TERMS AND CONDITIONS
Last Updated: September 11, 2019
We ask that you carefully review these Terms of Service because they contain important information about your legal rights and your relationship with us. These Terms of Service, the other documents we’ve referenced in this document and any Insertion Orders (“IO”) between you and Geotix together comprise Our “Terms”. These Terms constitute the entire agreement between you and Geotix (“Agreement”) and apply to all of the Services. By accessing or using the Services, or by clicking the “I Accept” button, the Agreement is a binding contract between You and Geotix.
NOTE: Section 17 of these Terms contains a provision concerning arbitration and a class action waiver. This portion of the Terms may affect your legal rights. Please review Section 17 very carefully.
1. What You Need To Know.
1.1 What do these Terms Cover? These Terms apply to any Site(s) on which they are posted. On Sites where other terms or agreements are posted instead, those terms or agreements apply if they conflict with these Terms. The material, including without limitation, information, data, text, editorial content, design elements, look and feel, formatting, graphics, images, photographs, videos, music, sounds and other content contained in or delivered via the Services or otherwise made available by Geotix in connection with the Services is the “Site Content” (or “Content”). Any material (including the foregoing categories) that you contribute, provide, post or make available using the Services is “Your Content.”
1.2 Who’s involved? When we use the term “Organizer,” we mean individuals or entities who use the Services to create and list events published via the Services. “Consumers” means individuals or entities who use the Services to receive information about or attend Events. “Third Party User” refers to an individual or entity that uses the Services as an agent of Geotix to provide event listing and ticketing services to Organizers or other third parties (e.g. venues). Organizers, Consumers and Third Party Users using our Services are all referred to in these Terms collectively as “Users,” “you” or “your.”
When these Terms use the term “Geotix,” “We,” “Us,” or “Our,” that refers to Geotix Network, Inc. a Delaware corporation, with its principal place of business at 125 Park Street, Traverse City, MI., and its affiliates, and subsidiaries, and each of its and their respective officers, directors, agents, partners and employees.
1.4 “Terms” and acceptance. These Terms of Service and the other documents we’ve referenced in this document (including in Section 1.3 above) and any Insertion Orders between you and Geotix together comprise Our Terms. These Terms are a legally binding agreement between you and Geotix. These Terms control your access to and use of the Services and fully explain your rights and responsibilities related to your use of the Services. When you hit the “I Accept” button, you are agreeing to these Terms. If you do not agree to these Terms, you may not use or access the Services. Individuals who access the Services on behalf of an entity are considered an agent of that entity and agree to these Terms on behalf of that entity and its affiliates. If you access the Services on behalf of an entity, you represent that you have the authority to do so.
2. Geotix’s Services and Role.
2.1 What Does Geotix Do? Our Services provide a fast and easy way for Third Parties to allow Organizers to list, advertise, and sell tickets to Consumers for events in their local markets. Geotix’s products, features and offerings are available (a) online through our website (“Site”); (b) off platform, for example entry management, sponsorship and marketing or distribution services; and (c) through mobile applications, webpages, application programming interfaces, and subdomains (“Applications”). (a), (b), and (c) are collectively referred to as our “Services”.
2.2 What is Our Role? Geotix facilitates. We are not an event creator, organizer or owner but we help you connect the dots in the event process. Our Services include tools to help you manage event promotion, ticketing and registration. Because Geotix is not an event owner or creator, You must ensure that all events are in compliance with all relevant local laws.
3. User Accounts.
In order to provide the Services, Geotix may require you to create an account (“User Account”). The following rules apply to all User Accounts:
a. You must protect your User Account using your username and password. Your User Account security is your sole responsibility and you must keep your login information confidential.
b. You are responsible for any unauthorized access to your User Account and if you discover any such access, you must advise Geotix as soon as possible.
c. You must be at least 18 years of age, or the legal age of majority where you reside, to use the Services and create a User Account. If you are 13 or older, you may only use the Services under the supervision of a parent or legal guardian who manages your use and/or account. However, if you are under 13, please do not provide us with any information about yourself.
d. You must provide true, accurate, current and complete information about yourself, or if you are using the Services on behalf of an entity, the entity (the “Registration Data”).
e. You also agree to update Registration Data if it changes.
f. If there is a dispute between two or more persons or entities as to account ownership, We will be the sole arbiter of that dispute and Our decision (which may include termination or suspension of the account) will be final and binding on those parties.
g. We may provide you the ability to implement certain permission within your account to third parties including, “sub-users,” “sub-accounts,” or other credentialed account users. If we do so, you agree that you are solely responsible for all activity that occurs under your account (including actions by sub-users), so you must maintain the confidentiality of your password and account details. You likewise agree that all rules applicable to your account will apply to all third parties to whom you grant access to your account.
h. You agree to immediately notify Us of any unauthorized use of your password or account or any other breach of security. You are responsible for (and we will hold you responsible for) any activities that occur under your account.
4. Marketing Materials and Testimonials.
4.1 You agree that Geotix may identify you as a client in Geotix’s client lists and other marketing materials and may use, on a royalty-free basis, User Materials that have already been published on the Internet in public case studies and other marketing materials published by Geotix.
4.2 You agree to provide Geotix with a testimonial upon the completion of the performance of Services under any applicable IO(s) (“Testimonial”). Geotix may use Testimonials, on a royalty-free basis, on its website and in other marketing materials.
5. Fees, Payment, and Ticket Refunds.
5.1 Geotix Fees. Creating an account, listing an event and accessing the Services are free. However, we charge fees when you sell or buy paid tickets or registrations. All specific fee terms will be set forth in the IO created for each project.
5.2 Payment Terms. In the event that Geotix does not collect payment from Organizers directly or that Geotix provides User with Services not on a commission basis, Geotix will send Users notifications via email when a User’s current invoice is ready to be viewed. User agrees to pay all invoices when due. Payment will be deemed late if not received on the due date listed in the applicable IO(s). Any late payments will accrue interest equal to twenty percent (20%) compounded monthly.
(a) Breach. User’s failure to make full and timely payment will constitute a material breach of this Agreement. Geotix will be entitled to recover all reasonable costs of collection, including, but not limited to, attorneys’ fees, expenses, twenty percent (20%) interest compounded yearly on the overdue balance, and costs incurred in attempting to collect payment from User. Geotix reserves the right to withhold delivery of any Services if payment is not made in full. User understands and agrees that all payments must be made in US Dollars. In the event User pays by credit card, User expressly agrees that it will not charge back any payments made by credit card without the prior written consent of Geotix. User understands and agrees that it will be responsible for paying any costs or fees incurred by Geotix as a result of any credit card chargebacks initiated by User.
(b) Organizer Fees. For each Organizer that purchases Services from Geotix, Geotix will pay Third Party User a commission in accordance with the commission schedule specified in the applicable IO(s) during the term of the applicable IO(s). Commission will be deemed earned by Third Party User and will be due and payable to Third Party User only after Geotix has received full payment for any Services from the Organizer. In such event, the commission will be payable by Geotix to Third Party User within thirty (30) days from the date of receipt by Geotix of full payment of such associated fees for the Services.
(c) Third Party User Fees. Third Party User agrees to accept the commission in accord with this Section as its entire compensation for services performed under this Agreement or otherwise. Neither Third Party User, nor anyone associated with Third Party User, shall be entitled to receive any payments by way of compensation or expenses of any character or for any reason whatsoever, except for the commission specified in the applicable IO(s). Commission previously paid to Third Party User with respect to which Geotix grants a refund, credit, or allowance, including bad debts, on the underlying Order will be deducted from commission subsequently payable to Third Party User.
(d) No Tax Withholding. All compensation made under this Agreement and its applicable IO(s) will be paid without deductions or withholding. Geotix will report as income to the appropriate governmental agencies all compensation received pursuant to this Agreement and its applicable IO(s) and will pay to such agencies all taxes, which Geotix is required to pay by law. User understands and agrees that Geotix will not be responsible for paying any taxes required by law to be paid by User. To the extent that taxes are assessed against Geotix for the actions or omissions of User, User agrees that User will reimburse Geotix for the payment of those taxes.
(e) Effect of Termination. In the event Third Party User terminates this Agreement or any applicable IO(s) pursuant to Section 9 and Third Party User is not in default of this Agreement, or if the term of any applicable IO(s) is not renewed, Geotix agrees to pay to Third Party User post-termination commissions on all Orders placed during the two (2) year period following such expiration or termination by Organizers that were solicited by Third Party User during the term of the applicable IO(s). In the event Geotix terminates this Agreement, Third Party User will not be entitled to any post-termination commissions.
5.3 Ticket Refunds and Transfers. Geotix can assist with ticket purchase refunds, if refunds are permitted by the Event Organizer. Consumers should contact the Event Organizer to request a refund. If you wish to transfer tickets to an event you have purchased on Geotix, in some instances we may be able to accommodate this for you. In all other instances, please contact the Organizer of the event to arrange for ticket transfer. If you are unable to reach the Organizer, or the Organizer is unable to arrange a ticket transfer, please contact us.
6. Fraud, Ticket Validity Checks and Damages.
6.1 If you do receive a ticket refund or transfer to another person, you agree that you will not use any previously delivered ticket for yourself. Use of a ticket, or copy thereof, for which you’ve received a refund or effected a transfer is fraud and is a violation and breach of the Terms. Geotix will not be held liable under any circumstances for any costs arising from non-compliance by Organizers with ticket validity check procedures or the lack thereof. Geotix will not be held liable under any circumstances for costs and/or damage associated with tickets arisen from fraud and/or for damage associated with the purchase of a ticket through non-official means, such as third parties.
6.2 Organizers must employ a ticket validity check procedure for all events. Geotix will not be held liable under any circumstances for any costs arising from non-compliance by Organizers with such procedures of the lack of such procedure. We will not be held liable under any circumstances for costs and/or damage associated with tickets arising from situations of fraud and/or for damage associated with the purchase of the ticket through non-official means, such as third parties.
7. Event Rules, Insurance.
7.1 Notwithstanding all prior Terms herein, Organizers warrant that all events promoted through the Services (“Events”) will be operated according to and in compliance with all applicable laws and regulations. Prior to promoting and initiating ticket sales for all Events, You and your affiliates will obtain all applicable licenses, permits, and authorizations (individually and collectively, “Licensure”) for the subject Event. Licensure includes but is not limited to property operation permits, fire marshal permits, state, county, municipal or other local authority’s authorization of the event, traffic engineering authorizations, fire department inspection reports, authorization to receive minors (if applicable), sanitary authorization (if applicable), and any other potential applicable authorization. You further warrant that you and your affiliates will maintain in force throughout the term of this Agreement and your use of the Services the applicable Licensure for Organizer to promote, produce, sponsor host and sell tickets for all events hosted by you or your affiliates on the Services
7.2 Without limiting the generality of any release otherwise provided under the Terms you hereby agree to release, defend, indemnify and hold harmless Geotix, and its affiliates and subsidiaries, and each of its and their respective parent companies, subsidiaries, officers, affiliates, representatives, shareholders, contractors, directors, agents, partners and employees from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, including, without limitation, attorneys’ fees, known and unknown, for any dispute, charge or claim due to or arising out of or in any way connected with your or your affiliates’ Licensure, any failure to obtain or maintain any Licensure, or any error in obtaining or maintaining any Licensure.
7.3 Upon request, You agree to provide evidence of Licensure and related information prior to offering tickets or registrations for events or at any time during your use of the Services.
7.4 Insurance. During the term of this Agreement and any applicable IO(s), if you are a Third Party User, as herein defined, you will, at all times, maintain adequate insurance against liabilities which may arise under the worker’s compensation or similar laws of each state in which its employees operate hereunder, as well as under any similar laws of the United States or regulations issued pursuant thereto, and maintain automobile liability and comprehensive liability insurance for injuries to third parties and their property in such amounts and subject to such deductible clauses and other terms as are customary for persons engaged in businesses the same as or similar to the business of Third Party User.
8. Privacy and Consumer Information.
8.2 If you are an Organizer, you represent, warrant and agree that (a) you will at all times comply with all applicable local, state, provincial, national and other laws, rules and regulations with respect to information, including personal data, you collect from (or receive about) individuals, and (b) you will at all times comply with any applicable Geotix policies posted on the Services regarding such information and data.
9. License to the Geotix Services.
9.1 We grant you and your affiliates, employees, and agents, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use our Services for their intended purposes. This license is contingent on your use of the Services in compliance with these Terms and in compliance with all applicable local, state, provincial, national and other laws, rules and regulations. This license is revocable at any time, and any rights not expressly granted herein are reserved to Geotix.
9.2 You agree you will not directly or indirectly (a) copy, modify, reproduce, translate, localize, port or otherwise create derivatives of any part of the Services; (b) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of all or any part of the Services; (c) rent, lease, resell, distribute, use the Services for other commercial purposes not contemplated or otherwise exploit the Services in any unauthorized manner; (d) remove or alter any proprietary notices on the Services; or (e) engage in any activity that interferes with or disrupts the Services.
9.3 . The Site Content is not intended for your commercial use. You may not use any Site Content for your own commercial purposes. You may not scrape, crawl, or employ any automated means to extract data from the Site(s).
10. Geotix Intellectual Property.
10.1 Site Content consists of protected copyrights, trademarks, service marks, trade secrets or other intellectual property and other proprietary rights and pursuant to the law. Geotix may own the Site Content or portions of the Site Content may be made available to Geotix through arrangements with third parties. The Services and Site Content are subject to copyright and other intellectual property rights under the laws of the United States, foreign states, and international treaties, and Geotix provides User with the right to use the Services on a limited basis. Any rights not expressly granted herein are reserved.
10.2 Trademarks. The trademarks, service marks and logos of Geotix (the “Geotix Trademarks”) used and displayed in connection with the Services are common law and/or registered trademarks or service marks owned by or licensed to Geotix. Other trademarks used in connection with the Services may be owned by others (the “Trademarks of Others” and, collectively with Geotix Trademarks, the “Trademarks”). Users may not use the Trademarks without prior written consent or license. Use of The Trademarks to disparage Geotix, any third party or Geotix’s or such third party’s products or services, or in any manner that may damage any goodwill in the Trademarks is strictly prohibited. Use of any Trademarks as part of a link to or from any site is prohibited unless We approve the establishment of such a link by prior written consent specific for each such link. All goodwill generated from the use of any Geotix Trademarks will inure to Geotix’s benefit.
10.3 Use of Sub-domains. In the event Geotix provides you with the right to use a sub-domain within the Site (e.g., [sub-domain prefix].https://geotix.com) for a given event, your use is authorized on a limited, revocable basis. All such sub-domains are the sole property of Geotix and we reserve the right to determine the appearance, design, functionality and all other aspects of websites located at any https://geotix.com or Geotix owned sub-domains.
11. Your Intellectual Property.
11.1 Licenses. To provide the Services, Geotix requires a limited license to use the materials (“User Materials”) and trademarks (“User Trademarks”) you submit. Users grant to Geotix a limited, non-exclusive, worldwide, royalty-free, sublicensable, and revocable license to display, copy, reproduce, prepare derivative works of, distribute, perform publicly, perform via means of audio transmission, modify, test, transmit, track, and distribute the User Materials in connection with Geotix’s obligations under these Terms. Furthermore, Users grant to Geotix a limited, non-exclusive, worldwide, royalty-free, sublicensable, and revocable license to use the User Trademark(s) in connection with Geotix’s obligations described in this Agreement. These licenses will not provide Geotix with an ownership interest in User Materials or User Trademarks. Users retain ownership of and responsibility for the User Materials and User Trademarks submitted.
11.2 Authority and Permissions. Users must cooperate with Geotix to allow it to perform the Services described in this Agreement. Each User will use its best efforts to ensure that Geotix has the permission, authority, and rights necessary to allow Geotix to perform the Services, including, but not limited to, adequate access to User’s staff, software, servers, cart systems, hardware, customer lists, Organizers, and accounts. Each User agrees that all instructions to Geotix must be in writing and made via email, mail, or facsimile. User agrees to make itself available at reasonable and customary times and to provide Geotix with timely responses to Geotix’s questions or requests with respect to the Services.
You represent and warrant that you have all the rights, power and authority necessary to grant the foregoing license, and that all Your Content (a) does not infringe, violate, misappropriate or otherwise conflict with the rights of any third party; (b) complies with all applicable local, state, provincial, national and other laws, rules and regulations; and (c) does not violate these Terms.
11.3 Geotix’s Further Use of Your Content and Trademarks. Your Content must be accurate and truthful. Geotix reserves the right to remove Your Content from the Services if We believe, in Our sole discretion, that it violates these Terms, or for any other reason. Geotix may use your name and logo (whether or not you have made it available through the Services) for the purpose of identifying you as an existing or past customer of Geotix both on the Services and in marketing, advertising and promotional materials. We likewise may preserve Your Content and account information and may also disclose Your Content and account information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) respond to claims that any of Your Content violates the rights of third parties; (c) enforce or administer the Terms of Service, including without limitation, these Terms of Service; and/or (d) protect the rights, property and/or personal safety of , its users and/or the public, including fraud prevention. You understand that the technical processing and transmission of the Services, including Your Content, may involve transmissions over various networks and/or changes to conform and adapt to technical requirements of connecting networks or devices.
12. Copyright Takedown Notices.
If you believe that a user of the Website has infringed your copyrights, you may provide Geotix with a notice of copyright infringement that complies with § 512 of the Digital Millennium Copyright Act. Upon receipt of a notice that complies with this section, Geotix will make a good faith attempt to notify the owner or uploader of the allegedly infringing content so that they can respond with a counter-notification.
Please send all notices to [email protected]
Your notice of copyright infringement must contain the following:
- The physical or electronic signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work(s) alleged to have been infringed;
- The location of the copyrighted work(s) on the Website;
- Your contact information, such as an address, telephone, fax number, or email address;
- A statement that you have a good faith belief that the use of the allegedly infringing content is not authorized by the copyright owner, its agent, or the law; and
- A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the copyright owner.
If you are a User who believes that content subject to a copyright takedown is not infringing, you may submit a counter-notification. This counter-notification must contain the following:
- Identification of the specific materials that have been removed from the Website;
- Your contact information, such as an address, telephone, fax number, or email address;
- A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of mistake or misidentification;
- A statement that you consent to the jurisdiction of the federal district court in which your address is located or in which Sox In A Box is located;
- A statement that you will accept service of process from the notifying party; and
- Your physical or electronic signature.
13. Term; Termination.
13.1 As soon as you access the Services, these Terms apply to you. These Terms will continue to apply until they are terminated. Sections 4.2 or 4.3 below describe how these Terms may be terminated. Even after these Terms are no longer applicable generally, as described in Section 4.4, certain portions will always remain in effect.
13.2 Geotix may terminate your right to use and/or access the Services at any time, for any reason. Termination may be triggered: (a) if you violate or breach these Terms; (b) if you misuse or abuse the Services, or use the Services in a way not intended or permitted by Us; or (c) if allowing you to access and use the Services would violate any applicable local, state, provincial, national and other laws, rules and regulations or would expose Us to legal liability. Geotix may choose to stop offering the Services, or any particular portion of the Services, or modify or replace any aspect of the Services, at any time. We will use reasonable efforts to provide you with notice of our termination of your access to the Services, where, in Our sole discretion, failure to do so would materially prejudice you. Geotix is not liable to you or anyone as a result of a termination of Services.
13.3 Except where a separate contract exists between you and Geotix, you may terminate your access to the Services and the general applicability of Terms by deleting your account. If you are using the Services without a registered account, you must cease using the Services in order to terminate these Terms. If you use the Services, these Terms remain in effect. If there is a separate agreement between you and Geotix governing your use of the Services and that agreement terminates or expires, these Terms (as unmodified by such agreement) will apply.
13.4 Termination of your use of the Services or deletion of your account does not terminate certain provisions of these Terms. Terms that must remain in effect based on your prior use of the Services are binding indefinitely. These provisions may include, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, agreements to arbitrate, choices of law and judicial forum and intellectual property rights protections and licenses.
14. Release and Indemnification.
14.1 Release. You hereby agree to release Geotix from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including other Users) in connection with the Services or any event listed on the Services. You specifically waive any applicable law or statute that limits general releases and does not extend the release to claims which you may not have known or suspected and which may materially affect your settlement with Geotix. This release is complete and encompasses all claims, known or unknown, suspected or unsuspected.
14.2 Indemnification. You agree to indemnify Geotix in the below circumstances. That means that you will be responsible for paying Geotix’s attorneys’ fees and other fees as described below. You agree to hold harmless, defend, and indemnify Geotix from and against any and all claims, demands, judgments, liabilities, costs, and fees, including attorneys’ fees, arising out of or related to: (1) Your use of the Services in violation of the Terms; (2) Your breach of any Terms; (3) Your breach of any applicable law, statute, regulation, ordinance, or treaty, whether local, state, provincial, national, or international; (4) Your failure to pay any applicable taxes arising out of or in relation to your use of the Services when due; or (5) Your advertisement or provision of any events or other services to third parties. Notwithstanding the foregoing, this indemnification will not apply to the extent that any claims, demands, judgments, liabilities, costs, and fees, including attorneys’ fees, arise out of Geotix’s gross negligence or willful misconduct. Your obligation to defend and indemnify Geotix will not provide User with the right or ability to control Geotix’s defense, and Geotix reserves the right to control its defense, including, but not limited to, the choice to litigate or settle and the choice of counsel. We may choose to handle the Claim ourselves, in which case you agree to cooperate with Us in any way we request.
15. Disclaimer of Warranties and Assumption of Risks by You.
THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. GEOTIX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, TITLE, QUALITY, ACCURACY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IF USER IS LOCATED IN SUCH A JURISDICTION, USER IS ADVISED TO CONSULT WITH AN ATTORNEY TO UNDERSTAND ITS RIGHTS UNDER THE LAW. FOR CLARITY AND AS AN EXAMPLE, WE CANNOT WARRANT THAT (A) THE SERVICES (OR ANY PORTION OF THE SERVICES) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
While Geotix provides the Services, Geotix does not provide event or event promotion services. Therefore, You recognize that We have no control over and do not guarantee anything related to any events or information published about any events. Geotix hereby disclaims any liability arising from the acts or omissions of any User or third party in relation to any event or promotion thereof. You agree that hosting and/or participating in any event is at your sole discretion and you assume all related risk. Such risks may include risk of illness, bodily injury, disability, or death.
These disclaimers apply to the maximum extent permitted by law. You may have other legal rights. However, the duration of legally required warranties, if any, will be limited to the maximum extent permitted by law.
16. Limitation of Liability.
GEOTIX AND ITS AFFILIATES, VENDORS, STRATEGIC PARTNERS, AND EMPLOYEES WILL NOT BE HELD LIABLE TO ANY USER OR ANY OTHER PERSON FOR ANY CLAIMS, DAMAGES, JUDGMENTS, LIABILITIES, COSTS, CHARGES, OR FEES, INCLUDING ATTORNEYS’ FEES, WHETHER IN TORT, CONTRACT, PERSONAL INJURY, OR STRICT LIABILITY, INCLUDING, BUT NOT LIMITED TO, INDIRECT DAMAGES, CONSEQUENTIAL DAMAGES, EXEMPLARY DAMAGES, INCIDENTAL DAMAGES, STATUTORY DAMAGES, SPECIAL DAMAGES, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OPPORTUNITY COSTS, INTANGIBLE LOSSES OR THE COST OF SUBSTITUTE SERVICES, EVEN IF GEOTIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GEOTIX WILL NOT BE HELD LIABLE FOR ANY CONTENT POSTED THROUGH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE CONTENT OF EVENTS. GEOTIX IS A SERVICE PROVIDER AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERROR, OMMISSION, INTERRUPTION, DELETION, DEFECT, DESTRUCTION OF IDENTITY, FAILURE OF DELIVERY, UNAUTHORIZED ACCESS TO A USER ACCOUNT, OR ALTERATION THEREOF. GEOTIX RESERVES THE RIGHT TO DISCONTINUE THE SERVICES AT ANY TIME AND WITHOUT LIABILITY. USER UNDERSTANDS THAT ITS USE OF THE SERVICES IS AT ITS OWN RISK AND THAT GEOTIX’S LIABILITY IS LIMITED TO THE AMOUNT PAID BY USER TO GEOTIX, THE AMOUNT OWED TO CLIENT IN COMMISSIONS BY GEOTIX, OR $1,000, WHICHEVER IS LESS.
17. ARBITRATION AND CLASS ACTION WAIVER.
17.1 ARBITRATION REQUIRED. ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING UNDER THESE TERMS OR WITH RESPECT TO THE SERVICES OR USE THEREOF MUST BE SETTLED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT (TO THE EXTENT THE CLAIM QUALIFIES). ANY DISAGREEMENT AS TO WHETHER THIS CLAUSE APPLIES TO THE DISPUTE WILL BE DECIDED BY THE ARBITRATOR.
17.2 The Federal Arbitration Act will govern the interpretation and enforcement of this arbitration provision. The arbitration will be administered under the American Arbitration Association’s (“AAA”) most recent commercial arbitration rules then in effect except where as modified herein. The arbitration will be conducted in Grand Traverse County, Michigan and will be decided by a single arbitrator randomly selected from a list of neutral arbitrators maintained by the American Arbitration Association. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator will be provided with the right to award costs and attorneys’ fees to the prevailing party. This arbitration will be held in Traverse City, Michigan and both parties agree that they will be required to be present in Traverse City, Michigan for arbitration under the terms of this agreement and hereby submit to exclusive personal jurisdiction in Traverse City, Michigan. The Arbitrator will apply the laws of the state of Michigan and the Federal laws of the United States in deciding any controversy or claim pursuant to this arbitration clause.
17.3 The user and Geotix hereby waive the right to a trial by jury as to all arbitrable disputes.
17.4 Arbitration Exceptions. Notwithstanding this Agreement to arbitrate, either party may (i) bring an action on an individual basis in small claims court (to the extent the applicable claim qualifies); or (ii) bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court in the U.S. Patent or Trademark Office to protect its Intellectual Property Rights (“Intellectual Property Rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
17.5 CLASS ACTION WAIVER. THE USER AND GEOTIX ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED UNDER THE LAW, EACH WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION LAWSUIT, CLASS ARBITRATION, OR PRIVATE ATTORNEY GENERAL ACTION. IF THIS CLASS ACTION WAIVER IS HELD UNENFORCEABLE WITH RESPECT TO A DISPUTE BETWEEN THE PARTIES, THE PARTIES AGREE THAT THE ENTIRETY OF THE ARBITRATION CLAUSE WILL BE DEEMED VOID WITH RESPECT TO SUCH DISPUTE AND THE DISPUTE MUST PROCEED IN COURT. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT PRESIDE OVER ANY FORM OF CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING AND MAY ONLY PROVIDE RELIEF IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
17.6 Payment of Legal Fees. Just as in any court proceeding, each party will initially bear its own attorneys’ fees and expenses in connection with any arbitration. Should either party be determined to have substantially prevailed in the arbitration, then upon such party’s request, the arbitrator will award such prevailing party the reasonable attorneys’ fees and expenses that it incurred in connection with the arbitration. The arbitrator may make rulings and resolve disputes as to the reimbursement of attorneys’ fees and expenses upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
18. Dispute Resolution Process.
18.1 Contact Us First. If you have a question, complaint, or concern about the Services, please contact us immediately. Our customer support team will work with you to answer your question or resolve your concerns. In the unlikely event that your concern or any dispute between you and Geotix cannot be resolved without intervention, the claim shall be handled pursuant to Section 8 and 9 of these Terms.
18.2 Notice of Dispute. A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice to Geotix must be addressed to the following address (“Notice Address”) and must be sent by certified mail: Geotix Network, Inc., Attn: Legal Department, 125 Park Street, Traverse City, CA 49684, USA. Notice to you will be addressed to a mailing, home or payment address currently on record with Geotix and must be sent by certified mail. If we have no records of such physical address, such notice may be delivered to your Geotix account email address. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If Geotix and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or Geotix may commence an arbitration proceeding.
19. Applicable Law and Jurisdiction.
These Terms are governed by the laws of the State of Michigan, without regard to its conflict of laws rules. These laws will apply no matter where in the world you live. But if you live outside of the United States, you may be entitled to the protection of the mandatory consumer protection provisions of your local consumer protection law. Geotix is based in Traverse City, MI, and any legal action against Geotix related to our Services and that is not precluded by the arbitration provisions in these Terms must be filed and take place in Grand Traverse County, Michigan. Thus, for any actions not subject to arbitration, you and Geotix agree to submit to the personal jurisdiction of the federal or state courts (as applicable) located in Grand Traverse County, Michigan.
20. Use of Geotix Communication Tools.
All content sent via the Communication Tools must be true and accurate. You must immediately respond to requests to update any recipient’s email preferences including opting out of receiving such communications via an accessible and unconditional unsubscribe link in each email where one is required. You may not send any emails to individuals who have unsubscribed.
Violation of these rules regarding Communication Tools may result in Geotix’s decision to limit or suspend your access to such tools.
21. Notices and Communications.
Geotix will send you any required Legal Notices and regular communications via email or regular mail to the addresses you provide to Geotix. If you wish to contact Geotix or deliver any notice, you can do so at Geotix Network, Inc., Attn: Legal Department 125 Park Street Ste 155, Traverse City, MI 49684, USA or via email to [email protected].
22. Modifications to the Terms or Services.
Geotix reserves the right to modify the Terms from time to time (collectively, “Modifications”). Modifications to the Terms including any changes to the IO will be communicated to you as described in section 21 above (“Modified Terms”). Modifications that are material will be effective thirty (30) days following the “Updated” date or such other date as communicated in any other notice to you. Modifications that are simply addressing new functions we add to the Services or which do not impose any additional burdens or obligations on you will be effective immediately. You are responsible for reviewing and becoming familiar with any Modifications. You will be required to agree to material Modifications by clicking “I Accept” as your electronic signature which binds the new Agreement between you and Geotix pursuant to the Modified Terms.
We are constantly evolving our products and services to better meet the needs of our Users. Because of this, we cannot guarantee the availability of certain product features or functionality. Geotix reserves the right to modify, replace or discontinue any part of the Services or the entire Service.
We may, without your consent or approval, freely assign these Terms and our rights and obligations under these Terms whether to an affiliate or to another entity in connection with a corporate transaction or otherwise.
24. Entire Agreement.
Except as otherwise set forth herein, these Terms, as defined above to include other referenced documents and the IO, constitute the entire agreement between you and Geotix and govern your use of the Services, superseding any prior or contemporaneous agreements, proposals, discussions or communications between you and on the subject matter hereof, other than any written agreement for Services between you and an authorized officer of Geotix relating to a specified event or events.
We appreciate any comments or feedback you wish to provide related to the Services (“Feedback”). Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
26. Other Websites; Linked Accounts; Third Party Offers.
We may include links to other Internet websites or resources throughout the Services. Geotix does not endorse any specific Content, advertising, offers, products, services or other materials available via links or resources provided by third parties. Furthermore, because Geotix has no control over the materials and content published on such websites and resources, you acknowledge and agree that We are not responsible for the availability of such websites or resources, and are not responsible or liable for any Content, advertising, offers, products, services or other materials on or available from such websites or resources, or any damages or losses related thereto, even if such websites or resources are connected with Geotix’s partners or third party service providers.
The waiver by either Party of a breach of or a default under any provision of this Agreement must be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
28. Relationship of the Parties.
Nothing in this Agreement shall be deemed or construed as creating a joint venture, partnership, employment, or fiduciary relationship between the Parties. Neither Party has any authority of any kind to bind the other Party. The relationship of the Parties is, and at all times shall continue to be, that of independent contractors.
29. Force Majeure.
If an event outside of the control of either Party makes it impossible or impracticable to perform under this Agreement, neither Party shall be liable for the non-performance that was prevented by such event. Except for the payment of monies due hereunder, neither Party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, Internet or other network “brownouts” or failures, power failures, and acts of civil and military authorities; provided that such Party gives the other Party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. To the extent that a force majeure has continued for ten (10) business days, User or Geotix may cancel the remainder of the IO(s), excluding payment obligations, without penalty.