These Terms of Service set forth legal terms and conditions applicable to a customer’s access and use of our Platform and Bmobile Route Software Inc.’s related Services. All access to and use of the Services by a Customer is subject to these Terms of Service. Capitalized terms used in these Terms of Service are set forth in Section 1 below or as otherwise defined in the text of these Terms of Service.
THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE ON BEHALF OF CUSTOMER REPRESENTS AND EXPRESSLY AGREES THAT HE OR SHE IS AUTHORIZED ON BEHALF OF CUSTOMER, AS AN OFFICER, EXECUTIVE OR OTHER AUTHORIZED AGENT, TO AGREE TO AND ACCEPT THESE TERMS OF SERVICE AND SUCH INDIVIDUAL FURTHER REPRESENTS THAT HE OR SHE HAS AUTHORITY TO BIND CUSTOMER TO THE TERMS HEREOF.
BY REGISTERING FOR, SUBSCRIBING TO, OR ACCESSING OR USING, ANY OF THE SERVICES OR SIGNING THE ATTACHED PROPOSAL, CUSTOMER ACKNOWLEDGES THAT IT HAS READ ALL OF THESE TERMS AND CONDITIONS AND AGREES TO COMPLY WITH THEM. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS OF SERVICE, CUSTOMER MAY NOT ACCESS OR OTHERWISE USE ANY SERVICES AND MUST DISCONTINUE ALL USE THEREOF. CUSTOMER’S ACCESS TO AND USE OF THE ANY OF THE SERVICES INDICATES CUSTOMER’S FULL UNDERSTANDING AND ACCEPTANCE OF THESE TERMS OF SERVICE.
THESE TERMS OF SERVICE CONTAIN AN ARBITRATION PROVISION, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE CUSTOMER TO SUBMIT CLAIMS CUSTOMER HAS AGAINST BMOBILE ROUTE SOFTWARE BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION PROVISION, (1) CUSTOMER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST BMOBILE ROUTE SOFTWARE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. THESE TERMS OF SERVICE ALSO CONTAIN OTHER LIMITATIONS ON CUSTOMER, INCLUDING LIMITATIONS ON BMOBILE ROUTE SOFTWARE’ LIABILITY AND DISCLAIMERS OF WARRANTY, AND CUSTOMER SHOULD READ THESE TERMS CAREFULLY.
1. Definitions. For purposes of these Terms of Service, capitalized terms used herein shall have the meanings set forth in this Section or the meanings otherwise given to them in the main body of these Terms of Service:
“Additional Services” means any professional, training, technical or other services provided by Bmobile Route Software as set forth in an Order.
“Affiliate” means Bmobile Route Software’ owners, officers, directors, affiliated companies, suppliers, partners, sponsors, and agents and representatives, and includes (without limitation) all parties involved in creating, producing, and/or delivering the any of the Services.
“Applicable Laws” means any applicable law, rule, regulation or other government requirement.
“Authorized Users” means Customer’s employees and agents authorized to access the Services pursuant to the terms and provisions of these Terms of Service, and subject to any restrictions, limitations or caps in an Order.
“Company” “Bmobile Route Software” “we” “us” “our” and other similar terms means Bmobile Route Software Inc., an Idaho corporation. (should be ‘an’)
“Customer” means the entity, company, organization or party that is accepting and agreeing to, or is otherwise bound by, these Terms of Service as set forth herein.
“Customer Materials” means any data, information, results, reports, communications, content, documents, instructions, files, software or other materials that Customer or its Authorized Users directly or indirectly upload, provide, input, transmit to or any of the Services.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Bmobile Route Software for any of the Services.
“Feedback” means any feedback from Customer or its employees or Authorized Users related to their respective access to and use of the Services, including without limitation, feedback on features or functionality, usability, specifications, architectural diagrams, APIs and related information, software or hardware compatibility, interoperability, performance, bug reports, test results and documentation requirements, and may also include suggestions or ideas for improvements or enhancements to the Services.
“Order” means (i) a PDF outlining the bMobile Route Software proposal, on bMobile Route Software letterhead, or ii) an online order page on a Bmobile Route Software website or other related site or page that allows Customer to select any of the Services (e.g. selecting a specific offering level or plan offered by Bmobile Route Software, selecting a tier or number of users, etc.), or (ii) any order form, statement of work, Technical Support Agreement, or other written agreement that is signed by the Parties or electronically agreed to by the Parties and which sets forth the particular Services to be provided to Customer.
“Party” means Bmobile Route Software or Customer individually and “Parties” means Bmobile Route Software and Customer collectively.
“Permitted Use” means use of the Platform solely for Customer’s internal business purposes and subject to any restrictions or limitations in an Order.
“Personal Information” means data that can be used to identify, contact, or locate a natural person, which may include but is not limited to, name, address, telephone number, e-mail address, online contact information (including, without limitation, an instant messaging user identifier or a screen name that reveals an individual’s email address), account numbers (financial and otherwise), government-issued identifier (including, but not limited to, social security number) and any other data considered personal information or personal data under Applicable Laws (including, in some jurisdictions, IP addresses, and where applicable cookie information and mobile identifiers).
“Platform” means (i) DSD software platform, and (ii) any related data, APIs, software, technology, programs and/or software and platform specific related services or functions that Bmobile Route Software may provide to Customer from time-to-time pursuant to the terms of these Terms of Service.
“Services” means, collectively, (a) access to and use of the Platform as described in these Terms of Service; (b) any Additional Services, and (c) any additional services or offerings that may be provided by Bmobile Route Software related to the Platform (whether pursuant to an Order or otherwise), including without limitation any Custom Services and any Premium Features agreed upon by the Parties in an Order and (d) any support services and related technologies, software, APIs and/or Documentation that may be provided by Bmobile Route Software in its sole discretion for facilitating, maintaining and monitoring Customer’s use of the foregoing.
“Terms of Service” or “Agreement” means these Terms of Service and any related policies or agreements incorporated by reference.
2. Organizational Use. The individual entering into these Terms of Service on behalf of Customer hereby represents that he or she has the authority to bind Customer, its affiliates and all Authorized Users who access any of the Services through Customer’s account to these Terms of Service. ANY INDIVIDUAL WHO DOES NOT HAVE SUCH AUTHORITY, OR WHO DOES NOT AGREE WITH THESE TERMS OF SERVICE, MUST NOT ACCEPT THESE TERMS OF SERVICE AND MAY NOT ACCESS NOR USE ANY OF THE SERVICES.
3. Services.
a. Platform Right to Access and Use. During the Term and subject to the terms and provisions of these Terms of Service, Bmobile Route Software hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to permit Authorized Users to access and use the Platform on a platform-as-a-service basis solely for the Permitted Use (subject to any particular access plan Customer has selected and subject to any feature or other use restrictions based on the plan or Premium Features (if any) Customer is paying for, in each case as agreed in an Order). Bmobile Route Software provides the Platform and Bmobile Route Software’ other Services subject to Customer’s and each of its Authorized User’s compliance with all the terms, conditions, policies and notices contained or referenced in these Terms of Service, as well as any other written or electronic Order or other agreement between Bmobile Route Software and Customer. In addition, when using the Services, Customer and its Authorized Users shall be subject to any posted guidelines, rules or documentation (if any) applicable to such services or materials that may contain terms and conditions in addition to those in these Terms of Service (e.g. an Authorized Use Policy). All such guidelines, rules or documentation are hereby incorporated by reference into these Terms of Service.
b. Additional Services. Bmobile Route Software will use commercially reasonable efforts to provide Customer any Additional Services agreed to by the Parties in an Order, and Customer shall pay Bmobile Route Software the fees set forth in such Order for such services (which are in addition to any other Fees previously agreed upon by the Parties with respect to Services already being made available to Customer). Such Order shall also set forth any assumptions, dependencies and requirements related to such Additional Services. The Parties may mutually agree from time to time to make changes to the scope of work set forth in an Order and any such change shall be effective only when mutually agreed to in writing by the Parties (a “Change Order”). A Change Order constitutes an amendment to the applicable Order and the services set forth in the Change Order shall be deemed to be Services that are part of such Order.
c. Custom Services & Custom Work Product. Bmobile Route Software may provide specific professional services customized for customers as mutually agreed on a case by case basis in an Order (“Custom Services”). Custom Services may include, but are not limited to, custom integrations, custom field inputs, custom Platform modifications, custom code development, and non-standard reporting. In order to qualify as a Custom Service, Bmobile Route Software must agree in an Order that identifies in detail the particular Custom Services being provided as well as all Custom Work Product (as defined below) that may be related thereto (if any). Customer is also required to be within the Terms of Service and not within Notice Period.
d. Authorized Users. Authorized Users may access and use applicable portions of the Services hereunder solely for purpose of exercising Customer’s rights and performing Customer’s obligations hereunder. Customer shall be fully liable and responsible for each Authorized User’s compliance with the terms and provisions of these Terms of Service and any of their acts or omissions. Authorized Users shall be granted access to the Services for the Permitted Use through issue of user names and passwords provided that such issuance shall only be for up to a reasonable number of Authorized Users as determined by Bmobile Route Software unless otherwise agreed to by the Parties. Customer shall be responsible for verifying the status of Authorized Users, updating such lists on a regular basis and providing any such lists to Bmobile Route Software upon request. Bmobile Route Software shall have the right to monitor use of the Services and user credentials. Customer and each Authorized User are responsible for maintaining the confidentiality of usernames and passwords. Customer agrees to immediately notify Bmobile Route Software of any unauthorized use of the Services of which Customer becomes aware. Each Authorized User accessing the Services shall be required to have a separate Authorized User account and sharing of accounts or passwords is not permitted.
e. Effective Date; Right to Modify; Binding Effect of Continued Use. These Terms of Service are effective as of the date that Customer first uses any of the Services, or as otherwise specified in an Order (the “Effective Date”). Bmobile Route Software reserves the right to change these Terms of Service from time to time without notice to its Authorized Users and any modifications or changes to these Terms of Service shall be effective upon such modification or amendment being posted to the applicable Services or the Platform or otherwise communicated to Customer. Customer acknowledges and agrees that it is Customer’s and its Authorized Users’ responsibility to review the Platform and these Terms of Service periodically and to be aware of any modifications. Customer’s continued use of the Services after such modifications will constitute Customer’s acknowledgement of the modified Terms of Service and agreement to abide and be bound by the modified Terms of Service.
f. Data and Information from Third Party Sites. Authorized Users may be required or allowed to link to a Google account or other third party account or site in order to provide, submit or upload Customer Materials or other information to the Services (e.g. Google Accounts, Google APIs, Facebook, etc., for such purposes as email access and other services). Customer expressly acknowledges and agrees and grants Bmobile Route Software all necessary rights and licenses to access the Customer Materials and other information that may be hosted on third party sites, integrate into third party APIs to access and transmit Customer Materials and other information to the Services, store such Customer Materials and information and process and use such Customer Materials and other information via the Services. Customer and its Authorized Users are solely responsible for complying with all third party agreements, terms of service or other applicable legal terms and ensuring that they have the right to transmit Customer Materials to the Services and permit the Services to process the Customer Materials.
g. Implementation & Delivery of Services. If Customer orders any Services under an Order that require implementation assistance by Bmobile Route Software or other unique or personalized consultation or setup services (for example, Additional Services), then promptly after agreement to such in a written Order, Customer will provide Bmobile Route Software with any information, resources and assistance required by Bmobile Route Software to enable the implementation or provision of the Services for Customer’s purposes as described on the Order and, if applicable, to provide any related training. Any dates specified in an Order are estimates only, and are contingent upon Customer’s timely compliance with its obligations relative to such implementation.
h. Limitations. Notwithstanding anything in this Agreement to the contrary, in the event of any delays or other similar issues related to Bmobile Route Software’ provision of Additional Services or Custom Services, Customer’s sole and exclusive remedy for all such delays or issues shall be Bmobile Route Software’ continued performance of such Services in accordance with Bmobile Route Software’ policies, procedures and timelines. Without limiting the foregoing, Bmobile Route Software shall have no liability to Customer for, and Customer shall not be receiving any discounts or compensation related to, such delays or issues.
4. Support.
a. Support Services. During the Term and subject to the terms and provisions of these Terms of Service (including payment of any fees for required support as set forth in an Order), unless otherwise set forth in an Order, Bmobile Route Software shall use commercially reasonable efforts to provide Customer with the following support services for the Services: (i) reasonable telephone and/or e-mail support related to use of the Services during business hours at the phone number and email address provided by Bmobile Route Software; (ii) technical support for any material errors or bugs in the Services comprising of (1) workarounds or (2) software patches and fixes for such errors or bugs, once Bmobile Route Software has determined that such error or bug is a fault in the Services; and (iii) implementation of routine updates and upgrades consistent with Bmobile Route Software’ standard practices and procedures; and (iv) revised versions of the documentation for the Services when made available by Bmobile Route Software.
b. Support Services Fees. Customer agrees to pay Bmobile Route Software any fees for support services as set forth in an Order, or, if not set forth in an Order, as otherwise applicable to Bmobile Route Software’ other similarly situated customers. Bmobile Route Software may increase any support fees upon thirty (30) days’ notice to Customer which such notice may be provided by a service announcement or by sending an email to the primary email address.
c. Additional or Premium Support Services. Premium support services in excess of those described above may be purchased on a case-by-case basis to the extent mutually agreed in an Order and subject to Customer’s payment of all applicable fees. For clarity, support beyond what is included under Section 4(a) above is not in scope or provided unless otherwise purchased from Bmobile Route Software by Customer under the terms of a separate Order for support services.
d. Support Exclusions. Support services shall not include (all of the following, collectively “Exclusions”): (1) any services related to any errors, bugs or issues resulting from or related to: (a) any alteration or modification to the Services made by any person other than Bmobile Route Software, (b) minor defects in the Services which do not materially affect or impair the use of the Services, (c) any incorrect or improper use of the Services, (d) failure to implement Bmobile Route Software recommendations in respect of any solutions or workarounds to errors previously advised by Bmobile Route Software, (e) errors or problems caused, at least in part, by Customer Materials or any Authorized User inputs, and (f) the use of the Services for any purpose for which it was not designed; (2) any customization or implementation services, (3) training services, (4) any Third Party Technology related to or required for the support services including working with 3rd party IT and technology companies, and (5) implementing any updates or upgrades that require any work related to Customer’s use of the Services. Additional fees may apply to any services that Bmobile Route Software elects to provide related to the foregoing Exclusions.
e. Limitations. Notwithstanding anything in this Agreement to the contrary, in the event of any delays or other similar issues related to Bmobile Route Software’ provision of any support services, Customer’s sole and exclusive remedy for all such delays or issues shall be Bmobile Route Software’ continued performance of such Services in accordance with Bmobile Route Software’ policies, procedures and timelines. Without limiting the foregoing, Bmobile Route Software shall have no liability to Customer for, and Customer shall not be receiving any discounts or compensation related to, such delays or issues.
5. Customer Agreements.
a. Requirements and Restrictions. Except as expressly set forth herein, Customer and its Authorized Users shall not: (a) copy the Services; (b) loan, rent, or lease the Services or otherwise transfer, assign the right to use or commercialize any of the Services, including but not limited to posting or otherwise making the Services available on the Internet including as a service bureau or application service provider; (c) itself, nor permit or encourage others to, reverse engineer, decompile, decipher, disassemble, translate or otherwise decrypt or discover the source code of all or any portion of the Services; (d) modify, adapt or write or develop any derivative works based on the Services or use the Services in any manner except as expressly provided in these Terms of Service; (e) interfere with or disrupt the integrity or the operation of the Services; (f) copy any features, functions, screens, interfaces or graphics of the Services; (g) violate any Applicable Laws, third party rights or Bmobile Route Software policies while using or receiving the Services; (h) use the Services or submit any Bmobile Route Software forms if temporarily or indefinitely suspended from using the Services by Bmobile Route Software; (i) manipulate any of the Services, email responses or interfere with any other Bmobile Route Software client’s or user’s use of the Services; (j) provide false, inaccurate, misleading, defamatory, or libelous information or content; (k) spoof or create any emails, content, correspondence or other information from Bmobile Route Software, including fake or fraudulent acceptances or offers; (l) create any competitive service or feature (or otherwise establish a competitive business) based on, in whole or in part, any of Bmobile Route Software’ Services or business ideas, (m) distribute viruses or any other technologies that may harm Bmobile Route Software or the interests or property of Bmobile Route Software’ other clients and users; (n) harvest or otherwise collect information about Bmobile Route Software’ clients and users, including email addresses, without their consent; (o) use the Services to gain unauthorized access to Bmobile Route Software’ or any third parties network(s) or server(s); (p) interfere with any of Bmobile Route Software’ other client’s and user’s use and enjoyment of the Services; (q) violate the intellectual property rights, including but not limited to, copyrights, trademark rights, trade secrets or patents of any person or entity; and/or (r) transmit or store in or through the Services (or any portion thereof) any viruses, malware or other harmful code, any infringing, libelous, or otherwise unlawful or tortious material, or material in violation of third party privacy rights or in a manner that violates Applicable Law. Under no circumstances shall Customer allow other commercial entities (including, without limitation, Customer’s affiliates, customers, clients or business partners) to access or use the Services without Bmobile Route Software’ prior written consent. Customer covenants and agrees that it shall: (i) perform those tasks and assume those responsibilities required of it by Bmobile Route Software to provide the Services, including, without limitation, providing Authorized Users with equipment and/or Internet access to access and use the Services; (ii) comply with all Applicable Laws when using the Services; and (iii) ensure that only Authorized Users use the Services and only as intended and in accordance with the terms of these Terms of Service and any provided documentation. This description of prohibited conduct is not intended to be exhaustive, and Bmobile Route Software] has sole discretion to determine what constitutes prohibited conduct for Customer and its Authorized Users. Anyone who violates Bmobile Route Software’ system or network security may incur criminal or civil liability.
b. Modifications. Customer acknowledges and agrees that, from time-to-time, portions of, or functionality included in, the Services may be added to, modified, or deleted by Bmobile Route Software and that the Services may change over time. Bmobile Route Software may (but is not required to) expand or enhance the Services by providing additional features in the general course of Bmobile Route Software’ standard development model and offering road map (“Premium Features”). Customer acknowledges and agrees that certain Premium Features may be priced separately in Bmobile Route Software’ sole discretion and Customer may be required to pay additional amounts for such Premium Features (in addition to Fees previously agreed upon by the Parties). Customer understands that certain functionality and portions of the Services may only be available to certain customers and that not all functionality and portions of the Services may be available to all customers and all users. Any Premium Features made available by Bmobile Route Software shall be considered Services and shall be subject to these Terms of Service.
c. Third Party Technology. Customer shall be responsible for obtaining, installing and maintaining any equipment and ancillary software and/or services needed to connect to, access or otherwise use the Services, including, without limitation, Internet access, desktop or laptop computers or other compatible devices, web browsers, browser extensions, etc. (collectively, “Third Party Technology”). Customer shall also be responsible for maintaining the security of the Third Party Technology, Customer accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of any of the Customer accounts or the Third Party Technology with or without Customer’s knowledge or consent. In order for Customer to make full use of the Services, it may be necessary for Customer to use particular Third Party Technology and Customer shall be responsible for procuring and maintaining such Third Party Technology and complying with any requirements related thereto. If Customer is unable to access all or part of the Services because it does not have access to any necessary Third Party Technology, this shall not constitute a breach of these Terms of Service by Bmobile Route Software and Bmobile Route Software shall not be liable for any loss, damage or expense which may result from Customer’s inability to access the Services.
d. Customer Offerings. Bmobile Route Software assumes no responsibility for Customer’s products, services, solutions, offerings, operations and other business activities (the “Offerings”), including, without limitation, that use of the Service (including any Analytics Data) by Customer and its Authorized Users shall comply with all applicable laws. Customer is solely responsibility for providing and delivering the Offerings to its clients, customers and user base, and resolving all disputes with such clients, customers and user base. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT BMOBILE ROUTE SOFTWARE SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY OF CUSTOMER’S OFFERINGS AND ANY CLAIMS, ISSUES, MATTERS OR OTHER INTERACTIONS WITH ANY OF CUSTOMER’S CLIENTS, CUSTOMERS OR USE BASE.
