Terms of Sale

 

Verbero Terms of Use

 

Last updated: June 13, 2023

 

These terms of use (together with the Privacy Policy, Terms of Sale, or any other terms, policy, or agreement expressly referred to herein, these “Terms”) are a legally binding contract between you and Verbero Inc., a Tennessee corporation (“Verbero,” “we,” “us,” or “our”), that you are agreeing to by registering for a Verbero account or by accessing or using our website and/or our online and/or mobile services (including any email, messaging, materials, software, or other functionality of any kind) or any part of it (the “Services”). You may use the Services only if you can form a binding contract with Verbero and only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations. If you do not agree with these Terms, do not register or use any of the Services.

 

If you are using the Services on behalf of an organization (for example, you are an account or team administrator), you are agreeing to these Terms for that organization and are representing and warranting to us that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization).

 

ARBITRATION NOTICE AND CLASS ACTION WAIVER: THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

 

1. Registration and Accounts

 

If your use of the Services requires registration, you must complete the registration process by providing complete and accurate information. You must also provide and maintain one dedicated email address for communications with Verbero.  You must be at least 18 years old to register for an account. Any use or access to any of the Services by anyone under 13 is strictly prohibited and in violation of these Terms.

 

The Services have different features and may have different levels of access for various users or depending on how you use the Services or which Services you use.  We may change any functionality at any time, and these Terms apply to all users regardless of whether they are teams, buyers, sellers, visitors, users, or others who register for or otherwise access the Services for any reason.  Certain Services may be subject to additional terms and conditions specified by us from time to time, and your use of such Services is subject to those additional terms and conditions, which are hereby incorporated into these Terms by reference.  For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, the parties acknowledge and agree that these Terms are solely a contract between you and Verbero and expressly do not govern any sale, transaction, or other relationship between you and any other user, including without limitation with respect to any player or affiliate of your team or with respect to any Third-Party Content or Third-Party Integration (defined below). Verbero shall have no liability for your interactions with other users or for any user’s action or inaction.

 

If you are an account administrator, “your users” includes any employee, contractor, agent, or representative visiting the site or using the Services on your behalf. You are solely responsible for all usage of, or activities on, the Services by you and by those you authorize or allow to use, or provide access to, the Services.

 

You are solely responsible for all files and information that you or your users upload to or share through Verbero and will ensure that your users comply with your obligations under these Terms. We may impose reasonable limits on uses of the Services to prevent degradation of the performance of the Services for you or other users.

 

Only you may use your account and are responsible for your account. If you become aware of any unauthorized use of the Services or your account, please contact us immediately at info@verbero.com. In addition, you are solely responsible to ensure that your hardware, network, Internet connection, and other equipment meet the requirements to use the Services.

 

2. Changes to These Terms

 

We reserve the right to modify these Terms at any time. We will post the most current version of these Terms on our website. Any revisions to these Terms will be effective immediately upon posting by us. For any material changes to these Terms, we will take reasonable steps to notify you of such changes, via a banner on the website, email notification, another method, or combination of methods. In all cases, your continued use of the Services after publication of such changes, with or without notification, constitutes binding acceptance of the revised Terms.

 

3. Changes to the Services

 

We are constantly changing and improving the Services. We may deploy changes, updates, or enhancements to the Services at any time. We may also add or remove functionalities or features, or we may suspend or stop the Services altogether. Accordingly, either you or Verbero may terminate your use of any Service for any reason at any time.

 

4. Suspension or Termination of Your Account

 

We may suspend or terminate your account for any violation of these Terms, for any activities prohibited by these Terms, for circumstances beyond our control, or if required by law. If we do so, then your access to and use of the Services will be suspended or terminated immediately.

 

5. Team Stores, Sales, and Customization

 

The Services, among other things, may permit users to purchase certain apparel, equipment, accessories, and/or other related items and enable customization for customers that are authorized by organizations to design, purchase, and/or arrange in team stores merchandise.  All team sales that are purchased via order form placed by an organization, or placed by individual users and aggregated for such organization, are subject to the Verbero Team Terms of Sale (the “Terms of Sale”) attached below to these Terms, which are incorporate herein by reference.

