Below are the license agreement for the downloadable version of the vBulletin software and the service agreement for vBulletin Cloud. Each pertains to that respective product.
Software License Agreement For Downloaded Version
This Software License Agreement (this "Agreement") is between you (either an individual or an entity, referred to hereinafter as "you" or "your") and vBulletin Solutions, Inc., a wholly-owned subsidiary of Internet Brands, Inc., and its affiliates and resellers ("vBulletin Solutions", "we", "our" or "us") for the vBulletin software that accompanies this Agreement, as may be updated or replaced by feature enhancements, software updates or maintenance releases including the vBulletin 5.x Connect Software, any previously released vBulletin Software under a different version, vBulletin Mobile Suite, the vBulletin Facebook application, the Forum Runner application, related explanatory written materials and files ("Documentation"), and any other add-ons or related products (together, the "Software") and any services, including but not limited to Mobile Annual Support, Forum Support, Phone and Ticket Support, and Professional Install/Upgrade, that may be provided by vBulletin Solutions under this Agreement (together, "Services").
By copying, installing, downloading, or using all or any portion of the Software, you accept all the terms and conditions of this Agreement. vBulletin Solutions owns all intellectual property in the Software. If you do not agree to the terms of this Agreement, do not use the Software. This Agreement is enforceable against you and any legal entity that obtained the Software and on whose behalf it is used.
1. Software License.
IMPORTANT NOTICE: If you are domiciled in the European Union ("E.U."), please refer to Section 19 for specific provisions related to the Software and the License.
Provided you comply with the term and conditions of this Agreement and have paid the applicable license fees, vBulletin Solutions grants you a revocable, non-exclusive, non-transferable, , worldwide, limited license to install, download and use a single instance of the Software on a single website domain in a manner consistent with its designs and Documentation as further set forth below and not for purposes of resale or re-compilation, re-distribution, re-syndication, time sharing or use for the benefit for any third-party (the "License"). Upon vBulletin Solutions’ receipt of the applicable license fees, a unique license number will be issued to you.
1.1 Limited Use. You may not transfer, rent, sublicense, assign, lease, loan, resell for profit, redistribute, encumber, publish or otherwise share the Software (or related materials based upon the Software or any part thereof) without the prior written consent of vBulletin Solutions. You must not use the Software other than as permitted by the License or in a manner inconsistent with its design and Documentation. If you are domiciled in the E.U., please refer to Section 19.
1.2 Notices. The Software must contain vBulletin Solutions’ copyright and other proprietary notices that appear on or in the Software, unless a Branding Free License is purchased.
1.3 Illegal Activity. You may not use the Software to engage in or allow others to engage in any illegal activity where the Software is accessed and/or used. You may not use the Software to engage in any activity that will violate the rights of third parties, including, without limitation, through the use, public display, public performance, reproduction, distribution, or modification of communications or materials that infringe copyrights, trademarks, publicity rights, privacy rights, other proprietary rights, or rights against defamation of third parties.
1.4 Domain Use. The Software may only be used on a single website domain. Any modification of the Software intended to circumvent the foregoing is prohibited and will result in revocation of the License. Notwithstanding the foregoing, the License may be transferred to another domain with vBulletin Solutions’ prior written consent and a transfer fee subject to the vBulletin Solutions then current fees.
1.5 Need for Content licenses. The License provides no rights with respect to any content that may be reproduced, encoded, distributed, transmitted, performed, or otherwise used in connection with the Software. You are responsible for ensuring that any content is properly used in accordance with applicable laws and the rights of any third party with respect to such content.
1.6 Backup Copy. You may make one (1) copy of the Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. You may only use the backup copy if the original copy of the Software is no longer usable and the only way to use the Software is to reinstall the Software by use of the backup copy. Any permitted copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software, unless a Branding Free License is purchased.
1.7 Test Copy. You may make one (1) additional temporary test copy for the purpose of testing code, template and database modifications. Such a test copy must not be made available to the general public at any time.
1.8 Modification of the Code. You may modify the Software source code; provided, however, you may not rent, sublicense, assign, lease, loan, resell for profit, distribute, publish or otherwise share the Software or related materials or derivative works based upon the Software or any part thereof without the prior written consent of vBulletin Solutions. If you are domiciled in the E.U., please refer to Section 19.
1.9 Pre-release Software Additional Terms. If the Software is pre-commercial release or beta software ("Pre-release Software"), then this section applies. The Pre-release Software is a pre-release version, does not represent a final product from vBulletin Solutions, and may contain bugs, errors, and other problems that could cause system or other failures and data loss and may only be used for testing purposes. vBulletin Solutions may never commercially release the Pre-release Software. vBulletin Solutions may alter features, licensing terms, or other characteristics of any version of the Pre-release Software that it releases. If you received the Pre-release Software pursuant to a separate written agreement, ("Test Agreement") for Pre-release Software, your use of the Software is also governed by the Test Agreement. If there is a conflict between this Agreement and the Test Agreement, the Test Agreement controls. You may not disclose, publish or disseminate any information regarding the Pre-release Software to anyone, including but not limited to any new features or faults to any Internet forums. YOUR USE OF PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 7 AND 8 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS THAT APPLY TO THE PRE-RELEASE SOFTWARE.
1.10 Updates. "Update(s)" will mean the release of a version of the Software containing improvements, corrections, modifications, alterations, revisions, extensions, language versions, and/or enhancements to the Software and/or Documentation made during the term of this Agreement. The change to an Update will be recognized by an increase in value of number to the right of a decimal point (e.g., version 5.0 to be replaced by version 5.1). In order to install an Update, you must possess a valid license to the previous version of the Software. Once an Update is installed, this Agreement pertains to the Updated version of the Software. We recommend you install all Updates that specifically contain bug fixes. If you are domiciled in the E.U., and have not purchased the Software from vBulletin Solutions or its authorized resellers, an Update may be licensed to you with different or additional terms and an Upgrade fee subject to the vBulletin Solutions’ then-current fees.
1.11 Upgrade. "Upgrade" will mean the release of a version of the Software containing major changes to the structure of the Software where important new features may be added for an upgrade fee. The change to an Upgrade will be recognized by an increase in value of the number to the left of the decimal point (e.g., version 5.x to be replaced by version 6.x). Any Upgrade discounts offered to licensees by vBulletin Solutions are non-transferable. vBulletin Solutions may, at its sole discretion, cease providing support for any prior version of the Software after an Upgrade is made available.
2. Intellectual Property Ownership, Reservation of Rights.
The Software and any authorized copies that you make are the intellectual property of and are owned by vBulletin Solutions. The structure, organization, arrangement and source code of the Software are the valuable trade secrets and confidential information of vBulletin Solutions. The Software is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by vBulletin Solutions. vBulletin is a registered trademark of vBulletin Solutions in the U.S. and in the E.U.
You represent and warrant that you have the legal capacity to enter into this Agreement, that you will use the Software only for lawful purposes and in accordance with this Agreement, and that you will not use the Software to violate any law, regulation or ordinance or any right of vBulletin Solutions or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent.
Should you breach this Agreement, your right to use the Software will terminate immediately and without notice. The respective rights and obligations of vBulletin Solutions and you under the provisions of Sections 1.1 ("Limited Use"), 1.5 ("Need for Content Licenses"), 2 ("Intellectual Property Ownership, Reservation of Rights"), 4 ("Termination"), 7 ("Warranty"), 8 ("Limitation of Liability"), 9 ("Indemnification"), 12 ("Governing Law"), 13 ("General Provisions"), 16 ("Electronic Notice Delivery Policy"), and 18 ("Third Party Services") shall survive expiration or termination of this Agreement and you agree to continue to be bound by those terms. Upon termination of the License, you must destroy all copies of the Software, including any Updates.
We may provide you with a mechanism to give us feedback, including for example feedback on usability, bug reports, test results, documentation, suggestions and ideas about the Software (together, the "Feedback"). You agree that we may use the Feedback you provide in any way, including in future modifications of the Software. You grant us a perpetual, worldwide, fully transferable, non-revocable, royalty-free right and license to make, use, modify, sell, license, create derivative works from, distribute and display any information you provide to us in the Feedback. You acknowledge that you have all rights necessary to provide the Feedback under this Agreement and acknowledge that we are in no way obligated to incorporate, use or otherwise acknowledge any Feedback that you have provided or compensate you.
6. No Refund.
No refunds will be offered for the Software once it has been downloaded, except as required by law or as otherwise stated herein. If you are domiciled in the E.U., please refer to Section 19.
7. LIMITED WARRANTY.
THE SOFTWARE IS PROVIDED "AS-IS," AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VBULLETIN SOLUTIONS DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING THE SOFTWARE AND ANY RELATED MATERIALS, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, OR THEIR NONINFRINGEMENT. VBULLETIN SOLUTIONS DOES NOT WARRANT THAT THE SOFTWARE OR ANY RELATED SERVICES IS SECURE, OR IS FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS NOR DOES IT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE THROUGH THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SEE SECTION 19 FOR JURISDICTION-SPECIFIC STATEMENTS. VBULLETIN SOLUTIONS DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. THE ENTIRE RISK AS TO THE RESULTS, QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. THIS SECTION 7 WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
8. LIMITATION OF LIABILITY.
EXCEPT FOR THE EXCLUSIVE REMEDY OFFERED BY VBULLETIN SOLUTIONS IN SECTION 7 ABOVE AND ANY REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, VBULLETIN SOLUTIONS, ITS AFFILIATES, RESELLERS, AND CERTIFICATE AUTHORITIES WILL NOT BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS, OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF VBULLETIN SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES, CLAIMS, OR COSTS. IN ANY EVENT, VBULLETIN SOLUTIONS’ AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, RESELLERS AND CERTIFICATE AUTHORITIES UNDER OR IN CONNECTIOIN WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH BY VBULLETIN SOLUTIONS OF THIS AGREEMENT. vBulletin Solutions is acting on behalf of its affiliates, and resellers for the purpose of disclaiming, excluding and limiting obligations, warranties, and liability, but in no other respects and for no other purpose.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS. YOU MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION AND OTHER LAWS. SEE SECTION 19 FOR E.U.-SPECIFIC STATEMENTS. VBULLETIN SOLUTIONS DOES NOT SEEK TO LIMIT YOUR WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW. THIS SECTION 8 WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
You agree to defend, indemnify and hold vBulletin Solutions, Internet Brands, and our parents, officers, directors, employees, agents or affiliates, harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to reasonable attorneys' fees) arising from your use of the Software or your vBulletin forum users' use of the Software, laws or regulations, or any third party's rights, including but not limited to infringement of any copyright, violation of any proprietary right or invasion of any privacy rights. This obligation will survive the termination of this Agreement.
10. U.S. Government End Users.
The Software and any related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
11. Export Rules.
You acknowledge that the Software is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the "Export Laws") and that you will comply with the Export Laws. You will not ship, transfer, export, or re-export the Software, directly or indirectly, to: (a) any countries that are subject to U.S. export restriction or the United Nations Security Council arms embargoes (currently including, but not necessarily limited to, Cuba, Iran, Iraq, North Korea, Sudan, Rwanda, Cote d'Ivoire (Ivory Coast), Democratic Republic of the Congo, Eritrea, Lebanon, Liberia, Libya, Somalia, and Syria) (each, an "Embargoed Country"), (b) any end user who you know or have reason to know will utilize them in the design, development or production or nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a "Prohibited Use"), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a "Sanctioned Party"). In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software. You represent and warrant that (i) you are not a citizen or, or located within, and Embargoed Country, (ii) will not use the Software for a Prohibited Use, and (iii) are not a Sanctioned Party. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
12. Governing Law.
The License and this Agreement are governed by and construed in accordance with the laws of the State of California, United States of America. You hereby consent to the exclusive jurisdiction and venue in the state and federal courts of the County of Los Angeles, California and the Central District of California, respectively. The License will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under the License or this Agreement or by law with respect to the Software or Services must be commenced within one (1) year after the cause of action or lawsuit arises or accrues. Notwithstanding any provision in this Agreement, either vBulletin Solutions or you may request any judicial, administrative, or other authority to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institution of legal proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies. By agreeing to the terms of this Agreement, you are waiving claims that you might otherwise have against vBulletin Solutions based on the laws of other jurisdictions.
13. General Provisions.
If for any reason a court of competent jurisdiction finds any provision, or portion of the License or this Agreement, to be unenforceable, the remainder of the License or this Agreement will continue in full force and effect. This Agreement may only be modified in writing, signed by an authorized officer of vBulletin Solutions and you. This is the entire agreement between vBulletin Solutions and you relating to the Software and the License and it supersedes any prior representations, discussions, undertakings, communications, or advertising relating to the Software. You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations without the prior written consent of vBulletin Solutions. vBulletin Solutions may assign this Agreement to any entity at its sole discretion. The English version of this Agreement will be the version used when interpreting or construing this Agreement.
14. Compliance with Licenses.
vBulletin Solutions periodically analyzes vBulletin software usage for possible piracy, and as such, you agree that, no more than once every twelve (12) months, vBulletin Solutions or its authorized representative will, upon ten (10) days’ prior notice to you, verify that your use of the Software is in conformity with the License. You will provide such records and information to vBulletin Solutions within thirty (30) days of vBulletin Solutions’ request. If verification discloses that your use is not in conformity with the License, you will immediately obtain a License to bring your use into conformity.
16. Electronic Notice Delivery Policy.
vBulletin Solution, when possible, transacts with users of its products electronically. When you provide vBulletin Solutions with your email address, you consent to receive electronically from vBulletin Solutions any privacy or other notices, agreements, disclosures, reports, documents, communications, or other records (together, "Notices"). You agree that vBulletin Solutions can send you electronic Notices to the email address that you provide. The delivery of any Notice from vBulletin Solutions is effective when sent, regardless of whether you read the Notice when received or whether you actually receive the delivery.
17. Electronic Contracting.
Your use of the Software includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO WITH VBULLETIN SOLUTIONS, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
18. Third Party Services.
The Software may facilitate your access to websites maintained by third parties offering goods, information, software, and services ("Third Party Online Service(s)"). Your access to and use of any Third Party Online Services is governed by the terms, conditions, disclaimers, and notices found on each site or otherwise associated with such Third Party Online Services. vBulletin Solutions does not control, endorse, or accept responsibility for Third Party Online Services. Any dealings between you and any third party in connection with a Third Party Online Service, including such party’s privacy policies and use of your personal information, delivery of and payment for goods and services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party.
19. Specific Provisions and Exceptions.
This Section 19 sets forth specific provisions related to the Software and the License as well as limited exceptions to the above terms and conditions. This Section 19 only applies if you are domiciled in the E.U. To the extent that any provision in this Section 19 is in conflict with any other term or condition in this Agreement, this Section will supersede such other terms or conditions.
19.1 No Prejudice, E.U. Provisions.
19.1.1 No Transfer. YOU WILL NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN, OR TRANSFER YOUR RIGHTS IN THE SOFTWARE, OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY’S COMPUTER EXCEPT AS MAY BE EXPRESSLY PERMITTED HEREIN. You may, however, permanently transfer all your rights to use the Software (excluding Services, access to product Updates, discounts, and the use of customer support and forums) to another individual or legal entity provided that: (a) you also transfer (i) this Agreement; (ii) the license number(s), the Software affixed to media provided by vBulletin Solutions or its authorized reseller, and all other software or hardware bundled, packaged, or pre-installed with the Software, including all copies, Updates, and prior versions; (b) you retain no Updates or copies, including backups and copies stored on a Computer or in the cloud; and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions under which you purchased the License to the Software. For the purpose of clarity, other vBulletin products and services, including support contracts, access to product updates, discounts, and the use of support forums are non-transferable. Prior to a transfer, vBulletin Solutions might require that you and the receiving party confirm in writing your compliance with this Agreement, provide vBulletin Solutions with information about yourselves, and register as end-users of the Software. Allow 4-6 weeks to effect the transfer. Prior to any transfer, you must contact vBulletin Solutions Customer Support Department at firstname.lastname@example.org. Upon transfer of the Software, your License is automatically terminated.
19.1.2 This Agreement will not prejudice the statutory rights of any party, including those dealing as consumers.
19.1.3 This Agreement, and in particular, this Section 19.1.3, is intended to describe your rights (including your statutory rights) in the event there should be problems with your use of the Software. If your statutory rights are greater than this description, your statutory rights will apply. If you obtained the Software in the E.U., you usually reside in the E.U., and you are a consumer (that is you use the Software for personal, non-business related purposes), then Section 7 does not apply to your purchase and use of the Software. Instead, vBulletin Solutions warrants for a period of two (2) years from purchase that the Software provides the functionalities when used on the recommended hardware configuration. Non-substantial variation from the agreed upon functionalities will not establish any warranty rights. THIS WARRANTY DOES NOT APPLY IF THE SOFTWARE FAILS TO PERFORM BECAUSE IT HAS BEEN ALTERED BY YOU. To make a warranty claim, you must notify the vBulletin Solutions Customer Support Department at email@example.com during this two (2) year period, providing details or proof of purchase of the Software. vBulletin Solutions will verify with you whether there is a defect in the Software or advise you that the error arises because you have not installed the Software correctly (in which case, vBulletin Solutions will assist you). If there is a defect in the Software, you may request from vBulletin Solutions either a refund or replacement copy of the Software. Requests must be accompanied by proof of purchase. In the event your warranty details are not substantiated, vBulletin Solutions will meet your request for replacement Software, unless it is not reasonable for vBulletin Solutions to do so, in which case vBulletin Solutions will provide you with a refund. For warranty assistance, please contact the vBulletin Solutions Customer Support Department.
The provisions of Section 8 (Limitation of Liability) will continue to apply to any damages claims you make in respect of your use of the Software. vBulletin Solutions may be liable if so determined by a court of competent jurisdiction for direct losses that are reasonably foreseeable in the event of a material breach by vBulletin Solutions of this Agreement. You are advised to take all reasonable measures to avoid, reduce or otherwise mitigate damages, in particular by making one (1) back-up copy of the Software and your computer data, and we strongly recommend purchasing Updates, as they often include important security patches.
Service Agreement for vBulletin Cloud
This Agreement is between you (“You” or “Your”) and vBulletin Solutions, Inc., a California corporation and wholly owned subsidiary of Internet Brands, Inc., a Delaware corporation (“vBulletin,” “we,” “our,” “us”).
(a) “Account” means Your vBulletin Cloud profile and includes Your Service plan level and features You have selected through the customer portal and personal information You have provided to vBulletin in connection with your vBulletin Cloud profile.
(b) “Content” means written, graphical and electronic content and data, including, without limitation, text, audio, video, photographs, illustrations, photographs, designs, and forms.
(c) “Data Policy” means vBulletin’s standard data deletion policy, as modified from time to time.
(d) “Effective Date” means the date of commencement of the Service as listed in Your Account.
(e) “End User” means a third party that visits Your Website.
(f) “End User Content” means Content supplied by End User displayed on Your Website.
(h) “Service” means Your access to and use of the vBulletin Software and vBulletin Cloud.
(i) “vBulletin Cloud” means vBulletin’s website hosting service.
(j) “vBulletin Content” means Content supplied by vBulletin.
(k) “vBulletin Software” means the most current version of vBulletin 5 Connect and any subsequent upgraded versions, as they become available; provided that vBulletin reserves the right to not offer You subsequent upgraded versions its sole discretion.
(l) “Website” means Your website hosted by vBulletin.
(m) “Your Content” means Content supplied by You, made available by means of the Service or on Your Website.
(a) Use of Service. The Service is intended to be used solely for hosting forum websites and not for other usage such as remote digital storage. The Service will only be offered for websites created within the vBulletin Cloud platform. vBulletin may change, discontinue or impose conditions on the Service at any time. vBulletin will provide the Service to You pursuant to its standard policies and procedures then in effect.
(b) Service Levels. The Service offers various Service levels. The Service features, including permitted bandwidth, e-mail usage, and network usage, will depend on the level of Service selected by You in Your Account. The levels of Service and their respective features, as set forth in Your Account and described on vBulletin’s website (www.vBulletin.com), may be changed by vBulletin from time to time.
You will pay, and authorize vBulletin to charge, the Service fees using Your selected payment method. The fees are based on the Service purchased and not actual usage. Payment obligations are non-refundable. vBulletin reserves the right to contact You or take down Your Website if You fail to make timely Service payments. vBulletin may change Service pricing at any time in its sole discretion, provided that the new pricing will become effective upon commencement of the next Term, at which time, the new price will automatically be applied to Your Service unless terminated by You in accordance with this Agreement.
(a) Overage. The fees are based on the Service purchased and not actual usage, unless the actual usage exceeds the Service purchased. In the event that Your use of the Service exceeds the use provided for by the Service level selected by You in Your Account, vBulletin will be authorized to charge You the fee associated with the Service level consistent with Your usage.
4. vBulletin Property & Feedback.
(a) vBulletin Property. vBulletin retains all right, title, and interest in and to the Service, including without limitation all software, underlying core code used to provide the Service, and vBulletin Content, including all logos and trademarks reproduced through the Service (collectively, “vBulletin Property”). This Agreement does not grant You any intellectual property rights in or to the vBulletin Property or any component thereof. You recognize and agree that: (i) vBulletin Property is the property of vBulletin or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) You do not acquire any right, title, or interest in or to the vBulletin Property except the limited and temporary right to use it as necessary for Your use of the Service.
(b) Feedback. vBulletin will have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by You.
5. Domain Names.
You may opt to use a personal domain name in connection with the Service, or in the alternative, a sub-domain of vBulletin.net.
(a) Personal Domain Name. In all instances where You use a personal domain name for the Service, You represent and warrant that you have all necessary right and title to the domain name, and that use of the domain name will not interfere with or violate any third party rights. Your personal domain will be subject to the terms of the Uniform Domain Dispute Resolution. You acknowledge that You, and in no case vBulletin, will be solely responsible the domain name, including all filings and fees associated with the domain name.
(b) Sub-Domain of vBulletin. In all instances where vBulletin provides You with a sub-domain of vBulletin.net, vBulletin retains all right, title, and interest in the sub-domain. This Agreement does not grant You any property rights in or to the sub-domain or any part thereto, except the limited and temporary right to use the sub-domain in connection with Your use of the Service during the Term.
(c) Data. You acknowledge and agree that vBulletin may associate any data of any kind with the domain name associated with Your Website or any uniform resource location incorporating said domain name until you replace such date with Your Website, at such time if Your Website is not available and upon termination of the Service. Notwithstanding the generality of the foregoing statement, vBulletin may cause your domain to result in a “Webpage cannot be found” or “404 error page.”
6. Your Account, Password, and Security.
Upon registration, You will choose a username, password, and other Account information. You will have the ability to assign other individuals as administrators for Your Account. You will be solely responsible for use of the Service by any such administrators and any other person who uses Your username or password to access the Service whether or not You specifically authorize such person’s use or actions. You are solely responsible for (i) maintaining the confidentiality of Your username, password, and Account and (ii) all activities that occur under Your username, password and Account. You acknowledge and agree that under no circumstances will vBulletin be liable, in any way, for acts or omissions by You, Your administrators, End Users, or any other third parties, including any damages of any kind incurred as a result of such acts or omissions.
7. Monitoring the Services.
8. Access and Use of Information.
You agree to designate an agent to receive notifications of claimed infringement by providing contact information to the U.S. Copyright Office and posting such information on Your Website, in accordance with the Digital Millennium Copyright Act (“DMCA”). You further agree to expediently respond to notifications of claimed infringement. If vBulletin receives a notification of claimed infringement for Your Website, vBulletin will attempt to contact You. In the event that You fail to expediently respond to a direct notification of claimed infringement notification or correspondence by vBulletin regarding claimed infringement notification, vBulletin reserves the right to take down Your Website or any Content claimed to be infringing without Your consent. You will not be entitled to reimbursement of Service fees for Website downtime resulting from Your failure to respond to DMCA notifications or correspondences. vBulletin may be required to disclose information to individuals asserting rights under the DMCA, andYou expressly authorize vBulletin to comply with any and all lawful notices, subpoenas, court orders, or warrants without prior notice to You.
10. Your Representations and Warranties. You represent and warrant:
(a) Your Account information is accurate and You will, at all times, maintain the accuracy of such information;
(b) You will abide by all applicable laws, rules and regulations in connection with this Agreement, the Service, and your Website, including DMCA and the CAN-SPAM Act of 2011, as amended;
(d) Your Content, Your Website, and End User Content do not and will not infringe or violate the rights of any third party;
(e) Your Website will not to store, transmit, or display any Content that is obscene, defamatory, libelous, threatening, harassing, pornographic, racially or ethnically offensive, that encourages conduct that would be considered a criminal offense or give rise to any civil liability;
(f) Your Content, Your Website, and End User Content will be free of any dangerous or malicious content or scripts that could potentially damage or impair the Service to You or other customers (ex. viruses, Trojan horses, Easter eggs, worms, time bombs, cancelbots, buffer overflow programs; back doors, trap doors, cross-site scripting, spam, bots of any type, denial of service attacks);
(g) You will not attempt to undermine, interfere, disrupt, or otherwise adversely affect the security, integrity, or performance of the Service, vBulletin’s network, or third-party data contained therein, as determined by vBulletin in its sole discretion;
(h) You will not utilize processes that generate unreasonable or excessive usage of vBulletin’s system resources, as determined by vBulletin in its sole discretion;
(i) You will not attempt to gain unauthorized access to the Service or their related systems or networks.
11. DISCLAIMER OF WARRANTIES.
THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE. TO THE FULLEST EXTENT PERMITTED BY LAW, VBULLETIN MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. FURTHER, VBULLETIN MAKES NO REPRESENTATIONS ABOUT VBULLETIN CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE, THE SPECIFIC FUNCTIONS OF THE SERVICE, OR THE SERVICE’S RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (I) VBULLETIN HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; AND (II) VBULLETIN DOES NOT WARRANT THAT THE SERVICE WILL PERFORM WITHOUT ERROR OR IMMATERIAL INTERRUPTION.
12. LIMITATION OF LIABILITY.
IN NO EVENT (A) WILL VBULLETIN’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM; AND (B) WILL VBULLETIN BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING ARISING FROM (I) CONTENT ON THE WEBSITE; (II) END USERS’ USE OF THE WEBSITE; (III) OTHER PARTIES ACCESSING YOUR CONTENT OR ACCOUNT; (IV) SECURITY BREACHES; (V) INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (VI) INTERRUPTIONS OF THE SERVICE, INCLUDING INTERRUPTIONS DUE TO MAINTENANCE; (VI) RELIANCE ON OR USE OR MISUSE OF THE SERVICE; (VIII) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF YOUR CONTENT OR ANY FAILURE OF PERFORMANCE OF THE SERVICE; (IX) INABILITY TO ACCESS THE SERVICE DUE TO CONNECTIONS, INTERNET ROUTING, FILTERING BY GOVERNMENT AGENCIES, HACKING, SPAMMING, OR ANY OTHER CIRCUMSTANCE OUTSIDE THE CONTROL OF VBULLETIN; OR (X) THE USE OF THE SERVICE BY YOU, END USERS, OR OTHER THIRD PARTIES THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SCRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS. THE LIABILITIES LIMITED BY THIS SECTION APPLY: (I) TO LIABILITY FOR NEGLIGENCE; (II) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (III) EVEN IF VBULLETIN IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (IV) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, VBULLETIN’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
You understand and agree that, because damages are often difficult to calculate, if it becomes necessary for vBulletin to pursue legal action to enforce this Agreement against You, You will be liable to pay vBulletin the following amounts as liquidated damages, not as a penalty, but as a reasonable estimate of vBulletin’s damages for the specified breaches of this Agreement:
(a) If Your Content violates this Agreement, You agree to pay vBulletin $100 for each item posted in violation of this Agreement. We may, but will not be required to, issue You a warning before assessing damages.
(b) If You display, copy, duplicate, reproduce, reverse engineer, or exploit any vBulletin Property in violation of this Agreement, you agree to pay vBulletin $1,000 for each item of vBulletin Property.
(c) If you intend to damage, interfere with, disrupt, impair, disable or otherwise overburden the Service or vBulletin’s server, You agree to pay vBulletin $1,000 for each instance.
You agree to defend, indemnify and hold harmless vBulletin, its parent and affiliates, and their respective shareholders, officers, directors, employees, agents, licensees, and assigns from and against all claims, losses, damages, liability, costs and expenses (including attorneys’ fees) arising from (i) Your use or misuse of the Service; (ii) the use or misuse of the Service by anyone else through Your Account; and (iii) a breach of any of Your representation, warranty, or obligation hereunder.
15. Subpoena Policy.
(a) Service of Subpoenas. We are committed to protecting the privacy of our customers. We do not release non-public information about our customers, except as lawfully required by appropriate legal process such as subpoena, court order, or other valid legal process. We are headquartered in El Segundo, California and will only respond to legal process in compliance with California State and United States Federal law. We only accept legal process delivered by mail or facsimile (we do not accept legal process via e-mail). Acceptance of legal process by these means is for convenience only and does not waive any objections, including lack of jurisdiction or proper service. A person or entity seeking the identity or account information of a vBulletin customer in connection with a civil (as opposed to criminal) legal matter must properly serve us with a subpoena at the following address:
Internet Brands, Inc.
Attention: Legal Department
909 N. Sepulveda Blvd., 11th Floor
El Segundo, California 90245
(b) Documentation; Notice; Response. We reserve the right to request a copy of the complaint and any supporting documentation that demonstrates how the information requested is related to the pending litigation and the underlying subpoena. Upon receipt of a valid civil subpoena, vBulletin will promptly notify the customer whose information is sought. If circumstances do not amount to an emergency, Internet Brands will not immediately produce the user information sought by the subpoena and will provide the customer an opportunity to move to quash the subpoena in court.
(c) Fees for Subpoena Compliance. We will charge the person or entity submitting the civil subpoena for costs, and any applicable taxes, associated with subpoena compliance. Payment must be made within thirty (30) days from the receipt of the invoice. Checks should be made out to vBulletin Solutions, Inc. Our subpoena compliance costs are as follows:
Research: $150.00 per hour
Mailing: Cost as billed
Copies: $.50 per page
Discs and Hard Drives: Cost as billed
(d) E-mail Policy. vBulletin will not produce the content of e-mail, as the Electronic Communications Privacy Act, 10 U.S.C. § 2701 et seq., prohibits an electronic communications service provider from producing the contents of electronic communications, even pursuant to subpoena or court order, except in limited circumstances.
16. Term & Termination.
(a) Term. This Agreement commences on the Effective Date and will continue on a month-to-month basis (“Term”).
(b) Termination for Cause. vBulletin may terminate this Agreement for material breach by You upon thirty (30) days’ prior written notice to You. If vBulletin terminates this Agreement for cause, You will not be entitled to a refund of the unused portion of the fees paid for the Service.
(c) Termination for Convenience. You may terminate this Agreement for convenience at any time by ceasing use of the Service. If terminated for convenience by You, You will not be entitled to a refund of the unused portion of the fees paid for the Service. vBulletin may terminate this Agreement for convenience upon If terminated for convenience by vBulletin, You will be entitled to a refund of the unused portion of the fees paid for the Service.
(d) Effects of Termination. Upon termination of this Agreement, the rights granted hereunder by any party to the other will cease immediately and Your access to the Service will cease. The following provisions will survive termination of this Agreement: (i) any obligation of You to pay for Service rendered before termination; (ii) Sections 3 (Payment), 4 (vBulletin Property & Feedback), 5 (Domain Names), 8 (Access and Use of Your Information), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Damages), 14 (Indemnification), 15 (Subpoena Policy), and 17 (Miscellaneous) of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
(a) Notices. We may send You notices pursuant to this Agreement to the contact information listed in Your Account, and such notices will be deemed received two (2) days after they are sent. You may send written notices pursuant to this Agreement to vBulletin Solutions, Inc., 909 N. Sepulveda Blvd., 11th Floor, El Segundo, CA 90245, Attention: Legal Department, and such notices will be deemed received two (2) days after they are sent.
(c) Independent Contractors. The parties are independent contractors. Nothing in this Agreement, or any action by the parties, will be construed to create a partnership, joint venture, or agency. Neither party may bind the other in any way.
(d) No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(e) Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(f) Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except vBulletin may assign this Agreement in connection with a sale, merger, or transfer to a corporate affiliate without Your consent. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(g) Choice of Law & Jurisdiction. This Agreement will be governed solely by the laws of the State of California, without reference to its conflict of law rules. The parties irrevocably consent to the personal and exclusive jurisdiction of the state and federal courts located in Los Angeles County, California and the Central District of California, respectively. The aforementioned choice of venue is intended by the parties to be mandatory, and not permissive, in nature.
(h) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
(j) Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof.