Effective Date: 21-May-2020
***THIS AGREEMENT CONTAINS A BINDING MUTUAL ARBITRATION PROVISION (INCLUDING A CLASS ACTION WAIVER). BY ACCEPTING THIS AGREEMENT YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND AGREE TO BINDING ARBITRATION***
Diveplane makes any Diveplane-operated website or app that links to this Agreement (collectively, the “site”) available for your use subject to the terms and conditions in this Agreement. Please note that different or additional terms may apply to specific services or features offered on the Site (“Specific Agreements”), including any agreement between Diveplane and an organization on whose behalf you use such portions of the Site (e.g., the customer portal).
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We may revise and update this Agreement from time to time, and will post the updated Agreement to the Site. Unless otherwise stated in the amended version of the Agreement, any changes to this Agreement will apply immediately upon posting. We are not obligated to provide you with notice of any changes. Any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Site will constitute your agreement to any new provisions within the revised Agreement.
Ownership. All written content prepared and posted by Diveplane, and the Site design, layout, look, appearance, and graphics, as well as the trademarks, service marks, and logos contained on our Site (collectively, “Diveplane Content”) are owned by or licensed to Diveplane and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. Diveplane reserves all rights not expressly granted in, and to, the Site and the Diveplane Content.
License. On the condition that you comply with all your obligations under this Agreement, Diveplane grants you a limited, revocable, non-exclusive, non-transferable license to access the Site. Any use of the Site in excess of this license is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use this Site. Except as otherwise provided in this Agreement, no part of the Site and no Diveplane Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use without Diveplane’s prior express written consent. Your access to this Site is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any content or products we provide on the Site without notice.
In addition to complying with other terms and conditions applicable to your use of the Site, you agree that when using the Site, you will not:
Delete, modify, or attempt to change or alter any of the Diveplane Content or notices on the Site;
Introduce into the Site any virus, rogue program, time bomb, drop dead device, back door, trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Site, or to otherwise harm other users, Diveplane Content, or any third parties, or perform any such actions;
Use the Site to commit fraud or conduct other unlawful activities;
Access or attempt to access any other person’s account, information, or content without permission;
Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Site is based;
Use the Site to submit any content or data that in accordance with standards under applicable law, is obscene, defamatory, or libelous;
Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Site for any reason;
Use any Diveplane Content made available through the Site in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
Decrypt, transfer, frame, display, or translate (except translations for personal use) any part of the Site;
Connect to or access any Diveplane computer system or network without authorization; or
Use the information in the Site to create or sell a similar service.
The Site may include features that involve information that you upload, submit, or send through the Site (“Submitted Content”). This section provides the terms and conditions governing your use of such features, but applies only to the extent that the rights to Submitted Content are not addressed in a Specific Agreement between your organization and Diveplane.
License to Submitted Content. By submitting Submitted Content to the Site, to the extent you hold intellectual property ownership in Submitted Content, you grant Diveplane a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, create derivative works of, adapt, display, and perform Submitted Content for any purpose under this Agreement or a Specific Agreement, subject to any restrictions set forth in a Specific Agreement. You represent and warrant that you have the necessary rights to Submitted Content, including the right to assign or grant a license to your rights in this Agreement.
Your Suggestions. We welcome your comments regarding the Site, Diveplane Content, and our services. In addition to the license you grant to us in Section 4(A) for Your Content, if you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials to us in connection with or related to the Site and Diveplane’s services (including any related technology), whether you send such information or materials to us through the Site or through a separate communication channel, you grant us a non-exclusive, perpetual, royalty-free, irrevocable right to use, disclose, reproduce, modify, license, transfer, and otherwise distribute, and exploit any such information or materials in any manner. Please do not send us such information or materials, if you do not wish to grant us the rights set forth in this Section 4(B).
Prohibited Content. Unless permitted under a Specific Agreement, You shall not under any circumstances upload any of the following types of information to the Site and Diveplane assumes no liability with respect to such information: (a) information protected under the privacy or security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Children's Online Privacy Protection Act of 1998 (COPPA), or the Gramm-Leach-Bliley Act (GLBA); and (b) personally identifiable information including, but not limited to: (i) driver’s license numbers, (ii) passport numbers, (iii) social security, tax ID or similar numbers, (iv) bank, checking, credit card, debit card, or other financial account numbers unless those financial account numbers are being submitted as information to pay Diveplane using a form or feature designed for such purpose by Diveplane, or (v) personally identifiable information, including Personal Information under California Consumer Privacy Act (CCPA) or Personally Identifiable Information under European Union’s General Data Protection Regulation (GDPR), of any person of than You (“Other Person”) unless you are doing so to establish an account on the Site for the Other Person in a manner established for such purpose by Diveplane.
If you create an account with the Site and provide an e-mail address or mobile phone number, you agree that Diveplane may send you communications as part of the normal business operation of your use of the Diveplane Site. You may not opt out of receiving certain communications that are necessary for us to provide requested services via the Diveplane Site; however, you may opt out of receiving other types of communications from Diveplane at any time by following the instructions provided to you. You acknowledge that opting out of receiving certain communications may impact your use of the Diveplane Site.
