END USER SUBSCRIPTION AND LICENSE AGREEMENT
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” YOU AGREE TO THESE TERMS AND CONDITIONS.
This Agreement is effective as of the date You click “Accepted and Agreed To” (the “Effective Date”).
1. USE OF THE BEX PLATFORM IN GENERAL.
1.1. Eligibility. You represent and warrant that You are 18 years old or older, and You recognize and agree that You must be 18 years old or older to use the Bex Platform.
1.2. Bex Platform Subscription. During the Term (as defined in Section 9.1 below), You may access and use the Bex Platform. You may reproduce and use Vendor’s standard manual related to use of the Bex Platform (the “Documentation”) solely as necessary to support use of the Bex Platform.
1.3. Bex Platform Revisions. Vendor may revise the features and functions of the Bex Platform at any time.
1.4. Subscription Fees. You agree to pay Vendor the fee set forth in Your order on the dates required therein. Vendor will not be required to refund fees under any circumstances.
2. THE APP.
2.1. License. Vendor hereby grants You a nonexclusive license to reproduce and use one copy of the App (as defined below) on Your computer or mobile device, solely as a component of the Bex Platform, provided You comply with the restrictions set forth below in Section 2.2 (Restrictions on Software Rights). The license in the preceding sentence does not include use by any third party, and You shall not permit any such use. (The “App” means Vendor’s downloadable Bex application. The App is a component of the Bex Platform and is included in references thereto, except in this Article 2 and in any other provision that separately addresses the App.)
2.2. Restrictions on Software Rights. Copies of the App created or transferred pursuant to this Agreement are licensed, not sold, and You receive no title to or ownership of any copy or of the App itself. Furthermore, You receive no rights to the App other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, You shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the App; (b) use the App in any way forbidden by Section 4.1 below; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the App’s source code.
3. YOUR CONTENT AND PRIVACY.
3.1. Permission from You. You grant Vendor permission to access, process and otherwise use Your Content (as defined below) in order to provide Vendor’s products and/or services to You, to track and analyze Your use of the Bex Platform, and make Your Content available to other users of the Bex Platform and other third parties. To the extent that You have intellectual property rights in Your Content, You grant Vendor a world-wide, perpetual, non-exclusive, royalty-free, sublicensable, transferable license to use and prepare derivative works from Your Content for the purposes outlined in this Agreement. You agree that Your Content is not any person’s or entity’s confidential information, including Yours. As between the parties, You retain ownership of your Content. (“Content” means text, images, photos, audio or video files, and other forms of data or communication. “Your Content” means Content submitted or transmitted by You.)
3.2. Rights in Your Content. You represent and warrant that You own Your Content or have received a valid license to Your Content and that submitting or transmitting Your Content to or through the Bex Platform will not violate the rights of any third party, including intellectual property, privacy, or publicity rights. Vendor is under no obligation to review or screen Your Content or other Bex Platform users’ Content.
3.3. Privacy Policy. Vendor may manage any of Your Content containing personally identifiable information as set forth in Vendor’s privacy policy, currently posted at Vendors webpage at ASKBEX.COM (the “Privacy Policy”). The Privacy Policy applies only to the Bex Platform and does not apply to any third party website or service linked to the Bex Platform or recommended or referred to through the Bex Platform by Vendor or other Bex Platform users.
3.4. Risk of Exposure. YOU UNDERSTAND AND AGREE THAT SHARING CONTENT ONLINE INVOLVES RISKS OF UNAUTHORIZED DISCLOSURE OR EXPOSURE AND THAT, IN SUBMITTING YOUR CONTENT TO OR TRANSMITTING IT THROUGH THE BEX PLATFORM, YOU ASSUME THESE RISKS. Vendor offers no representation, warranty, or guarantee that Your Content will not be exposed or disclosed through the Bex Platform or through errors or the actions of third parties.
3.5. Accuracy. Vendor has no responsibility or liability for the accuracy of any Content submitted to or transmitted through the Bex Platform by You, Vendor or another user, including without limitation Your Content.
