Augeo BN, LLC
AIMY Terms of Use
The following Terms of Use are entered into by and between You and Augeo BN, LLC (“Augeo BN,” “we,” or “us”).
The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the “Terms”), govern your access to and use of our website [URL] and all affiliated websites and subdomains (the “Site”), our AI platform, AIMY (the “Platform”), any related mobile applications (the “App”), and all related services (together with the Site and the Platform, the “Services”).
Please read the Terms carefully before you start to use the Services. By using the Services or by clicking to accept or agree to the Terms when this option is made available to you, you accept and agree to be bound and abide by these Terms and our Privacy Policy, incorporated herein by reference. If you do not want to agree to these Term including the agreements incorporated by reference herein, you must not access or use the Services.
By using the Services, you represent and warrant that you are of legal age to form a binding contract with Augeo BN and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services.
These Terms contain a mandatory individual arbitration agreement and class action/jury trial waiver provision that require, with only limited and specified exceptions, the exclusive use of final and binding arbitration on an individual basis only to resolve disputes, rather than jury trials or class actions or proceedings.
If you are an individual and you access or use our Services on behalf of a company, organization, principal, or other entity, such as your employer (each, together with its affiliates, an “Organization”), then: (i) these Terms are an agreement between us and you and us and that Organization; (ii) you represent and warrant that you have the authority to bind that Organization to these Terms (and if you do not have the authority, you may not access or use our Services); (iii) your acceptance of these Terms will bind such Organization to these Terms; (iv) your individual right to access and use our Services may be suspended or terminated (and ownership and administration of your account may be transferred) if you cease to be associated with, or cease to use an email address associated with, owned by, or provisioned by, that Organization; (v) we may disclose information regarding you and your use of the Services, included User Data (defined below), to such Organization or to appropriate individuals associated with that Organization; and (vi) the terms “you” and “your,” as used in these Terms, refer to both you and such Organization.
MODIFICATION OF TERMS
We reserve the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by updating the “Last Updated” date at the beginning of these Terms. By continuing to use the Services at any point after such update, you confirm your acceptance of the revised Terms, and all of the terms incorporated therein by reference. You should review these Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Services. If you do not agree to the revised Terms, you may not access or use the Services.
PRIVACY POLICY
Please refer to our Privacy Policy for information about how we collect, use and share your personal information. By submitting your personal information through the Services, you expressly consent to the collection, use, and disclosure of personal information in accordance with the Privacy Policy.
COMMUNICATIONS
By using our Services, you consent to receive electronic communications from us (e.g., via email, SMS, or by posting notices to the Services). These communications may include notices of transactional information and are part of your existing relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We have no obligation to store for your later use or access any such electronic communications that we make to you. We may also send you promotional communications via email including, but not limited to, newsletters, special offers, surveys, customer service, and marketing messages, and other news and information we think will be of interest to you. You may opt out of receiving these communications at any time by following the unsubscribe or opt out instructions provided therein.
ACCESS AND USE
Eligibility
You may use our Services only if you can form a legally binding contract with us (and on behalf of your Organization, as applicable), and only in compliance with these Terms and all applicable laws, rules, and regulations. To use our Services, you must be at least 18 years old. Our Services are not available to any users who were previously removed from the Services, unless our duly authorized representative agrees otherwise in writing.
If you sign up for our Services using an email address associated with, owned by, or provisioned by an Organization, or if an Organization pays fees due in connection with your access to or use of our Services (or reimburses you for payment of such fees), then we may deem you, in our sole discretion, to be accessing and using our Services on behalf of that Organization. You represent and warrant that all information that you provide to us regarding any Organization on whose behalf you use our Services, including information identifying other users associated with such Organization or email domains owned by such Organization, is and all times will be truthful, accurate, and complete, and that you will immediately notify us should any such information change or no longer be truthful, accurate, or complete.
If you are an Organization on whose behalf an individual user is accessing or using our Services as described above, then you are responsible for the acts and omissions of all such individual users, and for ensuring that all such individual users, and for ensuring that all such individual users comply with these Terms.
AI Input
“AI Input” means information, data, materials, text, prompts, images, works, code, or other content that is input, entered, posted, uploaded, submitted, transferred, or otherwise transmitted by or on behalf of you through the Platform. You represent and warrant that you have all required ownership and licenses to your AI Input. You will not knowingly use content that is offensive to a reasonable person as part of your AI Input.
Use of AI Output
“AI Output” means information, data, materials, text, images, code, works, or other content generated by or otherwise output from the Platform in response to an AI Input.
You are solely responsible for (i) evaluating (including by human review) AI Output for accuracy, completeness, and other factors relevant to your use before using, distributing, or relying on the AI Output and (ii) your decisions, actions, and omissions in reliance or based on the AI Output.
ACCOUNTS
You may be required to create an account (“Account”) to access certain services, including our Platform. We may maintain different types of Accounts for different types of users. You acknowledge and agree that you do not own your Account.
By creating an Account, you agree to provide accurate, current, and complete Account information, and to maintain and promptly update your Account information as necessary. You are responsible for maintaining the confidentiality of your login credentials and agree not to share your account details with others. You agree to immediately notify us if you discover or otherwise suspect any breaches of security related to your Account or the Services, including unauthorized use of your password. We are not liable for unauthorized access resulting from your failure to secure your credentials and you accept all risks of unauthorized access to your Account and the information you provide. Further, we are not liable for any losses caused by any changes to your Account, including your ability to access your Account or User Data (defined below).
You are responsible and liable for all uses of the Services resulting from access provided by you, directly or indirectly, whether that access or use is permitted by or in violation of this Agreement.
PROHIBITED USES
Subject to your compliance with these Terms, you may access and use our Services during the Subscription Term (defined below), except as may be limited to you by your Organization. You may not attempt or cause to attempt to gain unauthorized access to any portion or feature of the Services, or any other systems or networks connected to the Services, by hacking, password “cracking,” or any other illegitimate means. You may not breach or cause to breach the security or authentication measures on the Services, or any other systems or networks connected to the Services, or otherwise attempt to interfere with the proper functioning of the Services. You will not falsify your identity or impersonate another person, engage in conduct that limits the use and enjoyment of the Services, or any part thereof, by other users in any way, in each case as determined by us in our sole and absolute discretion.
In addition, you agree not to and will not assist another to:
- reverse engineer, disassemble, alter, decompile, duplicate, create derivative works from, make copies of, extract information from, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services, in whole or in part, except as expressly permitted by us;
- upload, post or store any materials that directly or indirectly contain viruses, corrupted files or any other similar harmful mechanism;
- link to, mirror, or frame any portion of the Services without our prior express written permission;
- scrape, index, survey, or data mine any portion of the Services;
- remove any notice of the proprietary rights of our licensors and us from any portion of the Services or printed version thereof;
- use the Services (including, without limitation, by uploading to the Services, storing on the Services, using the Services to generate, using information or data generated through the Services, or otherwise providing Augeo BN with access to any information, data, image, or other content) in any manner or for any purpose that: (i) infringes, violates, or promotes the infringement or violation of any applicable law, regulation, legal requirement, contractual obligation, or right of any person or entity, including intellectual property rights, rights of privacy, or rights of personality; (ii) is fraudulent, false, deceptive, or defamatory, including phishing; (iii) promotes hatred, violence, or harm against any individual or group; or (iv) otherwise may be harmful, obscene, or objectionable to Augeo BN, its providers, its suppliers, its users, or others;
- overload, flood, spam, or mail-bomb the Services; or otherwise use the Services in a manner that interferes with or creates an undue burden on the Services, including by using the Services to send unsolicited communications, promotions, advertisements, or spam;
- use or display the Services in competition with us, to develop competing products or services, for benchmarking or competitive analysis of Augeo BN or the Services, or otherwise to Augeo BN’s detriment or disadvantage;
- attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Services;
- use or attempt to use a log-in credential other than your own, share passwords or authentication credentials for the Services, or otherwise circumvent our pricing, fees, or the measures we may use to prevent or restrict access to the Services, to enforce limitations on use of the Services, or to charge fees for each user of the Services;
- identify or refer to Augeo BN or the Services in a manner that could reasonably imply an endorsement by us, or a relationship or affiliation between you or a third party and Augeo BN, other than your permitted use of the Services these Terms, without our express written consent;
- store or process any images on or through the Services for which you have not obtained required verifiable parental consent under the Children’s Online Privacy Protection Act (COPPA) or similar applicable laws; or
- store “protected health information” (as such term is defined under the Health Insurance Portability and Accountability Act of 1996) or “medical information” (as such term is defined under the California Confidentiality of Medical Information Act) in the Services.
We reserve the right to report any activity or content that it reasonably believes violates any law, rule, or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Such reporting may include disclosing your information as appropriate. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct.
LIMITED LICENSE
You are hereby granted a limited, revocable, nonexclusive, nontransferable, nonassignable, non-sublicensable, “as-is” license to access and use the Services and related content for your own personal, non-commercial use; provided, however, that such license is subject to the Terms and does not include any right to (i) sell, resell, or use commercially the Services, (ii) distribute, publicly perform, or publicly display any content, (iii) modify or otherwise make any derivative uses of the Services, or any portion thereof, (iv) use any data mining, robots, or similar data gathering or extraction methods, (v) download (other than page caching) any portion of the Services, except as expressly permitted by us, and (vi) use the Services other than for their intended purposes. This license is subject to your compliance with these Terms.
OWNERSHIP
User Data. You own all rights, title, and interest, including all intellectual property rights, in and to the AI Input and AI Output (together, the “User Data”). You hereby grant to us a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the User Data and process the User Data as may be necessary for us to provide the Services to you. Notwithstanding anything in the Terms to the contrary, unless prohibited by applicable law, we may delete User Data at any time if we determine that User Data violates these Terms or that deletion is necessary to comply with applicable law.
Intellectual Property Rights. You acknowledge and agree that the Services may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. The Augeo BN name and logos are trademarks and service marks of Augeo BN (collectively the “Augeo BN Trademarks”). Nothing in these Terms or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Augeo BN Trademarks or other Augeo BN content, names and logos used and displayed via the Services, without our prior written permission in each instance. All goodwill generated from the use of Augeo BN Trademarks or other Augeo BN content will inure to the exclusive benefit of Augeo BN or the applicable rights holder.
Feedback. You may choose, or we may invite you, to submit comments, feedback, or ideas about our Services, including about how to improve our Services (“Feedback”). You agree that we will own any such Feedback, and that we are free to use the Feedback without any additional compensation to you, and disclose the Feedback on a non-confidential basis or otherwise to anyone. You acknowledge that, by accepting your submission of Feedback, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
Copyright Complaints. We respect the intellectual property of others and ask that our users do the same. We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe that your work has been copied or used on the Services in a way that constitutes copyright infringement, please send the following information to our Copyright Agent at support@bn.co.
- Your address, telephone number, and email address.
- A description of the copyrighted work that you claim has been infringed.
- A description of where the alleged infringing material is located on the Services.
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
- For clarity, only copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with the requirements of the section, your notice may not be valid.
- Augeo BN may at its discretion, suspend or terminate the access of and take other action against users, subscribers, registrants, and account holders who infringe upon the intellectual property rights of others.
Publicity Rights. You give us the right to identify you as our customer in our promotional materials. You may request that we do not identify you as our customer by contacting us using the contact information below.
SERVICE CHANGES
We may change our Services, stop providing our Services or certain features of our Services to you or our users generally, change or stop providing a particular Subscription Plan (defined below) or features thereof, or create usage limits for our Services.
SUSPENSION OR TERMINATION
We may permanently or temporarily terminate or suspend your access to our Services without notice or liability, without cause or for any reason, including if, in our sole discretion, you violate any provision of these Terms. Termination will be in addition to any other remedies we may have at law or in equity.
You may cancel or terminate your Account at any time by accessing the “Manage My Subscription” page through your Account Settings page and discontinuing your access to and use of the Services.
Upon termination, whether by you or us, you may no longer have access to your User Data or information related to your Account, and you acknowledge that we will have no obligation to maintain any such information in our databases or to forward any such information to you or to any third party.
TRIALS
We may, from time to time, make available to you certain product features on a limited, trial basis, and such trial may be designated by us an alpha, a beta, a pilot, a limited release, a limited availability, a test period, a preview, or an evaluation, or using another similar term (“Product Trial”). You may participate in any Product Trial, subject to these Terms and any additional terms and conditions made available by us. You acknowledge that product features made available to you as part of a Product Trial (“Features”) might contain bugs, errors, or omissions. FEATURES ARE PROVIDED TO YOU FOR TESTING PURPOSES ONLY, ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY, LIABILITY, INDEMNITY, OR PERFORMANCE OBLIGATIONS. Unless otherwise explicitly stated by us, Features are not subject to any service level agreements or support commitments. Features are Confidential Information (defined below). Features may never be made available for general use or otherwise be provided in a future version of our Services, and we may discontinue Features, or revoke your access to Features, at any time for any or no reason, in our sole discretion, without any liability to you or us. Discontinuing Features, or making Features inaccessible to you, may have the effect of making some or all of your User Data inaccessible to you.
SUBSCRIPTION PLANS AND PAYMENTS
Subscription Plans. We offer plans that you may sign up for that allow you to use certain aspects of our Services, either for free or for a fee (each a “Subscription Plan”). Our free version limits the number of items you can create and may have limitations on the tools you can use. We may change Subscription Plans, in our sole discretion, including by offering new services for additional fees or by adding or amending fees and charges for existing Subscription Plan. Any change to a Subscription Plan’s pricing or payment terms will be effective in the billing cycle following such notice of changes. Notice will be provided to you in accordance with these Terms.
Billing and Payment. If you elect to sign up for a paid Subscription Plan, you agree to the pricing and payment terms specified at checkout or as otherwise posted or communicated to you in writing. You agree to provide us with a current, valid, accepted payment method (your “Payment Method”). When you initiate a purchase, you authorize Augeo BN to provide your payment information to third parties so we can complete the transaction. You are responsible for all applicable taxes and other fees, such as wire transfer fees, credit card processing fees, and foreign transaction fees.
We currently use Stripe as our third-party service provider for payment services, and by using our Services you agree to be bound by Stripe’s Services Agreement, currently available at https://stripe.com/us/legal. If your payment is not successfully settled for any reason, you remain responsible for any amounts not remitted to us, and you authorize us or our third-party service provider to continue to charge your Payment Method, without further notice, until such time as your payment is settled. All payments for transactions are non-refundable and non-transferable except as expressly provided in these Terms.
For any paid Subscription Plan, you agree that we may automatically charge your Payment Method for so long as your Account remains active. Subscription Plans may be offered for a set subscription period (each such period, a “Subscription Term”).
Renewals. Your subscription continues until canceled by you or we terminate your access to or use of our Services in accordance with these Terms. Unless and until canceled by you, all Subscription Plans will automatically renew for renewal terms equal in length to the original Subscription Term, at the applicable price as of the renewal date. If you do not want a Subscription Plan to renew, you must cancel it before the end of the Subscription Term via the Account Settings page on your Account. If you purchase a Subscription Plan, we (or our third-party service provider) will automatically charge you on regular intervals (year, month, week), as applicable, on the anniversary of the commencement of your subscription, using the payment information you have provided, until you cancel your subscription. By agreeing to these Terms and electing to purchase a Subscription Plan, you acknowledge that your Subscription Plan has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your subscription by you or us.
Cancellation and Terminations. If we cancel or terminate your Subscription Plan, except in the event of your breach of these Terms or failure to pay fees when due, we will grant you a prorated refund for the remaining unused portion of your Subscription Term. If you cancel or terminate your Subscription Plan, your right to use our Services will continue until the end of your then-current Subscription Term and then terminate without further charges. Notwithstanding the foregoing, if you live in certain jurisdictions and cancel your Subscription Plan within fourteen (14) days of purchase, you will be eligible for a refund of any payments made for the canceled Subscription Term, and, if you request such a refund, your right to use our Services will terminate immediately upon cancellation of your subscription. Subject to the preceding sentence, if you cancel or terminate your Subscription Plan, unless required by law, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF ANY FEES PAID FOR THE THEN-CURRENT SUBSCRIPTION TERM AT THE TIME OF CANCELLATION.
Late Payments. Any late payments may be subject to an interest charge equal to 1.0% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection). Billing disputes must be reported to Brand Networks in writing within 30 days from the invoice date otherwise invoices are deemed indisputable and Client waives and releases all claims related thereto. Except as otherwise provided in this Agreement, all payment obligations are non-cancelable and once paid are nonrefundable.
Credits. From time to time we may offer credits as a result of a promotion or referral program or a Subscription Plan downgrade. Any credits that may accrue to your Account will expire one year following their accrual, or upon expiration or termination of your Account, whichever is earlier. Notwithstanding the foregoing, any credits accrued to a workspace on a free Subscription Plan will expire if the workspace’s Subscription Plan is not upgraded to a paid Subscription Plan within ninety (90) days of accrual, unless otherwise specified. Credits have no currency or exchange value, and are not transferable or refundable.
