The Build Method, Inc. Terms of Service (“Agreement”) is a legally binding document between Build Method, Inc., (“BMI”) a Colorado limited liability corporation, and You (“Your, User”), regarding the use of BMI Websites and/or applications. There are legal obligations set forth in this document, so
it is important that you carefully read and understand all of the terms and conditions of the present Agreement. You acknowledge that you have read and understood that there are also separate legal documents posted on BMI that you must read and agree to before accessing BMI. By creating
an account or using BMI Websites and/or applications, you agree to be bound by these terms and conditions. You understand that if You do not agree to all of the terms and conditions of BMI, you are not allowed to use BMI Websites or applications.
1. TERM AND PAYMENT FOR SERVICES
1.1. Term for All Accounts
You understand that this Agreement shall be effective from the initial date that You access BMI Websites and/or applications and shall remain effective in accordance with these terms until either party elects to terminate the Agreement. You understand that you may terminate this Agreement at any time
and you agree to destroy any copies of any information you have accessed from BMI. You understand and agree that all disclaimers and all limitations of liability that are part of this Agreement shall survive termination of this Agreement.
1.2 Termination Policy for Paid Users
If you terminate your receipt of the services or your account, whichever is applicable, BMI will not refund to You any fees paid in advance of such termination. You shall be required to pay 100% of BMI's standard monthly charge until the Agreement terminates, unless otherwise expressly provided in this
Agreement. In order to be processed, your termination request or notice must be submitted to BMI through email to [email protected]
forty-five (45) days before the intended or actual date of cancellation. You understand that you are responsible for any and all fees and costs leading up through the cancellation date.
BMI may terminate this Agreement at any time and for any reason without notice prior to the date of termination. If BMI terminates this Agreement and fees have been paid toward some services, BMI will refund to You the pro-rata portion of prepaid fees attributable to services (excluding setup fees)
not yet rendered as of the termination date unless otherwise expressly provided in this Agreement. If termination was enforced due to violations of this Agreement that result in damages or fees assigned to BMI on your behalf, no refunds shall apply and You will be held liable for such additional fees
1.3 Renewal for Paid Users
Unless a timely cancellation notice is received within the obligations set forth in Section 1.2, the present Agreement will automatically renew after an initial one (1) year term, for an additional one (1) year period.
1.4 Default and Cure
In the event that either party hereto defaults in the performance of any of its material duties or obligations under this Agreement, including failure to make any payments due under this Agreement, and such default is not cured within five (5) days after written notice via e-mail is given to the defaulting
party specifying the default, then the party not in default, after given written notice via e-mail thereof to the defaulting party, may elect to terminate this Agreement.
1.5 Charges from Paid Users
You agree to pay for all charges attributable to your use of the Services at the then current BMI prices. Pricing for services may be changed without any prior notice and at the sole discretion of BMI. For price increases BMI will engage in reasonable efforts to provide sufficient notice prior to implementation.
1.6. Payment from Paid Users
All charges for Services must be paid in advance according to the then current prices applicable to the services. Upon entering this Agreement, you must choose to pay either by direct charge to a credit or debit card. If you choose to pay by Paypal, credit, or debit card upon registering for the Services,
you thereby authorize BMI to charge your credit or debit card on a monthly basis to pay for any charges that may apply to your account. You must notify BMI of any changes to your card account (including, without limitation, applicable account number or cancellation or expiration of the account), your
billing address, or any information that may prohibit BMI from charging your account. BMI may also create periodic invoices for any applicable Supplemental Charges associated with your use of the Services. You agree to pay to BMI the amount indicated in each invoice by the due date reflected on that
invoice. If You fail to pay any fees by the applicable due date for credit card or invoice payments, late charges of the lesser of one and one-half per cent (1.5%) per month or the maximum allowable under applicable law but at no time less than $15 shall also become payable by you to BMI. In addition,
your failure to fully pay any fees within five (5) days after the applicable due date will be deemed a material breach of this Agreement, and BMI may, in addition to any other remedy it may have:
suspend its performance of the Services and/or terminate this Agreement; and/or
at the time of such nonpayment, BMI may, delete any and all content from the BMI servers. Any such suspension or termination of the Services would not relieve You from paying past due fees plus interest.
