Terms of Service
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These Terms of Service along with any other terms and policies referenced herein, and are incorporated herein by reference and forman integral part hereof, as amended from time to time (“Terms”) constitutea legally binding agreement as of the Effective Date (as defined below),governing your access, use, registration and receipt of: (i) BizBuyerHQ and anyrelated website owned or operated by BizBuyerHQ (“Sites”); (ii) BizBuyerHQServices (as defined below) through the Sites, cloud, a mobile application orthrough any other means; and/or (iii) BizBuyerHQ Additional Services (asdefined below) and any ancillary services or products provided in connectionwith the Services. These Terms are between BizbuyerHQ LLC. (“bizbuyerhq.com”,“us”, “we” or “our”) and you, either individually, or onbehalf of your employer or any other entity which you represent (“you”or “your”). BizBuyerHQ may use its affiliates, and third party serviceproviders to process and/or collect payment from you. In case you representyour employer or any other entity, you hereby represent that (i) you have fulllegal authority to bind your employer or such entity (as applicable) to theseTerms; and (ii) after reading and understanding these Terms, you agree to theseTerms on behalf of your employer or the respective entity (as applicable), andthese Terms shall bind your employer or such entity (as the case may be).PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE OF YOUREMPLOYER OR AN ENTITY (AS APPLICABLE): (I) IF YOU ARE USING YOUR EMPLOYER OR ANENTITY’S EMAIL ADDRESS IN REGISTERING INTO THE SERVICE; OR (II) IF YOU ARE ANADMIN (AS DEFINED BELOW).
AS ELABORATED IN SECTION 2 BELOW, THERE ARE VARIOUS TYPES OFUSERS IN THE SERVICES, THUS, EXCEPT WHERE INDICATED OTHERWISE “YOU” SHALL REFERTO CUSTOMER AND ALL TYPES OF USERS. YOU ACKNOWLEDGE THAT THESE TERMS AREBINDING, AND YOU AFFIRM AND SIGNIFY YOUR CONSENT TO THESE TERMS, BY EITHER: (I)CLICKING ON A BUTTON OR CHECKING A CHECKBOX FOR THE ACCEPTANCE OF THESE TERMS;OR (II) REGISTERING TO, USING OR ACCESSING THE SERVICES, ADDITIONAL SERVICES,SITES OR BIZBUYERHQ MOBILE APPLICATION, WHICHEVER IS EARLIER (THE DATE OF SUCHREGISTRATION OR ACCEPTANCE BEING THE “EFFECTIVE DATE”).
IF YOU DO NOT AGREE TO COMPLY WITH, AND BE BOUND BY, THESETERMS OR DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR ANY OTHER ENTITY (ASAPPLICABLE), PLEASE DO NOT ACCEPT THESE TERMS, OR ACCESS OR USE THE SERVICES ORTHE SITES OR BIZBUYERHQ MOBILE APPLICATION.
1. Our Services.
1.1. Our Services. The BizBuyerHQ cloud basedservices includes our platforms, products, applications, applicationprogramming interface (“API”), tools, and any ancillary or supplementaryBizBuyerHQ products and services (including Upgrades (as defined below)),offered online and via a mobile application (“Services”).
1.2. Modification or Discontinuation of Services. Wemay add, modify or discontinue any feature, functionality or any other toolwithin any Services and/or Sites, at our own discretion and without furthernotice, however, if we make any material adverse change in the corefunctionality of the Services, then we will notify you by posting anannouncement on the Sites, via the Services and/or by sending you an email.
1.3. No Contingency on Future Releases and Improvements.You hereby acknowledge that your purchase of the Services and/or Third PartyServices (as defined below) hereunder are not contingent on the delivery by usof any future release of any functionality, feature or service, includingwithout limitation: (i) the continuance of certain Services or AdditionalServices (as defined below) beyond the current Subscription Term; (ii) theavailability of Third Party Services, or (iii) dependency on any public commentswe make, orally or in writing, regarding any future functionality, feature orservice.
1.4. Ability to Accept Terms. If you access and usethe Sites and/or the Services, you represent and warrant that you are at leastsixteen (18) years old. The Sites and/or Services are only intended forindividuals aged sixteen (18) years or older. We reserve the right to requestproof of age at any stage so that we can verify compliance with this paragraph.
1.5. Technical Support and Committed Uptime. To theextent you purchased an eligible enterprise tier subscription, you will beentitled, in relation to the Services, to support and an uptime commitment by BizBuyerHQ.
1.6. Specific Services Terms. Some Services may besubject to additional terms specific to such Services, feature or functionalitytherein as identified in the relevant Services when enabling such Servicesand/or as designated and available on the Specific Services Terms (“SpecificServices Terms”). By accessing, enabling, using and/or purchasing any suchServices subject to Specific Services Terms or such other Services, you agreeand acknowledge that such terms are binding and governing your use of suchServices.
1.7. Additional Services. You may purchase and/orreceive additional services.
2. Account Registration and Administration.
2.1. Account Registration. To register to theServices for the first time, you shall create an account for the Services (“Account”).By creating an Account and registering to use the Services you become, eitherindividually or on behalf of your employer or any entity, on behalf of whom youcreated the Account, a BizBuyerHQ customer (“Customer”). The first userof the Account is automatically assigned as an Account administrator (“Admin”).See Section 2.4 for additional details on Admin’s.
2.2. Your Registration Information. When creating anAccount or when you are added into an Account and creating your user profile (“UserProfile”), you: (i) agree to provide us with accurate, complete, andcurrent registration information about yourself; (ii) acknowledge that it isyour responsibility to ensure that your password remains confidential andsecure; (iii) agree that you are fully responsible for all activities thatoccur under your Account, User Profile and password, including any integrationor any other use of third party products or services (and associated disclosureof data) in connection with the Services; and (iv) undertake to promptly notifyus in writing if you become aware of any unauthorized access or use of yourAccount or User Profile and/or any breach of these Terms. We may assume thatany communications we receive under your User Profile have been made by you.You will be solely responsible and liable for any losses, damages, liabilityand expenses incurred by us or a third party, due to any unauthorized usage ofthe Account by either you or any other User or third party on your behalf.
2.3. User Verification. You understand and agree thatwe may require you to provide information that may be used to confirm youridentity and help ensure the security of your Account and/or User Profile. Inthe event that you or an Admin lose access to an Account or otherwise requestinformation about an Account, we reserve the right to request from you or froman Admin (as the case may be) any verification and/or information, including inthe form of a release, as we deem necessary in our sole discretion, beforerestoring or providing access to or providing information about such Account.
2.4. Account Admins. The Admin(s) of an Account are,severally and jointly, deemed as the authorized representatives of theCustomer, and any decision or action made by any Admin, is deemed as a decisionor action of Customer. An Admin may assign or add other members of the Accountas Admins, which possess important privileges and controls over the use of theServices and the Account, including, without limitation: (i) control your (andother Users) use of the Account; (ii) purchase, upgrade or downgrade Services;(ii) create, monitor or modify Users’ actions and permissions; (iii) manage theaccess to, control, remove, share posts or otherwise change, all or part of theCustomer Data (as defined below); (iv) assign certain privileges to such otherUsers (as defined below); and (v) integrate or disable integration with ThirdParty Services. You also acknowledge that your Account can become managed by arepresentative of the entity that owns or controls the email address domainwith which your Account was created or registered.
2.5. Account Users. There are several types ofAccount users, such as guests, viewers, members and other types of users, allof whom are designated within the Services and referred to herein, collectivelywith the Admin(s) as “Users”. The features, functionalities andprivileges available to the Users are determined by the respective user role,Services, offering and Subscription Plan governing such Account. If you assignUsers not in accordance with the appropriate user type (for instance, assigningUsers who are internal to your organization, your affiliates, subsidiariesand/or any other related entities as a guest user, such as having guests withsuch organization’s email domain) then BizBuyerHQ shall have the right, in itssole discretion, and without derogating any other remedy available hereunder,to reassign such user types as appropriate, impose additional restrictionsand/or charge additional fees.
2.6. Customer Responsible for Users. Customer issolely liable and responsible for understanding the settings, privileges andcontrols for the Services and for controlling whom Customer permits to become aUser and what are the settings and privileges for such User, including withoutlimitation, the right for a User to invite or add other Users (either paid orunpaid), the right to incur charges on the Account, the right to access, modifyor share boards, etc. Customer is responsible for the activities of all of itsUsers, including Order Forms they may place and how Users use the CustomerData, even if those Users are not from Customer’s organization or domain.Further, Customer acknowledges that any action taken by a User of Customer’sAccount, is deemed by us as an authorized action by Customer, hence Customershall have no claim in this regard.
3. Your Customer Data.
3.1. Customer Data. Customer Data is any data, fileattachments, text, images, reports, personal data, or any other content, thatis uploaded or submitted, transmitted or otherwise made available, to orthrough the Services by you or any User and is processed by us on Customer’sbehalf (“Customer Data”). For the avoidance of doubt, AnonymousInformation (as defined below) is not regarded as Customer Data. Customerretains all right, title, interest and control, in and to the Customer Data, inthe form submitted to the Services. Subject to these Terms, Customer grants usa worldwide, royalty-free, limited license to access, use, process, copy,distribute, perform, export, and display the Customer Data, and solely to theextent that reformatting Customer Data for display in the Services constitutesa modification or derivative work, the foregoing license also includes theright to make modifications and derivative works. The afore-mentioned licenseis hereby granted solely: (i) to maintain and provide you the Services; (ii) toprevent or address technical, fraud or security issues and resolve supportrequests; (iii) to investigate when we have a good faith belief, or havereceived a complaint alleging, that such Customer Data is in violation of theseTerms; (iv) to comply with a valid legal subpoena, request, or other lawfulprocess; and (v) as expressly permitted in writing by you.
3.2. Responsibility for Customer Data Compliance. Yourepresent and warrant that: (i) you have or have obtained all rights, licenses,consents, permissions, power and/or authority, necessary to grant the rightsgranted herein, for any Customer Data that you submit, post or display on orthrough the Services; (ii) the Customer Data is in compliance with, and subjectto, our Acceptable Use Policy; and (iii) the Customer Data you submit, your useof such Customer Data, and our use of such Customer Data, as set forth in theseTerms, do not and shall not (a) infringe or violate any patents, copyrights,trademarks or other intellectual property, proprietary or privacy, dataprotection or publicity rights of any third party; (b) violate any applicablelocal, state, federal and international laws, regulations and conventions,including those related to data privacy and data transfer and exportation (“Laws”);(c) violate any of your or third party’s policies and terms governing theCustomer Data. Other than our security and data protection obligationsexpressly set forth in Section 6, we assume no responsibility or liability forCustomer Data, and you shall be solely responsible for Customer Data and theconsequences of using, disclosing, storing, or transmitting it. It is herebyclarified that BizBuyerHQ shall not monitor and/or moderate the Customer Dataand there shall be no claim against BizBuyerHQ for not doing such.
3.3. No Sensitive Data. You shall not submit to theServices any data that is protected under a special legislation and requires aunique treatment, including, without limitations, (i) categories of dataenumerated in European Union Regulation 2016/679, Article 9(1) or any similarlegislation or regulation in other jurisdiction.
4. Public User Submissions.
4.1. Public User Submissions. The Sites may havecertain features that allow you to submit comments, information, and othermaterials publicly (collectively, “Public User Submissions”) and sharesuch Public User Submissions with other Users, or the public. By submittingPublic User Submissions through the Sites, you grant us a license to access,use, copy, reproduce, process, adapt, publish, transmit, host, and display thatPublic User Submissions for any purpose, business, including withoutlimitation, for publicizing and promoting BizBuyerHQ, the Services and/or theSites and for any other lawful purpose, in any media format (e.g. in-print,websites. electronically, broadcast), and you hereby waive, or to the extentlegally prohibited, assign to BizBuyerHQ, any moral rights in your Public UserSubmissions.
4.2. Responsibility for Public User Submissions. Youacknowledge and agree that: (i) you have or have obtained all rights, licenses,consents, permissions, power and/or authority, necessary to grant the rightsgranted herein, for any Public User Submissions that you submit, post ordisplay on or through the Services; (ii) we do not control, and are notresponsible for, other content and/or submissions, posted on our Sites and/orServices by others; (iii) by using the Services and/or Sites, you may be exposedto content and/or submissions by other users or site visitors that isoffensive, indecent, inaccurate, misleading, or otherwise unlawful; (iv) anyPublic User Submissions are submitted in accordance with, and subject to ourAcceptable Use Policy.
5. Intellectual Property Rights; License.
5.1. Our Intellectual Property. The Services andSites, inclusive of materials, such as software, API, apps framework, design,design system, text, editorial materials, informational text, documentation,photographs, illustrations, audio clips, video clips, artwork and other graphicmaterials, and names, logos, trademarks and services marks (excluding CustomerData), any and all related or underlying know-how, technology or intellectualproperty, and any modifications, enhancements or derivative works of theforegoing (collectively, “BizBuyerHQ Materials”), are the property of BizBuyerHQand its licensors, and may be protected by applicable copyright or otherintellectual property laws and treaties. As between you and BizBuyerHQ, BizBuyerHQretains all right, title and interest, including all intellectual propertyrights, in and to the BizBuyerHQ Materials.
5.2. Customer Reference. Customer acknowledges andaccepts that BizBuyerHQ has the right to use Customer’s name and logo toidentify Customer as a customer of BizBuyerHQ or as a User of the Services, on BizBuyerHQ’sSites, marketing materials or otherwise by public announcements, including, butnot limited to, earning statements and calls, shareholder materials and similarannouncements. Customer may revoke such right, at any time, by contactingsupport@BizBuyerHQ.com.
5.3. Your Access and Use Rights. Subject to the termsand conditions of these Terms, and your compliance thereof, and specifically instrict compliance with our Acceptable Use Policy, we grant you a limited,worldwide, non-exclusive, non-transferable right to access and use the Servicesand Sites, during the applicable Subscription Term, solely for Customer’sinternal business purposes.
5.4. Use Restrictions. Except as expressly permittedin these Terms, you may not, and shall not allow a User or any third party to:(i) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign,market, resell, display, transmit, broadcast, transfer or distribute anyportion of the Services or the Sites to any third party, including, but notlimited to your affiliates, or use the Services in any service bureauarrangement; (ii) circumvent, disable or otherwise interfere withsecurity-related features of the Sites or Services or features that prevent orrestrict use or copying of any content or that enforce limitations on use ofthe Services or Sites; (iii) reverse engineer, decompile or disassemble,decrypt or, attempt to derive the source code of, the Services or Sites, or anycomponents thereof; (iv) copy, modify, translate, patch, improve, alter, changeor create any derivative works of the Services or Sites, or any part thereof;(v) take any action that imposes or may impose (at BizBuyerHQ’s solediscretion) an unreasonable or disproportionately large load on the BizBuyerHQinfrastructure or infrastructure which supports the Sites or Services (vi)interfere or attempt to interfere with the integrity or proper working of theServices or Sites, or any related activities; (vii) remove, deface, obscure, oralter BizBuyerHQ’s or any third party’s identification, attribution orcopyright notices, trademarks, or other proprietary rights affixed to orprovided as part of the Services or Sites, or use or display logos of theServices or Sites without BizBuyerHQ’s prior written approval; (viii) use theServices or Sites for competitive purposes, including to develop or enhance acompeting service or product; or (ix) encourage or assist any third party(including other Users) to do any of the foregoing.
5.5. Feedback. As a User of the Services and/orSites, you may provide suggestions, comments, feature requests or otherfeedback to any of BizBuyerHQ Materials, the Services, the API and/or the Sites(“Feedback”). Such Feedback is deemed an integral part of BizBuyerHQMaterials, and as such, it is the sole property of BizBuyerHQ withoutrestrictions or limitations on use of any kind. BizBuyerHQ may either implementor reject such Feedback, without any restriction or obligation of any kind. You(i) represent and warrant that such Feedback is accurate, complete, and doesnot infringe on any third party rights; (ii) irrevocably assign to BizBuyerHQany right, title and interest you may have in such Feedback; and (iii)explicitly and irrevocably waive any and all claims relating to any past,present or future moral rights, artists’ rights, or any other similar rights,worldwide, in or to such Feedback.
5.6. API Use. We may offer an API that providesadditional ways to access and use the Services. Such API is considered a partof the Services, and its use is subject to all these Terms. Without derogatingfrom Sections 5.1 through 5.4 hereof, you may only access and use our API forCustomer’s internal business purposes, in order to create interoperability andintegration between the Services and other products, services or systems youand/or Customer use internally. When using the API you should follow ourrelevant Developer Terms. We reserve the right at any time to modify ordiscontinue, temporarily or permanently, your and/or Customer’s access to theAPI (or any part of it) with or without notice. The API is subject to changesand modifications, and you are solely responsible to ensure that your use ofthe API is compatible with the current version.
6. Privacy and Security.
6.1. Security. BizBuyerHQ implements reasonablesecurity measures and procedures designed to assist in protecting your CustomerData.
6.2. Privacy Policy. As a part of accessing or usingthe Services and the Sites, we may collect, access, use and share certainPersonal Data (as defined in the Privacy Policy) from, and/or about you. Pleaseread our Privacy Policy, which is incorporated herein by reference, for adescription of such data collection and use practices.
6.3. Anonymous Information. Notwithstanding any otherprovision of these Terms, we may collect, use and publish Anonymous Information(defined below) relating to, or generated by your use of the Services and/orSites, and disclose it for the purpose of providing, operating, improving andpublicizing our products and services, including the Sites and Services, andfor other business purposes. “Anonymous Information” means information whichdoes not enable identification of an individual, such as de-identified,aggregated and/or analytics information. BizBuyerHQ owns all AnonymousInformation collected or obtained by BizBuyerHQ.
7. Third Party Services; Links.
7.1. Third Party Services. The Services enables youto engage and procure certain third party services, products, apps and tools inconnection with the Services, including, without limitation, third partyapplications and widgets offered via our integrations offering, or which youdecide to connect through our API, as part of the Services (collectively, “ThirdParty Services”).
7.2. Independent Relationship. You acknowledge andagree that regardless of the manner in which such Third Party Services may beoffered to you, we merely act as an intermediary platform between you and suchThird Party Services, and we do not, in any way, endorse any such Third PartyServices, or shall be in any way responsible or liable with respect to any suchThird Party Services. Your relationship with such Third Party Services and anyterms governing your payment for, and use of, such Third Party Services,including without limitation, the collection, processing and use of your databy such Third Party Services, are subject to a separate contractual arrangementbetween you and the provider of the Third Party Services (“Third PartyAgreement”). We are not a party to, or responsible, in any manner, for thecompliance by you or by the provider of the Third Party Services with the ThirdParty Agreement.
7.3. Integration with a Third Party Service and yourCustomer Data. Through the Services you may enable integrations with yourAccount, including, boards or Services within your Account (or a portionthereof), with Third Party Services, which will allow an exchange,transmission, modification or removal of data between us and the Third PartyServices, including without limitation, the Customer Data, the scope of whichis determined by the applicable actions set by such integration. You herebyacknowledge that any access, collection, transmission, processing, storage orany other use of data, including the Customer Data, by a Third Party Services,is governed by the Third Party Agreement, including any applicable privacypolicy, and BizBuyerHQ is not responsible for any access, collection,transmission, processing, storage or any other use of data, including theCustomer Data, by the Third Party Services or for such Third Party Servicesprivacy and security actions, inactions or general practices. By integratingand/or using the Third Party Services, you acknowledge and agree that: (i) youare solely responsible for your compliance with applicable privacyrestrictions, laws and regulations, including your use of the Third PartyServices and other data activities you may conduct or may permit third parties,including the Third Party Services, to conduct; (ii) the activities and use ofthe data by you and any other Users within the Account, may result in amodification and/or removal of data, either in the Account (i.e. Customer Data)and in the integrated Third Party Services. We shall have no obligation of anykind, for any such modification and/or removal of data, either in the Accountwith us and/or the integrated Third Party Services.
7.4. Use Conditions and Limitations. Both BizBuyerHQand Third Party Services may impose, each at its sole discretion, additionalconditions or limitations on your access and use of certain Third PartyServices, including without limitation, imposing a limited quota on the numberof actions or other uses (as the case may be). Such additional conditions orlimitations shall be indicated wherever relevant within the Services or theThird Party Services or otherwise notified to you or to any other relevant Userof the Account.
7.5. BizBuyerHQ Marketplace. BizBuyerHQ may makeavailable Third Party Services through the BizBuyerHQ Marketplace or Services.
7.6. Payment for Third Party Services. Third PartyServices may be offered free of charge or for a certain fee, either chargeddirectly by the Third Party Services or by BizBuyerHQ. Wherever Third PartyServices require payment, it shall be indicated to you, unless such fee isincluded within the Fees for the Services. Wherever BizBuyerHQ charges Customeron behalf of the Third Party Services, then Customer acknowledges that BizBuyerHQserves only as an intermediary role in facilitating or collecting the applicablefees and taxes from Customer, for the Third Party Services, thus all paymentrelated issues, including the payment of fees, renewal and refund policy, aregoverned by the Third Party Agreement. Wherever BizBuyerHQ charges Customer, onbehalf of itself and not on behalf of the Third Party Services, the paymentterms, including the payment of fees, renewal and refund policy, are governedby Sections 8 and 9 herein.
7.7. Change of Fees. Customer acknowledges that BizBuyerHQand any Third Party Services, may change the fees for the Third Party Servicesfrom time to time, including imposing a new charge on a Third Party Servicesthat was provided for free.
7.8. Discontinuation of Third Party Services. Each BizBuyerHQand the Third Party Services reserves the right to discontinue the use orsuspend the availability of any Third Party Services, for any reason and withno obligation to provide any explanation or notice. Such discontinuation mayresult in the inability to utilize certain features and actions of the ThirdParty Services along with our Services.
7.9. Links. The Sites, Services and/or any ThirdParty Services may contain links to third party websites that are not owned orcontrolled by us (“Links”). You acknowledge that we have no controlover, and assume no responsibility for the content, privacy policies, orpractices of, any third party websites. You: (i) are solely responsible andliable for your use of and linking to third party websites and any content thatyou may send or post to a third-party website; and (ii) expressly release usfrom any and all liability arising from your, and in case of a Customer, allUsers’, use of any third party website. Accordingly, we encourage you to readthe terms and conditions and privacy policy of each third party website thatyou may choose to visit.
7.10. Limitations of Liability. BizBuyerHQ BEARS NORESPONSIBILITY AND/OR LIABILITY FOR ANY LINKS OR THIRD PARTY SERVICES,INCLUDING WITHOUT LIMITATION, SUCH THIRD PARTY SERVICES’ OPERABILITY ORINTEROPERABILITY WITH OUR SERVICES, SECURITY, ACCURACY, RELIABILITY, DATAPROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELLAS ANY ACTS OR OMISSIONS BY THIRD PARTIES. BY ACCESSING AND/OR USING THE THIRDPARTY SERVICES, YOU ACKNOWLEDGE THAT YOUR ACCESS AND USE OF THE THIRD PARTYSERVICES ARE AT YOUR SOLE DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLEFOR ENSURING SUCH THIRD PARTY SERVICES’ OPERATION AND PRACTICES AND ITSRESPECTIVE THIRD PARTY AGREEMENT MEET YOUR NEEDS.
8. Subscription, Fees, Upgrades and Renewals.
8.1. Order Form. The Services may be purchased via anorder form, e.g. a sales order, purchase document or any other instrument asdetermined by us, which shall be completed and placed either online,in-product, offline, or in any other form designated by us (“Order Form”).Such Order Form will list, at a minimum, the Services ordered, the associatedfees, the subscription plan and term, as applicable. If Customer provides BizBuyerHQa purchase order related to an Order Form, such is deemed to incorporate theseTerms and if such contains terms in regard to the Services then such shall haveno force or effect.
8.2. Subscription. Unless stated otherwise in anOrder Form, the Services are provided on a subscription basis for thesubscription term specified in the Order Form, in accordance with therespective subscription plan, as applicable, purchased under such Order Form “SubscriptionTerm” and “Subscription Plan”, respectively, and collectively the “Subscription”).
8.3. Fees. In consideration for the provision of theServices (except for Trial Services), Customer shall pay us the applicablefees, as set forth in the applicable Order Form (“Fees”). Unlessindicated otherwise, Fees are stated in US dollars. Customer hereby authorizesus, either directly or through our payment processing service or ouraffiliates, to charge such Fees via Customer’s selected payment method, upondue date or shall otherwise remit payment to BizBuyerHQ upon the due date.Unless expressly set forth herein, the Fees are non-cancelable andnon-refundable. We reserve the right to change the Fees at any time, uponnotice to Customer if such change may affect Customer’s existing subscriptionsupon renewal. In the event of failure to collect the Fees owed by Customer, wemay, at our sole discretion (but shall not be obligated to) retry to collect ata later time, and/or suspend or cancel the Account, without notice.
8.4. Taxes. The Fees are exclusive of any and alltaxes (including without limitation, value added tax, sales tax, use tax,excise, goods and services tax, etc.), levies, or duties, which may be imposedin respect of these Terms and the purchase or sale, of the Services hereunder(“Taxes”). If Customer is located in a jurisdiction which requiresCustomer to deduct or withhold Taxes or other amounts from any amounts due tous, Customer should notify us, in writing, promptly and we shall join effortsto avoid and/or reduce any such Tax withholding, provided, however, that in anycase, Customer shall bear the sole responsibility and liability to pay such Taxand such Tax should be deemed as being added on top of the Fees payable byCustomer.
8.5. Upgrades. Customer may upgrade and/or enhanceits Services by either: (i) adding Users; (ii) upgrading to a higher type ofSubscription Plan; (iii) adding additional services, products, Add-Ons,features or functionalities; and/or (iv) upgrading to a longer SubscriptionTerm (collectively, “Upgrades”). Some Upgrades or other changes may beconsidered as a new purchase, hence will restart the Subscription Term for allor some of the Services and some will not, as indicated within the Servicesand/or the Order Form. Upon an Upgrade, Customer will be billed for theapplicable additional Fees, at our then-current rates (unless indicatedotherwise in an Order Form), either: (a) prorated for the remainder of thethen-current Subscription Term, or (b) whenever the Subscription Term is beingrestarted, then the Fees already paid by Customer will be reduced from the newupgraded Fees, and the difference shall be due and payable by Customer upon thedate on which the Upgrade was made. “Add-Ons” means additional enhancementsand/or additional functionalities for the applicable Services for therespective Subscription Plan purchased by Customer that are made available forpurchase, which may be subject to additional Fees.
8.6. Adding Users. Customer acknowledges that unlessit disabled these options: (i) Users within the same email domain will be ableto automatically join the Account; and (ii) Users within Customer’s Account mayinvite other persons to be added to the Account as Users (collectively, “UsersIncrease”). Any changes to the number of Users within a certain Account,will restart the Subscription Term for all or some of the Services, andCustomer will be billed for the applicable additional Fees at our then-currentrates and the Fees already paid by Customer will be reduced from the newadditional Fees, unless otherwise agreed in an Order Form in which case Userswill be added for the remainder of the Subscription Term on a prorata basis. Wewill bill Customer upon the Users increase, unless such alternative time isotherwise agreed by us.
8.7. Excessive Usage. We shall have the right,including without limitation where we, at our sole discretion, believe thatCustomer and/or any of its Users, have misused the Services or otherwise usethe Services in an excessive manner compared to the anticipated standard use atour sole discretion (for instance, an excessive number of guests, excessive useof automations, etc.), to offer the Services in different pricing and/or imposeadditional fees or other restrictions as for the upload, storage, downloadand/or use of the Services, including, without limitation, restrictions onThird Party Services, network traffic and bandwidth, size and/or length ofcontent, quality and/or format of content, sources of content, volume ofdownload time, etc.
8.8. Billing. As part of registering, or submittingbilling information, to the Services, Customer agrees to provide us withupdated, accurate and complete billing information, and Customer authorizes us(either directly or through our affiliates, including BizBuyerHQ Inc. or otherthird parties) to charge, request and collect payment (or otherwise charge,refund or take any other billing actions) from Customer’s payment method ordesignated banking account, and to make any inquiries that we (or our affiliatesand/or third-parties acting on our behalf) may consider necessary to validateCustomer’s designated payment account or financial information, in order toensure prompt payment, including for the purpose of receiving updated paymentdetails from Customer’s credit card company or banking account (e.g., updatedexpiry date or card number as may be provided to us by Customer’s credit cardcompany).
8.9. Subscription Auto-Renewal. In order to ensurethat Customer will not experience any interruption or loss of services,Customer’s Subscription includes an automatic renewal option by default.Accordingly, unless Customer cancels its Subscription prior to its expiration,which in the case of an annual Subscription, such cancellation notice shall beno less than 30 days prior to its expiration (unless otherwise permitted by BizBuyerHQ),the Subscription to the underlying Services will automatically renew upon theend of the then applicable Subscription Term, for a renewal period equal intime to the original Subscription Term and, unless otherwise notified toCustomer, at the same price (subject to applicable Tax changes and excludingany discount or other promotional offer provided for the first SubscriptionTerm). Accordingly, unless either Customer or us cancel the Subscription priorto its expiration, we will attempt to automatically charge Customer theapplicable Fees upon or immediately prior to the expiration of the thenapplicable Subscription Term. If Customer wishes to avoid such auto-renewal,Customer shall cancel its Subscription, prior to its expiration, at any timethrough the Account settings or by contacting our Support team. Except asexpressly set forth in these Terms, in case a Customer cancels itsSubscription, during a Subscription Term, the Subscription will not renew foran additional period, but Customer will not be refunded or credited for anyunused period within the Subscription Term.
8.10. Discounts and Promotions. Unless expresslystated otherwise in a separate legally binding agreement, if Customer receiveda special discount or other promotional offer, Customer acknowledges that uponrenewal of the Subscription to the Services, BizBuyerHQ will renew suchSubscription to the Services, at the full applicable Fee at the time ofrenewal.
8.11. Credits. Any credits that may accrue toCustomer’s Account for the respective Services, for any reason (“Credits”),will expire and be of no further force and effect, upon the earlier of: (i) theexpiration or termination of the applicable Subscription under the Account forwhich such Credits were given; or (ii) in case such Credits accrued for anAccount with Trial Services (as defined below) that was not upgraded to aSubscription Plan, then upon the lapse of 90 days of such Credits’ accrual.Unless specifically indicated otherwise, Credits may be used to pay for therespective Services only and not for any Third Party Services or other paymentof whatsoever kind. Whenever fees are due for any Services, accrued Creditswill be first reduced against the Fees and the remainder will be charged fromCustomer’s respective payment method. Credits shall have no monetary value(except for the purchase of Services under the limited terms specified herein)nor exchange value, and will not be transferable or refundable.
