Terms of Service
Client Terms Of Services Agreement
LAST UPDATED: May, 2018
Botkeeper, Inc. (“Botkeeper”) provides an automated bookkeeping and accounting solution through the use of machine learning and AI. The solution is comprised of this website, a financial hub accessible through https://portal.botkeeper.com/, and the services accessible through the financial hub (collectively, the “Services”).
This Client Terms of Services Agreement (“Agreement”) governs your use of the Services as well as any content or other products or services that Botkeeper offers or provides. You signify your assent to this Agreement by using the Services. Please do not use or continue to access the Services if you do not agree to this Agreement.
Botkeeper reserves the right to change, modify, add, or remove portions of this Agreement. Botkeeper will post notice of modifications to this Agreement on this website and will attempt to notify you through the Services that the Agreement has been modified. Changes will become effective immediately but will not apply retroactively. You should immediately discontinue your use of the Services if you do not agree to the modified Agreement.
NOTICE: THIS AGREEMENT INCLUDES (1) A BINDING ARBITRATION CLAUSE WHICH AFFECTS YOUR RIGHTS; AND (2) A REQUIREMENT FOR CUSTOMERS OUTSIDE OF THE UNITED STATES TO TRANSFER DATA INTO THE UNITED STATES. PLEASE READ IT CAREFULLY.
YOUR USE OF THE SERVICES
You are responsible for your use of the Services. By using the Services, you represent and warrant that you are authorized on behalf of your organization to form a binding contract with Botkeeper and that you meet all applicable eligibility requirements. If you do not, you must not access or use the Services.
The Services may be further described in any selected service package, purchase order, invoice, statement of work, or other written document prepared or advertised by Botkeeper (each, a “Service Document”). In the absence of a Service Document, details and pricing of the Services shall be defined by Botkeeper’s then-current standard pricing page (available at: https://www.botkeeper.com/pricing-packages/) (“Pricing Page”).
FEES & PAYMENT
In consideration of the Services provided hereunder, you will pay Botkeeper all fees and expenses pursuant to the applicable Service Documents or as set forth on Botkeeper’s Pricing Page, including all applicable taxes due (“Fees”). Beginning on the Effective Date (as defined below), the first thirty (30) days of the Services shall be provided to you free of charge. Following such thirty (30) day period, all Fees for the Services that fall within the normal scope of services shall be automatically withdrawn from your bank account via ACH on the first of each applicable month, and you shall receive an invoice for such Services three (3) days prior to the date on which funds are to be withdrawn; with the invoice for the first month of such Services following the thirty (30) day introductory period being pro-rated to account for any partial month. Your engagement with Botkeeper is based on current needs; as those needs change Botkeeper may need to adjust your pricing. Furthermore, Botkeeper may increase your monthly Fees by up to 5% on each annual anniversary of the date on which you accepted and electronically consented to this Agreement (the “Effective Date”).
Any additional technologies or services required to provide the Services will be billed according to the rates listed in the Technology Add-ons List below. Fees for projects outside the normal scope of services (each such project, an “Additional Service”), including but not limited to implementation, catch up, and clean up fees shall be billed hourly at Botkeeper’s then current professional services rates. Botkeeper will scope out each Additional Service and provide you with pricing/costs to complete each Additional Service prior to commencing work, and Botkeeper will not begin work on such Additional Service until you and Botkeeper have mutually agreed on the project scope. Fees for Additional Services will be automatically withdrawn from your bank account via ACH on the 1st of each applicable month, and you shall receive an invoice for such Additional Services seven (7) days prior to the date on which funds are to be withdrawn. Unless otherwise stated in a Service Document, you agree to reimburse Botkeeper for all reasonable expenses incurred by Botkeeper in delivering an Additional Service to you, including parking, postage, international phone calls, software and technical support. Botkeeper agrees to itemize such expenses on each applicable invoice.
You will incur a monthly finance charge of 1.5% for any balance that is overdue by 30 days. If you dispute any portion of an invoice, you agree to pay the undisputed portion of the invoice and to submit a written dispute within 15 days of the invoice date. Your dispute must include written documentation to support the dispute. Your failure to submit a written dispute of charges within such time shall be deemed final acceptance of all charges.
You hereby authorize Botkeeper to initiate ACH and credit card charges for Services and Additional Services payable by ACH or credit card.
CONTENT & CLIENT INFORMATION
The Services include information, text, graphics, sounds, and other material or information provided by Botkeeper and its licensors (collectively, the “Content”). The Content may be protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws.
You agree to promptly provide Botkeeper all information necessary for Botkeeper to provide the Services as well as any other information as may be requested by Botkeeper from time to time (“Client Information”). You are responsible for the Client Information that you upload to the Services and for the consequences and liability related to or connected with your Client Information as well as your use of any Content you access or obtain through the Services.
Botkeeper does not claim ownership rights to your Client Information. You retain all of your rights to your Client Information, but by uploading, transmitting, or posting Client Information via the Services, you hereby grant to Botkeeper a non-exclusive, worldwide, royalty-free license to use, reproduce, modify, edit, adapt, publish, translate, display, host, store, distribute, sublicense, and create derivative works and compilations incorporating your Client Information as part of providing the Services. Botkeeper will not be liable for your Client Information. You represent and warrant that you have all rights and authority to grant to Botkeeper the foregoing license to the Client Information you upload to the Services.
You acknowledge that Botkeeper will rely on the accuracy and authenticity of your Client Information and Botkeeper is not obligated, nor does Botkeeper intend, to take any steps to independently verify the accuracy or authenticity of your Client Information. You hereby agree to indemnify and hold Botkeeper harmless from and against any and all third party claims, demands, suits or actions resulting from, arising out of or relating to Services in reliance upon your Client Information.
