Terms of Service This Agreement, which governs the terms and conditions of your use of the Budgetrac LLC (the “Service”), is between you (“you” or “User”), as an authorized user of such service, and the Company. “The Company” means the following: (a) Budgetrac LLCs, an Delaware corporation,
3. MODIFICATIONS TO THE SERVICE. The Company reserves the right to modify or discontinue all or part of the Service, temporarily or permanently, with or without notice to User, and is not obligated to support or update the Service. The amended Terms shall be effective immediately after they are initially posted on the Site. User’s continued use of the Service after the posting of the amended Terms on the Site constitutes User’s affirmative: (a) acknowledgement of the Terms and its modifications; and (b) agreement to abide and be bound by the Terms, as amended. User acknowledges and agrees that the Company shall not be liable to User or any third party in the event that the Company exercises its right to modify or discontinue all or part of the Service.
4. MODIFICATION OF USER RATES. The Company reserves the right, in its sole discretion, to change User pricing upon sixty (60) days notice.
5. CHARGES. By electing to purchase subscription-based services, you warrant that all information you submit is true and accurate (including without limitation your credit card number and expiration date) and you agree to pay all subscription fees you incur plus all applicable taxes. a. Payment of your account balance is due annually and must be made by the credit card designated by you or as an ACH (direct debit to your checking account). b. Charges are to be paid on an annual basis. If the payment method for your account is not received from the card issuer or its agents, you agree to pay all amounts due upon demand. Each time you use the Service, or allow or cause the Service to be used, you agree and reaffirm that the Company is authorized to charge your designated card. Your card issuer’s agreement governs your use of your designated card in connection with the Service, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder. You agree that the Company may (at its option) accumulate charges incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that the Company may delay obtaining authorization from your card issuer until submission of the accumulated charge(s). This means that accumulated charges may appear on the statement you receive from your card issuer. c. Your activation fee (if applicable) and recurring service fees are payable in advance and are COMPLETELY NON-REFUNDABLE. You agree that the Company may submit charges for annual service fee each year, without further authorization from you, until you provide prior notice that you have terminated this authorization or wish to change your designated card. Such notice will not affect charges submitted before the Company reasonably could act on your notice. (Note: the Company takes no responsibility for contacting you prior to charging your designated credit card for your recurring service fee.) If you have any question regarding any charges that have been applied to your account, you must contact the Company’s Customer Service Department within 30 days of the charge date. Failure to use your account will not be deemed a basis for refusing to pay any charges submitted by the Company in accordance with this Agreement. d. You must promptly notify the Company of changes to: (a) the account number or expiration date of your designated card; (b) your billing address. You must also promptly notify the Company if your card is canceled (e.g., for loss or theft). e. FREE TRIALS – The Company may offer a Free Trial month as part of some promotions. Subscribers signing up for a free trial receive a credit for one month’s fee. The Company reserves the right to bill the subscriber’s credit card for any usage above (see d. above). Activation fees (if applicable) will be charged at the beginning of the subscriber’s first paid month.
6. PAYMENT. The Company reserves the right to suspend or terminate your Service account without notice upon rejection of any card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to the Company when the Company believes you are liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to the Company.
7. LINKS. The Service or Site may provide links to other Websites or resources. User acknowledges and agrees that the Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. User agrees that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, products or services available on such external sites or resources.
8. INTELLECTUAL PROPERTY RIGHTS. User acknowledges that content, including but not limited to policy information, text, software, music, sound, photographs, video, graphics, the arrangement of text and images, commercially produced information, and other material contained on the Site or through the Service (“Content”), is protected by copyright, trademarks, service marks, patents or other proprietary agreements and laws and User is only permitted to use the Content as expressly authorized by the Company. These Terms do not transfer any right, title, or interest in the Service, Site or the Content to User, and User may not copy, reproduce, distribute, or create derivative works from this Content without express authorization by the Company. User agrees not to use or divulge to others any information designated by the Company as proprietary or confidential. Any unauthorized use of any Content contained on the Site or through the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. EXCEPT AS SPECIFICALLY PERMITTED HEREIN, NO PORTION OF THE INFORMATION ON THE SITE MAY BE REPRODUCED IN ANY FORM, OR BY ANY MEANS, WITHOUT PRIOR WRITTEN PERMISSION FROM THE COMPANY. USERS ARE NOT PERMITTED TO MODIFY, DISTRIBUTE, PUBLISH, TRANSMIT OR CREATE DERIVATIVE WORKS OF ANY MATERIAL FOUND ON THE SITE FOR ANY PUBLIC, PERSONAL OR COMMERCIAL PURPOSES.
