The Terms of Service for B2Q Digital Services Subscriptions
THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR DIGITAL SERVICES SUBSCRIPTIONS.
IF YOU REGISTER FOR AN EVALUATION (“TRIAL PERIOD”) FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT EVALUATION.
BY ACCEPTING THIS AGREEMENT EITHER THROUGH SUBMITTING AND ORDER FOR SERVICES OR YOUR FIRST USE OF THE SERVICES OR BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on 27 July 2017. It is effective between You and Us as of the date of You accepting this Agreement.
1. DEFINITIONS
“Order” means any order placed to obtain any Subscription Features hereunder. Orders may be subject to additional terms (“Order Terms”) and any such Order Terms shall be deemed incorporated herein by reference.
“Subscription Features” means a subset of features provided by the Services for which a charge is payable as detailed in the Price List. We reserve the right to make changes to the Subscription Features and the price at any time and without notice.
“Price List” means the prices agreed by Us with You for the purchase of Subscription Features.
“Purchased Services” means Services that You or Your Affiliates purchase under an Order.
“Services” means the products and services that are provided to You including those provided under an Order and made available by Us online via any web pages designated by Us, including any associated offline components.
“Standard Features” means the subset of the Services that are available free of charge to all Users. We reserve the right to make changes to the Standard Features at any time and without notice.
“Users” means individuals who are authorized by Us or You to use the Services and who have been supplied unique user identifications and passwords by You or by Us. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business. Users shall also include any party designated by US as a user.
“Location” or “Affiliate” means a store entity or physical location to which one or more technicians using our products is affiliated.
“Enterprise” means a group of “Locations” or “Affiliates”
“We”, “Us” or “Our” means Advanced Battery Solutions Corporation, dba B2Q Technologies, or B2Q
“You” or “Your” means you, the company or other legal entity for which you are accepting this Agreement, and all Locations or Affiliates of any such company or entity.
“Your data” means information and data you, Locations / Affiliates affiliated with you and associated Users input or upload to Our platform while using the Service.
2. EVALUATION
If You register on our website to evaluate the Services for commercial purposes, We may make limited versions of certain Subscription Features available to You on a trial basis free of charge until the end of the evaluation period for which you registered or are registering to use the Services. Additional evaluation terms and conditions may appear on the evaluation registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
NOTWITHSTANDING SECTION 7 (WARRANTIES AND DISCLAIMERS), DURING THE EVALUATION THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. PROVISION OF SERVICES
3.1. Provision of Standard Features. We shall make the Standard Features available to you pursuant to the EULA Agreement presented during registration for services. Standard features are provided at no additional charge. We may add, remove or change Standard features at any time.
3.2. Provision of Purchased Services. If you wish to subscribe to Subscription Services you will request Purchased Services by placing an Order and We shall make the Purchased Services available to You pursuant to this Agreement during the term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
4. USE OF THE SERVICES
4.1. Our Responsibilities. We shall: (i) provide basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (c) attempt to gain unauthorized access to the Services or their related systems or networks.
4.3 Each individual using services shall register an account using correct and accurate identifying information and use a unique username and associated password by which they may access services. You and your Users may not share username(s) for the purpose of anonymizing or obfuscating the identity of users, or for the purpose of reducing the number of registered user accounts.
4.4 Each location that is registered to use services must be discrete and separate from any other location using services. Multiple locations, even if owned and operated by the same person or entity must each be represented by a unique location / affiliate account in our system. You may not use one location / affiliate account to represent more than one physical location. Each physical location to which users are affiliated must have a unique location / affiliate registered in our system.
4.5 Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space and bandwidth. Any such limitations may be specified at any time.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1 Order Process. You shall order services by completing and submitting an order form provided by Us or by submitting to us a purchase order for Our Digital Services. We will accept or reject the order within 5 business days. If Your business practice requires a purchase order number to be issued prior to payment of any invoice from Us, then the order form must include the purchase order number. Purchased Digital Services are provided by Us based on an Enterprise (collection of Locations.) A separate order form must be provided for each distinct Enterprise.
5.2. Fees. You shall pay all fees associated with all Orders placed hereunder. Except as otherwise specified herein, (i) fees are based on services purchased and not actual usage, and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
5.3. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order that may be referenced repeatedly and periodically for invoicing purposes; or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services. If we have agreed with You that payments will be by a method other than a credit card, We will invoice You monthly in advance for all Purchased Services during that period. Unless otherwise stated in the invoice, invoiced charges are due 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.4. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future invoices on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.5. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending services to You.
5.6. Payment Disputes. We shall not exercise Our rights under Section 5.4 (Overdue Charges) or 5.5 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.7. Taxes. Unless otherwise stated, Our prices published for subscription services do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to sales tax, VAT, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivative works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
7. WARRANTIES AND DISCLAIMERS
7.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the information and description of services provided on our website. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 10.2 (Termination) below.
7.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.4. Non-Generally Available Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Non-Generally Available Services”). You may accept or decline any such trial in Your sole discretion. Any Non-Generally Available Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-Generally Available Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GENERALLY AVAILABLE SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-Generally Available Services at any time in Our sole discretion and may never make them generally available.
8. MUTUAL INDEMNIFICATION
8.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Purchased Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.
8.2. Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
8.3. Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY ONE PARTY TO THE OTHER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY EITHER PARTY TO THE OTHER HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the date You accept it and continues for as long as You use it or until terminated by Us or by You.
10.2. Termination. You may terminate this Agreement by closing your account at any time. We may terminate this Agreement at any time for any reason without notice. We may suspend your account and your access to the Services or terminate this Agreement if (i) we determine in our sole discretion that you are using Standard Features excessively without ordering sufficient Purchased Services; (ii) you do not comply with any of the provisions of this Agreement; (iii) your account has been inactive for 90 days or more; or (iv) if You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, WILL BE PERMANENTLY LOST ON TERMINATION OF THE AGREEMENT.
10.4. Surviving Provisions. Section 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 12 (Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
11. NOTICES, GOVERNING LAW AND JURISDICTION
11.1. Governing Law. This Agreement, any document completed or to be completed in accordance with its provisions and any matter arising from it or any such document shall be governed by and construed in accordance with the laws of Rhode Island, USA.
11.2 Jurisdiction. The parties agree to submit to the exclusive jurisdiction of the Rhode Island courts in relation to this Agreement any such document and any such matter.
11.3. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
11.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. GENERAL PROVISIONS
12.1. Export Compliance. The Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
12.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department.
12.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
12.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.7. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).
12.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter, specifically the procurement of Digital Services Subscriptions. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of such exhibit or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.