BizMerlin License Agreement
IMPORTANT -- READ CAREFULLY: BY CHECKING THE "I ACCEPT THE BIZMERLIN LICENSE AGREEMENT" CHECKBOX OR BY UTILIZING THE BIZMERLIN ON DEMAND SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Welcome to the BizMerlin License Agreement ("Agreement"). Your use of the Service is subject to these Terms of license agreement. This is a legal contract ("Agreement") between you and BizMerlin, for use of the BizMerlin on Demand service. "You" refers to any individual who agrees to the "I accept the BizMerlin On Demand License Agreement" checkbox option on the Service homepage or while registering for the Service, or, if the Service is being used on behalf of an entity by an individual authorized to agree to such terms on behalf of such entity, then "You" refers to such entity. If you do not agree with the terms of this Agreement, do not select the "BizMerlin On Demand License Agreement" checkbox and do not use the Service. The Agreement will also be applicable to the use of the Service on a trial basis.
The website and any downloadable software associated with the Service are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
DESCRIPTION OF SERVICE
The Service includes, and is limited to, a website and an android app allowing you access to and use of a single or multiple BizMerlin Accounts, with Support from BizMerlin. "BizMerlin" referred to herein means the BizMerlin Software, a server-based and android based software product. A "BizMerlin Account" or "Account" referred to herein means a website and a mobile app, provided by BizMerlin in exchange for Your payments, where You may use BizMerlin to create, update, share, and publish information, data, text, software, messages or other materials ("Content"). "Support" referred to herein means technical support from BizMerlin, available via electronic mail.
Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Agreement. In order to use the Service, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. You also understand and agree that the service may include certain from BizMerlin, such as service announcements, administrative messages, etc., and that these are considered part of the Service and you will not be able to opt out of receiving them. You agree not to access the Service by any means other than through the interfaces that are provided by BizMerlin for use in accessing the Service. BizMerlin will provide the Service in accordance with this Agreement. BizMerlin may at its sole discretion modify the features of the Service from time to time without prior notice.
In order to use the Service, You must have a valid Account. To acquire an Account for the Service, You must provide BizMerlin with an electronic mail address and other information ("Registration Data"). You will choose an account designation for Your Account during the Service's registration process. You are responsible for maintaining the confidentiality of the access data for Your Account, and are fully responsible for all activities that occur under your Account. You agree to (a) immediately notify BizMerlin of any unauthorized use of your Account or any other breach of security, and (b) ensure that you exit from your Account at the end of each session. BizMerlin cannot and will not be liable for any loss or damage arising from your failure to comply with this section. In consideration of use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form, and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
BizMerlin assumes no duty to verify such information as further detailed in CONTENT OF THE SERVICE. If you provide any information that is untrue, inaccurate, not current or incomplete, or BizMerlin has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, BizMerlin has the right to suspend or terminate Your Account and refuse any and all current or future use of the Service (or any portion thereof). If you register to use the Service on a free-trial basis, you will also have to go through the registration process. If you are under 18 years of age then you are required to have a parent or guardian review and complete the registration process on your behalf.
By signing up for BizMerlin, you provide your consent to receive periodic emails from BizMerlin team and for allowing us to display your logo and company name in the clients list on our website or other such marketing materials. The emails include, but are not limited to, server outage messages, account updates, periodic summary messages and billing notifications. Some of the email notifications may be controlled through the administration console provided within the BizMerlin application.
For the first 5 calendar days after You register (the "Trial Period"), BizMerlin will provide you the Service without charge, for an unlimited number of "Users" (user names defined by You, associated with specific humans with electronic mail addresses and passwords, who may access Your Account). You may, but are under no obligation to, provide a credit card number and related credit card information during registration or during the Trial Period. Credit cards are the only payment mechanism BizMerlin will accept for payment of a monthly subscription fee ("Subscription Fee") for the Service. All currency references are in U.S. dollars.
You may, through a mechanism BizMerlin provides as part of Your Account, define Users. You may define Users as "Inactive Users" (Users without permission to access Your Account) and "Active Users" (Users with permission to log in to Your Account using a password). All active users are counted for during the generation of invoices. BizMerlin cannot add or delete the users on your behalf. Neither can BizMerlin make the active users inactive upon request.
For the cost of a Subscription Fee for a Paid Account (the "Monthly Fee"), please refer to the pricing page, for each given calendar month as defined according to local time in New York, NY, USA ("Month"), for each Active User in Your Account. The number of Active Users for purposes of calculating the cost of Your Subscription Fee shall be the highest simultaneous number of Active Users in Your Account during the previous month.
Your credit card will be charged on the next first "Business Day" of the subsequent Month (the first calendar day of each month that is not a Saturday, Sunday or holiday) for your use of the Service from registration until the charge date. If you sign up for your Account on a day other than the first day of a Month, or if you terminate the Service in the middle of a Month, the Monthly Fee for that Month of service will be pro-rated in accordance with the number of complete days during that Month when You could have used the Service, irrespective of whether you actually used the Service or not.
You stand responsible for your account which means you delete or close your account if you do not intent to use it any further. Invoices are due once they have been generated. As long as Your Account remains active and in good standing, you will be charged the Monthly Fee even if you never use the service. You may, however, cancel Your Account at any time.
The credit card that you provide as part of the Registration Data will be automatically and immediately billed on the first Business Day of each Month. You agree that BizMerlin may charge to your credit card all amounts due and owing for Your Account on that monthly basis or upon cancellation (see "Termination, Breach, Suspension and Cancellation" and "Refund"). BizMerlin will contact you via electronic mail to alert you upon each charge. BizMerlin may change prices at any time without prior notice, but will endeavour to provide reasonable advance notice via Your Account website and/or electronic mail. You agree that in the event BizMerlin is unable to collect the fees owed to BizMerlin for Your Account through Your Subscription Fee, BizMerlin may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by BizMerlin in connection with such collection activity, including collection fees, court costs and attorneys' fees.
BizMerlin will provide Support, including any upgrades that BizMerlin releases for BizMerlin or the Service, for Your Account at no additional cost.
TERMINATION, BREACH, SUSPENSION AND CANCELLATION
If Your Monthly Fee payment is overdue, or if Your Trial Period has expired BizMerlin has not yet received your credit card information portion of your Registration Data, BizMerlin may disable your access and Your Users' access to your Account till you close the account. If your Subscription Fee payment is more than 30 calendar days overdue, or if Your Trial Period expired more than 30 calendar days prior and You have not paid Your Subscription Fee, BizMerlin may suspend or terminate your account till the termination notification is received from the account manager. BizMerlin reserves the right to take the legal action in the event of default payments; all legal expenses will be borne by the defaulters. BizMerlin may also, at its sole discretion, at any time and for any reason, terminate the Service, terminate this Agreement, or suspend or terminate Your Account. In the event of suspension or termination, your account will be disabled and you may not be granted access to your Account or any files or other Content contained in your Account, and BizMerlin may delete Your Content, although residual copies of information may remain in our system for some time for back-up purposes. In the event of termination, BizMerlin may also withdraw and at its discretion reallocate the public web address of Your Account.
If you terminate Your Account, via means provided for cancellation on the BizMerlin website via Your Account, or electronic mail to BizMerlin, and you request that BizMerlin delete Content and files contained in Your Account, BizMerlin will make all reasonable efforts to do so.
OWNERSHIP OF WEBSITE ACCOUNT AND SECURITY
You are responsible for maintaining the security of your Content and BizMerlin Account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the BizMerlin Account, including those of Your Users. You agree to immediately notify BizMerlin of any unauthorized uses of the Account or any other breaches of security. BizMerlin cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will BizMerlin be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
PROPRIETARY/INTELLECTUAL PROPERTY RIGHTS
BizMerlin and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Service and in all trade names, trademarks and service marks associated or displayed with the Service. You will not remove, deface or obscure any of
BizMerlin or its suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Service. You may not reverse engineer, reverse compile or otherwise reduce to human readable form any software associated with the Service.
You acknowledge that the service or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
You acknowledge that any use of the Service contrary to this agreement, or any transfer, sub licensing, copying or disclosure of technical information or materials related to the Service, may cause irreparable injury to BizMerlin, its affiliates, suppliers and any other party authorized by BizMerlin to resell, distribute, or promote the Service ("Resellers"), and under such circumstances BizMerlin , its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
You understand that all contents are the sole responsibility of the person from which such Content originated. This means that you, and not BizMerlin, are entirely responsible for all Content that You upload, post, transmit or otherwise make available via your Account or the Service. BizMerlin does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content.
You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will BizMerlin be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that BizMerlin does not pre-screen Content, but that BizMerlin and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via the Service. Without limiting the foregoing, BizMerlin and its designees shall have the right to remove any Content that violates the Agreement or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not reasonably rely on any Content created by BizMerlin submitted to BizMerlin. You acknowledge and agree that BizMerlin may preserve Content and may also 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 the Agreement; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of BizMerlin, its users and the public.
You understand that the technical processing and transmission of the Service, including Your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Should Content be found or reported to be in violation with, but not limited to, the following terms, it will be in BizMerlin sole discretion as to what action should be taken. You agree that you will not:
BizMerlin retains the right to terminate such account at any time without further warning.
GENERAL PRACTICES REGARDING USE AND STORAGE
You agree that BizMerlin has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other maintained by the Service. You acknowledge that BizMerlin may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time. BizMerlin retains the right to create limits on use and storage at our sole discretion at any time with or without notice. You acknowledge that we reserve the right to log off users who are inactive for an extended period of time.
You agree that you will not:
CONTENT OF THE SERVICE
BizMerlin takes no responsibility for third-party content, nor does BizMerlin have any obligation to monitor such third-party content. BizMerlin reserves the right at all times to remove or refuse to distribute any content on the Service, such as content which violates the terms of this Agreement. BizMerlin also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of BizMerlin, its users and the public. BizMerlin will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
Recognizing the global nature of the Internet, You agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
NO RESALE OF THE SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express permission by BizMerlin.
YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that (a) all of the information provided by you to BizMerlin to participate in the Service is correct and current; and (b) You have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder.
NO WARRANTIES OR REPRESENTATIONS BY BizMerlin
You understand and agree that the Service is provided "as is" and BizMerlin, its affiliates, suppliers and Resellers expressly disclaim all warranties of any kind, beyond the Refund, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement or bailment of your data on BizMerlin servers. BizMerlin, its affiliates, suppliers and Resellers make no warranty or representation, other than the Refund, regarding the results that may be obtained from the use of the service, the security of the service, or that the service will meet any user's requirements beyond the Refund. Use of the service is at your sole risk. You will be solely responsible for any damage to you resulting from the use of the Service. The entire risk arising out of use, security or performance of the Service remains with you. No oral or written information or advice given by BizMerlin or its authorized representatives shall create a warranty or in any way increase the scope of BizMerlin obligations. Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, BizMerlin, its affiliates, suppliers and Resellers specifically disclaim any express or implied warranty of fitness for such purposes.
You agree to indemnify, defend and hold harmless BizMerlin, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorney's fees as and when incurred) arising from Your use of the Service, Your use of Your Account, Your violation of this Agreement or the infringement or violation by You or any other User of Your Account, of any intellectual property or other right of any person or entity.
MODIFICATIONS TO SERVICE
BizMerlin reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice at any time. You agree that BizMerlin shall not be liable to you or to any third party for any modification, suspension, termination or discontinuance of the Service.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between you and BizMerlin Software is intended or created by this Agreement.
LIMITATION OF LIABILITY
In no event will BizMerlin or its affiliates, suppliers or Resellers be liable for any special, incidental, indirect, exemplary or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss or damage) arising out of the use of or inability to use the Service, or the provision of or failure to provide technical or other support service, whether arising in tort (including negligence) contract or any other legal theory, even if BizMerlin, its affiliates, suppliers or Resellers have been advised of the possibility of such damages. In any case, BizMerlin, its affiliates', suppliers' and Resellers' maximum cumulative liability and Your exclusive remedy for any claims arising out of or related to this Agreement will be limited to the amount actually paid by You for the Service (if any) in the previous twelve (12) months.
WAIVER AND SEVERABILITY
Failure by either party to exercise any of its rights under or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, in that case that particular provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
STATUTE OF LIMITATIONS
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising of or related to use of BizMerlin services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
CHOICE OF LAW AND FORUM
This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia, as applied to agreements entered into and to be performed in Virginia by Virginia residents. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving the County of Fairfax, in the Commonwealth of Virginia, USA.
ENTIRE AGREEMENT/GENERAL PROVISIONS
This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. BizMerlin may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. Any and all rights and remedies of BizMerlin upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on BizMerlin, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement. Notices to You may be made via either email or regular mail. The Service may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices to you generally on the Service.
All notices or other correspondence to BizMerlin under this Agreement must be sent to the following electronic mail address for such purpose: email@example.com. Or the following physical address:
11710 Plaza America Drive,
Suite 2000, Reston, VA 20190
Last revision: January 1st, 2017