1.6 Forfeiture of Property
Failure to make payment arrangements to rectify a disabled account within a period of ninety (90) days after the date of disablement will result in the property of such account, including any BMI subdomains, to be considered forfeited. BMI shall then have ownership rights and, without repercussion or
liability, utilize or dispose of such property as it sees fit.
2. USE OF SERVICES
2.1 Transactions for Third-Party Services
BMI offers You the opportunity to transact for Services by third parties through the Platform Services. The information contained in any offering by a third-party vendor is provided and written by the third-party, and BMI does not represent, warrant, or guarantee the accuracy, recentness, completeness,
or reliability of any description for a service being offered on BMI, and BMI is not responsible for, and disclaims any and all liability arising from or relating to such a listing. All purchases of any Services made by You constitutes a “direct” transaction between You and the relevant Vendor or Contractor.
You understand that BMI is NOT a party to the transaction between You and a Vendor and BMI only effectuates and facilitates the transaction between You and the Vendor or Contractor for the offered service. You understand that payments for service transactions are sent to the Vendor or Contractor, and
the Vendor or Contractor has the sole responsibility for fulfillment of Services, any warranty or guarantees, and customer service in the event there is a problem with the Services rendered. You understand that BMI provides a platform for communication and interaction between You and the vendor or contractor
for the purposes of warranty, guarantee, or customer service issues regarding a transaction made on BMI. BMI does not guarantee or warrant any Services rendered by any third-party or vendor, whether express or implied, and hereby disclaims any and all responsibility or liability by the actions or services
of any third-party or vendor offering Services herein.
2.2. Applicable Use Policy
The BMI Acceptable Use Policy (the "Usage Policy") govern the general policies and procedures for use of the Services and is described in Section 3.2 herein. This Usage Policy may be updated from time-to-time. YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY
THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. BMI RESERVES THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.
2.3. Material and Product Requirements
Unless BMI has agreed otherwise in a separate agreement in writing, You must ensure that all material and data placed on BMI' equipment is in a condition that is "server-ready," which is in a form requiring no additional manipulation or editing by BMI. BMI will make no effort to validate any of this
information for content, correctness or usability. If your material is not “server-ready," BMI has the option at any time to reject or remove this material. BMI will notify You of its refusal or disabling of the material and afford you the opportunity to amend or modify the material to satisfy the needs
and/or requirements of BMI. Use of the Services requires a certain level of knowledge in the use of Internet languages, protocols and software. This level of knowledge varies depending on the anticipated use and desired content of your Website. You must have the necessary knowledge to create and maintain
a Website. It is not BMI's responsibility to provide this knowledge or customer support outside of the Services agreed to by You and BMI.
2.4. Bandwidth and Storage Usage
You agree that use of the Services under this Agreement will not exceed the bandwidth and storage usage limits set out. If you use any bandwidth or storage space in excess of the agreed upon number of megabytes per month, You agree to pay the associated additional charges. Data stored in your user account
on a BMI server is not owned by BMI; therefore data preservation is the ultimate responsibility of You, the client or User. BMI is in no way responsible for your data and or the backup of said data.
2.5. Account Registration and Password
You understand that certain areas of the BMI service are unavailable without registering a user account with BMI. You understand that you have no ownership rights over the account, the account name, or any data within it, rather You are leasing the access to the account from BMI. BMI reserves the right
to decline access to the service to any person for any reason whatsoever. BMI also reserves the right to suspend or cancel service for a User account at any time. Certain users shall receive passwords to access different sections and additional privileges on the BMI Website. Except
as specifically permitted by this section, You may not disclose your BMI password to any third parties nor share it with any third parties. If You forget your password, please email us or contact us through this link buildmethod.com/passwordrecovery/.
2.6. Permitted Usage
to, any user’s ability to engage in real-time activities through this Website; (2) use any robot, spider, or automated device, process, or means to access this Website for any purpose, including to monitor or copy any of the material on this Website or application; (3) use any manual process to monitor
or copy any of the material on this Website, or to engage in any other unauthorized purpose without the express prior written consent of BMI; (4) otherwise use any device, software, or routine that interferes with the proper functionality and workings of the Website or application; (5) induce or encourage
a third-party to use any robot, spider, or automated device, process, or means to access this Website or application for any purpose, including to monitor or copy any of the material on this Website; or (6) otherwise attempt to interfere with the proper working of this Website or application.
3.1. Investigation of Violations
BMI may investigate any reported or suspected violation of this Agreement, its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and/or third parties. BMI will not access or review the contents
of any e-mail or similar stored electronic communications except as required or permitted by applicable law or legal process.
3.2. Unacceptable Uses/Usage Policy
BMI reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. BMI' right
to take corrective action, however, does not obligate us to monitor or exert editorial control over the information made available for distribution via the Services. If BMI takes corrective action due to such possible violation, BMI shall not be obligated to refund to you any fees paid in advance of
such corrective action. Examples of actions that violate this Agreement include but are not limited to:
Collecting or aggregating personal or other information about BMI users and visitors through BMI;
Distributing any sort of malware through BMI, including any virus, worm, script, trojan, or other programming routine;
Posting or distribution of unsolicited bulk commercial emails to BMI users, including junk mail, chain letters, pyramid schemes, or what is defined as “spam” according to the Controlling the Assault of Non-solicited Pornography and Marketing Act (CAN-SPAM Act);
Infringing on the protected patent, copyright, trademark, or trade secret of any third party or BMI;
Engaging in activities that would restrict or reduce the value of the user experience for visitors to BMI, including without limitation, hacking or engaging in a denial of service (DOS) attack;
Forging of Website headers or email content intended to disguise the origin of an email or Website as being owned by BMI, including “framing” or “mirroring” BMI;
Intercepting, decoding, mining, or collecting packets used to communicate between BMI and users, including any form of network monitoring, network analyzers, or packet sniffers;
Disrupting and/or overwhelming BMI services or hardware by creating an excessive and/or disproportionate bandwidth usage on BMI network and infrastructure, including its licensees and Agents;
Using any automated or manual process to “data mine” BMI or in any way copy or “scrape” the Website structure or presentation of BMI or its contents and security measures;
Posting comments or content that is contrary to the goodwill and reputation of BMI;
Posting content or taking actions that are defamatory, libelous, harassing, threatening, tortious, hateful, discriminatory, obscene, pornographic and/or invasive of privacy;
Violating any local, state, or federal laws, statutes, ordinances, or regulations or encouraging any user to engage in a criminal act or cause civil liability;
exploiting or profiting from the information contained in BMI, except as otherwise provided herein by these terms;
acting as an authorized representative of BMI to third-parties through statements and/or posts without the expressed written consent of BMI;
removing or disabling any copyright, trademark, or other notices contained in or on BMI;
sub-licensing, selling, renting, leasing, transferring, or assigning any rights under this Agreement to any third party, or commercially profit from the Information or Content contained in BMI, except as expressly permitted herein;
failing to honor offered coupons or promotions by BMI;
accessing BMI as an employee, representative, or contractor of a direct or indirect competitor to BMI; and
you may not post any reviews about a vendor, service provider or any of their products or services if you are (i) an employee, contractor, officer or director of the vendor and/or service provider; (ii) an employee, contractor, officer or director of a competitor of the vendor and/or service provider;
or (iii) related to the vendor and/or service provider in any way, including blood, adoption or by marriage. By posting a Review, you acknowledge and agree that such Content: 1. is based upon your first-hand experience with the vendor, service provider or product or service that is the subject of the
Review; 2. is accurate, truthful and complete.
If BMI becomes aware of any possible violation by You of this Agreement, any related policies or guidelines, third-party rights, or laws, BMI may immediately take corrective action, including, but not limited to:
suspending or terminating the account from the Service;
restricting or prohibiting any and all uses of content hosted on BMI' systems; and/or
disabling or removing any hypertext links to third party Websites, any of your content distributed or made available for distribution via the Services, or other content not supplied by BMI which, in BMI' sole discretion, may violate or infringe any law or third-party rights or which otherwise exposes
or potentially exposes BMI to civil or criminal liability or public ridicule.
3.3. Disclosure Rights
To comply with applicable laws and lawful governmental requests, to protect BMI' systems and customers, or to ensure the integrity and operation of BMI' business and systems, BMI may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile
information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on BMI' servers and systems. BMI also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators,
or other appropriate third parties without providing notice the user.
3.4 Hyperlinking to BMI
You may provide a hypertext link to this Website on a third-party Website, provided that:
the link must be an active, text-only link (you may NOT use any BMI logos or properties without prior written approval) clearly marked “Build Method;"
the link must "point" to the URL "http://www.buildmethod.com" and not to other pages within the Website;
the link, when activated by a user, must display BMI in full-screen on the designated browser and not within a "frame" on the linked Website;
the appearance, position and other aspects of the link may not be such as to disparage BMI or its services, damage or dilute the goodwill associated with BMI name and service marks, or to create the false appearance that an entity other than BMI is associated with or sponsored by BMI;
the link will not appear on pages including content which BMI finds in its sole discretion to be objectionable or which includes obscene, defamatory, offensive, pornographic, violent, intolerant, tasteless, denigrating or sexually-oriented content or materials; and
BMI reserves the right to revoke its consent to the link at any time in its sole discretion by amending this Site Notice. You acknowledge and agree that you are responsible for keeping up with any such changes.
All other hypertext links to this Website must be approved in writing by BMI. Inquiries may be directed to [email protected]. Use of a hyperlink does not indicate or create any endorsement, approval, sponsorship or affiliation of or with your Website. This
permission to hyperlink to BMI is provided without warranties of any kind, express or implied, including without limitation, warranties of title or of non-infringement.
You understand and acknowledge that it is difficult to calculate damages for breaches of this Agreement. You understand that you are liable for breaches of this Agreement by affiliates or third-parties (e.g. marketers) paid by you, directly or indirectly (e.g. through an affiliate network); and to compensate
BMI for breaching or inducing others to breach this Agreement, not as a penalty, but as a reasonable estimate of damages caused by the breach at a rate of: $0.10 per server request, $1 per post, email, flag, or account created, $1 per item of Personal Information collected, and $1000 per software distribution,
capped at a total of $15,000.00 per day that a breach occurs.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Your License Grant to BMI
You hereby grant to BMI a non-exclusive, irrevocable, worldwide, and royalty-free license for the Term of the Agreement to use Your content as necessary for the purposes of rendering and operating the Services to you under this Agreement. “Content” is defined for the purposes of this Agreement as any
material including audiovisual, video, graphical, audio, text (including suggestions, feedback, reviews, or other written text), or other work that may be considered copyrightable subject matter. You acknowledge that you have complete and proper title to license the content you provide to BMI. You irrevocably
waive any and all moral rights to any Content in favor of BMI and its successors, assigns, and licensees for the full term of any such rights. You expressly grant to BMI a non-exclusive license to (a) to copy, adapt, create derivative works of, edit, alter, censor, incorporate, distribute, publicly
display or otherwise use or exploit such Content, and cache your content that is distributed or made available for distribution via the Services, including content supplied by third parties, and (b) agree that such uses are not an infringement of any of your intellectual property rights or any third
party's intellectual property rights.
4.2. BMI Materials and Intellectual Property
All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by BMI or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by BMI to provide the Services
to you, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of BMI or its suppliers, including but not limited to any trademarks, service marks, software programs, inventions, products and/or
technology innovations and methodologies utilized, developed, or disclosed by BMI during the term of this Agreement. Unauthorized copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. You
may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement. You may not license any BMI common law or registered trademarks or service marks without first requesting a license in
writing to [email protected].
With respect to photographic, literary, or audio/visual works, and subject to BMI product and user experience considerations:
BMI will use commercially reasonable efforts to maintain the attribution of such photographs as submitted by You;
BMI will not license or sublicense individual photo Content or collections of photo Content submitted by you to third parties, except for BMI “Business Purposes.” “Business Purposes” means any use in connection with a BMI branded or co-branded Website, application, publication or service, or any use
which advertises, markets or promotes BMI, or its affiliates;
By way of example and not limitation, if you post or otherwise provide a photograph or video which includes an image of any person other than yourself, you must obtain permission or a release from such person appearing in the photograph or video to use their image and permit us to use and license the
photograph as stated in this Agreement and you must be the owner or licensee of the copyright in the photograph, with the right to permit BMI to use the photograph as stated in this Agreement;
By way of further example and not limitation, if you post or otherwise provide a photograph of a pictorial, graphic, sculptural or architectural work that is protected by a third party’s copyright, you need to first obtain permission or a license from the owner of the copyright in such work to reproduce
and adapt their work and permit BMI to use it as stated in this Agreement;
You agree not to post or provide any Content that belongs to any person other than yourself or that contains the name, voice or likeness of any person other than yourself unless you first obtain permission to do so, and to grant to us the rights granted in this agreement, from that person;
If you identify yourself by name and/or provide a photograph, audio, or video recording of yourself, you further authorize BMI and its affiliates, licensees and sublicensees, without compensation to you or others, to reproduce, print, publish and disseminate in any format or media (whether now known
or hereafter created in the future) your name, voice, and likeness worldwide for advertising, promotional, or other purposes, and such permission shall be perpetual and cannot be revoked for any reason;
BMI cannot and does not guarantee that BMI will post all Content submitted or that such content will not be offensive, defamatory or objectionable. Although BMI reserves the right to remove without notice any Content for any reason, BMI has no obligation to delete Content that may be personally objectionable
BMI does not control in real time the Content posted via the Services and as such do not guarantee the accuracy, integrity or quality of such Content; and
In addition to other disclaimers found in this Agreement, BMI does not endorse or make any warranties or representations with respect to the accuracy, completeness or timeliness of any Content posted on the Website.
4.4 . Trademarks
You hereby grant to BMI a limited right to use your trademarks, if any, for the limited purpose of permitting BMI to fulfill its duties under this Agreement. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without
limitation, the rights granted by this Agreement do not include the right to sub-license use of your trademarks or to use your trademarks with any other products or services outside the scope of the Services provided under this Agreement. The limited trademark use rights granted under this section terminate
upon termination of this Agreement.
The works of authorship contained in this Website, including but not limited to all design, text and images, are owned or licensed by BMI. and may not be copied, reproduced, transmitted, displayed, performed, distributed, rented, sub-licensed, altered, stored by subsequent use, or otherwise used in
whole or in part in any manner without our prior written consent, except that you may make such temporary copies in a single computer's RAM and hard drive cache as are necessary to browse the Website, and you may make one permanent printout of each page of the Website (unmodified in form, with a copy
of this Site Notice attached) to be used by you for personal and non-commercial uses that do not harm the reputation of BMI.
5. Digital Millennium Copyright Act ( “ DMCA ” ) Policy
5.1. DMCA Takedown Notifications
TBS is a valid service provider under 17 U.S.C. § 512(c) of the Copyright Act. Our organization complies in full with all valid DMCA takedown notices. We shall terminate the accounts of repeat infringers of the DMCA policy. If you believe that your work has been uploaded or reproduced in connection
with TBS Services in a manner that constitutes copyright infringement, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing:
(i) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest,
(ii) identification of the copyrighted work claimed to have been infringed,
(iii) a description of where the material that you claim is infringing is located within the Services,
(iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address,
(v) a signed statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and
(vi) a signed statement that the information in the notification is accurate, and under penalty of perjury, that you are the copyright owner or you are authorized to act on behalf of the owner.
Upon receipt of a complete and valid DMCA notice, our agent shall remove the reported content from TBS. Please note that pursuant to 17 U.S.C. § 512(f) of the DMCA, incomplete and invalid takedown notices will not be actioned by TBS and you may be liable for attorney's fees under federal law for sending
an invalid DMCA notice.
5.2. DMCA Counter-Notifications
As a subscriber or user of TBS, if you have copyrighted content or have a valid license for the reported work that has been removed mistakenly, you have the opportunity to send a counter-notification to our DMCA agent containing the following information:
(i) A physical or electronic signature of the content provider, member or user;
(ii) Identification of the material that has been removed or to which access has been disabled and the
location at which the material appeared before it was removed or disabled;
(iii) A statement that the content provider, member or user has a good faith belief that the material
was removed or disabled as a result of mistake or a misidentification of the material; and
(iv) Content provider's, member's or user's name, address, telephone number, and, if available, e-mail
address and a statement that such person or entity consents to the jurisdiction of the Federal Court
for the judicial district in which the content provider's, member's or user's address is located, or if the
content provider's, member's or user's address is located outside the United States, for any judicial
district in which Company is located, and that such person or entity will accept service of process
from the person who provided notification of the alleged infringement.
Upon sending a valid counter-notification, TBS will forward the counter-notification to the complaining party and inform them that TBS will reinstate the reported content within ten (10) business days of receipt of the counter-notification. If the complaining party files an action for copyright infringement
or for an injunction and the court order or complaint is forwarded to TBS, the content shall remain disabled until a judgment has been issued or a settlement between the parties has been reached allowing the content to be displayed.
All notifications and counter notifications related to reports of copyright infringement should be submitted to:
Build Method, Inc.
Attn: Build Method Legal Department
390 Interlocken Crescent Suite 350
Broomfield, Colorado 80021
6. WARRANTY; WARRANTY DISCLAIMER
6.1. Customer and/or Third Party Acts
BMI is not responsible in any manner for any non-confirming Services to the extent caused by you or your customers. In addition, BMI is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond BMI' reasonable control.
6.2. No Express or Implied Warranty
ALL SERVICES, SYSTEMS AND PRODUCTS PROVIDED BY BMI UNDER THIS AGREEMENT ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTY IN FACT OR IN LAW, WHATSOEVER. YOU ACKNOWLEDGE AND AGREE THAT BMI EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, THE CONTENT OF THE INFORMATION PASSING THROUGH
BMI' COMPUTERS, NETWORK HUBS AND POINTS OF PRESENCE, OR THE INTERNET. BMI DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, FREE FROM VIRUSES OR MALWARE, OR COMPLETELY SECURE, AND DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK
INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY FAILURE DUE TO COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BMI DOES NOT MAKE AND HEREBY
DISCLAIMS, AND YOU HEREBY WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, OR CONDITIONS
OF QUALITY, ANY WARRANTIES WITH RESPECT TO PATENT, COPYRIGHT, TRADE SECRET OR TRADEMARK INFRINGEMENT, AND ANY WARRANTIES THAT THE INFORMATION AND Website IS CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. BMI OFFERS NO WARRANTY, REPRESENTATION
OR GUARANTEE WITH RESPECT TO PRODUCTS AND SERVICES OFFERED BY THIRD-PARTY VENDORS ON BMI. BMI DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS OR GUARANTEES EXPRESS OR IMPLIED, WITH RESPECT TO THE SAFETY, QUALITY, SAFETY, LEGALITY OR OTHER ASPECTS OF SUCH SERVICES, OR WITH RESPECT TO THE ACTIONS OF
ANY THIRD-PARTY SELLER IN ASSOCIATION WITH POTENTIAL OFFERS OR SALES THROUGH BMI.
6.3. Third-Party Hyperlinks
BMI Websites and applications may include hyperlinks to one or more third-party Websites for educational purposes or convenience. BMI is not responsible for the content of the hyperlinked Websites, they do not have any control over the Websites, nor have they screened the Websites. Any use of a hyperlinked
6.4. Your Warranties and Representations to BMI
You warrant, represent, and covenant to BMI that:
you are at least eighteen (18) years of age or are a duly organized and validly existing entity;
you possess the legal right and ability to enter into this Agreement;
you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines;
you will be financially responsible for the use of your account;
you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Websites or other content;
you have provided accurate, current, and complete information about yourself or your organization
you agree to maintain and update your information submitted to BMI to maintain its accuracy, currentness, and completeness.
you have verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and
our content and/or any software that you install or provide does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
7. LIMITATION AND EXCLUSION OF LIABILITY
7 .1. Limitations
IN NO EVENT SHALL BMI HAVE ANY LIABILITY WHATSOEVER FOR DAMAGE, UNAUTHORIZED ACCESS TO, ALTERATION, THEFT OR DESTRUCTION OF INFORMATION PROVIDED TO BMI, DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES. BMI SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF BMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF BMI TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO BMI BY YOU UNDER THIS AGREEMENT DURING THE THIRTY (30) DAYS
IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY
BMI UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU HEREBY RELEASE BMI FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIM IN EXCESS OF THE LIMITATION STATED IN THIS SECTION 6.1. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
7.2. Interruption of Service
You hereby acknowledge and agree that BMI is not liable for any temporary delay, outages or interruptions of the Services. Further, BMI shall not be liable for any delay or failure to perform its obligations under this Agreement, where such delay or failure results from any act of God or other cause
beyond its reasonable control (including, without limitation, any mechanical, electronic, communications or third-party supplier failure).
7 .3. Maintenance
You hereby acknowledge and agree that BMI reserves the right to temporarily suspend services for the purposes of maintaining, repairing, or upgrading its systems and network. BMI will use reasonable efforts to notify You of pending maintenance however at no time is under any obligation to inform You
of such maintenance.
You will defend, indemnify and hold harmless BMI and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnity") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines,
penalties, liabilities, costs and expenses of any nature, including attorneys' fees and court costs, sustained or incurred by or asserted against any Indemnity by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to:
your violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline;
your conduct, including but not limited to your negligence, gross negligence, or willful misconduct;
your use of the Services, including any improper or illegal uses;
any claim by a former employee or contractor of yours whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by BMI; or
any claim relating to your services or products, or your installation and/or use of any third-party software, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or nonproprietary right of a third party (including, without
limitation, defamation, libel, or violation of privacy or publicity).
The parties each agree that all Confidential Information (as defined below) communicated to it by the other is done so in confidence and will be used only for the purposes of this Agreement and will not be used to compete with the other party or disclosed to any third party without the prior written
consent of the other party except as permitted under this Agreement. "Confidential Information" is defined as all information in any form, including, without limitation, printed or verbal communications and information stored in printed, optical or electromagnetic format, which relates to the Services;
or computer, data processing or electronic commerce programs and software; electronic data processing applications, routines, subroutines, techniques or systems; information which incorporates or is based upon proprietary information of either party; or information concerning business or financial affairs,
product pricing, financial conditions or strategies, marketing, technical systems of either party; or any information concerning customers or vendors of either party; or any data exchange between a party and any customers or vendors. Exceptions to Confidential Information include (1) information in
the public domain; (2) information developed independently by a party without reference to information disclosed under this Agreement; or (3) information received from a third party without restriction and/or breach of this or a similar Agreement. It is not a violation of this provision to disclose
Confidential Information in compliance with any legal, accounting or regulatory requirement beyond the control of either Party or, but in such case, prior to disclosure, the disclosing Party shall give written notice to the other Party to permit that Party an opportunity to challenge such disclosure.
If either Party is subpoenaed, such Party shall give written notice to the other Party to permit that Party an opportunity to challenge the disclosure of Confidential Information. Upon the termination of this Agreement and upon written request of the disclosing Party, each Party shall promptly return
all Confidential Information of the other Party. This provision shall survive the termination of this Agreement for two (2) years.
All notices, reports, requests, or other communications given pursuant to this Agreement shall be made in writing, shall be delivered by hand delivery, overnight courier service, fax, or electronic mail, shall be deemed to have been duly given when delivered.
9.3. Choice of Law and Forum
THIS AGREEMENT, WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES AND THE STATE OF COLORADO, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION RELATING TO THIS AGREEMENT MUST BE BROUGHT IN THE FEDERAL OR STATE COURTS LOCATED IN COLORADO, AND YOU IRREVOCABLY CONSENT TO THE VENUE AND THE
JURISDICTION OF SUCH COURTS.
9.4. Entire Agreement
This Agreement and all policies and guidelines incorporated in this Agreement by reference constitutes the entire Agreement of the parties and may not be modified or altered orally but only by a separate agreement in writing duly signed by the Parties.
9.5. No Fiduciary Relationship
BMI is not the agent, fiduciary, trustee or other representative of You. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement.
This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
You may not transfer or assign your rights, duties, or obligations under this Agreement without BMI' prior written consent. BMI may assign its rights and obligations under this Agreement and may utilize affiliate and/or agents in performing its duties and exercising its rights under this Agreement,
without your consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assignees.
9.7. No Waiver
BMI's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of BMI's right to subsequently enforce such provision or any other provisions under this Agreement.
If any provision of this Agreement is deemed illegal, invalid, void or otherwise unenforceable in whole or in part, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of the provision and the Agreement shall remain in full force and effect. If
any provision of this Agreement is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.
9.10. California Users
Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd.,
Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
9.11. Dispute Resolution
Any controversy or claim arising out of or relating to the terms or obligations created under this Agreement, or the breach thereof, shall be settled by binding arbitration, and the then current rules and procedures of AAA. The arbitration shall be a confidential proceeding, closed to the general public.
The arbitration will take place in Denver, Colorado, and be conducted in the English language. The decision rendered by the arbitrator shall be deemed by the Parties as final and binding upon the Parties hereto, and any judgment upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. For clarification purposes, nothing in this paragraph shall affect BMI’ ability to seek from a court injunctive or equitable relief at any time for a breach of this Agreement.
9.12. Attorneys ’ Fees
In the event of collection enforcement or other proceeding to enforce or interpret this Agreement or matters relating to it, the prevailing party will be entitled to recover reasonable attorney's fees and other costs and expenses that were associated with the arbitration or proceeding from the other