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. The License.
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 on the www.Bexi.io website (“Site”) and solely in accordance with this Agreement (“License”).
1.2 Free Trial.
Your Bexi License may start with a free trial. The free trial is
intended to allow new members to try the service during the time
required to complete 1 designated project, for a period of seven days up
to one month, or until the agreed upon Project has been completed. At
our discretion, we reserve the right to hold a Payment Method on file in
order to initiate a Free Trial.
1.3 Free Trial Project.
During the Free Trial, We will work with You to determine a
Project that will demonstrate our creative services. You shall own all
rights, title and interest, including the copyright, in any content
unless otherwise agreed upon.
1.4 Free Trial Eligibility.
Eligibility is determined by Bexi at its sole discretion and we may
limit eligibility or duration to prevent free trial abuse. Employees of
businesses with an existing or recent Bexi trial or Subscription are not
eligible. We may use information such as method of payment, device ID
or account email address used with an existing or recent Bexi
Subscription to determine eligibility. We reserve the right to revoke
the free trial and put your account on hold in the event that we
determine that you are not eligible.
1.5 Free Trial Term.
The term of your Free Trial is between 7 and 30 days from activation,
unless otherwise specified. At the end of the Free Trial Term, and upon
clicking “I Approve” (on the agreement) (on the billing page of your account)Your
Subscription commitment is for six months and will automatically renew
monthly at the Basic tier unless otherwise specified or you cancel your
membership prior to the end of the free trial period. To view
your membership price and end date of your free trial period, please
refer to the confirmation email that was sent to you upon registration.
1.6 Payment Methods. To use the Service and Platform you must provide one or more Payment Methods. You can update your Payment Method(s) at any time by emailing AP@bexi.io.
We may also update your Payment Methods using information provided by
the payment service providers. Following any update, you authorize us to
continue to charge the applicable Payment Method(s). You authorize us
to charge any Payment Method associated to your account in case your
primary Payment Method is declined or no longer available to us for
payment of your Subscription fee. You remain responsible for any
uncollected amounts. If a payment is not successfully settled, due to
expiration, insufficient funds, or otherwise, and you do not cancel your
account, we may suspend your access to the service until we have
exhausted our Collection Rights. For some Payment Methods, the issuer
may charge you certain fees, such as foreign transaction fees or other
fees relating to the processing of your Payment Method. Consult your
Payment Method service provider for details.
1.7 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 (Basic Tier, Pro Tier,
Business Tier), their various features, capabilities, billing choices
(in general, billing will be monthly, semi-annually or annually), and
rates, are delineated on the Plans & Pricing page of the Site, the
terms of which are incorporated into this Agreement. As special
incentive, payment for the 12 month term up-front receives 1 month
credit towards total subscription. 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
1.8 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
1.9 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
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.
3. Intellectual Property Ownership.
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.
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.
4. Term and Termination.
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.
4.2 Cancellation by You.
You may cancel this Subscription agreement at any time. A
cancellation fee may 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.
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.
4.4 Collection Rights. Without
limiting our other rights, we may set-off or deduct any amount you owe
us from your balance, Payment Method(s) on file, and/or other payment
instrument(s) registered with us. If we are unable or do not wish in our
sole discretion to set-off any amount you owe us or our Affiliates, you
will immediately pay us, upon demand, such amount. You also agree to
pay all costs and expenses associated with collection in addition to the
amount collected, including without limitation any applicable interest,
attorneys’ fees, court costs, collection agency fees, and other legal
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.
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.
7. Indemnification Obligations.
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
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
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.
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.
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.
11. Miscellaneous General Provisions.
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.
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
11.3 A waiver, by a party, of any default by
the other party does not constitute a waiver of any subsequent default.
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.
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.
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.