Business Catalyst - End User Agreement
BY BDA COMMUNICATIONS SELECTING THE "I ACCEPT" BUTTON AS PART OF THE ORDERING PROCESS OF BUSINESS CATALYST, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF BUSINESS CATALYST'S ONLINE SERVICE (THE "SERVICE").
As part of the Service, Business Catalyst will provide you with use of the Service, including a browser interface, plug-in into some 3rd party products, web services access and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Business Catalyst website incorporated by reference herein, including but not limited to Business Catalyst's privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.
Privacy & Security; Disclosure
Business Catalyst's privacy policies may be viewed at http://www.businesscatalyst.com/privacy Business Catalyst reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users when they initially log in, will be asked whether or not they wish to receive marketing, weekly reports and other non-critical Service-related communications from Business Catalyst from time to time. They may opt out of receiving such communications at that time or at any subsequent time by choosing the unsubscribe link from such communication. Note that because the Service is a hosted, online application, Business Catalyst occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.
License Grant & Restrictions
Business Catalyst hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Business Catalyst and its licensors.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Business Catalyst immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Business Catalyst immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Business Catalyst user or provide false identity information to gain access to or use the Service.
Account Information and Data
Business Catalyst will make best endeavors to backup Customer Data every 24 hours. Business Catalyst will not at any time retrieve Customer Data if it is accidentally or otherwise delete by you. In the unlikely case where Customer Data is lost because of software or hardware malfunction, Business Catalyst will endeavor to restore to the most recent successful backup. Business Catalyst takes no responsibility whatsoever whether implied or otherwise for the quality or frequency of Customer Data backup.
Business Catalyst does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Business Catalyst, shall have sole responsibility for the input accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Business Catalyst shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Business Catalyst will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Business Catalyst reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Business Catalyst shall have no obligation to maintain or forward any Customer Data.
During your use of the Service, Business Catalyst will archive certain information as well as keep some usage and statistical information. In all cases Business Catalyst reserves the right to delete archived, usage and statistical data irretrievably once it is older than three (3) months.
Intellectual Property Ownership
Business Catalyst alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Business Catalyst Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Business Catalyst Technology or the Intellectual Property Rights owned by Business Catalyst. The Business Catalyst name, the Business Catalyst logo, and the product names associated with the Service are trademarks of Business Catalyst or third parties, and no right or license is granted to use them.
Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Business Catalyst and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Business Catalyst does not endorse any sites on the Internet that are linked through the Service. Business Catalyst provides these links to you only as a matter of convenience, and in no event shall Business Catalyst or its licensors be responsible for any content, products, or other materials on or available from such sites. Business Catalyst provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the setup and ongoing fees and charges, and billing terms in effect at the time a fee or charge is due and payable. The amount payable will be equal to the setup and ongoing charges related to your plan plus any excess number of total User licenses requested times the per User license fee currently in effect. Payments may be made, in advance, monthly, half-yearly or annually, consistent with the Initial Term (the first License Term), or as otherwise mutually agreed upon. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide Business Catalyst with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add user licenses by executing an additional written Order Form. Added user licenses will be subject to the following: (i) added user licenses will be coterminous with the preexisting License Term (either Initial Term or renewed License Term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; (iii) where monthly License Terms are inacted user licenses added in the middle of a billing month will be charged in full for that billing month; and (iv) where half yearly and yearly license terms are inacted additional user licenses will be charged pro rata with a minimum charge of one month. Business Catalyst reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by email. All pricing terms are confidential, and you agree not to disclose them to any third party. Any and all fees paid in advance are not refundable if you cease to use the Service.
Limits and Excess Fees
The maximum disk storage space provided to you at no additional charge is dependent on the plan that you choose. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees.
The maximum amount of incoming traffic to your website is 100GB per month. Outgoing traffic from your website is not chargeable unless the ratio of incoming to outgoing traffic from your website exceeds 1:10 (i.e. 10GB inbound and 100GB outbound). Business Catalyst reserves the right to negotiate an increased monthly fee effective from the next billing period should this ratio be exceeded.
The maximum number of email marketing broadcasts you may undertake per month is 10,000 if email marketing is part of your plan. If you require a larger broadcast per month, you will be charged the then-current email marketing fees.
The maximum number of free SMS messages that you can use is dependent on the plan that you choose. You will be charged for excess SMS messages sent in the next billing period at the then-current per SMS message fee.
Any failure by Business Catalyst to so notify you shall not affect your responsibility for such additional storage and traffic charges. Business Catalyst reserves the right to establish or modify its general practices and limits relating to storage of and traffic relating to Customer Data.
Billing and Renewal
Business Catalyst charges and collects in advance for use of the Service. Business Catalyst will automatically renew the License Term and bill your credit card or issue an invoice to you (a) every month for monthly licenses, (b) every 6-months for half-yearly licenses, (c) each year on the subsequent anniversary for annual licenses, or (d) as otherwise mutually agreed upon. The renewal charge will be equal to the then-current plan fee plus any excess User licenses times the user license fee in effect during the prior term, unless Business Catalyst has given you at least 30 days prior written notice of a fee change, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Business Catalyst's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
You agree to provide Business Catalyst with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Business Catalyst reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless Business Catalyst in its discretion determines otherwise: (i) entities with headquarters in United States will be billed in U.S. dollars ("U.S. Customers"); (ii) entities with headquarters in Australia will be billed in Australian dollars; and (iii) all other entities will be billed in U.S. dollars, Euros or local currency (if available) ("Non-U.S./Australia Customers").
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Non-Payment and Suspension
In addition to any other rights granted to Business Catalyst herein, Business Catalyst reserves the right to suspend or terminate this Agreement and your access to the Service, if your account becomes delinquent (falls into arrears). Access to the Administration interface will be suspended immediately if an invoice is delinquent and is re-enabled when such delinquent invoices are paid in full. Business Catalyst reserves the right to suspend or terminate your public website if delinquent invoices are 60 days overdue. Delinquent invoices are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or Business Catalyst initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Business Catalyst may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Business Catalyst reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Business Catalyst has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. The Initial Term (the first License Term) will be as you elect during the online subscription process or as otherwise mutually agreed upon. You are obligation to pay for the service begins from the Effective Date and invoices must be paid according to the then current payment terms. Access to the Administration interface will be suspended immediately if an invoice is delinquent. Upon the expiration of the Initial Term, this Agreement will automatically renew for a successive License Term equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Business Catalyst's then current fees, and payable in advance. Either party may terminate this Agreement or reduce the number of User licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least fourteen (14) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), Business Catalyst will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Business Catalyst has no obligation to retain the Customer Data, and may delete such Customer Data irretrievably, more than 30 days after termination.
Termination for Cause
Any breach of your payment obligations or unauthorized use of the Business Catalyst Technology or Service will be deemed a material breach of this Agreement. Business Catalyst, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Business Catalyst may terminate a free account at any time in its sole discretion. You agree and acknowledge that Business Catalyst has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
Subscribing to Extra Services
As part of the Service, you may be able to subscribe to extra features such as real-time alerts via SMS and email marketing. Each service may have a fixed monthly charge as well as data usage charges. In the case where usage charges apply, these will be calculated automatically and billed at the end of each calendar month or as mutually agreed based on the then-current Business Catalyst pricing.
Service Level Agreement
Business Catalyst will provide a service level of 99.98% uptime per month excluding scheduled downtime on average of 1 hour per week for system maintenance and upgrades. The service level comprises of your ability to access Customer Data via a web-browser interface and any other reliability, timeliness, quality, suitability, truth, availability or completeness of the Service is not covered in this agreement. Scheduled downtimes are set between the hours of 2000 to 0600 (AEST). In the unlikely event where Service Level Agreements are not met for any given month, a pro-rata rebate will be applied against the next License Term period. Normal billing will resume from the following period. No rebate applies nor is payable if no future billing period exists.
Business Catalyst will use best endeavors to ensure the delivery of real-time alerts. Business Catalyst guarantees to send real-time alerts instantly but cannot guarantee their delivery by 3rd party providers and aggregators.
Email marketing broadcasts will be undertaken at anytime during the date specified for the broadcast and may take up to 24 hours to deliver from commencement of the broadcast. Email marketing broadcasts cannot be sent unless approved by Business Catalyst and may take up to 6 hours for approval.
You grant Business Catalyst the right to display your brand including company name and logo on its website and other marketing communications.
Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Business Catalyst represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Business Catalyst help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You shall indemnify and hold Business Catalyst, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Business Catalyst (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Business Catalyst of all liability and such settlement does not affect Business Catalyst's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Business Catalyst shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Business Catalyst of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Business Catalyst; provided that you (a) promptly give written notice of the claim to Business Catalyst; (b) give Business Catalyst sole control of the defense and settlement of the claim (provided that Business Catalyst may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Business Catalyst all available information and assistance; and (d) have not compromised or settled such claim. Business Catalyst shall have no indemnification obligation, and you shall indemnify Business Catalyst pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
Disclaimer of Warranties
EXCEPT FOR WHAT IS STATED IN SECTION 14 BUSINESS CATALYST AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT EXCEPT FOR WHAT IS STATED. BUSINESS CATALYST AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BUSINESS CATALYST AND ITS LICENSORS.
EXCEPT FOR WHAT IS STATED IN SECTION 14 BUSINESS CATALYST'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BUSINESS CATALYST IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
Local Laws and Export Control
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Australia, Switzerland and the European Union. The user of this site ("User") acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Australia, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Australian, Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
Business Catalyst and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America or Australia, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or Australian law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States or Australia for such purposes.
Business Catalyst may give notice by means of a general notice on the Service, electronic mail to your email address on record in Business Catalyst's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Business Catalyst's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Business Catalyst (such notice shall be deemed given when received by Business Catalyst) at any time by any of the following: letter sent by confirmed facsimile to Business Catalyst at the following fax numbers (whichever is appropriate): +61 2 9011 1098 (for All Customers); letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Business Catalyst at the following addresses (whichever is appropriate): Business Catalyst Systems, Level 8, 99 Mount Street, North Sydney NSW 2060 AUSTRALIA, in either case, addressed to the attention of: Chief Executive Officer.
Modification to Terms
Business Catalyst reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Business Catalyst but may be assigned without your consent by Business Catalyst to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Business Catalyst directly or indirectly owning or controlling 50% or more of you shall entitle Business Catalyst to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by the laws of New South Wales, Australia, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in NSW Australia. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Business Catalyst as a result of this agreement or use of the Service. The failure of Business Catalyst to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Business Catalyst in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Business Catalyst and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please contact Business Catalyst via our Contact Us page.
LAST UPDATED: February 17, 2012
2. Description of the Services.
Adobe provides access to certain services, features, applications, and tools related to website hosting and other web-based solutions (individually and collectively, the “Services”). Depending on the plan you purchase, the Services may include, without limitation, registration functionality, purchasing functionality, email marketing campaign delivery, web analytics, customer relationship management, reporting, and domain name system services. Some Services may be subject to additional terms and conditions.
Adobe may also facilitate your, or, if you are a Partner (as defined below), your clients’ use of third-party services, including but not limited to, payment gateways. Once Adobe has facilitated such use, Adobe is not responsible for any aspect of your or your client’s relationship and/or transactions with such third party.
“End User” means an individual who interacts with the Services as a result of such party’s relationship with or connection to you. If you are a Site Owner (as defined below), an End User is an individual who uses your website that is hosted through the Services. If you are a Partner (as defined below), an End User means: (i) your client (that is, the person to whom you resell the Services); and (ii) the individuals who use your client’s website that is hosted through the Services.
“Information” means personally identifiable information. “End User Information” means personally identifiable information about an End User.
“Partner” is the term we use to refer to you if you are permitted by us to resell the Services to third parties. We refer to each such third party as your “Client.”
“Site Owner” is the term we use to refer to you if you use the Services on your own behalf.
4. Your Compliance With This Agreement.
5. Partner Obligations.
Without limiting any obligations imposed by this Agreement, if you are a Partner, you understand and agree that:
(a) If Adobe provides notice to you that a website hosted through the Services on behalf of your Client is alleged to contain material that infringes upon the copyright of a third party, you will work with your Client in accordance with Section 17 of the General Terms (Notification of Copyright Infringement) to, within five (5) days of receipt of such notice, either: (a) remove the allegedly infringing material from the website and provide Adobe with written confirmation of such removal; or (b) provide Adobe with a written counter notification consistent with Section 17 of the General Terms. You agree that Adobe may remove allegedly infringing material if Adobe does not receive a written confirmation of removal or counter notification within five (5) days of your receipt of such notice.
(b) It is solely your responsibility to ascertain and obey all applicable local, state, federal and international laws and rules in regard to the use and resale of the Services.
(c) You are responsible for your Clients’ compliance with applicable laws in connection with their use of the Services.
(d) You are responsible for complying with all applicable laws, rules, and regulations regarding the collection, use, processing, disclosure, maintenance, and retention of End User Information.
(e) You are responsible for determining whether your use and resale of the Services comply with the privacy and data security requirements of the laws of the applicable jurisdiction(s).
(f) You will obtain any authorizations from End Users required to enable Adobe to provide the Services and to access and process End User Information.
(g) You have or will obtain all rights necessary for you to grant Adobe the licenses granted in Section 16 (“Content”), below.
(h) The Content (as defined below) and your provision of the Content to Adobe via the Services will comply with all applicable laws, rules and regulations.
(i) Your agreement with each Client gives Adobe the right to access, use, remove, and/or delete Content as set forth in this Agreement. In any such agreement, you do not have to identify Adobe by name; you may refer to Adobe as your service provider.
6. Your Compliance With Applicable Laws.
It is solely your responsibility to ascertain and obey all applicable local, state, federal and international laws and rules in regard to the use, and, if you are a Partner, the resale, of the Services. Without limiting the generality of the foregoing or any other provision of this Agreement, you understand and agree that such laws may include those governing the collection, use, disclosure, and retention of personal information; the advertisement of products and services; the sending of commercial email messages, text messages, and other communications; and export and import. If you are a Partner, you are further responsible for your End User clients’ compliance with applicable laws in connection with their use of the Services.
7. No Spam.
You agree that you will not directly or indirectly use the Services, or permit the Services to be used, to deliver or facilitate unsolicited commercial email or SMS messages.
8. Information Received from You.
Use your Information to ask you to complete a survey.
Use your Information to allow you to send messages to refer a friend or colleague to Adobe. By using this functionality, you represent to Adobe that you are entitled to use and provide Adobe with the referred person’s name and email address.
Disclose your Information to registered users of the Service, if you have requested that Adobe refer you to them.
Through your browser: Certain information is collected by most browsers, such as your computer type (Windows or Macintosh), screen resolution, operating system version, referring URL and browser type and version. Adobe uses this information to ensure that our website functions properly and for analytics purposes.
You can adjust the settings in your browser to refuse to accept cookies. If you do, you may experience some inconvenience in your use of the website.
Using pixel tags and other technologies: Pixel tags (also known as web beacons and clear GIFs) may be used in connection with some website pages and HTML-formatted email messages to, among other things, track the actions of users and email recipients, measure the success of Adobe’s marketing campaigns and compile statistics about website usage and response rates.
IP Address: Your “IP Address” is a number that is automatically assigned to the computer that you are using by your Internet Service Provider. An IP Address is identified and logged automatically in Adobe’s server log files whenever a user visits the website, along with the time of the visit and the page(s) that were visited. Collecting IP Addresses is standard practice on the Internet and is done automatically by many web sites. Adobe uses IP Addresses for purposes such as calculating website usage levels, helping diagnose server problems, administering the website, providing (city/country-level) location-specific information such as intelligent defaults for country and time zone inputs, and compliance with export laws.
Use of the Services is subject to your payment of fees, which may vary according to the plan and/or subscription you have chosen. Adobe is not liable for Partners’ inability to collect payments from their clients. Adobe will collect the fees for the Services in advance, by payment card or by an invoice due upon receipt. No refunds will be issued, unless required by law or if Adobe is in material breach of this Agreement. You are responsible for paying all taxes levied in connection with your use of the Services. Your payment card company or bank may impose on you other fees in connection with your payment, and Adobe has no connection to or responsibility for such fees. In addition, you, and not Adobe, are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Services, and paying all charges related thereto.
If you believe your invoice is incorrect, you must contact Adobe in writing within sixty (60) days of the applicable invoice date to be eligible to receive an adjustment or credit. Any such adjustments or credits shall be at Adobe’s sole discretion.
Adobe reserves the rights to: (a) refuse to provide any person with the Services; (b) determine which Services are available for resale by Partners; and (c) offer certain Services for resale only by select Partners.
Automatic Renewal of Subscriptions. If you purchase a subscription to the Services, you will select the period of time for which you have elected to pay (the “Subscription Term”). Your subscription will automatically renew at the end of each Subscription Term until you cancel. On the subscription renewal date, Adobe will automatically charge your payment card for the next Subscription Term (“Billing Date”) plus any other applicable charges, including, without limitation, excess use and license fees. You may cancel your subscription at any time before your next Billing Date. If you do, you will have access to the Services until the end of your then-current Subscription Term.
Payment Cards. As a condition of your right to sign up for a subscription plan, you must provide Adobe with a valid payment card number belonging to you from a card issuer that Adobe accepts with available funds sufficient to pay the applicable fees. Such card must be associated with a valid address located in a jurisdiction into which Adobe sells the Services. Adobe may seek validation of your payment card prior to your first payment. In the event that you cancel the payment card or it is otherwise terminated, you must provide Adobe with a new valid payment card before the next Billing Date in order to avoid interruption in your access to the Services. Adobe may elect not to renew your subscription until a current valid payment card with sufficient funds is provided.
Changes in Price and/or Terms. Adobe may at any time, upon notice required by applicable law, (a) change the price of the Services; (b) institute new charges or fees; or (c) change these Additional Terms. Price and Terms changes and institution of new charges implemented during your Subscription Term will apply to subsequent Subscription Terms and to all new customers after the effective date of the change. If you do not agree to any such changes, then you must terminate your subscription (if any) and/or stop using the Services. Your continued use of the Services after the effective date of any such change shall constitute your acceptance of such change.
Currency. Unless Adobe in its discretion determines otherwise: (i) if you reside or are headquartered in the United States, you will be billed in U.S. dollars; (ii) if you reside or are headquartered in Australia or New Zealand, you will be billed in Australian dollars; and (iii) if you reside or are headquartered elsewhere, you will be billed in U.S. dollars, Euros or local currency (in Adobe’s sole discretion).
10. Delinquent Accounts.
For the avoidance of doubt, any breach of your payment obligations will constitute a material breach of this Agreement. In addition to any other rights that Adobe may have under this Agreement or applicable law, Adobe reserves the right to suspend or terminate this Agreement and/or your use of the Services if you fail to pay any applicable fees or your account otherwise becomes delinquent. In addition, Adobe reserves the right to disable any web sites or other services maintained in connection with the Services if any applicable fees are thirty (30) days or more past due. Past due fees are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all collection expenses. You agree that Adobe may charge any applicable fees (including past due fees) to your payment card.
Adobe reserves the right to impose a reconnection fee if your use of the Services is terminated or suspended and you thereafter request reconnection. You acknowledge and agree that Adobe has no obligation to retain Content (as defined below) and that both Content and End User Information may be irretrievably deleted if any applicable fees are thirty (30) days or more past due.
If you are receiving free use of the Services, Adobe reserves the right to suspend or terminate such use at any time, and to delete any Content and End User Information associated with such use.
Certain Partners are eligible to accrue commissions at a rate and in the form defined in the terms of the plan you select. Commissions are accrued on the applicable invoiced amount at the time the invoice is paid. Cash commissions are payable on request through the Partner Portal when the accrued total exceeds USD 500 or the local currency equivalent according to the plan you select. Accrued commissions totaling less than USD 500 or the local currency equivalent are forfeited if this Agreement is terminated for any reason except Adobe’s breach. Adobe reserves the right to modify the commission percentage and list prices at any time, however any such changes will not negatively affect your commission calculations until sixty (60) days after notice of such changes.
12. License to Use the Services.
If you are a Site Owner, Adobe grants to you a non-exclusive, non-transferable, revocable right for the individual(s) identified at the time of purchase to access and use the Services for your own internal business purposes, subject to your compliance with this Agreement (including, without limitation, the payment of all applicable fees).
If you are a Partner, Adobe grants to you a non-exclusive, non-transferable, revocable right to resell the Services that you purchase, subject to your compliance with this Agreement (including, without limitation, the payment of all applicable fees). You acknowledge and agree that this Agreement does not transfer ownership of the Services to you, and you agree to assign, and hereby assign to Adobe, its successors and assigns, ownership of all intellectual property associated with the Services insofar as you obtain any right or interest therein.
You will not alter or remove any Marks or Adobe copyright notices included in the Services.
13. Service Limitations and Excess Fees.
Certain Services may have limitations, which Adobe may change from time to time in its discretion. Adobe will charge you excess fees, as specified at http://www.businesscatalyst.com/tou-excess-fees, if you exceed such limitations. The Service limitations may involve (but are not limited to): (a) the number of individuals associated with you who are authorized to use the Services; (b) the amount of disk storage space, CPU load, and API calls available to you; (c) the amount of incoming traffic to your or your client’s website; (d) the number of e-mail marketing broadcasts you may undertake per month on behalf of yourself or a client; and (e) the number of SMS messages available to you or a client;
Any failure by Adobe to notify you of excess usage shall not affect your responsibility to pay for it.
Adobe reserves the right, in its discretion, to impose and enforce limits on payment velocity (that is, the number of transactions per a certain unit of time) and any other feature of the Services. Enforcement by Adobe against a website may include blacklisting of the website’s IP address.
14. Product Service Level.
Adobe uses reasonable efforts to make the Services available 24 hours a day, 7 days a week. However, there will be occasions when the Services will be interrupted for maintenance, upgrades and repairs, or as a result of failure of telecommunications links and equipment that are beyond Adobe’s control. Adobe will take reasonable steps to minimize such disruption, to the extent it is within Adobe’s reasonable control. The Services may not be available in all languages.
If a Service includes e-mail marketing broadcasts, such broadcasts will be undertaken at any time during the date specified for such broadcasts, and may take up to 24 hours to deliver starting from the commencement of such broadcasts. Further, Adobe cannot guarantee the delivery of such broadcasts by third-party intermediaries. If a Service includes real-time alerts, such alerts will be sent as soon as possible, however Adobe cannot guarantee their delivery by third-party providers and aggregators or other intermediaries.
If you are a Partner, you agree to promote the Services. Adobe may, but is under no obligation to, provide you with a non-exclusive license to use re-brandable material from time to time to support such marketing efforts.
You (if you are a Site Owner) or your End Users (if you are a Partner), and/or each such party’s respective licensors, retain ownership of any information, content and/or materials that they submit in the course of using the Services (“Content”); however, Adobe needs certain rights to Content in order to provide the Services. Accordingly, you hereby grant to Adobe and its service providers and designees a worldwide, non-exclusive, transferable, sublicensable (through multiple tiers), royalty-free, perpetual, irrevocable right and license, without compensation to you: to use, reproduce, distribute, adapt (including without limitation edit, modify, translate, and reformat), create derivative works of, transmit, publicly display and publicly perform such Content, in any media now known or hereafter developed.
You represent and warrant that you will comply with the provisions of Section 6 of the General Terms (User Conduct).
Without limiting the generality of the foregoing license, you agree that Adobe may access, use, remove and/or delete any Content in accordance with Section 6 of the General Terms.
In addition to the Indemnity obligations set forth in Section 19 of the General Terms, you agree to indemnify and hold Adobe and its subsidiaries, affiliates, officers, directors, employees, agents, co-branders or other partners, and licensors harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of the Content, the End User Information, or your violation of this Agreement.
18. Resolution of Disputes.
This section hereby replaces Section 20(a) (“Resolution of Disputes”) of the General Terms.
(a) If you are a resident of North America, then all matters relating to your access to, or use of, the Services shall be governed by the laws of the State of California, United States of America, without regard to conflict of laws principles thereof. You agree that any claim or dispute you may have against Adobe must be resolved by a court located in Santa Clara County, California, United States of America, except as otherwise agreed by you and Adobe, or as set forth in section (d) below. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California, United States of America for the purpose of litigating such claims or disputes.
(b) If you reside outside of North America, then all matters relating to your access to, or use of, the Services shall be governed by the laws of Ireland, without regard to conflict of laws principles thereof. You agree that any claim or dispute you may have against Adobe must be resolved by a court located in Dublin, except as otherwise agreed by you and Adobe, or as set forth in section (c) below. You agree to submit to the personal jurisdiction of the courts located in Dublin for the purpose of litigating such claims or disputes.
(c) You and Adobe specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods.
(d) For any claim (excluding claims for injunctive or other equitable relief) for less than U.S. $10,000, the party requesting relief may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, it shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (A) the arbitration shall be conducted by telephone, online, and/or be based solely on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (B) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (C) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(e) All claims you bring against Adobe must be resolved in accordance with this section. All claims filed or brought contrary to this section shall be considered improperly filed. Should you file a claim contrary to this section, Adobe may recover attorneys’ fees and costs up to U.S. $1,000, provided that Adobe has notified you in writing of the improperly filed claim and you have failed to properly withdraw the claim.
(f) Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services in violation of the Agreement, you agree that Adobe shall be entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
This Agreement will continue to apply until terminated by either you or Adobe as set forth in the General Terms or in these Additional Terms. Upon termination, you shall promptly discontinue use of the Services; however, in addition to the sections set forth in Section 13(f) of the General Terms, the following sections of these Additional Terms shall survive termination: 1, 3, 5-9, 10, 13, 17-19 and 22. Adobe will not be liable to you or any third party for any damages that may result or arise out of Adobe’s termination of your account and/or access to the Services.
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the two websites GetNetWise (http://kids.getnetwise.org) and OnGuard Online (http://onguardonline.gov). Please note that Company does not endorse any of the products or services listed at such site.
21. Notice for California Residents.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an e-mail through the Adobe Customer Support Portal https://www.adobe.com/go/support_contact. You may also contact us by writing to 345 Park Avenue, San Jose, CA 95110 2704, or by calling us at 800 833 6687. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445 1254 or (800) 952 5210.
This Agreement does not, and shall not be construed to, create any partnership (notwithstanding the use of the term “Partner” to describe certain Adobe customers), joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Adobe. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. Adobe will not be responsible for failures to fulfill any obligations due to causes beyond its control.
Copyright © 2011 Adobe Systems Incorporated. All rights reserved.
Business Catalyst TOU-en_US-20120217_1730