 

6. Product Descriptions and Return Policy

 

We attempt to be as accurate as possible. However, we do not warrant that product descriptions or other content of the Services are accurate, complete, reliable, current, or error-free. If a product offered by us is not as described, your sole remedy is to return it to us under our refund policy, which can be found at https://verbero.com/pages/return-policy-and-warranty-information.

 

7. Customer Support

 

Customer support is provided by phone, email, and chat functionality through the Services. Please see the contact or about us page for more details. Customers may use these support resources to ask questions and to report errors or problems with the Services.

 

8. Consent to Electronic Communications and Solicitation

 

You agree that we may send you (including via email) information regarding the Services, such as notices about your use of the Services, updates to the Services and new features or offerings, and promotional information and materials. Notices emailed to you will be considered given and received when the email is sent.

 

9. Verbero Proprietary Rights

 

You are not being granted any rights whatsoever in any intellectual property or proprietary rights of Verbero or its licensors except for a limited, nonexclusive, nontransferable, nonassignable and revocable license to use the Services solely for your authorized use as described in and subject to these Terms. All right, title, and interest, including all patents, copyrights, trade secrets, and any other intellectual property or proprietary rights, in and to the Services are owned solely by Verbero and its licensors. This includes all know-how, technology, and other intellectual property or proprietary information developed during the provision of the Services.  No title to or ownership of any intellectual property or proprietary rights related to the Services is transferred to you or anyone else pursuant to these Terms.

 

If you or your users provide comments, suggestions, or recommendations to us about the Services (“Feedback”), you and your users are automatically assigning any such Feedback to us.

 

10. Restrictions on Use

 

You agree not to decompile, reverse engineer, or undertake any similar efforts with respect to the Services. You will not create any derivative works of the Services. You will not access or use the Services to develop your own software or services, benchmark the Services, frame or mirror the Services, or copy or modify of any part of the Services.

 

Moreover, you agree that you will not, and that you will not encourage others or assist others to, harm the Services or use the Services to harm others. For example, you must not use the Services to harm, threaten, or harass another person, organization, or Verbero. You must not: (a) damage, disable, overburden, or impair the Services (or any connected network); (b) resell or redistribute the Services; (c) use any unauthorized means to modify, reroute, or gain access to the Services or any part of the Services; (d) use any automated method to access or use the Services (except that operators of public search engines are granted revocable permission to use spiders to copy publicly available materials for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (e) copy, distribute, or disclose any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (f) use the Services to distribute unsolicited promotional or commercial content or other unwanted solicitations; (g) cause or encourage any inaccurate measurements of genuine user engagement with the Services; (h) misuse any reporting, flagging, complaint, dispute, or appeals process, including by making groundless, vexatious, or frivolous submissions; (i) sell, advertise, sponsor, or promote anything without Verbero’s prior written consent and a separate written agreement with Verbero with respect to such activities; (j) use the Services to violate any law or anyone’s rights or to distribute malware or malicious content; (k) use any language that is, or post, upload, transmit, send, or otherwise make available on or through the Services any content that is, or depicts anyone engaged in any act deemed by us to be pornographic, obscene, sexually explicit, perverse, illicit, indecent, lewd, or lascivious; or (l) engage in personal or group attacks or use any language that is, or post, upload, transmit, send or otherwise make available on or through the Services any content about an individual or a group that is, deemed by us to be abusive, intimidating, bullying, harassing, hateful, or violent or that we believe victimizes, degrades, defiles, or disparages any individual or group.

 

You are solely responsible for compliance with applicable laws and regulations related to your and your users’ use of the Services.

 

You may not use any metatags or any other “hidden text” utilizing “Verbero” or any other name, trademark, or product or service name of Verbero without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned in the Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us.

 

You must comply with all applicable import and export control laws, rules, and regulations of the United States and other countries, and you must not transfer, by electronic transmission or otherwise, any content or goods subject to restrictions under such laws, rules, or regulations to a site, application, destination, location, person or entity, or for an end use, prohibited thereby. You will not post, upload, transmit, send or otherwise make available any of Your Content on or through the Services that cannot be exported without prior government authorization or notification, including without limitation certain types of encryption software.

 

You agree, represent, warrant, covenant, and guarantee that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.

 

11. Your Content

 

All digital files and information (including logos, names, rosters, player numbers, size information, artwork, graphics, videos, pictures, messages, attachments, materials, or other content) that you or your users upload to or share through the Services (“Your Content”) is yours. You are solely responsible for Your Content. This includes making sure that you have all the rights you need to Your Content and that Your Content does not violate any law or these Terms or the Verbero’s guidelines or other policies.

 

By providing Your Content to Verbero or by uploading or sharing Your Content to the Services, you grant to Verbero a nonexclusive, royalty-free, irrevocable, and fully sublicensable license to use Your Content (including to reproduce, distribute, prepare derivative works, display, and perform it) in connection with the Services and Verbero’s (and its successors’ and affiliates’) business, including for the purpose of promoting and redistributing part or all of the Services (e.g., promotions on social media or through email marketing or other channels). This also includes the right to aggregate anonymous data from Your Content regarding use and functioning of the Services by you and other users, and such aggregated data will be our property.  You represent and warrant to us that you own or otherwise control all of the rights to Your Content that you make and have the right to submit it for this purpose and that our use of Your Content in providing the Services will not violate any third party rights.

 

You agree that all artwork (including logos) you submit to us accurately depicts the design features you desire and that we have the right to edit or alter your artwork to fit our printing standards and requirements. If your artwork does not fit our printing standards and requirements, we may refuse to proceed with any order(s) using such artwork and shall not be liable in any manner as a result in any delivery delays.

 

You also grant each other user of the Services a worldwide, royalty-free license to access Your Content through the Services, and to use Your Content, including to reproduce, distribute, prepare derivative works, display, and perform it, only as enabled by a feature of the Services. For clarity, this license does not grant any rights or permissions for any user to make use of Your Content independent of the Services.

 

If we reasonably believe that any of Your Content is in breach of these Terms or may cause harm to Verbero, our users, or third parties, we may remove or take down all or any part of Your Content in our discretion.

 

We respect the intellectual property of others and will respond to notices of alleged copyright infringement that comply with the law. We reserve the right to delete or disable Your Content alleged to violate copyright laws or this Agreement and reserve the right to terminate the account(s) of violators.

 

We reserve the right, but undertake no duty, in our sole discretion, with or without notice, to review, edit, move, add, delete, or otherwise change any features, functionality, and/or Your Content available on or through, or downloadable from, the Services, including without limitation any of Your Content. Any changes to the Services may not be consistent across all platforms or devices. If any changes require you to obtain a new, additional, or different device or other equipment, hardware, software, and/or telephone, mobile, wireless, Internet and/or other services, you are solely responsible for any additional expense. Even after Your Content is removed from your account/profile, your messages, post(s), and/or threads, regardless of whether such removal or deletion is by you or by us, copies of Your Content may be retained and/or remain viewable by us, our licensors, vendors, service providers, and/or other third parties, including other users.

 

It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify our copyright agent as set forth in the DMCA. The required information must be submitted to the DMCA Agent at info@verbero.com, subject “DMCA Notice, Verbero Inc.”

 

Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.

 

Please note that this procedure is exclusively for notifying us that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws. In accordance with the DMCA and other applicable law, we have adopted a policy of terminating access, in appropriate circumstances, of users who are deemed to be repeat infringers. We may also, at our sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

 

12. FEES AND PAYMENT

 

12.1   Prices and Orders

The total price required for a purchase on the Services depends on a number of factors that may change between the time you start adding items to your cart and the time you submit your order. Items on the Services have a price associated with each item. In addition, your total purchase price may be affected by factors such as particular customization requests and your shipping address. You must review your complete order, including the final total purchase price and the final individual item prices, before you submit your order.

 

Your submission of an order is an offer by you to purchase the items selected at the prices indicated immediately prior to your submission of the request. This offer remains open until we email you to confirm that it has been accepted or that it has not been accepted. We cannot confirm the price of an item until after your order is placed.