THIRD PARTY SERVICES AND LINKS
Our Services may contain links to third-party materials that are not owned or controlled by us, we may refer you to certain third parties who provide independent services relating to or supporting your use of our Services, and certain functionality of our Services may require your use of, or may be compatible with, third-party services, sites, information, materials, products, applications, extensions, or services (each, a “Third-Party Service”). If you use a Third-Party Service, you are subject to and agree to the third party’s terms of service (or other applicable terms and conditions) and privacy policy made available by or via the Third-Party Service. We do not endorse or assume any responsibility for any such Third-Party Service. If you access a Third-Party Service from or with Augeo BN or User Data on or through any Third-Party Service, you do so at your own risk, and you understand that these Terms and our Privacy Policy do not apply to your use of such Services. You expressly relieve us from any and all liability arising from your use of any Third-Party Service, including any failures of those Third-Party Services.
INDEMNITY
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Augeo BN from and against all actual or alleged third-party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement, and costs of or associated with pursuing indemnification and insurance), of every kind and nature whatsoever arising out of or related to these Terms or your use of the Services, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Services; (b) any Feedback you provide; (c) your violation of these Terms; (d) your violation of the rights of any third party, including another user; (e) any breach or non-performance of any covenant or agreement made by you; or (f) the processing or other use of Customer Data infringes or misappropriates another party’s intellectual property rights. You agree to promptly notify Augeo BN of any third-party Claims and cooperate with Augeo BN in defending such Claims. You further agree that Augeo BN shall have control of the defense or settlement of any third-party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A SEPARATE WRITTEN AGREEMENT BETWEEN YOU AND AUGEO BN.
LIMITED WARRANTY AND DISCLAIMERS
Limited Warranty. We warrant that the Services will confirm in all material respects to any written statement provided to you by Augeo BN when accessed and used by you in accordance with these Terms. Your sole remedy and our sole liability for breach of the foregoing warranty is for Augeo BN to use reasonable efforts to correct the Services to conform to such written statements. We do not make any representations or guarantees regarding uptime or availability of the Services.
Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET OUT ABOVE, THE SERVICES AND AI OUTPUT ARE PROVIDED “AS IS” AND AUGEO BN SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRIGNEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, INCLUIDNG ANY AI OUTPUTS, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. YOU ACNKOWLEDGE THAT, GIVEN THE NATURE OF THE SERVICES AND ARTIFICIAL INTELLIGENCE TECHNOLOGY, AI OUTPUT (I) MAY BE INACCURATE, MISLEADING, BIASED, OR OFFENSIVE, (II) MAY BE THE SAME OR SIMILAR TO OUTPUT THE PLATFORM GENERATES FOR OTHER CUSTOMERS, (III) MAY NOT QUALIFY FOR INTELLECTUAL PROPERTY PROTECTION, AND (IV0 MAY BE SUBJECT TO THIRD PARTY TERMS, INCLUDING AS APPLICABLE, OPEN SOURCE LICENSES, AND (V) DO NOT NECESSARILY REFLECT, AND MAY BE INCONSISTENT WITH, AUGEO BN’S VIEWS.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS, THE SERVICE, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS UNDERTAKEN BY YOU AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, YOUR ACCESS TO AND USE OF THE SERVICE, CONTENT (INCLUDING USER DATA), OR ANY SUBSCRIPTIONS PURCHASED THROUGH THE SERVICE EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT PAID TO US BY YOU FOR THE SERVICES THAT IS THE SUBJECT OF THE CLAIM.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
CONFIDENTIALITY
From time to time, either party to these Terms (the “Disclosing Party”) may disclose or make available to the other (the “Receiving Party”) non-public, proprietary, or confidential information of the Disclosing Party (“Confidential Information”). Confidential Information includes any information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including non-public business, product, technology, and marketing information, and Features. Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Section; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in the Receiving Party’s possession prior to the Disclosing Party’s disclosure thereof; or (iv) was or is independently developed by the Receiving Party without using any of the Disclosing Party’s Confidential Information.
The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially-reasonable degree of care; (ii) only use the Disclosing Party’s Confidential Information, and only permit it to be accessed or used, for the purpose of exercising its rights or performing its obligations under these Terms, for the purpose of exploring a business relationship (or changes to the business relationship) between the parties, or for any other purpose consistent with our Privacy Policy; and (iii) not disclose any of the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s service providers or financial/legal advisors who need to know the Confidential Information and are bound to confidentiality obligations at least as restrictive as those in these Terms.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, then, prior to making such disclosure (unless prohibited by law or legal process) it shall use commercially-reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy.
Each of the parties to these Terms acknowledges that the other party will be irreparably harmed if Confidential Information of the other is distributed in breach of this Section, and that such other party would not have an adequate remedy at law in the event of such an actual or threatened breach. Therefore, each of the parties agrees that the other party shall be entitled to seek injunctive relief against any actual or threatened breaches of this Section by the other party without the necessity of showing actual damages or showing that monetary damages would not afford an adequate remedy.
DISPUTE RESOLUTION
Arbitration Agreement
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH AUGEO BN AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
These Terms, including all matters of construction, validity, and performance, and all disputes arising out of or connected with the Terms and the Services (each a “Dispute,” collectively, the “Disputes”), shall, in all respects, be governed by and construed in accordance with the laws of the State of New York without regard to any principles of conflict of laws, except that the arbitration clause herein shall be governed by the Federal Arbitration Act. Any Dispute shall be settled by mediation under the Commercial Mediation procedures of the American Arbitration Association (the “AAA”), except that if mediation of a Dispute is not successful within two (2) months of appointment of a mediator, such Dispute shall be settled by individual arbitration under the Commercial Arbitration Rules of the AAA. The place of mediation or arbitration shall be the AAA office nearest to Agency’s principal place of business in New York, Monroe County. The language of the mediation or arbitration shall be English. The arbitrator shall be an expert or an attorney with experience in the field of intellectual property and advertising law. Notwithstanding this arbitration provision, any Dispute not resolved through arbitration that is less than $10,000 USD and qualifies for treatment on a non-jury basis in a small claims court in New York may be resolved in such small claims court on an individual basis at the election of either party. All Disputes shall be mediated, arbitrated, or litigated on an individual basis. You irrevocably waive any right it may otherwise have to proceed on a class or collective basis. Further, you irrevocably waive all right to trial by jury as well as any argument or claim of improper venue or forum non conveniens. The foregoing provisions shall not limit the right of Loaded to collect payments due or payable, or prevent either party from commencing any action or proceeding to compel arbitration, obtaining injunctive relief pending the appointment of an arbitrator, or obtaining execution of any award rendered in any such action or proceeding, or in any other manner provided venue for all such proceedings shall be in the state or federal courts within New York, Monroe County. The parties shall bear their own expenses, except that parties shall equally share the expenses of any mediator or arbitrator (except for the required non-refundable filing fees which shall be paid solely by the party asserting the Dispute). The prevailing party in any arbitration may seek from the arbitrator an award of the party’s reasonable outside attorneys’ fees and costs incurred. Judgment on any award rendered by any arbitrator may be entered in any court having jurisdiction thereof.
Class Action/Jury Trial Waiver
With respect to all persons and entities, regardless of whether they have obtained or used our Service for personal, commercial, or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action, or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You and we agree that the Arbitrator may award relief only to any individual claimant and only to the extent necessary to provide relief on individual claim(s). Any relief awarded may not affect other users. You and we agree that, by entering into these Terms, you and we are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
GENERAL
International Issues. We operate the Services from the United States of America. If you choose to access the Services from outside the United States of America, you are responsible for complying with applicable local laws.
Entire Agreement. These Terms, any applicable supplemental terms, and our Privacy Policy constitute the entire legal agreement between you and us and will be deemed to be the final and integrated agreement between you and us, and govern your access to and use of the Services, and completely replace any prior or contemporaneous agreements between you and us related to your access to or use of the Services, whether oral or written.
Interpretation. The language in these Terms will be interpreted as to its fair meaning, and not strictly for or against any party.
Severability. Should any part of these Terms be held invalid, illegal, void or unenforceable, that portion will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
No Waivers. Our failure or delay to exercise or enforce any right or provision of these Terms will not constitute or be deemed a waiver of future exercise or enforcement of such right or provision. The waiver of any right or provision of these Terms will be effective only if in writing and signed for and on behalf of us by a duly authorized representative.
Governing Law. All matters arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States of America applicable therein without giving effect to any choice or conflict of law provision or rule.
Venue. Subject to the above, any legal action or proceeding arising under these Terms will be brought exclusively in the State of New York, Monroe County and we and you irrevocably consent to the personal jurisdiction and venue there.
Notices. We may provide you with any notices (including, without limitation those regarding changes to these Terms) by email or postings on the Services. By providing us with your email address, you consent to our using the email address to send you any notices. Notices sent by email will be effective when we send the email, and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
Assignment. You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under these Terms in our sole discretion to an affiliate or in connection with an acquisition, sale or merger. These Terms shall be binding upon and inure to the benefit of the applicable parties and their successors and permitted assigns.
CONTACT
260 East Broad Street
Suite 100
Rochester, NY 14604
hello@bn.co