These Customer Terms of Service (these “Customer Terms”) are a legal agreement between you and Verblio, Inc. (“Verblio”, “we”, “our”, or “us”) governing your access to and use of the Verblio’s website (the “Site”) and the online and offline services which Verblio agrees to provide to you in connection with the Site (the “Services”). Certain sections of these Customer Terms apply specifically to features and functionality offered by Verblio. Those sections do not apply to you unless you sign up for the specific Service to which they relate.
You represent and certify that you are of legal age to form a binding contract and are not a person barred from receiving Services under the laws of the United States or other applicable jurisdictions. To register as a user of the Services you must be 18 years or over. In the event that you are agreeing to these Customer Terms on behalf of a third party entity, you represent and warrant that you have sufficient right to bind such third party to these Customer Terms, in which case, all references to “you” in these Customer Terms shall be references to such third party.
BY CLICKING [I AGREE], OR BY OTHERWISE ACCESSING THE SITE OR USING ANY OF THE SERVICES YOU AGREE TO BE BOUND BY THESE CUSTOMER TERMS.
In the case of inconsistencies between these Customer Terms and information included in any other materials related to the Site or the Services (e.g., promotional materials), these Customer Terms will always govern and take precedence.
1.1 “Agency” means a Customer that uses the Services to provide Content Posts for its clients and when registering its Account has identified itself as an Agency.
1.2 “Content Post” means an original Submission that is selected for publishing.
1.3 “Credit” means the number of Content Posts available to be selected for publishing.
1.4 “Submission Request” means a request by you for a Submission.
1.5 “Provider” means a third party that prepares and submits Content Posts in response to a Submission Request.
1.6 “Submission” means a writing prepared by a Provider for you or, if you are an Agency, prepared for your customers.
1.7 “Third Party Content” means any content that you request to be provided in connection with a Content Post that is owned by a third party.
(a) Description. Verblio provides a platform through which you can request that Providers prepare and submit original Submissions that relate to you, your business, or the topics that you’ve requested. You may select certain Submissions to be published. Further, Verblio may select certain Submissions to be published on your behalf if: (a) you have authorized Verblio to do so in connection with a particular service offering such as a scheduled plan or a managed service offering, (b) if you are unresponsive to Submissions, following notice, or (c) if you have used a Submission, in whole or in part, without affirmatively selecting the Submission for publishing. All Submissions selected for publishing, by you or by Verblio on your behalf, are referred to as Content Posts.
2.2 Feature Specific Terms. Depending on the particular Services you have selected to receive, the Services may include additional features and services such as:
(a) +Photo: you will receive photo(s) for each Content Post based on plan specifics as listed on the Site. Verblio does not guarantee the availability of specific photos or types of photos. Verblio is not responsible for providing substitute photos if our offerings are not suitable for your needs. Photos provided will constitute Third Party Content (defined below).
(b) +Optimize: Content Posts will be published by Verblio. You are responsible for entering and maintaining up-to-date publishing credentials for the site on which Content Posts are to be published. If no credentials are present, Verblio will not be responsible for optimizing or publishing Content Post. Verblio agrees only to make changes to your site as necessary to provide the Services. Verblio will use best efforts to maintain the security and confidentiality of login credentials for your site, but is not liable for unauthorized access to the site. Customers using this plan will also need to abide by all terms applicable to +Photo.
(c) Verblio Complete: Verblio will manage your content needs as specified on this Site. Verblio will select Content Posts for publishing in coordination with Customer. However, if Customer is unresponsive to Verblio communications within a reasonable amount of time, Content Posts will be selected for publishing and delivered to the Customer without Customer input. Customers using this plan will also need to abide by all terms applicable to +Photo and +Optimize.
2.3 Credits. Your ability to place Submission Requests and to purchase Content Posts is based on the number of Credits you have accumulated. You may purchase a single Content Post for each Credit you have accumulated. The number of Credits you accumulate depends on the Services you have selected. Except as
prohibited by law, Unused Credits expire upon termination or expiration of the applicable Subscription. Further, and except as prohibited by law, credits will automatically expire six months after issue or as specified by your plan. Except as required by law or as set forth in these Customer Terms, Credits are not refundable or redeemable for cash.
2.4 Content Posts; Ownership. Verblio requires that all Submissions be original works of authorship. You may have the ability to select Content Posts from multiple Submissions. Subject to your compliance with these Customer Terms upon selecting a Content Post for publishing through the Site, Provider grants to you all of its right, title, and interest in and to such Content Post (exclusive of Third Party Content requested by you). It is your responsibility to review and request edits on all Submissions before purchase. When you select a Content Post from a Provider or when a Content Post is selected on your behalf, you are contracting directly with the applicable Provider for the Content Post. Except as expressly set forth in these Customer Terms, Verblio makes no representation or warranties with respect to any Content Post. Verblio does not endorse any Provider Submissions and expressly disclaims any and all liability in connection with such Submissions. You understand and agree that you have no right, title, or interest in any Submission until it is selected as your Content Post. You may not publish, disclose, distribute, access, or otherwise attempt to use a Submission prior to it being selected for publishing except that you may access and review the Submission for purposes of determining whether to purchase the Submission or to request changes to the Submission. Your publication, disclosure, or distribution of a Submission, in whole or in part, prior to selecting it as your Content Post will constitute your purchase of the Submission as your Content Post and may subject your Account to immediate termination, in Verblio’s discretion.
2.5 Third Party Content. To the extent that Verblio provides Third Party Content in connection with a Content Post, you agree to be bound by the terms and conditions applicable to the Third Party Content and agree to indemnify Verblio from and against any claim, action, or demand arising in connection with your violation of the same. Verblio will not include any Third Party Content in any Content Post without your request.
2.6 Non-Circumvention; Non-Solicitation. For the period during which you maintain an Account with Verblio and have a right to use the Services, and for a period of two (2) years thereafter (“Restricted Period”), you will not directly or indirectly solicit, induce, or attempt to induce any Provider to terminate or alter his or her relationship with Verblio. You further agree that during the Restricted Period you will not, directly or indirectly hire or attempt to hire, as an employee, contractor, or otherwise, any individual who is, or during the preceding twelve (12) months was, a Provider. Because the harm to Verblio would be exceedingly difficult to determine in the event of a breach by you of the foregoing restriction, the parties agree that, in the event of such a breach, you shall pay to Verblio, as liquidated damages and not as a penalty. The penalty for each violation of this Section is the greater of: (a) $5,000 or (b) the annualized price of Verblio’s highest Subscription level for the Services
2.7 Availability. Verblio uses reasonable efforts to ensure that the online features of the Services are available 24 hours a day, 7 days a week. However, there will be occasions when the Services will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of Verblio. Verblio will use reasonable commercial efforts to minimize such disruption where it is within the reasonable control of Verblio. You agree that Verblio shall not be liable to you for any unavailability, modification, suspension or discontinuance of the Service. You are responsible for obtaining access to any Services and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Services.
2.8 Registration. You may access certain online features of the Services by registering an account on the Site (your “Account”) and signing up for one or more subscriptions for the Services (each a “Subscription”). You may log into your Account using a unique username and password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party. You are solely responsible for any activities or actions taken under your username, whether or not you have authorized such activities or actions. You agree that the information that you provide to Verblio about yourself upon registration of your Account, and at all other times, (“Customer Data”) will be true, accurate, current and complete, and you further agree that you will maintain and promptly update the Customer Data to ensure that it remains true, accurate, current and complete. You may not impersonate any other person or use a username or password that you are not authorized to use. Verblio reserves the right to require you to change your password for any reason at any time. If you become aware of any unauthorized use of your Account, you agree to notify Verblio immediately at [email protected]
2.9 Site License. Subject to these Customer Terms, Verblio grants you a personal, limited, revocable, non-exclusive and non-transferable license to access and use the Site and Services. This license is exclusive to you and you may not sublicense the use of the Site. Verblio expressly retains all ownership rights, title and interest in and to all aspects of the Site, including, but not limited to any software or technology enabling the Site or Services and all current and future patents, copyrights, trademarks, trade secrets, know-how, and other proprietary rights included or embodied in the Site. You may not modify the Site, create derivative works of the Site, or reverse engineer, reverse compile, reverse assemble or do any other operation with the Site that would reveal any source code, trade secrets, know-how or other proprietary information. This license shall not be construed or interpreted as granting or providing rights to you to use, reproduce, modify, distribute, perform, display, possess or control the source code or any other aspect of the Site. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Site or displayed by, on, or in the Site. You may use the Site only while these Customer Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Site after any termination or expiration of your agreement to these Customer Terms for any reason.
3.1 Copyright in Your Content. In connection with your access to, or use of, the Site or the Services, you may have the opportunity upload to the Site certain information, data, text, photographs, graphics, messages, or other materials (collectively “Content”). For example, you may be provided the opportunity to submit specific images or text to be included in Content Posts. Verblio does not claim ownership rights in any such Content that you make available. By submitting your Content and accepting the consideration set forth in these Customer Terms, you unconditionally grant to Verblio and each applicable Provider a non-exclusive, perpetual, irrevocable, worldwide, fully-paid, transferable right and license, with the right to sublicense through multiple levels of sublicensees, under all of your intellectual property rights in the Content, to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Content in any medium or format in order to provide the Services. As between you and Verblio, you remain the owner of all Content that you make available in connection with the Services. You represent and warrant to Verblio that you are the owner of the copyright to the Content or that you have written permission from the copyright owner to use such Content. In addition, you warrant that all moral rights in any Content have been waived. You agree to indemnify and hold Verblio, its directors, officers, employees, and shareholders, and each Provider harmless for any violation of this provision and from any claim, action, or demand arising in connection with Verblio’s or a Provider’s use of the Content as permitted in this Section.
3.2 Review of Content and Materials. Verblio reserves the right to remove, delete, move, or edit Content that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of the law, including but not limited to copyright or trademark law, or otherwise unacceptable.
(a) You cancel your Account within thirty (30) days of registration;
(b) You have not selected any Content Posts in any manner;
(c) You request a refund within thirty (30) days of registering your Account;
(d) You have not previously cancelled an Account;
(e) You have not used the Service under any other Account during the thirty (30) days preceding your request for a refund; and
(f) You have not incurred additional charges from Verblio beyond initial payment of fees;
Refunds will not be given for more than one Subscription per Account. Refunds will not be given on any add-on plans or services. No refunds will be given for Content Posts purchased even if not published. Verblio is not responsible for a lack of Submissions or for Submissions not meeting your needs.
12.1 You agree to indemnify, and hold Verblio, its officers, directors, employees, agents, and Providers harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney's fees and costs, arising out of or in any way connected with (a) your access to or use of the Site or Services; (b) your violation of these Customer Terms; (c) your violation of any third party right, including without limitation any intellectual property right or any publicity, confidentiality, property or privacy right; or (d) any claim that your use of the Site or Services caused damage to a third party.
12.2 YOU ACKNOWLEDGE THAT YOUR ACCESS TO AND USE OF THE SITE OR SERVICES AND ANY RELIANCE UPON EITHER IS AT YOUR SOLE RISK. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL VERBLIO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA OR OTHER INTANGIBLES, EVEN IF VERBLIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM THE USE OR THE INABILITY TO USE THE SITE OR THE SERVICES, FROM ANY CHANGES TO THE SITE OR THE SERVICES OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT. YOU SPECIFICALLY ACKNOWLEDGE THAT DOWN-TIME AND COMPUTER VIRUSES ARE RISKS INHERENT IN THE USE OF THE INTERNET AND SOFTWARE PRODUCTS, AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM THESE POSSIBLE HARMS. YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT YOU MAY BE DISCLOSING SENSITIVE, PRIVATE AND CONFIDENTIAL INFORMATION ABOUT YOURSELF OR YOUR ORGANIZATION IN YOUR USE OF THE SITE AND THE SERVICES AND YOU AGREE TO ASSUME RESPONSIBILITY FOR ANY HARM OR DAMAGES OF ANY KIND OR CHARACTER WHATSOEVER RESULTING FROM YOUR RELEASE OF SUCH CONTENT.
12.3 IF YOU ARE DISSATISFIED WITH THE SITE OR THE SERVICES OR WITH ANY OF THESE CUSTOMER TERMS, OR FEEL VERBLIO HAS BREACHED THESE CUSTOMER TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICES. THE TOTAL LIABILITY OF VERBLIO TO YOU FOR ANY CLAIM ARISING FROM OR RELATING TO THESE CUSTOMER TERMS OR USE OF THE SITE OR THE SERVICES SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IT IS THE INTENTION OF YOU AND VERBLIO THAT THIS PROVISION BE CONSTRUED AS BEING THE BROADEST LIMITATION OF LIABILITY CONSISTENT WITH APPLICABLE LAW.
12.4 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
13.1 Modification. Verblio may modify these Customer Terms at any time. Modifications become effective immediately upon the first to occur of: (a) your first access to or use of the Site or Services after the “Last Updated” date at the top of these Customer Terms, (b) the first renewal of your Subscription following
delivery of notice of the change to your email address on file with Verblio. Your continued access to or use of the Site or Services, or the renewal of your Subscription, after the modifications have become effective will be deemed your conclusive acceptance of the modified Customer Terms. If you do not agree with the modifications, do not access or use the Site or Services.
13.2 Applicable Law and Dispute Resolution. These Customer Terms shall be governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. If you believe that Verblio has not adhered to these Customer Terms, please contact us by e-mail at [email protected] We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation. If you and Verblio are unable to reach a resolution to the dispute, you and Verblio will settle the dispute exclusively under the rules of the American Arbitration Association (www.adr.org) at its Denver, Colorado office. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. YOU AND VERBLIO AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN VERBLIO AND YOU INDIVIDUALLY. YOU ACKNOWLEDGE AND AGREE THAT YOU AND VERBLIO ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Verblio otherwise agree in writing, an arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Site or the Services or these Customer Terms must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred.
13.3 No Resale of Services. Except as expressly permitted in these Terms, you agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Site or use of the Services.
13.4 Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between you and Verblio or any Provider as a result of these Customer Terms or use of the Site or the Services.
13.5 Enforcement. If any legal action is brought to enforce these Customer Terms, the prevailing party will be entitled to reimbursement of its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the other party; provided, however, that such recovery is to be proportional to the amount of claims on which the party actually prevailed in relation to the total amount of claims alleged, pursued, or brought by that party.
13.6 Force Majeure. Verblio will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond Verblio’s reasonable control.
13.7 Waiver. The failure of Verblio to enforce any right or provision in these Customer Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by Verblio in writing.
13.8 Construction. The headings of Sections of these Customer Terms are for convenience and are not to be used in interpretation.
13.9 Contact. Verblio is located in Boulder, Colorado. Any questions, comments or suggestions, including any report of violation of these Customer Terms should be provided to the Administrator as follows:
By E-mail: [email protected]
By Postal Mail: 5353 Manhattan Cir., Ste. 200, Boulder, CO 80303
13.10 Entire Agreement. These Customer Terms constitute the entire agreement between you and Verblio and govern your use of the Site and the Services, superseding any prior agreements between you and Verblio. The failure of Verblio to exercise or enforce any right or provision of these Customer Terms shall not constitute a waiver of such right or provision. If any provision of these Customer Terms is found by a court of competent jurisdiction to be invalid, you and Verblio nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Customer Terms shall remain in full force and effect.
CODE OF CONDUCT
This Code of Conduct is a part of the Customer Terms of Service governing your access to, and use of, the Services provided by Verblio. Capitalized terms used but not disclosed in this Code of Conduct have the meaning provided in the Customer Terms of Service.
The Services are designed to assist you in maintaining your desired online presence and require your active participation and management. You agree not to misuse the Services or help or encourage any other party to misuse the Services. For example, and without limitation, you may not: