Terms of Service

Buoy Pricing, LLC – Short-Term Vacation Rental Data and Analytics

 

 

Terms of Service

 

 

Effective Date: September 24, 2020

 

IMPORTANT NOTICE. THIS IS A BINDING LEGAL DOCUMENT.  PLEASE READ CAREFULLY BEFORE USING THIS WEBSITE OR ANY PRODUCT OR SERVICE OFFERED THROUGH THE WEBSITE. YOU AGREE TO THESE TERMS BY USING OUR WEBSITE OR OTHERWISE ACCESSING BUOY CONTENT OR SERVICES.

 

THESE TERMS CONTAIN IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND REQUIRE THAT CERTAIN DISPUTES BE RESOLVED THROUGH ARBITRATION INSTEAD OF A COURT TRIAL. FOR MORE INFORMATION SEE SECTION 19 BELOW.

 

1.              Who’s who?

When “we” or “us” or “our” or “Company” or “Buoy” are used in these terms and conditions, it is a reference to Buoy Pricing, LLC.  The Company’s website (www.Buoy.us), Beacon and Buoy Pricing products are designed to comply with U.S. laws and regulations.  “You” or “your” refers to the person accessing or using services provided through our website or products.  If you are using our website or products on behalf of your or employer, “you” or “your” also refers to your company or employer.

 

2.             Agreeing to these Terms

You agree to these terms and conditions (these “Terms”) by using our website, by using our products, by submitting Personal Information (as defined in the Privacy Policy), or by accessing our content and services through our website.  When you agree to these Terms, You are also agreeing to the terms and conditions in the Buoy Privacy Policy (available at: [https://buoy.us/privacy-policy/ (the “Privacy Policy”). 

 

By accepting these Terms and the Privacy Policy, you are entering into a binding legal agreement with the Company. Any use of our website or products, or purchase of the subscriptions or products sold on our website, will constitute acceptance of these Terms and the Privacy Policy, including, but not limited to, using our services, providing Personal Information (as defined in the and the Privacy Policy), downloading documents or forms from our website, uploading documents or forms to our website, using our products or services, or otherwise taking advantage of the website (either through a web browser or other software), or clicking an “I Agree” button or checking a terms and conditions checkbox.  If you do not accept these Terms and the Privacy Policy, you may not use our website, products or services, or otherwise access any of their content other than non-downloadable content on the home page. 

 

3.             Scope

3.1          These Terms and the Privacy Policy, as they may be amended from time to time, are collectively known as the “Agreement.”  The Agreement applies to all uses of our website, products and services.  You understand and agree that this Agreement is enforceable against you personally and any entity with which you are affiliated or employed and on whose behalf the website, product or service is used.  You hereby represent and warrant that you have CAREFULLY read and understood these Terms and the Privacy Policy, that you are of legal age under the laws of the United States, and that you accept this Agreement freely, voluntarily, and with full knowledge and understanding of its terms and conditions. 

3.2         Our website and products are accessible worldwide; however, our website and products are not offered to all persons or in all geographic locations. The website and products are intended for use only by persons over the age of 13, and only in the United States of America.  If You are not over the age of 13 or are located outside the United States of America, You may not use our website.  You warrant and represent that you are legally permitted to use our website and products.  We reserve the right to terminate your access or otherwise deny you the ability or right to use our website, products or services at any time for any reason or no reason, including, without limitation: in the event that we determine, in our sole discretion, that you are in violation of any these Terms, are outside the United States of America, 17 years old or younger, or that your use of our website, products or services is not consistent with these Terms and the Privacy Policy or any usage guidelines or policies available on or through our website, as such may be amended from time to time.

3.3         The website and products are not intended to be used by persons in the European Union.  They are intended to comply with U.S. privacy laws only and are not required to comply with the GDPR or any privacy or other laws of other countries.

3.4         These Terms may be modified by us from time to time.  You are responsible for periodically reviewing these Terms for any changes.  Whether or not these Terms have changed will be apparent from the date at the end of this document.  If you do not agree to any changes in these Terms, your sole remedy is to cease using our website and products and their content.  The Company may, but is not required to, separately notify you that changes to these Terms or the Privacy Policy have occurred.

4.             Your Information.

4.1          You warrant and represent that all information provided to Buoy through our website, products or otherwise will be truthful, accurate, and complete, and will be submitted only for lawful purposes.  If you provide any information that is untrue, inaccurate, or incomplete, or if We have any reason to believe that the information you provided is untrue, inaccurate, or incomplete, or was submitted in connection with any unlawful purpose, we may, without any liability to you: (a) suspend or terminate our services; (b) if permitted by applicable law, use electronic self-help means to terminate your ability to access our website or services provided by us; (c) terminate this Agreement; (d) remove, delete or otherwise dispose of information previously provided, uploaded or used by, for, or on behalf of you; (e) report your activities to law enforcement agencies; (f) notify others or our affiliates or partners of our suspicions; and/or (g) pursue any other legal or equitable remedies that may be available.

4.2        You will grant, and hereby do grant, to us, a nonexclusive, royalty-free, worldwide, unlimited, perpetual, irrevocable, transferable and fully sub-licensable right and license to copy, distribute, publish, perform, create derivatives from, and otherwise use any and all account and usage information, with the exception of Personal Information as outlined in the Privacy Policy, you submit to or through the website and products to monitor and improve it and its content. 

4.3         In the event we determine that any information you provide to us is incorrect, we reserve the right to cancel or suspend our services and access to content from our website and products at any time with, or without, notice to you.  We will have no liability to you whatsoever in event we exercise our right to remove or suspend access to such service or content.

5.             Accounts and Passwords.

5.1          You may utilize the functionality on the website that allows you to create an account or log into an account on the website by using your login credentials for an existing account on various third party websites, which may change from time to time, including, without limitation, Twitter, Facebook and LinkedIn (“Third Party Site Login Credentials”) and, if applicable, configure your privacy settings in your third party website account to permit your activities on this website to be shared with your contacts in your third party website account. You agree that your use of any third party website through which you log into this website using your Third Party Site Login Credentials is governed by the terms and conditions of such third party website’s terms of use and privacy policy, including, without limitation, such third party website’s password and account security policies and user-generated content posting and acceptable use policies.

5.2        You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords or accounts. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify us if there is any unauthorized use of your password on this website or if you know of any other breach of security in relation to this website. Notice may be provided by sending an email to: support@buoy.us.

6.             Electronic Communications.  You consent to the use of electronic communications in transacting business with us, including, without limitation, the electronic delivery of notices and other documents to you.  If at any time you would like to cease doing business electronically with us, you will need to provide us with written notice of your withdrawal of your consent to do business electronically, which will then terminate this consent.  Thereafter, we reserve the right to withdraw our consent for you to use the website and products. 

7.             Terms of Sale for Paid Products.

7.1          Buoy sells various products (“paid products”) through the website to end-user customers who receive the paid products only for their own personal use. This may also include a subscription service (“subscription(s)”). You may not purchase paid products or subscriptions for further distribution or resale or for any other commercial or business purpose, without explicit contractual agreement with Buoy. The purchase of the paid products and the rights and privileges conferred are personal and non-transferable.

7.2         Pricing for paid products and subscriptions will be the price as agreed at the time you purchase or sign up. The price that we will charge you for the paid products and subscriptions will be the price as posted on the website on the date you first sign-up for a subscription to the website. Buoy reserves the right to change prices for paid products and subscriptions at any time, and does not provide price protection or refunds in the event of promotions or price decreases.

7.3         Pricing for paid product is subject to adjustment. The following Table 1 represents the current pricing for paid products and subscriptions:

Table 1

Product

Cost

Beacon- Automated Reporting

Beacon is our automated reporting system. With quick-scan metrics and alerts for double bookings, this daily email delivers the data you need to manage your business.

Free for qualified users

Buoy AI- Responsive Dynamic Pricing

Buoy AI sets optimum rates based on current conditions in your destination. It analyzes vacation rentals and hotels, tracks conferences and events, and automatically adjusts as conditions change.

1% Revenue Share

Buoy BI- Quick-Reference Performance Dashboard

Buoy BI combines pricing controls, reporting, and market benchmarking in a mobile-friendly package. It integrates seamlessly and requires little to no training to use.

$5/Listing/Month

 

8.             Payments and Subscription Renewals for Paid Products. 

8.1          For our paid products, we accept credit card payments, direct transfers and payments via PayPal. You agree to pay all fees charged to your account based on Buoy’s fees, charges, and billing terms in effect as shown on the payment page when you first sign-up for a product or subscription on our website. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of the products or subscriptions based on the address that you provide as the shipping address when you register for a subscription, and you authorize Buoy or the third party payment processing service provider that we engage to charge your credit card for any such taxes and fees. All payments shall be made by credit card in advance prior to delivery of the product. If you do not pay on time or if your credit card cannot be charged for any reason, we reserve the right to either suspend or terminate your account and subscription.

8.2        Buoy and its third-party payment service provider may receive updated credit card information from your credit card issuer. The disbursement of the updated credit card information is provided to Buoy and its third-party payment service provider at the election of your credit card issuer. Neither Buoy nor its third-party payment service provider are responsible for the distribution of your credit card information. It is at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt out of the update service. It is your responsibility to contact your credit card issuer with regards to your right to opt out of the update service.

8.3         To the extent you create an account using, or otherwise register to use, our product platforms, such account will be active for one month, after which it will automatically renew for successive months unless cancelled by you, or by us in accordance with this Agreement. Automatic monthly subscription renewal fees will be automatically charged to your card on file each month. Buoy will automatically renew your subscription on each monthly anniversary date of the subscription and, as authorized by you by creating an account demonstrating your consent for these terms during the sign-up process, we will charge your credit card with the applicable subscription fee and any shipping and handling costs and sales or similar taxes that may be imposed on your subscription fee payments. Each subscription renewal period is for one month.

9.             Cancellations, Terminations, and Refunds for Paid Products.

9.1          You may cancel your subscription at any time by contacting us at support@buoy.us with the email address used to sign up to the subscription, or unsubscribing from the product within the Buoy dashboard tool. All cancellation requests must be received two (2) business days prior to renewal. Cancellation requests received after the monthly anniversary of the month shall take effect the following month. If you cancel your subscription, you will enjoy your subscription benefits until the end of the then-current subscription term, and your subscription benefits will expire at the end of the then-current subscription term for which you have paid. You will not be eligible for a prorated refund of any portion of the subscription fees paid for any unused days of the then-current subscription term.

9.2        Termination of an account does not terminate this Agreement, which may only be terminated by our written notice to you, or by your written notice to us.  In the event this Agreement terminates, (i) your authorization to use our products will terminate and you will immediately cease all use our products (either through a web browser or other software, and either directly or indirectly), (ii) we may, in our sole discretion, terminate any account and delete or otherwise dispose of any account information or other content provided by you, and (iii) where permitted by law, we may use self-help or other means to prevent further use of our products by you or others working on your behalf.  It is understood and agreed, however, that the foregoing will not constitute an obligation for Buoy or any other party to delete or cease use of any account information or other content previously provided to us, except as otherwise detailed in the Privacy Policy provided.

9.3        Except as otherwise expressly stated herein, all amounts paid to Buoy are non-refundable. We will consider a request for a refund only if our product is deficient, as determined by us. Proof of this deficiency, via screenshots, must be supplied and emailed to us at support@buoy.us, along with the email address that your account is registered under. Buoy will not provide refunds if the product received is not materially different to what the example data shows. All refund requests must be made within seven (7) days of the date of purchase. Promptly following our receipt of your request (typically within five (5) business days), we will respond to your inquiry and, if we believe the case to be strong, refund the amount paid back to the payment method you used to make the original purchase. We will not provide a refund for a request that is received by more than seven (7) days after the date of purchase.

10.           Product and Idea Submissions. 

10.1       We do not accept or consider unsolicited ideas, including, without limitation, ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names. Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works (“Submissions”) in any form to us or any of our employees. The sole purpose of this Section is to avoid potential misunderstandings or disputes when any of Buoy’s products, services or marketing strategies might seem similar to ideas submitted to Buoy.

10.2      If, despite our request that you not send us your ideas, you still submit them, then regardless of what your correspondence says, the following terms shall apply to your Submissions. You agree that: (1) any Submission (including its complete contents) by you to us will automatically become the property of Buoy, without any compensation to you; (2) Buoy may use or redistribute any Submission and its contents for any purpose and in any way, without any compensation to you; (3) Buoy has no obligation to review any Submission; and (4) Buoy has no obligation to keep any Submission confidential, and no confidential relationship may be established by or inferred from any such Submissions to, or the consideration of your Submissions by, Buoy.  

11.            Reverse Engineering and Non-interference.  In addition to any Buoy information or documents containing information that constitute a “trade secret” as that term is defined in the Uniform Trade Secrets Act as of September 16, 2015, the following will be deemed trade secrets of Buoy and you will treat the following as our trade secrets to the extent they have not been made public by us:  (i) all source code, data and configuration files within or comprising our website or used to receive content from, or deliver content to the website, and all documentation relating thereto, (ii) all financial information relating to Buoy or its affiliates, (iii) all product or service development plans of Buoy or its affiliates, and (iv) all security vulnerabilities and information relating to actual or alleged security vulnerabilities or breaches of the Buoy.  By agreeing to these Terms, you acknowledge and agree that such information has independent economic value due to it not being generally known or available to others, and that Buoy takes reasonable measures to protect the confidentiality and secrecy of such information.  You agree not to, and warrant and represent that You will not, engage in any activity, assist any third party in engaging in any activity, or attempt in any way, or assist any third party in attempting in any way, to (v) discover or use any trade secrets of Buoy without Buoy’s prior written consent, (vi) reverse engineer or otherwise discover any source code utilized by our website or any client or other software provided by us, (vii) breach, discover, circumvent, disable or otherwise compromise any security, encryption, password protection, or other feature or mechanism used by us or our website to protect the website or any data, hardware, software or server used in connection with it, (viii) use our website to provide unsolicited electronic communications (a.k.a. spam) or distribute any infringing or illegal content, (ix) use our website or any client or software provided by us for any illegal, immoral, or improper purpose, (x) prevent or inhibit access to (or use of) the website by any person, or (xi) publish, reproduce, or use for any purpose other than as expressly contemplated under this Agreement, any content on or available through our website.  You further warrant and represent that you will not use our website or any client or software provided by us to implement, develop, refine, enhance, use, or promote any website, software or service that competes with our website.

12.           Linking, Crawling and Framing.  You may link only to the home pages of our website, and not to any other page or portion of it.  You agree not to, and warrant and represent that you will not assist any third party in engaging in any activity or attempting in any way, to reproduce, in whole or in part, any content provided by the website or products through any method (including without limitation, through copying, caching or framing), unless such access is expressly permitted in a written agreement executed by us. 

13.           Other Agreements and Disclosures

13.1       Wherever the website or other product forms present additional terms and conditions, disclosures, or other agreements, you are also bound by those additional terms and, where in specific conflict with the terms and conditions of this Agreement, those additional terms shall control over the terms in this Agreement.

13.2      The website and products may contain additional disclosures, terms and conditions including without limitation prepaid debit card, banking, and loan terms and conditions, cardholder agreements, privacy policies regarding financial services that are separate from other legal terms that apply to the services being offered through the website.

13.3      Portions of Buoy website and product data are algorithmically determined. The accuracy of this data is high and the details of our methodology are available upon request. However, you understand we do not claim 100% accuracy of our data, and on an individual property you understand that because of the nature of our data collection we can be off by an order of magnitude, though our market data remains highly accurate.

13.4      You warrant and represent that in entering into or executing any agreement with us that you are not under the influence of drugs or alcohol.

14.           Notices

14.1       Any notice to Buoy that is required or permitted by this Agreement shall be deemed given:  (a) if sent by email to support@buoy.us, upon your receipt of electronic confirmation thereof; or (b) if sent in writing by next day delivery service to the address identified in the “Contact Us” section of our website, upon such delivery. 

14.2      Any notice to you that is required by this Agreement shall be in writing and shall be deemed given:  (a) if sent by email to the email address that we have in Our records for you, upon the earlier of your receipt of the email, or two (2) business days after we sent the email (provided that we did not receive a message indicating that the delivery of the email was unsuccessful); (b) if sent by mail to mailing address that we have in our records for you, five (5) business days after deposit in the mail, postage prepaid; or (c) if sent by next day delivery service to the address we have in our records for you, upon such delivery. 

15.           Proprietary Rights. You hereby acknowledge and agree that Buoy or its licensors own all legal right, title and interest in and to the website and any content therein, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the website and products, whether such rights are registered or unregistered, and wherever in the world those rights may exist. Buoy Pricing, LLC is a trademark of Buoy in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site, including content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Buoy, Copyright © 2019 – 2020 BUOY PRICING, LLC. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

 

16.           Intellectual Property Claims.  If you are a copyright owner or agent thereof and believe that content posted on our website or products infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to us with the following information:  (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright; (b) a description of the copyrighted work that you claim has been infringed; (c) the URL of the location on our website containing the material that you claim is infringing; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. For such submissions, we can be reached by contacting us at the following:

 

Designated copyright agent for the Company:

 

NAME: Timothy Speicher

 

EMAIL: tim@buoy.us

 

 

Please use this same contact information to report to us any other complaint you may have regarding our website, including without limitation, any complaint that such content infringes a trademark right or other intellectual property right, or defames any person or is otherwise illegal or improper, by providing (g) a signed certification that the complaint is being made in good faith by one authorized to do so, (h) an email address or physical address where you may be contacted, (i) the URL of the location where the objectionable content can be found; and (j) a reasonable description of the rights You believe are violated by the objectionable content. 

 

17.           Warranty Disclaimer.  AS BETWEEN YOU AND US, THE WEBSITE AND ALL INFORMATION WE OR THIRD PARTIES PROVIDE ON THE WEBSITE, INCLUDING THROUGH OUR PRODUCTS, IS PROVIDED TO YOU “AS IS” AND YOU USE ALL OF THE FOREGOING ENTIRELY AT YOUR OWN RISK.  WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER REGARDING ITS AVAILABILITY OR THE CORRECTNESS OF ANY CONTENT THEREON, OR THAT IT WILL PROVIDE ANY FEATURE OR CAPABILITY, OR BE SUITABLE FOR ANY PARTICULAR PURPOSE.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY THAT MAY ARISE BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OF THIS AGREEMENT.  WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT NO SOFTWARE OR WEBSITE CAN BE ENTIRELY SECURE OR FREE OF RISK OF SECURITY BREACHES OR ATTACKS BY THIRD PARTIES, AND THAT WE MAKE NO WARRANTY OR REPRESENTATION THAT OUR WEBSITE WILL BE SECURE OR FREE FROM DATA BREACHES OR CYBER ATTACKS.

18.           Limitation of Liability; Indemnification; Release

18.1       IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA) ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, THE PRODUCTS, THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN ANY EVENT, IF BUOY SHOULD BE HELD LIABLE FOR ANY DAMAGES, THE ENTIRE LIABILITY OF BUOY (INCLUDING ITS AFFILIATES) WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY REASON AND UPON ANY CAUSE OF ACTION, REGARDLESS OF THE NUMBER OF ACTIONS (AND WHETHER BASED IN CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE) SHALL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF: (A) THE AMOUNT YOU PAID BUOY FOR A PAID PRODUCT OR SUBSCRIPTION, AS APPLICABLE; OR (B) ONE HUNDRED DOLLARS ($100.00 USD) PER AFFECTED USER AND ONE THOUSAND DOLLARS ($1,000.00 USD) IN TOTAL IN CONNECTION WITH ANY CLAIM OR ACTION.  NO CAUSE OF ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST US OR OUR AFFILIATES. 

18.2      SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. 

18.3      ANY CAUSE OF ACTION AGAINST BUOY, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS WITH RESPECT TO THE WEBSITE OR THEIR CONTENT MUST BE INSTITUTED WITHIN ONE (1) YEAR FROM THE DATE ON WHICH THE CLAIM AROSE.

18.4      THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL SURVIVE EVEN IF ANY EXCLUSIVE OR LIMITED REMEDIES PROVIDED IN THIS AGREEMENT SHOULD FAIL OF THEIR ESSENTIAL PURPOSE.

18.5      You shall indemnify, defend (including by paying reasonable attorneys’ fees and costs) and hold harmless Buoy and its affiliates, and each of their officers, directors, shareholders, agents, representatives, licensees and employees (each, an “Indemnified Party”), from and against any and all claims, losses, liabilities, damages, actions, lawsuits and other proceedings, judgments and awards, and costs and expenses (including, without limitation, court costs and reasonable attorneys’ and consultancy fees), arising directly or indirectly, in whole or in part, out of  any breach or threatened breach of this Agreement by you or any person under your control in connection with our website.  The foregoing shall not apply, however, for any action that arises from our violation of any law, breach of these Terms, or our gross negligence or willful conduct. An Indemnified Party may participate in the defense by counsel of its own choosing, at its own cost and expense.  You shall not settle any claim that adversely affects an Indemnified Party or imposes any obligation or liability on an Indemnified Party without the Indemnified Party’s prior written consent.

18.6      TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE EACH INDEMNIFIED PARTY 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 OR IN CONNECTION WITH DISPUTES BETWEEN YOU AND THIRD PARTIES CONCERNING THE WEBSITE, THE PRODUCTS, THE SERVICES, OR THIS AGREEMENT.  IN CONNECTION WITH THE FOREGOING RELEASE, YOU HEREBY WAIVE (TO THE MAXIMUM EXTENT PERMITTED BY LAW) CALIFORNIA CIVIL CODE 1542 (AND ANY OTHER APPLICABLE LAW OR STATUTE) WHICH SUBSTANTIALLY STATES:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

 

18.7      Notwithstanding the forgoing, you agree and acknowledge that any breach or threatened breach by you of this Agreement may cause Buoy irreparable injury for which the recovery of money damages would be inadequate.  Therefore, in addition to any other remedies that may be available at law, in equity, or otherwise, Buoy shall be entitled to obtain injunctive relief against the breach or threatened breach of this Agreement, without the necessity of proving actual damages, or posting a bond, even if otherwise normally required. 

19.           Dispute Resolution.

19.1       With the exception of injunctive relief (which either party may seek as they deem necessary to avoid irreparable damage or preserve the status quo), any dispute between the parties arising out of or related to this Agreement shall be resolved as follows.

19.2      Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting us at support@buoy.us anytime. Before taking any formal action, you agree to first contact us and provide a description of your dispute, all relevant documents, and your proposed resolution. If we are unable to resolve your dispute within 30 days of your notice to us, you agree to submit your dispute to binding arbitration or small claims court as set forth in this provision. Please forward your dispute to: support@buoy.us

19.3      Arbitration.

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF ALL DISPUTES AND CLAIMS (INCLUDING ONES THAT ALREADY ARE THE SUBJECT OF LITIGATION) THROUGH BINDING ARBITRATION INSTEAD OF SUING IN COURT IN THE EVENT THAT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE OR CLAIM. ARBITRATION IS BINDING AND SUBJECT TO ONLY A VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT YOU ARE AWARE THAT THERE IS NO JUDGE NOR JURY IN ARBITRATION BUT THAT AN ARBITRATOR MAY AWARD YOU THE SAME DAMAGES AND RELIEF THAT YOU MAY BE ABLE TO RECOVER IN A COURT OF LAW. YOU AND THE COMPANY FURTHER AGREE THAT THE ARBITRATOR MUST HONOR THE TERMS OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BRING A CLAIM IN SMALL CLAIMS COURT.

This provision is intended to encompass all disputes or claims arising out of your relationship with Buoy, arising out of or relating to the website or products or any content used in connection with the services (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory). References to you and Buoy include our respective subsidiaries, affiliates, predecessors in interest, successors, and assigns.

All claims will be resolved by binding arbitration where permitted by law. You must first present any claim or dispute to Buoy by contacting us at support@buoy.us as set out above, to allow an opportunity to resolve the dispute prior to initiating arbitration. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”), as modified by this agreement. You and Buoy agree that use of the website and products evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the Federal Arbitration Act and federal arbitration law. Additionally, for claims of $10,000 or less, You can choose to proceed with arbitration being decided on the documents submitted in an effort to minimize costs and the time it may take for an arbitrator to reach his or her decision.

You and Buoy agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis. Further, you and Buoy agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If the preclusion of consolidated, class wide, or representative proceedings is found to be unenforceable, then this entire arbitration clause shall be null and void.

Absent a finding that your demand is frivolous, brought for an improper purpose, or malicious as set forth by the standards of Federal Rule of Civil Procedure 11(b), Buoy will pay the filing, administration, and arbitrator fees of an arbitration initiated in accordance with this Agreement. If, however, the arbitrator does deem that your demand was frivolous, was brought for an improper purpose, or was malicious under the same standard used in a court of law, payment of all fees will be divided between you and Buoy in accordance with AAA Rules. Additionally, Buoy hereby waives any right to seek its attorney’s fees from you in the event that it prevails in the arbitration, except where your demand is deemed frivolous, brought for an improper purpose, or malicious under the standard set out above. Nothing in this section shall be construed by an arbitrator as barring an award of attorney’s fees to you, the customer, where the law would so provide.

Unless you and Buoy agree otherwise and, in an effort, to reduce the burden of arbitration on you, the location of any arbitration shall be in the county of your, the customer’s, residence for those customers located within the United States. For customers residing outside of the United States, the location of arbitration shall be Miami, Florida, unless you and Buoy agree otherwise. Either or both parties may participate in the proceedings by telephone. The arbitrator shall apply the law of the State in which you reside to the dispute.

If for any reason this arbitration provision is deemed inapplicable or invalid, or to the extent this arbitration provision allows for litigation of disputes in court, you and Buoy waive to the fullest extent permitted by law, (i) any right to pursue any claims on a class or consolidated basis and (ii) your right to serve in a representative capacity in any class or consolidated basis. Neither you nor Buoy shall disclose the existence, contents, or results of any arbitration except to the extent required by law. Judgment on the award rendered may be entered by any court of competent jurisdiction.

In the event that any claim proceeds in a court of law rather than through arbitration, you and Buoy agree that there will not be a jury trial. You and Buoy unconditionally waive any right to a trial by jury in any action, proceeding, or counterclaim arising out of or relating to this Agreement in any way. You and Buoy further agree that in the event of litigation, this section of the Agreement may be filed as an exhibit illustrating a knowing and written consent of any right to a trial by jury.

YOU HAVE THE RIGHT TO OPT OUT OF THIS PROVISION COVERING DISPUTE RESOLUTION BY BINDING ARBITRATION WITHIN 30 DAYS OF THE ACTIVATION OF YOUR PAID PRODUCT SUBSCRIPTION. IN THE EVENT YOU DO NOT OPT OUT OF THIS PROVISION WITHIN 30 DAYS, YOUR INACTION SHALL BE DEEMED TO BE CONSENT TO THIS PROVISION COVERING DISPUTE RESOLUTION. YOU MAY OPT OUT OF THIS PROVISION BY CONTACTING US AT SUPPORT@BUOY.US. ANY OPT-OUT RECEIVED AFTER THE OPT-OUT DEADLINE (OR, IN THE CASE OF THOSE MAILED, POSTMARKED AFTER THE OPT-OUT DEADLINE) WILL BE INVALID, AND YOU MUST PURSUE YOUR CLAIM IN ARBITRATION.

20.         Governing Law

20.1      This Agreement shall be construed under the laws of the state in which you reside without regard to the state’s choice of law rules, except for the arbitration provision contained in these Terms, which will be governed by the Federal Arbitration Act. If you reside outside of the United States, then this Agreement will be governed by the laws of the state of California.

20.2     Subject to Section 19 (Disputes), the exclusive jurisdiction and venue for all legal actions arising out of this Agreement shall be in an appropriate court sitting in Los Angeles county in California, or the United States District Court for the Southern Division of California and you hereby consent to the exclusive jurisdiction of such courts in any and all matters that may arise in connection with this Agreement, the website, and/or any account information or content provided by you or via the website; and you expressly waive [A1] any rights to contest the jurisdiction, venue or convenience of any such federal or state court.

21.           Fees and Expenses.  Notwithstanding any terms and conditions of this Agreement to the contrary, the prevailing party in any proceeding arising out of or related to this Agreement, the website, or the products shall be entitled to recover its reasonable expenses and costs, including reasonable attorneys’ fees, from the other party.

22.          Survival.  All terms and conditions that, by their nature, should survive termination of this Agreement (regardless of the reason for termination) will survive including, without limitation, all licenses granted by you, all warranties and representations by you, all limitations of liability and disclaimers, and all terms relating to notice, choice of law, choice of venue or dispute resolution.  Buoy’s remedies under this Agreement are cumulative and not exclusive and are in addition to all remedies available at law or in equity. 

23.          General

23.1      Our failure or delay in the performance of any obligation under this Agreement shall be excused to the extent and for the duration that such failure or delay is occasioned by a force majeure event which shall include, without limitation, acts of God, acts of war, earthquakes, fires, floods, terrorism, riots, civil disorders, rebellions, labor disputes, or any circumstances beyond our reasonable control.  You are responsible for providing and maintaining your own internet connection and we will have no liability whatsoever resulting from your inability to access the internet or any connection issue that prevents connections with our servers or data centers.

23.2     In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement, which shall remain in full force and effect.   

23.3     This Agreement, the Privacy Policy, and any other written agreement signed by both parties and expressly referencing these Terms, set forth the entire understanding between you and us relating to your use of our website and products, and supersede all prior or contemporaneous negotiations, understandings, agreements, proposals and representations, written or oral, between you and us related to your use of our website and products.  We reserve the right to change this these Terms at any time by posting notice of the changes on the website.  You will be deemed to have been made aware of, and will be subject to, the changes to this Agreement after any use of the website after such notice has been posted.  Your continued use of the website, or any products, materials or services accessible through the website shall constitute your acceptance of the changes.  Unless otherwise expressly stated in these Terms, if you do not agree to the changes, your sole remedy shall be to discontinue use of our website.  No delay or failure by us in exercising or enforcing any rights or remedies under this Agreement, in whole or in part, and no course of dealing or performance, shall constitute a waiver by Buoy of any provision of this Agreement. 

23.4     This Agreement is personal to you.  You shall not assign your rights or delegate your obligations under this Agreement, in whole or in part, without the prior written consent of Buoy.  Any attempted assignment or delegation by you shall be voidable ab initio by Buoy.  This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.

23.5     This Agreement shall not be construed as creating any agency, partnership or joint venture between us and you.  Buoy makes no promises whatsoever regarding any amount of revenue you will or should make, or any level of enrollment you will or should expect, in connection with any product or service provided by or through the website.

23.6     The headings contained in this Agreement are intended solely for convenience of reference and are not intended to be part of or affect the meaning or interpretation of this Agreement.  The words “shall,” “agree” and “will” are mandatory, the word “may” is permissive, the word “or” is not exclusive, and the singular includes the plural and vice versa.

23.7     If any part of these Terms is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.

24.          Questions.  If you have any questions about these Terms, please contact us by e-mail at support@buoy.us. If You believe that any of our website or products contain materials that infringe a copyright or other proprietary right, please notify us immediately.

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