Botkeeper is dedicated to ensuring the accessibility, integrity, and security of your Client Information. Botkeeper endeavors to ensure the accessibility, integrity, and security of your Client Information with built-in access controls, monitoring, auditing, and tracking features.
To access the Services, you may be asked to provide certain registration or other security information. The information you provide must be accurate and complete.
Your account is personal to you and you may not share it or allow any other person to utilize your account. You may not use another person’s account. The Services may allow you to store your login credentials in your web browser so that you are automatically logged in each time you access the Services. If someone else has access to your computer, mobile device, or web browser, the automatic login feature will allow that person to have access to your account. You will be responsible for all damages resulting from unauthorized access to the Services from your account. You must notify Botkeeper if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security.
YOUR LICENSE TO USE THE SERVICES
Botkeeper grants to you a limited, non-exclusive, non-assignable, non-transferable license to access and use the Services for your own personal, non-commercial purposes, subject to your agreement to and compliance with this Agreement. Botkeeper reserves all rights not otherwise expressly granted by this Agreement. You may not: rent or sell the Services to a third party, copy or reverse engineer the Services, create derivative works of the Services, change or alter Content or notices, use a bot or other automatic process to harvest information or Content on the Services, introduce a virus or malicious code into the Services, use the Services to violate a third party’s intellectual property rights, send advertisements or spam using or through the Services, use any information in the Services to create a competing service, or engage in any activity that violates this Agreement.
BOTKEEPER RIGHTS AND OWNERSHIP
Botkeeper may discontinue or alter any aspect of the Services, restrict the time the Services are available, install bug fixes, updates, patches, and other upgrades to the Services, and restrict the amount of use permitted at Botkeeper’s sole discretion and without prior notice or liability to you. Your only remedy is to discontinue using the Services if you do not want a modification Botkeeper makes to the Services.
The Services are Botkeeper’s copyrighted property and the Services may not be reproduced, recreated, modified, accessed, or used in any manner contrary to what is allowed by this Agreement or disseminated or distributed to any other person. Botkeerer’s images, trademarks, service marks, logos, icons, and other content on the Services are Botkeeper’s property and may not be used without Botkeeper’s prior written consent. Trademarks owned by third parties are the property of those respective third parties. Any feedback or suggestions you give to Botkeeper about the Services is voluntary and Botkeeper may use such feedback or suggestions in Botkeeper’s sole discretion without obligation or remuneration to you.
USAGE AND LIMITATIONS
Botkeeper does not guarantee that the Services will be compatible or operate with your Internet provider’s service plan, your mobile carrier’s service plan, with any particular computer, mobile device, or web browser, or any other piece of hardware, software, equipment, or device you use to access the Services. You are responsible for providing, maintaining, and ensuring the compatibility of all hardware, software, and other system requirements necessary for your access to and use of the Services. You are responsible for all third party charges and fees, including to your Internet service provider and mobile carrier, in connection with your access and use of the Services and for complying with any contracts, terms of service agreements, and restrictions associated with such third party services.
Botkeeper may post links to third party websites on the Services. If Botkeeper does post a link to a third party website, please be aware that Botkeeper is not responsible or liable for any content, advertising, products, or other materials on or available from third party websites or for any privacy or other practices of the third parties operating those websites.
TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, BOTKEEPER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SUITABILITY, INTEGRATION, CURRENTNESS, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE. BOTKEEPER DOES NOT WARRANT THAT THE SERVICES WILL BE MALWARE OR VIRUS FREE. BOTKEEPER SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT ACCESS TO OR OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS IN THE SERVICES, IF ANY, WILL BE CORRECTED, OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND BOTKEEPER DOES NOT GUARANTEE THE SERVICE’S AVAILABILITY OR UPTIME. BOTKEEPER DOES NOT WARRANT OR REPRESENT THAT USE OF THE SERVICES WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS.
LIMITATION OF DAMAGES
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCE WILL BOTKEEPER BE RESPONSIBLE FOR LOST PROFITS, REVENUES, FINANCIAL LOSSES, OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, BOTKEEPER’S TOTAL LIABILITY FOR ANY CLAIMS UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE GREATER OF THE AMOUNT YOU PAID TO BOTKEEPER DURING THE 6 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR $100.00. THE LIMITATIONS OF THIS SECTION WILL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT BOTKEEPER HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You will defend, indemnify, hold harmless, and inure to the benefit of Botkeeper, and each of its principals, agents, associates and subcontractors from any and all loss, damage, expense or liability resulting from or arising out of, any of your or your agent’s acts or omissions or from your or your agent’s breach or default of this Agreement.
TERM AND TERMINATION OF AGREEMENT
This Agreement is effective until you or Botkeeper terminates it. You may terminate this Agreement at any time by providing Botkeeper 60 days’ prior written notice. Botkeeper may terminate this Agreement at any time and for any reason without prior notice to you, and accordingly, Botkeeper may deny or suspend your access to the Services, including for your non-payment of Fees, and in such circumstance Botkeeper will have no liability for failure to provide Services. Termination of this Agreement will not affect any right or relief to which Botkeeper is entitled at law or in equity. Upon termination of this Agreement, you must terminate all use of the Services and any information or materials that have been provided to you. You are responsible for payment of all Fees for the Services rendered through the date of termination, provided however, that if you terminate this Agreement within 30 days of the Effective Date, you shall incur no costs and shall not be responsible for any Fees for Services rendered within the normal scope of service. The terms and conditions in this Agreement that by their nature and context are intended to survive any termination of this Agreement will survive such termination and will be fully enforceable thereafter.
Confidential Information means any and all tangible or intangible information furnished by a party or their representatives, whether oral, written, or recorded/electronic, and regardless of the manner in which it is furnished relating to parties, their subcontractors or their affiliates.