 

Despite our best efforts, a small number of the items may be mispriced. We reserve the right to cancel any orders, with no further obligations to you, even after your receipt of the order confirmation mentioned above or a shipping notice. We may, at our discretion, either contact you for instructions or cancel your order and notify you of the cancellation.

 

12.2   Promotions

We may from time to time offer promotional discounts, special offers, giveaways, or other promotions.  We reserve the right to change or end promotions at any time.

 

12.3   Payment Information

All payments made by you to Verbero shall be facilitated through our third-party payment processing service, which will be subject to such third party’s terms of service. All information that you provide in connection with a monetary transaction interaction with the Services must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Services at the prices in effect when such charges are incurred. You will pay any and all applicable taxes, if any, relating to any such purchases, transactions, or other monetary transaction interactions.

 

12.4   Title and Risk of Loss

Risk of loss and title of items purchased on the Services passes to you upon delivery of the items to the common carrier.

 

13. Third-Party Content and Integrations

 

Through the Services, you may have the ability to access and/or use content provided by third parties and links to websites and services maintained by third parties (“Third-Party Content”). Verbero cannot guarantee that such Third-Party Content, in the Services or elsewhere, will be free of errors or material you may find objectionable or otherwise inappropriate or of malware or other contaminants that may harm your computer, mobile device, or any files therein. Verbero makes no warranties of any kind and assumes no liability of any kind related to your access or use of, or inability to access and use, any Third-Party Content.

 

We may make available third-party applications, products, or services for use in connection with the Services (“Third-Party Integration”). Your use of any Third-Party Integration and rights with respect to such Third-Party Integration are solely between you and the applicable third party. Verbero makes no warranties of any kind and assumes no liability of any kind related to your access or use of, or inability to access and use, any Third-Party Integration. If you have any questions or concerns regarding any Third-Party Integration, please contact the applicable third party.  In addition, the Services may contain links to third-party websites and online services that are not owned or controlled by Verbero. Verbero has no control over, and assumes no responsibility for, such websites and online services. Be aware when you leave the Services, we suggest you read the terms and privacy policy of each third-party website and online service that you visit.

 

PROVIDERS OF THIRD-PARTY CONTENT OR THIRD-PARTY INTEGRATIONS MAY REQUIRE THAT YOU AGREE TO THEIR ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS, AND/OR RULES. YOUR COMPLIANCE WITH ANY SUCH ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS, AND/OR RULES IS SOLELY YOUR RESPONSIBILITY AND WILL HAVE NO EFFECT ON YOUR CONTINUING OBLIGATION TO COMPLY WITH THESE TERMS WHEN USING THE SERVICES. WE SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE ACTS OR OMISSIONS OF SUCH THIRD PARTIES.

 

14. Disclaimers

 

TO THE EXTENT NOT PROHIBITED BY LAW, VERBERO (A) PROVIDES THE SERVICES "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE"; (B) MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED (E.G., WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT); AND (C) DOES NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS OR THAT YOUR CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. ALL USE OF THE SERVICES IS AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VERBERO OR THROUGH THE SERVICES (INCLUDING WITHOUT LIMITATION ARISING FROM YOUR USE OF ANY VEHICLE HISTORY, STATISTICS OR ANALYTICS, VALUATION TOOLS, MESSAGES OR ADVICE FROM VERBERO EXPERTS, OR OTHER INFORMATION) WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

 

VERBERO DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY, WHETHER IN CONNECTION WITH THIRD-PARTY CONTENT, THIRD-PARTY INTEGRATION, OR OTHERWISE, THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND VERBERO WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

 

IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

 

15. Indemnification

 

To the extent not prohibited by law, you agree to defend, indemnify, and hold harmless Verbero, its affiliates, officers, directors, employees and agents (“Verbero Parties”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (a) your use of and access to the Services; (b) your violation of any of these Terms; (c) your violation of any third-party right, including without limitation any copyright, property, or privacy right; or (d) any claim that Your Content caused damage to a third party. This defense and indemnification obligation will survive any termination of these Terms or your use of the Services.

 

16. Limitation of Liability

 

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL THE VERBERO PARTIES, OR ANY OF THEM, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH ENTITY OR PERSON HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.

 

THE AGGREGATE LIABILITY OF THE VERBERO PARTIES RELATING TO THE SERVICES WILL BE LIMITED TO TWENTY U.S. DOLLARS ($20) OR THE TOTAL AMOUNT OF FEES RECEIVED BY VERBERO FROM YOU FOR THE USE OF PAID SERVICES IN CONNECTION WITH THE APPLICABLE CLAIM, WHICHEVER IS GREATER. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.

 

SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, IN WHICH CASE SUCH LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.

 

17. Privacy Policy

 

Your privacy is important to us. Please carefully review our privacy policy at https://verbero.com/privacy-policy, which is incorporated by reference into these Terms. Our privacy policy details the way we collect, use, and disclose information about you.

 

18. Arbitration, Waiver of Class Action Suits, and Dispute Resolution

 

THIS SECTION 18 SHOULD BE BROADLY CONSTRUED TO COVER ANY CLAIM RELATING TO ANY ASPECT OF YOUR RELATIONSHIP WITH US, INCLUDING BUT NOT LIMITED TO ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS.

 

18.1         You agree that in the event you have any Claim against us, you will first contact us and make a good faith sustained effort to resolve the Claim before resorting to more formal means of resolution, including without limitation arbitration or any court action. You may contact us through the means described on the Services or at info@verbero.com. “Claim” means any claim, dispute, demand, proceeding, cause of action, judgment, damage, liability, loss, cost, or expense (including but not limited to reasonable attorneys’ fees) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, that has accrued or may hereafter accrue, whether based in contract, statute, regulation, ordinance, tort (including but not limited to fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory.

18.2         IN THE EVENT ANY CLAIM CANNOT BE INFORMALLY RESOLVED, YOU AND WE AGREE TO ARBITRATE ALL CLAIMS ON AN INDIVIDUAL BASIS IN ACCORDANCE WITH THE TERMS OF THE ARBITRATION PROVISIONS OF THESE TERMS, RATHER THAN LITIGATE THE CLAIM IN COURT, EXCEPT FOR THE CLAIMS EXCLUDED FROM ARBITRATION LISTED BELOW IN SECTION 17.4. ARBITRATION MEANS YOU WILL HAVE A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. BY ENTERING INTO THIS AGREEMENT, YOU AND WE EACH AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY FOR ALL CLAIMS, EXCEPT FOR THE CLAIMS EXCLUDED FROM ARBITRATION LISTED BELOW IN SECTION 17.4.

18.2.1      The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules. For more information about the AAA and the arbitration process, please visit the AAA website at www.adr.org.

18.2.2      Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules and applicable law.

18.2.3      All issues are for the arbitrator to decide, except those issues relating to the scope, application, and enforceability of this arbitration provision are for the court to decide.

18.2.4      The Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. The laws of the United States, State of Tennessee, without regard to any principles of conflict of laws, applies to any arbitration under this section.

18.2.5      Unless you and we agree otherwise, any in-person hearings for the arbitration shall take place in the State of Tennessee, unless otherwise required by applicable law.

18.2.6      The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction.

18.2.7      This agreement to arbitrate shall survive any termination of these Terms, including any termination of your relationship with us.

18.3   Restrictions on Claims

AN ARBITRATION OF ANY CLAIM SUBJECT TO THIS ARBITRATION PROVISION MUST BE FILED WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO SUCH CLAIM, OTHERWISE, THE CLAIM IS BARRED AND THE RIGHT TO PURSUE SUCH CLAIM IS WAIVED.

BY ENTERING INTO THESE TERMS, YOU WAIVE YOUR RIGHT TO PARTICIPATE IN OR BRING A CLASS ACTION IN COURT OR A CLASS ARBITRATION. ALL PARTIES MUST BE INDIVIDUALLY NAMED. TO THE FULL EXTENT PERMITTED BY LAW, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED IN COURT ON A CLASS ACTION OR CONSOLIDATED BASIS ON BEHALF OF OTHER USERS, SUBSCRIBERS, REGISTRANTS, OR OTHER PERSONS SIMILARLY SITUATED, OR BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL).

AS STATED MORE FULLY IN SECTION 15 ABOVE, ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) ARISING FROM OR OUT OF ANY CLAIM WITH US.

18.4   Excluded Claims

WE AND YOU AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION (“EXCLUDED CLAIMS”): (1) ANY CLAIM FILED BY YOU OR US IN SMALL CLAIMS COURT WHERE THE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF SUCH COURT; AND (2) ANY CLAIM REGARDING ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS.

You further agree that for Excluded Claims and other Claims in which arbitration is denied, (i) the restrictions set forth in Sections 18.3 above shall apply; (ii) regardless of where you access, visit, and/or use the Services, such Claims shall be governed and construed in accordance with the laws of the United States, State of Tennessee, without regard to any principles of conflict of laws; and (iii) such Claims will be resolved exclusively by a state or federal court located in Tennessee, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens. Should there be a conflict between the laws of Tennessee, and any other laws, the conflict will be resolved in favor of Tennessee law.

 

18.5   Severability

If for any reason an arbitrator or court of competent jurisdiction finds any provision of these Terms, or portion thereof, to be invalid or unenforceable, that provision or portion will be enforced to the maximum extent permissible so as to give effect the intent of the parties, and the remainder of these Terms will continue to be valid and enforceable in full force and effect.

18.6         IF YOU DO NOT WISH TO BE BOUND BY THESE ARBITRATION PROVISIONS AND CLASS ACTION WAIVER, YOU MUST NOTIFY US IN WRITING BY CONTACTING US AT THE ADDRESS BELOW WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCESS, VISIT, REGISTER FOR, AND/OR USE THE SERVICES. YOUR WRITTEN NOTIFICATION TO US MUST INCLUDE: (1) YOUR FULL NAME AND ADDRESS; (2) THE NAME OF THE SERVICES YOU ACCESSED, VISITED, REGISTERED FOR, AND/OR USED; AND (3) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE CLAIMS WITH US THROUGH ARBITRATION AND YOU DO NOT WAIVE YOUR RIGHT TO BRING A CLASS ACTION IN COURT. YOUR DECISION TO OPT OUT OF ARBITRATION AND THE CLASS ACTION WAIVER WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR YOUR USE OF THE SERVICES. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION AND THE CLASS ACTION WAIVER, YOU DO NOT NEED TO DO SO AGAIN.

 

19. Miscellaneous

 

19.1   Assignment

We may assign or transfer our rights and obligations under these Terms, in whole or in part, at any time without notice. You may not assign these Terms or transfer any rights to use the Services, unless we allow you to do so in writing.

 

19.2   Waiver

The failure of either of us to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any of our respective rights or remedies will not be construed as a waiver or relinquishment to any extent of such right to assert or rely upon any such provision, right, or remedy in that or any other instance, all of which will remain in full force and effect.

 

19.3   Entire Agreement; Severability

These Terms apply to the maximum extent permitted by law. If any government authority holds that we cannot enforce a part of these Terms as written, you and we will replace such part with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect. These Terms (including, for the avoidance of doubt, the Terms of Sale and the Privacy Policy) comprise the entire agreement between you and us regarding their subject matter and supersede any oral and written understandings, communications, or agreements regarding your use of the Services or other matters described in these Terms.

 

19.4   Governing Law

You agree that these Terms, and your relationship with Verbero will be governed by the laws of the State of Tennessee regardless of conflict-of-laws principles. However, some jurisdictions have laws that require agreements to be governed by the local laws of such jurisdiction for such users. This paragraph does not override those laws. We both agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to these Terms. We both agree that the prevailing party in any action to enforce these Terms will be entitled to recover costs and expenses including, without limitation, reasonable attorneys’ fees and other legal costs.

 

19.5   Relationship

Verbero and you are not legal or joint venture partners or agents. We are independent contractors. These Terms are solely for your and our benefit. It is not for the benefit of any other person, except for permitted assignees and successors.