9. TRADEMARKS. “Company Trademarks” means all names, marks, brands, logos, designs, trade dress and other designations the Company uses in connection with the Service or any other service. User may not remove or alter any the Company Trademarks, nor may it co-logo the Service or material associated with the Service without prior written permission of the Company. User acknowledges the Company’ rights in the Company Trademarks and agrees that any and all use of the Company Trademarks by User shall inure to the sole benefit of the Company. User agrees not to incorporate any the Company Trademarks into User’s trademarks, service marks, the Company names, Internet addresses, domain names, or any other similar designations.
10. DISCLAIMER OF WARRANTIES. USER EXPRESSLY AGREES THAT USE OF THE SITE AND THE SERVICE IS AT USER’S SOLE RISK. THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE COMPANY MAKES NO WARRANTY THAT THE SITE OR SERVICE WILL MEET USER’S REQUIREMENTS, OR THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR VIRUS-FREE NOR DOES THE COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OR ANY INFORMATION OR PRODUCTS OBTAINED THROUGH THE SITE OR SERVICE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. USER UNDERSTANDS AND AGREES THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICE IS DONE AT USER’S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES UNDER CERTAIN CIRCUMSTANCES; CONSEQUENTLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO USER, IN WHOLE OR IN PART.
11. LIMITATION OF LIABILITY. As a condition of use of the Service, and in consideration of the services provided by the Company, User agrees that neither the Company, nor any officer, affiliate, director, shareholder, agent, contractor or employee of the Company will be liable to User or any third party for any direct, indirect, incidental, special, punitive, or consequential loss of profits, loss of earnings, loss of business opportunities, damages, expenses, or costs resulting directly or indirectly from, or otherwise arising in connection with the Service, Site or Content; including but not limited to any of the following: a. Reliance. The use of the Service by the User, including but not limited to damages resulting from or arising from User’s reliance on the Service, or the mistakes, omissions, interruptions, errors, defects, delays in operation, non-deliveries, mis-deliveries, transmissions, eavesdropping by third parties, or any failure of performance of the Service. b. Termination. The termination of User’s use of the Service by the Company pursuant to these Terms. c. Infringement. Any allegation, claim, suit, or other proceeding based upon a contention that the use of the Service or the Site by a User or a third party infringes or misappropriates the copyright, patent, trademark, trade secret, confidentiality, privacy, or other intellectual property rights or contractual rights of any third party. d. Force Majeure. Any delay or failure of the Company to perform due to government restriction, strikes, war, any natural disaster or any other condition beyond the Company’ control. The limitations set forth in this section apply to the acts, omissions, negligence, and gross negligence of the Company and its affiliates, contractors, subcontractors, officers, directors, shareholders, managers, employees, and agents, which, but for this provision, would give rise to a course of action in contract, or any other legal doctrine. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, MULTIPLE, OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE COMPANY SERVICES OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH THE SITE OR RESULTING FROM UNAUTHORIZED ACCESS TO, DELETION OR ALTERATION OF USER’S TRANSMISSIONS OR DATA OR FAILURE OF THE SITE TO STORE USER’S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ENTIRE LIABILITY OF THE COMPANY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SITE AND THE SERVICE OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE SERVICE IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S.$500.00. YOU HEREBY RELEASE THE COMPANY FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER CERTAIN CIRCUMSTANCES; CONSEQUENTLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO USER, IN WHOLE OR IN PART.
12. NO RESALE OF THE SITE. User agrees not to reproduce, duplicate, copy, sell resell, exploit or make any commercial use of or access to the Service, without the express written consent of the Company.
13. LAWFUL USE. User agrees that use of the site is subject to all applicable national, state, and local laws and regulations, and that User is solely responsible for the contents of its communications through the Service. User agrees that it shall not distribute or facilitate distribution of any content, including but not limited to text, communications, software, images, sounds, data, or other information that: (1) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortuous, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates the Company’ rules or policies; (2) victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; (3) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party; (4) constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, facsimiles, any other form of unauthorized solicitation, or any form of lottery or gambling; (5) contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or (6) impersonates any person or entity, including any of our employees or representatives.
14. INDEMNIFICATION. User will defend, indemnify and hold harmless the Company and its affiliates, directors, officers, employees, proprietors, independent contractors, consultants, partners, shareholders, representatives, customers, agents, predecessors, successors, and permitted assigns from and against any claim, suit, demand, loss, damage, expense (including reasonable attorneys’ fees and costs) or liability that may result from, arise out of or relate to: (a) acts or omissions by User arising out of or in connection with this Agreement; (b) intentional or negligent violations by User of any applicable laws or governmental regulation, (c) contractual relations between the User and a third party; or (d) infringement of intellectual property rights including, but not limited to, rights relating to patent and copyright. User acknowledges that the Company has no control over the content of information transmitted by User or User’s customers and that the Company does not examine the use to which User or User’s customers put the Service or the nature of the information User or User’s customers send or receive. User hereby indemnifies and holds harmless the Company, its stockholders, officers, directors, employees and agents from any and all loss, cost, damage, expense, or liability relating to or arising out of the transmission, reception, and/or content of information of whatever nature transmitted or received by User or User’s users.
15. ACCESS TO PASSWORD PROTECTED/SECURE AREAS. Access to and use of password protected and/or secure areas of the Site is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution.
16. TERMINATION & EFFECT. The Company may terminate or suspend access to the Service or Site with or without cause at any time and effective immediately. Reasons for termination or suspension shall include, but are not limited to, the following: inactivity of the User; violation of any terms listed in this policy; or failure to pay for Services. . The Company shall not be liable to User or any third party for termination of the Service or Site. Should User object to any provision of the Terms or any subsequent modifications thereto or become dissatisfied with the Service or Site in any way, User’s only recourse is to immediately: (a) terminate use of the Service and Site; and (b) notify the Company of termination. Upon termination of access to the Service and Site, User’s right to use the Service and Site shall immediately cease.
17. SEVERABILITY. In the event that any provision of the Terms shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of the Terms. The Company’ failure to act with respect to a breach by User or others does not waive its right to act with respect to subsequent or similar breaches.
18.CONFIDENTIALITY. Through use of the Service and/or Site, the Company may disclose or make available to the User Confidential Information (as defined below) in connection with the activities contemplated hereunder. User agrees that during the Term of this Agreement and thereafter (a) it shall provide at a minimum the same care to avoid disclosure of unauthorized use of confidential information as is provided to provide its own similar information, but in no event less than a reasonable standard of care; (b) it will use Confidential Information belonging to the other solely for the purposes of this Agreement and (c) it will not disclose Confidential Information belonging to the Company to any third party (other than its employees and/or consultants reasonably requiring such Confidential Information for purposes of this Agreement who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without the express prior written consent of the Company. User will promptly return to the disclosing Party upon request any Confidential Information of the Company. The Company will not monitor, edit, disclose, sell, rent, license, exchange, or release any of your personally identifiable information without your explicit consent unless the Company has reason to believe that disclosing this information is necessary: (a) to conform to the edicts of law or comply with legal process served on the Company; (b) to prevent injury to or interference with (either intentionally or unintentionally) the Company rights or property, other the Company users, or anyone else that could be harmed by such activities; or (c) to act under exigent circumstances to protect the personal safety of the users or the public. If the Company transfers assets or has any change in control, user information may be transferred to the entity that acquires such assets or control of the Company. For purposes of this Agreement, “Confidential Information” means, with respect to the Company, any and all information in written, representational, electronic, verbal or other form relating directly or indirectly to the present or potential business, operation or financial condition of the Company (including, but not limited to, information identified as being proprietary and/or confidential, pricing, marketing plans, customer and supplier lists, service data, and any information which might reasonable be presumed to be proprietary or confidential in nature) excluding any such information which: (i) is known to the public (through no act or omission of the Company in violation of this Agreement); (ii) is lawfully acquired by the Company from an independent source having no obligation to maintain the confidentiality of such information; (iii) was known to the Company prior to its disclosure under this Agreement; (iv) was independently developed by the Company; or (v) is required to be disclosed by governmental or judicial order.
19. GOVERNING LAW. These Terms shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its choice of law provisions. In the event of any conflict between foreign laws, rules and regulations and those of the United States, the laws, rules and regulations of the United States shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms. User hereby consents to personal jurisdiction by the state and federal courts located in Cleveland, Delaware. These Terms and any modifications hereto constitute the entire agreement between the parties with regard to the subject matter hereof and supersede all prior understandings and agreements, whether written or oral, as to such subject matter. Nothing contained in these Terms shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint partners for any purpose.
20. OWNERSHIP. All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising the Service are wholly owned by the Company and/or its licensors and service providers except where expressly stated otherwise.