Both parties acknowledge that all Confidential Information is material and confidential and greatly affects the goodwill and the effective and successful conduct the parties respective businesses and operations, and that maintaining confidentiality of the Confidential Information is reasonably necessary to protect the legitimate business interests of the parties. Accordingly, as a material inducement to the parties to enter into this Agreement, both the parties hereby agree to maintain and receive all such Confidential Information in strict confidence and that neither the parties nor any of its representatives or subcontractors shall, at any time, directly or indirectly, divulge, reveal or communicate any Confidential Information to any third party whatsoever, or use, pursue or exploit any Confidential Information for its own benefit or for the benefit of others. Both parties agree that neither it nor any of its representatives or subcontractors will infringe on the other party’s respective intellectual property or other rights in said Confidential Information, and acknowledges that nothing herein shall be construed as granting a license or right to use said Confidential Information except for the specific purposes set forth herein.
If you request Botkeeper to provide Services to another legal entity that you own, under common ownership, or otherwise associated with you (an “Affiliated Entity”), you affirm and agree that you agree to this Agreement both on your own behalf and as an authorized agent for the Affiliated Entity. You hereby agree to indemnity and hold harmless Botkeeper against any claims made by the Affiliated Entity.
USE OF SUBCONTRACTORS & ASSIGNMENT
You expressly acknowledge and agree that Botkeeper may engage subcontractors to perform the Services and may assign its rights and obligations hereunder without your consent. You may only assign your rights and obligations hereunder as part of a merger or sale of substantially all of your assets, and in such case you must provide prompt written notice to Botkeeper.
During the Term and for 1 year thereafter (the “Restricted Period”), you will not, without Botkeeper’s prior written consent, either directly or indirectly, on your behalf or in the service or on behalf of others, hire any employee or contractor who was engaged by Botkeeper at any time during the 1 year period prior to termination or expiration of the Term (“Restricted Personnel”). You acknowledge that your hiring or engagement of any Restricted Personnel is likely to cause irreparable damage to Botkeeper that would be difficult or impossible to ascertain or prove. Accordingly, you agree that any breach of this section shall obligate you to pay Botkeeper on demand, as liquidated damages, an amount equal to Restricted Personnel’s annual salary or fees paid by Botkeeper at termination of Restricted Personnel’s engagement with Botkeeper. You agree that this section does not provide for unreasonably large liquidated damages.
Notwithstanding the foregoing, nothing herein will preclude either party from hiring anyone who responds to a bona fide general advertisement for employment.
COMPLIANCE WITH NON-US LAW
Botkeeper does not make any representation that the Services or any material or information provided through the Services is appropriate to or available in locations outside of the United States.
You may not use the Services in violation of United States export laws, regulations, or restrictions. If you access the Services from outside of the United States, you are responsible for compliance with all applicable laws.
IF YOU ARE ACCESSING THE SERVICES FROM OUTSIDE OF THE UNITED STATES, PLEASE BE AWARE THAT ANY CLIENT INFORMATION THAT YOU PROVIDE TO BOTKEEPER WILL BE TRANSFERRED TO THE UNITED STATES. YOU AGREE THAT IN ORDER FOR BOTKEEPER TO PROVIDE THE SERVICES TO YOU, YOUR CLIENT INFORMATION MUST BE TRANSFERRED TO, AND PROCESSED IN, THE UNITED STATES AND YOU EXPRESSLY AGREE OF SUCH TRANSFER OF YOUR CLIENT INFORMATION TO THE UNITED STATES. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH THE LAWS, RULES, AND REGULATIONS, REGARDLESS OF JURISDICTION, THAT APPLY TO YOUR CLIENT DATA AND YOU WILL INDEMNIFY AND HOLD BOTKEEPER HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, DEMANDS, SUITS, OR ACTIONS RESULTING FROM, ARISING OUT OF, OR RELATING TO YOUR TRANSFER OF CLIENT INFORMATION TO BOTKEEPER. YOU ACKNOWLEDGE THAT THE UNITED STATES MAY NOT PROVIDE THE SAME LEVEL OF PRIVACY PROTECTION TO YOUR CLIENT INFORMATION AS THE LAWS OF YOUR COUNTRY.
GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without application of conflicts of laws principles.
PLEASE READ THIS CAREFULLY AS IT AFFECTS YOUR RIGHTS. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be determined by arbitration in Boston, MA before one arbitrator. The arbitration shall be administered by JAMS in accordance with its streamlined rules and procedure. Judgment on the award may be entered in any court having jurisdiction.
In any action or proceeding to enforce this Agreement, Botkeeper shall be entitled to recover from you its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
Notwithstanding the above, the parties agree that each party may seek injunctive relief without prejudice and in addition to all other remedies provided by this Agreement or available at law.
During the Term, you hereby give Botkeeper a license to use your (or your company’s) name and logo on its website and other marketing materials to identify that Botkeeper is a service provider to you.
Botkeeper is and shall remain an independent contractor with respect to all performance rendered pursuant to this Agreement. The provisions hereof are not intended to create any partnership, joint venture, agency, or employment relationship between the parties or between a party and the employees, agents, or independent contractors of the other party. Except for payment obligations, neither party will be held responsible for any delay or failure in performance under this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, terrorism, strike, embargo, government regulation, civil or military authority, act of God, or other similar causes beyond its control. This Agreement controls the relationship between Botkeeper and you. This Agreement does not create any third party beneficiary rights. Botkeeper’s failure to enforce the provisions of this Agreement do not constitute a waiver of Botkeeper’s right to enforce them. If any term or provision of this Agreement is held to be invalid or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and the invalid or unenforceable term or provision will not be considered to be part of this Agreement. In the event of a conflict between this Agreement and any additional policies, procedures, disclaimers, guidelines, rules, terms, or conditions of specific application, the additional policies, procedures, disclaimers, guidelines, rules, terms, or conditions of specific application will control.
- QuickBooks User Accounts – ($60.00 per month). If you are already using QuickBooks Online, your existing account will be integrated into Botkeeper’s Management Dashboard and billing for the account will appear as a line item on your monthly Botkeeper invoice rather than as a separate bill from Intuit.
- Xero User Accounts – ($30.00 per month) or ($70.00 per month for multi-currency). If you are already using Xero, your existing account will be integrated into Botkeeper’s Management Dashboard and billing for the account will appear as a line item on your monthly Botkeeper invoice rather than as a separate bill from Xero.
- Bill.com – Online bill pay portal ($39.00 per month base fee, plus $10.00 per user per month, plus $1.49 per payment (5 packs), and $1.49 per mailed invoice (5 packs))
- Gusto Payroll – ($39.00 per month base fee, plus $6.00 per person per month)
- T-Sheets – Online timesheets ($16.00 per month base fee, plus $4.00 per use per month)
- Expensify – Online expense reports ($9.00 per user per month)
- Hubdoc – Streamlined document workflow ($20.00 per month)
- 1099 Filings – If you would like Botkeeper to file 1099s ($25.00 per form for up to 25 OR $50.00 per hour for 25 to 1000 forms OR $30.00 per hour for 1000+ forms)
- Sales Tax – Preparation and filing of sales tax reports as often as required ($200.00 per filing)
- Consolidations – If you have any domestic or international subsidiaries which you would like to see consolidated in Excel format ($50.00 per hour)
This is an important document. We recommend that you read it carefully.
Users Outside of the United States
We offer Botkeeper to clients who are primarily in the United States. Botkeeper is hosted in the United States and is governed by United States law. If you are using Botkeeper from outside the United States, please be aware that your personal information may be transferred to, stored, and processed in the United States where our servers are located and our central database is operated. The data protection and other laws of the United States and other countries might not be as comprehensive as those in your country.
Personal Information Defined
Personal information means any information that identifies you that can be reasonably used to infer this information.
Collection of your Personal Information
When you access or use Botkeeper, we may collect personal information from you, such as your:
– First and Last Name
– Mailing Address
– E-mail Address
– Phone Number
– Job Title
If you purchase our products or services, we collect billing and credit card information. This information is used to complete the purchase transaction.
We do not collect any personal information about you unless you voluntarily provide it to us. You may be required to provide certain personal information to us when you elect to use Botkeeper. These may include: (a) registering for an account on Botkeeper; (b) entering a sweepstakes or contest sponsored by us or one of our partners; (c) signing up for special offers from selected third parties; (d) sending us an email message; or (e) submitting your credit card or other payment information when ordering and purchasing products and services on Botkeeper.
Use of your Personal Information
When you give us your personal information, we may use it:
- for the specific purpose for which it was collected;
- to deliver Botkeeper to you;
- to personalize your experience on Botkeeper;
- to provide customer service to you and/or to address your technical support questions;
- to alert you of new products or services, features, or enhancements;
- to provide important information about Botkeeper, such as changes to Botkeeper or updates to our policies;
- to improve Botkeeper;
- as permitted by law; and
- for any other purpose with your consent.
When We Disclose Your Personal Information
We do not sell, rent or lease your personal information to third parties without your consent. We may disclose your personal information for certain purposes and to third parties as described below:
With Your Consent. We may share your personal information when we have your consent. You can revoke your consent at any time by providing notice to us at firstname.lastname@example.org.
Service Providers. We may employ other companies and people to perform tasks on our behalf and we may need to share your personal information with them to provide services to you. Unless we tell you differently, they do not have any right to use your personal information beyond what is necessary to assist us.
To Protect Botkeeper. We may disclose your personal information, without notice, if required to do so by law or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on us; (b) protect and defend our rights or property; and/or (c) act under exigent circumstances to protect the personal safety of our users or the public.
External Business Partners. Botkeeper may, from time to time, contact you on behalf of external business partners about a particular offering that may be of interest to you. In those cases, your unique personally identifiable information (e-mail, name, address, telephone number) is not transferred to the third party.
Managing Your Personal Information
Correcting, Updating, Accessing, or Removing Personal Information. You can correct, update, or remove your personal information if it changes or if you no longer want to receive information from us beyond information related to our services. This can be done by managing your personal information through your Botkeeper account or by emailing a request to us at email@example.com. You may also request access to your personal information that we collect by sending a request to us at firstname.lastname@example.org.
Deleting Your Account. You may request deletion of your account by sending an e-mail to email@example.com. Please note that some information may remain in our private records after deletion of your account. We may use any aggregated data derived from or incorporating your personal information after you delete your account, but not in a manner that would identify you personally.
Your California Privacy Rights. California Civil Code Section 1798.83 permits users that are California residents to request certain information regarding our disclosures of personal information to third parties for such third parties’ direct marketing purposes. If you are a California resident and would like to make such a request, please contact us at firstname.lastname@example.org.
Tracking User Behavior
Botkeeper may keep track of the websites and pages our users visit within Botkeeper in order to determine what Botkeeper services are the most popular. This data is used to deliver customized content and advertising within Botkeeper to you.
Automatically Collected Information
Information about your computer hardware and software may be automatically collected by Botkeeper. This information can include: your IP address, browser type, domain names, access times and referring website addresses. This information is used for the operation of the service, to maintain the quality of the service, and to provide general statistics regarding use of Botkeeper.
Botkeeper may use “cookies” to help you personalize your online experience. A cookie is a text file that is placed on your computer by a web page server. Cookies cannot be used to run programs or deliver viruses to your computer. Cookies are uniquely assigned to you and can only be read by a web server in the domain that issued the cookie to you.
One of the primary purposes of cookies is to provide a convenience feature to save you time. For example, a cookie helps Botkeeper recall your specific information on subsequent visits. This simplifies the process of recording your personal information, such as billing addresses, shipping addresses, and so on. When you return to the same Botkeeper website, the information you previously provided can be retrieved, so you can easily use the Botkeeper features that you customized.
You have the ability to accept or decline cookies. Most Web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. If you choose to decline cookies, you may not be able to fully experience the interactive features of the Botkeeper services or websites you visit.
Do Not Track Signals
Some web browsers may transmit “do not track” signals to websites with which the web browser communicates. Botkeeper does not currently recognize or respond to “do not track” signals. However, Botkeeper may in the future elect to recognize or respond to “do not track” signals.
Botkeeper contains links to other sites. Please be aware that we are not responsible for the content or privacy practices of other websites. We encourage you to be aware when you leave Botkeeper and to read the privacy statements of any other website that collects your personal information.
Security of your Personal Information
We secure your personal information from unauthorized access, use, or disclosure. We use the following methods for this purpose:
– SSL Protocol
– Two Factor Authentication
– Database Encryption
When personal information (such as a credit card number) is transmitted to other websites, it is protected through the use of encryption, such as the Secure Sockets Layer (SSL) protocol.
We strive to take appropriate security measures to protect against unauthorized access to or alteration of your personal information. Unfortunately, no data transmission over the Internet or any wireless network can be guaranteed to be 100% secure. As a result, while we strive to protect your personal information, you acknowledge that: (a) there are security and privacy limitations inherent to the Internet which are beyond our control; and (b) security, integrity, and privacy of any and all information and data exchanged between you and us through Botkeeper cannot be guaranteed.
Children Under Thirteen
We do not knowingly collect personal information from children under the age of thirteen. If you are under the age of thirteen, you must ask your parent or guardian for permission to use this website.
Changes to this Statement
745 Atlantic Ave
Boston, Massachusetts 02111
Effective as of August 2, 2018
End User License Agree
END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. BY CLICKING “I ACCEPT”, DOWNLOADING, INSTALLING, LOGGING INTO, ACCESSING OR OTHERWISE USING ANY PART OF BOTKEEPER INC.’S SOFTWARE-AS-A-SERVICE PRODUCT, APPLICATION, SERVICES, AND RELATED MATERIALS (COLLECTIVELY, THE “PRODUCT”), OR OTHERWISE MANIFESTING YOUR ASSET TO THESE TERMS, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNEQUIVOCALLY AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, LOG INTO, ACCESS, COPY, OR OTHERWISE USE THE PRODUCT.
WARNING: IN THE EVENT YOU ACCEPT THIS AGREEMENT IN ERROR, YOU ARE STRICTLY PROHIBITED FROM USING THE PRODUCT. UNAUTHORIZED USE MAY RESULT IN CIVIL AND/OR CRIMINAL LIABILITY. USE OF THE PRODUCT BY YOU OR YOUR AGENT SIGNIFIES YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
Description. The Product is proprietary to Company and its licensors and is protected by intellectual property laws. User’s access to the Product is licensed and not sold. Company (for itself or its licensors) hereby reserves all rights not expressly granted to User, including, without limitation, the right to alter, modify, update, enhance, improve or create derivative or collective works incorporating the Product.
License. Company grants User a limited, personal, nonexclusive, worldwide, revocable, nontransferable license to access and use the Product in its original, unmodified form as delivered by Company only and solely for internal purposes related to your business (and not for service bureau, time-sharing or similar services) in accordance with the terms of this Agreement and all applicable laws, rules, and regulations. User is not permitted to use the Product on behalf of third parties without the written consent of Company. As between User and Company, User acknowledges that all ownership of the Product belongs to Company and its licensors. User shall not exceed the scope of User’s license to use the Product, and User shall not provide User’s Account Information (as defined below) to another User for any reason, including, without limitation, in order for such other User to access any features of the Product. Modification, reverse engineering, reverse compiling, discovery of the source code, and/or disassembly of the Product are expressly prohibited.
Accessibility of the Product. User understands and agrees that from time to time that the Product and/or certain features or functionality of the Product may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment or software malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not foreseeable by Company. User acknowledges that access to and/or features and functionality of the Product are provided over various facilities and communications lines, and that information will be transmitted over local exchange and Internet backbone carrier lines and through routers, switches and other devices (collectively, “carrier lines”) owned, maintained and serviced by third-party carriers, utilities, phone lines, and/or Internet service providers, all of whom are beyond Company’s control. Use of the carrier lines to access and use the Product and transmit information is solely at User’s risk and is subject to all local, state, federal and international laws.
Equipment. User shall be solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for User’s access and use of the Product, including, without limitation, telecommunications and Internet access connections and links, web browsers or other equipment, and programs and services required to access and use the Product.
Account Information and Security. In order to access and use the Product, User may be required to register with Company and select a username and password or otherwise activate the Product for use (collectively, User’s “Account Information”). This Account Information shall be used only by User, and User may not share or otherwise disclose User’s Account Information to any other party. User shall be responsible for the security, confidentiality and integrity of all information that User receives, transmits through or stores using or through the Product. User shall be responsible for the security, confidentiality and integrity of User’s Account Information and for any authorized or unauthorized access and use of User’s account by any person. User has the affirmative responsibility to monitor and control access to User’s Account Information. If at any time User learns or suspects that User’s Account Information has been disclosed or otherwise made known to any person other than User, User agrees to immediately notify Company. As part of this registration process, User may be required to disclose User’s email address, name, phone number and physical address to Company and, if so, User is required to keep such information current.
Monitoring. Company reserves the right, but has no affirmative obligation, to monitor User accounts to (i) operate the Product properly; (ii) administer and manage Company’s business; (iii) provide all Users with the highest quality products and services; (iv) verify compliance with laws or this Agreement; (v) protect Company and its users; and/or (vi) satisfy any law, regulation or other government request. User agrees that Company may collect and use technical and related information regarding User’s system and use of the Product, including, without limitation, technical information about User’s computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of updates, upgrades, support and other services (if any) related to the Product, to verify compliance with this Agreement, and to improve the Product and related services.
Other Users. User acknowledges that other users have, and/or may have, access to the Product and information made available thereby. The actions of such other users are beyond the control of Company. Accordingly, Company does not assume any liability for or relating to any impairment of the privacy, security, confidentiality, integrity, availability or restricted use of the Product or any content provided thereby from any other user’s actions or omissions.
Consent to Use of Data. User agrees that Company may collect and use technical and related User and information regarding User’s system and use of the Product, including, without limitation, technical information about User’s computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of updates, support and other services (if any) related to the Product, to verify compliance with this Agreement, and to improve the Product and related services.
Circumvention. User agrees not to access the Product or any other aspect of or information contained on the Product or any of the Company’s systems through any technology or means other than through User’s account using User’s Account Information. User agrees not to use or launch any automated system, including, without limitation, “robots”, “spiders”, “penetrating devices”, “offline readers,” “viruses”, “Trojan Horses”, “worms”, “disabling”, “lock out”, or any other malicious code or system, as such terms are understood in the computer industry. User agrees not to collect or harvest any personally identifiable information, including Account Information, from the Product or Company, nor to use the communications systems provided by the Product for any commercial solicitation.
Company Content, User Content and User Conduct
Company Content. Company allows the access of information, software, photos, video, text, graphics, music, sounds or other material provided by Company or third parties (collectively, “Company Content”) that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. User’s use of any Company Content will be governed by this Agreement. Company does not represent or warrant under any circumstance that use of the Product guarantees or ensures User’s full compliance with the Security Standards for the Protection of Electronic Protected Health Information, as set forth at 45 C.F.R. Part 164, Subpart C and the Product may not be used for such purposes.
Inaccurate Content. All User Content (as defined below) originates from users, and as such, is beyond the control of Company. Company neither initiates the posting of such User Content nor monitors the specific content or accuracy of the User Content being posted. Without limiting the generality of any other provision of this Agreement, Company shall have no responsibility for or liability related to the accuracy, content, correctness, completeness, suitability, fitness for a particular purpose, or delivery of the User Content provided by any user. User is responsible for the accuracy, content, correctness, completeness, suitability, fitness for a particular purpose, and delivery of the User Content posted by such User, and User warrants that the User Content posted by User is accurate, current and complete. User shall indemnify Company for any and all losses or damages Company may incur regarding or related to the accuracy, content, currency, completeness or delivery of the User Content furnished by User pursuant to the indemnification provisions of this Agreement.
Company Standards and Conduct. User’s privilege to use the Product depends on User’s compliance with the standards and conduct guidelines set forth by Company from time to time. Company may revoke User’s privileges or take any other appropriate measures to enforce these guidelines if violations are brought to its attention. As Company does not control or monitor the User Content posted on or in connection with the Product, under no circumstances will Company be liable in any way to User or any third person for any User Content, including, without limitation, for any loss or damage of any kind incurred as a result of use of or exposure to the User Content. User agrees not to use the Product to or otherwise:
i. upload, post, email or otherwise transmit any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, slanderous, vulgar, obscene, pornographic, profane, indecent, sexually explicit, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable or intended to offend any person based on a person’s race, ethnic heritage, national origin, sex, sexual orientation or preference, age, physical or mental illness or disability, marital status, employment status, housing status, religion or other characteristics as may be defined by applicable civil rights laws or that is otherwise objectionable to Company in its sole discretion;
ii. harm minors in any way;
iii. impersonate any person or entity, including, but not limited to, a Company employee or representative, moderator, guide or host or falsely state or otherwise misrepresent its affiliation with a person or entity;
iv. forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Product;
v. upload, post or otherwise transmit any User Content that User does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
vi. upload, post or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
vii. upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” multi-level marketing opportunities, franchises or any other form of solicitation;
viii. upload, post or otherwise transmit any material or User Content that contains software viruses or any other malicious code, files or programs designed to interrupt, disrupt, destroy, damage or limit the functionality of any computer software or hardware or telecommunications equipment or violate the security of any computer network, crack passwords or security encryption codes or otherwise attempt to gain unauthorized access to any other computer system;
ix. attempt to cause the traffic levels of the software or other networks to rise without reason or for malicious purpose, including, without limitation, through transmission of large files to people for malicious purposes, “mailbombing,” transmissions intended to raise the costs of another’s access through excessive traffic levels, denial of service or similar attacks, repeatedly sending the same content to another person for the purpose of harassment or otherwise causing an unreasonable increase in traffic levels or usage of the Product as solely determined by Company;
x. disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other Users of the Product are able to type or otherwise act in a manner that negatively affects other Users’ ability to engage in meaningful exchanges;
xi. interfere with or disrupt the servers or networks connected to the Product, or disobey any requirements, procedures, policies or regulations of networks connected to the Product;
xii. intentionally or unintentionally violate any applicable local, state, national or international law;
xiii. “stalk,” harass, threaten invade the privacy of or engage in predatory behavior towards another User of the Product or any other person; or
xiv. collect, store or use personal data about other users.
User’s privilege to use the Product depends on User’s compliance with the this Agreement. Company may revoke User’s privileges or take any other appropriate measures to enforce the terms of this Agreement, in its sole and absolute discretion, if violations are brought to Company’s attention. Company is not, and does not, undertaking any obligation or liability relating to any User Content posted or activities undertaken utilizing the Product.
Product. The Company Intellectual Property Rights (as defined below) are the valuable, confidential property of Company and its licensors. United States and international intellectual property laws protect such Company Intellectual Property Rights. User may use the Product as permitted herein and may not otherwise modify, adapt, translate, or create derivative or collective works based on the Product without the prior written consent of Company. As between the parties, Company owns all right, title, and interest in and to the Product, with the exception of the User Content, and including, without limitation, all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative or collective works based thereon and all documentation thereto, all copyrights, trademarks, trade secrets, patents and goodwill therein, and all images, photographs, illustrations, graphics, audio and video created by or for Company therein (collectively, the “Company Intellectual Property Rights”).
User Content. User shall be solely responsible for the posting or provision of User Content, where applicable. In connection with the User Content, User affirms, represents and warrants that User owns or has the necessary licenses, rights, consents and permissions to use and authorize Company to use all proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Product. User retains all ownership rights in User Content. By posting or providing User Content to Company, User hereby grants Company a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, modify, edit, adapt, publish, translate, incorporate, prepare derivative and collective works utilizing, display and perform the User Content in any form, medium or technology now known or later developed throughout the universe. In addition, User hereby waives (or warrants that the owner of such User Content has expressly waived) any and all “moral rights” in the User Content as to any of the foregoing rights and licenses granted to Company. Company does not permit infringing activities or infringement of intellectual property rights using its Product. Company reserves the right to remove or disable User Content without prior notice.
Copyright Violations. It is the policy of Company to terminate access and/or account of any User who infringes the copyrights or intellectual property rights of others and to expeditiously remove or disable access to the alleged infringing material or content, including User Content, if Company is given proper notice of the infringement or infringing conduct by the copyright owner. If User believe any materials or content available on or through the Product infringe User’s copyright, User may request removal of those materials from the Product by contacting Company’s designated copyright agent (identified below) and providing the following information:
Identification of the copyrighted work that User believes to be infringed. Please describe the work and where possible include a copy or the location (e.g., URL) of an authorized version;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
User’s name, address, telephone number and (if available) e-mail address.
A statement that User has a good faith belief that the use of the materials User notifies Company about is not authorized by the copyright owner, its agent or the law.
A statement that the information that User has supplied is accurate and that “under penalty of perjury” User is the copyright owner or is authorized to act on the copyright owner’s behalf.
A signature or the electronic equivalent from the copyright holder or authorized representative.
Copyright Notices should be submitted to:
745 Atlantic Ave.
Boston, MA 02111
Trademarks. Any logo and any other trademarks owned or controlled by Company, whether or not included in the Product and any logos relating to the foregoing are trademarks or service marks of Company and its licensors (collectively, the “Company Trademarks”). All other trademarks, service marks and logos used in the Product are the trademarks, service marks or logos of their respective owners.
Use of Intellectual Property. Except as otherwise expressly permitted by Company, User may not copy, reproduce, republish, store, upload, post, transmit, analyze, adapt, reformat, print, distribute, commercially exploit or publicly display the Company Intellectual Property Rights, the Product, the Company Trademarks or the Confidential Information (as defined below) or any portion thereof in any manner whatsoever without the prior written consent of Company. User may not remove, reproduce, alter, use, display, modify, copy or obscure any copyrighted material, trademark, service mark, legal or other proprietary notices in or on any portions of the Company Intellectual Property Rights, the Product, the Company Trademarks, the Confidential Information or any User Content or any portion thereof.
This Agreement, any other agreement between User and Company, and any other purchase terms set forth by Company at the time of purchase shall govern purchases of Company Content and/or use of the Product. User understands that by purchasing or accessing Company Content, or accessing the Product, User may encounter content that may be deemed offensive, indecent or objectionable, and such Company Content may or may not be identified as such. User agrees that Company shall have no liability to User for Company Content that may be found to be offensive, indecent or objectionable. Company Content types (including categories, sub-categories, and genres) and descriptions are provided for convenience, and Company does not guarantee their accuracy. Prices and availability of products are subject to change without notice. Errors will be corrected where discovered, and Company reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions including after an order has been submitted and whether or not the order has been confirmed and your payment method accepted and charged.
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated as set forth herein. This Agreement will terminate automatically without notice to User from Company if User fails to comply with any provision of this Agreement, and may be terminated by Company in its sole and absolute discretion. User may terminate this Agreement at the end of the then current term (where a term is applicable) and by terminating access to and removing the Product and all Company Content and notifying Company. Upon termination, User shall terminate use of the Product and destroy any copies of the Product in User’s possession. Except as expressly granted herein, User shall not be entitled to any refund on any portion of any fees or other charges paid in connection with this Agreement. Company reserves the right to discontinue or suspend any aspect of or access to the Product at any time. Company will terminate a User’s access to the Product if, under appropriate circumstances, such User is determined to be infringing another’s intellectual property or other rights.
Disclaimer of Warranties
THE PRODUCT IS PROVIDED “AS IS,” “WHERE IS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE PRODUCT IS AT USER’S SOLE RISK. COMPANY DOES NOT WARRANT THAT USER’S USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE ACCURACY OF ANY USER CONTENT OR AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE PRODUCT. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION, ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING, TITLE, NON-INFRINGEMENT OR TIMELINESS, SUITABILITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE PRODUCT OR USER CONTENT. USER IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN IN RELIANCE ON THE PRODUCT OR ANY INFORMATION OR USER CONTENT THEREIN, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE INFORMATION. ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY, AND OTHER LEGAL RIGHTS MAY BE GRANTED IN SUCH JURISDICTIONS.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER COMPANY NOR ANY OF ITS LICENSORS, AFFILIATES OR SUBSIDIARIES SHALL BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE PRODUCT, THE USER CONTENT, OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE PRODUCT OR USER CONTENT, ANY CHANGES TO OR INACCESSIBILITY OF THE PRODUCT, ANY INACCURACY OR INCOMPLETENESS OF THE USER CONTENT OR INFORMATION CONTAINED IN THE PRODUCT, ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE PRODUCT OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE PRODUCT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER COMPANY’S NOR ANY OF ITS AFFILIATES OR SUBSIDIARIES’ TOTAL LIABILITY FOR DIRECT DAMAGES SHALL EXCEED THE TOTAL FEES PAID, IF ANY, BY USER TO COMPANY HEREUNDER. IF USER IS DISSATISFIED WITH THE PRODUCT, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE PRODUCT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 8.
COMPANY IS NOT PROVIDING LEGAL OR TAX ADVICE, IS NOT A PROVIDING ADVICE OR GUIDANCE OR AN INSURER WITH REGARD TO PERFORMANCE OF THE PRODUCT OR USER CONTENT. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE PRODUCT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. USER AGREES TO ASSUME THE RISK FOR: (I) ALL LIABILITIES DISCLAIMED BY COMPANY CONTAINED HEREIN; AND (II) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
USER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT COMPANY SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING IS BORNE SOLELY BY USER. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, AND OTHER LEGAL RIGHTS MAY BE GRANTED IN SUCH JURISDICTIONS.
User agrees to indemnify, hold harmless and defend Company, any of its licensors, affiliates or subsidiaries and any members, officers, employees and agents of the foregoing, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement or User’s violation of the terms and conditions thereof; (b) User’s use of the Product, including any data, User Content, communication or work transmitted or received by User; (c) any unacceptable use of the Product by User or through User’s account, including, without limitation, any statement, data or User Content posted, made, transmitted or republished by User which is prohibited as unacceptable under this Agreement; (d) gross negligence, fraud or any intentional or negligent act or omission of User; (e) User’s violation of any third party rights, including, without limitation, any intellectual property or privacy right; and (f) any claim that any User Content posted by User caused damage to a third party.
Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
Amendment. No amendment or modification of this Agreement will be binding unless in writing and signed by Company. The terms of this Agreement will govern any upgrades to the Product provided by Company that replace or supplement the original Product, unless such upgrade is accompanied by a separate or substitute agreement in which case the terms of that agreement will govern.
Assignment. User shall not assign any of its rights, duties or obligations under this Agreement without the prior written consent of Company, and any attempted assignment or delegation without such consent shall be void and of no effect.
Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
Notice. Unless otherwise provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or e-mail to either party’s last known post office, facsimile or e-mail address, respectively. User hereby consents to notice by email. Unless otherwise provided in this Agreement, all notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
Binding Arbitration. Any dispute, except for emergency injunctive relief, that the parties fail to resolve by shall be resolved by binding arbitration, which shall be conducted in the Commonwealth of Massachusetts, County of Suffolk. The arbitration shall be conducted in accordance with the Commercial Rules of the American Arbitration Association (“AAA”) which shall have jurisdiction over any dispute under this Agreement between User and Company, and shall be governed by the Federal Arbitration Act, 9 U.S. Code 1 et seq. Either party may commence arbitration by serving a written Demand for Arbitration on the other party. The parties shall attempt to agree on an arbitrator, but if the parties fail to reach such agreement within 20 days after the Demand for Arbitration is served, either party may request appointment of the arbitrator by the AAA of an arbitrator with relevant expertise. The person so appointed by AAA shall serve as the arbitrator for resolution of the dispute. If that person is disqualified for any reason, the AAA office shall appoint a substitute arbitrator. Each party shall bear its own costs and expense, including attorneys’ fees and expenses. Judgment on the arbitration award may be entered in any court having jurisdiction.
Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the internal laws of the Commonwealth of Massachusetts without regard to its choice of law principles. The state and/or federal courts located in the Commonwealth of Massachusetts, County of Suffolk shall have exclusive jurisdiction to hear any emergency equitable relief request filed by a party to this Agreement.
JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THE AGREEMENT. EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court or arbitrator, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts located in or serving Boston, Massachusetts, USA.
Action. No action arising under this Agreement may be brought by User more than one (1) year after the cause of action has accrued.
Equitable Relief. The parties agree that breach of the provisions of this Agreement, including, without limitation, the unauthorized use or duplication of the Product, would cause irreparable harm and significant injury to Company which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Company has the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies Company may have for User’s breach of this Agreement.
Attorney’s Fees. If any action in law or in equity or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
Force Majeure. Neither party shall be responsible or liable for failure to fulfill its obligations under this Agreement (except for payment of any fees) due to any major unforeseeable event beyond the control of, and not caused by the fault or negligence of, such party or its agents, including, without limitation, an act of God, fire, earthquake, flood, explosion, action of the elements, war invasion, terrorism, insurrection, riot, mob violence, sabotage, inability to procure equipment, facilities, materials or supplies in the open market, failure of power, failure of transportation, failure of telecommunications systems or infrastructure, strike, lockout, action of labor unions, condemnation, requisition, law or order of government, civil or military authorities; provided that the party failing to perform in such event shall promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.
Survival. The terms and provisions of Sections 2-11, inclusive, shall survive any termination or expiration of this Agreement.
Export Restrictions. Licensee agrees to comply with all U.S. and foreign export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and successor legislation, and the Export Administration Regulations passed by the Department of Commerce. Licensee expressly agrees that Licensee shall not export, directly or indirectly, re-export, divert, or transfer the Software or any direct product thereof to any destination, company or person restricted or prohibited by U.S. export controls.
Entire Agreement. This Agreement, in conjunction with any other written agreement entered into between the parties, constitutes the complete and exclusive statement of the agreement between the parties with respect to the Product and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Product.