 

19.6   Notice to California Users

Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210

 

19.7   U.S. Government Restricted Rights

If you, or any of your users, is a U.S. government entity or if these Terms otherwise become subject to the Federal Acquisition Regulations (FAR), you acknowledge that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government user as commercial computer software and commercial computer software documentation subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. government end users acquire such software and documentation with only those rights set forth herein.           

 

VERBERO TEAM TERMS OF SALE

1. Applicability. These Verbero Team Terms of Sale (together with the Order, these "Terms of Sale") govern the sale of the goods ("Goods") and customization services ("Custom Services") by Verbero Inc. ("Seller") to the buyer named on an Order (defined below) ("Buyer"). These Terms of Sale prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of an Order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms of Sale.
2. Delivery of Goods and Performance of Custom Services.

(a)             Goods will be delivered within a reasonable time after the receipt of a signed Order, subject to availability of finished Goods and Buyer’s compliance with its obligations under Section 2(b). Risk of loss and title to Goods passes to Buyer upon Seller’s delivery of Goods to the common carrier, FOB Shipping, using Seller's standard methods for packaging and shipping such Goods. Seller shall not be liable for any delays, loss, or damage in transit. Seller may, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of an Order.

(b)            With respect to the Custom Services, Buyer shall (i) cooperate with Seller in all matters relating to the Custom Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Custom Services; (iii) provide such materials or information as Seller may reasonably request to carry out the Custom Services in a timely manner and ensure that such materials or information are complete and accurate; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws as well as the Buyer Content requirements set forth in Schedule A in relation to the Custom Services before the date on which the Custom Services are to start. If Seller's performance of its obligations under these Terms of Sale is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under these Terms of Sale or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.

3. Non-Delivery.  Any liability of Seller for non-delivery of Goods shall be limited to replacing such Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. The remedies set forth in this Section 3 are Buyer's exclusive remedies for any non-delivery of Goods.
4. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within three (3) days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Goods" means only the following: (a) product shipped is different than identified in Buyer's purchase order; or (b) product's label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. Solely in the event that Seller requests return of the Nonconforming Goods, Buyer shall ship, at Seller’s expense, the Nonconforming Goods to the address specified by Seller. The remedies set forth in this Section 4 are Buyer's exclusive remedies for any Nonconforming Goods. Except as provided under this Section 4, all sales of Goods to Buyer are made on a one-way basis, and Buyer has no right to return Goods purchased under these Terms of Sale to Seller.
5. Price. Buyer shall purchase the Goods and Custom Services from Seller at the prices (the "Prices") set forth in the Order. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, tariffs, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personal or real property, or other assets.
6. Payment Terms. The payment terms for Goods and Custom Services are set forth in the Order.  Unless otherwise set forth in the Order, Buyer shall make all payments hereunder by wire transfer or check in U.S. dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms of Sale or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods or performance of any Custom Services and stop Goods in transit if Buyer fails to pay any amounts when due hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller.
7. Limited Warranty.

(a)             All products manufactured by Seller have a limited warranty for 30 days from receipt of Goods ("Warranty Period") for manufacturer defects.

(b)            EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 7(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

(c)             Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 7(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

(d)            With respect to any Goods subject to the warranty in Section 7(a) during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller. The remedies set forth in this Section 7 are Buyer's exclusive remedies for any breach of the warranty set forth in Section 7(a).

8. Limitation of Liability.

(a)             IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b)            IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER GIVING RISE TO SUCH CLAIM.

9. Termination. In addition to any remedies that may be provided under these Terms of Sale, Seller may terminate any Order and/or these Terms of Sale with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under any Order or these Terms of Sale; (b) has not otherwise performed or complied with any of these Terms of Sale, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Provisions of these Terms of Sale which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms of Sale.
10. Force Majeure.  No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms of Sale, for any failure or delay in fulfilling or performing any term of these Terms of Sale (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of the Order; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) other events beyond the reasonable control of the Impacted Party, provided that the Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.