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Terms of Service

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Updated 20 Nov 2023

Terms of Service

Thank you for choosing Vibefam for your business. When you use our products and services you’re agreeing to our terms, so please read these Terms of Service carefully. Certain capitalized words below are defined in Section 15 (Definitions).

Vibefam provides online business management software services designed specifically for businesses in the fitness industry (“Software Service”). You can access our Software Service via the client login page on our Website and through our mobile apps that are found on Appstore and Playstore.

These Terms of Service (“Agreement”) apply to any use of and access to the Services by you and your Affiliates. By accessing or using the Services (or enabling an Affiliate to access or use the Services), you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.

This Agreement is effective (“Effective Date”) on the earlier of (a) the date you accept this Agreement by indicating that you accept this Agreement (including through an Order Form), or (b) the date you (or an Affiliate) first access or use the Services.

1. General Terms

This is a legal agreement and you represent that you have authority to make these commitments on behalf of your organization.

  • Agreement: This Agreement is a binding legal agreement between you and the applicable Vibefam entity indicated in Section 14.4 below (“Vibefam”, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and Vibefam are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.

2. Services

Software Services

The Service Level Agreement describes our uptime commitments for the software.

  • Access and Service Levels. Vibefam will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement. We may temporarily suspend your access for things like scheduled maintenance, or if a natural disaster occurs. We may also change or discontinue particular features or functions of our Services at any time.
  • Changes to Services. We reserve the right to suspend any Services (a) in connection with a Force Majeure event (b) if we believe any malicious software is being used in connection with your account, or (c) during planned downtime. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.

We aren’t responsible for any third party products that are integrated with or used in connection with the Services.

Third Party Offerings

Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply Vibefam’s endorsement of or affiliation with the provider. Vibefam does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings. Vibefam has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting Vibefam to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS). Your base subscription fees include our standard support services.

Support Services

As part of the Services you will have access to Vibefam’s standard support services.

Marketing Services

When you subscribe to our Software Service, your business will be provided the opportunity to be listed on the Marketing Services. From time to time, Vibefam may offer subscribers the opportunity to participate in promotional programs, which are designed to promote their businesses and attract customers.

Free, Trial and Beta Services

Vibefam may in its sole discretion offer free, trial or beta Services from time to time at no charge. Notwithstanding anything to the contrary herein: (a) any free, trial or beta Services are provided “AS IS” with no warranties of any kind; and (b) Vibefam may discontinue any free, trial or beta Services or your ability to use such Services at any time, with or without notice and without any further obligations to you. Without limiting the generality of the foregoing, free Services that have not been accessed or used for 12 consecutive months may be terminated by us. Vibefam will have no liability for any harm or damages suffered by you or any third party in connection with any free, trial or beta Services.

Payment Processing

Vibefam offers the ability to process payments through the Services (“Payment Processing Services”). Payment Processing Services are provided by our third party payment processing partners as Third Party Offerings and any procurement by you or your Affiliates will be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the third party processor. If you use Payment Processing Services you agree that you and your Affiliates will comply with the terms and conditions of any applicable merchant agreements and all applicable card network rules, policies, laws and regulations, at all times while using such Payment Processing Services. At Vibefam’s sole discretion, you may be offered Payment Processing Services provided by Stripe. Vibefam Payments are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”) and subject to certain fees and surcharges communicated to you during the enrollment process and as may be updated by Vibefam from time to time. By enrolling in Vibefam Payments, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Vibefam enabling Payment Processing Services through Stripe, you agree to provide Vibefam accurate and complete information about you and your business, and you authorize Vibefam to share it and transaction information related to your use of the Payment Processing Services provided by Stripe.

3. Your Responsibilities

You are responsible for making sure that your Affiliates and End Users comply with the terms of this agreement and applicable laws.

  • Liability for Affiliates and End Users. You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your Affiliates and End Users comply with relevant provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by Vibefam, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by Affiliates and/or End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact End Users through the Services, as applicable, in accordance with applicable laws and regulations. You are responsible for providing accurate data and collecting and protecting that data as required by law. You are responsible for the things that allow you to access our Services.
  • Data; Unauthorized Access; Maintaining Networks. You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify Vibefam promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services. You agree that you and anyone you’re responsible for in this Agreement won’t violate the Agreement or engage in any of the prohibited conduct.
  • Restrictions on Use. You and your Affiliates and End Users will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use the Services to send unsolicited electronic messages (aka spamming); or (x) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services. Notwithstanding subsection (x) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, Vibefam grants to the operators of public search engines permission to use spiders to copy materials from the Websites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Vibefam reserves the right to revoke these permissions at any time and without notice. You are liable if any Cardholder Data is mishandled under your account.
  • Consent. You are responsible for ensuring you have obtained the requisite level of consent necessary from End Users when utilizing the Services, including, but not limited to, the automated marketing products.

4. Fees and Payment

Unless you have an Order Form, the current Subscription Fees can be found on our Website.

  • Software Services Fees. Unless otherwise stated on an Order Form, fees for the Software Services (“Subscription Fees”) are set forth on the applicable Website(s). Subscription Fees will be updated during any Renewal Term. If there is a Service you choose not to purchase, Vibefam may change the price of that Service.
  • Change in Subscription Fees. Unless otherwise specified in an Order Form, the Subscription Fees during a Renewal Term (defined below) will be updated to the pricing set forth on the applicable Website when each Renewal Term begins. If You have an Order Form, Vibefam may increase any fees specified in an Order Form, provided the increase will not become effective until the subsequent Renewal Term. Prices are subject to change for those Services you have elected not to purchase or that are otherwise not identified in the Order Form. Vibefam may also convert any free, trial or beta Service into a Service subject to a Subscription Fee upon notice to you, and your rights to such Service will be suspended if you do not pay the Subscription Fee. You agree to pay the fees required for the Services you are getting through this Agreement and give us permission to process those payments.
  • Payment Terms. You agree to pay the Subscription Fees and any other applicable fees stated on an Order Form or otherwise specified in this Agreement. YOU ARE RESPONSIBLE FOR ALL SUBSCRIPTION FEES FOR THE ENTIRE SUBSCRIPTION TERM. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees must be paid in advance of each billing period. You will provide Vibefam with a valid and updated credit card information or another form of payment acceptable to Vibefam. If you provide credit card information, you represent that you are authorized to use the card and you authorize Vibefam to charge the card for all payments hereunder. By submitting payment information, you authorize Vibefam to provide that information to third parties for purposes of facilitating payment. You agree that there will be additional charges if your payment is late and we can suspend your account if payments are not made.
  • Overdue Charges. Any amounts not received by the applicable due date may accrue late interest at the lesser of either (a) 1.5% of the outstanding balance per month, or (b) the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by Vibefam within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and Vibefam will be entitled to either suspend the Services or terminate the Agreement. You will let us know within 60 days if there has been a payment error.
  • Payment Errors. If you believe a payment has been processed in error, you must provide written notice to Vibefam within sixty (60) days after the date of payment specifying the nature of the error and the amount in dispute (“Payment Error Notice”). If the Payment Error Notice is not received by Vibefam within such sixty (60) day period, the payment will be deemed final. Fees for the Services do not include taxes – you are responsible for paying those.
  • Taxes. Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If Vibefam is legally required to pay or collect any Taxes on your behalf, Vibefam will invoice you and you will pay the invoiced amount. For clarity, Vibefam will be solely responsible for taxes assessed on Vibefam based on its income.

Intellectual Property Rights

Vibefam retains all right to our own Intellectual Property.

  • Vibefam Intellectual Property. Vibefam or its affiliates own all right, title and interest in and to the Services, the Vibefam Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, Vibefam and its affiliates reserve all rights, title and interest in and to the Services, the Vibefam Data and Aggregated Data, including, without limitation, all related intellectual property rights. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
  • License Grant to You. Subject to the terms and conditions of this Agreement, Vibefam hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services set forth in an Order Form, during the Subscription Term and solely for your internal business purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by Vibefam in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.

6. Data Ownership and Use

You own all data you provide to us, but you also grant us a license to use it for certain purposes, for example, to improve our products or to provide you with complementary products of our partners.

