Terms and Conditions for Diverently Unlimited

Last updated: May 10, 2022

These Terms of Service (the „Terms“) constitute a legally binding agreement between Diverently GmbH and the customer, whether personally or on behalf of a company („Customer“), regarding access to and use of the Diverently Unlimited („Unlimited“) service. ) and any other media form, channel, mobile website or mobile application, linked to or otherwise associated with it. Failure to comply with and breach of all terms, conditions and obligations herein will result in Customer’s express prohibition on using Unlimited, and Customer will be instructed to immediately cease use. Thereafter, the relationship between Customer and Diverently GmbH will cease and no longer be valid between the parties, except that any obligation of Customer to pay Diverently for Services rendered shall survive and continue to constitute Customer’s ongoing obligation to Diverently.

1. Intellectual Property Rights

Unless otherwise noted, Unlimited is owned by Diverently and all source code, database, functionality, software, website design, audio, video, text, photographs and graphics of any kind and regardless of format (collectively or individually the „Content“ herein) and the trademarks, service marks and logos contained herein (the „Marks“) are owned and controlled by Diverently and are protected by copyright and trademark laws and any other applicable intellectual property law or regulation. The Content and Marks are provided „as is“ for your information and personal use only. Except as expressly provided herein, no portion of Unlimited or any Content may be copied, reproduced, aggregated, republished, uploaded, posted, displayed, encoded, translated, transmitted, distributed, sold, licensed or otherwise exploited for any commercial purpose without the express prior written permission of Diverently. Diverently reserves all rights in Unlimited, the Content and the Marks.

2. Ownership of Materials

Notwithstanding Diverently’s ownership of Submissions, as described in paragraph 4 (“Customer Feedback”), all design and original source files created on behalf of Customer (“Projects”) belong to Customer, and Customer is the sole copyright owner for all Projects . In the event that Diverently, as a result of a legal act, becomes the full or partial owner of a Project and not the Client, Diverently irrevocably and permanently transfers its entire interest in the Project to the Client without restriction. Customer warrants that and all materials provided to Diverently as examples or as material for incorporation into a project during the design process are Customer’s property and will not infringe or misappropriate the rights of any third party, including but not limited to all rights to intellectual property and any right of publicity. Diverently always reserves the right to share the Client’s design work publicly (social media, website, etc.) unless agreed as specified in Section 18 of this document.

3. Third Party Fonts

In the event that a Project contains fonts that are not owned by Diverently and require a commercial license in order for Customer to legally reproduce, distribute, or publicly display the Project (“Third-Party Font(s)”), Diverently will provide Customers inform in writing that one or more third-party fonts have been incorporated into the project and that the customer must obtain one or more licenses for the third-party fonts from the rights holders of those third-party fonts in order to legally reproduce, distribute or public the project to show. This notice contains information sufficient to enable Customer to determine what licenses are required and whom to contact to obtain those licenses Consequences as a result of Customer’s failure to obtain one or more licenses for third-party fonts that are integrated into a project.

4. User proxies

By using Unlimited, Customer represents and warrants that: Customer has legal capacity and agrees to comply with these Terms of Use; Customer is not a minor in their jurisdiction of residence; Customer will not access Unlimited in an automated or non-human manner means: Customer will not use Unlimited for any illegal or unauthorized purpose; Customer’s use of Unlimited does not violate any applicable law or regulation.

5. Prohibited Activities

Customer may not access or use Unlimited for any purpose other than that for which Unlimited is made available to Customer. Unlimited may not be used in connection with any commercial endeavor other than those related to work performed by Diverently on behalf of Client. In addition, Customer agrees not to: make any unauthorized use of Unlimited; retrieval of data or content for the purpose of creating or compiling a database or index; bypassing, disabling, or otherwise compromising security-related features on Unlimited; Engage in any unauthorized framing or linking of Unlimited; trick, defraud or mislead Diverently or any other user; Disrupt, disrupt or impose an unreasonable load on Unlimited or Diverently’s networks or servers; Use Unlimited to compete with Diverently; decrypt, decompile, disassemble or reverse engineer any software that comprises or in any way constitutes part of Unlimited; circumvent measures taken by Unlimited to prevent or restrict access to Unlimited or any part of it; Harass, intimidate, or threaten any of Diverently’s employees, independent contractors, or agents performing services through Unlimited; remove the copyright or other legal notice from any Content; upload or transmit viruses, Trojan horses or any other material, or attempt to do so, including anything that interferes with any third party’s use of Unlimited or modifies, impairs, disrupts, alters or disrupts the use, features, functions and operations or Maintenance of Unlimited; upload or transmit, or attempt to upload, any material that will act as a passive or active mechanism for collecting or transmitting information; Diverently disparage, smear or otherwise harm; Use Unlimited in a manner inconsistent with any applicable law, statute or regulation.

6. Customer feedback

Customer acknowledges and agrees that any questions, comments, suggestions or other feedback or Submissions (each, a „Submission“) shall be the sole property of Diverently and Diverently shall have no obligation to keep any Submission confidential or to take any steps necessary to to ensure their confidentiality. Diverently is the sole and exclusive owner of all rights relating to the Submission, except to the extent Customer is granted rights under Section 2 (“Ownership of Materials”), and will use and distribute any Submission in its sole and absolute discretion for any lawful purpose without permission, acknowledgment or compensation from or to the customer. Customer agrees that it has the right to articulate and present the Submission, and Customer hereby waives all claims and recourse against Diverently for use of the Submission in accordance with the terms hereof and in its sole discretion hereafter.

7. Management and Oversite

Diverently reserves the right to monitor Unlimited for violations of these Terms of Service and to take appropriate legal action in response to any violation of the Terms of Service or any applicable law, statute or regulation. Diverently further reserves the right to restrict or deny access to Unlimited or to disable Customer’s use of Unlimited. Such determination shall be at Diverently’s sole discretion, without notice or liability to Customer. All decisions regarding the administration of Unlimited are made at the sole discretion of Diverently and are intended to protect Diverently’s rights and property.

8. Privacy Policy

By using Unlimited, Customer agrees to be bound by and abide by the Privacy Policy and the terms particularly set forth therein and accepted and incorporated herein. Unlimited is hosted in Germany. Accessing Unlimited from the EU, Asia or other regions of the world may result in the application of different laws, statutes or regulations from those of the United States governing the collection, use or disclosure of personal information. Customer’s continued use of Unlimited and the transfer of data to Germany constitutes Customer’s express consent to the transfer and processing of data to Germany. Diverently does not knowingly accept or solicit information from anyone under the age of 18. Consistent with the United States Online Privacy Protection Act, upon receipt of actual knowledge that a person under the age of 13 has submitted personal information to Diverently without parental consent, Diverently will delete such information as soon as possible.

9. Returns and Refunds

Diverently reserves the right to refuse refunds at its sole discretion and without notice or liability to the customer. Refund requests are reviewed on a case-by-case basis. Should the customer request a refund during the first month of use, all materials produced by Diverently are the property of the company and may not be used by the customer in any way. Diverently reserves the right to take appropriate legal action against Customer for breach of this paragraph.

10. Modifications

Diverently reserves the right, in its sole discretion, to change, modify, add or remove anything or any content on Unlimited. Diverently reserves the right to modify or discontinue Unlimited in whole or in part without notice and without liability to the customer.

11. Disconnections

Diverently does not guarantee that Unlimited will be available and accessible at all times. Problems with hardware, software or other elements may result in interruption delays or errors that are beyond Diverently’s control. Customer agrees that Diverently shall not be liable to Customer for any loss, damage or inconvenience caused by Customer’s inability to access or use Unlimited during any interruption in connection or service.

12. Applicable Law

These Terms of Use shall be governed by and construed in accordance with the laws of Germany without regard to conflict of law principles.

13. Litigation

All lawsuits of any kind must be brought before the state courts of Germany. The parties consent to the personal jurisdiction of such courts and waive any objections of lack of personal jurisdiction and forum non conveniens as to venue and jurisdiction. The application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from these Terms of Use.

14. Disclaimer

Unlimited is provided on an „as is“ and „as available“ basis. Customer agrees that use of Unlimited is at Customer’s own risk. Diverently disclaims all warranties, express or implied, with respect to Unlimited and Customer’s use thereof, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Diverently makes no warranties or representations as to the accuracy or completeness of Unlimited or the content or the content of any website linked to Unlimited, and Diverently assumes no liability for any errors, errors or inaccuracies in any content and materials, injury or damage to property, of any kind Nature, unauthorized access to or use of Diverently’s secure servers and/or personal and/or financial information stored therein, interruption or cessation of transmission to or from Unlimited, bugs, viruses, trojan horses or the like transmitted by any third party to or through Unlimited may be transmitted, and/or for any errors or omissions in content and materials, or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise created through Unlimited makes available. Diverently does not guarantee, endorse, guarantee or assume any responsibility for any product or service advertised or offered by any third party, whether through Unlimited, any linked website, or any website or mobile application contained within an advertisement.

15. Limitations of Liability and Indemnification

Diverently and its directors, employees, members, independent contractors or agents shall not be liable to Customer or any third party for any direct, indirect, consequential, incidental, special or punitive damages, including lost profits, lost revenue, lost data, fees, court costs, penalties, forfeiture or other damages or losses arising out of Customer’s use of Unlimited independent contractors of and against any loss, damage, liability, claim or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of the following arise: (1) Use of Unlimited; (2) breach of these Terms of Use; (3) any breach of Customer’s representations and warranties set forth herein; (4) Customer’s violation of the rights of third parties, including but not limited to intellectual property rights. Notwithstanding the foregoing, Diverently reserves the right, at Customer’s expense, to assume control and defense of any matter for which Customer is required to indemnify Diverently hereunder. The client undertakes to cooperate in defending against such claims.

16. User data

Customer is solely responsible for any data submitted to any activity or related to any activity undertaken by Customer using Unlimited. Diverently shall not be liable to Customer for any loss of or corruption of such data and Customer hereby waives any right to sue Diverently for such loss or corruption.

17. Electronic communication, transactions and signatures

Customer hereby consents to receive communications from Diverently electronically, and Customer agrees that all agreements, notices, disclosures and other communications sent by email or through Unlimited satisfy any legal requirement that such communications be in writing have to take place. Customer hereby consents to the use of electronic signatures, contracts, purchase orders, and other records, and the electronic delivery of notices, policies, and records of transactions initiated or completed by Diverently or through Unlimited. Customer hereby waives any right or requirement under any law, regulation, rule, ordinance or other statute in any jurisdiction requiring an original signature or the delivery or preservation of non-electronic records or payment or the granting of credit by any means other than electronic.

18. Presenting design work

Diverently reserves the right to share design work on digital channels including social media, websites, etc. unless otherwise agreed. Customer reserves the right to issue an NDA between itself and Diverently, which would terminate Diverently’s right to publicly share or discuss Customer’s work.

19. Recommendations

Referral tracking and payouts are processed through a third party partner.

20. Various

These Terms of Use and any policies posted on or relating to Unlimited constitute the entire agreement and understanding between Customer and Diverently. Diverently’s failure to enforce any right or provision of these Terms of Use shall not be deemed a waiver that right or provision. If any provision or part of these Terms of Use is determined to be unlawful, void or unenforceable, that provision will be severed from these Terms of Use but will not otherwise affect the validity or unenforceability of any remaining provisions herein. Nothing in these Terms of Service, the Privacy Policy, or Unlimited shall be construed as creating any joint venture, partnership, employment, or agency relationship between Customer and Diverently.

Contact information

If you have any questions or complaints regarding Unlimited, please contact Diverently at: hello@diverently.com.

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