Mediavine Marketplace Terms of Services

PLEASE READ THESE TERMS OF SERVICE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THE TERMS OF SERVICE CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

These Terms of Service are an agreement between Mediavine® Inc. (“Mediavine,” “we” or “us”) and you (if registering as an individual) or the entity you represent (if registering as a business) (“you”) for which shall govern your use of the Mediavine Marketplace found at INSERT URL (the “Service” or the “Marketplace”).By creating an account and checking the “I agree” box or accessing or using the Service, you (1) agree that you have read, understood and agree to be bound by these Terms of Service and License Terms; (2) agree that the Terms of Service and License are a binding agreement between you and us; and (3) have read and acknowledge how we collect and use your information as set forth in our Privacy Policy. The Terms of Services apply to all visitors, users, buyers and any others who access the Service.

We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date the Terms of Service were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.

Registration and Accounts

To access the Service, you must register for an account through the Service (the “Account”). To register for an Account, you must be more than 18 years of age and fully able and competent to enter into, and to abide by and comply with these Terms of Service.If you are under 18 years of age, then please do not use the Service or the Assets.

If you open an account on behalf of an entity, then (a) “you” includes you and your company, and (b) you represent and warrant that you are an authorized representative of that company with the authority to bind the company to these Terms of Service, and that you agree to these Terms on your company’s behalf.

If you choose to create an Account, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the registration form. Registration data and certain other information about you are governed by our Privacy Policy. If you have any reason to believe your Account information has been compromised or shared with an unauthorized third-party, it is your obligation to immediately notify Mediavine at marketplace@mediavine.com. Mediavine is not liable for any liability, damage, cost, loss or expense caused by or in connection with unauthorized use of your Account.

You may not share login details or Account access with any third-party. You are solely responsible for any activity that occurs in your Account. Mediavine reserves the right to monitor your use of the Account and the Assets for compliance with these terms and conditions.

You agree to be financially responsible for your Account and to comply with your responsibilities and obligations as stated in these Terms of Service and in any policies or procedures posted on the Mediavine website. You agree that all orders placed are non-cancellable and non-refundable.

To the extent the Service or any portion thereof is made available for any fee, you will be required to provide Mediavine or Mediavine’s third-party payment provider with information regarding your credit card or other payment instrument. You represent and warrant to Mediavine that such information is true and that you are authorized to use the payment instrument. You will promptly update your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Mediavine the amount that is specified in accordance with the service you have chosen. If you dispute any charges you must let Mediavine know within sixty (60) days after the date that Mediavine charges you.

You agree to be contacted via the electronic mail address that is listed in your Account. By using the Service, you are granting Mediavine permission to access your Account and those messages, data, information, text, graphics, audio, video or other material posted/uploaded/transmitted to or through the Service using your account, solely in connection with the provision of Services.

Fees.

Certain aspects of the Service may be provided for a fee. If you elect to use paid aspects of the Service, you agree to the posted pricing and payment terms as we may update them from time to time. Mediavine may cancel subscriptions without prior notice if we are unable to process payment through the provided method of payment.

For certain aspects of the Service for which a subscription fee is payable, your subscription will auto-renew at the end of each subscription term until you cancel or downgrade your plan. You authorize Mediavine to charge the applicable subscription fees at the then-applicable rate and taxes for the subscription to the credit card on file at each renewal term.

You may cancel your Account at any time; however, there are no refunds for cancellation. In the event that Mediavine suspends or terminates your account or these Terms for any reason, you understand and agree that you shall receive no refund.

You also understand and agree that once you cancel your Account, you are not permitted to exploit any product files associated with the Account. Upon termination, all licenses to such product files and underlying content are revoked, and you are not authorized to use the product in any form or for any purpose whatsoever.

Use of the Service.

In the Mediavine Marketplace, you may purchase a subscription to access the paid features of Mediavine created digital products, such as WordPress theme frameworks and plug-ins (the “Assets”). Subject to these Terms, you are granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your use only as permitted by the features of the Service and by these Terms. Mediavine reserves all rights not expressly granted herein in the Service. Mediavine may terminate this license at any time for any reason or no reason.

License for Use: The Assets are licensed under the GNU general public license (http://www.gnu.org/licenses/gpl.html) and the Asset’s terms of use. To access certain features, updates and support for the Assets, you must purchase a subscription (the “Subscription”).

User Conduct: Mediavine reserves the right to investigate and take appropriate legal action against anyone who, in Mediavine’s sole discretion, violates this provision. You agree not to engage in any of the following activities

1. email or otherwise upload any content through the Service that:

(i) infringes any intellectual property or other proprietary rights of any party;

(ii) you do not have a right to upload under any law or under contractual or fiduciary relationships;

(iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(iv) poses or creates a privacy or security risk to any person;

(v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation;

(vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or

(vii) in the sole judgment of Mediavine, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Mediavine to any harm or liability of any type;

(b) interfere with or disrupt the Service, the servers or networks connected to the Service and Assets, or disobey any requirements, procedures, policies or regulations of networks connected to the Service and Assets;

(d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

(e) solicit personal information from anyone under the age of 18;

(f) harvest or collect email addresses or other contact information of viewers by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

(g) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;

(h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or

(i) copy, distribute or disclose any part of the Service in any medium;

(j) bypass the measures we may use to prevent or restrict access to the Service, obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Assets and Service.

Use of Third Party Services

As a part of our Service, Mediavine may offer links to web sites operated by various third parties and is not responsible or liable for any acts or omissions created or performed by these third parties. Mediavine does not operate or control in any way any information, software, products or services available on such web sites. Mediavine’s inclusion of a link to a web site does not imply any endorsement of the services or the site, its contents, or its sponsoring organization.

Intellectual Property Rights

Mediavine owns all rights in (1) the Assets and the Service (2) any technology associated with the Assets and/or the Service, and (3) Mediavine’s trademarks and any goodwill, derivative works, improvements and/or intellectual property associated with either the Assets or the Service. You will not copy, modify, distribute, sell, or lease the Assets and/or Service or any part thereof or attempt to unlock or bypass any encryption or other protections used by Mediavine. You acknowledge that the Assets and/or Service constitute Mediavine trade secrets and confidential information. You will not use any such information to duplicate the Assets and/or Service or the results of the Assets and/or Service or to develop a similar service, or to enable any third party to do any of the foregoing. You shall not develop or use any alternative service that is substantially similar to the Assets and/or Service. Any violation of this provision shall be deemed to be an infringement of Mediavine’s intellectual property and may result in termination of your Account at Mediavine’s sole discretion and/or taking any legal action that Mediavine may deem necessary.

You must not use the Assets and/or Service in a way that causes, or may cause, damage to the Assets and/or Service or impair the availability of access to the Assets and/or Service. You must not decompile, reverse engineer, disassemble or otherwise reduce the Assets and/or Service, except to the extent that such activity is expressly permitted by applicable law. You must not use the Assets and/or Service to copy, store, host, transmit, send, use, publish or distribute any material that consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit and/or other harmful code or malicious software.

The Mediavine®, Trellis™, Grow™, and Create® name and logos are trademarks and service marks of Mediavine (collectively the “Mediavine Trademarks”). Other product and service names and logos used and displayed via the Service and/or the Assets may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Mediavine. Nothing in this Terms of Service, the Assets or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Mediavine Trademarks displayed on the Assets, Service and/or Mediavine’s website, without our prior written permission in each instance. All goodwill generated from the use of Mediavine Trademarks will inure to our exclusive benefit.

Any rights not expressly granted herein are reserved by Mediavine.

Representations and Warranties and Indemnification

You hereby represent and warrant that: (a) you have all necessary authority, rights and permissions to use the Service and/or the Assets and grant the licenses described in these Terms of Service, (b) your use of the Service shall not infringe or misappropriate any copyright, trademark, trade secret, patent, or other intellectual property right of any third party or violate any other rights of third party, including, without limitation, any rights of privacy or publicity or any contractual rights, (c) your use of the Service shall not violate any applicable law or regulation or cause injury to any person; and (d) your use of the Service shall not violate any agreements between you and a third party.

You agree to indemnify, defend and hold harmless Mediavine, and its officers, directors, employees, agents, and contractors from and against any and all claims, costs, demands, damages, liabilities, or expenses, including, without limitation, reasonable attorneys’ fees, arising from or related to: (a) your use of the Assets and/or Service, (b) your breach of these Terms of Service, or (c) your violation of any third-party right, including any intellectual property right. This indemnity obligation will survive the termination or expiration of your Account and the Terms.

Disclaimers

Mediavine intends that the information contained in its Service be accurate and reliable; however, errors sometimes occur. In addition, Mediavine may make changes and improvements to the information provided herein at any time. THE SERVICE AND ASSETS AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED WITH THEM ARE PROVIDED “AS IS.” MEDIAVINE DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SERVICE AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. USE OF MEDIAVINE’S SERVICE IS AT YOUR OWN RISK. MEDIAVINE IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF MEDIAVINE’S SERVICE OR AAWRA OR WITH THE DELAY OR INABILITY TO USE THE SERVICES OR ASSETS, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH MEDIAVINE, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF MEDIAVINE AND/OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

Limitation of Liability

IN NO EVENT SHALL MEDIAVINE BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. MEDIAVINE’S LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE SHALL NOT EXCEED UP TO THE GREATER OF THE AMOUNT OF THE TOTAL FEES PAID BY YOU TO MEDIAVINE DURING THE MOST RECENT TWELVE-MONTH PERIOD. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE CONTRACT BETWEEN MEDIAVINE AND YOU. Some states do not allow the limitation of liability, so the foregoing limitation may not always apply.

Copyright Infringement.These Terms of Use incorporate our Copyright Policy, including full adherence to the Digital Millennium Copyright Act (DMCA). Please view our Copyright Policy here.

Termination

Mediavine reserves the right in its sole discretion, and without any prior notice, to terminate your access to the Service and/or Assets for any reason, including your breach of these Terms of Service, the terms and conditions of any service for which you may have registered, or a violation of the rights of another user or the law. You may unsubscribe from any further communication from Mediavine at any time by delivering a written notice addressed to marketplace@mediavine.com. You shall be responsible for ensuring delivery of the notice to Mediavine. Mediavine shall not be obligated to store any data or files for more than ninety (90) days after termination of your access to the Service. In the event of termination, you shall still be bound to these Terms of Service.

Mediavine reserves the right with or without notice to you at any time to change, modify or discontinue any service or a portion or attribute thereof, or the offering of any information, good, content, product or service. Mediavine shall have no liability to you or any third party should Mediavine modify or discontinue any service or an aspect thereof.

Dispute Resolution

All disputes between the parties arising out of or in connection with the Terms of Service or any breach thereof will be determined and settled by binding arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will not be combined with any other proceeding or arbitration against one of the parties. The place of any such arbitration shall be in or near New Castle, Delaware. Each party will designate one arbitrator and the two designated arbitrators will select a third arbitrator to serve as the chair of the arbitration panel. If the two arbitrators cannot agree on the third arbitrator, then the AAA will appoint the third arbitrator. Barring extraordinary circumstances, the arbitrators will issue their decision within 120 days from the date the third arbitrator is selected. The arbitrators may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The arbitrators’ decision and award will be in writing and will include a statement setting forth the reasons for the disposition of any claim. A dissenting decision will also be set forth in writing. The award rendered by the arbitrators will be final and binding on the parties, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be governed by and construed in accordance with Delaware law without reference to conflict of laws provisions.

For claims not subject to the Dispute Resolution section above, this Agreement will be governed by the laws of the State of Delaware, without reference to its conflict of law principles and jurisdiction of any and all such disputes will lie in the state and federal courts sitting in New Castle, Delaware. You consent to personal jurisdiction in the state and federal courts located therein and hereby waives all defenses of lack of personal jurisdiction and forum non-conveniens.

No Class Actions

We all agree that we can only bring a claim against each other on an individual basis. That means: (a) neither you nor Mediavine can bring a claim as a plaintiff or class member in a class action, consolidated action or representative action; (b) an arbitrator cannot combine more than one person’s claim into a single case, and cannot preside over any consolidated, class or representative arbitration proceeding (unless we both agree to change this); (c) an arbitrator’s decision or award in one person’s case can only impact the person who brought the claim, not other users, and cannot be used to decide other disputes with other users.

Notwithstanding the above, if Mediavine changes this ‘Arbitration’ section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by sending us written notice by email to marketplace@mediavine.com within 30 days of the date such change became effective, as indicated in the “Date of Last Revision” date above or in the date of Mediavine’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and Mediavine in accordance with the provisions of this section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).

General

These Terms of Service, together with the Privacy Policy and any other legal notices published by us on the Assets or Service, shall constitute the entire agreement between you and us concerning this Service and supersedes any prior written or oral representations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. These Terms of Service may not be transferred or assigned by you, but may be assigned by Mediavine without restriction. A printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. All rights not expressly granted herein are reserved to Mediavine.