  • Your Data. As between you and Vibefam, you own all right, title and interest in Your Data. You hereby grant to Vibefama nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing Vibefam’s or its affiliates’ products and services and/or complementary products and services of our partners. You represent and warrant to Vibefam that you have all rights necessary to grant the licenses in this Section 6.1, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party. We own data that we collect through independent sources, like the Vibefam App.
  • Vibefam Data. All right, title and interest in any data or information collected by Vibefam independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information Vibefam obtains about End Users through the Vibefam App (whether the same as Your Data or otherwise), will be solely owned by Vibefam (collectively, “Vibefam Data”). Vibefam reserves all rights to Aggregated Data.
  • Aggregated Data. You agree Vibefam owns all Aggregated Data. You also agree that nothing in this Agreement will prohibit Vibefam or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household. Our Privacy Policy covers how we collect and use personal information.
  • Personal Information. Our Privacy Policy governs how we collect and use personal information that is submitted through the Services. By accessing or using the Services, you agree to that you have read and accept our Privacy Policy.
  • Protection and Security. During the Subscription Term, Vibefam will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data. We will notify one another if either of us becomes aware that Your Data has been compromised.
  • Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure. We are not responsible for resolving or intervening in any dispute over Your Data.
  • Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees, Affiliates (former or current), or contractors of your business. You acknowledge and agree that Vibefam has no obligation whatsoever to resolve or intervene in such disputes.

7. Confidential Information

You and Vibefam will protect each other’s Confidential Information and only use it to fulfill obligations stated in this Agreement.

  • A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party’s prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation.

8. Term, Termination and Suspension

If you elect to terminate the Agreement early, you will remain responsible for payment of all fees owed for the entire Subscription Term and will continue to be charged each month for the remainder of the Subscription Term.

  • Term. The Initial Term begins on the Effective Date and, unless otherwise specified in an Order Form, automatically renews in successive and consecutive thirty (30) day periods (each a “Renewal Term” and collectively with the Initial Term, the “Subscription Term”) until this Agreement is properly terminated. Either Party may terminate this Agreement for any reason or no reason, by giving the other Party at least thirty (30) days’ notice before the end of the relevant Subscription Term. If you elect to terminate this Agreement early, you will remain responsible for payment of all fees owed for the entire Subscription Term and will continue to be charged each month for the remainder of the Subscription Term. We have the right to end the Agreement immediately if you breach it.
  • Termination for Cause. Vibefam may terminate this Agreement and/or any subscription, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement. In the event of a termination, in addition to other amounts you may owe Vibefam, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to Vibefam for the period prior to the effective date of termination. This describes what will occur and the rights that apply when the Agreement is terminated.
  • Rights on Termination or Expiration. Upon termination or expiration of this Agreement (a) all Order Forms will automatically terminate and be of no force or effect; (b) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (c) except as specified in the following paragraph, Vibefam will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law. For a period of no greater than thirty (30) days following a notice of termination, Vibefam will make Your Data (except Cardholder Data and Content) available to you through Vibefam’s standard web services. Upon request by you within thirty (30) days following the termination date of this Agreement, and provided that you have paid Vibefam all amounts owed under this Agreement. After such thirty (30) day period, Vibefam will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require Vibefam’s assistance in retrieving Your Data, additional fees may apply. We have the right to suspend or terminate the Services at any time if we detect harmful or illegal activity under your account.
  • Right to Terminate or Suspend Services. We may suspend or terminate your access to and use of the Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to Vibefam or any third party, (b) that we are required to do so by law, or (c) where the Parties do not agree on the use of a sub-processor.

9. Warranties & Disclaimer

You are responsible for keeping your account contacts and other account information up to date, and you must notify us if anything changes.

  • Accuracy of Your Account Information. You agree to provide Vibefam with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by Vibefam (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify Vibefam in writing if any Account Information changes. You agree that Vibefam has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information. We promise that the software will perform as described in the Documentation.
  • Warranty of Functionality. Vibefam warrants to you that during a Subscription Term: (a) the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and (b) such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that Vibefam will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If Vibefam is unable to restore such functionality, you may terminate the Agreement by providing written notice to Vibefam, and you will be entitled to receive a pro-rata refund of any pre-paid fees. For clarity, this warranty will not apply to any free, trial or beta Services.
  • DISCLAIMER. VIBEFAM MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. VIBEFAM DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH VIBEFAM AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “VIBEFAM PARTIES”).

10. Indemnification

If we are sued by another party as a result of something you’ve done, you’ll cover the costs.

  • You agree to indemnify, defend, and hold harmless the Vibefam Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising from or relating to: (a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (b) any access to or use of the Services by you, an Affiliate or End User; (c) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (d) any dispute between you and another party regarding ownership of or access to Your Data.

11. Limitations and Exclusions of Liability

These are the limits of legal liability we may have to you.

  • VIBEFAM EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY VIBEFAM. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE VIBEFAM PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR $100.00 (USD), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH VIBEFAM AND THE VIBEFAM PARTIES. IN NO EVENT WILL ANY VIBEFAM PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF VIBEFAM, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. Miscellaneous

Singapore law applies to this Agreement.

  • Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of Singapore without regard to conflicts of laws principles. The U.N. Convention on the International Sale of Goods will not apply. In the unlikely event we end up in a legal dispute, you agree we will first attempt to resolve it through this informal process.
  • Mandatory Informal Dispute Resolution. If you have any dispute with Vibefam arising out of or relating to this Agreement, you agree to notify Vibefam in writing with a brief, written description of the dispute and your contact information, and Vibefam will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below. If we can’t resolve a dispute after following the process above, then we must resolve through arbitration and not in court.
  • Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND VIBEFAM, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND VIBEFAM AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
  • Entire Agreement. This Agreement, together with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and Vibefam with respect to the subject matter hereof. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between Vibefam, on the one hand, and you or any Affiliate, on the other hand. If any part of this Agreement can’t be enforced, the rest of the Agreement stands.
  • Waiver and Severability. No waiver of any provision of this Agreement by Vibefam will be effective unless in writing and signed by Vibefam. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. We are entering this Agreement with you and you agree you won’t transfer it to anyone else. In an effort to make sure we meet our obligations to you, we can bring in other parties to fulfill the duties promised in this Agreement. You give us permission to contact you through the Services or via email for any Notices under this Agreement and agree to send any Notice to Vibefam at the address listed in this Section.
  • Notices. Any notices provided by Vibefam under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from Vibefam through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day.
  • Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of government, flood, fire, civil unrest, acts of terror, computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. You agree that we can communicate with you electronically.
  • Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law. We are providing you Services for your business and this Agreement does not create a partnership or any other legal relationship.
  • Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Vibefam.

13. Definitions

For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement. “Aggregated Data” means anonymized, de-identified, or aggregated data derived by or through the operation of the Services that is created by or on behalf of Vibefam in compliance with applicable laws and that does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household. “API” means Vibefam’s application programming interface as may be updated by Vibefam from time to time, and any subsequent application programming interfaces that are developed and made available by Vibefam to interact with or otherwise be used in connection with the Services. “Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by End Users and you. Cardholder Data is a subset of End User Data. “Confidential Information” means (a) any software utilized by Vibefam in the provision of the Services and its respective source code; (b) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and (c) any special pricing or other non-standard terms agreed to by the Parties in an Order Form or other separate written document. “Documentation” means online user guides, documentation, and help and training materials, as may be updated by Vibefam from time to time, accessible at the applicable Website(s), and any other materials provided by Vibefam as part of the Services. “End User” means a business or individual that schedules or purchases products or services from you through the Services, that you market to, communicate with, or target through the Services, or that otherwise interacts with you through the Services, or that you authorize to use the Services in connection with your business. “End User Data” means all data, information or other material about an End User that you, an Affiliate or End User provides or submits to the Services. End User Data may include Cardholder Data and such portions of Your Data that relates to specific End Users. “Order Form” means a separate ordering document, invoice, online form, or other documentation that specifies the Services ordered or purchased hereunder, the applicable Software Fees (or if the Services are free), and other terms as agreed to between the Parties. If an Order Form indicates that any Affiliates or Franchisees will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto. “PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time. “Professional Services” means Vibefam’s supplemental, fee-based technical support services. “Privacy Policy” means the Vibefam Privacy Policy as may be updated by Vibefam. “Software Service” is defined in the Introduction. “Third Party Offerings” means any third party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services. “Website” means https://www.admin-vibefam.com; or https://vibefam.com(or such other URLs as specified by Vibefam), as may be updated by Vibefam from time to time and any other websites through which Vibefam makes the Software Service available. “Your Data” means any data, information or material provided or submitted or made available by you and Affiliates to the Services. Your Data may include End User Data and Cardholder Data (and your or their representative’s data), but excludes Aggregated Data.

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