terms of use
This document was last modified on September 4, 2009.
THE VYLLIJ SERVICE (THE “SERVICE”) IS OWNED AND OPERATED BY WILLEY INDUSTRIES LLC DBA REDPEAR. (“REDPEAR”) AND IS PROVIDED TO YOU UNDER THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE ( THIS “AGREEMENT”). BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS AND CHECKING THE “AGREEMENT” CHECKBOX, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE SERVICE. YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AT LEAST 18 YEARS OF AGE AND AUTHORIZED TO SIGN FOR AND BIND THE CONTRACTING PARTY AND (II) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH BELOW. IF YOU DO NOT AGREE, DO NOT CONTINUE WITH THE ACCEPTANCE PROCESS.
1. GENERAL
You are deemed to have accepted this Agreement upon your submission of a registration form for the Service. This Agreement is made up of these terms, our End User License Agreement, available at http://vyllij.com/end-user-license-agreement and our Privacy Policy available at http://vyllij.com/privacy-policy or as otherwise specified on the Core website http://www.vyllij.com (the “Website”), all of which are incorporated herein by reference.
2. DEFINITION OF SERVICE
For purposes of this Agreement, the term “Service” shall mean the Vyllij service, including the Vyllij application, technical support, email and other features, products and services provided by redPear (or third party vendors).
3. AUTHORIZED USER, USE, AND RESPONSIBILITIES
3.1 You represent and warrant that the information you supply to us is correct and complete. You understand that redPear relies on the information you supply and that providing false or incorrect information may result in Service withholding or delays or the suspension or termination of your customer account. You shall indemnify and defend redPear for any harm or damages that result from any provision by you of false or incorrect information. You shall promptly notify redPear whenever your personal or billing information changes (including for example, your name, address, telephone number, and credit card number and expiration date).
3.2 You shall be responsible for the Services provided through your account, including any secondary accounts or sub-accounts registered to your primary account. You understand this means that you accept full liability and responsibility for the actions of anyone who uses the Service via your account, or any secondary accounts, with or without your permission. You shall indemnify and defend redPear for any harm or damages that result based on use of the Service via your account, or any secondary accounts.
3.3 You shall not resell the Service, use it for high volume purposes, or engage in similar activities that constitute such (commercial or non-commercial), or use it as a virtual data storage center, as determined solely by redPear.
3.4 You shall not cause redPear or any of its authorized service representatives to participate in, or contribute towards, any activity that is illegal under any applicable federal, state or local law, rule or regulation, and you shall indemnify and defend redPear from and against any harm or damages caused by any illegal activity in which you may engage.
4. PRIVACY POLICY
redPear shall treat your personal information in accordance with its current Privacy Policy http://vyllij.com/privacy-policy, as amended from time to time in the sole discretion of redPear. It is redPear’s policy to respect your privacy. Therefore, in addition to the privacy of registration data as set forth in the Privacy Policy, redPear will not monitor, edit, or disclose the contents of your private data unless required to do so by law or in the good faith belief that such action is necessary to: (1) conform to the edicts of the law or comply with legal process served on redPear; (2) protect and defend the rights or property of redPear; or (3) act under exigent circumstances to protect the personal safety of other users of the Service or the public. You acknowledge and agree that redPear neither endorses the contents of any communications nor assumes responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising there from or any crime facilitated thereby. You acknowledge and agree that certain technical processing of content may be required to: (1) send and receive messages; (2) conform to connecting networks’ technical requirements; (3) conform to the limitations of the Service; or (4) conform to other similar requirements.
5. AVAILABILITY OF SERVICE
5.1 The Service may not be available at all times, and may not be available in the format generally marketed, and some personal computers may not be available to receive the Service.
5.2 redPear, its suppliers and licensors may, at any time, without notice or liability to you, restrict in whole or in part the use of the Service or limit availability in order to perform maintenance activities and to maintain session control or for any other purpose.
6. TERM AND TERMINATION
This Agreement goes into effect upon your acceptance of this Agreement as set forth in Paragraph 1 and shall continue until terminated by either party as permitted by this Agreement. Billing for your Service shall apply on a monthly basis.
6.1 Termination of Service.
6.1.1 Subscription Service. Either you or redPear may terminate this Agreement without cause by giving notice to the other party. Termination by you shall be effective upon your notice to redPear. Activation fees paid at the initiation of your service, if any, shall not be refundable. Termination by redPear shall be effective thirty (30) days after the date of notice to you, except as otherwise provided in this Agreement. In the event of termination by redPear, for any reason, you shall be required to pay the remaining balance of the charges applicable to your Service through the effective date of termination. You acknowledge that any Software that you may install as part of the Service may cease to operate, update or function properly after termination of any subscription.
6.1.2 Termination and/or Suspension by redPear. If, in the sole discretion of redPear: (a) you are in breach of any of the terms of this Agreement (including but not limited to, all redPear policies regarding abuse and acceptable use of the Service and all end user license agreements); (b) your use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, redPear’s network, or the use and enjoyment of other users; (c) redPear receives an order from a court to terminate your Service; (d) redPear for any reason ceases to offer the Service; or (e) you are no longer a redPear customer, then redPear at its sole election may terminate or suspend your Service immediately without notice.
6.1.3 Terminated Account. redPear, in its sole discretion, shall have the right refuse to accept your request for Service, renewal or re-subscription following a termination or suspension of your use of the Service at any time.
YOU WILL LOSE ACCESS TO YOUR STORED DATA AND ALL OF YOUR STORED DATA UPON TERMINATION OF YOUR ACCOUNT. UPON TERMINATION, YOU ACKNOWLEDGE AND AGREE THAT REDPEAR SHALL HAVE THE IMMEDIATE RIGHT WITHOUT LIABILITY OF ANY KIND TO DELETE AND PURGE ALL OF YOUR DATA AND INFORMATION THAT WAS STORED BY REDPEAR AND SUCH DATA AND INFORMATION SHALL BE UNAVAILABLE TO YOU FOR FUTURE USE AND SHALL NOT BE RESTORED IN ANY EVENT.
7. PRICING AND PAYMENT
7.1 Pricing and Fees. redPear fees and charges for the Service(s) you select are supplied to you during the ordering process and are available on the Website http://vyllij.com/account unless otherwise provided for in this Agreement. You agree to pay the charges applicable to your selected Service plan, as well as any applicable taxes and other charges. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest, and charges due to insufficient credit or insufficient funds. Monthly recurring charges shall be billed one month in advance; usage charges, if applicable, shall be billed in arrears, and pre-purchase plans shall be billed in advance, if applicable. redPear or its agent shall charge your credit card on a monthly basis as set forth during the ordering process. redPear does not accept debit cards for payment of any charges or fees.
7.2 Discontinuation of Service for Nonpayment. Service to you may be denied or discontinued without notice at any time if your credit card provider denies or discontinues providing credit to you for any reason, or you fail to make payment when due or provide us with a new credit card expiration date before the existing one expires or you fail to provide us with a new credit card expiration date when the existing one expires. If your credit card provider denies or discontinues providing credit, you will be sent a notice of termination of Service and you will have 60 days to download a .csv file containing your data.
7.3 Late Fees. If any portion of your bill is not paid by the due date, redPear shall have the right to charge you a late fee on unpaid balances and may also terminate or suspend your Service without notice. The late fee shall be the lesser of one and one-half percent (1.5 %) per month, or the highest rate permitted by law. In the event redPear utilizes a collection agency or resorts to legal action to recover monies due, you shall reimburse redPear for all expenses incurred to recover such monies, including attorneys’ fees.
7.4 Local telephone, Toll and Long Distance Charges. Whether you are accessing the Service from your home or away from your home, you are responsible for all telephone charges.
7.5 You have the option to change your Service(s) at any time by notifying us, provided that you qualify for and comply with all requirements of that Service.
7.6 Your subscription to the Service(s) shall automatically renew on a monthly basis until redPear is notified, via phone or email, of your request to cancel service. Each user account is associated with a single domain and a single user. There are no refunds on partial months or pro-rated cancellation of Service.
8. LIMITATIONS ON USE OF THE SERVICE
8.1 You agree that your use of the Service is your sole responsibility, is solely at your own risk, and is subject to all applicable local, state, national and international laws and regulations.
8.2 You agree that the Internet is not owned, operated or managed by, or in any way affiliated with redPear and redPear is not responsible and has no control over the information or materials accessible via the Internet through use of the Service. You further agree that redPear does not own or control all of the various facilities and communications lines through which service may be provided, nor does redPear guarantee access to or through websites, servers or other facilities on the Internet, whether or not such facilities are owned or controlled by redPear.
8.3 redPear recognizes that your data is important and takes industry-standard, commercially reasonable measures to protect your data on the Service. However, you agree that redPear cannot and does not guarantee or warrant that data will not be lost or corrupted or free of defects, infection or viruses, worms, Trojan horses or other code that manifest contaminating, malicious or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Service for the reconstruction of any lost data.
8.4 You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the Internet. redPear is not liable for invalid destinations, transmission errors, or corruption or security of your data.
9. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES
9.1 IN NO EVENT SHALL REDPEAR, ITS OFFICERS, DIRECTORS, EMPLOYEES, STOCKHOLDERS, SUBSIDIARIES, ATTORNEYS OR AFFILIATES BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE OR YOUR DATA, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF REDPEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY THIRD PARTY. THE MAXIMUM CUMULATIVE LIABILITY OF REDPEAR TO YOU UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNTS PAID BY YOU DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING ANY CLAIM.
9.2 THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
9.3 Notwithstanding any language to the contrary in this Agreement, the Service is provided to you “AS IS” and “AS AVAILABLE” and without any warranty from redPear of any kind. REDPEAR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT, STATUTORY OR BY OPERATION OF LAW) WITH RESPECT TO THE SERVICE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, SUITABILITY ACCURACY, SECURITY, NON-INTERFERENCE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO ADVICE, SUPPORT OR INFORMATION DELIVERED BY REDPEAR OR ITS REPRESENTATIVES TO YOU SHALL CREATE ANY WARRANTY.
9.4 REDPEAR DOES NOT WARRANT THAT THE SERVICE PROVIDED BY REDPEAR HEREUNDER SHALL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR SHALL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. REDPEAR SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE.
10. INDEMNIFICATION
You shall defend, indemnify and hold harmless redPear from and against all liabilities, damages, costs and expenses, including reasonable attorney’s fees, relating to or arising from: (1) your breach of this Agreement; (2) your use of the Service; (3) violation of applicable laws or regulations; (4) your use of the Service or the Internet or the placement or transmission of any message, information, software or other materials on the Internet; (5) your negligent acts, errors, or omissions; (6) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, or the Service; or (7) claims for infringement of any intellectual property rights arising from the use of the Service.
11. NOTICES
11.1 Notices required under this Agreement by you shall be provided to the Customer Service Department reachable via email at questions@vyllij.com. Notices by redPear to you shall be deemed given: (a) when sent to your registered email address, or (b) when deposited in the United States mail addressed to you at last-known address or (c) when hand delivered to your home, as applicable.
11.2 With regard to electronic communications, you and redPear further agree that: (a) the User ID and/or alias of a sender, contained in an electronic communication (“email”), is legally sufficient to verify the sender’s identity and the authenticity of the communication; (b) an email sent containing your User ID and/or alias establishes you as its originator and has the same effect as a document with your written signature on it; and (c) an email or any computer printout of it, is a valid proof of the validity of the original content of the electronic communication.
12. GENERAL PROVISIONS
12.1 The parties agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination and shall remain in effect for a period of one (1) year thereafter or the period specified in this Agreement, if longer.
12.2 redPear shall not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.
12.3 You and redPear agree that the substantive laws of the State of Arizona, without reference to its principles of conflicts of laws, shall be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AGREE TO SUBMIT ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT TO FINAL BINDING ARBITRATION IN ACCORDANCE WITH THE THEN-EXISTING COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION, BEFORE A SINGLE ARBITRATOR SELECTED FROM THE INTERNATIONAL ARM OF THE AMERICAN ARBITRATION ASSOCIATION. Except as otherwise required by law, including New York laws relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
12.4 redPear’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
12.5 This Agreement and all other policies posted on the Website, which are fully incorporated into this Agreement by reference, constitute the entire agreement between you and redPear with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
