SHOULD ANY DISPUTE ARISE CONCERNING THE TERMS OF THIS AGREEMENT THE PARTIES WILL SUBMIT THE DISPUTE TO ARBITRATION PROCEEDINGS PURSUANT TO S.C. CODE ANN. §15-48-10, ET SEQ., AS MODIFIED HEREIN
“Authorized User” refers to an employee, shareholder, member, partner, agent or contractor whom the Subscriber has expressly identified in the Subscription Agreement for purposes of registering an account (as described below) and who accesses the TEAMPHORIA website via a mobile device, laptop computer, smart TV, desktop computer, tablet computer or other similar device (each a “user device”). Any reference to “Subscriber,” “you,” or “your” in these Terms shall be construed as including both Subscriber and each of its Authorized Users, such that all obligations of the Subscriber shall be equally binding upon and enforceable against each Authorized User. Subscriber shall be responsible and liable for all acts and omissions of its Authorized Users in connection with their use of the Service and the Content and their compliance with the Subscription Agreement and applicable law.
The Service enables an Authorized User to recognize, communicate, vent, and evaluate with other Authorized Users creating User Content made available on the Service. “Content” includes any text, graphics, information and other materials you may view on, access through, or submit to the TEAMPHORIA website or the Service. Content that is submitted into the Service by an Authorized User is also referred to herein as “User Content,” and all other Content of the Service and the TEAMPHORIA website is referred to herein as “TEAMPHORIA Content.”
Subscriber is responsible for (i) procuring, installing, and maintaining at its expense, all necessary hardware, software, electrical and other physical requirements to use the Service via the Internet, including, without limitation, all devices, programs, hardware, software Internet access and telecommunications services (collectively, “Subscriber Services”); (ii) complying with all laws, rules and regulations related to the Subscriber Systems; and (iii) keeping user names and passwords secret and confidential, and, for any communications or transactions that are made, using the same.
Subject to the terms and restrictions contained in and the Subscription Agreement and applicable law, TEAMPHORIA grants you a limited personal, universe-wide, non-exclusive, non-assignable, non-sublicensable and non-transferable right to access, use and display the Service during the term of the Subscription Agreement, solely for the purposes expressly identified in the Subscription Agreement. You must retain intact all copyright, trademark, proprietary and other notices in these permitted activities. Any unauthorized use, copying, duplication, distribution, transmission, preparation of derivative works, reuse, reproduction, publishing, license, sublicensing, transfer, sale, rental, translation or other use of any Content or the Service without the express permission of TEAMPHORIA or the applicable Content owner or licensor, as the case may be, is expressly forbidden, and you so agree. You acknowledge that you may not sublicense, transfer, sell, rent or assign the Subscription. Subscriber shall not permit anyone other than an Authorized User to have access to or use of the Service. Any attempt to sublicense, transfer, sell, rent or assign the Subscription is null and void.
You agree that unless explicitly stated otherwise by TEAMPHORIA, any new products, software, data feeds, services, features, enhancements or additions or deletions to the Service are subject to these Terms. TEAMPHORIA may also impose limits on your account to certain features or restrict your access to parts of the Service without notice or liability.
Subscriber and each of its Authorized User(s) may submit User Content to the Service. Subscriber shall be solely responsible for all User Content submitted by its Authorized User(s) and the consequences of submitting and publishing such User Content on the Service, including re-publication by others. You affirm, represent and warrant that you own or have the necessary licenses, rights, consents and permissions to publish any User Content that you submit. You further affirm, represent and warrant that the User Content you submit to the Service will not contain any Prohibited Content.
TEAMPHORIA may remove or block any User Content identified in the Prohibited Content list below as well as any User Content similar to the Prohibited Content list. However, TEAMPHORIA undertakes no obligation to remove or block this User Content. “Prohibited Content” includes, but is not limited to, any User Content that:
TEAMPHORIA acts as a passive conduit for the online distribution and publication of User Content submitted by and between/ among Subscriber and its Authorized User(s), has no obligation to screen communications or information in advance, and is not responsible for screening or monitoring User Content or submissions posted by Subscriber or its Authorized User(s). TEAMPHORIA takes no responsibility and assumes no liability for any User Content that you or any third party submits or publishes on the Service. If TEAMPHORIA is notified or otherwise becomes aware of any User Content, which allegedly does not conform to the Subscription Agreement or is abusive, illegal, or disruptive, TEAMPHORIA may investigate the allegation and determine in good faith and in its sole discretion whether to remove or request the removal of the User Content (“Offensive Content”), suspend Subscriber’s or any such Authorized User’s use of or access to the Service, or disable or discontinue communications with the Service via which the the Offensive Content was submitted. In the event TEAMPHORIA determines, in its sole discretion, that a violation of the Subscription Agreement has occurred, TEAMPHORIA reserves the right to expel any Authorized User to prevent further access to the Service, issue warnings to Subscriber, or terminate or suspend the Subscription Agreement. TEAMPHORIA further reserves the right to remove, erase or overwrite Offensive Content or any information in connection therewith. TEAMPHORIA may take any action at any time with respect to User Content that it deems necessary or appropriate in its sole discretion if it believes it may create liability for TEAMPHORIA, harm any other Authorized User or may cause TEAMPHORIA to lose (in whole or in part) the services of its Internet Service Providers (“ISPs”), Application Service Providers (“ASPs”), or other suppliers.
Notwithstanding anything to the contrary contained in the Subscription Agreement:
Because authentication on the Internet is difficult, TEAMPHORIA cannot and does not confirm that each Authorized User is who such person claims to be or that their Registration Data is truthful, complete, or accurate. TEAMPHORIA facilitates an exchange of information, which Subscriber authorizes between/ among its Authorized Users. You access or use the Service and take any action concerning the transmission of your Registration Data or other User Content as your voluntary action for which you are exclusively responsible. There is always a certain risk when transmitting such information over the Internet or some other public or proprietary network, and you assume such risk by submitting information to the Service and by making or authorizing transmission to others. If you are a California resident, you waive, to the fullest extent permitted by applicable law, California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” TEAMPHORIA is under no legal obligation to, and generally does not, control the User Content provided by other Authorized Users or entities, which is made available through the Service. By its very nature, User Content posted or communicated by other Authorized Users may be offensive, harmful, inaccurate, or incorrect, and in some cases may be mislabeled or deceptively labeled. You agree to use caution and common sense when using or accessing the Service.
YOU AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK. THE SERVICE AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY LAW, TEAMPHORIA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING BUT NOT LIMITED TO, (1) ANY WARRANTIES OF TITLE INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND (2) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY AND COMPLETENESS OF THE CONTENT OR THE SERVICE.
TEAMPHORIA MAKE NO WARRANTIES OR REPRESENTATIONS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES OR INACCURACIES OF CONTENT, (2) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE AND/OR ANY AND ALL PERSONAL AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT SUBMITTED, POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. TEAMPHORIA DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE. YOU SPECIFICALLY ACKNOWLEDGE THAT TEAMPHORIA IS IN NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY AUTHORIZED USER OR OTHER THIRD PARTY AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL TEAMPHORIA, ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS, AFFILIATES, CO-BRANDERS, PARTNERS OR TEAMPHORIA CONTENT PROVIDERS BE LIABLE FOR ANY DIRECT (IN EXCESS OF THE LIMITATION OF LIABILITY HEREINAFTER PROVIDED), INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS, DATA, OR USE) IN ANY WAY DUE TO, ARISING OUT OF OR RELATING TO THE SERVICE, THE CONTENT, OR THE SUBSCRIPTION AGREEMENT, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TEAMPHORIA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE, CUMULATIVE LIABILITY OF TEAMPHORIA FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY SUBSCRIBER FOR THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
You agree, to the fullest extent permitted by applicable law, to forever hold harmless, defend and indemnify TEAMPHORIA, its members, managers, directors, officers, shareholders, other affiliated persons or entities, employees, contractors, co-branders, partners, agents and other Content providers (“Indemnified Parties”) from and against any and all loss, cost, claims, liabilities, damages, disputes, and expenses, including court costs and attorneys’ fees, related to (i) your violation of the Subscription Agreement or any information, software, files, messages or other Content submitted to or made available on the Service, (ii) your use of and/ or access to the Service, (iii) your violation of any third party right, including without limitation any copyright, property or privacy right, or (iv) any claim that your User Content caused damage to or infringes the intellectual property or privacy or other rights of a third party. The Indemnified Parties reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide defense to the Indemnified Parties in that matter, but shall remain responsible to reimburse TEAMPHORIA and each Indemnified Party for its defense expenses. This section shall survive the termination or cancellation of the Subscription Agreement or any termination or suspension of your use of or access to all or any aspect of the Service.
Some of the Service may require payment of fees. All Service fees are stated in U.S. dollars. Subscriber shall pay all applicable fees, as described in the Subscription Agreement, and any related taxes or additional charges. All fees are non-refundable unless expressly stated otherwise in the Subscription Agreement. All fee-based Services and virtual goods are provided “AS IS” with no warranties of any kind. You understand and agree that the payment for virtual goods grants you a limited license to use the virtual goods as specified on the Service.
In addition to any other rights granted to TEAMPHORIA herein, TEAMPHORIA reserves the right to suspend or terminate the Subscription Agreement and Subscriber’s access to the Service if Subscriber’s account becomes delinquent. Subscriber will be obligated to pay the balance due on account. Subscriber agrees that TEAMPHORIA may charge such unpaid fees and charges to Subscriber’s credit card or ACH. If Subscriber fails to comply with payment schedule, Subscriber will have 30 days to cure payment delinquency before TEAMPHORIA may exercise the right to suspend or terminate the Subscriber’s account. TEAMPHORIA reserves the right to go to collections for any outstanding amounts. TEAMPHORIA may change its prices at any time but will provide you reasonable notice of any such changes by posting the new prices on the Service and by sending you email notification. If you do not wish to pay the new prices, you may cancel the Service prior to the change going into effect. If both TEAMPHORIA and Subscriber have mutually agreed to pricing in Purchase Order for the Service, that document will control the price to be paid.
TEAMPHORIA may audit electronically or otherwise, with or without notice to Subscriber, the number of Authorized Users which utilize or access the Service, as well as the use and location of such Authorized Users. In the event that the number of users is found to be greater than the number licensed, Subscriber will be invoiced for the additional required licenses at TEAMPHORIA’s then-current rates for all fees due, as of the date that each unauthorized access commenced. In addition, Subscriber shall be charged interest at an annualized rate of eighteen percent (18%) of the unpaid fees calculated beginning with the date that the unlicensed access was obtained through the date of payment by the Subscriber, it being understood that Subscriber shall have five (5) business days from the date which TEAMPHORIA provides written notice to Subscriber to provide written notice to TEAMPHORIA that Subscriber is in good faith disputing the audit results (the “Audit Review Period”) and shall have an additional period of ten (10) business days commencing immediately upon the conclusion of the Audit Review Period to resolve any outstanding dispute (the “Audit Resolution Period”) of the audit results, acting reasonably. The parties agree that during the Audit Review Period and the Audit Resolution Period that no interest shall accrue on any disputed amounts.
The Subscription Agreement is governed by and shall be construed and interpreted in accordance with the laws of South Carolina, regardless of conflict of law principles, and the parties irrevocably and unconditionally submit to the exclusive jurisdiction and venue of the state and federal courts in and for South Carolina. The Subscription Agreement constitutes the entire agreement between you and TEAMPHORIA with regard to its subject matter, supersedes all prior or contemporaneous agreements, commitments, representations, writings, and discussions between you and TEAMPHORIA, whether oral or written, and there are no other agreements, representations, warranties, or commitments which may be relied upon by either party. Neither you nor TEAMPHORIA shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or similar force majeure events. If a court of competent jurisdiction finds any provision hereof invalid or unenforceable, that provision will either be amended to achieve as nearly as possible the intent of the parties, or if amendment is not possible the offending provision shall be deemed struck, and the remainder of the Subscription Agreement will remain in full force and effect. The captions and headings in the Subscription Agreement are for convenience only and shall not affect the construction and interpretation of any provision of the Subscription Agreement.
The parties agree that any claim, dispute, or controversy arising out of or relating to the terms and conditions of the Subscription Agreement, that cannot otherwise be resolved in good-faith negotiations, shall be resolved in accordance with South Carolina’s Uniform Arbitration Act. The parties shall mutually agree on the selection of one arbitrator who is unrelated to either party. All arbitration proceedings shall take place in the Charleston, South Carolina area. The arbitrator’s costs shall be borne equally by both parties, and each party will be responsible for its own costs associated with preparation, discovery, and additional expenses to prosecute or defend an arbitration claim. The prevailing party in the arbitration proceeding will be entitled to recover its reasonable costs and attorney’s fees, in addition to any other relief granted as determined by the arbitrator. The arbitrator shall be bound by the express sections of the Subscription Agreement in deciding any arbitration claim. The arbitrator’s decision shall be final.