General Terms and Conditions
SITE ACCESS AGREEMENT
IMPORTANT – READ CAREFULLY BEFORE ACCESSING THIS SITE. YOUR ACCESS TO THIS SITE IS PERMITTED FOR DEMONSTRATION PURPOSES ONLY, AND IS GOVERNED BY A SITE ACCESS AGREEMENT BETWEEN BP LOGIX, INC. (“COMPANY”) AND YOU (OR A PARTY AUTHORIZED TO BIND YOU; “USER”) AS AGREED BY YOU AFTER REVIEWING AND ACCEPTING THIS SITE ACCESS AGREEMENT (“AGREEMENT”). EXCEPT AS OTHERWISE PROVIDED IN A PREVIOUSLY EXECUTED AND STILL VALID SOFTWARE LICENSE OR CLOUD EDITION SERVICES AGREEMENT BETWEEN USER AND COMPANY, THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN USER AND COMPANY. USER MUST ACCEPT THE TERMS OF THIS AGREEMENT BEFORE USER CAN EXERCISE ANY OF THE RIGHTS UNDER THIS AGREEMENT. IF USER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD NOT LOG INTO OR OTHERWISE ATTEMPT TO ACCESS THIS SITE. BY LOGGING INTO THIS SITE, YOU UNDERSTAND AND AGREE THAT (1) COMPANY HAS PREVIOUSLY GRANTED YOU PERMISSION TO LOG INTO THIS SITE, FOR DEMONSTRATION PURPOSES ONLY AND SUBJECT TO YOUR ACCEPTANCE OF THIS AGREEMENT, AND (2) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF USER AND (3) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT ON BEHALF OF USER. IF YOU LOG INTO THIS SITE, THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”).
In this Agreement, unless the context otherwise requires:
a. Confidential Information means any information which is marked as confidential, or which, by its nature or circumstances of disclosure, would reasonably be presumed to be confidential including, without limitation, each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such party’s Confidential Information whether or not such items are so marked. Despite the foregoing, Confidential Information will not include any information which:
i. is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement);
ii. is or becomes generally available to the public through no fault of the receiving party;
iii. is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction;
iv. is disclosed by the receiving party with the disclosing party’s approval; or
v. is independently developed by the receiving party without any use of confidential information.
b. Personal Information (or PI) mean an individual’s first name or first initial and last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted: (1) social security number; (2) driver’s license number or other government-issued identification number; (3) account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual’s financial account.
c. Process Director Software means the software, documentation, configurations, settings, data, and other intellectual property through which the Services are delivered.
d. Services means this web site, including without limitation Process Director Cloud Edition, hosted at Company’s facility (or that of its service provider) and accessed by you via the commercial Internet, in a manner consistent with Company’s published documentation and this Agreement.
e. Shared Platform means the Process Director Software, and the computing, storage, networking, and other hardware and software infrastructure used in providing the Services and/or related services to you or to the Company’s other customers.
f. Use (when used in connection with Services) means your authorized use of the Services for demonstration purposes in accordance with this Agreement and applicable law.
g. Your Data means all data provided by you and stored on the Shared Platform.
2. Control of the Services; No Obligation
a. The method and means of providing the Services shall be under the exclusive control, management, and supervision of BP Logix.
3. Your Obligations; No Production Use
a. You will maintain proper password security, and you will not access the system from any public computing devices such as might be made available at an airport or hotel business center.
b. You will Use the Services subject to the terms and conditions of this Agreement. You acknowledge that the Services are provided on a shared, multi-tenant platform, and that BP Logix may take such steps as may be necessary to prevent you, from infringing on the ability of others to reasonably Use the Services.
c. You are responsible for your actions in connection Using the Services, and those of any other individuals to whom you have given access to the Services.
d. You are authorized, for the duration of this Agreement, to Use the Services for demonstration purposes only, and for no other purpose.
a. BP Logix does not promise that the Services will be uninterrupted, error-free, or secure, nor that the Services will continue to be made available to you or any other party.
b. BP Logix disclaims any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for the suitability of the Services.
c. The Services, as well as any other services for which BP Logix is not contractually obligated that it may, from time to time, provide at no charge at your request, are provided on an as-is basis.
5. No Indemnities; No Warranties; Disclaimer
a. THIS AGREEMENT DOES NOT ENTITLE YOU TO ANY INDEMNIFICATION OF ANY KIND. THE SERVICES ARE PROVIDED “AS IS.” THE COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR SUCCEED IN RESOLVING ANY PROBLEM. YOU FURTHER AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK. NEITHER THIS AGREEMENT NOR YOUR ACCESS TO THE SERVICES ENTITLE YOU TO RECEIVE TRAINING, SUPPORT OR MAINTENANCE SERVICES FROM THE COMPANY.
6. Limitation of Liability
A. TO THE MAXIUMUM EXTENT ALLOWABLE BY LAW, THE COMPANY IS NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF THE COMPANY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO THE COMPANY UNDER THIS AGREEMENT.
a. The Process Director Software is the intellectual property of BP Logix and its licensors. All licenses, copyrights, trademarks and other intellectual property rights to the Process Director Software are the exclusive property of the BP Logix or its licensors. Title to the Process Director Software and all modifications thereto shall remain with BP Logix or its licensors. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to the site are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by you of any such parts of the site or the Services, except as expressly authorized by this Agreement, is prohibited.
b. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of Your Data. You grant to the Company a license to Your Data hereunder for the sole and exclusive purpose of providing the Services, including a license to store, record, transmit, maintain, and display your data only to the extent necessary to provide the Services to you.
8. Your Data
a. BP Logix makes no representation or warranty whatsoever with respect to the privacy or security of Your Data, beyond the minimum requirements of applicable law, if any.
b. You hereby warrant that Your Data will at no time contain Confidential Information or Personal Information (together, Disallowed Data).
c. You forever release BP Logix, its officers, employees, affiliates, heirs, successors, and assigns, from any liability to you or any third party arising from unauthorized access to Your Data (whether or not Your Data contains Disallowed Data), or unauthorized use of the Services, except to the extent that such unauthorized use or access is a result of the Company’s violation of applicable law.
d. You agree to promptly notify BP Logix if any unauthorized account access or other usage of the Services is known or reasonably suspected to have occurred, and will cooperate with the Company’s reasonable investigation of any such unauthorized activity.
e. You are responsible for the actions of any individual who, with or without your knowledge or permission, gains access to the Services as a result of your failure to implement and enforce commercially reasonable security measures.
f. You agree that you will not access, or attempt to access, any accounts or data on the Shared Platform, other than those explicitly provided by BP Logix for your Use. You acknowledge that such access, or attempted access, may constitute criminal behavior.
g. You shall not:
i. access the Services for or upload to the Shared Platform anything unlawful, misleading, malicious or discriminatory;
ii. work around any technical limitations in the Shared Platform, use any tool to enable features or functionality that are otherwise disabled in the Shared Platform, or decompile, disassemble or otherwise reverse engineer the Shared Platform;
iii. perform or attempt to perform any actions that would interfere with the proper working of the Shared Platform, prevent access to or use of the Shared Platform by Company’s other Users or customers, or impose any unreasonable or disproportionately large load on the Shared Platform; or
iv. upload or transmit to the Shared Platform any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, or intercept the normal operation of the Shared Platform.
a. You agree that Your Data will not exceed 5GB (five gigabytes) of data storage.
10. Confidential Information
a. You agree not to use the Company’s Confidential Information except in connection with the provision or use of the Services or as may be required by law.
b. You agree not to disclose the Company’s Confidential Information, except as follows:
i. To your service providers, agents and representatives, provided that such parties agree to confidentiality measures at least as stringent as those in this section;
ii. To a law enforcement or government agency if so required, or if either of us reasonably believes that the other’s conduct may violate applicable criminal law; or
iii. In response to a subpoena or other compulsory legal process, provided that you agree to give BP Logix written notice of at least seven (7) days prior to such disclosure, or prompt notice in advance of disclosure if seven (7) days notice is not reasonably possible, unless forbidden by law to provide such notice.
11. Certification of Compliance
a. You acknowledge that the Company may, at its discretion (but with due concern for minimizing the likelihood of any material reduction in performance), perform audits of the Services and the Shared Platform, both to evaluate security and performance, as well as to ensure your compliance with this Agreement.
12. Term and Termination
a. This Agreement may be terminated by BP Logix at any time.
b. This Agreement may be terminated by you at any time upon notice to BP Logix, provided you have discontinued your Use of the Services.
c. Your obligations under Section 8 will survive termination of this Agreement. Notwithstanding the foregoing, after termination your obligations under Section 8.c will be limited to disclosures which (i) occurred, or are alleged to have occurred, or are alleged to have occurred, during the term of this Agreement, or within 10 (ten) days following the termination of this Agreement, or (ii) include, or are reasonably suspected to include, any Disallowed Information.
d. Your obligations with respect to use and protection of Confidential Information shall survive for a period of 3 (three) years following any termination of this Agreement.
a. You will defend and indemnify the Company from and against any losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys’ fees) arising out of or relating to (i) a breach by you of this Agreement or (ii) the intellectual property rights in any of Your Data.
14. Force Majeure
a. Neither of us shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, floods, earthquakes, pandemic or epidemic illness, strikes (of its own or other employees), insurrection or riots, embargoes, or requirements or regulations of any civil or military authority (Force Majeure).
b. Each of us hereto agrees to give reasonable notice to the other upon becoming aware of an event of Force Majeure. Such notice shall contain details of the circumstances giving rise to the event of Force Majeure.
c. If a default due to an event of Force Majeure shall continue for more than thirty (30) days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
a. The waiver by BP Logix of your breach or default of any of the provisions of this Agreement shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor shall any delay or omission on the part of BP Logix to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by you.
a. Any notice request instruction or other document to be given by you to BP Logix hereunder shall be delivered or sent by first class regular mail or by electronic mail or facsimile transmission (such electronic mail or facsimile transmission notice to be confirmed by letter mailed within 12 hours) to the address or to the facsimile number of set out below (or such other address or numbers as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by mail) upon the expiration of 48 hours after mailing and (if sent by electronic mail or facsimile transmission) upon the expiration of 12 hours after dispatch.
BP Logix, Inc.
Attn: Contracts Manager
410 S. Melrose Ave., Suite 100
Vista, CA 92084
firstname.lastname@example.org (electronic mail)
17. Invalidity and Severability
a. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. You and BP Logix agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
a. This Agreement shall be binding upon and inure for the benefit of the successors in title of the parties hereto.
19. Assignment and Sublicensing
a. You shall not be entitled to assign or otherwise transfer this Agreement nor any of its rights or obligations hereunder without the prior written consent of the Company.
b. BP Logix may assign this Agreement to any third party that succeeds to its interests and assumes the obligations of the Company hereunder. BP Logix may assign its right to payment hereunder or grant a security interest in this Agreement or such payment right to any third party.
a. Headings to paragraphs in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.
21. Governing Law
a. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the parties hereto agree to submit to the exclusive jurisdiction of the courts of the State of California and the County of San Diego.
22. Third Party Rights
a. This Agreement does not, and is not intended to, confer any benefit on, nor create any right exercisable or enforceable by, any third party.
23. Attorneys’ Fees
a. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.
THIS AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF PURCHASE ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF.