Terms of Service
Modified and Effective on March 27, 2020
The following terms of service (as amended, from time to time, this “Agreement”) governs Your subscription to the Services (as defined below) provided by Sibme (as defined below) and Your use of the website www.sibme.com (the “Site”). This Site is owned and operated exclusively by Dos Terra Limited Liability Company d/b/a Sibme, a Texas limited liability company (“Sibme”).
Sibme provides an online software application that You can use to evaluate, coach, train, and assess professional practices (collectively, “Services”). This Agreement shall be effective as of the date that You subscribe on the Site and thereby accepts these terms of service (the “Effective Date”) and shall govern Your use of all services offered by Sibme from time to time via its Site. Your use of the Site is subject to Your acceptance and compliance with these terms and conditions. PLEASE REVIEW THIS AGREEMENT THOROUGHLY BEFORE ACCEPTING
a. System Requirements. Use of the Services requires one or more compatible devices, Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Your ability to access and use the Services may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.
b. App Permissions. When You use the Services, You may grant certain permissions to Sibme for Your device and/or accounts. Most mobile device platforms provide additional information regarding these permissions and how, if possible, to change Your permission settings. By downloading, installing or using the Services, you agree to receive automatic software updates (as applicable).
This is an Agreement for services and access to the Services is available solely through use of the Site. Sibme will provide the Services as described herein and standard updates to the Services are made generally available by Sibme during the term. Sibme may, in its sole discretion, discontinue the Services or modify the features of the Services from time to time without prior notice.
a. Trial Services. Sibme offers, from time to time, access to services that are classified as trial account (“Trial Account”). Access to and use of the Trial Account by You and Your team is only permitted during 30 days from your registration for this Service. The Trial Services is provided to You solely for evaluation purposes for Your own testing and evaluation upon Your subscription to the Trial Account. You acknowledge that all Trial Services incorporates confidential and proprietary information developed or acquired by or licensed to Sibme and that all results of testing of the Services. In no event You will publish or disclose the results of any testing or performance specifications of the Services without Sibme’s express prior written consent. You shall not remove or deface of any confidentiality or proprietary notice place on the Trial Services. ALL TRIAL SERVICES PROVIDED BY SIBME IS DELIVERED “AS IS, WHERE IS” AND SIBME SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SIBME DOES NOT WARRANT THAT THE TRIAL SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. UNDER NO CIRCUMSTANCES WILL SIBME OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE OR WHETHER BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO YOUR USE OF TRIAL SERVICES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF SIBME OR ITS AUTHORIZED REPRESENTATIVES INCURRED IN ANY ACTION OR PROCEEDING RELATING TO YOUR USE OF THE TRIAL SERVICES EXCEED ONE HUNDRED DOLLARS.
3. Use Of The Services And Your Responsibilities
You may only use the Services and the Site pursuant to the terms of this Agreement. You are solely responsible for Your and Your End Users’ (as defined in Section 4 below) use of the Services and shall abide by, and ensure compliance with, all laws in connection with Your and each End User’s use of the Services, including but not limited to laws related to recording, intellectual property, privacy, defamation and export control. You acknowledge that the information available through the Site may include textual, photographic, video and audio components, which are protected by United States and International Copyright Law. Use of the Services is void where prohibited.
a. Registration Information You may be required to provide information about Yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to choose a username and password. You are entirely responsible for maintaining the security of Your username and password and agree not to disclose such to any third party.
b. Your Content You agree that You are the solely responsible for the content (“Content”) sent or transmitted by You or Your End User or displayed or uploaded by You (or Your End User) in using the Services and for compliance with all laws pertaining to the Content, including, but not limited to, laws requiring You to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. You represent and warrant that You have the right to upload the content to Sibme and that such use does not violate or infringe on any rights of any third party. Under no circumstances will Sibme be liable in any way for any (i) Content that is transmitted or viewed while using the Services, (ii) errors or omissions in the Content, or (iii) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although Sibme is not responsible for any Content, Sibme may delete any Content, at any time without notice to You, if Sibme becomes aware that it violates any provision of this Agreement, or any law. You retain copyright and any other rights You already hold in the Content which You submit, post or display on or through, the Services.
c. Recordings You are responsible for compliance with all recording laws. By using the Services, You are giving Sibme consent to store recordings for any or all audios videos, workshops and coaching Tracker (collectively, the “Sibme Solutions”) that You participate, if such recordings are stored in our systems. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to being recorded, You can choose to leave the Sibme Solutions.
d. Prohibited Use You agree that You will not use, and will not permit any End User to use, the Services to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, the Services or the Site; (ii) modify, translate, or create derivative works based on the Services, or the Site; (iii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts Sibme’s networks, Your accounts, or the Services; (iv) engage in activity that is illegal, fraudulent, false, or misleading; (v) transmit through the Services any material that may infringe the intellectual property or other rights of third parties; (vi) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; (vii) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation, including, but not limited to, collecting or storing personal data about other users or acting in a manner that negatively affects other user’s ability to engage in exchanges, stalking or otherwise harassing anyone, harming minors in any way; (viii) upload or transmit any software, Content or code that does or is intended to harm, disable, destroy or adversely affect performance of the Services in any way or which does or is intended to harm or extract information or data form other hardware, software or networks of Sibme or other users of the Services; (ix) engage in any activity or use of the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or Sibme’s security systems; and (x) use the Services in violation of any Sibme policy or in a manner that violates applicable law, including but not limited to, anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and You agree that You are solely responsible for compliance with all such laws and regulations. Your violation of any of these prohibitions automatically terminates your right to use the Site and the Services and you are on notice that we intend to pursue our legal remedies for any violation.
e. Limitations on Use You may not reproduce, resell, or distribute the Services or any reports or data generated by the Services for any purpose unless You have been specifically permitted to do so under a separate agreement with Sibme. You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
4. Responsibility For End Users
You are responsible for the activities of all Your team members (“End Users”) who access or use the Services through Your account and You agree to ensure that any such End User will comply with the terms of this Agreement and any Sibme policies. Sibme assumes no responsibility or liability for violations. If You become aware of any violation of this Agreement in connection with the use of the Services by any person, please contact Sibme at [email protected]. Sibme may investigate any complaints and violations that come to its attention and may take any (or no) action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will Sibme be liable in any way for any data or other content viewed while using the Services, including, but not limited to, any errors or omissions in any such data or content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or content. It is your responsibility to safeguard the password provided to you for accessing your account, and not share the same with third parties. You will also be responsible for any and all activity on your account.
5. SIBME Obligations For Content
You affirm that You are of legal age and are otherwise fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. Although we cannot absolutely control whether minors gain unauthorized access to the Services, access may be terminated without warning if we believe that You are underage or otherwise ineligible. You may subscribe to and use the Services for business purposes, and You agree, if You are an individual, that the Services are being purchased in a business or professional capacity. YOUR SCHOOL WILL DECIDE HOW IT WISHES TO USE THE SERVICES. IF YOU ARE A PARENT, YOU MUST VERIFY THAT YOU AGREE THAT THE USE OF THE SERVICES IS ACCEPTABLE FOR YOU AS WELL AS ANY OF YOUR CHILDREN WHO MAY USE SIBME SERVICES. IF YOU ARE A TEACHER OR SCHOOL ADMINISTRATOR, YOU MUST ALSO VERIFY THAT THE USE OF THE SERVICES IS ACCEPTABLE FOR YOU AS WELL AS ANY OF YOUR STUDENTS THAT USE SIBME SERVICES.
7. Proprietary Rights
Sibme and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names (“Sibme Marks“) associated or displayed with the Services. You may not frame or utilize framing techniques to enclose any Sibme Marks, or other proprietary information (including images, text, page layout, or form) of Sibme without express written consent. You may not use any meta tags or any other “hidden text” utilizing Sibme Marks without Sibme’s express written consent.
You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. Sibme may deny access to the Services to any user who is alleged to infringe another party’s copyright. Without limiting the foregoing, if You believe that Your copyright has been infringed, please notify Sibme as specified
You hereby agree to defend, indemnify and hold harmless Sibme and its business partners (including without limitation officers, directors, employees, shareholders and agents) from and against any and all claims, suits, damages, losses, liabilities, penalties, actions, proceedings, judgments, settlements, and any and all expenses and costs related thereof and demands thereof of any type and nature (whether actual or alleged, known or unknown, disclosed or undisclosed), including without limitation costs and reasonable attorneys’ fees, in connection with any claim or action that arises from (i) your violation of this Agreement, (ii) the content or information you post, transmit or store using the Services or the Site or (iii) arises from your activities or postings in connection with your use of the Services or the Site, including, but not limited to, the infringement or violation by You or any other user of Your account, of any intellectual property or other right of any person or entity or applicable law. In addition, You acknowledge and agree that Sibme has the right to seek damages when You use the Services or the Site for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
10. Liability Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SIBME OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SIBME, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SIBME’S, ITS AFFILIATES’ AND SUPPLIERS’ MAXIMUM CUMULATIVE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to You.
11. Warranty Disclaimer
12. Privacy And Other Policies
13. Monitoring Communications
14. Governing Law, Jurisdiction, Venue
15. Payment, Refunds, Upgrading And Downgrading Membership Plans
A valid credit card is required for all subscription to Sibme Services except to the Trial Services. Subject to the terms of Section 2.a above, Your Sibme Trial Services will be automatically terminated within 30 days from your registration of such Trial Services if You don’t make a purchase of Sibme Services during your trial period. Once You subscribe for a monthly or annually Sibme Services, Sibme will charge your credit card on file monthly or annually, as applicable, until Sibme Services is cancelled or terminated.
a. Billing and Refunds All Services are billed in advance on a monthly or annual basis, depend upon Your selection of payment when subscribing to Sibme Services on Sibme Site, and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open subscription to any Sibme Service.
b. Upgrading/Downgrading Membership Plan If You upgrade or downgrade a plan level, the credit card that You provided will automatically be charged the new rate on Your next billing cycle. Downgrading Your Service may cause the loss of data, content, features, or capacity of Your account. Sibme does not accept any liability for such loss.
c. Renewal Upon expiration of the Initial Term (as defined in the Price Quote) and, if applicable, each Renewal Term (as defined in the Price Quote), all Sibme licenses specified in the Price Quote shall automatically renew for an additional 12-month Renewal Term and Sibme will invoice You at the then-current subscription-based list price for such additional Service term unless Sibme is notified by You in writing at least sixty (60) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable, that You will not renew the licenses granted hereunder for another Renewal Term.
d. Payment Information When You provide payment information, You represent and warrant that the information you provide is accurate, that You are authorized to use the payment method provided, and that You will notify Sibme of changes to the payment information. Sibme reserves the right to utilize third party payment card updating services to obtain current expiration dates on credit cards and debit cards.
16. Cancellation And Termination
You are solely responsible for properly canceling Your account. You can cancel Your account at any time by clicking cancel account in the Account Owner’s profile. The Account screen provides a simple no questions asked cancellation link. Sections 2 through 18, inclusive, shall survive any termination of this Agreement. Upon any termination of this Agreement, You must cease any further use of the Services.
a. Content after Cancellation and Termination All of Your Content will be immediately deleted from the Site upon Your cancellation of the Services. This information cannot be recovered through the Site once Your account is cancelled. If You cancel the Services before the end of Your current paid up month, Your cancellation will take effect immediately and You will not be charged again. Upon termination of the Services, Sibme will retain the Content for 60 days after the effective date of the termination (“Retention Period”). The Content will be permanently deleted from Sibme systems after the Retention Period.
b. Account Suspension Sibme, in its sole discretion, has the right to suspend or terminate Your account and refuse any and all current or future use of the Services, for any reason at any time. Such termination of the Services will result in the deactivation or deletion of your Account or Your access to Your Account, and the forfeiture and relinquishment of all Content in Your Account. Sibme reserves the right to refuse service to anyone for any reason at any time.
c. Modifications to the Service and Prices Sibme reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Sibme Service (or any part thereof) with or without notice. All prices of Sibme Services, including but not limited to monthly and annual subscription plan fees to Sibme Service, are subject to change upon 30 days’ notice from Sibme. Such notice may be provided at any time by posting the changes to the Sibme Site or the Sibme Service itself. Sibme shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of any Sibme Service.
17. Export Restrictions
You acknowledge that the Services, or portion thereof may be subject to the export control laws of the United States and other applicable country export control and trade sanctions laws (“Export Control and Sanctions Laws”). You and your End Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export control or trade sanctions law or regulation. You represent and warrant that (i) You and Your end users are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea) and that You and Your end users will not access or use the Services, or export, re-export, divert, or transfer the Services, in or to such countries or territories; (ii) You and Your end users are not identified on any U.S. government restricted party lists (including without limitation the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons and Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Denied Parties List, Entity List, and Unverified List, and the U.S. Department of State proliferation-related lists); and (iii) that no Content created or submitted by You or Your end users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You are solely responsible for complying with the Export Control Laws and monitoring them for any modifications.
18.1 Entire Agreement. You and Sibme agree that, subject to the terms of this Section 18.1, this Agreement, together with all Price Quote and purchase orders delivered in connection herewith and all exhibits, schedules and annexes hereto, is the complete and exclusive statement of the agreement between You and Sibme and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement, including any agreement that previously was in force between the parties. This Agreement may not be amended, modified, supplemented or altered except by a written agreement that is signed by both parties. UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS AGREEMENT OR ANY SIBME PRICE QUOTE OR PURCHASE ORDER BE AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, SUPERSEDED OR REPLACED BY ANY NON-SIBME INVOICE OR NON-SIBME PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT DELIVERED BY YOU TO SIBME. EACH PARTY ACKNOWLEDGES AND AGREES THAT, AS A CONVENIENCE TO YOU AND ONLY FOR YOUR INTERNAL ACCOUNTING PROCEDURES, YOU MAY DELIVER TO SIBME YOUR PURCHASE ORDER OR INVOICE OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION CONTEMPLATED HEREUNDER AND THAT NO ACTION BY SIBME, INCLUDING SIBME ACCEPTANCE OF PAYMENT OR PROVIDE YOU SERVICE, SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONS CONTAINED IN YOUR PURCHASE ORDER, INVOICE OR OTHER SIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS ACCEPTED BY SIBME PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES.
18.2 Severability If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
18.3 Waiver Sibme and You agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
18.4 Assignment This Agreement shall not be assignable by You without Sibme’s prior written consent. Sibme may assign this Agreement in whole or in part upon written notice to You. This Agreement shall be binding upon and accrue to the benefit of any permitted assignee, and any such assignee shall agree to perform the obligations of the assignor.
18.5 Injunctive Relief You acknowledge that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Sibme, its Affiliates and suppliers, and under such circumstances Sibme, its Affiliates and suppliers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
18.6 General Provisions Sibme may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Sibme will exercise commercially reasonable business efforts to provide notice to You of any material changes to this Agreement. Within ten (10) business days of posting changes to this Agreement (or ten (10) business days from the date of notice, if such is provided), they will be binding on You. If You do not agree with the changes, You should discontinue using the Services. If You continue using the Services after such tenbusiness-day period, You will be deemed to have accepted the changes to the terms of this Agreement. In order to participate in certain Services, You may be notified that You are required to download software and/or agree to additional terms and conditions. Unless expressly set forth in such additional terms and conditions, those additional terms are hereby incorporated into this Agreement.
Attn: Legal Department
1113 Vine St., suite 221
Houston, TX 77002