Terms of Service
Terms of Service
Effective April 9th, 2012
1.0 Introduction and Certain Definitions
These Terms of Service (the “Terms”) govern your use of the website at www.vianza.com (the “Site” or the “Website”), which is operated by VIANZA, and your use of the services provided by VIANZA through the Website (referred to as the “Service” or the “Platform”).
“VIANZA” means Vianza Inc., a Delaware corporation.
“We”, “us” and “our” refer to VIANZA.
“You” and “your” refer to each user of the Service or the Website.
If you represent a legal entity, such as a partnership, corporation or limited liability company, then that entity will be bound by these Terms as though it were you, and you represent and warrant that you have the authority to so bind that entity.
We reserve the right to change the Terms from time to time. You will receive notice of any such change, which will be posted on the Site with its effective date. All additions and changes to the Service and the Website will be subject to the Terms. Your continued use of the Service or the Website after receiving notice of any such change will constitute your consent to such change. You can review the most current version of the Terms of Service at any time at: www.vianza.com/tos.
2.0 Users’ Operational Rights and Obligations
2.1 Signing up for an account
You must provide your name, email address and other personally identifiable information, and must be over 18 years of age, to sign up for an account.
You are solely responsible for maintaining the confidentiality of your account. You accept full responsibility for any activity that takes place under your account.
We reserve the right to refuse access to the Site or the Service to anyone. We reserve the right to suspend or terminate any account for any reason, including without limitation violation of these Terms, at our sole discretion. Upon termination, all data associated with the account, including all user-provided content, will be destroyed and will not be recoverable.
2.2 Paying for your account, upgrading, or downgrading
The Service is offered in accordance with the Subscription Fee Schedule posted on the Website at www.vianza.com/pricing.
A valid credit card is required for creating all paid accounts. Free accounts are not required to provide a credit card number.
All paid accounts include a 30-day free trial. If you create a paid account and cancel your account within 30 days, your credit card will not be charged.
Fees are billed in advance on a recurring basis and are non-refundable. There will be no refunds for upgrades or downgrades nor any refunds for cancellation of a pre-paid subscription.
For any upgrade or downgrade of subscription plan, the plan change will take effect immediately, but the new fee will apply at the end of the subscription period.
Downgrading your Service may cause the loss of features or capabilities of your account. We do not accept any liability for such loss.
Each subscription plan offered by VIANZA includes limitations to the volume of usage. These usage limitations are listed on your account page.
If your credit card cannot be charged when payment is due, we will notify you via email. If you do not respond with valid credit card information in a timely manner, we may suspend or terminate your account.
2.3 Canceling your Account and Terminating the Service
You can request to cancel your account anytime from within your Account Setting tab.
While we have a no-questions-asked cancellation policy, we cannot promise immediate cancellation because there may be orders or shipments in progress. We will ensure that all open orders are closed out and all payments that are due are made before cancelling your account.
All data associated with your account will be permanently deleted when your account cancellation takes effect. This data cannot be recovered.
2.4 Seller Rights and Obligations
“Seller” means a user that has enabled the seller profile on the user’s account or that has signed up as a seller. If, at any time, you are a Seller, the following provisions will apply to you:
(a) A Seller account is a paid account and, thus, is subject to the paid-account provisions of Section 2.2.
(b) You may list products on the Site only if you produce, manufacture or have the rights to sell them.
(c) You may not list on the Site any item the listing, sale or shipment of which would violate any applicable law, statute, ordinance or regulation or these Terms.
(d) You may list on the Site only items that are within the Site’s product categories, and you must list each such item in its applicable category.
(e) The Marketplace is a feature that is not automatically activated at the time of account creation. To showcase your products in the Marketplace, you will need to make a request for joining the Marketplace. Your request may or may not be approved at our sole discretion. If you are approved for the Marketplace, you will be charged a separate monthly fee based on your subscription plan (see www.vianza.com/pricing).
(f) Currently PayPal is the only method for receiving payment for shipments and made-to-order cancellation charges. You must provide a valid PayPal email for this purpose; if you do not provide a valid PayPal email, you will not be permitted to confirm any orders, and your payment may be delayed. VIANZA is not liable for any invalid PayPal email set up on your account.
(g) You must maintain an up-to-date pricelist for your products. Quote and order prices will be taken from the pricelist.
(h) When you confirm an order, you will be required to acknowledge that you agree to Vianza’s order terms, which will be available for you to review at that time. The order terms are incorporated into these Terms of Service.
2.5 Buyer Rights and Obligations
“Buyer” means a user that has enabled the buyer profile on the user’s account or that has signed up as a buyer. If, at any time, you are a Buyer, the following provisions will apply to you:
(a) A Buyer account can be a free account, if available at the time your sign up, or a paid account. A paid Buyer account is subject to the paid-account provisions of Section 2.2.
(b) If you wish to be considered as business Buyer eligible for wholesale pricing at the time you sign up, you will provide us with business registration documentation from local or state authorities to verify such eligibility.
(c) You must update your account with your PayPal email, without which you will not be able to place orders. Refunds if any will be deposited into your PayPal account.
(d) When you place an order, you will be required to acknowledge that you agree to Vianza’s order terms, which will be available for you to review at that time. The order terms are incorporated into these Terms of Service.
3.0 Operation of the Service
3.1 Delivery of Service
We use commercially reasonable efforts to ensure that the Service and access to your account is available 24 hours a day, 7 days a week. However, there will be occasions when the Service or access to your account will be interrupted for maintenance or upgrades, and for emergency repairs or due to failure of telecommunications links and equipment that are beyond our control.
3.2 Changes to the Service and Prices
We reserve the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, the Service, or any part thereof, with or without notice. Prices, including but not limited to subscription plan fees for the Service, are subject to change upon 30 days’ notice from us to you. We will not be liable to you or to any third party for any modification, price change, suspension or discontinuation of the Service.
Technical support is provided to each account holder in accordance with the subscription plan associated with the account. We reserve the right to access your account(s) to respond to your requests for technical support. You hereby authorize us or our assignees or contractors to modify account settings on your behalf if and when you ask us to do so explicitly or implicitly. You hereby agree to provide any cooperation that may be required for us to provide support. If you do not provide such cooperation, we may limit the scope of support available to you.
4.0 Acceptable and Prohibited Uses
The Site and the Service may be used only for lawful purposes.
You are solely responsible for all communications that take place, and all content that is posted, under your account.
We specifically prohibit the use of the Site or the Service for:
(a) posting (or causing to post) any (i) information which is incomplete, false, inaccurate or not your own, (ii) trade secrets or material that is copyrighted, trademarked, patented or otherwise owned by a third party unless you have a valid license from the owner which permits you to post it or (iii) material that infringes on any intellectual property, privacy or publicity right of any third party;
(b) impersonating another person;
(c) engaging in or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any city, state, national or international law or regulation, or which fails to comply with accepted Internet protocol;
(d) posting (or causing to post) content that may be misleading, unlawful, pornographic, hateful, intimidating, objectionable, obscene, defamatory, harassing, harmful to anyone, discriminatory or invasive of anyone’s privacy; or
(e) transmitting or transferring (by any means) information or software derived from the Site to foreign nations in violation of US export control laws.
In addition, you are prohibited from violating or attempting to violate the security of the Site or our content, system or network security, including, without limitation, the following: (i) accessing data not intended for users of the Site or gaining unauthorized access to an account, server or any other computer system; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; (iii) attempting to interfere with the function of the Site, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, “flooding”, “mailbombing”, “crashing”, or sending unsolicited e-mail, including promotions and/or advertising of products or Services; (iv) forging any TCP/IP packet header or any part of the header information in any e-mail or posting; or (v) scraping any code or content from the Site.
We may suspend or terminate any account that engages in any prohibited use of the Site or the Service, and we may remove any content associated with such use.
5.0 Third-Party Content
Third parties, such as suppliers or licensors, may post content on the Site. We are not responsible for verifying the accuracy, authenticity or completeness of, and we assume no liability for, any such content. You must review such content to determine its suitability for your use.
You and we are independent contractors. Nothing in the Terms, the Site or the Service will be construed as establishing any partnership, joint venture, agency, franchise or escrow relationship between you and us.
We are not a party to any order or any other relationship between any Seller and any Buyer. We are not liable for the performance of, or any act or omission of, any Seller or Buyer.
During the course of your use of the Site, you consent to receiving communications from us electronically. You agree that communications to you may be by email or through postings on the site for information regarding terms, privacy, notices, your account or other communications from us and that these satisfy any legal requirement that these be made in writing.
8.0 VIANZA Proprietary Rights
The Site, including all of its contents, such as text, images, audio, video and the HTML used to generate the pages, but excluding user-provided content (“Content”) is the property of VIANZA or that of our suppliers or licensors and is protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, prepare derivative works from, delete, add to, license, post, transmit, or distribute any Content without our express prior written permission. We hereby grant you a limited, personal, non-exclusive, non-transferable, revocable license to access the Site and to use the Service solely in accordance with these Terms.
You hereby grant, and you represent and warrant that you have the right to grant, to us an irrevocable, perpetual, transferable, non-exclusive, worldwide, royalty-free license (with the right to grant multiple tiers of sublicenses) to use any content you post on the Site for any business purpose, subject to the express terms of this Agreement.
As between you and us (or any other company whose marks appear on the Site), we (or the respective company) are (a) the owner or authorized user of any trademark or service mark appearing on the Site, and (b) the copyright owner or licensee of the Content, unless otherwise indicated on the Site. In particular, the VIANZA logos and Service names (the “VIANZA Marks”) are our trademarks and service marks. You may not display or use any of the VIANZA Marks in any manner without our prior written permission.
9.0 Links from and to the Site
Express, written consent must be granted by VIANZA for any type of link to the Site, except that Sellers may provide links to their shops on the Site. VIANZA reserves the right, at its discretion at any time, to deny any request, or rescind any permission granted, to link to the Site, and to require termination of any such link to the Site.
You may be able to link to third party websites (“Linked Sites”) from the Site. Linked Sites are not, however, reviewed, controlled or examined by VIANZA in any way and VIANZA is not responsible for the content, availability, advertising, products, information or use of user information or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply VIANZA’s endorsement of or association with the Linked Sites. In no event will VIANZA be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed through the Linked Sites.
10.0 Disclaimer of Warranties
THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, FUNCTION, MATERIALS AND THE SERVICE, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VIANZA DOES NOT WARRANT THAT THE SITE OR THE FUNCTION, CONTENT OR THE SERVICE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. VIANZA MAKES NO WARRANTY THAT THE SITE OR THE SERVICE WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE OR THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE SITE OR THE SERVICE, YOUR SOLE REMEDY IS TO DISCONTINUE USING IT.
11.0 Limitation of Liability and Indemnity
TO THE GREATEST EXTENT PERTMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL VIANZA, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE SERVICE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF VIANZA OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT WILL THE TOTAL LIABILITY OF VIANZA TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OR YOUR USE OF THE SITE OR THE SERVICE EXCEED, IN THE AGGREGATE, $100.00. You agree to defend, indemnify and hold VIANZA, its directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees, in any way arising from, related to or in connection with your use of the Site or the Service, your violation of these Terms, or the posting or transmission of any materials on or through the Site or the Service by you, including, but not limited to, any third-party claim that any information or materials you provide infringes any third party’s proprietary rights.
The laws of the state of California, excluding its conflicts-of-law rules, will govern these Terms and any dispute arising under these Terms or pertaining to the Website or the Service, including without limitation those between you and us and between a Buyer and a Seller (a “Dispute”).
The parties agree that they will use their best efforts to settle any Dispute amicably between themselves. In the event of a Dispute between a Buyer and a Seller who cannot settle a Dispute, upon request by the parties VIANZA will try to help them achieve a mutually agreeable resolution.
Any Dispute that the parties cannot settle themselves and that does not pertain to intellectual property rights will be settled by binding arbitration before a single arbitrator in accordance with the rules of www.net-ARB.com. The costs of arbitration will be shared equally between the parties. The arbitrator's decision will be binding and may not be appealed. A judgment of a court having jurisdiction may be entered upon the arbitrator's award.
You and we consent to the exclusive jurisdiction of the state and federal courts in the City and County of San Francisco, California for any Dispute pertaining to intellectual property rights. The prevailing party in any such Dispute will be entitled to an award of costs, including reasonable attorneys’ fees.
The section titles in the Terms are for convenience only and have no legal or contractual effect. The failure of a party to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision If any provision of these Terms is found by a court or any other tribunal of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court or other tribunal should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect. You may not assign your account, these Terms, or any of your rights or obligations under these Terms without VIANZA’s express written consent. These Terms inure to the benefit of VIANZA’s successors and assigns. The Terms, including any terms and conditions that are applicable to certain portions of the Service or the Site, constitute the entire agreement between you and VIANZA and govern your use of the Site, superseding any prior agreements between you and VIANZA. There are no third-party beneficiaries of these Terms or your use of the Site or the Service; provided, however, that Sellers may enforce these Terms against Buyers, and Buyers may enforce these Terms against Sellers.
14.0 Copyright Infringement
We respect the intellectual property rights of others and expect users of the Service to do the same. It is our policy to promptly process, investigate and respond to notices of alleged intellectual property right infringement that comply with the Digital Millennium Copyright Act (“DMCA”) (Title 17, United States Code, §512) or other applicable law.
Pursuant to the DMCA, notifications of claimed copyright infringement should be sent to the designated agent specified below. To be effective, the notification must be a written communication that includes the following:
1. An electronic or physical signature of the owner of the copyright, or an electronic or physical signature of a person authorized to act on behalf of the owner of the copyright;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
6. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Dana H. Shultz, Attorney at Law
160 Bell Avenue
Piedmont, California 94611
Telephone: 510 547-0545
Fax: 510 420-1525
Copyright 2012 VIANZA, Inc.