8.12. Payment through Partner. If Customer purchasedServices from a BizBuyerHQ authorized reseller, distributor or engages with anintermediary to fulfill its payment obligations hereunder to us which isapproved by us (“Partner”), then to the extent there is any conflictbetween these Terms and the agreement entered between Customer and therespective Partner, including any purchase order (“Partner Agreement”),then, as between Customer and BizBuyerHQ, these Terms shall prevail. Any rightsgranted to Customer and/or any of the other Users in such Partner Agreementwhich are not contained in these Terms, apply only as between Customer and therespective Partner. In that case, Customer must seek redress or realization orenforcement of such rights solely with the Partner and not BizBuyerHQ. Forclarity, Customer’s and its Users’ access to the Services is subject to ourreceipt from Partner of the payment of the applicable Fees paid by Customer toPartner. Customer hereby acknowledges that at any time, at our discretion, thebilling of the Fees may be assigned to us, such that Customer shall pay usdirectly the respective Fees.
9. Refund Policy; Chargeback.
9.1. Refund Policy. If Customer is not satisfied withits first purchase of the Services and solely with respect thereto (“InitialPurchase”), then Customer may terminate such Initial Purchase of theServices by providing us a written notice, within 30 days of such InitialPurchase (“Refund Period”). In the event that Customer terminates suchInitial Purchase, within the Refund Period, we will refund Customer the prorataportion of any unused and unexpired Fees pre-paid by Customer in respect ofsuch terminated Services, unless such other sum is required by applicable law,in the same currency we were originally paid (“Refund”). The Refund isapplicable only to the Initial Purchase and does not apply to any additional orsubsequent purchases, upgrades, modification or renewals of the Services (evenif such were performed during the Refund Period). Please note that we shall notbe responsible to Refund any differences caused by change of currency exchangerates or fees that Customer was charged by third parties, such as wire transferfees. After the Refund Period, the Fees are non-refundable and non-cancellable.To the extent permitted by law, if we find that a notice of cancellation hasbeen given in bad faith or in an illegitimate attempt to avoid payment forServices actually received and enjoyed, we reserve our right to rejectCustomer’s Refund request. Subject to the foregoing, upon termination byCustomer under this Section 9.1 all outstanding payment obligations shallimmediately become due for the used Services and Customer will promptly remitto BizBuyerHQ any fees due to BizBuyerHQ under these Terms.
9.2. Non-Refundable Services. Certain Services may benon-refundable. In such event we will identify such Services as non-refundable,and Customer shall not be entitled, and we shall not be under any obligation,to terminate the Services and give a Refund.
9.3. Chargeback. If, at any time, we record adecline, chargeback or other rejection of a charge of any due and payable Fees(“Chargeback”), this will be considered as a breach of Customer’spayment obligations hereunder, and Customer’s use of the Services may besuspended, disabled or terminated at BizBuyerHQ’s discretion. Customer may nothave any further access to the Services in the event of such suspension,disablement or termination, unless BizBuyerHQ otherwise enables Customer toresume its access to the Services, at its sole discretion, subject toCustomer’s payment of any applicable Fees in full, including any fees andexpenses incurred by us and/or any Third Party Services for each Chargebackreceived (including handling and processing charges and fees incurred by thepayment processor), without derogating from any other remedy that may beapplicable to us under these Terms or applicable law.
10. Trial Services; Pre-Released Services.
10.1. Trial Services and Free Versions. We may offer,from time to time, part or all of our Services on a free, no-obligation trialand/or in connection with a free Subscription Plan to the Services for alimited duration and with limited functionality (“Trial Services”). Theterm of the Trial Services shall be as communicated to you within the Services,in an Order Form or separately in writing by BizBuyerHQ, unless terminatedearlier by either Customer or us, for any reason or for no reason. We reservethe right to modify, cancel and/or limit the Trial Services at any time, withor without notice, and without liability or explanation to you. In respect ofthe Trial Services, upon termination, we may change the Account web address atany time without any prior written notice.
10.2. Pre-Released Services. Note that we may offer,from time to time, certain Services or parts thereof as Alpha or Beta versions(“Pre-Released Services”) and we use best endeavors to identify suchPre-Released Services as such. Pre-Released Services are Services that arestill under development, and as such they may be inoperable or incomplete, andmay contain bugs, suffer disruptions, and/or not operate as intended anddesignated, more than usual.
10.3. Governing Terms of Trial Services and Pre-ReleasedServices. The Trial Services and Pre-Released Services are governed bythese Terms, including relevant Specific Services Terms, provided thatnotwithstanding anything in these Terms or elsewhere to the contrary, inrespect of Trial Services and Pre-Released Services (i) such services arelicensed hereunder on an “As-Is”, “With All Faults” “As Available” basis, withno representations and/or warranties, express or implied, of any kind; (ii) theindemnity undertaking by us set forth in Section 16.2 herein shall not apply;and (iii) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF BizBuyerHQ, ITSAFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE INCONNECTION WITH, THESE TERMS (INCLUDING THE SITES, THE SERVICES AND THE THIRDPARTY SERVICES), EXCEED US $100. We make no promises that any Trial Servicesand/or Pre-Released Services will be made available to you and/or generallyavailable.
11. Term and Termination; Suspension.
11.1. Term. These Terms are in full force and effect,commencing upon the Effective Date, until the end of all Subscriptions to theServices underlying the Account, either paid or unpaid, unless terminatedotherwise in accordance with these Terms.
11.2. Termination for Cause. Either Customer or usmay terminate the respective Services and these Terms, as applicable, uponwritten notice, in case that the other party (a) is in material breach of theseTerms and to the extent, curable, fails to cure such breach, within a reasonablecure period, which shall not be less than 10 days following a written noticefrom by the non-breaching party; provided, however, that termination byCustomer shall apply only with respect to those components of the Services withrespect to which the breach has occurred; or (b) ceases its business operationsor becomes subject to insolvency proceedings and the proceedings are notdismissed within 45 days.
11.3. Termination by Customer. Customer may terminateits Subscription to the Services by canceling the Services and/or deleting theAccount, whereby such termination shall not derogate from Customer’s obligationto pay applicable Fees except where such termination is made within the RefundPeriod. In accordance with Section 9 above, unless mutually agreed otherwiseby Customer and us in a written instrument, the effective date of suchtermination will take effect at the end of the then-current Subscription Term,and Customer’s obligation to pay the Fees throughout the end of suchSubscription Term shall remain in full force and effect, and Customer shall notbe entitled to a refund for any pre-paid Fees.
11.4. Effect of Termination of Services. Upontermination or expiration of these Terms, Customer’s Subscription and allrights granted to you hereunder shall terminate, and we may change theAccount’s web address. It is Customer’s sole liability to export the CustomerData prior to such termination or expiration. In the event that Customer didnot delete the Customer Data from the Account, we may continue to store andhost it until either Customer or we, at our sole discretion, delete suchCustomer Data, and during such period, Customer may still be able to make alimited use of the Services in order to export the Customer Data ( “Read-OnlyMode”), but note that we are not under any obligation to maintain theRead-Only Mode period, hence such period may be terminated by us, at any time,with or without notice to Customer, and subsequently, the Customer Data will bedeleted. Customer acknowledges the foregoing and its sole responsibility toexport and/or delete the Customer Data prior to the termination or expirationof these Terms, and therefore we shall not have any liability either toCustomer, nor to any User or third party, in connection thereto. Unlessexpressly indicated herein otherwise, the termination or expiration of theseTerms shall not relieve Customer from its obligation to pay due Fees.
11.5. Survival. Section 2.6 (Customer Responsibilityfor Users), 3 (Customer Data), 6 (Privacy and Security), 7 (Third PartyServices; Links), 8 (Subscription, Fees, Upgrades and Renewal) in respect ofunpaid Subscription Fees, 10.3 (Governing Terms of Trial Services andPre-Released Services), 11 (Term and Termination; Suspension), 12(Confidentiality), 13 (Warranty Disclaimer), 14 (Limitations of Liability),16 (Indemnification), 21 (Governing Law and Jurisdiction; Class Action Waiverand Arbitration) and 22 (General Provisions), and such other sections of theseTerms which by their nature are intended to survive, shall survive thetermination or expiration of these Terms, and continue to be in force andeffect in accordance with their applicable terms.
11.6. Suspension. Without derogating from ourtermination rights above, we may decide to temporarily suspend the Accountand/or a User Profile (including any access thereto) and/or our Services, inthe following events: (i) we believe, at our sole discretion, that you or anythird party, are using the Services in a manner that may impose a securityrisk, may cause harm to us or any third party, and/or may raise any liabilityfor us or any third party; (ii) we believe, at our sole discretion, that you orany third party, are using the Services in breach of these Terms or applicableLaw; (iii) Customer’s payment obligations, in accordance with these Terms, areor are likely to become, overdue; or (iv) Customer’s or any of its Users’breach of the Acceptable Use Policy. The afore-mentioned suspension rights arein addition to any remedies that may be available to us in accordance withthese Terms and/or applicable Law.
12. Confidentiality.
12.1. Confidential Information. In connection withthese Terms and the Services (including the evaluation thereof), each party (“DisclosingParty”) may disclose to the other party (“Receiving Party”),non-public business, product, technology and marketing information, includingwithout limitation, customers lists and information, know-how, software and anyother non-public information that is either identified as such or shouldreasonably be understood to be confidential given the nature of the informationand the circumstances of disclosure, whether disclosed prior to or after theEffective Date (“Confidential Information”). For the avoidance of doubt,(i) Customer Data is regarded as Customer’s Confidential Information, and (ii)our Site, Services, Trial Services and/or Pre-Released Services, inclusive oftheir underlying technology, and their respective performance information, aswell as any data, reports and materials we provided to you in connection withyour evaluation or use of the Services, are regarded as our ConfidentialInformation. Confidential Information does not include information that (a) isor becomes generally available to the public without breach of any obligationowed to the Disclosing Party; (b) was known to the Receiving Party prior to itsdisclosure by the Disclosing Party without breach of any obligation owed to theDisclosing Party; (c) is received from a third party without breach of anyobligation owed to the Disclosing Party; or (d) was independently developed bythe Receiving Party without any use or reference to the ConfidentialInformation.
12.2. Confidentiality Undertakings by the Receiving Party.The Receiving Party will (i) take at least reasonable measures to prevent theunauthorized disclosure or use of Confidential Information, and limit access tothose employees, affiliates, service providers and agents, on a need to knowbasis and who are bound by confidentiality obligations at least as restrictiveas those contained herein; and (ii) not use or disclose any ConfidentialInformation to any third party, except as part of its performance under theseTerms and as required to be disclosed to legal or financial advisors to theReceiving Party or in connection with a due diligence process that theReceiving Party is undergoing, provided that any such disclosure shall begoverned by confidentiality obligations at least as restrictive as thosecontained herein.
12.3. Compelled Disclosure. Notwithstanding theabove, Confidential Information may be disclosed pursuant to the order orrequirement of a court, administrative agency or other governmental body;provided, however, that to the extent legally permissible, the Receiving Partyshall make best efforts to provide prompt written notice of such court order orrequirement to the Disclosing Party to enable the Disclosing Party to seek aprotective order or otherwise prevent or restrict such disclosure.
13. Warranty Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, WE MAKE NOREPRESENTATIONS AND/OR WARRANTIES AND TO THE FULLEST EXTENT PERMITTED BYAPPLICABLE LAW:
13.1. THE SITES AND THE SERVICES ARE PROVIDED ON AN “AS IS”,“WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND.WE AND OUR AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE THIRDPARTY SERVICE PROVIDERS), HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS ANDWARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS AND/ORWARRANTIES OF MERCHANTABILITY, FUNCTIONALITY, TITLE, FITNESS FOR A PARTICULARPURPOSE AND NON-INFRINGEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY.
13.2. WE AND OUR VENDORS DO NOT WARRANT, AND EXPRESSLYDISCLAIM ANY REPRESENTATIONS AND/OR WARRANTIES THAT THE SERVICES AND SITES,INCLUDING THE ACCESS THERETO AND USE THEREOF, WILL BE UNINTERRUPTED, TIMELY,SECURED, ERROR FREE, THAT DATA WILL NOT BE LOST, THAT DEFECTS WILL BECORRECTED, OR THAT THE SITES AND/OR SERVICES ARE FREE FROM VIRUSES OR OTHERHARMFUL CODE. WE AND OUR VENDORS FURTHER DISCLAIM ANY AND ALL LIABILITY ORRESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHERDAMAGES THAT YOU AND/OR YOUR DATA (INCLUDING CUSTOMER DATA) MAY SUFFER, THATARE BEYOND OUR CONTROL.
13.3. WE DO NOT WARRANT, AND EXPRESSLY DISCLAIM ANYREPRESENTATIONS AND/OR WARRANTIES (I) THAT OUR SERVICES AND SITES (OR ANYPORTION THEREOF) IS COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE,SUITABLE FOR, OR COMPATIBLE WITH, ANY OF YOUR CONTEMPLATED ACTIVITIES, DEVICES,OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCHAT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO YOU; AND/OR (II) REGARDINGANY CONTENT, INFORMATION, REPORTS OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICESAND/OR THE SITES.
14. Limitation of Liability.
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THECONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
14.1. IN NO EVENT SHALL EITHER PARTY HERETO AND ITSAFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS (INCLUDING, THE THIRD PARTYSERVICE PROVIDERS), BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THESETERMS FOR (I) ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL ORPUNITIVE DAMAGES; (II) ANY LOSS OF PROFITS, COSTS, ANTICIPATED SAVINGS; (III)ANY LOSS OF, OR DAMAGE TO DATA, USE, BUSINESS, REPUTATION, REVENUE OR GOODWILL;AND/OR (IV) THE FAILURE OF SECURITY MEASURES AND PROTECTIONS, WHETHER INCONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY OR OTHERWISE, AND WHETHEROR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INADVANCE, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14.2. EXCEPT FOR THE INDEMNITY OBLIGATIONS OF EITHER PARTYUNDER SECTION 16 (INDEMNIFICATION) HEREIN, YOUR PAYMENT OBLIGATIONS HEREUNDEROR BREACH OF OUR ACCEPTABLE USE POLICY BY EITHER YOU OR IN CASE OF A CUSTOMER,ANY OF THE USERS UNDERLYING ITS ACCOUNT, IN NO EVENT SHALL THE TOTAL AGGREGATELIABILITY OF EITHER PARTY, ITS AFFILIATES, SUBCONTRACTORS, AGENTS AND VENDORS(INCLUDING, ITS THIRD PARTY SERVICE PROVIDERS), UNDER, OR OTHERWISE INCONNECTION WITH, THESE TERMS (INCLUDING THE SITES AND THE SERVICES), EXCEED THETOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU (IF ANY), DURING THE 12 CONSECUTIVEMONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OFLIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
15. Specific Laws; Reasonable Allocation of Risks.
15.1. Specific Laws. Except as expressly stated inthese Terms, we make no representations or warranties that your use of theServices is appropriate in your jurisdiction. Other than as indicated herein,you are responsible for your compliance with any local and/or specificapplicable Laws, as applicable to your use of the Services.
15.2. Reasonable Allocation of Risks. You herebyacknowledge and confirm that the limitations of liability and warrantydisclaimers contained in these Terms are agreed upon by you and us and we bothfind such limitations and allocation of risks to be commercially reasonable andsuitable for our engagement hereunder, and both you and us have relied on theselimitations and risk allocation in determining whether to enter these Terms.
16. Indemnification.
16.1. By Customer. Customer hereby agrees toindemnify, defend and hold harmless BizBuyerHQ and its affiliates, officers,directors, employees and agents from and against any and all claims, damages,obligations, liabilities, losses, reasonable expenses or costs (collectively,“Losses”) incurred as a result of any third party claim arising from (i)Customer’s and/or any of its Users’, violation of these Terms or applicableLaw; and/or (ii) Customer Data, including the use of Customer Data by BizBuyerHQand/or any of its subcontractors, infringes or violates, any third party’srights, including, without limitation, intellectual property, privacy and/orpublicity rights.
16.2. By BizBuyerHQ. BizBuyerHQ hereby agrees todefend Customer, its affiliates, officers, directors, and employees, in andagainst any third party claim or demand against Customer, alleging thatCustomer’s authorized use of the Services infringes or constitutesmisappropriation of any third party’s copyright, trademark or registered USpatent (“IP Claim”), and we will indemnify Customer and hold Customerharmless against any damages and costs finally awarded on such IP Claim by acourt of competent jurisdiction or agreed to via settlement we agreed upon,including reasonable attorneys’ fees. BizBuyerHQ’s indemnity obligations underthis Section 16 shall not apply if: (i) the Services (or any portion thereof)was modified by Customer or any of its Users or any third party, but solely tothe extent the IP Claim would have been avoided by not doing such modification;(ii) if the Services is used in combination with any other service, device,software or products, including, without limitation, Third Party Services, butsolely to the extent that such IP Claim would have been avoided without suchcombination; and/or (iii) any IP Claim arising or related to, the Customer Dataor to any events giving rise to Customer’s indemnity obligations under Section16.1 above. Without derogating from the foregoing defense and indemnificationobligation, if BizBuyerHQ believes that the Services, or any part thereof, mayso infringe, then BizBuyerHQ may in its sole discretion: (a) obtain (at noadditional cost to you) the right to continue to use the Services; (b) replaceor modify the allegedly infringing part of the Services so that it becomesnon-infringing while giving substantially equivalent performance; or (c) if BizBuyerHQdetermines that the foregoing remedies are not reasonably available, then BizBuyerHQmay require that use of the (allegedly) infringing Services (or part thereof)shall cease and in such an event, Customer shall receive a prorated refund ofany Fees paid for the unused portion of the Subscription Term. THIS SECTION16.2 STATES BizBuyerHQ’S SOLE AND ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY,FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY BizBuyerHQAND/OR ITS SERVICES AND UNDERLYING TECHNOLOGY.
16.3. Indemnity Conditions. The defense andindemnification obligations of the indemnifying party under this Section 16are subject to: (i) the indemnified party promptly providing a written noticeof the claim for which an indemnification is being sought, provided that suchindemnitee’s failure to do so will not relieve the indemnifying party of itsobligations under this Section 16, except to the extent the indemnifyingparty’s defense is materially prejudiced thereby; (ii) the indemnifying partybeing given immediate and exclusive control over the defense and/or settlementof the claim, provided, however that the indemnifying party shall not enterinto any compromise or settlement of any such claim that requires any monetaryobligation or admission of liability or any unreasonable responsibility orliability by an indemnitee without the prior written consent of the affectedindemnitee, which shall not be unreasonably withheld or delayed; and (iii) theindemnified party providing reasonable cooperation and assistance, at theindemnifying party’s expense, in the defense and/or settlement of such claimand not taking any action that prejudices the indemnifying party’s defense of,or response to, such claim.
17. Third Party Components within Our Services
Our Services includes third party codes and libraries thatare subject to third party open source license terms (“Open Source Code”and “Open Source Terms”, respectively). Some of such Open Source Termsdetermine that to the extent applicable to the respective Open Source Codelicensed thereunder, such terms prevail over any conflicting license terms,including these Terms. We use our best endeavors to identify such Open SourceCode, within our Services, hence we encourage Customer to familiarize itselfwith such Open Source Terms. Note that we use best efforts to use only OpenSource Codes that do not impose any obligation or affect the Customer Data orrelated intellectual property (beyond what is stated in the Open Source Termsand herein), on an ordinary use of our Services that does not involve anymodification, distribution or independent use of such Open Source Code.Notwithstanding anything to the contrary, we make no warranty or indemnityhereunder with respect to any Open Source Codes.
18. Export Controls; Sanctions.
The Services may be subject to U.S. or foreign exportcontrols, Laws and regulations (“Export Controls”), and you acknowledgeand confirm that: (i) you are not located or use, export, re-export or importthe Services (or any portion thereof) in or to, any person, entity,organization, jurisdiction or otherwise, in violation of the Export Controls;(ii) you are not: (a) organized under the laws of, operating from, or otherwiseordinarily resident in a country or territory that is the target orcomprehensive U.S. economic or trade sanctions (currently, Cuba, Lebanon, Iran,Syria, North Korea, or the Crimea region of Ukraine), (b) identified on a listof prohibited or restricted persons, such as the U.S. Treasury Department’sList of Specially Designated Nationals and Blocked Persons, or (c) otherwisethe target of U.S. sanctions; and Customer is solely responsible for complyingwith applicable Export Controls and sanctions which may impose additionalrestrictions, prohibitions or requirements on the use, export, re-export orimport of the Services and/or the Customer Data; and (iii) Customer Data is notcontrolled under the U.S. International Traffic in Arms Regulations or similarLaws in other jurisdictions, or otherwise requires any special permission orlicense, in respect of its use, import, export or re-export hereunder.
19. Modifications.
Occasionally, we may make changes to these Terms for validreasons, such as adding new functions or features to the Services, technicaladjustments, typos or error fixing, for legal or regulatory reasons or for anyother reasons as we deem necessary, at our sole discretion. When we makematerial changes to these Terms, we’ll provide Customer with notice asappropriate under the circumstances, e.g., by displaying a prominent noticewithin the Services or by sending Customer an email. Your continued use of theServices after the changes have been implemented will constitute youracceptance of the changes.
20. Government Use.
If Customer is part of a U.S. Government agency, departmentor otherwise, either federal, state or local (“Government Customer”),then Government Customer hereby agrees that the Services under these Termsqualifies as “Commercial Computer Software” and “Commercial Computer SoftwareDocumentation”, within the meaning of Federal Acquisition Regulation (“FAR”)2.101, FAR 12.212, Defense Federal Acquisition Regulation Supplement (“DFARS”)227.7201, and DFARS 252.227-7014. Government Customer further agrees that theterms of this Section 20 shall apply to Customer. Government Customer’stechnical data and software rights related to the Services include only thoserights customarily provided to the public as specified in these Terms inaccordance with FAR 12.212, FAR 27.405-3, FAR 52.227-19, DFARS 227.7202-1 andGeneral Services Acquisition Regulation (“GSAR”) 552.212-4(w) (asapplicable). In no event shall source code be provided or considered to be adeliverable or a software deliverable under these Terms. We grant no licensewhatsoever to any Government Customer to any source code contained in anydeliverable or a software deliverable. If a Government Customer has a need forrights not granted under the Terms, it must negotiate with us to determine ifthere are acceptable terms for granting those rights, and a mutually acceptablewritten addendum specifically granting those rights must be included in anyapplicable agreement. Any unpublished-rights are reserved under applicablecopyright laws. Any provisions contained in these Terms that contradict any Lawapplicable to a Government Customer, shall be limited solely to the extentpermitted under such applicable Law.
21. Governing Law and Jurisdiction; Class Action Waiverand Mandatory Arbitration.
21.1. Governing Law; Jurisdiction. These Terms andany action related thereto will be governed and interpreted by and under thelaws of the State of Colorado without giving effect to any conflicts of lawsprinciples that require the application of the law of a different jurisdiction.Courts of competent jurisdiction located in Colorado shall have the sole andexclusive jurisdiction and venue over all controversies and claims arising outof, or relating to, these Terms. You and us mutually agree that the UnitedNations Convention on Contracts for the International Sale of Goods does notapply to these Terms. Notwithstanding the foregoing, BizBuyerHQ reserves theright to seek injunctive relief in any court in any jurisdiction.
21.2. Class Action Waiver. WHERE PERMITTED UNDERAPPLICABLE LAW, YOU AND BizBuyerHQ AGREE THAT EACH PARTY MAY BRING CLAIMSAGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS APLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.Unless both you and BizBuyerHQ mutually agree, no arbitrator or judge mayconsolidate more than one person’s claims or otherwise preside over any form ofa representative or class proceeding.
21.3. Arbitration. To the extent permitted underapplicable Law, you and BizBuyerHQ hereby irrevocably agree to the followingprovisions:
21.3.1. Dispute resolution and Arbitration. Anydispute, claim, or controversy between you and us arising in connection with,or relating in any way to, these Terms (whether based in contract, tort,statute, fraud, misrepresentation, or any other legal theory, and whether theclaims arise during or after the termination or expiration of these Terms) willbe determined solely by mandatory binding arbitration. In arbitration there isno judge or jury and court review of an arbitration award is limited. However,an arbitrator can award on an individual basis the same damages and relief as acourt (including injunctive and declaratory relief or statutory damages) andmust follow the terms of these Terms as a court would.
21.3.2. Exception. Notwithstanding clause 21.3.1above, you and BizBuyerHQ both agree that nothing herein will be deemed towaive, preclude, or otherwise limit either of our rights, at any time, to seekinjunctive relief in a court of law. In addition to the above, notwithstandingclause 21.3.1 above, BizBuyerHQ may file a suit in a court of law against youto address intellectual property infringement claims.
21.3.3. Arbitration Process Rules. Either you or wemay start arbitration proceedings. Any arbitration between you and us will befinally settled under the Rules of Arbitration of the International Chamber ofCommerce (“ICC”) then in force (“ICC Rules”) by one arbitratorappointed in accordance with the ICC Rules. The arbitration will take place inColorado, and shall be conducted in the English language and unless otherwiserequired by a mandatory law of any jurisdiction, the law to be applied in anyarbitration shall be the law of the State of Colorado, without regard to choiceor conflicts of law principles. The arbitration proceedings shall be conductedon an expedited basis and shall result in an award within no more than 60 days.The arbitration shall be conducted on a confidential basis. The award of theArbitrator shall be final and binding on the parties. The arbitration awardshall be enforceable in any court of competent jurisdiction. Any motion toenforce or vacate an arbitration award under this agreement shall be keptconfidential to the maximum extent possible.
21.3.4. Special Statute of Limitation. Anyarbitration must be commenced by filing a demand for arbitration within 2 yearsafter the date the party asserting the claim first knows or reasonably shouldknow of the act, omission, or default giving rise to the claim; and there shallbe no right to any remedy for any claim not asserted within that time period.If applicable law prohibits such limitation period for asserting claims, anyclaim must be asserted within the shortest time period permitted by applicableLaw.
21.3.5. Notice; Process. A party who intends to seekarbitration must first send a written notice of the dispute to the other, bycertified mail or Federal Express (signature required), or in the event that wedo not have a physical address on file for you, by electronic mail (“DisputeNotice”). The Dispute Notice must (i) describe the nature and basis of theclaim or dispute; and (ii) set forth the specific relief sought. We agree touse good faith efforts to resolve the claim directly, but if we do not reach anagreement to do so within 30 days after the Dispute Notice is received, you orus may commence an arbitration proceeding. During the arbitration, the amountof any settlement offer made by you or us shall not be disclosed to thearbitrator until after the arbitrator makes a final decision and award, if any.Without derogating from the generality of the confidentiality protection underclause 21.3.3 above, all documents and information disclosed in the course ofthe arbitration shall be kept strictly confidential by the recipient and shallnot be used by the recipient for any purpose other than for purposes of thearbitration or the enforcement of the arbitrator’s decision and award and shallnot be disclosed except in confidence to persons who have a need to know forsuch purposes or as required by applicable Law. Except as required to enforcethe arbitrator’s decision and award, neither you nor us shall make any publicannouncement or public comment or originate any publicity concerning the arbitration,including, but not limited to, the fact that the parties are in dispute, theexistence of the arbitration, or any decision or award of the arbitrator.
22. General Provisions.
22.1. Interpretations. Any heading, caption orsection title contained herein, and/or any explanation or summary columns, isprovided only for convenience, and in no way alters and/or amend the provisionswithin the Terms nor shall it legally bind us in any way. These Terms arewritten in English, and translated into other languages for your convenience.If a translated (non-English) version of these Terms conflicts in any way withtheir English version, the provisions of the English version shall prevail.
22.2. Force Majeure. Neither we nor you will beliable by reason of any failure or delay in the performance of its obligationson account of events beyond the reasonable control of a party, which mayinclude denial-of-service attacks, interruption or failure of the internet orany utility service, failures in third-party hosting services, strikes,shortages, riots, fires, acts of God, war, terrorism, and governmental action.
22.3. Relationship of the Parties; No Third PartyBeneficiaries. The parties are independent contractors. These Terms and theServices provided hereunder, do not create a partnership, franchise, jointventure, agency, fiduciary or employment relationship between the parties.There are no third party beneficiaries to these Terms.
22.4. Notice. We shall use your contact details thatwe have in our records, in connection with providing you notices, subject tothis Section 22.4. Our contact details for any notices are detailed below. Youacknowledge notices that we provide you, in connection with these Terms and/oras otherwise related to the Services, shall be provided as follows: via theServices, including by posting on our Sites or posting in your account, text,in-app notification, e-mail, phone or first class, airmail, or overnightcourier. You further acknowledge that an electronic notification satisfies anyapplicable legal notification requirements, including that such notificationwill be in writing. Any notice to you will be deemed given upon the earlier of:(i) receipt; or (ii) 24 hours of delivery. Notices to us shall be provided to BizBuyerHQLtd., attn: General Counsel, at legal@BizBuyerHQ.com.
22.5. Assignment. These Terms, and any and all rightsand obligations hereunder, may not be transferred or assigned by you withoutour written approval, provided that you may assign these Terms to yoursuccessor entity or person, resulting from a merger, acquisition, or sale ofall or substantially all of your assets or voting rights, except for anassignment to a competitor of BizBuyerHQ, and provided that you provide us withprompt written notice of such assignment and the respective assignee agrees, inwriting, to assume all of your obligations under these Terms. We may assign ourrights and/or obligations hereunder and/or transfer ownership rights and titlein the Services to a third party without your consent or prior notice to you.Subject to the foregoing conditions, these Terms shall bind and enure to thebenefit of the parties, their respective successors, and permitted assigns. Anyassignment not authorized under this Section 22.5 shall be null and void.
22.6. Severability. These Terms shall be enforced tothe fullest extent permitted under applicable Law. If any provision of theseTerms is held by a court of competent jurisdiction to be contrary to law, theprovision will be modified by the court and interpreted so as best toaccomplish the objectives of the original provision to the fullest extentpermitted by law, and the remaining provisions of these Terms will remain ineffect.
22.7. No Waiver. No failure or delay by either partyin exercising any right under these Terms will constitute a waiver of thatright. No waiver under these Terms will be effective unless made in writing andsigned by an authorized representative of the party being deemed to havegranted the waiver.
22.8. No Reliance. You acknowledge and agree that youdo not rely on, and shall have no remedy in respect of, any statement, warrantyand/or representation made (including whether innocently or negligently) by usor any other person on our behalf except as expressly set out in these Terms oran Order Form.
