Legal Documents
The Fine Print
Our Terms & Conditions:
LAST REVISED AND UPDATED AS OF: November 22nd, 2022
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.
These terms (the “Terms”) govern your use of the Web site at www.SmallBizITNovi.com (“Site” or “Website”) and any technology support services provided by SmallBiz IT LLC, its subsidiaries, affiliates and contractors (hereinafter referred to as “Supplier” or “SmallBiz IT”) either in-person, by telephone, computer or cellular device. By accessing, ordering or using the Services in-person, via telephone, or online via the Website, the client (hereinafter referred to as “Client”, meaning either the individual ordering or using the services, or, for services designed for businesses, the legal entity that the individual is authorized to represent and on whose behalf the Services are purchased) and other users of the Services (collectively, “Users”) agree to these Terms and our Privacy Policy available at SmallBizITNovi.com/legal/privacy-policy. If, at Client’s request, Supplier agrees to send any employees or representatives to Client’s residence, place of business, or other location designated by Client, then these Terms shall govern such provision of services as well. If Client does not agree to these Terms, Client may not access or use the Services or permit others to do so on Client’s behalf.
NOTE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
1. SCOPE OF SERVICES
Client may order and initiate the Services via telephone, via the Site, or other means made available by Supplier. Supplier will use commercially reasonable efforts to answer Client’s technology question and resolve Client’s technology problem for a fee as set forth in the Site or as quoted via e-mail or on the telephone, as applicable. Supplier may provide certain portions of the Services via remote control session or e-mail. Supplier may set forth limits to the technology Supplier supports. Certain Services may have minimum system requirements.
Supplier Services may include Services that are available on a one-time basis, for a fee (“Individual Services”); as well as subscription Services, which are an entitlement to more than one Service over a period of time, for a recurring fee (“Subscription Services” or “Subscription”). Individual Services and Subscriptions are included in the general definition of Services under these Terms.
2. TERMS OF USE
Supplier provides Client with access to and use of the Services subject to Client’s compliance with the Terms. Supplier reserves the right to refuse to provide the Services to anyone at any time without notice for any reason. Client represents and warrants to Supplier that (a) Client is at least 18 years old; (b) Client has the right, capacity and authorization necessary to legally bind Client to the Terms; (c) Client has read and agrees to the terms of the Privacy Policy on the Site, (d) Client will comply with all treaties, laws, rules and regulations applicable to Client’s use of the Services, (e) any information Client submits to Supplier is correct and complete, and (f) any payment or credit card information Client supplies is correct.
3. AUTHORIZATION TO ACCESS YOUR COMPUTER; MONITORING OF THE SERVICES AND PHONE CALLS
Client acknowledges that by Client’s use of the Services Client is authorizing Supplier to access and control Client’s computer or device (collectively “Device”) for the purposes of diagnosis, service and repair.
In connection with delivering the Services, Supplier may download and use software, gather system data, take remote control of Client’s Device and access or modify Client’s Device settings. By accepting these Terms, Client hereby grants Supplier the right to access Client’s Device, download and use software on Client’s Device to gather system data, repair Client’s Device, take remote control of Client’s Device and/or change the settings on Client’s Device while performing the Services. Other than as set forth in the warranty section below, Client agrees that Supplier has no responsibility or liability under any circumstance at any time for any loss or harm that may arise from or may be related to the Services.
Supplier may, but has no obligation to, monitor the Services, including telephone calls and online sessions for purposes of improving customer service, internal training and internal market research. Client hereby grants permission to Supplier to monitor the Services including phone calls and to use or disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request; to provide the Services to Client; to protect Supplier and/or his customers; and to enhance the types of Services Supplier may provide to Client in the future. Client also grants Supplier permission to combine Client’s information with that of others in a way that does not identify Client or any individual personally to improve the Services, for training, for marketing and promotional purposes, and for other business purposes. Please see Our Privacy Policy for further details.
