note: it is not sufficient to merely provide a top-level URL.
- (iii) The complete name, address, telephone number and e-mail address of Complainant.
- (iv) A statement that Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law.
- (v) A statement that the information contained in the notification is accurate, and under the penalty of perjury, Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed.
- (vi) A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed.
Silbo’s contact information for notice of alleged copyright infringement is firstname.lastname@example.org or via mail: Attn: Copyright Agent, Silbo, Inc., P.O. Box 6302, Raleigh, NC 27628-6302.
11. The App / Mobile Devices
a. The Silbo Platform may allow you to access our services, download our Apps, upload content to the Silbo Platform, and receive messages on your mobile device (collectively “Mobile Features”). Your mobile device carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your mobile device carrier or mobile device. In addition, your mobile device carrier may charge you for standard messaging, data, and other fees to participate in Mobile Features. We have no responsibility or liability for any fees or charges you incur when using the Mobile Features. You should check with your mobile device carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your mobile device carrier with any other questions regarding these issues.
b. You acknowledge that your use of the Apps is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the App operates (e.g., Apple iOS or Android).
c. Silbo is not liable if you do not have a compatible mobile device or if you download the wrong version of an App for your mobile device. Silbo reserves the right to terminate the use of the Apps or any other aspect of the Silbo Platform at its discretion, including if you are using the Apps or the Silbo Platform with an incompatible or unauthorized device.
d. App Store Sourced Application.
(i) With respect to Apps accessed through or downloaded from the Apple App Store or Google Play Store (“App Store Sourced Application”), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software) or product that runs the Android operating system, as applicable; and (ii) as permitted by the “Usage Rules” set forth in the Terms of Service of the Apple App Store or Google Play Store, as applicable. Silbo reserves all rights in and to the Apps not expressly granted to you under this Agreement.
(ii) You acknowledge and agree that (i) this Agreement is valid between you and Silbo only, and, that Apple and/or Google is not a party to this Agreement other than as third-party beneficiary as contemplated below, and (ii) Silbo, not Apple and/or Google, is solely responsible for the App Store Sourced Application and the Silbo Platform content.
(iii) You acknowledge that neither Apple nor Google has any obligation whatsoever to furnish any maintenance or support services to you with respect to the App Store Sourced Application.
(iv) To the maximum extent permitted by applicable law, neither Apple nor Google will have any warranty obligation whatsoever with respect to the App Store Sourced Application.
(v) Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and/or Google, as applicable, on the one hand, and Silbo on the other hand, Silbo (and not Apple and/or Google) is responsible for addressing any claims you may have relating to the App Store Sourced Application, or your possession and/or use thereof, including, but not limited, to: (1) product liability claims, (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
(vi) Further, you agree that if the App Store Sourced Application, or your possession and use of the App Store Sourced Application, infringes on a third party’s intellectual property rights, you will not hold Apple and/or Google, as applicable, responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(vii) You acknowledge and agree that Apple and Apple’s subsidiaries, and Google and Google’s subsidiaries, are third-party beneficiaries of this Agreement with respect to App Store Sourced Applications, and that, upon your acceptance of the terms and conditions of this Agreement, Apple and/or Google, as applicable, will have the right (and will be deemed to have accepted the right) to enforce this Agreement for App Store Sourced Applications against you as a third-party beneficiary thereof.
(viii) Without limiting any provisions of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
12. Modifications to the Silbo Platform.
We reserve the right in our sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Silbo Platform or any content or information on the Silbo Platform with or without notice. We will not be liable to any party for any modification or discontinuance of the Silbo Platform.
The term “Confidential Information” shall mean any and all of Silbo’s trade secrets, confidential and proprietary information, personal information and all other information and data of Silbo that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. The Silbo Platform contains secured components that are accessible only to those who have been granted a username and password by Silbo. Information contained within the secure components of the Silbo Platform is confidential and proprietary. You acknowledge that Confidential Information (as defined herein) is a valuable, special and unique asset of Silbo and agree that you will not use Confidential Information other than as necessary for you to make use of the Silbo Platform as expressly permitted by this Agreement and only during the term of this Agreement. You will not disclose or transfer (or seek to induce others to disclose or transfer) any Confidential Information for any purpose. You shall promptly notify Silbo in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall implement reasonable technical, physical and administrative safeguards to protect Confidential Information from loss or theft, as well as unauthorized access, disclosure, copying, transfer, modification or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Silbo upon termination of this Agreement for any reason whatsoever.
14. Disclaimer of Warranties; Limitation on Liability.
a. USE OF THE SILBO PLATFORM IS ENTIRELY AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SILBO PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR OR GENERAL PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER SILBO NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SILBO PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO ANY CONTENT AVAILABLE IN OR THROUGH THE SILBO PLATFORM; NOR DO THEY MAKE ANY WARRANTY AS TO ANY OFFICIAL’S REGISTRATION, PROFESSIONAL ACCREDITATION OR LICENSE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SILBO PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, QUALITY, SUITABILITY, SAFETY, COMPLETENESS OR CONTENT OF THE SERVICES, OFFICIAL SERVICES, OR ANY PRODUCTS, CONTENT, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE SILBO PLATFORM OR THIS AGREEMENT. ACCESS TO THE SILBO PLATFORM IS PROVIDED FREE OF CHARGE AS A COURTESY. NEITHER SILBO NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SILBO PLATFORM (INCLUDING, BUT NOT LIMITED TO, THE CONDUCT OF ANY REQUESTERS OR OFFICIALS). NEITHER SILBO NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE SILBO PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. SILBO AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY INFORMATION, PERSONAL OR OTHERWISE, SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
b. NO LIABILITY. YOU AGREE NOT TO HOLD SILBO, ITS AFFILIATES, ITS LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS (COLLECTIVELY, “MEMBERS”) LIABLE FOR ANY DAMAGES, EXPENSES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE SILBO PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT, ACTS OF PHYSICAL VIOLENCE, AND LOSS OR DESTRUCTION OF PERSONAL PROPERTY), SERVICES, ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY SILBO OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL SILBO OR MEMBERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SILBO PLATFORM OR ANY OFFICIAL SERVICES, EVEN IF SUCH PARTIES WERE OR SHOULD HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. SILBO AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH THE SILBO PLATFORM, THE OFFICIAL SERVICES OR THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT SILBO OR MEMBERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO SILBO DURING THE SIX (6) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
c. RELEASE. SILBO AND MEMBERS EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE SILBO PLATFORM. THE SILBO PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. TO THE EXTENT THAT THE SILBO PLATFORM CONNECTS A USER TO A THIRD-PARTY PROVIDER FOR THE PURPOSES OF PROVIDING MERCHANDISE HEREUNDER, SILBO WILL NOT BE RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD-PARTY PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE SILBO FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD-PARTY SERVICE PROVIDER. BECAUSE SILBO IS NOT INVOLVED IN THE ACTUAL CONTACT BETWEEN USERS OR IN THE COMPLETION OF ANY OFFICIAL SERVICE, IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE SILBO AND MEMBERS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTE. TO THE EXTENT APPLICABLE, YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
d. ADDITIONAL DISCLAIMER. THE QUALITY OF THE OFFICIAL SERVICES SCHEDULED OR REQUESTED THROUGH THE USE OF THE SILBO PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE OFFICIAL WHO ULTIMATELY PROVIDES SUCH OFFICIAL SERVICES TO YOU AND/OR THE THIRD-PARTY REQUESTER. YOU UNDERSTAND, THEREFORE, THAT BY USING THE SILBO PLATFORM, YOU MAY BE EXPOSED TO OFFICIAL SERVICES THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE SILBO PLATFORM, AND SUCH OFFICIAL, AT YOUR OWN RISK.
NOTHING IN THIS AGREEMENT OR THE SILBO PLATFORM CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY LEGAL, FINANCIAL OR MEDICAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL.
BY USING THE SILBO PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE SILBO PLATFORM.
YOU ACCEPT THAT, AS A CORPORATION, SILBO HAS AN INTEREST IN LIMITING THE PERSONAL LIABILITY OF ITS OFFICERS, DIRECTORS AND EMPLOYEES. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIM PERSONALLY AGAINST SILBO’S OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION WITH ANY DISPUTE, LOSS OR DAMAGE. WITHOUT PREJUDICE TO THE FOREGOING, YOU AGREE THAT THE LIMITATIONS OF WARRANTIES AND LIABILITY SET OUT IN THIS AGREEMENT WILL PROTECT SILBO’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS AND SUB-CONTRACTORS AS WELL AS SILBO.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
You hereby agree to indemnify, defend, and hold harmless Silbo, its licensors, and each such party’s directors, officers, parent organizations, subsidiaries, affiliates, members, employees, agents, attorneys, independent contractors and vendors from and against any and all claims, losses, expenses, liabilities, damages or demands (including attorneys’ fees and costs incurred), in connection with or resulting from, directly or indirectly: (i) your use or misuse of or inability to use the Silbo Platform, any Official Service or other service obtained using the Silbo Platform, (ii) your violation of this Agreement, (iii) your violation of any applicable law or regulation; (iv) your violation of the rights of another (including, but not limited to, Officials), and (v) Your Information and any other content that you submit or transmit through the Silbo Platform. Silbo reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of Silbo.
16. Mutual Arbitration Agreement.
a. Informal Negotiations. To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and Silbo, including without limitation any dispute or claim related to or arising out of this Agreement (“Dispute”), you and Silbo may attempt to negotiate any Dispute informally (the “Informal Negotiations”) before initiating any arbitration or court proceeding. Such Informal Negotiations will commence upon written notice. Your address for any notices under this Section 16 is your email address and/or physical address that you have provided to Silbo. Silbo’s address for such notices is: email@example.com and/or by mail to Silbo, Inc., Attn: Legal, P.O. Box 6302, Raleigh, NC 27628-6302.
b. Arbitration. If a Dispute is not resolved through Informal Negotiations, you and Silbo agree to resolve any and all Disputes (except those Disputes expressly excluded below) through final and binding arbitration (“Arbitration Agreement”). This Arbitration Agreement shall be governed by the Federal Arbitration Act and evidences a transaction involving commerce. The arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website (www.adr.org). Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If you are unable to pay such costs, Silbo will pay all arbitration fees and expenses. Each party will pay the fees for his/her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the “Class Action Waiver” described in Section 16.d below.
c. Excluded Disputes. You and Silbo agree that the following Disputes are excluded from this Arbitration Agreement: (1) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for injunctive relief.
d. WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION. You and Silbo agree to bring any Dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.
e. Rules/Standards Governing Arbitration Proceeding. A party who wishes to arbitrate a Dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the Dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where you reside, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator’s decision/award.
f. Severability. You and Silbo agree that if any portion of this Section 16 entitled “Mutual Arbitration Agreement” is found illegal or unenforceable, that portion will be severed and the remainder of this Section 16 will be given full force and effect.
g. Arbitration opt-out. If you do not wish to be bound by the Arbitration Agreement and Class Action Waiver in this Section 16, you must notify us in writing within 30 days of the date that you accept this Agreement. Your written notification must be mailed to Silbo, Inc., Attn: Legal, P.O. Box 6302, Raleigh, NC 27628-6302 by certified mail return receipt requested and must include: (1) your name, (2) your address, (3) your account information, if you have one and (4) a clear statement that you do not wish to resolve disputes with us through arbitration.
17. Governing Law; Jurisdiction.
Except for the Arbitration Agreement in Section 16, which is governed by the Federal Arbitration Act and except as may be prohibited by the law of the State in which you primarily reside, this Agreement is governed and interpreted pursuant to the laws of the State of North Carolina, United States of America, notwithstanding any principles of conflicts of law. For all Disputes not subject to arbitration, you agree to submit to the personal and exclusive jurisdiction and venue of the courts located in Wake County, North Carolina.
This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this Section 18 shall be null and void. This Agreement shall inure to the benefit of permitted successors and assigns
19. General Provisions.
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. A failure by us to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Silbo with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement. You agree that regardless of any statute or law to the contrary, any Dispute, claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such Dispute, claim or cause of action arose or be forever barred. All notices provided by a party in connection with this Agreement will be deemed given as of the day they are received either by email, messenger, delivery service, or in the U.S. Mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows: Your address for such notices is your email address and/or physical address that you have provided to Silbo in connection with registration on the Silbo Platform. Silbo’s address for such notices is: firstname.lastname@example.org and/or by mail to Silbo, Inc., Attn: Legal, P.O. Box 6302, Raleigh, NC 27628-6302. The captions in this Agreement are solely for convenience and shall not affect the interpretation of this Agreement. This Agreement shall not be modified except in writing signed by both parties or by means of a new posting by Silbo, as described below. This Agreement shall be interpreted as if jointly drafted by the parties. Silbo shall have no liability to you for any failure or delay in performing its obligations in this Agreement where such failure or delay is caused by an event or circumstance beyond Silbo’s reasonable control including, without limitation, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, failure of Officials to perform, flood, fire, explosion, acts of terrorism or accident.
20. Changes to this Agreement.
We reserve the right, at our sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Silbo Platform. Your continued use of the Silbo Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
The terms and conditions set forth in this Agreement shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by law, and such determination shall not affect the validity and enforceability of any other remaining provisions.
22. Contact Information.
If you have any questions regarding this Agreement, please contact us at email@example.com and/or by mail to Silbo, Inc., Attn: Legal, P.O. Box 6302, Raleigh, NC 27628-6302.