Last updated: 4 September 2008
PLEASE READ THIS USER AGREEMENT (THIS "AGREEMENT") CAREFULLY. BY ACCESSING OR USING THIS WEB SITE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL TERMS, POLICIES, AND GUIDELINES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ANY PROVISION OF THIS AGREEMENT, DO NOT USE THIS WEB SITE.
This Agreement applies exclusively to your access to, and use of, the Divvy service provided by WDG Inc. ("WDG") on divvy.com ("Divvy"). This Agreement does not alter in any way the terms or conditions of any other agreement you may have with WDG or its subsidiaries or affiliates for products, services, or otherwise. If you use Divvy on behalf of any entity, you represent and warrant that you are authorized to accept this Agreement on such entity's behalf, and that such entity agrees to indemnify you and WDG for violations of this Agreement.
WDG reserves the right to change or modify any of the terms and conditions contained in this Agreement, and any other Divvy policy or guideline, at any time and in its sole discretion. Any changes or modifications will be effective immediately upon posting of the revisions on Divvy. Your continued use of Divvy following the posting of such changes or modifications will constitute your acceptance of such changes or modifications. If WDG updates this Agreement, it will update the "last updated" date above. You should frequently review this Agreement and other applicable policies from time to time to understand the terms and conditions that apply to your use of Divvy. If you do not agree to the amended terms, you must stop using Divvy.
Divvy is a reservation service that allows owners of objects, products, services, and other items ("Items"), and agents authorized to act on behalf of those owners ("Owners"), to make those Items available for reservation and use by Divvy users ("Borrowers"). Divvy allows Borrowers to view information about the availability of, and to reserve, Items for their personal, non-commercial use.
Divvy and all information, data, and other content and materials available on Divvy, including, without limitation, the Divvy logo and all designs, text, documents, graphics, software, videos, sound files, other files, and the selection and arrangement thereof on Divvy (collectively, "Content"), are the proprietary property of WDG and its suppliers and licensors and are protected by U.S. and international copyright laws.
If you comply with all the terms and conditions of this Agreement, WDG grants you a revocable, non-transferable, and non-exclusive license to access Divvy and to electronically copy (except where prohibited without a license) and print to hard copy portions of the Content for your informational, personal, and non-commercial purposes only. This license is revocable at any time.
Except for those rights expressly granted in this Agreement, no other rights are granted, either express or implied, to you under this Agreement. Unless stated explicitly in this Agreement, nothing in this Agreement will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, WDG maintains a policy of terminating, in appropriate circumstances and at WDG's sole discretion, Divvy account holders who are deemed to be repeat infringers. WDG may also at its sole discretion limit access to Divvy and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that any Content on Divvy infringes upon any copyright which you own or control, you may file a notification of such infringement with WDG's designated agent as set forth below.
Name of agent designated to receive notification of claimed infringement: Aaron Freed
Full Address of Designated Agent to Which Notification Should be Sent:
300 Lenora St B159
Seattle, WA 98121
Telephone Number of Designated Agent: (206) 388-7966
Facsimile Number of Designated Agent: (866) 772-7732
E-Mail Address of Designated Agent: agent@divvy.com
WDG may give notice of a claim of copyright infringement to Divvy users by means of a general notice on Divvy, electronic mail to a user's email address in its records, or by written communication sent by first-class mail to a user's address in its records.
DivvyTM, Divvy – Because we ShareTM, Do you DivvyTM, Share the WealthTM, Let it OutTM, the Divvy logos, and any other product or service name or slogan contained in Divvy and in any Content are trademarks of WDG and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of WDG or the applicable trademark holder. All other trademarks, registered trademarks, product names and company names or logos mentioned in Divvy or in any Content are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship, or recommendation thereof by WDG.
Divvy may contain, and may display links to, content provided by third parties ("Third-Party Content"). WDG does not control, monitor, endorse, or adopt any Third-Party Content. WDG undertakes no responsibility to update or review any Third Party Content and can make no guarantee as to its accuracy or completeness.
Additionally, if you follow a link or otherwise navigate away from Divvy, please be aware that Divvy's terms and policies will no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Web sites or other Third-Party Content to which you navigate from Divvy. You access and use Third-Party Content at your own risk.
Divvy may contain advertisements and promotions from third parties. Your business dealings or correspondence with, or participation in promotions of, advertisers other than WDG, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. WDG is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such non-WDG advertisers on Divvy.
You acknowledge and agree that any materials, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials, or other information, provided by you in the form of email or other submissions to WDG, are non-confidential and shall become the sole property of WDG. WDG will own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Divvy may include interactive features and services, including its item reservation and borrowing service, social networking functionality, forums, message boards, and similar services in which you or third parties may send messages to Divvy users and create, post, or store Content on Divvy ("Interactive Services"). You are solely responsible for your use of Interactive Services and use them at your own risk. By using any Interactive Services, you agree not to post, transmit, distribute, upload, or otherwise disseminate through Divvy any of the following:
Divvy may allow Divvy members to post listings of products, services, and other Items available for the use of other Divvy members (each, a "Divvy Post"). All Divvy Posts must comply with the terms of this Agreement (including, without limitation, the prohibitions and restrictions listed in this Section) and with all guidelines and policies for Divvy Posts that Divvy may make available from time to time.
For example, products, services, and other Items that satisfy any of the following descriptions may not be listed in any Divvy Posts:
WDG will, in its sole discretion, make all judgments as to whether Divvy Posts, other Content, or other user actions violate any standards for Content or other user actions described in this Agreement.
In addition to the specific restrictions and guidelines set forth elsewhere in this Agreement, including, without limitation, in Sections 9(a) and 9(b) above, WDG reserves the right to impose restrictions and limitations on the use of Divvy, including account termination, upon any Divvy users engaging in any type of conduct that, as determined by Divvy in its sole discretion, violates the Divvy community's standards of trust, respect, and pro-social behavior.
Accordingly, by way of example (and not limitation), you may not:
Your transactions, dealings, and correspondence with, or participation in promotions of, persons who place or are named or referenced in any Divvy Posts, and any terms, conditions, warranties, or representations associated with such transactions, dealings, and correspondence, are solely between you and such third party. Divvy has no control over, and does not guarantee, the quality, safety, or legality of Items advertised, the truth or accuracy of any Owner's content or listings, the ability of an Owner to loan or rent any Items, the ability of a Borrower to pay any applicable fees, or that any Item will be delivered, used, or returned in any particular condition.
Owners who make Divvy Posts:
WDG may, but is not obligated to, provide sample terms and conditions to which Owners may require Borrowers' agreement as a condition of reserving an Item. WDG may also allow Owners to upload their own rental agreements to Divvy and to require Borrowers to agree to such agreements as a condition of reserving an Item. Any separate rental agreement or other terms and conditions that are presented to Borrowers during the Item reservation process, or are otherwise purported to be binding upon Borrowers ("Owner Agreement") will be subordinate to this User Agreement, and this User Agreement will govern in the event of any conflict. All Owner Agreements must contain no rights or obligations of any party that are inconsistent with this Agreement.
WDG is not responsible or liable for any loss or damage of any sort incurred as the result of any dealings, transactions, or correspondence between Divvy users. If you enter into any kind of transaction with a Divvy user, WDG and its subsidiaries and affiliates are not responsible or liable for any action or inaction of you or any other party to such a transaction (including, without limitation, any party's failure to perform, pay any amounts due, or deliver any merchandise or services). Any fees or payments collected by WDG applicable to transactions between or among Divvy users will be set forth on Divvy, and all terms and conditions applicable to such fees or payments will be set forth in Divvy's Paid Services Fees and Terms (defined in Section 13 below). DIVVY IS PROVIDED AS-IS AND YOUR USE OF DIVVY, INCLUDING, WITHOUT LIMITATION, YOUR PLACEMENT OF A DIVVY POST, AND YOUR PURCHASE, SALE, LEASE, OR OTHER TRANSACTION WITH DIVVY USERS INVOLVING ANY GOODS OR SERVICES, IS AT YOUR OWN RISK.
WDG takes no responsibility and assumes no liability for any Divvy Posts or other Content posted, stored, or uploaded by you or any third party, or for any loss or damage thereto, nor is WDG liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter on Divvy or in your dealings with other Divvy users. WDG is not liable for any statements, representations, or Content provided by its users in Divvy Posts or in any other Interactive Services.
Although WDG has no obligation to screen, edit, or monitor any Content posted on or transmitted through Divvy, WDG reserves the right, and has absolute discretion, to remove, screen, and edit any Content posted, stored, or transmitted on or through Divvy at any time and for any reason without notice.
If you make a Divvy Post, input Content into a member profile, or otherwise post Content on or through Divvy, then, unless WDG indicates otherwise, you (a) grant WDG and its subsidiaries and affiliates a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such Content throughout the world in any media; (b) grant WDG and its affiliates, subsidiaries, and sublicensees the right to use the name that you submit in connection with such Content, if they choose; and (c) represent and warrant that you own and control all of the rights to the Content that you post, or you otherwise have the right to post such Content to Divvy; and the use and posting of Content you supply does not violate this Agreement, will not violate any rights of or cause injury to any person or entity, and will not otherwise create any harm or liability of any type for Divvy or for third parties.
Divvy users who create Divvy Posts, and Divvy users who respond to Divvy Posts, are responsible for determining whether sales, use, and other taxes apply to any transaction or other dealings relating to Divvy Posts. Such Divvy users must collect, report, and remit any and all taxes to the appropriate tax authority. WDG is not obligated to determine whether sales, use, or similar taxes apply to any transactions or other dealings relating to Divvy. WDG may, but is under no obligation to, collect, report, or remit any sales, use, or similar taxes arising from any transactions or dealings relating to Divvy. To the extent that Divvy provides functionality to Owners in connection with collecting, reporting, or remitting taxes, Owners remain fully responsible for ensuring the accuracy and proper collection, reporting, and remittance of taxes.
ANY DIVVY USER WHO CREATES A DIVVY POST, OR OTHERWISE MAKES AVAILABLE ANY PRODUCT, SERVICE, OR OTHER ITEM ON DIVVY, ASSUMES ALL RISKS OF LOSS OR DAMAGE TO THE PRODUCT, SERVICE, OR OTHER ITEM FROM ANY CAUSE. All Divvy users who create Divvy Posts, or otherwise make items available for use by other Divvy users, are responsible for obtaining and maintaining any appropriate insurance coverage.
In consideration of your use of Divvy, you agree to (a) provide accurate, current and complete information about you as may be prompted by registration forms on Divvy ("Registration Data"); (b) maintain the security of any logins, passwords, or other credentials that you select or that are provided to you for use on Divvy; and (c) maintain and promptly update the Registration Data, and any other information you provide to WDG, and to keep all such information accurate, current, and complete.
WDG reserves the right to charge fees for users to create, browse, or respond to Divvy Posts, or otherwise for the use of Divvy, and otherwise to offer services on Divvy that require the payment of fees ("Paid Services"). Before imposing new fees or changing its fee structure, WDG will post at least 30 days notice on Divvy.
Any and all fees charged by WDG in connection with Divvy are non-refundable (in all circumstances, including, without limitation in the event of nonperformance by an Owner or nonuse by a Borrower). Divvy may use payment processors and other service providers, each of which may charge additional fees and otherwise impose additional terms and conditions on the use of their services. WDG may require Owners to provide payment account credentials to WDG to allow WDG to pay into, and withdraw from, the applicable payment account (e.g., PayPal). Owners, by providing such credentials to WDG, hereby authorize WDG to withdraw applicable fees from the applicable account.
The fees charged by WDG for Paid Services, and other terms and conditions applicable to Paid Services, are available here ("Paid Services Fees and Terms"). The Paid Services Fees and Terms are hereby incorporated into this Agreement and, to the extent to which they conflict with this Agreement, will govern.
You will defend, indemnify and hold harmless WDG, its affiliates, suppliers, and licensors, and their respective directors, officers, agents, and employees from and against any costs, damages, expenses, and liabilities (including, but not limited to, reasonable attorneys' fees) arising out of or related to your use of Divvy, your violation of this Agreement, or your violation of any rights of a third party.
IF YOU HAVE A DISPUTE WITH ONE OR MORE DIVVY USERS, YOU RELEASE WDG, ITS SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, LICENSORS, AND SUPPLIERS FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE �1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
YOUR USE OF DIVVY, INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY CONTENT ACCESSIBLE THROUGH DIVVY AND YOUR INTERACTIONS AND DEALINGS WITH ANY DIVVY USERS, IS AT YOUR SOLE RISK. DIVVY AND ALL CONTENT AVAILABLE ON AND THROUGH DIVVY ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WDG, ITS AFFILIATES, SUPPLIERS, AND LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WDG DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF DIVVY OR YOUR ACCESS TO ANY CONTENT, OR THAT ANY TRANSACTION REQUEST YOU PLACE USING DIVVY (INCLUDING, WITHOUT LIMITATION, ANY POSTING OF PRODUCTS, SERVICES, OR OTHER ITEMS YOU WISH TO MAKE AVAILABLE, OR YOUR RESERVATION OF AN ITEM OR OTHER MESSAGE RELATING TO ANY SUCH POSTING) WILL BE SUCCESSFUL, UNCORRUPTED, OR COMPLETED WITHIN A REASONABLE AMOUNT OF TIME. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DELAY OR LOSS OF ANY KIND THAT RESULTS FROM YOUR ACCESS TO, AND USE OF, DIVVY AND ANY CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WDG, THROUGH OR FROM DIVVY, OR FROM ANY THIRD PARTY, WILL CREATE ANY WARRANTY REGARDING DIVVY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
WDG, ITS AFFILIATES, SUPPLIERS, AND LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WDG OR ANY OF ITS AFFILIATES, LICENSORS, OR SUPPLIERS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES) HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, DIVVY OR ANY CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE MAXIMUM TOTAL LIABILITY OF WDG, ITS AFFILIATES, SUPPLIERS, AND LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES TO YOU FOR ALL CLAIMS UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS THE GREATER OF (A) THE AMOUNT ACTUALLY PAID, IF ANY, BY YOU TO WDG FOR YOUR ACCESS TO OR USE OF DIVVY IN THE THREE MONTHS PRECEDING THE APPLICABLE CLAIM; AND (B) $50.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
WDG may, but is under no obligation to, pre-screen and pre-approve Owners' accounts (and any and all individual Items) before establishing Owners' accounts and allowing Owners Objects available for reservation and borrowing on Divvy. WDG may allow Owners to screen and pre-approve Borrowers before Borrowers are allowed to view or reserve that Owner's Items. Further, notwithstanding any provision of this Agreement, WDG reserves the right, without notice and in its sole discretion, to terminate your license to use Divvy and to block, restrict, and prevent your future access to, and use of, Divvy. Additionally, WDG reserves the right to modify, discontinue, and restrict, temporarily or permanently, all or part of Divvy (including, without limitation, access to any Content) without notice in its sole discretion. WDG makes no guarantee that you will be able to list, view, reserve, or borrow Items. Neither WDG nor its suppliers or licensors will be liable to you or to any third party for any modification, discontinuance, or restriction of Divvy or for any inability to view, reserve, or borrow any Items using Divvy.
By using the Service, you consent to receiving electronic communications from WDG. These communications may include notices about your Divvy account and information concerning or related to Divvy. You agree that any notices, agreements, disclosures, or other communications that WDG sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
WDG's failure to act in a particular circumstance does not waive its ability to act with respect to that circumstance or similar circumstances. Any provision of this Agreement that is found to be invalid, unlawful, or unenforceable will be severed from this Agreement, and the remaining provisions of this Agreement will continue to be in full force and effect. The section headings and titles in this Agreement are for convenience only and have no legal or contractual effect. Any provision in this Agreement that by its nature should survive the termination of your license to access Divvy or any termination of this Agreement (including, without limitation, provisions governing indemnification, limitations on liability, disclaimers of warranty, and ownership of intellectual property) will continue to remain in full force and effect after any such termination. This Agreement, including all terms, policies, and guidelines incorporated into this Agreement by reference, is the entire agreement between you and WDG concerning Divvy. This Agreement supersedes all prior agreements or communications between you and WDG regarding the subject matter of this Agreement.
This Agreement is governed by the laws of the State of Washington, excluding conflicts of law principles. Any controversy or claim arising out of or relating to Divvy or this Agreement in which WDG, its affiliates, or any of their respective officers, directors, agents, or employees is named as, or otherwise becomes, a party must be commenced within one year after the claim arose and will be settled by binding arbitration in Seattle, Washington, in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. Judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Washington law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party's rights or property pending the completion of arbitration.
All claims you bring against WDG, its affiliates, or any of their respective officers, directors, agents, or employees must be resolved in accordance with this Section 21. All claims filed or brought contrary to this Section 21 will be considered improperly filed. If you file a claim against WDG, its affiliates, or any of their respective officers, directors, agents, or employees contrary to this Section 21, WDG and any affiliates may recover attorneys' fees and costs up to $1000, provided that WDG or the applicable affiliate has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
WDG may, from time to time, post and adopt rules, policies, and other terms applicable to your use of Divvy. Your use of Divvy is subject to any and all posted policies, rules, and other terms that may be posted on Divvy from time to time. All such rules, policies, and other terms are hereby incorporated into this Agreement.
If you have any questions or concerns about Divvy or this Agreement, you may contact WDG at help@divvy.com .