3.6. Right to Retain, Delete or Suspend Access. You agree that You shall not rely on the Bex Platform for backup or storage of Your Content. Vendor may retain Your Content even if You are no longer using the Bex Platform but is not required to provide copies of Your Content to You. Vendor may permanently delete or erase Your Content or suspend Your access to Your Content through the Bex Platform at any time and for any reason.
3.7. Aggregate & Anonymized Data. Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Your Content with personally identifiable information removed.)
4. YOUR RESPONSIBILITIES & RESTRICTIONS.
4.1. Acceptable Use. You agree to comply with the Vendor’s acceptable use policy currently posted at Vendor’s webpage at ASKBEX.COM (the “AUP”). In addition, You shall not: (a) provide Bex Platform passwords or other log-in information to any third party; (b) share non-public Bex Platform features or Content with any third party; (c) access the Bex Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Bex Platform, or to copy any ideas, features, functions or graphics of the Bex Platform; or (d) engage in web scraping or data scraping on or related to the Bex Platform, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. If Vendor suspects that You have violated the requirements of this Subsection 4.1, Vendor may suspend Your access to the Bex Platform without advanced notice, in addition to other remedies Vendor may have. Vendor is not obligated to take any action against You or any other Bex Platform user or other third party for violating this Agreement, but Vendor is free to take any such action it sees fit.
4.2. Unauthorized Access. You agree to take reasonable steps to prevent unauthorized access to the Bex Platform, including by protecting Your passwords and other log-in information. You shall notify Vendor immediately if You know of or suspect unauthorized use of the Bex Platform or breach of its security.
4.3. Compliance with Laws. In using the Bex Platform, You shall comply with all applicable laws, including laws governing the protection of personally identifiable information and other laws applicable to the protection of Your Content.
4.4. Bex Platform Access. You are responsible and liable for: (a) Your use of the Bex Platform, including unauthorized conduct and conduct that would violate the AUP or the requirements of this Agreement; and (b) any use of the Bex Platform through Your account or passwords, whether authorized or not.
4.5. Communications from Vendor. You consent to receive email from Vendor in connection with Your use of the Bex Platform.
5. IP & FEEDBACK.
5.1. IP Rights in the Bex Platform. Vendor retains all right, title, and interest in and to the Bex Platform, including without limitation the App and all other all software used to provide the Bex Platform and all graphics, user interfaces, logos, trademarks reproduced through the Bex Platform, as well as all Content other than Your Content. This Agreement does not grant You any intellectual property license or rights in or to the Bex Platform or any of its components, except to the limited extent that this Agreement specifically sets forth Your license rights to the App or the Documentation. You recognize that the Bex Platform and its components are protected by copyright and other laws.
5.2. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that You provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting You. You hereby grant Vendor a perpetual, irrevocable right and license to exploit Feedback in any and every way. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.)
6. DISCLAIMERS.
6.1. Warranty Disclaimers. YOU AGREE THAT YOU ACCEPT THE BEX PLATFORM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE BEX PLATFORM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE BEX PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR CONTENT WILL REMAIN PRIVATE OR SECURE; AND (d) VENDOR DISCLAIMS ANY REPRESENTATION OR WARRANTY CONCERNING PRODUCTS OR SERVICES PROVIDED BY OTHER USERS OF THE BEX PLATFORM OR OTHER THIRD PARTIES.
6.2. Interactions with Other Users. You agree that You are solely responsible for Your transactions or other interactions, either through the Bex Platform or through other means of communication, with other users of the Bex Platform. You acknowledge that that Vendor has no liability for any such interactions. Vendor may monitor or become involved in disputes between You and other users of the Bex Platform but has no obligation to do so.
6.3. Third Party Sites and Content. You understand that the Bex Platform may contain or send You links to third party websites, applications or features not owned or controlled by Vendor (“Third Party Sites”), and that links to Third Party Sites may also appear in Content available to You through the Bex Platform. The Bex Platform may also enable interactions between the Bex Platform and a Third Party Site through applications that connect the Bex Platform, or Your profile on the Bex Platform, with a Third Party Site. Through Third Party Sites You may be able to access Content from third parties that Vendor does not control and/or share Your Content with others. YOU ACCESS THIRD PARTY SITES ENTIRELY AT YOUR OWN RISK, AND VENDOR WILL HAVE NO LIABILITY FOR YOUR USE OF OR ACCESS TO THIRD PARTY SITES AND/OR THIRD PARTY CONTENT.)
7. INDEMNIFICATION. You agree to defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging: (a) infringement or violation of third party intellectual property, privacy or publicity rights by Content submitted to or transmitted through the Bex Platform from Your account, including without limitation by Your Content; and (b) claims that use of the Bex Platform through Your account harasses, defames, or defrauds a third party, infringes or misappropriates copyright, trade secret, or other intellectual property rights, or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Your obligations set forth in this Article 7 include retention and payment of attorneys and payment of court costs, as well as settlement at Your expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
8. LIMITATION OF LIABILITY.
8.1. Dollar Cap. VENDOR’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100.00 OR AN AMOUNT EQUAL TO FEES PAID TO VENDOR DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE, WHICHEVER IS LESSER.
8.2. Excluded Damages. IN NO EVENT WILL VENDOR BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
8.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 8 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 8, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 8 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
9. Term & Termination.
9.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue until terminated by either You or Vendor.
9.2. Termination. Either party may terminate this Agreement for any reason at any time. You may terminate this Agreement by closing Your account. Vendor may terminate by notifying You in writing [including without limitation via text to Your mobile device] and closing Your account.
9.3. Effects of Termination. Upon termination of this Agreement, You shall cease all use of the Bex Platform. The following provisions will survive termination of this Agreement: Articles 5 (IP & Feedback), 6 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), and 10 (Miscellaneous); and any other provision of this Agreement that must survive to fulfill its essential purpose.
10.MISCELLANEOUS.
10.1. Independent Contractors. The parties are independent contractors. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
10.2. Notices. Vendor may send notices to You by email [or by text to Your mobile device] at the email address [or mobile number] provided by You, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to this Agreement to Vendor by email to compliance@askbex.com, and such notices will be deemed received 72 hours after they are sent.
10.3. Assignment & Successors. You may not assign this Agreement or any of Your rights or obligations under this Agreement without Vendor’s express written consent. Except to the extent forbidden in this Section 10.3, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
10.4. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
10.5. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
10.6. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. To the extent that arbitration is not required under Subsection 10.10 below, the parties consent to the personal and exclusive jurisdiction of the federal and state courts of Los Angeles County, California. This Subsection 10.6 and Subsection 10.10 below govern all claims arising out of or related to this Agreement, including without limitation tort claims.
10.7. Conflicts. In the event of any conflict between this Agreement and any Vendor policy posted online, including without limitation the AUP, DMCA Policy or Privacy Policy, the terms of this Agreement will govern.
10.8. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
10.9. Amendment. Vendor may amend this Agreement from time to time by posting an amended version at its website and sending You written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless You first give Vendor written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions for 30 days following the Proposed Amendment Date (unless either You or Vendor first terminates this Agreement pursuant to Article 9, Term & Termination). Your continued use of the Bex Platform following the effective date of an amendment will confirm Your consent to the Amendment. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 10.9, Vendor may revise the AUP, DMCA Policy and Privacy Policy at any time by posting a new version of either at Vendor’s website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces Your rights or protections, notice and consent will be subject to the requirements above in this Section 10.9.
10.10. Dispute Resolution. Any legal disputes or claims arising out of or related to this Agreement (including without limitation claims related to the use of the Bex Platform, the interpretation, enforceability, revocability, or validity of the Agreement, or the arbitrability of any dispute), that cannot be resolved informally shall be submitted to binding arbitration in Los Angeles County, California. The arbitration will be conducted by the American Arbitration Association under its Commercial Arbitration Rules, or as otherwise mutually agreed by You and Vendor. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims must be brought within the statute of limitations or other time required by applicable law. You agree that You shall bring any claim, action or proceeding arising out of or related to the Agreement in Your individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding. The arbitrator may not consolidate the claims of more than one person and may not otherwise preside over any form of a representative, collective, or class proceeding. YOU ACKNOWLEDGE AND AGREE THAT YOU AND VENDOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM.