BeyondAffiliate USER AGREEMENT
Last Modified: [01/26/2016]
BY SIGNING UP TO BeyondAffiliate’S SERVICES, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, WHICH CONSTITUTE A LEGALLY ENFORCEABLE SOFTWARE AS A SERVICE (“SaaS”) AGREEMENT GOVERNING YOUR USE OF THE PANTHER SOFTWARE ONLINE SERVICE (THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18, HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE, YOU HAVE THE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, AND YOU ARE NOT A DIRECT COMPETITOR OF OURS (OR OTHERWISE REPRESENT, DRECTLY OR INDIRECTLY, THE INTERESTS AF A DIRECT COMPETITOR). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18 AND HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE.
AS USED IN THIS AGREEMENT, THE TERM “GRANTEE” MEANS THE ENTITY OR PERSON RESPONSIBLE FOR THE ACCOUNT ESTABLISHED PURSUANT TO THIS AGREEMENT AND EACH USER ACCESSING THE SERVICE BY MEANS OF A VALID ACCOUNT ESTABLISHED BY GRANTEE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, THE TERM “GRANTEE” MEANS ALL EMPLOYEES OF YOUR COMPANY WHO ARE GIVEN ACCESS TO THE SERVICE. IF YOU DO NOT HAVE THE REQUISITE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, OR IF YOU ARE A DIRECT COMPETITOR OF OURS (OR REPRESENT THE INTERESTS, DIRECTLY OR INDIRECTLY, OF A DIRECT COMPETITOR) YOU MAY NOT USE THIS SERVICE.
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As used in this Agreement:
"Agreement" means this User Agreement, the original Sign up Form, any subsequent billing changes, whether written or submitted online via BeyondAffiliate’s service, and any materials available on http://www.BeyondAffiliate.com specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by BeyondAffiliate from time to time in its sole discretion pursuant to the provisions of this Agreement;
"Billing Automation" means the software feature enabling Grantees to have access to edit their billing information, update the number of users, and add/edit payment methods;
"BeyondAffiliate Order Center" means the BeyondAffiliate online application that allows the Authorized Administrator designated by Grantee to, among other things, add additional Users to the Service;
"Authorized Administrator(s)" means the person(s) designated by Grantee to register for the Services online using the BeyondAffiliate Order Center or by executing written Order Forms and to create User accounts and otherwise administer Grantee’s use of the Service;
"Client Data" means any of Grantee’s customer’s or other individual’s personal data, credit data, biometric data, transaction data, system data, other data, information or material that Grantee accepts, utilizes, processes or collects from customers or individuals and/or submits to BeyondAffiliate in the course of using the Service;
"Content" means the information, documents, software, products and services made available under this Agreement to Grantee and any User in connection with their use of the Service;
"BeyondAffiliate SaaS Technology" means all of the proprietary technology of BeyondAffiliate (including software, hardware, products, business concepts, and processes, logic algorithms, graphical user interfaces (GUI), techniques, designs and other tangible or intangible technical material or information) made available to Grantee by BeyondAffiliate in providing the Service;
"Effective Date" means the earlier of either the date this User Agreement is accepted by Grantee as indicated by Grantee’s clicking any of the Signup buttons, including “GET FREE ACCESS”, “TRY IT TODAY”, or “SIGN UP”, from any page on http://BeyondAffiliate.com or the date Grantee begins using the Service;
"Hosting Server Provider" means any third party hosting computer server provider(s) where the Services reside.
"Intellectual Property Rights" means all rights, title and interest in and to the BeyondAffiliate SaaS Technology, the Content, the Service and all copyrights, patents, trade secrets, trademarks, service marks or other intellectual property or proprietary rights and any corrections, bug fixes, improvements, enhancements, updates, releases, or other modifications, including custom modifications made by BeyondAffiliate relating thereto, and the media on which same are furnished;
"Order Form(s)" means the form evidencing the initial designation of Service and any subsequent Order Forms, specifying, among other things, the edition of the Service selected and covered by the Grant (as defined in Section 2.1, below), the Term, the number of Users, the applicable Use Fee (as defined below), the billing period, and other services and Charges (as defined below), as agreed to between BeyondAffiliate and Grantee, each such Order Form to be incorporated into and to become a part of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail;
"Service(s)" means the specific edition of BeyondAffiliate, or other offerings developed, operated, and maintained by BeyondAffiliate, accessible via http://www.BeyondAffiliate.com or another designated web site or IP address, or ancillary services rendered to Grantee by BeyondAffiliate, to which Grantee is being granted access under this Agreement;
"Term(s)" means the period(s) during which a specified number of Users have the right to use the Service pursuant to the Grant and as designated on an Order Form(s);
"User(s)" means Grantee’s employees, representatives, consultants, contractors or agents who are authorized under the Grant made by this Agreement to gain access to and use the Service and who have been supplied User identifications and passwords by Grantee (or by BeyondAffiliate at Grantee’s request).
2. GRANT OF RIGHTS; TERM AND RESTRICTIONS
2.1 Grant of Rights. Subject to Grantee's compliance with the terms and conditions of this Agreement and solely during the Term of this Agreement, BeyondAffiliate hereby grants Grantee a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to use the Service solely for Grantee’s own internal business purposes ("Grant").
2.2 Term of Grant. The Grant shall be for the Term Grantee selects, either the monthly plan or yearly, which shall not be less than one (1) month, and shall commence on the Effective Date ("Initial Term"), and will be automatically renewed for successive terms of the same period of time (each a "Renewal Term") unless terminated by either party in accordance with the terms of this Agreement.
2.3.1 BeyondAffiliate and its licensors reserve all rights not expressly granted to Grantee. The Grant cannot be shared or used in any Users other than those referenced in the Order Form referenced above. However, the Grant may be reassigned from time to time to new Users that are replacing former Users which have terminated and no longer use the Service, so long as Grantee obtains the prior written consent of BeyondAffiliate with respect to any such reassignment, which consent shall not be unreasonably withheld. The Grant is conditional on Grantee’s continued compliance with this Agreement and will terminate if Grantee does not comply with any term or condition of this Agreement.
2.3.2 Grantee shall not, and shall not attempt to, directly or indirectly:
(i) License, grant, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or any part of its Content in any way;
(ii) Use the Service to submit, store, transmit or process malicious code, worms or viruses;
(iii) Use the Service to submit, store, transmit or process Client Data that is or may be:(a) threatening, harassing, degrading, hateful or intimidating; (b) libelous or defamatory; (c) fraudulent, tortious or unlawful; (d) obscene, indecent, pornographic or otherwise objectionable; or (e) infringing of any person’s rights, any applicable laws or Grantee’s obligations to any third party;
(iv) Use the Service to submit, store, transmit, process, or otherwise disclose Client Data.
(v) Use the Service to submit, store, transmit or process Client Data that would violate state or federal privacy laws, or in a way that would give rise to criminal or civil liability or that encourages unlawful activity;
(vi) Use the Service to submit, store, transmit or process User data that would violate state or federal labor laws, or in a way that would give rise to criminal or civil liability or that encourages unlawful activity;
(vii) Gain unauthorized access to the Service or to the systems or networks of BeyondAffiliate or its customers;
(viii) Except as otherwise expressly permitted by this Agreement, reproduce, duplicate, copy, sell, resell, rent, sublicense, transfer, lease, make available or exploit the Service (or any part of the Service), use of the Service, or access to the Service;
(ix) Publish or disclose any benchmarks of the Service to third parties;
(x) Interfere with or disrupt the integrity or performance of the Service or third-party content contained therein;
(xi) Impersonate any person or entity or misrepresent Grantee’s affiliation with any person or entity in connection with the Service;
(xii) Modify, alter, tamper with, repair, or create derivative works of any Content or any software included in the Service;
(xiii) Reverse engineer, disassemble, or decompile the Service or apply any other process or procedure to derive the source code of any software included in the Service;
(xiv) Access, use or attempt to modify the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas;
(xv) Copy, frame, mirror or link to any part or content of the Service, other than on Grantee’s own intranets or otherwise solely for Grantee’s own internal business purposes;
(xvi) Access the Service in order to (a) build a competitive product or service, (b) build a product or service using ideas, features, functions, or graphics similar to those of the Service, or (c) copy any ideas, features, functions, or graphics of the Service;
(xvii) Remove any copyright, trademark or other proprietary rights notice from the Service; or
(xviii) Provide access to the Service to a third party(-ies) who does or attempts to do any of the foregoing.
3. THE SERVICE
3.1 Use of the Service. BeyondAffiliate will provide Grantee with use of the Service, including a browser interface and data encryption, transmission, access and storage in the edition selected by Grantee in the Order Form.
3.2 Availability of the Service. BeyondAffiliate makes no guarantees as to the continuous availability of the Service or of any specific features of the Service. BeyondAffiliate may change or discontinue the Service or change or remove any features or functionalities of the Service from time to time. If Grantee does not agree to any such change, its only recourse is to terminate this Agreement in accordance with Section 12.
3.3 Access to the Service.
3.3.1 BeyondAffiliate operates a web Portal (“Portal”) to provide you with access to the Service, which will be available to Grantee through the Internet via a secured, password-protected computer interface or access code. Grantee agrees to access the Portal at its own risk and that it is solely responsible for ensuring that the method of access, content and scope, and your use off the Service is compatible with its own business needs and requirements.
3.3.2 Following the Effective Date of this Agreement and Grantee’s completion of any applicable set-up forms and other documents that may be required by BeyondAffiliate, BeyondAffiliate will electronically deliver, or otherwise make available, to Grantee instructions on how to establish a connection with the Portal for access to and use of the Service.
3.3.3 Grantee agrees that only the designated User(s) will be permitted to access the Services and that Grantee is responsible for any unauthorized access. In addition, Grantee shall assume full responsibility that its Users abide by the terms and conditions of this Agreement and Grantee understands and agrees that any passwords and access codes are for use only by Grantee and its designated User(s) and are strictly prohibited from being shared with other individuals or entities. Finally, Grantee agrees that the unauthorized sharing of any passwords and/or User access codes may cause BeyondAffiliate irreparable harm and that, in addition to BeyondAffiliate’s right to pursue available remedies including, but not limited to injunctive relief and the collection of monetary damages, such breach shall, at BeyondAffiliate’s option, result in the immediate suspension or termination of this Agreement and Grantee’s access to the Services. Grantee agrees to defend, indemnify and hold harmless BeyondAffiliate from any and all losses, costs, damages, liabilities and expenses (including, without limitation, reasonable attorney’s fees) incurred or arising from any claim, demand or cause of action relating to any breach of the promises made to BeyondAffiliate in Sections, 3.3.1, 3.3.2 and this Section 3.3.3.
3.3.4 BeyondAffiliate will use commercially reasonable efforts to maintain the active status of the Portal, the Service, and any Hosting Server Provider computer servers, but Grantee agrees that BeyondAffiliate will not be liable for any loss, cost, damage or expense resulting from or relating to your lack of access to the Portal or the Services including, without limitation: (i) times that we, our Licensor and/or our Hosting Server Provider may be updating or maintaining the Services, the Software, and/or any hardware; and (ii) during such times as the Portal and/or the Services may be inaccessible for any reason (or for no identifiable reason) whatsoever, within or outside of our control.
3.3.5 Grantee agrees that BeyondAffiliate does not and will not provide Grantee with hardware or software necessary for Grantee to gain access to the Portal and the Services. Rather, Grantee is solely responsible for: (a) obtaining and maintaining such hardware and software (including, but not limited to, acquiring, installing and maintaining all telephone equipment, modems, routers, scanning devices, and other hardware and communication equipment) necessary to gain access to the Services, and the performance and security of such devices; (b) contracting with an internet service provider or telecommunications carrier for services necessary to establish your connection and access to the internet, the Portal, and the Services. In addition, Grantee agrees that it is solely responsible for all costs, charges and expenses associated with the foregoing.
4. INTERNET DELAYS
The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. BeyondAffiliate is not responsible for any delays, failures, or other damage resulting from such problems.
BeyondAffiliate shall provide forum support at http://support.BeyondAffiliate.com. Email and telephonic requests for hard-copy documentation, upgrades, enhancements, and service modifications will not be granted, unless Grantee specifically contracts for such materials and/or services. The Service will be unavailable from time to time for routine maintenance. Other support may be excluded on public holidays, which are New Year’s Day, Thanksgiving Day, Christmas Eve and Christmas Day.
6. GRANTEE'S RESPONSIBILITIES
Grantee is responsible for all activity occurring under Grantee’s User accounts and for Users’ compliance with the terms and conditions of this Agreement. Grantee shall fully comply with all applicable local, state, federal, and foreign laws, treaties, rules, and regulations in connection with Grantee’s use of the Service, including, without limitation, those related to data privacy, data security, breach notification, international communications, and the collection, transmission, processing, cross-border transfer, and disclosure of Client Data, including technical and personal data. Grantee shall: (i) notify BeyondAffiliate immediately of any known or suspected violation of any law relating to Client Data, (ii) notify BeyondAffiliate immediately of any unauthorized use of any password or account or any other known or suspected breach of Service security; and (iii) report to BeyondAffiliate immediately and use reasonable efforts to stop immediately, any copying or distribution of Content that is known or suspected by Grantee or any User under this Grant.
7. CLIENT DATA
7.1 Client Data. Grantee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of any of its Client Data and agrees that any support provided by BeyondAffiliate in the provision of the Services shall not be construed by grantee of the accuracy, quality, integrity, legality, reliability, or appropriateness of any of its Client Data.
7.2 Grantee Responsibilities. BeyondAffiliate shall not be responsible or liable for:(i) the deletion, correction, destruction, and/or damage, to any Client Data; or (ii) Grantee’s or User’s collection, use, storage, cross-border transfer, or disclosure of the Client Data.
7.4 Review of Client Data. BeyondAffiliate does not have any obligation to monitor or review Client Data for any purpose. Notwithstanding the foregoing, BeyondAffiliate reserves the right to take steps it believes are reasonably necessary to enforce and/or verify compliance with this Agreement. Without limiting the foregoing, BeyondAffiliate may, without notice (unless required by law) or liability to Grantee, access, use and/or preserve Grantee’s account information and/or Client Data and disclose Grantee’s account information and/or Client Data to law enforcement authorities, government officials and/or any other party as BeyondAffiliate reasonably believes necessary or appropriate: (i) if BeyondAffiliate is required to do so to comply with legal process or governmental request, (ii) to enforce this Agreement, (iii) to detect or prevent security, fraud or technical issues, (iv) to protect the rights, property and/or safety of BeyondAffiliate, its users, Grantee, or any other person, or (v) as permitted by law. BeyondAffiliate also reserves the right to notify the appropriate authorities, without prior notice to Grantee, if BeyondAffiliate reasonably believes that Grantee’s Client Data violates any applicable law. GRANTEE agrees to HOLD BeyondAffiliate HARMLESS FROM and against any losses, costs, damages liabilities and expenses, and waives (to the extent permitted by applicable law) any claims, GRANTEE or other third party may have against BeyondAffiliate, resulting from any disclosure, investigation or act or omission of BeyondAffiliate in the course of conducting or cooperating with an inspection as set forth in this section. GRANTEE FURTHER AGREES TO KEEP THE FACT AND DETAILS OF ANY SUCH INSPECTION CONFIDENTIAL, UNLESS GRANTEE IS COMPELLED BY APPLICABLE LAW TO DISCLOSE SUCH FACT and/or details.
8. INTELLECTUAL PROPERTY OWNERSHIP
8.1.Ownership. BeyondAffiliate (and its licensors, where applicable) owns all rights, title and interest, including all related Intellectual Property Rights, in and to the BeyondAffiliate SaaS Technology, the Content, the Service, and any suggestions, ideas, improvements, enhancement requests, feedback, recommendations or other information provided by Grantee or any User relating to the Service. The BeyondAffiliate name, the BeyondAffiliate logo, and the product names associated with the Service are trademarks of BeyondAffiliate or third parties, and no right or license is granted to use them. This Agreement is not a sale and does not convey to Grantee any rights of ownership in or related to the Service, the BeyondAffiliate SaaS Technology, the Content or the Intellectual Property Rights owned by BeyondAffiliate. Grantee acknowledges that, except as specifically provided under this Agreement, no other right, title, or interest in these items is granted.
8.2 Use of Trademarks and other Intellectual Property. Grantee agrees that BeyondAffiliate may use Grantee’s name, trademarks, service marks, and/or logos in any advertising or promotional materials for the Service or BeyondAffiliate.
9. THIRD PARTY INTERACTIONS AND LINKS
During use of the Service, Grantee or its User(s) may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between Grantee and the applicable third-party. BeyondAffiliate and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchases or promotions between Grantee and any such third-party. BeyondAffiliate does not endorse any sites on the Internet that are linked through the Service. BeyondAffiliate provides these links to Grantee only as a matter of convenience, and in no event shall BeyondAffiliate or its licensors be responsible for any content, products, or other materials on or available from such sites. The Grant does not provide any license or agreement that may be required by third-party providers of ancillary software, hardware, or services prior to Grantee’s use of or access to such software, hardware, or services.
10. PAYMENT OF FEES AND CHARGES
Grantee shall pay all fees or charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The fee for the Grant (“Use Fee”) will be equal to the Use Fee currently in effect under the current BeyondAffiliate schedule of Use Fees for the edition selected in the Order Form. If Grantee is a monthly subscriber, the initial Use Fee will be payable the same day as an order, and, thereafter, BeyondAffiliate will automatically bill Grantee’s credit card, debit card or bank account on the same day each month as the day of the first payment. If Grantee is a yearly subscriber, the fees will be billed annually and are non-refundable. New accounts may be eligible for a seven (7)-day trial period, after which Grantee will be charged according to the terms of this Section. Eligible “new” accounts are those included in new separate accounts in BeyondAffiliate’s subscriptions for BeyondAffiliate Account Management, Billing, and CRM. Grantee is responsible for paying all User Fees ordered for the entire Term, without regard to whether all Users are active. Grantee must provide BeyondAffiliate with a valid credit card, debit card, bank account number or approved purchase order as a condition to signing up for the Service. An Authorized Administrator may add additional Users by executing an additional written Order Form or using the BeyondAffiliate Billing page online. Added Users will be subject to the following:
(i) The use Term of added Users will be contemporaneous with the Term of the existing Grant;
(ii) Users added in the middle of a billing period will be charged in full for that billing month. A pro-rated credit will be added for the unused days of the previous billing period.
(iii) Users added in the middle of a billing period will be charged in full for that billing month and will reset the billing period (annually/monthly) to start at the date of change. A pro-rated credit will be added for the unused days of the previous billing period.
The current BeyondAffiliate User pricing model is based on a flat rate, which per-User fee may be changed from time to time at BeyondAffiliate’s sole discretion. Information is available at https://app.BeyondAffiliate.com/billing/
BeyondAffiliate will charge any software customization fees as mutually agreed upon in writing mutually by BeyondAffiliate and Grantee.
BeyondAffiliate reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days’ prior notice to Grantee. The Use Fee for a renewal Grant will be equal to the number of total users then in effect, times the User Fee in effect at the time of renewal. Charges for other services (“Charges”) will be made on an as-quoted basis. The Use Fee and Charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Grantee shall be responsible for payment of all such taxes, levies, or duties, excluding only federal or state taxes based solely on BeyondAffiliate’s income.
If Grantee updates its payment information, BeyondAffiliate will charge the latest account provided by Grantee. Grantee represents that Grantee has the legal right to use any payment account that Grantee uses to purchase from BeyondAffiliate. Grantee agrees to update billing and account information within three (3) business days of any change to applicable payment information, as well as to Grantee’s legal name, street address, e-mail address, and the names and telephone numbers of an authorized billing contact and Authorized Administrator. If the contact information Grantee provides is false or fraudulent, BeyondAffiliate reserves the right to terminate Grantee’s access to the Service, in addition to any other legal remedies. If Grantee believes that the fees or Charges to Grantee’s account are incorrect, Grantee must contact BeyondAffiliate in writing within forty-five (45) days of the date of the charge in question, to be eligible for consideration to receive an adjustment or credit. All payments shall be in United States currency and are final. BeyondAffiliate will not provide full or partial refunds.
In the event of termination of this Agreement, Grantee agrees to pay the balance due on Grantee’s account (plus any applicable late payment charges). Grantee agrees that BeyondAffiliate may charge such unpaid fees and Charges to Grantee’s credit card, debit card, or bank account, or otherwise bill Grantee for such unpaid fees and Charges.
11. NON-PAYMENT AND SUSPENSION
11.1 Suspension / Termination for Delinquent Accounts.
BeyondAffiliate reserves the right to suspend or terminate this Agreement and Grantee’s access to the Service immediately if Grantee’s account becomes delinquent or Grantee is otherwise unable to provide proper payment. In the event a Grantee’s account is suspended as a result of non-payment, a $25 reactivation fee will be applied upon the reactivation of the account, plus, to the fullest extent permitted by law, all expenses and legal fees incurred by BeyondAffiliate while collecting fees and Charges from Grantee. Grantee agrees that, if Grantee’s use of the Service is suspended but not terminated, Grantee will be obligated for and agrees to pay the Use Fee for the number of Users for the balance of the full Term. BeyondAffiliate reserves the right to impose a reconnection fee in the event Grantee’s rights are suspended and thereafter requests access to the Service. BeyondAffiliate will charge a $25 reconnection fee for each suspended or deactivated user, should BeyondAffiliate be asked by Grantee to reactivate a specific user and BeyondAffiliate so agrees. Grantee agrees and acknowledges that BeyondAffiliate has no obligation to retain Client Data and that such Client Data may be irretrievably deleted if Grantee’s account is delinquent.
11.2 Late Payment Charges. Invoices and accounts that are not paid in full within fifteen (15) days of the applicable due date are subject to a late payment charge equal to ten percent (10%) of the aggregate Use Fee then due or the maximum charge permitted by applicable law, whichever is lower.
11.3 Increases in Reactivation, Reconnection and Late Payment Fees. The foregoing reactivation and reconnection fees and late payment charges are subject to increase by BeyondAffiliate at any time, with or without prior notice to Grantee, to reflect BeyondAffiliate’s then current policies, procedures and charges.
12.1 Termination for Convenience. BeyondAffiliate may terminate this Agreement, or reduce the number of Users, effective upon the expiration of the then current Term, by notifying Grantee in writing at least five (5) business days prior to the end of the current Term. Grantee may terminate this Agreement, update billing information, or reduce the number of users, effective upon the expiration of the then current Term, by contacting BeyondAffiliate at 1-800-856-8729 at least five (5) business days prior to the end of the current Term.
12.2 Termination for Cause. BeyondAffiliate may, in its sole discretion, immediately suspend or terminate Grantee’s password, account and use of the Service if BeyondAffiliate believes in its sole discretion that Grantee or any User has breached any provision of this Agreement.
12.3 Termination of Free Accounts. BeyondAffiliate may terminate a free account at any time in its sole discretion, with or without prior notice to Grantee.
12.4 Access to Client Data Upon Termination. In the event this Agreement is terminated (other than by reason of Grantee’s breach), BeyondAffiliate will make available to Grantee a file of the Client Data within ninety (90) days of termination if Grantee so requests in writing at the time of termination. Grantee agrees and acknowledges that BeyondAffiliate has no obligation to retain the Client Data, and may delete, without incurring any liability, such Client Data, on the ninety-first (91st) day after termination. BeyondAffiliate reserves the right to withhold, remove and/or discard Client Data, without notice or liability, for any breach of this Agreement by Grantee, including, without limitation, Grantee’s non-payment. Upon termination due to Grantee’s breach, Grantee’s right to access or use Client Data shall immediately cease, and BeyondAffiliate shall have no obligation to maintain or provide any Client Data.
12.5 Survival. Sections 2, 6-8, 11-17, 20-21 and 23 shall survive the termination of this Agreement.
13. REPRESENTATIONS & WARRANTIES
13.1 Representations and Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. BeyondAffiliate represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will be capable of performing substantially in accordance with the online BeyondAffiliate support documentation under normal use and circumstances. In addition to its other representations and warranties contained herein, Grantee represents and warrants that Grantee has not falsely identified Grantee or any User nor provided any false information to gain access to the Service and that Grantee’s billing information is correct.
14. DISCLAIMER OF WARRANTIES
14.1 Services provided on an “AS IS” Basis. THE SERVICE AND ALL CONTENT, INCLUDING, WITHOUT LIMITATION, ANY THIRD-PARTY PRODUCTS OR SERVICES MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED TO GRANTEE STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, OTHER THAN THOSE EXPRESSLY MADE ELSEWHERE IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BeyondAffiliate AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICE WILL MEET GRANTEE’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY GRANTEE THROUGH THE SERVICE WILL MEET GRANTEE’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14.2 Exclusions. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BeyondAffiliate AND ITS LICENSORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. SOLELY TO THE EXTENT SUCH LAW APPLIES TO GRANTEE, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO GRANTEE, AND GRANTEE MAY HAVE ADDITIONAL RIGHTS.
15. LIMITATION OF LIABILITY
15.1 Liability Exclusions. IN NO EVENT SHALL BeyondAffiliate, ITS PARENT ORGANIZATIONS, AFFILIATES, SUBSIDIARIES, AND LICENSORS, OR EACH SUCH ENTITY’S RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (THE “BeyondAffiliate ENTITIES”) BE LIABLE TO GRANTEE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE, SECURITY OF DATA (INCLUDING BUT NOT LIMITED TO CLIENT DATA) IN THE POSSESSION, CONTROL, OR STORAGE OF GRANTEE, GOODWILL, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR CONTENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE (INCLUDING AS A RESULT OF ANY TERMINATION OR SUSPENSION OF GRANTEE’S ACCOUNT), OR FOR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE BeyondAffiliate ENTITIES BE LIABLE FOR NEGLIGENCE, INTENTIONAL MISCONDUCT OR MISHANDLED BUSINESS BY GRANTEE UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, SUCH CONDUCT BETWEEN GRANTEE AND (1) THE IRS OR ANY GOVERNMENT AGENCY; (2) ANY ACCOUNTING AUDIT SERVICE; (3) ANY EMPLOYEE OF GRANTEE; (4) ANY SUPPLIER OF GRANTEE; (5) ANY END CONSUMERS OR USERS OF GRANTEE (INCLUDING IN CONNECTION WITH REFUNDS AND CHARGEBACKS); AND (6) ANY MERCHANT SERVICES.
15.2 Limit of Liability. IN ANY CASE, THE AGGREGATE LIABILITY OF THE BeyondAffiliate ENTITIES UNDER THIS AGREEMENT OR ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY AND DUE FROM GRANTEE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY SUCH LIABILITY.
15.3 Legal Limitations. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. SOLELY TO THE EXTENT SUCH LAW APPLIES TO GRANTEE, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO GRANTEE, AND GRANTEE MAY HAVE ADDITIONAL RIGHTS.
16. MUTUAL INDEMNIFICATION
16.1 Grantee Indemnification. Grantee shall defend, indemnify and hold harmless the BeyondAffiliate Entities from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (i) Grantee’s or any User’s use of the Service or collection, use, disclosure, or cross-border transfer of any Client Data; (ii) Grantee’s or any User’s use of the Service or collection, use, disclosure, or cross-border transfer of any User Data; or (iii) the breach or alleged breach by Grantee or any User(s) of any of Grantee’s obligations, representations, or warranties under this Agreement; provided in any such case, that the BeyondAffiliate Entity(-ies) (a) gives written notice of the claim promptly to Grantee (except that the BeyondAffiliate Entity’s failure to promptly notify Grantee will not limit, impair, or otherwise affect the BeyondAffiliate Entity’s rights under this Section 16 unless Grantee is prejudiced by that failure and then only to the extent of the prejudice); (b) gives Grantee sole control of the defense and settlement of the claim (except Grantee may not settle any claim without the BeyondAffiliate Entity’s prior written consent, unless the settlement includes a full and final release of all claims against the BeyondAffiliate Entity and does not impose any obligations on the BeyondAffiliate Entity); (c) provides to Grantee reasonable assistance (including reasonable access to information in the possession or control of the BeyondAffiliate Entity); and (d) has not compromised or settled such claim.
16.2 BeyondAffiliate Indemnification. BeyondAffiliate shall defend, indemnify and hold harmless Grantee and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with an allegation that the Service directly infringes a copyright, a German. patent issued as of the Effective Date, or a trademark of a third party; provided in any such case, that Grantee (a) promptly gives written notice of the claim to BeyondAffiliate (except that Grantee’s failure to promptly notify BeyondAffiliate will not limit, impair, or otherwise affect Grantee’s rights under this Section 16 unless BeyondAffiliate is prejudiced by that failure and then only to the extent of the prejudice); (b) gives BeyondAffiliate sole control of the defense and settlement of the claim (except BeyondAffiliate may not settle any claim without Grantee’s consent, unless the settlement includes a full and final release of all claims against Grantee and does not impose any obligations on Grantee); (c) provides to BeyondAffiliate all available information and assistance; and (d) has not compromised or settled such claim. BeyondAffiliate shall have no indemnification obligation, and Grantee shall indemnify the BeyondAffiliate Entities, for claims arising from any infringement alleged to be caused by the combination of the Service with any of Grantee’s products, services, hardware, software, and/or business process.
17. LOCAL LAWS AND EXPORT CONTROL
The Service provided on the BeyondAffiliate Service site includes services and uses software and technology that may be subject to German labor and privacy laws, as well as export controls administered by the German Department of Commerce, the German Department of Treasury Office of Foreign Assets Control, and other German agencies and the export control regulations of the European Union. Grantee acknowledges and agrees that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the German Department of Treasury’s List of Specially Designated Nationals or the German, or the European Union, or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are maintained and made available to the public by the relevant government agency, and are subject to change without notice. By using the Service, Grantee represents and warrants that Grantee is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Grantee agrees to comply strictly with all U.S. and the German, and the European Union export laws and assume sole responsibility for obtaining any necessary licenses to export or re-export. The Service provided on the site may use encryption technology that is subject to licensing requirements under the German Export Administration Regulations, and Council Regulation. BeyondAffiliate and its licensors make no representation that the Service is appropriate or available for use in other locations. If Grantee uses the Service from outside Germany, the United States of America and/or the European Union, Grantee is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to Germany, United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
18. MODIFICATION TO TERMS
BeyondAffiliate reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time effective upon posting of an updated version of this Agreement on the Service. Grantee is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Grantee’s consent to such changes. Notwithstanding the foregoing, any changes to this Agreement shall not apply to any dispute between Grantee and BeyondAffiliate arising prior to the effective date of any such change(s).
Except as otherwise provided in this Agreement, this Agreement may not be assigned by Grantee without the prior express written consent of BeyondAffiliate. This Agreement may be assigned without Grantee’s consent by BeyondAffiliate to (i) a parent or subsidiary, (ii) an acquirer of the BeyondAffiliate business or assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
20. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Germany without regard to its conflict of law’s provisions. Should any provision of this Agreement be declared illegal or unenforceable and cannot be modified to be enforceable, such provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect.
21. DISPUTE RESOLUTION
In the event of any dispute among the parties under this Agreement, and if the dispute cannot be settled through negotiation between the parties, such dispute shall be submitted to mediation prior to being filed within the courts of the Germany County. The prevailing party shall be entitled to all attorneys fees and costs from the losing party
22. FORCE MAJEURE
The BeyondAffiliate Entities will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond such entities’ reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
No joint venture, partnership, employment, or agency relationship exists between Grantee or any User and BeyondAffiliate as a result of this Agreement or use of the Service. The failure of BeyondAffiliate to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BeyondAffiliate in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between Grantee and BeyondAffiliate and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Grantee consents to receiving electronic communications and notifications from BeyondAffiliate in connection with Grantee’s use of the Service and this Agreement. Grantee agrees that any such communication will satisfy any legal communication requirements, including that such communications be in writing.
BY SIGNING UP AND USING BeyondAffiliate.COM’S SOFTWARE AS A SERVICE, YOU AGREE TO THE ABOVE TERMS AND CONDITIONS WHICH CONSTITUTE A LEGALLY ENFORCEABLE SaaS AGREEMENT GOVERNING GRANTEE’S USE OF THE SERVICE.
ALL NOTIFICATION TELEPHONE NUMBERS AND ADDRESSES, AS SET FORTH ABOVE, MAY BE CHANGED BY BeyondAffiliate FROM TIME TO TIME, WHICH CHANGES SHALL BE POSTED ON BeyondAffiliate’S WEBSITE.