Terms & Conditions (1/1/2017)

PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY.  IT CONSTITUTES A BINDING CONTRACT BETWEEN YOU, THE AUTHORIZED USER, AND  THE ENTITY WHICH EMPLOYS YOU, IF ANY (COLLECTIVELY, “YOU”), AS THE LICENSEE, AND BEXI, INC. (“BEXI”) AS THE LICENSOR IN REGARD TO YOUR USE OF THE BEXI™ SERVICE & PLATFORM, A SCALABLE ON-DEMAND CREATIVE SERVICES DELIVERY SERVICE & PLATFORM CREATED FOR MARKETING TEAMS, WHICH DELIVERS RESULTS-DRIVEN BRAND EXPERIENCES THROUGH AN OPEN-SCOPE FRAMEWORK. (“THE SERVICE & PLATFORM”).  BY CLICKING THE “I AGREE” BUTTON, YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU.   IF YOU DO NOT AGREE TO THE FOREGOING AND ALL THE TERMS AND CONDITIONS PROVIDED BELOW, AND YOU SO INDICATE YOUR DISAGREEMENT BY FAILING TO CLICK THE “I AGREE” BUTTON, YOU ARE NOT AUTHORIZED TO USE THE SERVICE & PLATFORM IN ANY MANNER WHATSOEVER.

 

  1. 1. The License.
      1. 1.1 License.  Subject to the terms and conditions of this Agreement, Bexi hereby grants to You a non-exclusive, revocable, non-transferable, non-assignable and non-sublicensable, limited license to use the SERVICE & PLATFORM, and any SaaS upgrades provided to You under this Agreement, solely via the SERVICE & PLATFORM portal for the on the Bexi.io website (“Site”) and solely in accordance with this Agreement (“License”).

     

      1. 1.2 Subscription and Fees.  You understand and acknowledge that to use the SERVICE & PLATFORM You are required to purchase a subscription (“Subscription”).  Details regarding the three subscription levels (Micro Tier, Core Tier, Pro Tier, Elite Tier), their various features, capabilities, billing choices (in general, billing will be monthly), and points, are delineated on the Plans & Pricing page of the Site, the terms of which are incorporated into this Agreement.  Your status as a licensee of the SERVICE & PLATFORM is dependent upon keeping your Subscription current and paid-up at all times, and You understand and acknowledge that Bexi shall have the ongoing right to suspend or terminate the License if You do not comply with the specified Subscription payment terms.

     

      1. 1.3 Upgrading Your Subscription.  You may upgrade Your Subscription at any time, and the fees for such upgrade will be reflected in Your bill for the subsequent month of your Subscription.  See the Plans & Pricing page on the Site for details.

     

      1. 1.4 Downgrading Your Subscription.  If You want to downgrade Your Subscription, You must wait until Your Subscription completes the Initial Term and enters a Renewal Term (as defined below).  Only one downgrade is allowed per year of Your Subscription.  A downgrade will become effective on the first day of the new billing month after the date on which the downgrade request was made.  See the Plans & Pricing page on the Site for details.        

     

      1. 2. License Restrictions and User Behavior.  You hereby understand, acknowledge, and agree that You will not do any of the following: alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the SERVICE & PLATFORM in whole or in part; and/or remove any proprietary notices of copyright or trademark ownership, any watermarking, or any other proprietary notices or language referring to Bexi’s ownership of the SERVICE & PLATFORM; and/or copy, reproduce, publish, distribute, or redistribute any of the SERVICE & PLATFORM, in whole or in part, to any person who is not authorized to use the SERVICE & PLATFORM pursuant to this Agreement; and/or attempt to sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the SERVICE & PLATFORM, any rights granted under this Agreement, or any intellectual property rights owned by Bexi, to any other person or entity; and/or provide any other person or entity access to the SERVICE & PLATFORM by means of Your username and/or Your password; and/or attempt to lend, lease, license, sublicense, transfer, assign, sell, or resell your username(s) and password(s) to any other person or entity; and/or decompile, disassemble, translate or reverse engineer any portion of the SERVICE & PLATFORM, or  otherwise discover or duplicate any technology, routines, computer code, algorithms, methods or underlying ideas or design or user interface techniques included in any portion of the SERVICE & PLATFORM; and/or monitor, gather, copy, or distribute any content or data included in the SERVICE & PLATFORM by using any robot, rover, “bot,” spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; and/or insert any code or product to manipulate the SERVICE & PLATFORM in any way; and/or make or attempt to make any commercial use or exploitation of the SERVICE & PLATFORM; and/or circumvent, disable or otherwise interfere with the security features of the SERVICE & PLATFORM, or any features that prevent or restrict use or copying of any portion of the SERVICE & PLATFORM; and/or use the SERVICE & PLATFORM to collect or harvest any personally identifiable information (“PII”), including usernames and passwords of others; and/or use the SERVICE & PLATFORM to create multiple accounts under false or fraudulent pretenses; and/or use the SERVICE & PLATFORM to create or transmit unsolicited electronic communications; and/or use the SERVICE & PLATFORM to transmit any harmful code sequence or routines; and/or use the SERVICE & PLATFORM to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or claim the SERVICE & PLATFORM as your property, your creation, or your work of authorship, in whole or in part; and/or contest or dispute Bexi’s ownership of the SERVICE & PLATFORM and all intellectual property rights in the SERVICE & PLATFORM; and/or use the SERVICE & PLATFORM after the termination date of this Agreement; and/or use the SERVICE & PLATFORM, in whole or in part, in any manner not authorized by this Agreement.

     

      1. 3. Intellectual Property Ownership.

     

      1. 3.1 The SERVICE & PLATFORM.  Title and ownership of all proprietary rights, including any copyright, patent, trade secret, trademark or other intellectual property rights, in and to the SERVICE & PLATFORM and Documentation, and any copies thereof, including all updates, enhancements and modifications to the SERVICE & PLATFORM, is and will at all times remain the property of Bexi and/or its licensors.  Bexi and/or its licensors retain all right, title and interest in and to the SERVICE & PLATFORM and Documentation that are not specifically granted to You hereunder.  You shall not remove or obliterate any copyright, trademark or proprietary rights notice of Bexi or its licensors from the SERVICE & PLATFORM or Documentation.  You understand, acknowledge, and agree that You shall not obtain or acquire ownership rights of any kind in the SERVICE & PLATFORM under this Agreement and that Your use of the SERVICE & PLATFORM under the License is use as a licensee only.

     

      1. 3.2 Content You Create with the SERVICE & PLATFORM.  You shall own all rights, title and interest, including the copyright, in any content You create using the SERVICE & PLATFORM.   

     

      1. 4. Term and Termination.

     

      1. 4.1 The Term.  This Agreement shall become operative on the date on which it is executed by You (“Effective Date”), and it shall remain in effect for one year (“Initial Term”).  On the anniversary of the Effective Date, this Agreement shall automatically renew for successive one-year periods (each a “Renewal Term”) until it is terminated.  Together, the Initial Term and any Renewal Term(s) shall be referred to as the “Term” of this Agreement.

     

      1. 4.2 Cancellation by You.  You may cancel this Subscription agreement at any time.  A cancellation fee will apply. If you cancel prior to the end of the Initial Term or a Renewal Term, the cancellation fee shall include the current month of Your subscription plus the fee for an additional month. See the Plans & Pricing page for further details.

     

      1. 4.3 Termination by Bexi.  You understand, acknowledge, and agree that Bexi shall have the right to terminate your License under this Agreement immediately upon written notice if, in Bexi’s sole discretion and judgment, You fail or have failed to comply with any provision of this Agreement.  Upon termination, You shall immediately cease Your use of the SERVICE & PLATFORM, and You shall comply with Bexi’s instructions regarding the return or destruction of any copies of Bexi’s documentation, if any, in Your possession or control.  All provisions of this Agreement which by their nature contemplate continuing performance after termination shall survive any such termination.

     

      1. 5. Consent to Use of Analytics.  You agree that Bexi and our affiliates and agents may collect, maintain, process and use diagnostic, technical, usage and related information and other non-PII data associated with and derived from Your use of the SERVICE & PLATFORM pursuant to the License (“Analytics”), which Analytics are gathered periodically to facilitate the provision of updates, support and other services provided to You (if any) related to the SERVICE & PLATFORM, and to verify Your compliance with the terms of this Agreement.  You further acknowledge and agree that Bexi shall own Analytics and that Bexi may use the Analytics to provide services or technologies to You, to improve Bexi’s products and services, and to market the SERVICE & PLATFORM.

     

      1. 6. Your Representations and Warranties.  You represent and warrant that You have the authority to enter into this Agreement; that You will cooperate with Bexi in regard to all instructions, rules, and procedures related to the proper functioning of the SERVICE & PLATFORM under this Agreement; that you will safeguard your account information (including any passwords and access codes) from access by unauthorized persons and that you will hold it secure with at least reasonable care; that You will abide by all of Your obligations under this Agreement and will perform such obligations promptly and diligently; and that You will comply with all laws and regulations applicable to this Agreement.

     

      1. 7. Indemnification Obligations.

     

      1. 7.1 Your Indemnification Obligation.  You shall indemnify and hold harmless Bexi, its officers, directors, employees, agents, and representatives from, and, at Your expense, shall defend Bexi against, any loss, damage or expense (including reasonable and directly related legal costs) that Bexi incurs or becomes liable for as a result of any breach by You of any of the terms of this Agreement; any negligent, reckless or willful act or omission by You or Your agents or others for whom You are responsible; any failure by You to comply with applicable laws in performing under this Agreement; any misuse by You of the SERVICE & PLATFORM; or, any claim made against Bexi by any third party for which Bexi is not liable under this Agreement, and which arises as a consequence of Your use of the SERVICE & PLATFORM.  You shall reimburse Bexi for its expenses under this Section as they are incurred.  Bexi shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder. You, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of Bexi obtained in advance, enter into any settlement which adversely affects Bexi’s rights or which does not include, as an unconditional term, a release granted to Bexi of all liabilities in respect of such claim, action or proceeding.   

     

      1. 7.2 Bexi’s Indemnification Obligation.  Bexi shall indemnify, defend and hold You harmless against any claim or action brought by a third party against You to the extent based upon any claim that the SERVICE & PLATFORM infringes the intellectual property rights of such third party.  You shall promptly notify Bexi in writing of any such claim, give Bexi full authority and control of the settlement and defense of the claim, and fully cooperate with Bexi in the defense of such claim.  Bexi shall have no obligation to You under this Section 7.2 for any claim that arises from: (a) any modification to the SERVICE & PLATFORM made by anyone other than Bexi; (b) any use by You of the SERVICE & PLATFORM other than as specified in this Agreement or in any documentation provided to you by Bexi; or (c) Your use of prior versions of the SERVICE & PLATFORM after an update has been provided by Bexi to You. If a claim under this Section 7.2 arises, or in Bexi’s opinion is likely to arise, Bexi may at its own expense obtain for You the right to continue using the SERVICE & PLATFORM, may modify the SERVICE & PLATFORM to make it non-infringing, or may substitute other SaaS software of similar capability and functionality.  If none of the foregoing options is reasonably available to Bexi, Bexi may terminate the License and refund to You the License fees paid, less the fees for Your use of the SERVICE & PLATFORM prior to such termination.  THIS SECTION 7.2 STATES THE ENTIRE INDEMNIFICATION OBLIGATION OF BEXI AND YOUR EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS BROUGHT AGAINST YOU AND FOR WHICH YOU MAY SEEK INDEMNIFICATION.

     

      1. 8. Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BEXI AND ITS LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  THE SERVICE & PLATFORM AND ANY DOCUMENTATION AND/OR UPDATES ARE PROVIDED “AS IS.”  BEXI DOES NOT WARRANT THAT THE SERVICE & PLATFORM OR THE FUNCTIONS CONTAINED IN THE SERVICE & PLATFORM WILL MEET YOUR REQUIREMENTS, ACHIEVE YOUR OPTIMUM DESIRED RESULT, OPERATE WITHOUT INTERRUPTION, OR BE ERROR FREE.    

     

      1. 9. Limitations of Liability.  IN NO EVENT WILL BEXI OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OR INACCURACY OF INFORMATION, REGARDLESS OF THE FORM OF ACTION, EVEN IF THE CLAIM WAS REASONABLY FORESEEABLE OR IF BEXI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY REMEDY.  IN NO EVENT WILL BEXI BE LIABLE FOR ANY ACTION WHICH YOU TAKE OR FAIL TO TAKE IN REGARD TO YOUR USE OF THE SERVICE & PLATFORM.  IN NO EVENT WILL BEXI’S OR ITS LICENSORS’ AGGREGATE LIABILITY UNDER ANY AND ALL CLAIMS RELATING TO THE SERVICE & PLATFORM OR OTHERWISE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE LICENSE GRANTED HEREUNDER.  Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply to You.  The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.

     

      1. 10. Consent to Promotional Activities.  As a licensee of the SERVICE & PLATFORM, You consent to Bexi’s use of Your name and any publicly available information about your use of the SERVICE & PLATFORM in Bexi’s client lists, press releases, advertising, and other promotional materials.     

     

      1. 11. Miscellaneous General Provisions.

     

      1. 11.1 If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

     

      1. 11.2 This Agreement shall be governed by and construed under the laws of the United States and of the state of California without reference to its conflict of law principles.  You and Bexi agree to submit to the exclusive and personal jurisdiction of the state and federal courts sitting in the federal Northern District of California. You irrevocably waive all immunity from jurisdiction, attachment and execution, whether on the basis of sovereignty or otherwise, to which You might otherwise be entitled in any legal action or proceeding in any state or federal court of competent jurisdiction, including such courts located in the State of California, arising out of this Agreement.  In the event of any action to enforce the terms of this Agreement, the prevailing party in such action shall be entitled to such party’s reasonable costs and expenses of enforcement including, without limitation, reasonable attorneys’ fees.
      2. 11.3 A waiver, by a party, of any default by the other party does not constitute a waiver of any subsequent default.

     

      1. 11.4 You may not assign or otherwise transfer any of Your rights or obligations hereunder, in whole or in part, without Bexi’s written consent obtained in advance, and any such unconsented attempt to assign rights or obligations shall be void.

     

      1. 11.5 You acknowledge and agree that a material breach of this Agreement adversely affecting Bexi’s proprietary rights would cause irreparable harm to Bexi for which a remedy at law would be inadequate, and therefore that, without having to post a bond in advance, Bexi shall be entitled to apply to any court having jurisdiction over You to obtain injunctive relief in addition to any remedies Bexi may have under this Agreement or at law.

     

    1. 11.6 This Agreement is the complete agreement between You and Bexi concerning the subject matter hereof, and supersedes any and all prior agreements and representations between Bexi and You and relating to the same subject matter.