FULLBAY TERMS OF SERVICE
This Terms of Service Agreement (“Agreement”) is entered into by and between Fullbay, Inc., a Delaware corporation dba Fullbay (“Fullbay”) and each client of Fullbay who uses the Services (defined below), including the client accepting this Agreement by using the Services or by clicking to accept or agree to this Agreement (“SUBSCRIBER”). This Agreement is effective as of the date this Agreement is accepted (“Effective Date”). In consideration of the exchange of promises and covenants contained in this Agreement and other good and valuable consideration, the adequacy and sufficiency of such consideration the parties acknowledge, the parties agree as described below:
SUBSCRIBER will receive from Fullbay, and Fullbay will provide SUBSCRIBER, access to and use of Fullbay’s heavy-duty repair shop software and website services (the “Services”). Fullbay, from time to time, may modify or upgrade the Services including, but not limited to, the hardware, software, features or environment associated with the Services, so long as the Services as modified or upgraded are substantially comparable to or superior to the Services prior to being modified or upgraded.
PAYMENT FOR SERVICES
In consideration of the Services, SUBSCRIBER will pay Fullbay the fees and charges set forth in the preceding form as determined by the number of logins, the type of such logins, the number of shops, the website services to be provided and any other factors set forth in the preceding form. Fullbay may modify the fees and charges for the Services from time to time upon reasonable notice to SUBSCRIBER and SUBSCRIBER’s continued use of the Services after any such modification will constitute acceptance of the new fees and charges. Any modification to such fees and charges will occur at the beginning of a monthly period (for monthly SUBSCRIBERS) or at the beginning of an annual or multi-year period (for annual or multi-year SUBSCRIBERS). All monthly charges are due via credit card or ACH auto payment and are not refundable. Any initial setup fee or professional services fee set forth on the preceding form or in any written communication between Fullbay and SUBSCRIBER will be due and payable upon execution of this Agreement and must be paid by SUBSCRIBER before Fullbay is obligated to perform such setup or professional services. Acceptance of this form by the SUBSCRIBER authorizes Fullbay to charge the credit card of the SUBSCRIBER on a monthly basis for Services rendered as well as for any initial setup fee or professional services fee. SUBSCRIBER is responsible for all sales, use and similar taxes. If a credit card charge is attempted and does not go through, the SUBSCRIBER will have three calendar days to resolve the situation. If the situation is not resolved in three calendar days, SUBSCRIBER agrees and understands that a $50 credit card failure fee will be charged to the SUBSCRIBER’s account and the Services will be terminated following 30 calendar days of non-payment. Services may be re-activated by SUBSCRIBER within 60 calendar days of termination with a payment of all due funds. If SUBSCRIBER has an annual or multi-year subscription, SUBSCRIBER will remain responsible for all monthly charges through the subscription term, and the subscription term will not be extended for any period of time the Services were terminated for non-payment. All payments will be made in U.S. dollars and, absent documented proof of clear negligence by Fullbay, all payments are not refundable. SUBSCRIBER will pay Fullbay all costs and expenses, including reasonable attorney’s fees, incurred by Fullbay in enforcing any of the terms, conditions and provisions in this Agreement, including any of Fullbay’s rights and remedies set forth in this Agreement. In the event SUBSCRIBER wishes to add future logins, each login will be at the same cost of the current logins. If a login is added in the first 15 days of the billing cycle for the SUBSCRIBER, then SUBSCRIBER will be charged at full cost. If a login is added in the last 15 days of the billing cycle for the SUBSCRIBER, then SUBSCRIBER will be charged at half cost.
TERM AND TERMINATION
For a monthly SUBSCRIBER, this Agreement shall be valid as of the Effective Date for one month and shall be automatically renewed for successive monthly periods, unless either party gives written notice to the other party of non-renewal at least 30 days prior to termination. For an annual or multi-year SUBSCRIBER, this Agreement shall be valid as of the Effective Date for the term set forth in SUBSCRIBER’s Annual Subscription Order Form and, at the end of such term, shall be automatically renewed for successive monthly periods, unless either party gives written notice to the other party of non-renewal at least 30 days prior to termination. Fullbay may, without prior notice, suspend or terminate SUBSCRIBER’s or any other user’s password, account or use of any of the Services, and/or remove and discard, alter or prevent access to any content within the Services, if Fullbay in its sole discretion determines or discovers that SUBSCRIBER violated any material provision of this Agreement. The parties agree and acknowledge that under no circumstances will Fullbay be liable for any damages as a consequence of such suspension or termination. Upon suspension or termination of this Agreement, SUBSCRIBER must pay all fees to the date of termination as provided herein; provided that if SUBSCRIBER has an annual or multi-year subscription, SUBSCRIBER must pay all fees through the subscription term. SUBSCRIBER will have 60 calendar days from the date of termination to download and remove any content within the software that is owned by SUBSCRIBER, after which date Fullbay may destroy such content. Following termination, the provisions of the following sections shall survive: Term and Termination, Conduct of Users, Website Services, Fullbay’s Limited Warranty, Confidentiality, Security, Proprietary Rights, Third Party Dealings, Disclaimers and Limitations, Ownership of Data, Governing Law and Venue, And General Provisions.
CONDUCT OF USERS
The Services may be used only by SUBSCRIBER, its authorized users and its authorized agents, including affiliates, joint venture partners, licensees and subsidiaries. As more fully discussed in the Security section of this Agreement, SUBSCRIBER is solely responsible for maintaining the security of its user name(s) and password(s). Any use of SUBSCRIBER’s user name(s) and/or password(s) shall be deemed as authorized by SUBSCRIBER and SUBSCRIBER shall remain liable for all actions thereunder, unless SUBSCRIBER provides advance written notice to Fullbay that its user name(s) and/or password(s) have been compromised. SUBSCRIBER and its authorized users of the services may use the Services only as long as SUBSCRIBER and SUBSCRIBER’s authorized users comply with the rules and guidelines (“Rules”) imposed by Fullbay. SUBSCRIBER is solely responsible for compliance with the Rules by SUBSCRIBER and by all other users to whom SUBSCRIBER authorizes access for the Services. A copy of the current Rules is attached, as Schedule A. Any violation of the Rules by any user using the Services will be a breach of this Agreement. Fullbay may amend or supplement the Rules from time to time, and any amended or supplemented Rules shall be posted by hyperlink to the login page for the Services, which posting shall be deemed reasonable and adequate notice to SUBSCRIBER and SUBSCRIBER’s authorized users of the amended or supplemented Rules.
Fullbay does not provide any legal advice or any recommendation with respect to any laws or requirements applicable to SUBSCRIBER’s website or End Users (as defined below).
SUBSCRIBER confirms it owns all rights in and to any content uploaded by or provided by SUBSCRIBER for SUBSCRIBER’s website (“User Content”), including any designs, images, animations, videos, audio files, fonts, logos and any other materials, or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content. SUBSCRIBER shall fully comply with all applicable laws and any other contractual terms which govern SUBSCRIBER’s use of the Services (and any related interaction or transaction), including those specific laws applicable to SUBSCRIBER or its website’s visitors and users (“End Users”). Notwithstanding anything to the contrary in this Agreement, in no circumstances may Fullbay be considered as a “publisher” of any User Content, Fullbay does not in any way endorse any User Content, and Fullbay assumes no liability for any User Content or other content uploaded, posted, published and/or made available by any user, End User or any other party on and/or through the Services, including any website services provided by Fullbay.
SUBSCRIBER shall not phish, collect, upload, or otherwise make available credit card information or other forms of financial data used for collecting payments, unless done in accordance with any applicable law, including, with the PCI DSS standard when applicable.
FULLBAY'S LIMITED WARRANTY
Fullbay represents and warrants to SUBSCRIBER that the Services will be performed in a manner consistent with industry standards and in compliance with any specifications and requirements set forth in this Agreement. SUBSCRIBER shall notify Fullbay in writing within 30 calendar days after performance of any Services that do not conform to the foregoing warranties. If SUBSCRIBER fails to provide timely written notice to Fullbay, the Services will be deemed to be in compliance with the foregoing warranties. SUBSCRIBER’s exclusive remedy for breach of the foregoing warranties shall be for Fullbay, at its option, to re-perform the Services at no cost to SUBSCRIBER, or, in the event of interruption of the Services, issue SUBSCRIBER a credit in an amount equal to the service charge for the interrupted period.
The foregoing warranties shall not apply to performance issues or defects in the Services that resulted from factors outside of Fullbay’s reasonable control; that resulted from any actions or inactions of SUBSCRIBER or its authorized users; or that resulted from SUBSCRIBER’s equipment or any third parties’ equipment not within the control of Fullbay.
SUBSCRIBER agrees to provide true, accurate and complete information about itself and its authorized users of the Services. All proprietary and confidential information and materials (“Confidential Information”) of either party will be held in confidence by the other party. Confidential Information will include, without limitation, information relating to a party’s business and marketing plans and processes, rates, fees and other terms of pricing of the Services, customers, software, hardware and technology, or quality of performance of the Services. Confidential Information will not include information (a) already known or independently developed by the recipient, (b) in the public domain through no wrongful act of the recipient, or (c) received by the recipient from a third party who was authorized to disclose it. SUBSCRIBER’s Confidential Information will include “Personally Identifiable Information” about SUBSCRIBER and its authorized users. Personally Identifiable Information is information that personally identifies a person or entity. Fullbay will not, nor knowingly permit others to release Personally Identifiable Information without the written consent of SUBSCRIBER. Neither party will use (for itself or for any third party) or disclose, nor permit any other person or entity under its control to use or disclose any Confidential Information, except (A) to employees, agents, third party contractors, or representatives of the recipient who have a “need to know” the information and are subject to an obligation of confidentiality at least as restrictive as the restrictions contained in this Confidentiality section, (B) if required by law or legal process, (C) to enforce this Agreement (including the Rules), (D) to respond to claims that any content violates the rights of third parties, or (E) to protect the rights, property, or personal safety of us, users of the Services or members of the public. Each party will promptly notify the other party if it receives a request for the other party’s Confidential Information (unless notice is prohibited by law), will reasonably cooperate with the other party’s efforts to seek protection from disclosure and disclose only that portion of Confidential Information required under applicable law. Upon termination of this Agreement, the provisions of this Confidentiality section will survive for a period of three years from the termination date, and each party will either return to the other party all Confidential Information of the other party in its possession or control, or, at the other party’s request, destroy such Confidential Information with certification to the other party stating that such Confidential Information has been destroyed
SUBSCRIBER agrees to keep secure and confidential any user name Fullbay issues to SUBSCRIBER, and any password (whether issued by Fullbay to SUBSCRIBER or created by SUBSCRIBER). SUBSCRIBER will be fully responsible for all activity that occurs under the use of SUBSCRIBER’s user name or password. SUBSCRIBER agrees to immediately notify Fullbay in writing of any unauthorized use of SUBSCRIBER’s user name or password. Fullbay will use commercially reasonable efforts to protect the security of the Services; however, Fullbay does not warrant or guarantee the integrity or the security of the Services or of the content, information or data transmitted through or contained within any portion of the Services.
Fullbay owns or has authority to use any and all rights pertaining to: (a) the content contained in or presented through the Services by Fullbay or by third parties engaged by Fullbay (including, without limitation, text, music, sound, photographs, graphics, video, page layout, editorial content and design), (b) the software, hardware, files, processes, systems, databases and tools used or provided to SUBSCRIBER by Fullbay or by third parties engaged by Fullbay to provide the Services, (c) other tangible and intangible personal property relating to the Services, and (d) the trade names, trademarks, service marks, copyrights, patents, inventions, trade secrets, know-how and other intellectual property rights relating to the foregoing (sections (a), (b), (c), and (d) in this Proprietary Rights section shall collectively be referred to as “Fullbay Property”).
SUBSCRIBER is prohibited from publishing, distributing via the Internet or any other public computer-based information system (other than website services provided by Fullbay expressly for distribution), creating derivative works (including translating), transferring, selling, leasing, licensing, or otherwise making available to any unauthorized party Fullbay Property.
SUBSCRIBER is granted the right to use that portion, and only that portion, of Fullbay Property that is contemplated in this Agreement. SUBSCRIBER will not copy, revise, alter, modify, decompile, reverse engineer, assemble, or attempt to discover, nor sell, assign, sublicense, encumber, or otherwise transfer any interest in any Fullbay Property, including, without limitation, any object code, source code, underlying processes or algorithms contained therein, other than as is permitted by Fullbay in writing, and SUBSCRIBER will not permit any person or entity to commit or engage in such activities or conduct. SUBSCRIBER acknowledges that any violation of this Proprietary Rights section imposes a serious threat to Fullbay’s business and its ability to exist.
THIRD PARTY DEALINGS
If SUBSCRIBER acquires goods or services from a third party, regardless of whether the goods or services are used as part of the Services or acquired through a feature of the Services, SUBSCRIBER agrees that its business dealings with such third party are solely between SUBSCRIBER and such third party. Any and all use of such third-party goods or services shall be done solely at SUBSCRIBER’s own risk and responsibility, and may be subject to such legal and financial terms which govern such third-party goods or services, which SUBSCRIBER is encouraged to review before engaging with any third party. Fullbay has no liability to SUBSCRIBER or such third party arising from SUBSCRIBER’s relationship with such third party, or the goods or services acquired by SUBSCRIBER from such third party. SUBSCRIBER is responsible for paying such third party for the goods and services SUBSCRIBER acquires from such third party. In addition, Fullbay has no liability arising from any complaints or claims SUBSCRIBER may have concerning any defects in goods or services that SUBSCRIBER acquires from such third party or such third party’s failure to perform its obligations to SUBSCRIBER.
Links to other websites or resources may be provided by Fullbay or third parties as part of the Services. SUBSCRIBER agrees that Fullbay has no control over such other websites or resources, and is not responsible in any way for those other websites or resources including without limitation any content, advertising, products or material on or available from such other websites or resources. If Fullbay provides SUBSCRIBER website services, Fullbay may, at any time and at its sole discretion, suspend, disable access to or remove from SUBSCRIBER’s website any third-party services without any liability to you or to any End Users.
DISCLAIMERS AND LIMITATIONS
SUBJECT TO THE LIMITED WARRANTIES SET FORTH IN FULLBAY’S LIMITED WARRANTY SECTION, SUBSCRIBER’S USE OF THE SERVICES AND ANY EQUIPMENT, SOFTWARE AND HARDWARE PROVIDED IN CONNECTION WITH THE SERVICES, IS ON AN “AS IS” BASIS. WHILE FULLBAY WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICES, FULLBAY DOES NOT MAKE, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH RESPECT TO THE SERVICES OR SUCH PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER FULLBAY NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING ANY OF THE SERVICES PROMISES, REPRESENTS OR WARRANTS THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS OR OTHER PROPERTY THAT ARE USED IN PROVIDING THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FULLBAY SHALL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY INACCURACY, ILLEGALITY, AND/OR INAPPROPRIATENESS OF ANY USER CONTENT OR OTHER CONTENT PROVIDED THROUGH THE SERVICES, ANY DAMAGE, DESTRUCTION OR CORRUPTION OF ANY CONTENT OR OTHER DATA BY THE SERVICES, OR ANY USE OR MISUSE OF, OR INABILITY TO USE, THE SERVICES BY ANY PERSON OR ENTITY.
IN NO EVENT WILL FULLBAY OR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING ANY OF THE SERVICES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, DIMUNITION IN VALUE, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF FULLBAY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH LOSSES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES. FULLBAY’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT OR THE SERVICES WILL BE LIMITED TO THE AMOUNT OF FEES PAID BY SUBSCRIBER TO FULLBAY UNDER THIS AGREEMENT FOR THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO WHEN ANY CLAIM OR CAUSE OF ACTION AROSE.
SUBSCRIBER acknowledges and agrees that any claim or cause of action which SUBSCRIBER may have arising out of or related to this Agreement or the Services must be filed within one (1) year after such claim or cause of action arises, or the claim or cause of action will forever be barred.
Each party must provide written notice to the other party at least 30 calendar days prior to filing or otherwise initiating any action, charge or lawsuit against the other. The written notice must describe the factual basis for the dispute and provide at least 30 calendar days for the receiving party to remedy, cure or otherwise resolve the matters stated in the notice.
Fullbay will not be liable for failure or delay in performing the Services or other obligations under this Agreement if the failure or delay is due to circumstances beyond Fullbay’s control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, pandemic, epidemic, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunication or third party services (including DNS propagation), failure of third party software or hardware, or inability to obtain raw materials, supplies, or power used in equipment needed for the provision of the Services.
Certain features of the Services may include suggested contractual language for use on estimates, invoices and other correspondence or agreements between SUBSCRIBER and its customers. Fullbay makes no warranties about the enforceability or efficacy of such contractual language. SUBSCRIBER acknowledges and agrees that such contractual language is provided for the convenience of SUBSCRIBER only and SUBSCRIBER agrees to consult its own legal counsel to evaluate whether such contractual language is suitable for use by SUBSCRIBER in the conduct of its business.
OWNERSHIP OF DATA
SUBSCRIBER understands that the technical processing and transmission of data provided by SUBSCRIBER and other data is necessary to SUBSCRIBER’s use of the Services and SUBSCRIBER’s use of certain third-party services that are integrated with or otherwise available through or in connection with SUBSCRIBER’s use of the Services. As between Fullbay and SUBSCRIBER, SUBSCRIBER owns all right, title, and interest, including all intellectual property rights, in and to, other than Resultant Data, information, data, and other content, that is submitted, posted, or otherwise transmitted by or on behalf of SUBSCRIBER or an authorized user through the Services, and hereby grants to Fullbay a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use, review and display such data and perform all acts with respect to such data as may be necessary for Fullbay to (a) provide the Services or (b) analyze SUBSCRIBER’s use of third-party services that are integrated with or otherwise available through or in connection with SUBSCRIBER’s use of the Services. As between SUBSCRIBER and Fullbay, Fullbay owns all right, title, and interest in the Resultant Data and all intellectual property rights therein belong to and are retained solely by Fullbay. SUBSCRIBER acknowledges and agrees that Fullbay may compile Resultant Data based on SUBSCRIBER'S data input into the Services. For purposes of this Agreement, “Resultant Data” means data and information related to SUBSCRIBER's use of the Services that is used by Fullbay in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
SUBSCRIBER understands that SUBSCRIBER or Fullbay may be transmitting data over the Internet, and over various networks, only part of which may be owned and/or operated by Fullbay. SUBSCRIBER agrees that Fullbay is not responsible for any portions of data that are lost, altered, intercepted or stored without authorization during the transmission of data across networks not owned and/or operated by Fullbay.
Fullbay agrees that SUBSCRIBER’s documents are the exclusive property of SUBSCRIBER. Fullbay agrees that it will reasonably protect SUBSCRIBER’s property interests and rights in and to such documents. Fullbay agrees that it shall not at any time challenge or contest the validity or ownership of such documents, and that nothing in this Agreement shall be construed to limit SUBSCRIBER’s property rights in such documents. Upon the request of SUBSCRIBER at any time, and upon the termination of this Agreement, Fullbay shall transmit to SUBSCRIBER a copy of SUBSCRIBER’s documents, subject to reasonable fees to be paid by SUBSCRIBER to Fullbay. Upon termination of this Agreement, Fullbay shall not use or disclose any SUBSCRIBER documents, and shall certify the destruction of all such documents.
SUBSCRIBER’s feedback concerning SUBSCRIBER’s experiences with the Services is essential to the Services. SUBSCRIBER agrees that if SUBSCRIBER sends or transmits any communications or materials to Fullbay, suggesting or recommending changes to the Services based on SUBSCRIBER’s experiences, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Fullbay is free to use such Feedback without any other limitation. SUBSCRIBER hereby grants Fullbay a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, transferable (with the right to sublicense) right and license to use, copy, display, publicly perform or create derivate works of the Feedback relating to the Services.
California Civil Code Section 1798.83 and the California Consumer Privacy Act of 2018 entitle California users to request information concerning the disclosure of certain personal information to third parties for the third parties’ direct marketing purposes. California users who wish to request further information in compliance with these laws may contact Fullbay by email at firstname.lastname@example.org.
SUBSCRIBER agrees to indemnify and hold Fullbay (as well as its parents, subsidiaries, affiliates, officers, members, shareholders, employees, agents and representatives) harmless from any and all claims, liability and expenses (including without limitation, reasonable attorneys’ fees) arising out of or related to SUBSCRIBER’s use of the Services (unless the claim directly relates to Fullbay’s willful misconduct), SUBSCRIBER’s breach of any provision of this Agreement, or any claim arising out of User Content or other content posted or transmitted by any person or entity associated with or authorized by SUBSCRIBER (other than Fullbay) through the use of the Services. Fullbay reserves the right, to select counsel of its own choosing for and otherwise to control its own defense, at SUBSCRIBER’s expense, of any matter subject to indemnification by SUBSCRIBER, which shall not excuse SUBSCRIBER’s indemnity obligations.
NOTICES AND STATEMENTS
Except as otherwise specifically provided in this Agreement, all notices and statements may be sent by electronic mail, facsimile or overnight delivery to the electronic mail address, fax number or delivery address most recently provided in writing or via online submission to the other party. For overnight deliveries, notices and statements will be deemed to be received upon personal delivery. For facsimile and electronic mail deliveries, notices and statements will be deemed to be received upon transmission.
SUBSCRIBER EXPRESSLY CONSENTS TO RECEIVE TELEPHONE CALLS, FAXES AND EMAILS FROM FULLBAY OR ANY OF FULLBAY’s EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES IN ANY WAY ARISING FROM THIS AGREEMENT OR THE SERVICES DESCRIBED IN THIS AGREEMENT.
As of the date of execution, the addresses for the SUBSCRIBER is as entered in the address portion of this form and the address for Fullbay is:
515 E Grant St
Phoenix, AZ 85004
Phone: (385) 225-3329
Email for Notices and Billing Questions: email@example.com
GOVERNING LAW AND VENUE
This Agreement is entered into in the state of Arizona. This Agreement and any rights, remedies, or obligations provided for in this Agreement shall be construed and enforced in accordance with the laws of the state of Arizona without regard to the conflicts provisions thereof. Any and all disputes that in any way arise out of or bear any relationship with this Agreement shall be instituted in a state or federal court in Maricopa County, Arizona, and each party hereby submits to the exclusive personal jurisdiction of such courts and waives any defense relating to venue or forum non convenience.
SUBSCRIBER will pay Fullbay all costs and expenses, including reasonable attorney’s fees, incurred by Fullbay in enforcing any of the terms, conditions and provisions in this Agreement, including any of Fullbay’s rights and remedies set forth in this Agreement.
The parties represent and acknowledge that this Agreement and the Annual Subscription Order Form, if applicable, constitute a single, integrated, written contract expressing the entire understanding and agreement between and among the parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The parties have not relied on any statement, representation, warranty, or agreement of the other party or of any other person on such party's behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement. If any portion, provision, or part of this Agreement is held, determined, or adjudicated to be invalid, unenforceable or void for any reason whatsoever, each such portion, provision or part shall be severed from the remaining portions, provisions or parts of this Agreement and shall not affect the validity or enforceability of any remaining portions, provisions or parts. The Rules (defined below) may be amended at any time by Fullbay as otherwise provided in this Agreement. Otherwise, any amendment of this Agreement will require the consent of both parties, and SUBSCRIBER agrees that its consent may be provided by SUBSCRIBER’s continued use of the Services after notice from Fullbay of an amendment of this Agreement. No waiver of any breach or failure or delay in exercising any right, power or remedy of any provision of this Agreement shall constitute a waiver of the same or any other provision hereof with respect to prior, concurrent or subsequent occurrences. No waiver shall be effective unless made in writing and signed by an authorized representative of the party against whom such waiver is sought. Titles and headings are included solely for convenient reference and are not part of this Agreement. SUBSCRIBER may not assign any of its rights or obligations (in whole or in part) without the prior written consent of Fullbay, which shall not be unreasonably withheld. Subject to the express exclusions and limitations set forth in this Agreement, all remedies set forth in this Agreement are cumulative and in addition to and not in lieu of any other remedies of any party at law or in equity. No person or entity is intended to be a third-party beneficiary of any provision of this Agreement. The parties represent and warrant that they have full authority to execute and deliver this Agreement and to perform their obligations under this Agreement, and that the person whose signature appears below is duly authorized to enter into this Agreement on behalf of the party whom they represent.
SCHEDULE A - RULES AND REGULATIONS
These Rules and Regulations (the “Rules”) supplement the Terms of Service Agreement (the “Agreement”) to which they are attached. Unless they are defined differently in this Schedule A, all terms have the meanings set forth in the Agreement.
These Rules are intended to explain the obligations of SUBSCRIBER and other users of the Services as to their conduct while using the Services. SUBSCRIBER is responsible for compliance with these Rules by all of SUBSCRIBER’s authorized users of any of the Services. Failure of any such user to comply with these Rules may be a breach of the Agreement and may result in, among other things, the termination of the Agreement and/or any or all of the Services, the denial of access to one or more of the Services, the refusal to post or transmit, or the alteration or removal of material from a website or other area. The Rules are subject to change as provided in the Agreement.
Terms of Service
Users shall comply with the Agreement, as it may be modified and adopted by Fullbay.
SUBSCRIBER and its users and End Users shall not upload, transmit or post any material, or engage in any other use of the Services that violates any law, rule or regulation, defames or libels any other person or entity, infringes any other person’s or entity’s rights, including, without limitation, any intellectual property or privacy rights, or otherwise could impose civil or criminal liability. Fullbay reserves the right to notify any governmental entity, law enforcement authority, or any other party that it deems appropriate in its sole discretion, of any such activity. Uploading, posting or transmitting any content that infringes any patent, trademark, trade secret, copyright, publicity or proprietary right of any person or entity will be grounds for immediate termination of the Services or other corrective action.
TCPA, CAN-SPAM ETC.
SUBSCRIBER and its users shall at all times comply with the Telephone Consumer Protection Act, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, the Federal Trade Commission’s Telemarketing Sales Rule, and all other laws and regulations concerning privacy, telemarketing, and Internet marketing when using the Services.
SUBSCRIBER agrees to indemnify and hold harmless Fullbay and its affiliates, as well as each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers, and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs, and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements, and attorneys’ fees, including attorneys’ fees incurred from counsel selected by Fullbay in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, third-party discovery demand, governmental investigation, or enforcement action based upon or arising out of the activities of SUBSCRIBER or its users under this Agreement or the acts or omissions of SUBSCRIBER or its users in connection with any use of the Services. SUBSCRIBER agrees to cooperate as fully as is reasonably required in the defense of any such claim, suit, action, proceeding, third-party discovery demand, governmental investigation, or enforcement action. Fullbay reserves the right, at SUBSCRIBER’s expense, to assume the exclusive defense and control of any matter in which SUBSCRIBER is a named party and in which Fullbay is or may be entitled to indemnification by SUBSCRIBER under this paragraph. In addition, SUBSCRIBER will be liable to Fullbay for any costs and attorneys’ fees that Fullbay incurs to successfully establish or enforce its right to indemnification under this paragraph.
Defamatory or Abusive Material
SUBSCRIBER and its users and End Users shall not upload defamatory, obscene, profane, vulgar, threatening, offensive, abusive, inaccurate or illegal material.
SUBSCRIBER or any of its users shall not access, or attempt to access, another person’s or entity’s accounts without proper authorization to do so, or attempt to disrupt or interfere with the Services in any manner. Each of SUBSCRIBER and any of its users, must register and maintain a valid email address with Fullbay in order to receive system notifications.
Use and Data Storage
Fullbay may establish and change from time to time general practices and limits on the use of the Services, the amount of central processing unit (CPU) processing, bandwidth and disk usage, and levels of activity. Fullbay will use commercially reasonable efforts to provide all SUBSCRIBERS with advance notice of these practices and limits. Violation of these practices and limits will be considered a violation of these Rules.
SUBSCRIBER or any of its users shall not engage in any other activity that Fullbay determines in its sole discretion may be harmful to other users of the Services.
Fullbay does not in the ordinary course pre-screen or monitor content of the database, SUBSCRIBER’s website and User Content, or any other communications. However, Fullbay reserves the right, but does not assume any obligation, to determine in its sole discretion what is and is not acceptable content in connection with the Services, to limit placement of any content in a database or on any other area provided in connection with the Services, to use commercially reasonable efforts to remove, alter or block access to any offensive, objectionable, or unacceptable content immediately and without prior notice, to determine in its sole discretion what is and is not an appropriate conduct and use of any of the Services, and to cease providing or bar access to any or all of the Services to any user at any time, for any reason or for no reason, without prior notice. Fullbay reserves the right, but does not assume any obligation, to monitor and investigate complaints regarding any of the foregoing, and SUBSCRIBER agrees to grant Fullbay access to SUBSCRIBER’s account at any time without notice, and to cooperate fully with Fullbay in providing access and information as may be requested at any time and from time to time. SUBSCRIBER agrees that any reservation of rights by Fullbay imposes no obligation of any kind on Fullbay to take any of the foregoing actions.