UNIFIED TBBBOUT TERMS OF SERVICE (ESTABLISHMENT)
YOU ACCEPT THIS AGREEMENT AND IT BECOMES A BINDING CONTRACT UPON CREATING AN ACCOUNT AT https://app.tbbbout.com or https://owners.tbbbout.com USING THE ORDER PROCESS AT THAT SITE, OR IF AN ACCOUNT WAS CREATED FOR YOU, BY USING THAT ACCOUNT. YOU ALSO RECONFIRM THIS AGREEMENT UPON EACH LOGIN OR USE OF THE SERVICE. YOU MAY ALSO ACCEPT THIS AGREEMENT BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN AGENT FOR A COMPANY OR OTHER BUSINESS OR OTHER LEGAL ENTITY: (A) THIS AGREEMENT IS BINDING ON YOU AND (B) THIS AGREEMENT IS BINDING ON YOUR COMPANY/BUSINESS AND (C) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER COLLECTIVELY TO YOU, INDIVIDUALLY, AS WELL AS SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE USE OF, AND YOU MAY NOT USE AND WE DO NOT CONSENT TO YOUR USE OF, THE SERVICES.
This Service provides owners of food and drink establishments that permit their patrons to pay for products at some future time, typically referred to as a “tab,” to receive such payments electronically. The Service also allows patrons of participating establishments to make such payments without waiting for a service provider to take such payment manually.
The Service is configured to charge a specific fee for such Services if conditions are not met (i.e., tabs not closed out), and includes a gratuity. All such fees are disclosed https://tbbbout.com and are repeated here:
Payment Terms Last Updated June 2019
For patrons of bars/restaurants or concessions who use Tbbbout to close a tab there is a 4.5% convenience fee per transaction (i.e., 4.5 cents per dollar spent).
For patrons who do not close out their tab by 0500 EST each day, there is a $2.00 auto close-out fee + 20% tip to process the transaction on behalf of the customer.
For patrons/customers of non-bar/restaurant businesses, there is no transaction fee to use Tbbbout to pay your bill or invoice.
For patrons/customers of non-bar/restaurant businesses, there is a $2.00 auto close-out fee to process the transaction on behalf of the customer when tabs are not paid by 0500 EST each day.
For owners who are of business type Bar/Restaurant or or concessions, there is a 2% credit card fee per transaction.
For owners who are of business type other than Bar/Restaurant, there is a 5% credit card fee per transaction.
For invoices, payment is due at time of invoice/invoice notification (SMS) and for any recurring invoice dates set. If invoices are not paid when customer is alerted, invoices will close out automatically the next day at 0500 just as tabs do.
For owners and patrons utilizing our immediate “Send Money” feature, there is a 2.5% fee to patrons and a 2.5% fee to owners.
Failed credit card payments will be processed for debt collection. We will attempt to obtain another method of payment immediately after failure. Since the debt is a manual close-out, we will add a $2 fee to the original auto-close out fee (if any) and a $3 fee for collection via invoice. If the failed payment is not made after our outreach attempt, we will attempt to re-charge the customer card to collect the debt.
Coupons or other discount codes will not be applied to any outstanding balance (e.g. tab or invoice) when charges fail at either patron close-out or system auto close-out processing at 0500 each day.
Any failed payments that remain outstanding after 30 days are subject to a $20 collection fee.
Any failed payments that remain outstanding after 30 days may be reported to the credit bureau.
We may “close” an open tab at any time that we determine that the products have been provided and the participating establishment has closed or the patron has left the establishment (but in any event, we may close all tabs within 24 hours after they are opened; typically at 0400).
We may include advertising on our mobile application that is used by patrons, and we may use the email, mobile number and other service addresses of patrons to communicate with them with relevant advertising, such as advertising of establishments that use the Service.
TERMS OF SERVICE
"Affiliate(s)" means any entity which directly or indirectly controls, is controlled by, or is under common control with the applicable party or other entity to which reference is made. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Data” means any and all electronic information.
"De-Identified Data" means meta data generated by the operation of the Services, aggregated data, and other data that does not identify an individual or business.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents for Purchased Services hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference. You agree that Order Forms may be entered into using solely or partially electronic signature and electronic contracting process and such electronic signatures or acceptances shall be valid as signed writings.
"Plan" means a payment plan that discloses the fees and any additional terms associated with Your Purchased Services.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial or for the free services portion of our Service.
"Service(s)" means the functionality and processing capabilities and other features provided on, or that are made available from or otherwise in respect to the platform service located at https://tbbbout.com and any subdomains thereof, including but not limited to online and mobile applications provided thereon or that access such site or data, as well as any other communications services We provide or enable (i.e. electronic mail, text, iMessage, Skype, Twitter, fax etc).
"Subscription Term" means the period of time specified in an Order Form that You are authorized to use the Service, and for such additional periods as provided in Section 12.2.
“Third Party Data” means all electronic data or information residing in the Service that is owned by a person or entity other than You or Us, but does not include De-Identified Data.
"User Guide" means any online or written documentation made available to You.
"User(s)" means You and/or individuals who are authorized by You and permitted hereunder to use the Services (whether the paid or free version), and who have been supplied User identifications and passwords.
"Subscription" means the agreement to subscribe to the applicable Plan You have chosen.
"We," "Us" or "Our" means Empiritek Group, Inc., a Alabama corporation.
"You" or "Your" or similar pronouns means you, individually, and the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Your Data" means all Data submitted by You in respect of using the Services, but does not include De-Identified Data.
2. FREE TRIAL
We may make one or more Services available to You on a trial basis free of charge, or We may provide a free version of the Services with limited functionality (for example, limited number of free transactions). Additional trial terms and conditions may appear on the trial or free service registration system. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
We may modify, terminate or otherwise change any portion of the Services we offer for free, at any time, without notice to You.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL OR USING THE FREE SERVICES MAY BE PERMANENTLY LOST IF WE TERMINATE THE FREE SERVICE OR TRIAL.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. If You have subscribed to a paid service with us, We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a Subscription Term as defined in an Order Form. Alternatively, You may have engaged us through a company that has integrated Our Services into their platform or service; in this event, We shall make the Purchased Services available to You pursuant to this Agreement and your agreement with the company that has integrated Our Service into their platform (provided the terms of this Agreement control over any conflicting terms of any third party agreement). You agree that Your purchase of services hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Us regarding future functionality or features.
3.2. Service Licensing. You are authorized to use Our Services based on the Plan You purchased. We may modify, add or delete the manner in which we charge for these various services, features or functionality at any time.
3.3 Service Pricing. When You sign up for Our Services, You are required to select a Plan from the list of Plans presented and authorized by Us. This Plan will detail Our fees and may or may not contain various provisions, surcharges, and overage use charges as well as any usage limitations. We may modify Our Service pricing or ask You to select a different plan at any time, unless the plan You select has a time commitment associated with it as stated in writing in the Order Form, and the Order Form states the price is fixed during such committed time frame.
4. OBLIGATIONS OF THE PARTIES; LIMITATIONS AND RESTRICTIONS
4.1 Our obligations. We shall during a Subscription Term: (i) provide to You basic email support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately (which obligations shall be detailed in a separate Order Form), (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give reasonable prior electronic notification and which We shall schedule to the extent practicable during hours that establishments are typically not open), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services in accordance in all material respects with applicable laws and government regulations effective in the United States. Please see section 11 for limitations on Your remedies if We breach this section.
4.2. Your general obligations. You shall: (i) be responsible and liable for the acts and omissions of, including any breach of this Agreement caused by, Users and third parties who access the Services through You or any User, (ii) be solely responsible for the accuracy, quality, use, development, integrity and legality of Your Data, Third Party Data, and of the means by which You acquire and use Your Data and Third Party Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us in writing, electronically and via phone call promptly of any such unauthorized access or use of the Service or the access credentials We provided You, and (iv) use the Services only in accordance with this Agreement, applicable Order Forms, the User Guide and applicable laws, rules and regulations, including but not limited to all laws regarding privacy, and sending (and unsubscribing from) unsolicited commercial emails. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, sublicense, offer as a service bureau, rent or lease the Services, (c) directly or indirectly use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy, publicity or personal rights or other obligations owed to third parties, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to or actually gain unauthorized access to the Services or their related systems or networks. For the avoidance of doubt, You are liable for any act or omission of a User that constitutes a violation of the above requirements, whether or not such act or omission was permitted or authorized by You. You covenant not to access the Services for purposes of, monitoring the availability, performance or functionality of the Service, or for any other benchmarking or similar purposes, or to hack, trick, cheat, perform any other tests or vulnerability assessments, monitor or check the security features of, or otherwise directly or indirectly manipulate Service to anyone’s benefit, without our written consent. When using our Service, You may only access Your Data using Your personal login credentials, You may not attempt to access data or programs that belong to other customers, or acquire login credentials of other Users, or otherwise share your login credentials with third parties.
4.3. Usage Limitations and certain restrictions. You may not use the Service to store protected health information, payment card information such as credit card information, data that contains third party intellectual property rights except that constitute a fair use of such rights or other information that is privileged, sensitive and/or subject to privacy or other legal regulations or restrictions (“Sensitive Data”). You may also not use the Service in a way that overloads the system and makes it unavailable, slow, or unusable to other users of the Service. Additional limitations may be specified in Your Plan, the User Guide, or any other documentation made available to you on the Service. We shall not be liable or responsible for any unauthorized access, use or disclosure of any such Sensitive Data, or any access or use exceeding authorized use of such Data.
4.4 No vulnerability scanning or monitoring. Unless we pre-consent in writing in our sole discretion, You may not conduct any security scans, penetration tests, or any kind of monitoring or vulnerability test on the Services or any of our infrastructure at any time (collectively a “Service Scan”). If we detect such Service Scan by You or a User, we may immediately and without notice suspend Your (or the User’s) access to the Services.
4.5 No cryptocurrency mining. You may not, and You may not permit your Users to, use the Services or any of Our infrastructure to mine for cryptocurrency or other currency tokens or any similar computer intensive “mining” operations. If You or your Users violate this provision, You agree that (a) We may immediately suspend the Services; and (b) You will pay us as liquidated damages for such breach, and not a penalty, the greater of ten (10) times the value of the cryptocurrency that was mined using our Service (valued at the average value of such cryptocurrency over the period that such mining took place), or the amount of Fees payable to us for the annual period in which such violation occurred. In this section “cryptocurrency” means bitcoin, ether or Ethereum, any cryptocurrency listed at https://en.wikipedia.org/wiki/List_of_cryptocurrencies and any similar or later developed currency system based on a blockchain technology.
4.6. Security. We will make commercially reasonable efforts to ensure the confidentiality, integrity, and availability of Your Data and Third Party Data. While We are committed to using such efforts to ensure that Your Data and Third Party Data is safe and secure, We reserve the right to decide what efforts are commercially reasonable. We will not be responsible for any loss of Data, income, clients, profits, money or any other of Your or Your Users resources due to any security breaches or Your, Your Users misuse of Our Services or criminal or illegal acts.
4.7 Our right to monitor the Services. We may monitor Your use of the Services for the purpose of understanding how You use the Service and how We can optimize, enhance, modify and otherwise provide the Service. We may also market new products or services to You based on what we learn about Your use of the Service.
5. NO LIABILITY FOR THIRD-PARTY SERVICES OR PROVIDERS
5.1. Third-Party Products and Services. Our Service may include, and from time to time We may offer, third party applications, software, modules, data, and services integrated with Our Service. In addition, Our Service may be integrated into a third party service or platform. We are only responsible for Our Services, and You agree that We shall not be liable, or otherwise responsible, for the accuracy, performance, reliability, availability or any other feature, failure or damage caused by any third party service, plugin, software, module, component, library, platform or other functionality (“Third Party Service”) that is not developed by Us. Each such Third Party Service may contain additional terms. You agree that if you are damaged or have any issue with such Third Party Service, You will contact the vendor/supplier of that Third Party Service directly, and seek all remedies solely and directly with them.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. User Fees. You agree to pay all fees specified in all Order Forms and/or Plans hereunder at the times specified (if not specified, within 30 days of the date we invoice the same to You, which invoice will be sent electronically to your email address registered on the Service, which You agree to monitor). Use of Purchased Services is conditioned on payment of such fees. Except as otherwise specified herein or in an Order Form or Plan, (i) fees are quoted and payable in United States dollars (ii) depending on the Plan You select, fees may be based on either Services purchased or on quantity of actual usage of the Service, and (iii) payment obligations are non-cancelable and fees paid are non-refundable. Fees may be based upon the dollar amount of transactions processed through the Service. Fees are disclosed in the https://tbbbout.com User FAQ.
6.2. Invoicing and Payment. Unless set forth specifically in an Order Form, You agree to timely pay fees in U.S. dollars via check or money order (drawn on a US Bank, in readily available funds), wire/ACH transfer or via credit card. If You pay by credit card, You authorize Us to charge such credit card for all Services listed in the Order Form or Your Plan for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 12.2. If you pay by wire/ACH, You authorize us to initiate the transfer in accordance with the payment schedule in the Order Form. All other forms of payment shall be deemed paid when We actually receive the check and it clears our bank. Regular charges shall be made in advance, either monthly, annually or in accordance with any different billing frequency stated in the applicable Order Form or Plan. If You have designated credit card as the payment method and We are unable to charge Your credit card, We will notify You by e-mail or other electronic message and give You a reasonable time (preferably in 5 business days) to update Your billing information and satisfy the payment. We may suspend your account for future transactions until your account is paid. You are responsible for maintaining complete and accurate billing and contact information in the Services. You are responsible to pay all chargeback fees, returned check fees, penalties and other amounts we incur if we are unable to process, or you cancel, terminate, dispute, stop check or take any other action to prevent a payment (unless we have materially breached the agreement).
6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, such charges may accrue late interest at the rate of $20 per occurrence of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Our election not to charge late payment interest in one instance is not a waiver of our right to elect to do so in subsequent instances.
6.4. Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for Services is overdue, We may, without limiting Our other rights and remedies, suspend your access to the Services and accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full. During any period of suspension, You continue to be responsible for all fees, unless We determine that our suspension was wrongful.
6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute; provided that if such dispute is not resolved within 15 calendar days, We reserve the right to enforce Section 6.3, 6.4 and the other provisions of this Agreement.
6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to collect Taxes for which You are responsible under this paragraph, the appropriate amount may be charged to You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. You hereby indemnify, defend and agree to hold Us (and our officers, directors, members, employees and other agents and affiliates) harmless from any and all actions, damages, losses and other amounts claimed by an tax authority for non-payment of such Taxes, and unless expressly prohibited by law, such indemnity shall include payment of all fines, interest and penalties associated with the non-payment/late payment/insufficient payment of such Taxes, unless You pay such Taxes to us and We fail to remit such Taxes to the appropriate tax authority.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related patent, copyright, trademark, trade secret and other proprietary rights therein (intellectual property rights), and all enhancements, modifications and other alterations or derivatives thereof, regardless of whether such enhancements, modifications and other alterations or derivatives thereof arise from any suggestion, input, idea, or other submission by You or a User. For the avoidance of doubt, You hereby assign over to Us (and automatically assign over to us in the future) all right, title and interest to all intellectual property rights described or disclosed in any suggestion, input, idea, or other submission by You relating to the Service; provided however that at no time shall We own any rights in Your Data or Third Party Data. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions. You shall not (and covenant not to) (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer, decompile, de-obfuscate or otherwise disassemble or derive the source code from the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services. For the avoidance of doubt, to the extent You and We have entered into any previous non-disclosure, confidentiality or other agreement, any terms thereof that purport to allow you to retain or use the knowledge gained by using our Services shall be null and void and shall not apply between us to the extent it conflicts with this Agreement.
7.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. Notwithstanding the above, We have a license and right during the Subscription Term to use Your Data (and Third Party Data) solely to provide the Services to You and Users, and as otherwise permitted herein, or as required to comply with applicable law. We may also retain Your Data after the Subscription Term ends to comply with applicable law, or for proper administration of our business, to maintain an audit trail of transactions in the event of a dispute.
8.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party"), whether directly, or indirectly through others, to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. De-Identified Data is Our Confidential Information.
8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3. Use of Your Data. We will not, except to provide the Services or prevent or address Service or technical problems, or at Your request in connection with customer support matters use, modify or disclose Your Data or Third Party Data, except as compelled by law or in connection with any dispute.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement. You represent that You will not transmit to Us Malicious Code. We warrant that We will scan our Services and software with a commercially available up to date antivirus scanner, and will not knowingly provide or otherwise make available such information or Services unless such scan discloses no known Malicious Code that is detectable by such antivirus service.
9.2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS OR WARRANTIES HEREIN THE SERVICE IS PROVIDED "AS IS" WITHOUT ANY OTHER WARRANTY OF ANY KIND AND WE HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING UNDER any UNIFORM COMMERCIAL INFORMATION TRANSACTIONS ACT. THERE IS NO WARRANTY THAT ANY SERVICE INFORMATION, POSTINGS, CONTENT, EFFORTS, SERVICES, THE SERVICE OR ANY SYSTEM PROVIDED BY US WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. FOR THE AVOIDANCE OF DOUBT, WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICES COMPLY WITH ANY APPLICABLE DATA PROTECTION LAW, SUCH AS THE GRAMM-LEACH-BLILEY ACT OF 1999, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (“HIPAA”) OR ANY RELATED STATUTES OR REGULATIONS, OR ANY PERSONAL INFORMATION PROTECTION ACT.
10.1. Indemnification. In addition to any other indemnity provided herein, You hereby covenant to indemnify, defend and hold Us (and our members, owners, officers, employees, agents, affiliates and other persons acting on Our behalf) harmless from and against any Claim made or brought against Us by a third party: (i) alleging that Your Data or Third Party Data or Your (or Your Users’) use of the Services, are in violation of this Agreement, infringe or misappropriate the intellectual property or other personal or corporate rights of a third party or violates applicable law, rules, regulations or orders; (ii) arising from Your (or Your agents, Affiliates, Users or other persons who act on Your behalf) negligent or intentional action or omission, breach of this Agreement, or failure to comply with applicable law, rules, regulations or orders. Without limiting the foregoing, You shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us (and our members, owners, officers, employees, agents, affiliates and other persons acting on Our behalf) in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
10.2 Infringement claims. In the event a third party makes a claim that the Service infringes its intellectual property or other rights, You shall give Us prompt written notice of such claim. We shall have the right to among other actions, seek a license, resolve, provide a design-around, or otherwise make modifications to avoid such infringement or other rights claim. In Our discretion if We determine that the above actions are commercially infeasible, in addition to any other rights herein, we may terminate this Agreement or the applicable portion of the Services that is alleged to cause the infringement or otherwise violate third party rights, and refund to You any pre-paid amounts or portions thereof relating to such terminated portion of the Service. This refund is Your exclusive remedy in the event of a third party claim that the Service infringes their intellectual property or other rights.
11. LIMITATION OF LIABILITY AND REMEDY
11.1. Limitation of Liability. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $100 OR THE AMOUNT ACTUALLY PAID BY YOU HEREUNDER IN THE ONE MONTH PRECEDING THE DATE THE INCIDENT GIVING RISE TO THE CLAIM ACCRUED. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU, YOUR AFFILIATES, OR ANY OTHER PERSON WHO USED OUR SERVICE WITH YOUR ACCESS RIGHTS FOR ANY LOST PROFITS OR LOST REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER ARISING HEREUNDER OR UNDER OTHER APPLICABLE LAW, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Repair Or Replace Remedy. You agree that your sole remedy in the event you have any claim against Us in respect of the provision of the Service is for us to repair, replace or otherwise correct such Service to meet the warranty provided for herein; under no circumstances will We be liable to You in such cases for any damages, costs or fees of any kind, including but not limited to actual, compensatory, direct, incidental, punitive or consequential damages, whether or not occasioned by Our negligence. If this provision is determined to have failed of its essential purpose or is otherwise deemed or determined to be unenforceable, You agree that this provision is an independent limitation from all other limitations of remedies herein, and all such other limitations on remedy, including but not limited to those in Sections 11.1 and 11.2 shall survive and remain applicable to any claim you make, including but not limited to any claim that We failed to provide an effective repair, replacement or re-performance of services.
12. TERM AND TERMINATION; ACCOUNT DELETION
12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until the all Subscription Terms granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2. Term of Purchased Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form or Plan and continue for the Subscription Term specified therein or in the Plan, whichever is longer. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least one day before the end of the relevant Subscription Term. Unless an Order Form states otherwise, we may change our price at any time without notice and it shall be effective for the next invoice period.
12.3. Termination for Material Breach. A party may terminate this Agreement for Material Breach: (i) upon 30 calendar days written notice to the other party which notice explains in detail the basis for the claim of a material breach, if such material breach described in such notice remains uncured at the expiration of such period, or (ii) immediately without notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4 Imminent harm. If We determine that Your use or actions are causing or likely to cause material and imminent damage to Us, to our infrastructure or to our ability to provide the Service, We may terminate this Agreement and/or or suspend Your access to the Service immediately without notice. We shall endeavor in subjective good faith to give You notice if We take this emergency action, and to restore the Services as soon as the issue that caused such suspension is resolved, in Our discretion.
12.5. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the Subscription Term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.6. Permanent and irretrievable data deletion. Upon Your account termination We may immediately permanently delete Your Data.
12.7. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.2 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.6 (Return of Your Data), 13 (Governing Law and Jurisdiction; Arbitration) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
12.8 Account deletion. We reserve the right, but not the obligation to permanently delete any account You have created that has been suspended or terminated for more than 30 days, or that has not been used in 60 days. PLEASE NOTE: All of Your Data and Third Party Data associated with an account will be deleted when the account is deleted, and except for any audit trail that we deem necessary to resolve any dispute, We do not retain backups or any method of restoring deleted accounts, and We are not liable in any manner for any data loss resulting from our deletion of terminated or suspended accounts.
13. GOVERNING LAW AND JURISDICTION; ARBITRATION
13.1 Jurisdiction. This contract will be governed by the laws of the State of Alabama, exclusive of its conflicts of laws provisions. The parties agree that the Uniform Commercial Code, the United Nations Convention on Contracts for the International Sale of Goods and any Uniform Computer Information Transactions Act shall not apply between us. Each party agrees consents to the exclusive jurisdiction of the courts in the State of Alabama.
13.2. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
13.3 Arbitration. (i) Notwithstanding anything to the contrary contained in this Agreement, except with respect to actions for equitable relief, which claim may be filed directly in a court of competent jurisdiction as provided above, any other dispute between the parties to this Agreement, whether arising in tort, contract, pursuant to a right under statute, rule or regulation, and including any claim that may be subject to a class action, shall be settled by binding arbitration under the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (the “AAA”), and shall be held in the State of Alabama, United States.
(ii) Any dispute properly submitted for arbitration shall be referred to one arbitrator in an arbitration administered by the AAA, according to the following procedures: The party or parties submitting (“Submitting Party”) the intention to arbitrate (the “Submission”) shall nominate one arbitrator. If within 20 days of receipt of the Submission, the party or parties receiving the Submission (“Answering Party”) does not agree on such arbitrator, then the arbitrator shall be appointed by the AAA in accordance with the Rules unless the parties can agree on an arbitrator. The parties agree that they shall consent to an expedited proceeding under the Rules, to the full extent the AAA can accommodate such a request.
(iii) The ruling of the arbitrator shall be binding and conclusive upon all parties hereto and any other person or entity with an interest in the matter, and the arbitrator shall have the authority to direct the parties to make payments, withdrawals and distributions with the results of arbitration.
(iv) The arbitration provision set forth in this Agreement shall be a complete defense to any suit, action or other proceeding instituted in any court regarding any controversy or claim (except as provided for above for claims permitted to be filed directly in court, but including, without limitation, whether any controversy or claim is subject to arbitration) arising out of or relating to any said disputes to be arbitrated hereunder between the parties; provided, however, that (A) any of the parties to the arbitration may request a State of Alabama State Court or State of Alabama Federal District Court to provide interim injunctive relief in aid of arbitration hereunder or to prevent a violation of this Agreement pending arbitration hereunder (and any such request shall not be deemed a waiver of the obligations to arbitrate set forth in this Agreement), (B) any ruling on the award rendered by the arbitrator may be entered as a final judgment in any court of competent jurisdiction anywhere in the United States, including but not limited to in a State of Alabama State Court or State of Alabama Federal District Court (and each of the parties hereto irrevocably submits to the jurisdiction of such court for such purposes) and (C) application may be made by a party to any court of competent jurisdiction wherever situated for enforcement of any such final judgment and the entry of whatever orders are necessary for such enforcement.