The Site may provide links to other websites on the Internet that we do not control. These other websites may provide opinions, recommendations, or other information from various individuals, organizations, or companies. We are not responsible for the nature, quality, or accuracy of the content or opinions expressed on such websites, and we do not investigate, monitor, or check them for quality, accuracy, or completeness. Inclusion of any linked website on the Site does not imply or express an approval or endorsement of the linked website by us or of any of the content, opinions, treatments, information, products, or services provided on these websites, even if we receive a referral fee in connection with your use of such third-party websites.
You are responsible for protecting your Site account log-in credentials from unauthorized access and use. You must promptly notify Diveplane by e-mail at email@example.com of any known or suspected unauthorized use(s) of your account.
THE SITE IS PROVIDED “AS IS”. WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF (I) YOUR USE OR THE RESULTS OF YOUR USE OF THE SITE; (II) ANY ADVICE YOU GLEAN FROM THE SITE WHETHER PROVIDED BY US OR A THIRD PARTY; OR (III) ANY OTHER CONTENT AVAILABLE THROUGH THE SITE. WE DO NOT PROMISE THAT THE SITE WILL BE UNINTERRUPTED OR WILL BE ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADDITIONAL STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT OR A SPECIFIC AGREEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS. WE WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY COMMUNICATION OR CONTENT.
Site and Related Conduct. DIVEPLANE AND ITS SUBSIDIARIES, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, BUSINESS PARTNERS, LICENSORS, EMPLOYEES, ASSIGNEES, AND SUCCESSORS-IN-INTEREST (COLLECTIVELY, THE “DIVEPLANE PARTIES”), WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS, DEMANDS, LOST PROFITS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE, RELATING TO THIS AGREEMENT, YOUR USE OF THE SITE OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE SITE AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF DIVEPLANE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE WILL BE TO STOP USING THE SITE.
Maximum Liability. IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF THE DIVEPLANE PARTIES FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF ONE HUNDRED U.S. DOLLARS ($100.00 USD) OR YOUR DIRECT PROVABLE DAMAGES.
State Law Waiver. In entering into this release you expressly waive any protections (whether statutory or otherwise), including Section 1542 of the California Civil Code if applicable, that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
To the fullest extent permitted by applicable law, you agree to hold harmless, indemnify, and defend the Diveplane Parties from and against any and all claims (including liabilities, damages, losses, costs, expenses, and reasonable attorneys’ fees): (a) alleging injury, damage, or loss resulting from your use of the Site; (b) alleging that Submitted Content infringes a copyright, patent, or trademark, or misappropriates a trade secret of a third party; or (c) relating to any act or omission by you which is a breach of your obligations under this Agreement or applicable law.
You will have the right to defend and compromise such claim at your expense for the benefit of the Diveplane Parties; provided, however, you will not have the right to obligate the Diveplane Parties in any respect in connection with any such settlement without the written consent of the indemnified party. Notwithstanding the foregoing, if you fail to assume your obligation to defend or if Diveplane elects to defend such claims itself, the Diveplane Parties may do so to protect their interests and you will reimburse all costs incurred by the Diveplane Parties in connection with such defense.
Choice of Law. The validity, construction, and effect of this Agreement will be governed by the laws of the U.S. State of Delaware, without giving effect to that state’s conflict of laws rules.
Arbitration Procedure. All disputes arising out of, or relating to, this Agreement (including formation, performance, breach, enforceability, and validity of this Agreement), our operation of the Site, or a purchase made through the Site shall be resolved by final and binding arbitration to be held in the English language in Raleigh, North Carolina or another mutually agreed upon location pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable.
Waiver of Class Actions; Jury Trials. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.
Injunctive Relief. Without prejudice to the agreement to resolve disputes in binding arbitration set forth in the previous paragraph, either party to this Agreement may obtain preliminary injunctive relief in a court of competent jurisdiction, for the purpose of enforcing any of the terms of this Agreement pending a final determination in arbitration or permanent relief for the purpose of enforcing arbitral awards.
Complete Agreement. This Agreement constitutes the entire agreement between you and Diveplane relating to your use of, and access to, this Site and supersedes any prior or contemporaneous agreements or representations. This Agreement may not be amended except as set forth herein. For avoidance of doubt, notwithstanding this Section, this Agreement does not modify, revise, or amend the terms of any other agreements you may have with Diveplane.
Severability. If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted.
Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible.
No Waivers. Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision. This Agreement shall not be modified by any course of performance or course of dealing.
No Assignments and Transfers. No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.
No Third Party Beneficiaries. Subject to Sections 9 and 10, nothing in this Agreement will confer upon any person or entity, other than the parties, any rights, remedies, obligations, or liabilities whatsoever.
Notices. You shall provide any notices to us under this Agreement by e-mail or mail using the contact information provided below. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing Diveplane with up-to-date contact information, which you may do by updating your account information through the Site or by sending a message to us via the contact information provided below. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.
Age. Each Site other than diveplane.com is not intended for use by persons under 18 years of age, and by using the site, you ensure that You are 18 years of age or older.
If you have any questions or need to contact us for any reason relating to this Agreement, please contact firstname.lastname@example.org.