Supplier may, but has no obligation to, monitor and/or review all materials posted to the Site by third parties, and Supplier is not responsible for any such materials posted by third parties. Supplier is not responsible for any failure to monitor, review and/or delete any materials posted to the Site by third parties. However, Supplier reserves the right at all times to disclose any information as necessary or advisable to satisfy any law, regulation or government request; and to edit, to refuse to post or to remove any information or materials, in whole or in part, that, in Supplier’s sole discretion, are in violation of these Terms or applicable law. Supplier may also impose limits on certain features of the Site or restrict Client’s access to parts or all of the Site without notice or penalty if Supplier believes Client is in breach of the guidelines set forth in Supplier’s Terms or in violation of applicable law without notice or liability.
4. USE OF SOFTWARE AND TOOLS
Supplier may need to download and/or run software on Client’s Device to help diagnose and resolve Client’s technology problem. Supplier uses several types of software, including
- Software providing Device system information to Supplier which helps Supplier diagnose and resolve Client’s technology problem;
- Software allowing Supplier to remotely control Client’s Device and modify its settings or software; and/or
- Software consisting of utilities and other tools to improve Device performance and help resolve Client’s technology problem.
Client acknowledges and agrees that use of all Supplier software and third party software and tools accessed, downloaded or otherwise provided or made available with the Services (collectively “Software”) are subject to the license agreements that may appear or be referenced when Client accesses or downloads the Software. Client may not access, download or use any Software without agreeing to the terms and conditions of the license agreements without modification. Client agrees that Supplier may download and utilize Software from third party Web sites and accept any applicable license agreements on Client’s behalf. Client acknowledges and agrees that Supplier may download and install trial versions of Software that will expire and cease to function after a certain period of time (usually thirty days) unless Client purchases a license to continue using such Software. Client may use the Supplier software only in connection with the Services and for no other purpose. Client agrees that Supplier may, but is not obligated to, remove any Software downloaded to Client’s Device during the Services after Supplier has completed or terminated the Services.
5. CLIENT RESPONSIBILITIES
Client must cooperate with Supplier and promptly respond to Supplier’s requests for information and comply with Supplier’s requests to take actions to resolve Client’s technology problem. In order to help resolve Client’s technology issue, Client may be required to consent to the downloading and use of Software on Client’s Device and accept all applicable license agreements for the Software.
6. REGISTRATION, PASSWORDS AND SECURITY
In order to use any or all Services, Supplier may require that Client registers. During the registration process, Client may be asked to designate, or Supplier may designate for Client, a user name and password. Client is responsible for maintaining the confidentiality of any password or account information Client receives from Supplier, and is responsible for all activities that occur using that password or other account information. Client must provide complete and accurate identification, contact, and other information required as part of the registration process. Client must notify Supplier immediately upon learning of any unauthorized disclosure or use of Client’s password or other account information. Supplier has no liability for any unauthorized use of the Services under Client’s account or on Client’s Device.
7. USE OF THE SERVICES
Client’s use of the Services is only for Client’s personal and internal business purposes on Client’s technology, and not for commercial use, including resale or transfer to others. Client may not sell, lease or rent access to or use of the Services. Client may not allow manufacturers, suppliers or vendors of Client’s technology, or providers of services relating to such technology, to access or use the Services.
Client may not use, download or copy any information, data, text, photographs, graphics, video, or other materials provided with the Services (“Content”) unless: (1) Client uses the Content solely for personal, informational and non-commercial purposes; (2) Supplier’s trademarks and copyright symbol and statement set forth on each page of the Site appears on each downloaded or copied page; and (3) no modifications are made to any Content. The rights granted to Client in connection with the Services constitute a license and not a transfer of title. Supplier reserves the right to revoke the authorization to view, download and print the Content available on the Site at any time, and any such use shall be discontinued immediately upon notice from Supplier. Except as expressly provided herein, Client may not use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit or distribute any Content from the Services in whole or in part without the prior written permission of Supplier. Any rights not expressly granted herein are reserved by Supplier.
8. RESTRICTIONS
Client shall not: (a) “mirror” any Content on the Site on any other server without Supplier’s prior express written permission, (b) use the Service for any illegal purpose, (c) misuse, abuse or make any unauthorized use of any property, network, website, personnel or equipment of Supplier or its customers or its suppliers, including but not limited interfering with or otherwise disrupting networks connected to the Service, (d) engage in any activities or actions in connection with the Services that infringe or misappropriate the intellectual property rights of others, including without limitation, copyright, patent, trademark, trade secret and confidential information, (e) engage in any activities that violate the personal privacy or publicity rights of others; (f) access, monitor or use data, traffic, computers, systems, facilities or networks provided with or accessible from the Services, without proper authorization, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; (g) send unsolicited commercial messages, advertising, informational announcements or communications in any form (“SPAM”) in connection with the Services; or (h) interfere with the Services or any system, service, network, or person accessible from the Services, including without limitation deliberate attempts to overload a system by the multiple postings of messages.
9. SECURITY
While Supplier uses reasonable security measures to deliver the Services, Client understands and acknowledges that no data transmission over the Internet can be guaranteed to be 100% secure and in any event Supplier cannot guarantee that any personal information Client submits to Supplier will be free from unauthorized intrusion.
10. FEES AND RENEWAL
Fees for Subscriptions and other Services will be stated at the time of Client’s purchase or sign-up, as applicable, and provided on our Site. The fees for our Services, including Subscriptions, may change at any time. For Subscription Services, the applicable fees will depend on the type of subscription that Client purchases, and the duration of the subscription. Fees may be subject to tax, collected by Supplier or a third party through which Client transacts, and are non-refundable except in the specific circumstances described in these Terms. For non-subscriptions Services Supplier accepts cash, personal checks and credit cards for payment of Client’s Service fees, whereas for any and all Subscription Services Supplier only accepts credit cards for payment of Client’s Service fees. The fee for the Services will be charged directly on Client’s credit card and Client agrees to pay the charges applicable to Client’s selected Services, as well as any applicable taxes.
If Client’s Subscription or Service involves a recurring payment of a fee (including a renewal), unless Client notifies Supplier before a charge that Client wants to cancel or does not want to automatically renew Client’s Service or Subscription, Client understands it will automatically continue and Client authorizes Supplier, or a third party through which Client transacts (without notice to Client, unless required by applicable law) to collect the then-applicable fees and any taxes, using any credit card Supplier has on record for Client. Client must contact Supplier if Client does not wish to renew Client’s Subscription and/or Service; if Client does not contact Supplier, the Subscription and/or Service that Client selected will automatically renew for the same subscription duration that Client initially selected, at Supplier’s then-applicable fees.
If all credit cards Supplier has on file for Client are declined for payment of Client’s Subscription and/or Service fees, Supplier may cancel Subscription and/or Service, as applicable, unless Client provides Supplier with a new credit card. If Client provides Supplier with a new credit card and is successfully charged before Client’s Service or Subscription is cancelled, Client’s new Service or Subscription period will be based on the original renewal date and not the date of the successful charge.
11. SERVICE AND SUBSCRIPTION CANCELLATION
Client may cancel Client’s Subscriptions and/or Services by visiting your account details page provided on Supplier’s Site (“Your Account“) and adjusting Client’s settings and Subscription and/or Service preferences, or by contacting Supplier at 1 (248) 444 – 5948. Unless Client has participated in a promotional offer for a Subscription and/or Service that specifically provides other terms for cancellation or refund, Client may cancel
- Any Individual Services anytime up to a minimum of 48 hours prior to the scheduled date and time for the delivery of the respective Service; and
- Any Subscription anytime up to a minimum of five (5) business days prior to the first day of the next (usually monthly) billing cycle.
Any Individual Services or Subscriptions canceled after the cancellation deadlines listed above are not refundable.
12. REFUND POLICY
Services and/or Subscriptions that are purchased are eligible for a full refund within the first thirty (30) days of the date of purchase (date of purchase can be found on Client’s purchase confirmation e-mail). Supplier applies refunds to the tender it was purchased with. Supplier handles refunds on a case-by-case basis with the ultimate objective of utmost Client satisfaction. Supplier stands behind all Services provided and wants all customers to be satisfied with them. Supplier will work with Client to make sure Client is taken care of, but from time to time Supplier may not be able to accommodate a refund.
13. CHANGES TO THE SERVICES
Supplier may, in Supplier’s discretion, modify, terminate, change, suspend or discontinue the Terms and all elements of them and any aspect of the Service, including any aspects of the individual Services, Subscriptions, or any promotional offers. In case of any such changes to the Terms Supplier will notify Client at least thirty (30) days prior to the effective date of the revised Terms using the contact information provided by Client and accessible to Client by visiting your account details page provided on Supplier’s Site (“Your Account“). If any change to the Terms is found invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes and the remainder of the Terms. Client’s continued use of the Service after Supplier changes the Terms constitutes Client’s acceptance of the changes. If Client does not agree to any changes, Client must not use the Service and must cancel the Services.
14. TERMINATION BY SUPPLIER
Supplier’s business may change over time and Supplier reserves the right
- To cancel any Individual Services, in whole or in part, and to terminate use of the Service at Supplier’s discretion with a two (2) day notice; and
- To cancel any Subscription, in whole or in part, and to terminate use of the Services included in such Subscription at Supplier’s discretion with a ninety (90) day notice.
Furthermore, if Supplier determines that Client’s conduct violates the Terms, violates any applicable law, involves fraud or misuse of the Service, or is harmful to Supplier’s interests or another user, Supplier reserves the right to cancel the services, including any Subscription or Individual Service, in whole or in part, and to terminate use of the Service at Supplier’s discretion without notice.
If Supplier does cancel any Individual Service and/or Subscription, Supplier will refund the fees paid for the applicable Services for the time period, if any, after termination of the Services, unless Supplier terminates Client’s membership for conduct that Supplier determines violates the Terms, violates any applicable law, involves fraud or misuse of the Service, or is harmful to Supplier’s interests or another user.
Other than providing a refund when Supplier terminates the Services, Supplier will not be liable to Client or any third-party for termination of the Services for any reason. Client acknowledges and agrees that upon termination, Supplier may immediately deactivate or delete Client’s User account and/or bar any further access to the Services. Supplier’s failure to insist upon or enforce Client’s strict compliance with the Terms will not constitute a waiver of any of Supplier’s rights.
15. SERVICE AVAILABILITY AND LIMITATIONS
Supplier reserves the right to terminate Client’s Subscription Service, upon notice, if Supplier determines, in its sole business judgment, that Client’s Subscription Service is being used (a) fraudulently, (b) maliciously, (c) by any person other than Client, (d) for any Device other than a registered system, (e) unreasonably. In the event that Client’s Subscription Service is terminated, Supplier will refund to Client a pro-rata portion of any fees that Client has prepaid for the Subscription Services. Subscription Services may be subject to additional requirements, limitations, and restrictions depending on the subscription level Client purchased. Please refer to the Site for information about those restrictions.
16. DATA BACKUP
With the exception of dedicated Services for the execution of data backups, Client is solely responsible for maintaining and backing up any and all information, data, text or other materials (collectively referred to as “Client Data”) and software on Client’s Device and/or any storage media before ordering the Services. Client acknowledges and agrees that Supplier has no responsibility or liability under any circumstances at any time for any loss or corruption of Client Data, software or hardware that may arise out of the Services.
For any Services dedicated to the execution of data backups, it is Client’s sole responsibility to verify and validate that the data backup created during the execution of Service includes copies of all Client Data the Client intended to be included in the data backup. Upon acknowledgement of the completion of any such Service dedicated to data backups, Client acknowledges and agrees that Supplier has no further responsibility or liability under any circumstances at any time for any loss or corruption of Client Data, software or hardware that may arise out of the Services.
SUPPLIER DOES NOT SUPPORT ANY INSTALLATION OF UNLICENSED SOFTWARE TO CUSTOMERS. IT IS CLIENT’S SOLE RESPONSIBILITY TO ENSURE THAT CLIENT HAS A LICENSED COPY OF ALL NECESSARY SOFTWARE.
17. LIMITED WARRANTY
In rare cases, Services provided by Supplier may not be successful because the technology problem and/or underlying root cause may be beyond Supplier’s ability to resolve. IF CLIENT HAS PURCHASED AN INDIVIDUAL SERVICE FROM SUPPLIER, THEN THE FOLLOWING WARRANTY APPLIES: IF SUPPLIER IS NOT ABLE TO RESOLVE CLIENT’S TECHNOLOGY PROBLEM AND CLIENT HAS COMPLIED WITH ALL OF CLIENT’S OBLIGATIONS IN THESE TERMS, SUPPLIER WILL NOT CHARGE CLIENT A FEE FOR THE INDIVIDUAL SERVICE. IF CLIENT EXPERIENCES A PROBLEM WITH THE RESOLUTION SUPPLIER PROVIDED AND CLIENT NOTIFIES SUPPLIER WITHIN THIRTY (30) DAYS FROM THE DAY CLIENT ORIGINALLY RECEIVED THE INDIVIDUAL SERVICE, SUPPLIER WILL USE COMMERCIALLY REASONABLE EFFORTS TO TRY TO RESOLVE CLIENT’S TECHNOLOGY PROBLEM AT NO ADDITIONAL CHARGE. IF THOSE EFFORTS ARE UNSUCCESSFUL, SUPPLIER WILL REFUND THE FEES THAT CLIENT PAID FOR THE INDIVIDUAL SERVICE.
AS SET FORTH BELOW, THERE ARE NO OTHER WARRANTIES FOR THE SERVICES.
SUPPLIER MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ADVICE, GUIDANCE, INFORMATION OR OTHER CONTENT POSTED TO THE SITE OR OTHERWISE SUPPLIED TO THE SITE BY ANY THIRD PARTY, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD PARTY CONTENT AVAILABLE ON THE SITE.
18. DISCLAIMER OF OTHER WARRANTIES
CLIENT UNDERSTANDS AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ALL ADVICE, CONTENT, AND SOFTWARE) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS OF THE SERVICES, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUPPLIER DOES NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, ERROR FREE, OR SUCCESSFUL IN RESOLVING CLIENT’S QUESTION OR TECHNOLOGY PROBLEM. SUPPLIER MAKES NO WARRANTY THAT THE SERVICES WILL MEET CLIENT’S EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS, CONTENT OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM THE SERVICES SHALL CREATE ANY WARRANTY. ANY CONTENT OR SOFTWARE THAT CLIENT ACCESSES, DOWNLOADS OR USES WITH THE SERVICES IS DONE AT CLIENT’S OWN DISCRETION AND RISK AND CLIENT AGREES THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM SUCH ACTIVITIES.
19. LIMITATION OF LIABILITY
IN NO EVENT SHALL SMALLBIZ IT, ITS SUPPLIERS, AND REFERRAL PARTNERS 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 OF ANY KIND OR NATURE, WHETHER FROM CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, SOFTWARE, CONTENT OR YOUR DEVICE AND OTHER TECHNOLOGY INCLUDING, WITHOUT LIMITATION, LOST SALES, LOST REVENUE, LOST PROFITS OR OTHER LOSS OF BUSINESS, LOSS OF OR DAMAGE TO DATA, OR COST OF SUBSTITUTE SERVICES EVEN IF SMALLBIZ IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE TOTAL LIABILITY OF SMALLBIZ IT, ITS SUPPLIERS, AND REFERRAL PARTNERS TO YOU IN THE AGGREGATE FOR ANY AND 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 CLIENT’S USE OF THE SERVICES, SOFTWARE OR CONTENT EXCEED THE GREATER OF THE AMOUNT PAID FOR THE SERVICES AT ISSUE.
20. DISPUTE RESOLUTION AND BINDING ARBITRATION PROVISION
a. DEFINITIONS
As used in this Arbitration Provision, “Claims” means all claims, disputes, or controversies between Client and Supplier of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the Services. This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision.
b. INFORMAL EFFORTS TO RESOLVE DISPUTE
If a dispute arises between Client and Supplier, Client should first attempt to resolve it by contacting Supplier at 1-248-444-5948 or by sending the details of Client’s complaint, including Client’s contact information for a response, to the address listed below. Supplier will attempt in good faith to resolve all Claims submitted this way within fifteen (15) days of receipt.
c. AGREEMENT TO ARBITRATE; RIGHT TO OPT OUT
If informal efforts to resolve Claims fail or are not used, Client agrees that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i) Client may assert Claims in a small claims court in the United States if Client’s Claims meet the court’s jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party’s intellectual property rights. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD TO CLIENT ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND FORMS OF RELIEF AS A COURT COULD (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF AS WELL AS STATUTORY DAMAGES), AND MUST FOLLOW THE LAW AND TERMS OF THIS AGREEMENT AS A COURT WOULD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS AND PRIVATE ATTORNEY GENERAL ACTIONS ARE NOT PERMITTED. IF CLIENT DOES NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, CLIENT MUST NOTIFY SMALLBIZ IT IN WRITING WITHIN 30 DAYS FROM THE DATE THAT CLIENT FIRST ACCEPTS OR HAS ACCESS TO THIS AGREEMENT BY MAILING OR FAXING AN OPT-OUT REQUEST TO OUR CUSTOMER SERVICE CENTER LISTED BELOW. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, THE EMAIL ADDRESS YOU USED TO REGISTER WITH SMALLBIZITNOVI.COM, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE DELIVERY OF SERVICES TO YOU BY US. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
d. ARBITRATION FEES
The allocation and payment of all filing, administration and arbitrator fees will be governed by the rules of the American Arbitration Association (“AAA”) which limit the amount a consumer is required to pay. If the arbitrator determines that Client’s Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, Supplier agrees to reimburse Client the amount of all filing, administration and arbitrator fees Client is required to pay for the arbitration.
e. ARBITRATION RULES
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules if Client is a resident of the United States; if Client’s use of the Services has been principally for personal or household use, the AAA’s Supplementary Procedures for Consumer-Related Disputes will also apply. If Client is a resident of a country other than the United States, the arbitration will be conducted by the AAA’s International Centre for Dispute Resolution in New York, NY, under its rules for international arbitration, and Client and Supplier agree to submit to the personal jurisdiction of the U.S. federal court in New York, NY, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control. The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with experience in consumer and technology transactions and who is also a member of the AAA National Roster of Arbitrators. If Client and Supplier can’t agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the AAA will select a neutral arbitrator who meets the qualifications. The AAA’s rules are available at www.adr.org, or by calling 1-800-778-7879 from inside the United States or +1-212-484-4181 from outside the United States.
f. INITIATING ARBITRATION
To begin an arbitration proceeding, Client must follow the procedures specified by the applicable AAA rules as described on their website at www.adr.org.
g. TIME RESTRICTION
YOU MUST FILE A COMPLAINT WITH THE AAA OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
h. ARBITRATION PROCESS
Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator. The arbitration proceedings will be conducted in the English language at a location designated by the AAA that is the most convenient for Client. The arbitration can only decide Claim(s) between Client and Supplier, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable AAA rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. In conducting the arbitration proceeding, the arbitrator will apply the law of the State of Michigan (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (e.g. the Federal Arbitration Act). At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding on the parties except for any right to appeal under the AAA rules or the Federal Arbitration Act.
i. RECOVERY AND ATTORNEYS’ FEES
If the arbitrator rules in Client’s favor on the merits of any Claim Client brings against Supplier and issues Client an award that is greater in monetary value than Supplier’s last written settlement offer made to Client before written submissions are made to the arbitrator, then Supplier will (i) pay Client 150% of Client’s arbitration damages award, up to $1,000 over and above Client’s damages award; and (ii) pay Client’s attorneys, if any, the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that Client or Client’s attorney reasonably incurred for investigating, preparing, and pursuing Client’s Claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of such fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The right to attorneys’ fees and expenses discussed above supplements any right to attorneys’ fees and expenses Client may have under applicable law, although Client may not recover duplicative awards of attorneys’ fees or costs. If Client’s use of the Services was principally for personal or household use, Supplier waives any right it may have to seek an award of attorneys’ fees and expenses from Client in connection with any arbitration of Claims between Client and Supplier.
j. ARBITRATION CONFIDENTIALITY
Client and Supplier shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to Client’s or Supplier’s attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
k. CONTINUING OBLIGATION TO ARBITRATE; SEVERABILITY
This Arbitration Provision shall survive termination of Client’s access to or use of any Services and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
l. SMALLBIZ IT CUSTOMER SERVICE ADDRESS:
Small Biz IT LLC
ATTN: LEGAL/ARBITRATION
6930 Drake Rd
West Bloomfield, MI 48322 U.S.A.
21. GOVERNING LAW
The substantive laws of the State of Michigan, United States of America, without reference to any conflicts of law principles that would require the application of the laws of any other jurisdiction, shall govern these Terms. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
22. SUBMISSIONS
All comments, feedback, information (other than Client’s personally identifiable information or billing information) or materials submitted to Supplier (“Submissions”) shall be considered non-confidential and Supplier’s property. By providing such Submissions Client agrees to assign to Supplier, at no charge, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions. Supplier shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. As part of any subscription Services purchased by Client, Client acknowledges and agrees that Supplier may retain some of Client’s personally identifiable information or billing information for purposes of record retention and for purposes of billing any renewals of the subscription Services, which shall not be subject to the foregoing assignment provision.
Client acknowledges that Client is responsible for the Submissions that Client provides, and that Client has full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright. Client represents, warrants and agrees that Client shall not upload, post, transmit, distribute or otherwise publish through the Site, or any service or feature made available on or through the Site, any materials which are, do, or could reasonably be construed to be or do any of the following:
- restrict or inhibit anyone from using and enjoying the Site or the Site’s services;
- are fraudulent, unlawful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, or that threatens or invites violence, or that is derogatory of others on the basis of gender, race, ethnicity, national origin, religion, sexual preference or disability;
- constitute or encourage conduct that would constitute a criminal offense, give rise to potential civil liability or otherwise violate any local, state, national or international law;
- violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, trade secret, confidentiality, contract, patent, rights of privacy or publicity or any other proprietary right;
- contain a virus, spyware, or other harmful component;
- contain embedded links, advertising, chain letters or pyramid schemes of any kind;
- constitute or contain false or misleading indications of origin, endorsement or statements of fact; or
- contain sensitive, proprietary or confidential information about Client or others.
Except as may be expressly permitted in connection with one of the Site’s services, Client also may not offer to buy or sell any product or service on or through Client’s Submissions. Supplier will not accept responsibility for any information included in any Submissions created or posted by third parties. Client alone is responsible for the content and consequences of any and all of Client’s activities and Client submits Submissions at Client’s own risk.
By submitting or sending Submissions to Supplier, Client: (i) represents and warrants that the Submissions are not confidential or secret, and no confidential or fiduciary relationship is intended or created between Client and Supplier in any way, (ii) represents and warrants that the Submissions are original to Client, that no other party has any rights thereto, and that any “moral rights” in Submissions have been waived, and (iii) Client grants Supplier a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sub-licensable right and license to use, copy, reproduce, modify, adapt, print, publish, translate, create derivative works from, distribute, perform and display such material (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed, including for promotional and/or commercial purpose, and to authorize others to do so. Supplier cannot be responsible for maintaining any Submissions that Client provides to Supplier, nor is Supplier responsible for any information included in any Submissions (for example, without limitation, a blog post or any comments to blog(s) created or posted by Users), and Supplier may delete or destroy any such Submissions at any time.
23. INTELLECTUAL PROPERTY
Supplier respects the proprietary rights of software and hardware manufacturers and will not install or support unlicensed materials. The Services, and the Software and Content provided with the Services, are protected by law including copyright, trademark, service mark, patent or other proprietary rights and laws. Supplier is the patent and copyright owner or licensee of the Services, Software, and Content. If Client makes use of the Services, Software or Content other than as expressly provided herein and in your respective agreement, Client may violate copyright, patent and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. Supplier does not grant any license or other authorization to any user of Supplier’s trademarks, registered trademarks, service marks, other copyrightable material, patents or any other intellectual property by including them with the Services.
24. TRADEMARK INFORMATION
SmallBizITNovi.com, the Supplier logo, and all Supplier’s other product names, service names, slogans, and related logos are registered trademarks or trademarks of Supplier. Client is not permitted to use these trademarks, or any other Supplier trademarks, without the prior written consent of Supplier. All other trademarks, product names, trade names, and logos used within these Web pages are the property of their respective holders. Use of other company trademarks, trade names, product names and logos or images of the same does not necessarily constitute: (1) an endorsement by such company of Supplier and its products, and (2) an endorsement of the company or its products by Supplier.
25. LINKS FROM AND TO THE SITE
This Site may contain hyperlinks to Web sites that are not controlled by Supplier. Supplier is not responsible for and does not endorse or accept any responsibility over the contents or use of these Web sites, including, without limitation, the accuracy or reliability of any information, data, opinions, advice or statements made on these Web sites.
Client may not provide any type of link to the Site without the express written permission of Supplier. Supplier reserves the right, however, to deny any request or rescind any permission granted by Supplier to link through such other type of link, and to require termination of any such link to the Site, at Our discretion at any time.
26. THIRD PARTIES
In the course of delivering the Services to Client, Supplier may refer Client to third parties, or the websites of third parties, that offer products and/or services that may facilitate the resolution of Client’s Device support issues or otherwise be of potential assistance to Client. These third parties and/or their websites may also be linked and/or displayed on the Site. Although Supplier may link or otherwise refer Client to such products and services offered by third parties, unless expressly stated to the contrary, such references, links and/or displays in no way mean, imply, suggest or constitute any evaluation or approval by Supplier of those merchants or their products or services. Supplier is not responsible in any way for any other Web sites, products, services or information. Client’s dealings with other entities promoted on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between Client and such other entity. Client agrees that Supplier shall not be 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 promotion of such other entities on the Services. Likewise, any third parties that may refer Client to the Services have no responsibility or liability for the Services provided by Supplier.
27. ELECTRONIC COMMUNICATIONS
The information communicated on this Site constitutes an electronic communication. When Client communicates with Supplier through the Site or other forms of electronic media, such as e-mail, Client is communicating with Supplier electronically. Client agrees that Supplier, on behalf of itself and others who may be involved with delivering the Services (as applicable), may communicate electronically by e-mail and/or may make communications available to Client by posting them on the Site, and that such communications, as well as notices, disclosures, agreements and other communications that Supplier provides to Client electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by Supplier.
Notices and communications to Supplier must be sent to the applicable address given in these Terms or to info@SmallBizITNovi.com.
28. GENERAL INFORMATION
This version of the Terms is effective as of the date listed at the top of this document or Web page. The Terms together with the Privacy Policy and any applicable license agreements constitute the entire agreement between Client and Supplier and govern Client’s use of the Services, superseding any prior or contemporaneous agreements between Client and Supplier. The failure of Supplier to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. Client may not assign the Terms or any of Client’s rights or obligations under the Terms without Supplier’s express written consent. The Terms inure to the benefit of Supplier’s successors, assigns and licensees. The section titles in the Terms are for convenience only and have no legal or contractual effect.