(v) In any proceeding with respect hereto, all direct, reasonable and out-of-pocket costs and expenses (including, without limitation, AAA administration fees, arbitrator fees, expert witness fees, and attorneys’ fees) incurred by the parties to the proceeding shall, at the conclusion of the proceeding, be paid by the party incurring the same; however, the arbitrator may award payment of all or any portion of any such fees and expenses to the prevailing party in arbitration, or on the basis of any obstreperous or excessive litigation tactics.
(vi) The arbitrator shall have power to permit reasonable discovery using subpoenas and other regular procedures and the parties shall cooperate in such discovery and not unduly multiply the proceedings, make duplicative or unnecessary requests or otherwise cause undue expense. The arbitrator shall have the power to sanction any party that violates the arbitrator’s rules or orders, which sanctions may include payment of fees and costs incurred by the other party, up to and including dismissal and/or default judgment.
14. GENERAL PROVISIONS
14.1. Export Compliance. The Service is not for export, and may not be used or exported outside of the United States. If We agree in writing with you in a separate Agreement or an Order Form identifies Your use outside of the U.S. and we accept such Order Form, You may use the Service from a remote non U.S. jurisdiction, provided that You covenant to comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting You (i) shall ensure that all such remote non U.S. Users are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
14.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, intended or implied.
14.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.6. Attorney Fees. You shall pay on demand all of costs incurred by Us to collect any fees or charges due to Us under this Agreement, or in connection with any claim arising hereunder or under applicable law whether or not arising hereunder, or to otherwise enforce this Agreement, where "costs" shall include Our reasonable attorneys' and other professionals' fees. You further agree that this covenant shall survive any judgment and this duty and obligation to pay "costs" shall continue until full collection of the judgment, including but not limited to all appeals of any decision.
14.7. Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Us (not to be unreasonably withheld). Notwithstanding the foregoing, You may assign this Agreement in its entirety (including all Order Forms), without Our consent, to Your Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Your assets not involving Our direct competitor. We may assign this Agreement at any time, to any person, other than to Your direct competitor. Any assignment by a party in violation of this provision is void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.8. Entire Agreement. This Agreement, including all exhibits, documents incorporated by reference, and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. No employee, agent or other person associated with Us has the right or power to amend, waive or otherwise orally modify this Agreement.
14.9 Amendment. We may add to, remove or otherwise change or modify the terms and conditions of this Agreement at any time by giving notice on the Service and such notice may be provided at the time you login, or via a textual notice appearing on the Service that terms have changed, or via email or other reasonable means. Your continued use of the Service after we make any changes to this Agreement constitutes Your acceptance and agreement to such changes. If You do not agree to such changes You must notify Us promptly upon learning of such changes (in no event less than 3 business days after they are posted and We have provided notice) and cease using the Services. If You timely object to the new Agreement as provided above, then such objection shall constitute a termination of this Agreement for Your convenience and the new Agreement terms shall not apply to You.
14.10. No adverse construction. You and We have had the opportunity to consult with, review and negotiate the terms and provisions of this Agreement and use of the Service, and neither party shall therefore be subject to any adverse construction rule as the draftsperson of the Agreement.
14.12. Electronic Communications. You agree to transact business with Us using electronic communications, either via web forms on the Service, or via email. Electronic communications will be deemed received by You when Your electronic communication system reports that any electronic communication We send You has been received by Your system, regardless of whether You ever actually open or read such electronic communication. We may, but are not required, to use return receipt requests. Unless specifically required by applicable law or as otherwise provided herein, You consent to receive all notices, information, and other communications from Us concerning any subject matter, via electronic communication. It is Your responsibility to maintain valid electronic communication addresses, and to review the Services messages, and We may terminate Your access to the Service without liability to you if, after We give You reasonable prior notice, You fail to update and maintain Your electronic communication addresses.
14.13 Change in Services. We may add, change, discontinue, remove or suspend any and/or all Services, including features and specifications of products described or depicted on the Service, temporarily or permanently, at any time, without notice and without liability.
14.14. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination unless the party receiving such email responds that the email is sufficient notice). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.