1.1 Biz360, Inc. ("Biz360") operates the site with a homepage at www.biz360.com and all Services available on that site (collectively, the "Site"). The Biz360 services include all features and support available at the Site, including allowing You access to Content you select and the ability to analyze such Content (collectively, "Selected Data"), as more particularly described in Your subscription plan (collectively, the services in your subscription plan are your "Service").
1.2 BY USING THE SERVICE IN ANY MANNER, INCLUDING BUT NOT LIMITED TO VISITING OR BROWSING THE SERVICE, YOU OR THE ENTITY THAT YOU REPRESENT ("You") AGREE TO BE BOUND BY THIS AGREEMENT AND BIZ360'S PRIVACY POLICY, WHICH IS HEREBY INCORPORATED BY REFERENCE (collectively, the "Agreement").
1.3 If a separate written agreement with respect to the Service exists between you and Biz360, the terms of that written agreement (excluding the pre-printed terms of any purchase order, confirmation or similar document, which will have no effect and will not be considered agreed to by Biz360) shall take precedence over these Terms of Service, and you acknowledge that you are bound by the terms of that written agreement.
In order to use the Service, you must:
(a) have the capacity and right to enter into and perform Your obligations under this Agreement (if You are an entity rather than an individual, the individual using the service must have the authority to bind the entity);
(b) submit registration information that is complete, accurate, and truthful; and
(c) use the Service without violating any applicable laws.
Your profile, your subscription plan, and all associated Content (collectively, your "Account Summary") may be deleted and your membership may be terminated without warning if Company believes that You are in breach of any of the foregoing representations and warranties.
Biz360 may modify this Agreement at any time by posting a notice on the Service, or by sending You a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Such modifications will be effective upon your first renewal or any subsequent renewal of the Term of this Agreement after posting or notification of modifications.
Subject to terms of this Agreement, during the Term of this Agreement, Biz360 grants You a non-exclusive, non-transferable right to access and use the Service, and to copy, download, print, and distribute the results of using the Service only to Your employees, directors and independent contractors, solely for purposes directly related to Your internal business operations. The rights granted to You are personal, and any attempt to rent, lease, sell, transfer, assign, or sublicense any or all of these rights by You will be null and void.
You agree to limit the number of users authorized to access the Service to the quantity specified in your Account Summary. You are responsible for all use under your Account Sumnmary and all user names and passwords assigned to You. You may not use the Service as a service bureau or an outsourcing service. You may not modify, translate, or create derivative works based on the Service, or permit other individuals to do so. You may not remove any trademarks and copyright notices, or related visual marks and logs, from the Selected Data, or from any authorized reproduction or redistribution thereof. You may not attempt, or allow others to attempt, to disassemble, decompile, "unlock," reverse translate, or in any manner decode, customize, or modify any software or code obtained by using or accessing the Service for any reason. You are responsible for providing all hardware, system software, access devices, networks and telecommunications or other connections required for access to the Service, for paying all telephony or other costs (including costs of data transmission) associated with such access, and for all costs You incur in using the Service. You may not use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, information services, or equipment of the network. You shall not distribute unsolicited advertising, propagate computer worms or viruses; attempt to gain unauthorized entry to other computers, data or networks; or infringe copyrights, trademarks, or other intellectual property rights.
All right, title, ownership rights, and intellectual property rights to the Service (and any derivative works) are, and will at all times remain, the sole and exclusive property of Biz360 and/or its suppliers and nothing in this Agreement shall transfer or license any right, title, or interest in any intellectual property rights.
"Content" means all information, data, text, software, scripts, graphics, photos, and interactive features available from Biz360 through the Services.
You understand that Content you select as part of the Service may be subject to additional obligations from the third-party Content providers as described in Your Account Summary, and if you consent in your Account Summary, such Content providers are deemed third-party beneficiaries of this Agreement with full rights of enforcement against you.
You understand that neither Biz360 nor its suppliers are responsible for the Content and the security of the transmissions which may pass through the Internet and/or the Services.
You agree that you shall use the Services, Content, and Selected Data in full compliance with (a) all applicable export laws (including without limitation any U.S. export laws) and (b) all applicable local laws and regulations (including without limitation any laws governing the import of then Services). Biz360 and its Suppliers reserve the right to suspend or terminate the Services (or any portion thereof) without notice in the event that Your use of the Services, in the reasonable judgment of Biz360 or its suppliers, violates any applicable law or infringes or is likely to infringe the proprietary rights of third parties.
Biz360 responds to take-down requests related to Content in accordance with its DMCA Policy. However, Biz360 may remove any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
You will pay all applicable fees for the Term in advance in the amounts specified in your Account Summary. These fees do not include any sales, use, value-added or other taxes. You will pay, or reimburse Biz360 for, all such taxes. Subscriber shall pay all costs of collection, including attorneys' fees.
You acknowledge that availability of the Service will be subject to scheduled and unscheduled maintenance, downtime due to systems or communications failures, and capacity constraints. Biz360 may at any time modify or discontinue any aspect or component of the Service.
Biz360 will treat all information You provide to Biz360 in the manner described by Biz360's Privacy Policy, in effect at the time such information is provided to Biz360.
Each party hereby agrees that it shall not disclose any confidential information ("Confidential Information") received from the other party to a third party, or use or copy any Confidential Information received from the other party for any purpose other than as expressly permitted under the terms of this Agreement, as necessary to perform a party's obligations under this Agreement, or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party's Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Each party shall take reasonable diligent steps to ensure that its employees comply with the foregoing confidentiality obligations.
The Term of this Agreement will begin when You (or an individual acting on your behalf if You are an entity) click "I ACCEPT" for the first time (the "Effective Date") and will continue until the end of the initial subscription term set forth in your Account Summary. The Term will renew automatically for further renewal terms (collectively, with the initial subscription term, the "Term"), unless You elect not to renew access to the Services as described in your Account Summary. Biz360 will have the right to terminate this Agreement at any time during the Term, if You breach any provision of this Agreement and fail to cure such breach within thirty (30) days (except for a breach due to non-payment which shall have a 72-hour cure period) following written notice of such failure. Upon any termination or expiration of this Agreement, all rights granted herein will revert to Biz360, and You will make no further use of the Service. Termination of this Agreement has no effect on Your obligation to pay all fees and other amounts that accrued prior to the termination date. All sections of this Agreement, other than sections 1-3, 6, 7, and 11-16 shall survive the termination of this Agreement.
THE SERVICE IS PROVIDED "AS IS." BIZ360 AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY ASPECT OF THE SERVICE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BIZ360 AND ITS SUPPLIERS DO NOT WARRANT THAT THE SELECTED DATA OR THE SERVICE WILL BE UNINTERRUPTED, SECURE, ACCURATE, TIMELY, VIRUS-FREE OR ERROR-FREE. NEITHER BIZ360 NOR ITS SUPPLIERS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO BIZ360'S OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF YOUR DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF BIZ360'S OR ITS SUPPLIER'S NEGLIGENCE.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (TORT, CONTRACT OR OTHERWISE) WILL BIZ360 OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES OF ANY CHARACTER; (II) ANY LOSS OF DATA, LOSS OF REVENUE OR LOSS OF PROFITS OR RESULTING FROM THE USE OR PERFORMANCE OF THE SERVICE, DUE TO ANY CAUSE. IN NO EVENT SHALL THE LIABILITY TO EITHER PARTY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAYABLE BY BIZ360 UNDER SECTION 12 OF THIS AGREEMENT. THE EXCLUSION CONTAINED IN THIS PARAGRAPH WILL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED HEREIN. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU. You agree that the foregoing represents a fair allocation of risk hereunder and understand that it is a material inducement to Biz360's entering into this Agreement.
(a) You assume sole responsibility for the use and secrecy of all usernames and passwords to access the Service, and agree not to release any such usernames and passwords to any third parties. You acknowledge that You have designated Biz360 as your authorized agent to act for you in its provision of the Service and you hereby explicitly authorize and provide consent to Biz360 to use any user identifications and/or passwords provided by You to access third party or premium services (collectively "Passwords") solely in conjunction with providing the Service to You.
(b) You will defend, indemnify, and hold harmless Biz360, its affiliates, and their officers, directors, agents and employees from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees, resulting from (a) Your use of the Service and Selected Data in connection with Your willful misconduct; or (b) access to or use of any third party service using any Password or other user identity You may have provided to Biz360.
This Agreement, together with any signed written agreement(s) between You and Biz360 and the current Privacy Policy and DMCA Policy, represent the complete agreement and understanding between the parties concerning the Service and supersedes all other agreements, written or oral, regarding its subject matter. You represent that You have read all of these documents and agree to be bound by them. Specifically, you agree that the terms of this Agreement shall prevail in the event of a conflict with any pre-printed form you may submit, such as a purchase order.
This Agreement will be governed by the laws of the State of California (except for conflict of law rules) and United States federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The parties hereby irrevocably consent to the exclusive jurisdiction and venue of the federal court of the Northern District of California or the California state courts. The parties to this Agreement are independent contractors, and at no time shall either party have any right, power or authority to create any obligation or responsibility on behalf of the other party. Biz360 will not be liable for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to earthquakes, loss of utilities, other disasters, or an inability to obtain necessary equipment or services. If any term or condition of this Agreement is held to be unenforceable, it will be reformed only to the extent necessary to make it enforceable, and will not affect the enforceability of the remaining provisions hereof. You may not transfer, sublicense or otherwise assign this Agreement (in whole or in part) and any attempted assignment by You without such consent shall be null and void. Biz360 may transfer this Agreement to a transferee who acquires all or substantially all of Biz360's business to which this Agreement relates without consent. This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.