Bargainator Terms of Service
Last updated on February 25, 2019
THIS SUBSCRIPTION AGREEMENT (the "Agreement") governs your acquisition and use of Bargainator's Intelligent sales assistant services ("Services"). By accepting this Agreement, either by clicking a box to indicate your acceptance or otherwise executing a document that references this Agreement, you agree to the terms of this Agreement. This Agreement shall become effective on the date of your acceptance (the "Effective Date"). 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. 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. This Agreement was last updated on February 23th [ ], 2019. It is effective between You and Bargainator ("Bargainator") as of the date You accept this Agreement. The parties to this Agreement hereby agree as follows:
The parties to this Agreement hereby agree as follows:
1. ACCESS AND USE.
1. Access Right. Subject to the terms and conditions of this Agreement, Bargainator grants to You during the Subscription Period (defined below) a nonexclusive, non-sublicensable (except as set forth herein) and nontransferable right to access and use the Service solely for Your internal business purposes. The foregoing license includes the right for Your employees and third-party contractors and consultants to access and use the Service solely on behalf of You, provided that You shall be fully responsible for any and all liabilities arising from the activities of such employees and third-party contractors and consultants in connection with their access and use of the Service. You may not use (or authorize the use of) the Service for any other purpose or for the benefit of any other party, except as may be permitted in writing by Bargainator. This access right terminates at the end of the Subscription Period or earlier termination of the Service in accordance with this Agreement.
2. Service Availability. Bargainator's goal will be to make the Service available 24 hours a day, 7 days a week, except during scheduled maintenance windows. However, 24 x 7 availability of the Service is only a goal and Bargainator does not represent or guarantee that such goal will be achieved at all times. You acknowledge that Your ability to access and use the Service may also be affected by resources and factors outside the control of Bargainator, including Your access to the internet.
3. Mode of Access. You shall not access or attempt to access the Service by any means other than the web and mobile device interfaces provided by Bargainator, or to attempt to circumvent or disable any access or use restrictions put in place by Bargainator. You shall maintain a list of all third-party contractors and consultants authorized to access the Service on behalf of You and will make such list available to Bargainator upon request.
4. Other Restrictions. You shall use the Service only for purposes and in a manner that are permitted by applicable laws, rules and regulations. You shall not (and shall not attempt to) decompile, reverse engineer or otherwise derive or discover the source code of the software underlying the Service, or use the Service in a service bureau or other resale capacity.
2. SUBSCRIPTION AND PRICING.
1. Subscription Period. The Service will be made available from the Effective Date until You cancel the Subscription or this Agreement is terminated under Section 7 (the "Subscription Period"), subject to Your payment of the Access Fees (defined below).
2. Subscription Fees. You will pay the subscription fees set forth on the schedule attached as set forth on Bargainator's website Pricing page (the "Subscription Fees"). Bargainator reserves the right to modify the Subscription Fees from time to time; Bargainator will provide notice of any changes to the Subscription Fees on its website or by email. The Subscription Fee excludes all applicable sales, use and other taxes, and You will be responsible for payment of all such taxes, fees, duties and charges, and any related penalties and interest, that may arise from Your use of the Service.
3. Payment. You must have a valid credit card and provide such credit card information to Bargainator or to your e-commerce service provider in order to use the Service. Bargainator will use a third-party solution to save your credentials and charge You your use of the Service. You will be charged each month for the Subscription Fees you have incurred. Notwithstanding the foregoing, certain Subscription Fees for Services may be offered on other alternative fee arrangements including, but not limited to a fixed fee basis requiring advanced payment. Failure to provide timely payment may result in the suspension of Your access to and use of the Service until the outstanding balance has been paid in full. Bargainator will restore access to the Service promptly after all outstanding amounts owed have been paid.
1. Technical Support. Bargainator will provide reasonable technical support by email and chat (available on Bargainator website and app dashboard) to assist in Your access to and use of the Service. You may contact Bargainator's support team at firstname.lastname@example.org.
2. Scheduled Maintenance. Bargainator may update from time to time the server-side software, and web and mobile device interfaces, underlying the Service. Such updates are intended to improve or enhance the Service and may take the form of bug fixes, program code updates and enhancements. Bargainator will provide notice of scheduled maintenance via email to its user.
4. CONTENT AND DATA.
1. Responsibility for Content Resulting From Use of the Service. You acknowledge and agree that, as between the parties hereto, all information communicated to You in connection with use of the Service by You and/or Your third-party contractors and consultants is the responsibility of You, and that Bargainator has no responsibility for such content.
2. Input Data. As between the parties hereto, You shall own and, other than to the limited extent provided in this Section 4.2, have sole control over any and all data transmitted to the Service by You, Your third-party contractors and consultants, and/or by other persons communicating with You via the Service (collectively, the "Input Data"). You hereby grants to Bargainator a non-exclusive, royalty-free, worldwide license during the Term of this Agreement to reproduce, modify, create derivative works from, distribute, publicly perform and publicly display the Input Data solely in conjunction with the Service. You acknowledge and agree that as between the parties hereto, all Input Data is the responsibility of You; provided, however, that Bargainator shall have the right (but not the obligation) in its discretion to remove from the Service any Input Data that violates this Agreement or Bargainator's policies and procedures, or is otherwise objectionable.
3. Security. You acknowledge that servers and databases are maintained by or on behalf of Bargainator to store the Input Data and other data processed by the Service, and may keep such information indefinitely. Bargainator employs reasonable technological and operational security procedures intended to protect such data from loss, misuse, alteration, or destruction. However, You acknowledge that no security measure can guarantee against compromise, and Bargainator does not guarantee that the servers and databases underlying the Service will not experience any such compromise.
5. INTELLECTUAL PROPERTY RIGHTS.
1. Reservation of Rights. All rights not expressly granted herein are reserved by Bargainator, including, but not limited to, the unrestricted right to grant access to the Service to third parties in any form anywhere. Nothing in this Agreement is intended by the parties to constitute a sale of the software or associated documentation underlying the Service, or any derivations thereof. Bargainator reserves the right to modify the Service in Bargainator's discretion.
2. Title. The Service (including the software and associated documentation underlying the Service) are the valuable proprietary and trade secret information and property of Bargainator or its licensors. Title, ownership rights and intellectual property rights, including but not limited to, copyright and patent rights, in the Service, and all derivatives thereof, shall remain with Bargainator and its licensors. You acknowledge the ownership and intellectual property rights of Bargainator and will not take any action to jeopardize, limit or interfere in any manner with such ownership or other rights.
3. Marks. The trademarks, logos and service marks (the "Marks") displayed in the Service and on Bargainator's website are the property of Bargainator or third parties. You shall not use any Mark (or allow the use of any Mark by any of Your third-party contractors or consultants) without the prior written consent of Bargainator or applicable third-party owner of the Mark.
4. Feedback. Although You will remain the owner of any feedback provided to Bargainator regarding the Service, You hereby grants Bargainator a non-exclusive, royalty-free, fully paid up, perpetual, irrevocable, transferable, unlimited, world-wide right to use and otherwise commercially exploit any feedback, ideas or other suggestions communicated by You to Bargainator.
6. NO WARRANTY.
THE SERVICE AND ANY RELATED SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED. BARGAINATOR DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BARGAINATOR DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR NEEDS OR REQUIREMENTS, THAT ANY INFORMATION OBTAINED THROUGH USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, THAT USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT ALL DEFECTS IN THE SERVICE WILL BE CORRECTED.
1. By You. You may terminate this Agreement (and cancel the Service) at any time. You will not owe any Subscription Fees for periods subsequent to the effective date of such notice and may continue to use the Service if the Subscription Fees that have been paid cover a subscription period that has not expired.
2. By Bargainator. Bargainator may terminate this Agreement (and Your access to the Service) at any time if You have failed to pay the Subscription Fee for any particular month when due and failed to make such payment within 30 days after receiving a reminder from Bargainator in writing. Bargainator may also terminate the Service prior to the end of any Subscription Period if You has committed any other material breach of this Agreement and failed to cure such material breach within 30 days after receiving written notice of the breach from Bargainator.
3. Effects of Termination. Upon the expiration or termination of this Agreement, Bargainator will disable Your online access to the Service. Termination of this Agreement will not relieve either party from its obligation to comply with any terms of this Agreement that call for performance prior or subsequent to the termination date of the Service, including Your obligation to pay for access to the Service for periods prior to the termination date.
2. RISK OF LOSS AND LIMITATION OF LIABILITY.
1. Risk of Loss. You accept all risk of loss or damage to the computer systems or other devices of You and of Your third-party contractors and consultants, or loss of data, which results from or in connection with use of the Service by You and/or Your third-party contractors and consultants.
2. Limitation of Liability. IN NO EVENT WILL BARGAINATOR BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND EVEN IF BARGAINATOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL BARGAINATOR'S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE AMOUNTS PAID TO BARGAINATOR BY YOU FOR ACCESS TO THE SERVICE. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different.
You acknowledge that by making the Service available, Bargainator does not assume any responsibility or liability for the risks associated with Your business. Accordingly, You shall defend, indemnify and hold harmless Bargainator and its officers, directors, employees and representatives from and against all claims by third parties arising out of or relating in any way to the conduct of Your business or the use of or inability to use the Service, and all associated losses, costs, damages, and settlements, including reasonable legal fees and expenses. In the event of a claim in respect of which Bargainator seeks indemnification from You under this Section 9, Bargainator will promptly notify You in writing of the claim, cooperate with You in defending or settling the claim at Your expense, and allow You to control the defense and settlement of the claim, including the selection of attorneys.
1. ARBITRATION OF DISPUTES.
Bargainator and You agree that all disputes, controversies or claims which arise out of or relate in any way to the Service or this Agreement shall be finally resolved by arbitration held in Montreal, Canada, and conducted by a single arbitrator according to the Commercial Arbitration Rules of the North American Arbitration Association using expedited procedures. The arbitrator will have no authority to award any damages that are excluded by this Agreement. Any award by the arbitrator may be enforced in any court having jurisdiction. You expressly agree that Bargainator may seek injunctive relief by a court pending an award in arbitration and shall not, by doing so, be held to have infringed the powers of the arbitrator or breached its agreement to arbitrate.
1. general provisions.
This Agreement represents the entire agreement between Bargainator and You with respect to Your access to and use of the Service. This Agreement shall be governed by the laws of the Province of Quebec and any controlling Canadian laws, exclusive of choice of law rules. If either party waives or modifies any term or condition of this Agreement, that will not void, waive or change any other term or condition. If either party waives a default by the other party, that does not mean that either party will waive future or other defaults. You may not assign or otherwise transfer this Agreement or any rights granted under it without the prior written consent of Bargainator, which consent may be withheld at Bargainator's sole discretion, and any purported assignment without Bargainator's prior written consent shall be void. Each party's relationship to the other is that of an independent contractor, and neither party is an agent or partner of the other. If any part of this Agreement, for any reason, is declared to be invalid, it shall be reformed to the minimum extent necessary in order for such part to remain in effect and be enforceable in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect. All notices under this Agreement must be delivered in writing by courier or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth above, and will be effective upon receipt or three business days after being deposited in the mail, whichever occurs sooner. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be to be duly executed by its authorized representative effective as of the Effective Date: 06/11/2018