Effective as of (03/10/11)
Privacy & Security; Disclosure
BP Wiz Software (“Licensor”) provides each User with a unique user name and password that must be entered each time a User logs on. Licensor issues a session "cookie" only to record encrypted authentication information for the duration of a specific session. The session "cookie" does not include either the username or password of the user. Licensor does not use "cookies" to store other confidential user and session information, but instead implements more advanced security methods based on dynamic data and encoded session IDs.
Customers of Licensor use the Company’s services to host certain customer specific data and information (“Customer Data”) and to host certain publicly available as well as third party data and information (“Data”). Licensor will not review, share, distribute, or reference any Customer Data except as provided herein, or as may be required by law. Licensor may review, share, distribute, reference or modify Data for purposes of delivering the Service to its customers, or as may be required by law. Individual records of Customer Data may be viewed or accessed only for the purpose of resolving a problem, support issues, or suspected violation of the Licensor. Corporate Subscription Agreement, or as may be required by law. Licensor reserves the right to modify its privacy and security policies in its reasonable discretion from time to time, without your consent or notice to you.
License Grant & Restrictions
Licensor hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Licensor and its Licensor’s.
You may not access the Service if you are a direct competitor of Licensor, except with Licensor’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
The Service constitutes Confidential Information of Licensor as defined herein, you shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploitÂ or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User, if our servers indicate that two or more IP addresses are accessing the program simultaneously at any given time, the users account will be suspended indefinitely without a refund.
You may use the Service only for your internal purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
Responsibilities of the Parties
Licensor shall: (i) provide to You basic support for the Service at no additional charge, (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Licensor shall give at least 8 hours notice via the Service and which Licensor shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond Licensor’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Licensor’s employees), or Internet service provider failures or delays, and (iii) provide the Service only in accordance with applicable laws and government regulations.
You are responsible for all activity occurring under your User account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Licensor immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Licensor immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or any of your Users; and (iii) not impersonate another Licensor user or provide false identity information to gain access to or use the Service.
Account Information and Data
Licensor does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Licensor, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Licensor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Licensor will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Licensor reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Licensor shall have no obligation to maintain or forward any Customer Data.
Intellectual Property Ownership
Licensor alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to Licensor’s Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, Licensor’s Technology, the Content or the Intellectual Property Rights owned by Licensor. The BP Wiz name, the BP Wiz logo, and the product names associated with the Service are trademarks of Licensor or third parties, and no right or license is granted to use them.
As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include the Customer Data; Licensor’s Confidential Information shall include the Service; and Confidential Information of each party shall include the terms and conditions of this Agreement technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer Data) shall not include any information, including without limitation (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Third Party Interactions
During use of the Service, you may enter into correspondence with, services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Licensor and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Licensor does not endorse any sites on the Internet that are linked through the Service. Licensor provides these links to you only as a matter of convenience, and in no event shall Licensor or its licensors be responsible for any content, products, or other materials on or available from such sites. Licensor provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total User licenses requested times the User license fee currently in effect and any other fees specified to Commercial Users). Payments must be made annually in advance unless otherwise mutually agreed upon. All payment obligations are non-cancelable and all amounts paid are non-refundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide Licensor with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized Commercial License user may add licenses by executing an additional Online Order Center. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. Licensor reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
Excess Data Storage Fees
If the amount of disk storage required exceeds the limits (if any) provided by Licensor. Licensor will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by Licensor to so notify you shall not affect your responsibility for such additional storage charges. Licensor reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
Billing and Renewal
Licensor charges and collects in advance for use of the Service. Licensor will automatically renew and bill your credit card or issue an invoice to you on a monthly basis or otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total User licenses times the monthly fee in effect during the prior term, unless Licensor has given you at least 30 days prior email notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Licensor's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Licensor's income.
You agree to provide Licensor with complete and accurate billing and contact information. This information includes your legal name or company name, e-mail address, You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Licensor reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless Licensor in its discretion determines otherwise, entities with headquarters and a majority of users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes ("U.S. Customers"); If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Non-Payment and Suspension
In addition to any other rights granted to Licensor herein, Licensor reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or Licensor initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Licensor may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Licensor reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Licensor has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. The Initial Term will be for (1) one year during the online subscription process. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term at Licensor's then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the event this Agreement is terminated (other than by reason of your breach), Licensor will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Licensor has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
The following provisions shall survive any expiration or any termination of these Terms: Sections 5 (Intellectual Property Ownership), 7 (Charges and Payment of Fees) 8 (Confidentiality), 11 (Expiration), 14 (Mutual Indemnification), 15 (Disclaimer), 17 (Limitation of Liability), 22 (Arbitration), 23 (General).
Termination for Cause
Any breach of your payment obligations or unauthorized use of the Licensor Technology or Service will be deemed a material breach of this Agreement. Licensor, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that Licensor has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Licensor represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Licensor help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You shall indemnify, defend and hold Licensor, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data or infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Licensor (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Licensor of all liability and such settlement does not affect Licensor's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Licensor shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Licensor of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Licensor; provided that you (a) promptly give written notice of the claim to Licensor; (b) give Licensor sole control of the defense and settlement of the claim (provided that Licensor may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Licensor all available information and assistance; and (d) have not compromised or settled such claim. Licensor shall have no indemnification obligation, and you shall indemnify Licensor pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
Disclaimer of Warranties
EXCEPT AS EXPRESSLY STATED IN SECTION 13, LICENSOR: MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. LICENSOR DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL OTHER 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 LICENSOR.
Internet Delays/Force Majeure
LICENSOR'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LICENSOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages and governmental restrictions.
Limitation of Liability
EXCEPT WITH RESPECT TO ANY LIABILITY ARISING FROM A BREACH OF SECTION 5 (INTELLECTUAL PROPERTY RIGHTS), IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Local Laws and Export Control; Restricted Rights
Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Any diversion of the Service or Content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited.
Restricted Rights â€“ Licensor’s software is provided to non-DOD agencies with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the Government is subject to the restrictions as set forth in subparagraph "C" of the Commercial Computer Software â€“ Restricted Rights clause at FAR 52.227-19. In the event the sale is to a DOD agency, the government's rights in software, supporting documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202.
Licensor may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Licensor's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Licensor's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Licensor (such notice shall be deemed given when received by Licensor) at any time by the following: ; letter delivered by nationally recognized overnight delivery service or certified/registered mail to Licensor at the following address: 5 Penn Plaza, 23rd Floor, New York, NY 10001,, addressed to the attention of: Customer Service Department.
Modification to Terms
Licensor reserves the right to modify these Terms and/or its policies relating to the Service at any time, without prior notice, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Licensor but may be assigned without your consent by Licensor to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Licensor directly or indirectly owning or controlling 50% or more of you shall entitle Licensor to terminate this Agreement for cause immediately upon written notice.
The parties hereby agree to waive their right to a jury trial and agree to submit any dispute(s) that may arise in relation to this Agreement to binding arbitration before a single arbitrator. The arbitration shall be conducted in accordance with Delaware Code of Civil Procedure. All arbitration-related hearings shall be conducted in the State of Delaware. The arbitrator shall be from the Delaware area and the arbitrator will be selected by the mutual agreement of the parties and/or their respective counsel. If agreement can not be reached between the parties as to the selection of the single arbitrator, then each side shall propose three (3) potential arbitrators to the Superior Court of Delaware as part of a Petition to the Court that shall be filed jointly by the parties for the purpose of resolving the sole issue of arbitrator selection. The Superior Court will select the single arbitrator from the potential arbitrators proposed by the parties. Once selected, the Arbitrator shall be empowered to hear and resolve any and all issues related to the dispute, including the awarding of attorneys fees and costs to the prevailing party. Notwithstanding anything to the contrary, with respect to any dispute giving rise to a claim for injunctive relief, the provisions of this Section will apply only upon the written request of the Party possessing such claim, and such Party may elect to commence legal proceedings regarding such claim at any time (and nothing contained in this Agreement will be construed to require such Party to provide any notice thereof).
This Agreement shall be governed by Delaware law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Licensor as a result of this agreement or use of the Service. The failure of Licensor 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 Licensor in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Licensor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. This Agreement may be executed in two or more counterparts, each of which shall be an original or faxed copy and all of which together shall constitute one instrument.