TERMS OF SERVICE
WET FISH DIGITAL L.L.C.
Last updated: 12/22/20
The Web site and Services are provided by Wet Fish Digital LLC, a Washington limited liability company with a principal place of business located at 2300 130th Avenue, NE #A-104, Bellevue, Washington 98005.
SECTION I: DEFINITIONS, AGREEMENT TO BE BOUND
References to “Dispute” mean any claim, conflict, controversy, disagreement between the Parties arising out of, or related in any way to, these Terms (or any Terms, supplement or amendment contemplated by these Terms,) including, without limitation, any action in tort, contract or otherwise, at equity or at law, or any alleged breach, including, without limitation, any matter with respect to the meaning, effect, validity, performance, termination, interpretation or enforcement of these Terms or any Terms contemplated by the Terms.
References to “Material Breach” mean any breach of these Terms upon the occurrence of which a reasonable person in the position of the non-breaching Party would wish to immediately terminate these Terms because of that breach.
References to the “Services” mean collectively, the provision of the Web site and consulting services related to digital marketing, SEO, and social media marketing.
References to the “Terms” and/or “Agreement,” mean this, these Terms and Conditions as set forth herein.
References to “us,” “we,” “our,” and/or “Wet Fish Digital,” mean Wet Fish Digital, L.L.C.
References to the “Web site” mean the Web site bearing the URL www.wetfishdigital.com.
References to “you,” and/or “User” mean the User of the Web site and/or Services.
SECTION II: GENERAL PROVISIONS
2.1. About Us.
At Wet Fish Digital, we help businesses build their online reputation and assist them with the set-up, monitoring, optimization and maintenance of social media and websites. We pride ourselves on empowering businesses with comprehensive local search citations, social media optimization services, digital marketing consultation and assisting them with search engine optimization tools to manage and magnify their digital presence.
2.2. Accuracy, Completeness and Timeliness of Information.
We are not responsible if information made available on the Web site and/or the Services is not accurate, complete or current. You acknowledge that the Web site and the Services are provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. You acknowledge further that any reliance on the Web site and/or Services is at your own risk.
2.3. Errors in Web Site and/or Services.
We do not warrant that any errors in the Web site and/or Services will be corrected.
2.4. Modifications and Changes to Terms and Conditions.
We may modify, add to, suspend or delete these Terms and Conditions or other agreements, in whole or in part, in our sole discretion at any time, with such modifications, additions or deletions being immediately effective upon their posting to the Web site. Your use of the Web site and/or continued use of the Services after modification, addition or deletion of these Terms and Conditions shall be deemed to constitute acceptance by you of the modification, addition or deletion.
2.5. Modifications and Changes to the Web Site and/or Services.
We may modify, add to, suspend, or delete any aspect of this Web site and/or Services offered by us, in whole or in part, at our sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use.
2.6. _ Access to Web site and/or Services.
Though we try to make the Web site and Services available twenty-four (24) hours a day, seven (7) days a week, except for planned down-time for maintenance, we do not warrant that the Web site and Services will be at all times available.
We do not warrant that your computer, tablet, and/or smartphone will be able to access and/or support the Web site and/or Services.
2.7. Right of Refusal, Limitation, Discontinuation, and Termination.
We reserve the right to refuse to provide access to the Web site and/or the Services for any reason at any time in our sole and exclusive discretion. We may, in our sole and exclusive discretion, limit or cancel a User Account for any reason whatsoever. In the event that we make a change to or cancel an Account, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time your Account was created; however, the failure to do so shall not result in any liability, including liability for lost data deleted as a result of the Account termination.
2.8. Prohibited Uses of Web site and Services.
In addition to the other restrictions on use set forth herein, you agree and acknowledge that you shall not use the Web site and/or the Services: (a) for any unlawful purpose; (b) to solicit Users to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose(s) of the Web site and/or Service(s); (c) to violate any international, governmental, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Web site and/or the Services; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Web site and/or the Services. We reserve the right to terminate your use of the Web site and/or the Services for violating any of the prohibited uses or for any other reason in our sole and exclusive decision.
2.9. Technical Support.
We generally provide telephone and email support, (hereinafter “Technical Support,”) between the hours of 9 a.m. and 5 p.m. PCST/PCDT, Monday through Friday, excluding holidays and other days that we decide to close. Technical Support may be requested by contacting us at firstname.lastname@example.org or 855-580-3474.
SECTION III: ACCOUNTS, USE OF THE SERVICES
3.1. Online Accounts.
3.2. Transfer Prohibited.
You agree you shall not sell, trade or transfer that Account to any other person or entity.
3.3. Account Guidelines.
The Web site and/or Services may contain the ability to communicate with other Users on one or more platforms, comments sections, discussion forums, Web sites, landing pages, social media outlets, sales channels, and/or other interactive features, (hereinafter “Interactive Areas,”) in which Users and Third Parties may communicate. By participating in Interactive Areas, you agree and acknowledge that you: (a) shall not upload, distribute or otherwise publish to the Web site and/or the Services any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal material; (b) shall not threaten or verbally abuse other Users, use defamatory language, or deliberately disrupt discussions with repetitive messages, meaningless messages or “spam”; (c) shall not to use language that abuses or discriminates on the basis of race, religion, nationality, gender, sexual preference, age, region, disability, etc. Hate speech of any kind is grounds for immediate and permanent suspension of access to all or part of the Interactive Areas and use of the Web site and/or the Services; (d) shall not personally attack another User. Personal attacks are a direct violation of these Terms and Conditions and are grounds for immediate and permanent suspension of access to all or part of the Interactive Areas and use of the Web site and/or the Services; (e) shall not use the Interactive Areas to distribute or otherwise publish any material containing any solicitation of funds, advertising or solicitation for goods or services except for the sale of goods in the scope envisioned by the express purpose of the Web site and Services; (f) shall not upload, post or otherwise transmit any content that violates any law or engage in activity that would constitute a criminal offense or give rise to a civil liability; (g) shall not post unauthorized commercial communications (such as spam); (h) shall not upload, post or otherwise transmit any content that advocates or provides instruction on illegal activity or discuss illegal activities with the intent to commit them; (i) shall not upload, post or otherwise transmit content that does not generally pertain to the designated topic or theme of any Interactive Area; (j) shall not impersonate any person or entity, including, but not limited to, any of our employees, or falsely state or otherwise misrepresent your affiliation with any person or entity; (k) shall not interfere with any other User’s right to privacy, including by harvesting or collecting personally-identifiable information about other Users of our Interactive Areas or posting private information about a Third Party; (l) shall not engage in unlawful multi-level marketing, such as a pyramid scheme; (m) shall not upload, post or otherwise transmit any content, software or other materials which contain a virus or other harmful or disruptive component; (n) shall not interfere with or disrupt the Web site, Services, the Interactive Areas or the servers or networks connected to the same, or disobey any requirements, procedures, policies or regulations of networks connected to the Services, Web site, and/or the Interactive Areas; and (o) shall not facilitate or encourage any violations of these Terms and Conditions or our policies. Users agree further and acknowledge that any profile they create may be edited, removed, modified, published, transmitted, and displayed by us, and they waive any rights they may have in having the material altered or changed in a manner not agreeable to them.
3.4. Rights in Submissions and Content.
Should you submit, display, publish or otherwise post any content to an Interactive Area or otherwise provide us any content to use on your social media or other accounts, (hereinafter “Submissions,”) you agree to grant to us and our partners and affiliates a limited, non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, reproduce, and distribute such Submissions in any and all media now known or hereinafter developed for hosting, indexing, caching, distributing, tagging, marketing, and for all other lawful purposes without the requirement to make payment to or seek permission from you or to any Third Party. You represent and warrant that you own or have a valid license to use any and all Submissions and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any Submissions does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity.
- Submissions placed on, as well as the format, layout and structure of third-party platforms, such as WordPress, are subject to changes resulting from third party updates, therefore the User agrees that such changes are beyond our control and we shall not be liable for any negative performance consequently resulting therefrom.
3.5. Right to Monitor.
We shall have the right to monitor your Account in our sole and exclusive discretion.
SECTION IV: THE SERVICES
4.1. Grant of Access.
You agree to grant us appropriate-level access to the following services for the duration of your use of the Services: your Web site and social media platforms, Web site traffic statistics, and email address. Upon termination of services you should remove our access immediately.
4.2. Success not Guaranteed.
You agree and acknowledge that, due to the nature of the Services, success and improvement in sales and search rankings is not guaranteed beyond the Performance Guarantee specified below. Specifically, you agree and acknowledge that we cannot guaranty an increase in your sales; the acceptance of your Web site by any directory or search engine; a number one search position or consistent top ten placement for any keyword, phrase, or search term; the non-existence of Google Sandbox penalties; and/or dropped listings.
4.3. Paid Listings.
Should you elect to participate in any expedited listing service you shall be solely responsible for payment therefor.
4.4. Use of Link Farms.
Should you choose to link to “bad neighborhoods” or use links from “link farms” you agree and acknowledge that doing so may seriously deter all SEO and other marketing efforts and the success of the Services.
4.5. Control of Social Media Accounts.
In the event you utilize our services to develop your social media accounts you agree and acknowledge that you, and not us, shall be solely responsible for maintaining and controlling the account following its build.
4.6. User Responsible for Accuracy.
User shall be responsible for the accuracy, completeness and propriety of information provided to us and upon which we rely to provide the Services.
4.7. Cooperation Required.
We agree to use our best efforts to fulfill and exceed your expectations for the provision of the Services; you agree to aid us in doing so by making available to us in a reasonable time needed information pertaining to your business, web sites, and any other required and requested information.
4.8. Estimated Deliver-By Dates.
Any estimated deliver-by date(s) for the provision of the Services contained in any proposal or quote are estimates only and are contingent upon your full co-operation. We do not guaranty any estimated deliver-by date shall be met; however, Services shall be rendered within a reasonable timeframe.
4.9. Sensitive Data and Release.
As part of the Services, you may need to provide us with logon information for various platforms, including but not limited to, social media accounts, Google Analytics, Google Adwords, Google Business and c-panels. You should provide us logon credentials when possible that are unique and do not include any of your normally used logon credentials. We may also share data with our third-party service providers so they can perform the services you signed up for. Upon termination of services you should remove our access immediately.
4.10. Regulatory Compliance. As part of our Services, we may add analytic and performance trackers to your Web site. Be advised that some jurisdictions regulate the use of such tracking systems and require, among other things, that you notify visitors to your site that such tracking systems are in place. Users agree and acknowledge that they are solely responsible for ensuring compliance with any and all rules, laws, and regulations regarding this and all other similar matters. We do not provide legal advice or assistance in determining a User’s regulatory requirements and compliance therewith.
SECTION V: SERVICE FEES; TERMS OF SALE
5.1. Monthly Service Fees.
Use of the Web site is free; however, use of the Services requires the payment of Service Fees in the pre-paid amount as set forth on the Web site at the point of purchase. Any and all applicable monthly Service Fees, inclusive of applicable taxes, shall be as set forth at all times on the Web site as well as at the point of sale and shall be subject to change without notice in our sole and exclusive discretion. If you wish to change the form of payment, you must do so before the next Billing Cycle, and it must a be an accepted form of payment by us or the prior form of payment will be processed. If an error was made and a charge was processed not in accordance with this agreement, the only remedy available to you is a refund of that charged amount. Payments are processed through Stripe, a third-party platform or other payment processing platform as chosen by us.
5.2. Billing Cycle for Monthly Service Fees.
All Monthly Service Fees as set forth herein shall be pre-paid, in full, on a monthly basis on the first (1st) day of the Billing Cycle, where the first (1st) day of the first (1st) Billing Cycle shall commence as of the date services are first paid for by you. Billing shall continue as set forth in this Section 5.2 until use of the Services is cancelled as set forth herein.
5.3. Set-Up and Integration Fees.
All new monthly Users shall pay a one-time Set-Up and Integration Fee for the monthly Services the User elects to receive. Any and all applicable Set-Up and Integration Fees, inclusive of taxes, shall be as set forth at all times on the Web site as well as at the point of sale and shall be subject to change without notice in our sole and exclusive discretion. In the event a User changes, upgrades, or downgrades a service, further Set-Up and Integration Fees may become due and owing.
You are not responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for us as a result of your payment of any and all fees. Any and all taxes, interest, or penalties, including any federal, state, or local withholding or employment taxes, imposed, assessed, or levied as a result of these Terms shall be paid or withheld by us.
5.5. Suspension of Services.
In the event a balance remains unpaid by User seven (7) calendar days following the fist (1st) day of the Billing Cycle, User agrees and acknowledges that the Services shall be automatically suspended, without notice, until such payments are made, in arrears.
5.6. _ Refunds.
Due to the electronic nature of the Services, in no event other than material breach of these Terms, billing mistake by us, or as set forth in Section 5.9 shall a refund be granted, in whole or in part, for any reason or no reason whatsoever, including but not limited to User’s cancellation of the Services prior the end of a Billing Cycle or User’s failure to utilize the Services.
5.7. Duty to Disclose
Wet Fish Digital shall have no duty or obligation to disclose to any User or any third party any material, services, processes, methods, plans, concepts, software or any other property, of any nature or kind, that Wet Fish Digital, in its sole discretion, deems to be proprietary to it or its third-party service providers and vendors. Users acknowledge and consent to this right not to disclose. Any resource acquisitions (hereinafter “Resources”) made by us, including but not limited to, tools and websites, shall be the property of us or our third-party services providers and vendors and use thereof for the benefit of any User will not transfer ownership of such Resources to said User.
5.8. SEO Performance Guarantee. Our monthly SEO Performance guarantee covers all areas of search engine growth based on the following conditions.
- We will capture a minimum of 5 new keyword rankings from relevant search phrases that have generated search-results for your website.
- While individual keyword rankings may increase or decrease, there will be a minimum net ranking gain of 25 positions for all active rankings.
If conditions of A and B above are not met and not as a result of conditions A, B and/or C below, then you will be entitled to a refund of that months monthly SEO Fee you paid. You must notify Wet Fish Digital in writing within 7 business days after the monthly report provided by Wet Fish Digital is sent to you for a disputed month or no refund is due.
Performance Guarantee does not apply under the following circumstances:
- SEO work is removed from the website and / or modified without approval.
- Website SEO issues that negatively impact SEO are not resolved, including but not limited to, excessive duplicate content or high volumes of low quality inbound links. A game plan to remedy any website issues identified will be provided to Client.
- Website hosting issues including excessively slow web page load times, excessive downtime (website cannot be accessed) or a website that has been hacked or compromised and is penalized by Google or Bing.
SECTION VI: TERM & TERMINATION
This Agreement shall commence on date of your purchase of the Services and shall continue on a month-to-month basis until terminated as set forth herein.
This Agreement shall automatically renew unless written notice of non-renewal is provided to Wet Fish Digital as set forth in Section 6.3.
Either Party may terminate this Agreement at any time upon notice. Users who wish to cancel their use of the Services must notify us of their intent to terminate via one of the following methods prior to the end of the Billing Date in which they wish the cancellation to take effect: (i) in writing by emailing us at email@example.com; (ii) via the User’s Account settings if you were provided an online Account on the website of wetfishdigital.com otherwise this method does not apply; or (iii) by calling us at 855-580-3474. Cancellation requests received prior to the end of the next Billing Date will apply as if cancelled in the following month unless otherwise requested by you. Be advised that Wet Fish Digital will confirm the cancellation request, in writing; the failure to receive a cancellation request shall indicate the request was not received, and User shall be responsible for ensuring a request is received and noted before relying on cancellation. In the event of cancellation by Wet Fish Digital pursuant to this Section 6.3, you will receive a pro-rated refund for any unused days of Service in the then-current Billing Cycle.
6.4. Post-Termination Obligations. Because our Services require ongoing attention and refinement, are subject to public taste and trends, competitor influences, and changing search engine algorithms, among others, we are not responsible and you agree to hold us harmless and not liable against any and all negative impact that happens to, including but not limited to, your website rankings and social media platforms if you or we terminate, suspend, pause or otherwise stop providing ongoing Services.
- Any termination of this Agreement, under any circumstances, will not release a User from User’s financial obligations on projects opened by Wet Fish Digital at the User’s request, Wet fish Digital will be entitled to any commissions, fees and payments for services performed prior to the User’s instructions to cancel and for advertising and materials placed or delivered thereafter if Wet Fish Digital is unable to halt such placement or delivery.
User acknowledges and agrees that upon termination of this Agreement certain information regarding the User that was posted on the Internet as part of our Services may continue to be available to the public on the Internet following termination of the Agreement.
SECTION VII: INTELLECTUAL PROPERTY; PRIVACY
7.1. Intellectual Property Rights Not Waived.
This is an Agreement for access to and use of the Web site and/or the Services, and you are not granted a license to any software or intellectual property by these Terms and Conditions. The Web site and Services are protected by U.S. and, where applicable, international intellectual property laws. The Web site and Services belong to us and are the property of us or our licensors (if any). We retain all ownership rights in the Web site and Services.
Furthermore, all material displayed or transmitted on this Web site and/or Services, including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics, (hereinafter “Materials,”) are owned by us and are protected by U.S. and international copyright, trademarks, service marks, and other proprietary rights, laws and treaties.
Except as provided, you may not copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials carried on the Web site, nor may you infringe upon any of the copyrights or other intellectual property rights contained in the Materials. You may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials.
You may make a single print copy of any Materials provided by us on this Web site and/or the Services for personal, non-commercial use only, provide that you do not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Materials. You may not archive or retain any of the Materials accessed on this Web site and/or Services without our express written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to us and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted to firstname.lastname@example.org.
You acquire no rights or licenses whatsoever in the Materials other than the limited rights to use the Web site in accordance with these Terms and Conditions. Any of the Materials accessed or downloaded from this site must be accessed or downloaded in accordance with the Terms of Service specified in this Agreement. We reserve any rights not expressly granted under these Terms and Conditions.
You may have the opportunity to provide reviews, suggestions, ideas, and feedback, (hereinafter, collectively, “Feedback.”) Should you so provide such Feedback you grant us sole ownership of the same, which includes, without limitation, the right for us or any Third Party we designate, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the content submitted by you, you hereby declare that (a) you do not require that any personally-identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the content by us or our licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and (d) you forever release us, and our licensees, successors and assigns, from any claims that you could otherwise assert against us by virtue of any such moral rights. You also permit any other User to access, view, store or reproduce the content for that User’s personal use.
Notwithstanding the foregoing, you acknowledge that your Feedback may contain concepts, ideas, materials, proposals, suggestions and the like relating to us or our initiatives, (hereinafter your “Ideas.”) With respect to your Ideas you acknowledge that: (a) we receive numerous submissions from many parties and/or may have independently-developed and/or considered ideas similar to your Ideas, and that our review of your Ideas is not an admission of novelty, priority or originality; and (b) our use of any ideas similar to your Ideas, whether based on your Feedback or Submissions, provided to us by Third Parties, or independently-developed or considered by us, shall be without obligation to you.
7.3. Grant of License.
SECTION VIII: THIRD-PARTY ADVERTISEMENTS, PROMOTIONS, AND LINKS
8.1. Third Party Advertisements and Promotions.
We may, from time to time, run advertisements and promotions from Third Parties on the Web site and/or the Services. Your dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such Third Party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of Third-Party advertisers on the Web site and/or the Services.
8.2. Use of Third-Party Tools.
We may provide you or you may provide access to Third-Party tools over which we neither monitor nor have any control nor input. This includes third-party software systems, vendors, contractors, social media platforms, e.g. Facebook, Instagram, Twitter, and LinkedIn.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional Third-Party tools.
Any use by you of optional tools offered through the Web site and/or the Services is entirely at your own risk and discretion, and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant Third-Party provider(s).
We may also, in the future, offer new services and/or features through the Web site and/or the Services, including but not limited to the release of new tools. Such new features and/or Services shall also be subject to these Terms and Conditions.
Certain content, products and Services available via our Web site and/or Services may include materials from Third Parties.
Third-Party links on the Services may direct you to Third-Party Web sites and/or services that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any Third-Party materials or Web sites and/or services, or for any other materials, products, or services of Third Parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any Third-Party with whom you connect via the services. Please review carefully the Third-Party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding Third-Party products should be directed to the Third-Party.
8.4. Use of Third-Party Services.
We use third parties to provide the Services. This may include third-party software systems, vendors, and contractors located both in the United States and abroad. You expressly consent to our use of third-party services by entering into this Agreement.
SECTION IX: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
9.1. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY.
(A) YOU AGREE THAT USE OF THE WEB SITE AND THE SERVICES IS AT YOUR SOLE RISK. NEITHER US NOR OUR AFFILIATES NOR ANY RESPECTIVE EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE USE OF THE WEB SITE AND/OR THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEB SITE AND/OR THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED.
(C) IN NO EVENT SHALL WE, OUR EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, VENDORS, AND/OR OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AND MEMBERS, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE WEB SITE AND/OR THE SERVICES.
(D) WE DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY IDENTIFIABLE INFORMATION. BY UTILIZING THE WEB SITE AND THE SERVICES YOU ACKNOWLEDGE AND AGREE TO OUR DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU SHOULD NOT ACCESS OR OTHERWISE UTILIZE THE WEB SITE OR THE SERVICES.
(E) OUR LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED U.S. DOLLARS AND NO/CENTS ($100.00,) WHICHEVER IS GREATER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
The above limitations shall survive these Terms and inure to the benefit of us and our affiliates and respective directors, officers, employees and agents.
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US HARMLESS, AS WELL AS OUR AFFILIATES AND VENDORS AND RESPECTIVE DIRECTORS, OFFICERS, USERS AND AGENTS, FROM AND AGAINST ALL CLAIMS, SUITS, AND EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING OUT OF OR RELATED TO (A) YOUR USE OF THE WEB SITE AND/OR SERVICES; (B) YOUR NONCOMPLIANCE WITH OR BREACH OF THIS AGREEMENT; (C) YOUR USE OF THIRD-PARTY SERVICES, PRODUCTS, LINKS, ADVERTISEMENTS, AND/OR TOOLS; (D) YOUR VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS; OR (E) THE UNAUTHORIZED USE OF THE WEB SITE AND/OR SERVICES BY ANY OTHER PERSON USING YOUR INFORMATION.
SECTION X: GOVERNING LAW; ARBITRATION
10.1. Governing Law.
These Terms shall be governed and construed in accordance with the laws of the state of Washington without regard to its conflicts of law provisions. You agree to submit to the personal jurisdiction of the courts located in King County, Washington, and any cause of action that relates to or arises from these Terms and/or the Web site and/or the Services must be filed therein unless subject to the binding arbitration provisions of Section 10.2, infra.
The Parties agree that any dispute concerning, relating, or referring to these Terms and/or the Web site and/or the Services shall be resolved exclusively by binding arbitration in accordance with the substantive laws of the state of Washington and shall be brought for arbitration in King County, Washington, pursuant to the rules of the American Arbitration Association. The arbitrator and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this contract, including but not limited to any claim that all or any part of this contract is void or voidable. Nothing herein prevents either Party from seeking any interim injunction it deems necessary in order to preserve the status quo prior to the resolution of any dispute, in any jurisdiction.
SECTION XI: MISCELLANEOUS
11.1. Affiliate Disclosure.
We may have an affiliate relationship with Third Parties and affiliates to whose products and/or services we link and promote through the Services, including but not limited to third-party software that we use and/or provide via the Services. Because of this relationship we may earn a commission on products purchased by a User from a Third-Party affiliate.
Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
Any waiver of a right under these Terms and Conditions shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a Party from exercising that right in the future. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law.
11.4. Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
We shall have the right to assign and/or transfer these Terms and Conditions and our rights and obligations hereunder to any Third Party. You agree and acknowledge that you shall not assign or transfer its rights or sub-contract or delegate the performance of any of its obligations under these Terms and Conditions without our prior written consent in our sole and exclusive discretion.
11.6. Rights of Third Parties.
These Terms do not give any right to any Third Party unless explicitly stated herein.
11.7. Relationship of the Parties.
The Parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into Terms of any kind in the name of the other Party.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Wet Fish Digital L.L.C. 2300 130th Avenue, NE #A-104, Bellevue, Washington 98005, in the case of any User, to the email address you provide to us (either during the registration process or when your email address changes). Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon Account registration. In such case, notice shall be deemed given three days after the date of mailing.
11.10. _Updates & Effective Date.
The effective date of these Terms is as set forth at the top of these Terms. From time to time, we may update these Terms and Conditions by prominently posting a notice of update to the Web site and contacting you at the email you provided upon registration, so we encourage you to review them often.