Terms and Conditions
Beantree, Inc. also doing business as "beanbasket.com" and "Beanbasket.com eCommerce"
(the "Company" or "we"), is an Internet application service provider. The use of our Services
is subject to the terms and conditions set forth below (which are sometimes referred to as the "Agreement").
The Services provided to you by the Company are provided under the terms and conditions set out below and any amendments that we adopt in the future, and any operating rules or policies that may be published from time to time by the Company, all of which are hereby incorporated by reference. By placing, maintaining or otherwise utilizing
Company services, you are acknowledging that you have read, understood and agree to be bound by these terms and conditions.
As these terms and conditions of use may change from time to time, you agree that you will review these provisions from time to time; we will assume your consent to and agreement with revisions hereto in the absence of notice from you to the contrary within 30 days after we adopt revisions hereto. In addition, some Services may be provided in conjunction with other third party providers whose terms and conditions of service may require your acceptance of a separate end user agreement.
This Agreement will be effective as of the first date you use the Company's Service and will remain effective until terminated either by Company or by you as set forth below.
3. User Responsibilities.
All information, data, text, messages or other materials ("Content"), transmitted over the Company's servers, by you or others using your account are your responsibility. You acknowledge and agree to use the Company's equipment and services solely for lawful purposes. In this respect you may not, without limitation: (a) intercept or monitor, damage or modify any communication which is not intended for you, or (b) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Company's software, server or equipment or any data or communication. You further agree not engage in any unlawful, threatening, destructive, abusive, defamatory, obscene, offensive, pornographic, or otherwise objectionable actions or conduct. Objectionable actions or conduct includes, but is not limited to: unsolicited commercial email, data collection without Company's prior consent, and illegal uses of our equipment and services as determined by Company within the bounds of local, state and federal laws and regulations.
As the person legally responsible for this account, you agree that you are at least 18 years of age and you agree to supply the Company with your truthful name and contact information which will be held in our records in accordance with the terms of the Company Privacy Statement in effect from time to time.
While we are responsible for certain data collection and storage functions, you agree that access to your account and the security issues related thereto are wholly your own responsibility. This Agreement constitutes consent that upon any known or perceived breach or compromise of your account security, you will take any and all necessary steps to notify Company of this actual or perceived breach. The Company reserves the right to suspend or in other way modify the nature of the account pending resolution of investigation. Any use of our Services or equipment to engage in unlawful activity will result in account suspension and a notification to the appropriate authorities.
You agree that the Company may preserve and disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Company, its users and the public.
6. Refusal or Termination of Service.
The Company reserves the right to refuse or terminate service to anyone at our sole discretion without liability for consequences or damages resulting from such a termination. The following activities or conduct will result in refusal or termination of the Company's Services: violating the terms of this Agreement, creating problems or possible legal liabilities for Company or others, acting inconsistently with the letter or spirit of our policies, infringing someone else's intellectual property rights, engaging in fraudulent, immoral or illegal activities, or other similar reasons. You also acknowledge that the Company has the right and the authority under the Digital Millennium Copyright Act to terminate the Services in accordance herewith.
7. No Warranties/Limitation of Liability.
THE COMPANY MAKES NO (AND YOU ACKNOWLEDGE THAT THAT COMPANY MAKES NO) REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY SERVICES PROVIDED BY COMPANY. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY OF THE SERVICE OR DATA, NON-INFRINGEMENT OR NONINTERFERENCE WITH DATA. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE COMPANY'S SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE COMPANY'S SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE COMPANY'S SERVICE. LIABILITY FOR DIRECT DAMAGES SHALL BE LIMITED TO A MAXIMUM OF THE PRORATED FEES YOU HAVE ALREADY PAID TO COMPANY FOR THE MONTH IN WHICH THE EVENT GIVING RISE TO THE LIABILITY OCCURRED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY, OR ANY THIRD PARTY SERVICE PROVIDERS, OR THROUGH OR FROM THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. THE COMPANY RESERVES THE RIGHT TO ESTABLISH ADDITIONAL SERVICE LEVEL AGREEMENTS THAT MAY SUPERSEDE THE GENERAL LIMITATIONS OF LIABILITY SET OUT ABOVE.
AS SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS AS SET FORTH ABOVE, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH EVENT THE LIABILITY WILL BE LIMITED AS FAR AS LEGALLY POSSIBLE UNDER THE APPLICABLE LEGISLATION.
You acknowledge and agree that the entire risk arising out of the use or performance of the Company's Services remains with you, to the maximum extent permitted by law. You agree to indemnify, defend, save and hold the Company harmless from, any and all demands, liabilities, losses, damages, costs and claims, including attorney's fees asserted against the Company, its agents, its customers, servants and officers and employees, that may be made or asserted by any third party due to or arising out of your use of the Services, your connection to the Services, your violation of this Agreement, or your violation of any rights of another party.
Your only right or remedy with respect to any problems or dissatisfaction with Company's service is to terminate such service and request a prorated refund of prepaid fees. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
10. Company's Proprietary Rights.
You acknowledge and agree that Content, including, but not limited to, any text, software, music, sound, photographs, graphics, video, or other material contained in or information presented through the Services is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. You acknowledge that you are permitted to use this material and information only as expressly authorized by the Company, and you may not copy, reproduce, transmit, distribute, or create derivative works of such content or information without such express authorization.
Neither this Agreement nor any rights conveyed hereunder may be assigned or otherwise transferred by you, in whole or in part, whether voluntary or by operation of law, without the prior written consent of the Company. Your obligations hereunder shall inure to the benefit of the Company and its successors and assigns.
You agree to provide Company with appropriate and accurate payment information, and to keep this information accurate and up-to-date. Charges shall commence to accrue on the date that Company notifies you that the requested Service(s) is/are ready for use. You agree that if you are paying for Services of a recurring nature that prepayments may be billed automatically, and that Company may apply the amount due to the provided payment vehicle at any time. Company agrees that prorated refunds for unused Services [e.g., prepaid hosting time] will be provided upon request, with the exception of any setup fees, upon premature account termination. You agree to reimburse the Company in full for all expenses it incurs in exercising any of its rights under this Agreement or applicable law with respect to the collection of a payment default, including, but not limited to, collection agency and attorney fees.
13. Proprietary Rights.
Company grants you a non-exclusive, non-transferable license to use the Services and products during and under the terms of this Agreement. All rights with respect to the services and products, including, but not limited to, intellectual property or similar rights belong exclusively to the Company. Custom development resulting in applications and designs built specifically by the Company as contracted by you will be owned by you after payment for same. Architecturally common components reused by the Company remain property of Company.
14. Dispute Resolution.
If a dispute or difference of any kind arises between you and Company arising out of this Agreement, including the interpretation, performance, non-performance, or termination hereof, the two parties shall make every attempt to resolve the dispute through mutual discussions. Should the dispute prove to be non-resolvable through these means, the dispute will be taken to mediation under the general mediation rules of the American Arbitration Association (specifically including the principles contained in the American Arbitration Association's eCommerce Dispute Management Protocol). If the dispute still cannot be settled within 30 days, binding arbitration will be sought within 30 days under the general Commercial Arbitration Rules of the American Arbitration Association. Any mediation and arbitration proceedings pursuant to this Agreement shall take place in Outagamie County, WI.
15. Choice of Law.
The parties agree that this Agreement and the transactions and Services contemplated under this Agreement will be subject to and construed in accordance with the law of the State of Wisconsin, without regard to conflict of laws principles.
If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected.
Revision Date: Febrary 6, 2007
These terms and conditions, accepted by you, constitute the entire agreement of the parties and supersede any written, electronic, or oral communication you may have had with Company or any agent thereof. The failure of the Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision and rule that the other provisions of this Agreement remain in full force and effect.