e. Customer Responsibilities. Customer agrees that, at all times during the Term, it shall: (i) perform those tasks and assume those responsibilities specified in the applicable Order; (ii) upon Bmobile Route Software’ request, make available to Bmobile Route Software Customer personnel familiar with Customer’s business requirements related to the Services; (ii) reasonably cooperate with Bmobile Route Software regarding the Services: (iv) provide true, accurate, current and complete information about Customer as prompted by Bmobile Route Software’ forms and in any other related document or agreement; (v) maintain and update Customer’s information to keep it true, accurate, current, and complete (collectively, the “Customer Responsibilities”). Each Order shall also contain any assumptions of Customer for providing the Services and/or additional responsibilities required of Customer for Bmobile Route Software’ performance of the Services. Customer understands that Bmobile Route Software’ performance is dependent on Customer’s timely and effective satisfaction of Customer Responsibilities hereunder and timely decisions and approvals by Customer. Customer acknowledges that, if any information provided by Customer is untrue, inaccurate, not current, or incomplete, Bmobile Route Software reserves the right to terminate Customer’s use of the Services and withdraw any offer or agreement. Customer agrees to keep Customer’s account information, including login and password information, secure and not to share it with any third party. Customer is solely responsible for the maintaining the security of Customer’s account.
f. Age for Use of the Services. All Authorized Users must be 18 years of age or older to visit or use any of the Services in any manner. By, using or receiving any of the Services or otherwise accepting these Terms of Service, Customer represents and warrants to Bmobile Route Software that all of its Authorized Users are at least 18 years of age or older, and that each such Authorized User has the right, authority and capacity to agree to and abide by these Terms of Service. Customer also represents and warrants to Bmobile Route Software that Customer will cause all of its Authorized Users to use the Services in a manner consistent with any and all applicable laws and regulations.
g. Customer Materials Restrictions. Customer is and shall be solely responsible for all Customer Materials that Customer or any of its Authorized Users submit, provide or upload to the Services, including the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all such Customer Materials. Bmobile Route Software assumes no responsibility for any Customer Materials and Bmobile Route Software has no obligation to and is not required to review or approve any Customer Materials. Without limiting the foregoing, Customer shall not, and shall permit any Authorized User to, submit, provide or upload any Customer Materials to the Services that: (a) include offensive, harmful, fraudulent, false and/or abusive language or content, including without limitation: obscenities, harassment, vulgarities, sexually explicit language and hate speech (e.g., racist/discriminatory speech.); (b) are determined by Bmobile Route Software, in its sole discretion, to be illegal, or to violate any Applicable Laws or the rights of any other person or entity (including intellectual property rights or privacy rights); or (c) that are encrypted or that contain viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or appropriate any system, data or personal information. Customer acknowledges and agrees that if Customer or any of its Authorized Users submits, provides or uploads any Customer Materials to the Services that Bmobile Route Software in its sole discretion believes violate the foregoing or any other applicable Bmobile Route Software guidelines or policies, or for which Bmobile Route Software has received a third party complaint that such Customer Materials may violate any of the foregoing or any other applicable Bmobile Route Software guidelines or policies, then Bmobile Route Software may: (i) remove without notice all or a portion of the applicable Customer Materials, and/or (ii) suspend Customer’s or a particular Authorized User’s continued access to or use of the Services pending removal of such Customer Materials or permanently terminate Customer’s or a particular Authorized User’s continued access to and use of the Services. Customer hereby grants, and represents and warrants that the Customer and each Authorized User has the right to grant, to Bmobile Route Software an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify, and distribute Customer Materials within the Platform and in connection with Bmobile Route Software’ other Services.
h. Customer Representations. Customer represents and warrants: (a) these Terms of Service: (i) have been authorized by all necessary corporate action, (ii) do not violate the terms of any Applicable Law or court order to which Customer is subject or the terms of any material agreement to which Customer or any of its assets may be subject, and (iii) will not breach any contractual right of, or obligation to, any third party and are not subject to the consent or approval of any third party; and (b) these Terms of Service are the valid and binding obligation of Customer, enforceable against Customer in accordance with its terms.
i. Employee Non-Solicitation. If, during the Term or for twelve (12) months thereafter, Customer directly or indirectly retains the services (whether as an employee, independent contractor or otherwise) of any employee of Bmobile Route Software (or ex-employee of Bmobile Route Software three (3) months of the employee's termination from Bmobile Route Software) who has provided services to Customer on behalf of Bmobile Route Software, Customer agrees that Bmobile Route Software will be damaged, but that the amount of this damage will be difficult to determine. Accordingly, Customer agrees that for each such Bmobile Route Software employee hired by Customer, Customer will pay Bmobile Route Software Twenty-five Thousand Dollars ($25,000) as liquidated damages within 30 days of hiring such employee. Notwithstanding the foregoing, for the purposes of this subsection, "employee of Bmobile Route Software” shall include only employees of Bmobile Route Software who provide services to Bmobile Route Software clients and shall not include accountants, attorneys or other independent contractors of Bmobile Route Software who provide services to Bmobile Route Software itself.
j. Analytics Data. Customer acknowledges and agrees that as part of the Services, the Platform may provide certain analytics, analysis, data, results, summaries, content, populated forms or other information (collectively, the “Analytics Data”). Bmobile Route Software is not responsible for the accuracy, integrity, quality, legality, or usefulness of or relating to such Analytics Data. The Analytics Data are not intended as a replacement for Customer’s own actions and obligations with respect to its accounting, payroll, tax, regulatory or other legal obligations, and it is solely Customer’s responsibility to review the Analytics Data and confirm its accuracy. Customer acknowledges and agree that Analytics Data may be inaccurate, and Customer hereby agrees to waive, and hereby does waive, any legal or equitable rights or remedies Customer has or may have against Bmobile Route Software with respect thereto. Bmobile Route Software shall not be liable in any way for or in connection with Customer’s reliance on any Analytics Data, including, but not limited to, for any inaccuracies, errors or omissions in any Analytics Data, or for any loss or damage of any kind incurred as a result of the use of any Analytics Data posted, generated, uploaded or otherwise displayed or transmitted via the Services or to Customer. Without limiting the foregoing, Bmobile Route Software advises Customer not to make any legal or other business decisions solely based on Analytics Data.
k. On-Premises / Software License Restrictions. If Customer is also licensing any software product or platform from Bmobile Route Software or any of its Affiliates on an on-premises, locally installed or other similar basis (a “Software Product”), Customer covenants and agrees that it may not and shall not use the Software Product on a cloud, hosted, “as-a-service” or other similar basis whether by moving such Software Product itself to a cloud, hosted, “as-a-service” or other similar environment or by using any third party to do so.
6. Bmobile Route Software Rights.
a. License. Customer acknowledges and agrees and hereby grants Bmobile Route Software any and all rights and licenses to: (i) access, use, process, display and manipulate any Customer Materials and any Bmobile Route Software equipment or Third Party Technology as necessary to provide, improve, analyze and monitor the Services; and (ii) display or use, in advertising or otherwise, Customer’s name, logo and trademarks, to provide the Services and to indicate that Customer is or was a customer of Bmobile Route Software.
b. Remote Monitoring. Bmobile Route Software shall have the right and ability to monitor Customer’s and each Authorized User’s use of the Services remotely and/or electronically to verify their respective compliance with the terms and provisions of these Terms of Service.
c. Telemetry and Remote Collection. Customer acknowledges and agrees that certain Services may transmit to Bmobile Route Software (and Bmobile Route Software may collect and use) certain data and information related to the Services, including as related to its operation and use.
d. Remote Disablement; Suspension. In the event that Customer or an Authorized User breaches any of the terms or provisions of these Terms of Service, Customer acknowledges and agrees that Bmobile Route Software may remotely disable, suspend or terminate Customer’s and/or the applicable Authorized User’s use of the Services. In addition to and without limiting Bmobile Route Software’s right to terminate this Agreement as set forth in Section 10, Bmobile Route Software shall have the right, in its sole discretion, to suspend Customer’s access to or use of the Platform and any Services if Customer has breached or violated any of the terms or provisions of this Agreement as determined by Bmobile Route Software in its sole discretion, including for any late fees or payments owed by Customer.
7. Intellectual Property Matters; Customer Materials.
a. Bmobile Route Software IP. Customer agrees that all of the Services and all Feedback are owned by Bmobile Route Software or its licensors, and are protected by US. and international intellectual property laws, and that Bmobile Route Software shall solely own and retain all right, title and interest to, including all intellectual property rights in, the Services and Feedback. Additionally, unless otherwise explicitly set forth in an Order, Bmobile Route Software and/or its Affiliates shall own all right, title and interest, including all intellectual property rights, in and to all inventions, improvements, developments, discoveries, marks, logos, know-how, trade secrets, notes, records, reports, drawings, designs, data, computer programs and all other works of authorship conceived, made, discovered or developed by or on behalf of Bmobile Route Software in performing the Services hereunder or provided or delivered to Customer hereunder (collectively, the “Inventions”). Customer agrees to assign and hereby does fully and irrevocably assign to Bmobile Route Software all of its right, title and interest in and to the Feedback, including all intellectual property rights therein. The Services and all Feedback and Inventions shall be deemed the Confidential Information of Bmobile Route Software. Neither Bmobile Route Software nor Bmobile Route Software’ Affiliates warrant or represent that Customer’s and its Authorized Users’ use of any Inventions or any Services will not and does not infringe the rights of third parties.
b. Customer IP. Bmobile Route Software agrees that the Customer Materials are owned by Customer or its customers and clients, and is protected by US. and international intellectual property laws, and that Customer or its clients or customers shall solely own and retain all right, title and interest to, including all intellectual property rights in, the Customer Materials, subject to Bmobile Route Software’ license and use rights set forth in these Terms of Service.
c. Customer Materials. Customer is solely responsible for all Customer Materials submitted or uploaded to or shared with the Services and any activity that occurs under Customer’s account. Without limiting the foregoing, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all Customer Materials, and Bmobile Route Software assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of the Services to store any Customer Materials. Bmobile Route Software reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of Customer Materials that Customer (or its Authorized Users) may store, post, collect or transmit on or through the Services. Customer shall comply with local, national and international laws and regulations applicable to the transmission or storage of data through the Services. Customer shall be solely responsible for its actions while using the Services and the contents of its transmissions through the Services. Customer is solely responsible for ensuring that it (and each Authorized User) has all rights necessary to provide the Customer Materials to Bmobile Route Software and the Services. Bmobile Route Software shall not be responsible for any data, information or material that Customer authorizes Bmobile Route Software to retrieve or that the Customer submits to the Services in the course of using the Services. Bmobile Route Software does not pre-screen, verify, confirm or otherwise authorize any Customer Materials. However, Bmobile Route Software and its designee(s) have the right (but not the obligation) in their sole discretion to refuse or remove any Customer Materials that is processed by or provided to the Services. Bmobile Route Software may, but has no obligation to, remove content and accounts containing content that Bmobile Route Software determines in its sole discretion are illegal, threatening or otherwise objectionable or violates any party's intellectual property or these Terms of Service. Bmobile Route Software does not endorse and is not responsible or liable for any Customer Materials posted by Customer or any Authorized User. The statements, information, advice and opinions contained in any Customer Materials solely reflect the view of the Customer or Authorized User that submitted such Customer Materials and do not reflect the opinion of Bmobile Route Software or any of its Affiliates. Customer acknowledges and agrees that no transmission or hosting of data is 100% secure and there remains a possibility that Customer Materials may be subject to unauthorized access by hacking, malware, systems breach or other unauthorized method and Bmobile Route Software shall have no liability relating to any such breach or access.
d. Reservation of Rights. Customer acknowledges and agrees that the Services are provided under license, and not sold, to Customer or its Authorized Users. Customer and its Authorized Users do not acquire any ownership interest in any of the Services under these Terms of Service, or any other rights thereto other than to use the Services in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms of Service. Bmobile Route Software and its licensors and service providers reserve and shall respectively retain their entire right, title, and interest in and to the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to Customer in these Terms of Service.
e. Third Party Materials. Portions of the Services may link Customer and Authorized Users to other sites on the Internet or otherwise include information, documents, software, materials, content and/or services provided or submitted by third parties (“Third Party Materials”) or references to such Third Party Materials. These Third Party Materials may contain information or material that some people may find inappropriate or offensive. These Third Party Materials (and the third parties responsible therefor) are not under Bmobile Route Software’ control, and Customer acknowledges that Bmobile Route Software is not responsible for the accuracy, completeness, appropriateness, validity, copyright compliance, legality, decency, or any other aspect of such Third Party Materials, nor is Bmobile Route Software responsible for errors or omissions in any references to other parties or their products and services. The inclusion of Third Party Materials, including any reference or link thereto, is provided merely as a convenience and does not imply endorsement of, or association with, the Services, Bmobile Route Software or any Bmobile Route Software Affiliates, or any warranty of any kind, either express or implied. Customer accesses and uses all such Third Party Materials entirely at Customer’s own risk and subject to such third parties’ terms and conditions.
f. Suspected Copyright Violations. Bmobile Route Software respects the intellectual property of others, and Bmobile Route Software asks Customer to do the same. If Customer believes it’s or an Authorized User’s copyright, trademark or other property rights have been infringed by the Services, Customer should send notification to Bmobile Route Software via the contact information described herein, immediately. To be effective, the notification must include: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) information reasonably sufficient to permit Bmobile Route Software to contact the complaining party, such as address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted; (iii) identification of the material that is claimed to be infringing or to be subject to infringing activity and that is to be removed and information reasonably sufficient to permit Bmobile Route Software to locate the materials; (iv) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or the law; and (v) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringing.
8. Privacy, Security and & Network Limitations.
a. Authorized User Personal Information. Bmobile Route Software collects Personal Information only as necessary to provide the Services and permit Customer and Customer’s Authorized Users to access and use the Services. For example, Authorized Users may be required to provide certain basic Personal Information like their email address, name, and title in order to register on or access the Services or to receive communications from Bmobile Route Software regarding the Services. In addition, Bmobile Route Software may collect certain billing information depending on Customer’s preferences and circumstances. Customer and its Authorized Users shall only provide the minimum amount of Personal Information necessary to use or access the Services and Customer hereby acknowledges, agrees and covenants to only provide, and to only allow its Authorized Users to provide, Personal Information to Bmobile Route Software if Customer or the applicable Authorized User has all rights and licenses to do so (and Customer and the Authorized User has complied with all Applicable Law). Customer hereby agrees to be liable and responsible for any claims or actions related to failure to obtain such rights. The Parties acknowledge and agree that Bmobile Route Software may in the future adopt a Privacy Policy applicable to Personal Information collected by Bmobile Route Software. In such case, Bmobile Route Software shall provide Customer with notice of the Privacy Policy (either via email, posting a link to the Privacy Policy on the Platform, or other reasonable mechanism for providing notice), and the terms of the Privacy Policy shall also apply to the Services being provided by Bmobile Route Software. In the event of a conflict between these Terms of Use and the terms of the Privacy Policy, the terms of the Privacy Policy shall apply.
b. Security. The protection of Customer Materials and Personal Information is a top priority for Bmobile Route Software and Bmobile Route Software will maintain administrative, physical, and technical safeguards at a level not materially less protective than generally prevailing industry standards. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Materials and Personal Information by our personnel. Before sharing Customer Materials or Personal Information with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Materials and Personal Information and preventing unauthorized access.
c. Network Limitations. Customer understands and agrees that temporary interruptions of the Services may occur as normal events. Bmobile Route Software may use third party providers to store, manage, and authenticate accounts and content, and to provide the necessary hardware, software, networking, storage, and related technology required to run the Services. Bmobile Route Software is not responsible for possible issues caused by third party faults or discontinued services. Bmobile Route Software does not guarantee or warrant that any Customer Materials that an Authorized User saves, stores or accesses through the Services will not be subject to inadvertent damage, corruption, or loss. Customer is encouraged to back up the files that it and its Authorized Users store or access via the Services. While Bmobile Route Software takes data security and privacy seriously, Customer understands and agrees that the technical processing and transmission of the Services, including Customer Materials, may be transferred unencrypted and involves (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Additionally, Customer further understands and agrees that Bmobile Route Software has no control over third party networks that Customer or other Authorized Users may access or attempt to access in the course of the use of the Services, and therefore, delays and disruption of network transmissions and inaccuracies in results may be completely beyond Bmobile Route Software’ control and Bmobile Route Software assumes no responsibility for such delays, disruptions or inaccuracies. Without limiting the foregoing, Bmobile Route Software expressly disclaims responsibility for any lost revenues, lost profits, lost sales or billing errors, glitches or delays experienced by Customer or an Authorized User to the extent caused by Service outages or network or infrastructure interruptions. Customer understands and agrees that the Services are provided “AS IS” and that Bmobile Route Software assumes no responsibility for the timeliness, deletion, mis delivery or failure to store any Customer Materials, or any other communications or personalization settings. Without limiting any of the foregoing, Customer acknowledges and agrees that Customer (and not Bmobile Route Software) bears sole responsibility for adequate security, protection and backup of Customer Materials and Personal Information when in Customer’s or its representatives’ or agents’ possession or control, and Bmobile Route Software is not responsible for what Customer’s Authorized Users, any Third Party Technology or any network or infrastructure providers do with Customer Materials or Personal Information.
9. Fees.
a. Services Fees and Payment Terms. The Services are a fee-based subscription service. Accordingly, in order to access and use the Services (including applicable Premium Features), Customer must and shall pay all applicable subscription, access and service fees for the Services as set forth in or on an Order (the “Fees”). For example, when you sign up for the Services or a certain tier or offering, the fees may be presented to you on the product pricing page which shall be considered the Order as described above. All Fees are non-cancelable and non-refundable, except as otherwise provided for herein. Customer will pay all Fees in American Dollars.
b. Changes to Fees. Bmobile Route Software may change Fees due with any of the Services (e.g. ongoing Platform subscriptions) upon ten (10) days’ prior notice (such notice may be provided via email, posting on Bmobile Route Software’s website, notice in the Services or otherwise). Additionally, Bmobile Route Software reserves the right to more frequently change, on a pass-through basis, any third-party fees at any point during the Term (including if they increase ongoing Platform subscription fees). Customer’s continued use of the Services subsequent to any change in Fees will be deemed acceptance of such changes unless Customer closes its Bmobile Route Software account prior to the effective date of such change and ceases all access to and use of the applicable Services. If Customer does not accept such Fee change, then Customer may terminate these Terms of Service by providing Bmobile Route Software written notice prior to the effective date of such Fee change, and Customer shall only be liable to Bmobile Route Software for the payment of Fees for Services provided through the effective date of termination.
c. Payment Authorization; Invoices; Recurring Billing. For certain Services (including the Platform as well as certain Premium Features selected by Customer), a valid credit card, bank account or other payment method will be required. Bmobile Route Software will bill Customer in advance in accordance with Customer’s Order or any applicable pricing schedule set forth on Bmobile Route Software’ website, including (to the extent applicable) automatically charging Customer’s credit card on file for Services to be provide during the upcoming payment period. In particular, Customer acknowledges and agrees that Bmobile Route Software will automatically commence charging Customer’s credit card on file or otherwise processing payments (e.g. ACH) without any further action required by Customer. There will be no refunds or credits for partial months of paid Services. All fees will be exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all such taxes, levies, or duties, excluding only American taxes based on Bmobile Route Software’ income. Customer shall pay for any taxes that might be applicable to Customer’s use of such paid Services. Customer agrees to be billed monthly, annually or at such other installments as set forth in an Order or as applicable to Bmobile Route Software’ standard Services, and hereby grants Bmobile Route Software the right to charge Customer’s credit card (or otherwise facilitate payment – e.g. ACH) with the payment information Customer has provided, including in advance and on a recurring basis. Customer will reimburse Bmobile Route Software for any fees that Bmobile Route Software may be charged related to declined payments, and Customer will keep Bmobile Route Software informed of all changes to the Customer’s billing information. All amounts invoiced hereunder are due and payable as specified in the applicable Order. Unpaid Fees that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balan
d. Audit. Bmobile Route Software shall have the right and authority to monitor Customer’s use of the Services electronically to ensure compliance with the terms and provisions of these Terms of Service. In addition, in the event that Bmobile Route Software has a reasonable belief that Customer is not in compliance with the terms or provisions of these Terms of Service, then Bmobile Route Software shall have the right to audit Customer’s business, records and systems to ensure compliance with the terms and provisions of these Terms of Service. Bmobile Route Software shall provide ten days’ notice to Customer and such audit shall not unreasonably interfere with Customer’s operations. In the event that a violation of these Terms of Service is found by Bmobile Route Software and such violation relates to an underpayment of fees, then, in addition to any other rights it may have, Bmobile Route Software shall invoice and Customer shall pay all underpaid fees plus interest at the rate of 1% per month plus the fees of such audit.
10. Term; Termination.
a. Term. Unless a different term is specified in an Order, these Terms of Service shall continue with respect to the particular Services being provided via the Order for a period of time equal to two (2) years from Customer’s Effective Date for those Services (the “Initial Subscription Term”). Following the Initial Subscription Term, these Terms of Service shall automatically renew for every year thereafter with respect to the applicable Services (each, a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless Customer provides the other Party with notice of its intention not to renew at least ninety (90) days’ prior to the end of the then-current term. The Fees specified in the applicable Order shall only apply during the Subscription Term. The Subscription Term is also referred to herein as the “Term”.
b. Termination. Customer agrees that Bmobile Route Software may at any time during the Term, and at Bmobile Route Software’ sole discretion, terminate Customer’s (or any Authorized User’s) access to any portion or all of the Services without prior notice to Customer for violating these Terms of Service, including, without limitation, breach of any specific provision of these Terms of Service. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating Customer’s relationship with Bmobile Route Software and may be referred to appropriate law enforcement authorities. In addition, Customer acknowledges that Bmobile Route Software will cooperate fully with investigations of violations of systems or network security at other sites. In addition to the foregoing, either Party shall have the right to terminate these Terms of Service if the other Party terminates its business activities or becomes insolvent, files for bankruptcy, admits in writing its inability to pay debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. Upon termination or suspension, regardless of the reasons therefore, Customer’s right to use the Services immediately ceases, and Customer acknowledges and agrees that Bmobile Route Software may immediately deactivate or delete Customer’s account (if applicable) and all related information and files in Customer’s account and/or bar any further access to such files and the other Services. Bmobile Route Software shall not be liable to Customer or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by Bmobile Route Software in connection therewith. Applicable provisions of these Terms of Service shall survive any termination.
11. Confidentiality.
a. “Confidential Information” means any information disclosed previously or in the future by Bmobile Route Software (the “Disclosing Party”) to Customer (the “Receiving Party”), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, business plans, source code, software, documentation, specifications, mock ups, financial analyses, marketing plans, customer names, customer lists, product plans, products, services, inventions, processes, designs, drawings, engineering or hardware configuration information, know-how, trade secrets, or any other proprietary or business information), which is designated as “Confidential,” “Proprietary” or some similar designation, or other information, the confidential or proprietary nature of which is reasonably apparent under the circumstances. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession. Moreover, it shall not be a breach of these Terms of Service for the Receiving Party to disclose to a court or other governmental body Confidential Information of the Disclosing Party which the Receiving Party is required by law to disclose to such entity, provided that the Receiving Party shall give the Disclosing Party written notice of such requirement prior to disclosure so that the Disclosing Party may seek a protective order or other appropriate relief. The Services shall all be considered the Confidential Information of Bmobile Route Software without any further requirement of marking or designation.
b. Non-Disclosure and Non-Use. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to third parties or to the Receiving Party’s employees, except those employees who require the information to perform obligations or exercise rights under these Terms of Service and who have signed a confidentiality agreement at least as protective of the Confidential Information of the Disclosing Party as these Terms of Service. The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose other than for the purposes contemplated by these Terms of Service. Subject to Section 8, the Receiving Party shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party. Without limiting the foregoing, and subject to Section 8, the Receiving Party shall exercise the same degree of care to protect Confidential Information of the Disclosing Party as it does to protect its own highly confidential information of like nature, which shall in no event be less than reasonable care. The Receiving Party shall immediately notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.
12. Indemnification. Customer shall indemnify, defend and hold harmless Bmobile Route Software and its Affiliates from and against all liabilities, amounts, damages, claims, alleged claims, costs and expenses, including attorney’s fees (collectively, “Claims”) relating to, or arising out of, (i) Customer’s or one of its Authorized User’s use or misuse of any of the Services; (ii) any misrepresentation, fraud or other act or omission that is inconsistent with the requirements of the Services or any agreements entered into between Bmobile Route Software and Customer; (iii) any breach of any provision of these Terms of Service; (iv) any violation of Applicable Laws by Customer or an Authorized User; (v) any violation of any intellectual property rights by Customer or an Authorized User, whether Bmobile Route Software’ rights or those of any third party; (vi) any Customer Materials that Customer or an Authorized User imports, uploads or otherwise provides to the Service; (vii) the Customer Offerings; (viii) any claims or issues related to third party integrations or third party technology or platforms; or (ix) any claims by third parties (including Customer’s customers) arising from or as related to Customer’s use of the Services. Bmobile Route Software reserves the right, at Bmobile Route Software’ own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will cooperate with Bmobile Route Software in asserting any available defenses.
13. Limitation of Liability. BMOBILE ROUTE SOFTWARE SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF SOURCE MEDIA AND/OR CUSTOMER CONTENT, OR COSTS OF RECREATING LOST SOURCE MEDIA AND/OR CUSTOMER CONTENT) ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE AND CUMULATIVE LIABILITY OF BMOBILE ROUTE SOFTWARE ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE SHALL BE EQUAL TO THE AGGREGATE FEES PAID OR PAYABLE BY CUSTOMER DURING THE THREE MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE APPLICABLE CLAIM. CUSTOMER AND BMOBILE ROUTE SOFTWARE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR THESE TERMS OF SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES AND OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
14. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, THE PLATFORM AND THE SERVICES ARE PROVIDED TO CUSTOMER “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. BMOBILE ROUTE SOFTWARE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, QUIETENJOYMENT, ACCURACY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS OF SERVICE. NO USE OR DISTRIBUTION OF THE SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. NO WARRANTIES ARE CREATED BY ANY COURSE OF DEALING BETWEEN THE PARTIES, TRADE USAGE OR INDUSTRY CUSTOM. BMOBILE ROUTE SOFTWARE SPECIFICALLY DISCLAIMS ANY REPRESENTATION AND WARRANTY THAT THE PLATFORM OR OTHER SERVICES WILL BE ERROR FREE OR WILL FUNCTION UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE PLATFORM AND/OR OTHER SERVICES CAN OR WILL BE CORRECTED, THAT ANY SUCH CORRECTION CAN OR WILL BE MADE IN A TIMELY MANNER, THAT THE PLATFORM AND OTHER SERVICES WILL OPERATE IN THE COMBINATIONS WHICH MAY BE REQUIRED OR WILL PRODUCE THE RESULTS REQUIRED. BMOBILE ROUTE SOFTWARE SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF THE INFORMATION AND OUTPUTS OBTAINED THROUGH THE PLATFORM OR OTHER SERVICES. BMOBILE ROUTE SOFTWARE DOES NOT WARRANT THAT THE PLATFORM AND SERVICES WILL MEET CUSTOMER'S SPECIFIC REQUIREMENTS. WE RECOMMEND THAT YOU CHECK AND CONFIRM THE ACCURACY OF ANY INFORMATION YOU OBTAIN FROM THE SERVICES PRIOR TO USING IT OR RELYING ON IT IN WHATEVER FORM.
BMOBILE ROUTE SOFTWARE AND ITS AFFILIATES DO NOT THEMSELVES PROVIDE ACCOUNTING, HUMAN RESOURCES, PAYROLL, OR OTHER PROFESSIONAL SERVICES, INCLUDING TAX, LEGAL OR BUSINESS SERVICES. THE PLATFORM AND SERVICES ARE PROVIDED FOR INFORMATIONAL AND CONVENIENCE PURPOSES ONLY, AND ARE NOT INTENDED TO PROVIDE, AND SHOULD NOT BE RELIED ON FOR, TAX, PAYROLL, HUMAN RESOURCES, LEGAL OR ACCOUNTING ADVICE. THE PLATFORM AND SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL SERVICES AND WE EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION THAT THE OUTPUTS AND ANALYTICS DATA PROVIDED BY THE PLATFORM SERVICES MAY BE COMPLIANT WITH APPLICABLE INDUSTRY, REGULATORY OR LEGAL REQUIREMENTS.
15. International Use. Although the Services may be accessible worldwide, Bmobile Route Software makes no representation that (i) use of the Services is appropriate or available for use in locations outside the US, Canada, and (ii) use of the Services is compliant with foreign law. If Customer chooses to access the Services from other locations, Customer does so on Customer’s own initiative and is responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Services is void where prohibited.
16. Electronic Contracting and User Notices. Customer’s affirmative act of viewing or using any portion of the Services (including, without limitation, submitting any forms or communications via the Platform) or other acceptance of these Terms of Service as described above constitutes Customer’s electronic signature to these Terms of Service and Customer’s consent to enter into agreements with Bmobile Route Software electronically. Customer also agrees that Bmobile Route Software may, but has no obligation to, send to Customer in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Services (collectively, “Notices”). Bmobile Route Software can send Customer Electronic Notices (i) to the email address that Customer provided to Bmobile Route Software (if any), or (ii) by posting the Notice through the Services. The delivery of any Notice from Bmobile Route Software is effective when sent or posted by Bmobile Route Software, regardless of whether Customer reads or views the Notice when Customer receives it or whether Customer actually receives the delivery. Customer can withdraw Customer’s consent to receive Notices electronically by discontinuing Customer’s use of the Services. Customer can retrieve an electronic copy of this contract by emailing info@bmobileroute.com or as set forth in the Services. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing. Customer covenants and agrees not to contest the validity or enforceability of these Terms of Service or any Order under the provisions of any applicable law. The Customer agrees that these Terms of Service and all Orders shall be admissible as between the parties to the same extent and under the same conditions as other business records originated and maintained in documentary form.
All questions, complaints, claims or other notices to Bmobile Route Software shall be in writing and shall be made either via email or conventional mail to the addresses set forth below, or using any contact functions made available via the Services.
Any notices or communication under these Terms of Service will be deemed delivered to Bmobile Route Software on the delivery date.
17. Law; Venue. Customer agrees that the laws of the State of Idaho, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between Customer and Bmobile Route Software, except as otherwise stated in these Terms of Service. All actions related to these Terms of Service shall take place in Idaho, including any arbitration as contemplated below.
18. Arbitration.
a. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” Customer agrees that any and all disputes or claims that have arisen or may arise between Customer and Bmobile Route Software, whether arising out of or relating to these Terms of Service or in connection with Customers use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Customer may assert individual claims in small claims court, if Customer’s claims qualify. Customer agrees that, by agreeing to these Terms of Service, Customer and Bmobile Route Software are each waiving the right to a trial by jury or to participate in a class action. Customer’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either Party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief. Customer and Bmobile Route Software agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Customer and Bmobile Route Software agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
c. Pre-Arbitration Dispute Resolution. Bmobile Route Software is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly and to the participant’s satisfaction by emailing Bmobile Route Software’ support team at support@bmobileroute.com.If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Bmobile Route Software should be sent to Bmobile Route Software at - Attn: BMOBILE ROUTE SOFTWARE INC. #250 Bobwhite Ct. Suite 300 Boise, Idaho 83706. (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Bmobile Route Software and Customer do not resolve the claim within sixty (60) calendar days after the Notice is received, Customer or Bmobile Route Software may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Bmobile Route Software or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Bmobile Route Software is entitled.
d. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Bmobile Route Software and Customer agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Customer’s claim is for $10,000 or less, Bmobile Route Software agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If Customer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based
e. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
f. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
g. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause (b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms of Service will continue to apply.
19. General.
a. Assignment. Customer may not assign, transfer or in any manner encumber Customer’s rights and obligations under these Terms of Service to any third party, and any purported attempt to do so shall be null and void. Bmobile Route Software may freely assign Bmobile Route Software’ rights and obligations under these Terms of Service and transfer, assign or novate these Terms of Service.
b. Force Majeure. In addition to any excuse provided by applicable law or under these Terms of Service, Bmobile Route Software shall be excused from liability for non-delivery or delay in delivery of products and services available through the Services arising from any event beyond Bmobile Route Software’ reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond Bmobile Route Software’ reasonable control, whether or not similar to those which are enumerated above.
c. Enforceability; Severability. If any part of these Terms of Service are held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
d. No Waiver. Any failure by Bmobile Route Software to enforce or exercise any provision of these Terms of Service or related rights shall not constitute a waiver of that right or provision or a waiver of Bmobile Route Software’ right to enforce or exercise any such provision of these Terms of Service in the future.
e. Intended Beneficiaries. These Terms of Service are strictly between Bmobile Route Software and Customer. There are no intended third party beneficiaries of these Terms of Service.
f. Use of Words. The term “including” as used in these Terms of Service shall mean “including, without limitation,” unless the context otherwise requires.
g. Entire Agreement. These Terms of Services together with each applicable Order of Customer and any Privacy Policies adopted by Bmobile Route Software in the future collectively constitute the entire agreement and understanding between Bmobile Route Software and Customer concerning the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect thereto. These Terms of Service may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by Customer and Bmobile Route Software.
h. Independent Contractors. In performing these Terms of Service, the Parties act and shall act at all times as independent contractors, and nothing contained in these Terms of Service shall be construed or implied to create an agency, partnership or employer and employee relationship between the Parties. Except as expressly set forth in these Terms of Service, at no time shall either Party make commitments or incur any charges or expenses for, or in the name of, the other Party
BY USING THE PLATFORM AND/OR ANY OF BMOBILE ROUTE SOFTWARE’ OTHER SERVICES AND/OR ACCEPTING THESE TERMS OF SERVICE (OR OTHERWISE BEING BOUND AS DESCRIBED ABOVE), CUSTOMER AGREES TO BE BOUND BY THESE TERMS OF SERVICE.