BIZIBLE TERMS OF SERVICE
(Last Updated: April 3, 2018)
The website located at www.toul3.com (the “Site”) is a copyrighted work belonging to Bizible, Inc. (“Bizible”, “us”, and “we”). Bizible provides services that assist businesses with evaluating and optimizing marketing campaigns for their websites (each, a “Business Website”) (such services, the Site, and all other services provided through the Site or any applications made available by Bizible, collectively, the “Services”).
These Terms of Service (“Agreement”) sets forth the legally binding terms for your use of the Services. By accessing or using the Services, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. You may not access or use the Services or accept the Agreement if you are not (i) at least 18 years old and (ii) using the Services in connection with a business website on behalf of a company, entity, or organization for internal business purposes (“Business”). If you do not agree with all of the provisions of this Agreement, do not access and/or use the Services. By using the Services, you represent and warrant that you are an authorized representative of a company, entity, or organization with the authority to bind it to this Agreement.
1.1 Account Creation. In order to use certain features of the Services, you must register for or be provided with a Bizible account (an “Account”). If you register for an Account, you will be required to provide certain information as prompted by the Services registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate, (b) you will maintain the accuracy of such information, and (c) that the individual completing the registration is authorized to register an Account and enter into this Agreement on behalf of the applicable Business.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Bizible of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Bizible cannot and will not be liable for any loss or damage arising from any authorized use of your Account or your failure to comply with the above requirements.
2. Payment Terms
2.1 Ordering Subscriptions. To uses certain features of the Services, you may order subscriptions for an Account (each, a “Subscription”) by following the directions on the Site. To the extent you have entered into a separate written agreement with Bizible which governs your use of the Services (a “License and Service Agreement”) or Order Form (an “Order Form”) related to the purchase of a Subscription, the terms of the Subscription will be pursuant to this Agreement. Except as otherwise provided in an applicable License and Services Agreement or Order Form, (a) once you order a Subscription, your Subscription will be for a term of one (1) year and will automatically renew for successive (1) year terms, until you cancel your Subscription by following the directions on the Site or in accordance to the terms of the License and Service Agreement or Order Form and (b) Bizible may change the pricing for the Subscription (from time to time in its sole discretion) by updating the Site and without any additional notice to you, provided that any changes will not take effect until your Subscription renews. Each Subscription may only be used in connection with one Business (i.e., the Business Websites owned and controlled by your Business). Except as otherwise provided in any License and Service Agreement or Order Form, the terms of this Agreement are incorporated into any License and Service Agreement and/or Order Form. Your use of the Services shall constitute your acknowledgement that you have read this Agreement and agree to its terms. To the extent a License and Service Agreement or Order Form conflicts with this Agreement, terms of the License and Service Agreement or Order Form, as applicable, shall supersede the conflicting terms in this Agreement (but the remaining terms of this Agreement shall still apply).
2.2 Payment Terms. If you order a Subscription, you agree to pay the then-current applicable Subscription fee listed on the Site, unless you have signed a License and Service Agreement or Order Form with respect to that Subscription, in which case, the pricing terms in the License and Service Agreement or Order Form shall apply to your Subscription order and are hereby incorporated by reference. Bizible will automatically bill your credit card submitted in ordering the Subscription on the date the Subscription is activated, , until you cancel your Subscription in accordance with the terms of the Subscription. In lieu of processing or accepting your credit card, if any, Bizible may invoice you directly and you will remit the applicable payment noted in the invoice immediately upon invoicing. In the event that you initiate the Subscription under a free promotion, Bizible will automatically bill your credit card (or invoice you) upon expiration of the promotional period if you have not cancelled your Subscription by such expiration date. All payments are non-refundable. You here by agree to pay Bizible as described above or as provided in any License or Service Agreement or Order Form, and authorize Bizible to bill your credit card, if applicable. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. If any fee cannot be charged to your credit card for any reason, Bizible may provide you, via email, notice of such non-payment and a link for you to update your payment information. If such non-payment is not remedied within seven (7) days after receiving such notice of non-payment, then Bizible may terminate the applicable Service.
3. Site and Software
3.1 Business Account Licenses. Subject to the terms of this Agreement, during your Subscription term, Bizible grants you (a) a non-transferable, non-exclusive, license to access and use the Services for your internal business purposes in connection with your Business Website; and (b) a non-transferable, non-exclusive, license to install and use the software Bizible makes available on the Site (including any plugins or connections to third party apps like CRM, Ad Networks, or Marketing Automation) (collectively, the “Bizible Software”), in executable object code format only, solely on your own computer or on your Business Site for your internal business purposes in connection with your Business Website and your use of the Services. As used in this Agreement, the term “Services” includes the Bizible Software.
3.2 Automatic Software Authorization. You acknowledge that the Bizible Software includes components that may remotely transmit information from your Business Website and other online service accounts (as described on the respective Bizible Software documentation), including contact information, and user data from your Business Website to Bizible in order to enable Bizible to provide you with the Services. You hereby consent to and authorize Bizible to retrieve or receive and process such information transmitted by the Bizible Software. If you do not want such information to be transmitted to Bizible, your sole and exclusive remedy is to terminate this Agreement and uninstall the applicable Bizible Software.
3.3 Software Updates. We may (from time to time in our sole discretion) develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Bizible Software (“Updates”). Any Updates are licensed under, and governed by, this Agreement and are deemed part of the “Bizible Software.” You acknowledge that you may be required to install Updates to use and receive the Services and you agree to promptly install any Updates we provide.
3.4 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Services content must be retained on all copies thereof.
3.5 Modification, Suspension, or Discontinuance. Bizible reserves the right, at any time, to modify the Services or any part thereof with or without notice, which may include temporary suspensions of Services to implement any modification. You agree that
Bizible will not be liable to you or to any third party for any modification or suspension of Services or any part thereof. To the extent you pre-paid for the Services and provided that you are in full compliance with the Agreement, prior to discontinuing any material portion of the Services, Bizible will use reasonable efforts to provide you at least seven (7) days’ e-mail notice of such discontinuance and, subject to Bizible’s obligations under the terms of any Subscription, Bizible will not discontinue any material portion of the Services which would materially and adversely limit the type or scope of Services available to you under a current Subscription, unless (a) compelled or required by law, (b) Bizible believes it must discontinue the material portion of the Services in order to mitigate any potential legal or contractual liability, or (c) in connection with a Bizible change-of-control. Notwithstanding the foregoing, modifications and regular updates to the Site and Services that incidentally remove a feature of such modified or updated Services will not be deemed a discontinuance or breach of this Agreement.
3.6 Ownership. Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services are owned by Bizible or Bizible’s licensors. The provision of the Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Bizible and its suppliers reserve all rights not granted in this Agreement.
4. User Content
4.1 User Content. “User Content” means any and all information and content that (a) a user submits to, or uses with, the Services or (b) is collected through the Bizible Software (e.g. through your computer), other online services which you link to the Bizible Software, or your Business Website. For avoidance of doubt, your User Content includes user information collected by the Bizible Software about users of your Business Website. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that you have the authorization to consent to our use of your User Content and that your User Content does not violate the Acceptable Use Policy (defined below). Because you alone are responsible for your User Content (and not Bizible), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy or any applicable privacy laws. You agree that any use of the Service contrary to or in violation of your representations and warranties in this Section 4.1 constitutes improper and unauthorized use of the Service.
4.2 Retention Policy. Bizible is not obligated to backup any User Content. Bizible therefore recommends that you create backup copies of any User Content at your sole cost and expense. In the event of a loss of User Content caused by Bizible, Bizible will use commercially reasonable efforts to recover the User Content. In the event your access to the Service is terminated (other than by reason of your breach), Bizible will make available to you a file of the User Content if requested in writing by you within thirty (30) days after such termination. You agree and acknowledge that Bizible has no obligation to retain the User Content, and may delete such User Content, at any time on or after the thirty-first (31st) day following termination, unless otherwise stated. Bizible reserves the right to withhold, remove and/or discard User Content, without notice, for any breach, including, without limitation, your non-payment. If Bizible terminates this Agreement due to your breach of this Agreement, your right to access or use User Content shall immediately cease, and Bizible will have no obligation to maintain or provide any User Content.
4.3 License. You hereby grant, and you represent and warrant that you have the right to grant, to Bizible an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, modify, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of (a) providing you with the Services and (b) creating and using aggregated and anonymized data from your User Content for any purpose (collectively, the “Permitted Purposes”). You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
4.5 Feedback. If you provide Bizible any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Bizible all rights in the Feedback and agree that Bizible shall have the right to use such Feedback and related information in any manner it deems appropriate. Bizible will treat any Feedback you provide to Bizible as non-confidential and non-proprietary. You agree that you will not submit to Bizible any information or ideas that you consider to be confidential or proprietary.
4.6 EU Personal Data Transfers; Cookies.
4.6.1 Compliance with Laws; EU Personal Data Transfers. Bizible processes certain User Content in the United States, and accordingly, you represent and warrant that the transfer of User Content as contemplated by this Agreement complies with all applicable laws, including, but not limited to, U.S. laws, and the laws of the jurisdiction where you reside and the laws of the jurisdiction where you do business and deploy Bizible’s tracking technology. To the extent you, either directly or through the use of Tracking Technologies, submit User Data which constitutes “personal data” of individuals or entities subject to the European Union’s or European Economic Area’s privacy laws (“EU Personal Data”), you acknowledge that in all cases that Bizible acts as the processor of EU Personal Data and you remain the controller of EU Personal Data for purposes of applicable European Union data protection regulations. You will indemnify and hold harmless Bizible from all third party claims, including, but not limited to, claims from regulatory authorities or individuals, arising from a claim that your User Content and transmittal of such User Content (including EU Personal Data, as applicable) to Bizible violates any applicable laws, including, but not limited to, any rules or regulations arising from Privacy Shield, .Article 26(2) of Directive 95/46/EC or any other regulations applicable to the transfer of the personal data of individuals or entities subject to the EU’s privacy laws.
4.6.3 Cookies and Tracking Mechanisms. In order to use certain aspects of the Services, you have the option to deploy cookies, web beacons, code or other processes to learn information about third parties who visit your Business Website or advertising you serve (whether directly or through third parties) (“Tracking Mechanisms”). You acknowledge and agree that you are solely responsible for complying with all applicable laws with respect to your use of Tracking Mechanisms, including, but not limited to, any laws that require prior informed consent for storage of or access to information stored on the terminal equipment of viewers of your online advertising or Business Website. You acknowledge that Bizible will process information generated from Tracking Mechanisms at your direction, and you will indemnify and hold harmless Bizible from all third party claims, including, but not limited to, claims from regulatory authorities or individuals, arising from your breach of this paragraph.
5. Acceptable Use Policy. The following sets forth Bizible’s “Acceptable Use Policy”:
5.1 You agree not to use the Services in any manner (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
5.2 In addition, you agree not to use the Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Services; or (g) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services.
5.3 We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account in accordance with Section 1, and/or reporting you to law enforcement authorities) if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
5.5 You acknowledge and agree that the Services are not compliant with the data privacy and security rules and regulations under the Health Insurance Portability and Accountability Act (“HIPPA”) and may not be used by Business in connection with User Data that is subject to HIPPA.
7. Third Party Content/Services; Other Users
7.1 Third Party Sites. In using the Services, you may be exposed to content and information from other users or third parties ("Third-Party Content"), either at our Site (e.g., advertisements) or through links to third-party websites. From time to time the Services may give you an option of purchasing products or services from third parties, which we may facilitate either through Services or through links to third-party websites ("Third-Party Services"). We do not control, and shall have no responsibility for, Third-Party Content or Third-Party Services, including material that may be unlawful, misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable, or products or services that do not conform to your expectations. You must evaluate the veracity of, and bear all risks associated with your exposure to, Third- Party Content, and use of Third-Party Services. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. Moreover, Bizible shall have no liabilities or obligations with respect to any changes to any Third-Party Content or Third Party Services which causes any errors or malfunctions to the Services.
7.2 Other Users. Each Services user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Site or Service users are solely between you and such user. You agree that Bizible will not be responsible for any
loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.
7.3 Release. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Service users, Third Party Content, Third Party Services, and any advertisements promoting any third parties. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
- WARRANTY DISCLAIMERS. THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND BIZIBLE (AND BIZIBLE’S SUPPLIERS) EXPRESSLY DISCLAIM (A) ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. BIZIBLE (AND BIZIBLE’S SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL BIZIBLE (OR BIZIBLE’S SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF BIZIBLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BIZIBLE’S (AND BIZIBLE’S SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SITE OR SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID BIZIBLE IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
THIS SECTION SHALL NOT APPLY TO YOUR INDEMNIFICATION OBLIGATIONS OR ANY AMOUNTS PROPERLY INVOICED BY BIZIBLE.
10. Term and Termination. This Agreement will remain in full force and effect while you use the Services. Unless otherwise stated in a License and Service Agreement or Order Form, we may (a) suspend your rights to use the Services (including your Subscription) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Services in violation of this Agreement. Upon termination of this Agreement, your Account and right to access and use the Services will terminate immediately. In the event that the Agreement is terminated early and you have not breached this Agreement, Bizible will provide you with a pro rata refund of any fees paid to Bizible based upon any unused period of your Services subscription; provided however that if Bizible terminates this Agreement due to your beach of this Agreement, you shall not be entitled to a refund. You understand that any termination of your Account involves deletion of your User Content associated therewith from our live databases. Bizible will not have any liability whatsoever to you for deletion of your User Content for any termination of this Agreement. Even after this Agreement is terminated, those terms which by their nature should survive termination shall survive, including Sections 3.4-3., 4 – 11.
11.1 Changes to Terms of Service. This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. For any current Subscriptions, any changes to this Agreement will be effective upon renewal of the Subscription, provided that Bizible will provide you at least thirty (30) calendar days e-mail notice to you of changes to this Agreement with a link to the changes on our Site. These changes will be effective immediately for users of the Services who have not purchased a subscription. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of the Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
11.2 Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Bizible and our employees, agents, successors, or assigns, regarding or relating to these the Site, Services or this Agreement, shall exclusively be settled through binding and confidential arbitration.
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS, as mutually determined by the parties (if the parties are unable to mutually agree on AAA or JAMS, Bizible shall have sole authority to choose either AAA or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration or, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation;(4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
(c) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in King County, Washington. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in King County, Washington in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within King County, Washington for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(d) With the exception of subparts (1) and (2) in the paragraph 11.3(b) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 11.3(b) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in King County, Washington.
(e) Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided Bizible with written notice prior to the date of termination.
(f) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
(g) Any and all controversies, disputes, demands, counts, claims, or causes of action between you and the Company and our employees, agents, successors, or assigns, regarding or relating to these the Site, Services or this Agreement, shall exclusively be governed by the internal laws of the State of Washington, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.
11.3 Entire Agreement. This Agreement (together with a License and Service Agreement or Order Form, if any) constitutes the entire agreement between you and Bizible regarding the use of the Services. Bizible’s failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Bizible is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Bizible’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
11.4 Copyright/Trademark Information. Copyright ? 2018, Bizible, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
11.5 Electronic Communications. The communications between you and Bizible use electronic means, whether you send us emails, or whether Bizible communicates with you via email. For contractual purposes, you (a) consent to receive communications from Bizible in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Bizible provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
11.6 Publicity and Marketing. Customer agrees that Bizible may reference Customer as a client and display Customer’s corporate logo and name on its website and other promotional materials for marketing purposes, subject to any trademark usage policies and brand guidelines provided or published by Customer. Additionally, Customer agrees to reasonably consider a request by Bizible to participate in the creation of a case study and press release regarding Customer’s experience with the Services.
11.7 Contact Information:
830 4th Ave S #400
Seattle, WA 98134