UPDATED TERMS OF USE – EFFECTIVE SEPTEMBER 1, 2016


The Terms of Use (“Terms”) contained within this agreement is a legal binding contract between you (“Subscriber”) and Blue Desert Software LLC (“BDS”). The Terms describe the online internet software service known as AgendaTrac (“Service”) that BDS will provide use of to the Subscriber, along with all aspects of the business relationship between both parties.

Use of all or any portion of Service constitutes acceptance without modification of the Terms.  This agreement applies to any and all use of Service, including if Subscriber is using the software service pursuant to any demo or trial period.  If Subscriber accepts the Terms on behalf of their employer, they represent that they have the authority to bind the employer to these Terms.  If you do not agree to the Terms, do not use the Service.  The Terms may be amended by BDS from time to time and will be accessible from within Service.

Subscriber may use Service only if they are 18 years or older and capable of forming a binding legal contract with BDS, and are not barred from using the Services under applicable law.

 

1.    LICENSE.  BDS grants to Subscriber for the term hereof, a limited, non-exclusive and non-transferable license to use features of Service as outlined in the account plan selected by the Subscriber during the account creation process, or such plan selected by Subscriber at a later date.


1.1.    Subscriber may not distribute, resell, or allow access to Service by any third party other that for its intended use in the collaboration of sharing meeting information between authorized hosts and attendees that have been granted access to Service by the account holder.  The use of shared login credentials is strictly prohibited.

 

1.2.    Subscriber shall not, nor allow any of its affiliates or any third party to modify, reverse engineer, decompile, port, translate, localize, or create derived works of all or any part of the Service.

 

1.3.    Obligations of BDS shall be limited only to the delivery of the Service and in no way include acting on behalf of the Subscriber. Nothing in the Terms is intended to, or shall be deemed to, establish any partnership or joint venture between the Subscriber and BDS, appoint either party as the agent of the other, nor authorize either party to make or enter into any commitments for or on behalf of the other party.

 

1.4.    BDS may from time to time add, modify, suspend or cease (temporarily or permanently) the delivery of all or any parts of the Service upon notice to the Subscriber.

 

1.5.    BDS shall have no obligation to notify Subscriber in the event of unplanned downtime of the Service.  In the event of a planned service downtime in respect to the Service, BDS shall attempt to notify the Subscriber in advance provided that BDS is able to do to so.

 

1.6.    Use or access of the Service may be granted to Subscriber on a trial or free basis ("Trial") for a maximum period of 30 days.  The Subscriber acknowledges and agrees that during the Trial, these Terms shall apply, as well as the following specific terms:

 

1.6.1.     Use of the Service during the Trial will be provided at no cost to Subscriber.

 

1.6.2.     The Trial is based solely for the purpose of offering Subscriber the ability to evaluate and preview the functionality and features of the Service.

 

1.6.3.     BDS may suspend or terminate Subscriber access to the Service at any time during the Trial, and at the completion of the Trial period.  Continued access to Service at the end of the Trial is subject to payment of fees related to the plan selected by Subscriber.


1.7.    The Service shall not be used for competitive purposes.  Subscriber may not use the Service to monitor, compare features, or test performance of the Service for benchmarking purposes.

 

2.    ACCOUNT REGISTRATION. In order to use the Service, Subscriber is required to create an account and register with BDS by completing the Service online registration process.  The Terms to use the Service begins on the date that Subscriber accepts the Terms during the registration process.

 

2.1.    BDS shall send Subscriber a confirmation email once BDS has accepted and confirmed the registration of Subscriber.

 

2.2.    BDS reserves the right to conduct verification and security procedures in related to all information provided by Subscriber during the registration process.  If BDS has reason to believe that the information provided by Subscriber breaches or is likely to breach any of the provision the Terms, BDS at its sole discretion may take any action that it deems appropriate including without limitation, to terminate the account of the Subscriber.

 

2.3.    The Service allows the Subscriber to add accounts for (“Collaborators”), defined as hosts and attendees (these are employees and/or other individuals that the Subscriber has determined need access to the Service), by including such individuals to create unique user accounts which permit them to access the Service on behalf of the Subscriber.


2.3.1.     The Terms shall apply to any Collaborators who access and use the Service through the account setup by the Subscriber. Subscriber is directly liable to BDS at all times for the acts, or omissions of its Collaborators

 

2.3.2.     Collaborators must use the email address that the Subscriber used when creating their user accounts to log onto the Service.  Collaborators must use their user account to log onto the Service; user accounts may not be shared between Collaborators or other individuals.

 

2.3.3.     The Subscriber shall ensure its Collaborators keep any usernames and passwords used to access the Service safe and secure to ensure that they are not used without the permission of the Subscriber.  The Subscriber must immediately notify BDS if it has reason to believe that there has been unauthorized use or access to a user account or users profile on the Service.  The Subscriber shall be solely responsible and liable for any breaches of the Terms arising out of, or resulting from use of user accounts to access the Service, whether such use is authorized or not by the Subscriber.


3.    SUBSCRIBER OBLIGATIONS. The Subscriber shall ensure that its use of the Service, including the submission of any information, data, images, videos, audio, files, links to external websites, and  communication with and between Collaborators, and all other material of any format conform to the following criteria:

 

3.1.    Do not infringe on any intellectual property rights or other proprietary rights of any third party.

 

3.2.    Not reasonably be deemed to be offensive, illegal, or inappropriate in any way:


3.2.1.     Create computer viruses, malware or implement or install any form of software or scripts onto the Service.

 

3.2.2.     Harass or advocate harassment of another individual.

 

3.2.3.     Display or upload any pornographic or sexually explicit material.

 

3.2.4.     Promote any conduct that is abusive, threatening, obscene, defamatory or libelous. 

                    3.2.5.     Engage or promote any illegal activities.

3.2.6.     Exploit people in a sexual or violent manner.


3.3.    Register the same individual more than once for the purpose of circumventing pricing plan limitations on the number of hosts or attendees.

3.4.    Transmit “junk mail”, “chain letters”, or unsolicited mass mailings, messaging or “spam”.

 

3.5.    Unless otherwise explicitly stated by BDS, BDS does not vet, verify the accuracy, correctness and completeness, edit or modify any information, data and materials created, used and/or published by the Subscriber on the Service to determine whether it may result in any liability to any third party.  The Subscriber hereby warrants that the Subscriber has the right to use all such information and material.


3.6.    BDS reserves the right to take any action that BDS deems necessary based upon breaches of the Terms.  This can include, without limitation, suspension or termination of the Subscribers use of the Service.  In certain circumstances BDS may choose to initiate legal proceedings when appropriate if there are any illegal use of the Service, or disclosure of information to any third party who is claiming that any material posted or uploaded onto the Service constitutes a violation of their intellectual property rights or of their right to privacy or if the material is posted without that third party’s prior consent.  The Subscriber shall promptly notify BDS if it is aware of any or any suspected breaches of the Terms

 

4.    FEES. The fees to access the Service are as set out on the Service ("Pricing") pages. The Fees are based on the number of hosts and attendees that the Subscriber is permitted to utilize on the Service, along with storage options related to data entered by the Subscriber and collaborators.  The Subscriber agrees to pay BDS in accordance with the policies set forth in the Terms and Service, and the Subscriber authorizes BDS or its third-party merchant services vendor to bill the credit card on file in advance on a periodic basis in accordance with such terms.  Other than where the Subscriber is participating in a Trial in accordance with clause 1.6.1, the Subscriber can only obtain access to the Service by paying the associated Fees.  

 

4.1.    The Subscriber is required to select a payment plan and provide accurate information related to their credit card. Changes to the Subscribers payment information need to be updated promptly.  

 

4.2.    For billing disputes, the Subscriber must inform BDS within thirty (30) days after the date of the disputed invoice.  Any disputes should be entered as support requests from the Service.  BDS will respond to billing questions within three (3) business days from the date of the request.  All paid amounts are non-refundable and BDS reserves the right to change the pricing structures in the future.  Subscribers will be notified of pricing changes by email with 30 days prior notice. Continued use of the Service following a pricing change constitutes your acceptance of the aforementioned change.

 

4.3.    BDS may bill Enterprise accounts through the use of an invoice.  Full payment is due by the date specified on the invoices and past due fees are subject to a finance charge of 1.0% per month on the outstanding balance, or the maximum permitted by law, whichever is lower.

 

5.    TERMINATION. The Subscriber may terminate their Contract at any time by cancelling their subscription on the Service.  Fees paid in advance by the Subscriber are non-refundable.

 

5.1.    BDS shall be entitled to suspend and/or terminate the access and use of the Service for the Subscriber:

 

5.1.1.      If BDS network providers and suppliers cease providing BDS with their services; or

 

5.1.2.      If BDS has reason to believe that the Subscriber has breached any of the provisions of these Terms.

 

5.2.    Upon termination of the Subscriber contract in accordance with this clause, the Subscriber may no longer access or use the Service.

 

6.    WARRANTIES. The Subscriber hereby warrants that (a) the Subscriber has the right and capacity to enter into and be bound by these Terms; and (b) the Subscriber shall comply with all applicable laws regarding the Subscribers use of the Service; and (c) and the Subscriber agrees to abide by the rules and reasonable directions of BDS relating to the Service as may be provided by BDS from time-to-time.

 

6.1.    BDS relies on other service providers (such as network provider, data centers, and telecommunication providers) to make the Service available to the Subscriber.  BDS takes all reasonable steps available to it to provide the Subscriber with an acceptable level of service; BDS does not guarantee that such service shall be fault free or uninterrupted at all times.  BDS therefore shall not be liable in any way for any losses the Subscriber may suffer as a result of delays or failures of the Service.

 

6.2.    Except as expressly set out herein, to the maximum extent permitted by law, BDS expressly excludes all representations, warranties, obligations and liabilities in connection with the Service, including but not limited to the warranties of merchantability, non-infringement of intellectual property, accuracy, completeness, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade are hereby excluded and disclaimed.

 

6.3.    BDS may display or provide links or other interaction with third party websites and third party advertising banners on the Service ("Third Party Websites").  In particular, the Service may provide the Subscriber with the opportunity to connect and publish information through Third Party Websites and other third party services such as social and business networking sites. Use of any such Third Party Websites and services shall be at the risk of the Subscriber and subject to the terms and conditions of the Third Party Website provider.


7.    LIMITATION OF LIABILITY. The maximum aggregate liability of BDS (including its respective agents, sub-contractors or representatives) under, arising from or in connection with the provision of the Service and/or these Terms, whether arising in contract, tort (including negligence) or otherwise, shall not exceed a sum equivalent to the total Fees received by BDS for a period of twelve (12) months preceding the event giving rise to liability.

 

To the extent permitted by law, BDS expressly excludes:

 

7.1.1.          all conditions, warranties and other terms whether expressed or which might otherwise be implied by statute or common law;

 

7.1.2.          any liability for indirect or consequential loss which are losses incurred as a side effect of the main loss or damage;

 

7.1.3.          loss of profit;

 

7.1.4.          loss of income or revenue;

 

7.1.5.          loss of business or contracts;

 

7.1.6.          loss of data;

 

7.1.7.          loss of goodwill and reputation;

 

7.1.8.          loss of expectation;

 

7.1.9.          loss of opportunity; or

 

7.1.10.        loss arising out of or in connection with loss of  management or office time.

 

7.1.11.        arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, provided that this condition shall not prevent claims for loss of or damage to the Subscriber tangible property or any other claims for direct financial loss that are not excluded by any of the categories set out above.


Nothing in these Terms shall serve to limit or exclude BDS’s negligence or any liability for fraudulent misrepresentation.

 

8.    INTELLECTUAL PROPERTY RIGHTS. BDS and its licensors own all rights in the intellectual property rights relating to the Service, including but not limited to all software forming the Service ("Software").   Nothing in this Agreement will serve to transfer from BDS to the Subscriber any of the Software or Service, and all right, title and interest in and to the Software and the Service will remain exclusively with BDS and/or BDS’s licensors. All rights in and to the Software and the Service not expressly granted to the Subscriber are reserved by BDS and the relevant third party licensors.

 

8.1.    The Subscriber may print off one copy and may download extracts of any pages from the Service solely for use by the Subscriber; and the Subscriber may draw the attention of other users to submissions or materials posted on the Service.  The Subscriber must not use any part of the submissions of other users and all materials on the Service for any purpose other than accessing the Service or obtaining a benefit from the Service in accordance with these Terms.

 

8.2.    The Subscriber shall not, and shall insure that Collaborators shall not: (a) modify, translate, create or attempt to create derivative copies of or copy the Software or the Service in whole or in part; (b) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software or the Service to source code form; (c) distribute, sub-license, assign, share, timeshare, sell, rent, lease, transmit, grant a security interest in or otherwise transfer the Software or the Service or the Subscribers right to use the Software or the Service.

 

8.3.    The Subscriber warrants that the Subscriber owns or has the right or license to use the intellectual property rights in the Subscriber Information, and all information and materials provided by the Subscriber to BDS.

 

8.4.    The Subscriber hereby grants BDS, a perpetual, sub-licensable, worldwide, royalty-free license to publish and make available on the Service the Subscriber Information, and all other information and material provided by the Subscriber to BDS in respect of the Service, for the purpose of providing the Service to the Subscriber.

 

8.5.    The Subscriber hereby indemnifies BDS against all losses, liabilities, costs and expenses (including but not limited to legal costs) arising from or incurred by reason of any infringement of any intellectual property right by the use or possession of the Subscriber Information, Openings, and all other information and material provided by the Subscriber to BDS.


9.    GENERAL. If any provision of these Terms, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of the Terms,or application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.  Failure by a party to enforce noncompliance with any term of these Terms shall not act as a waiver of any right or remedy hereunder.

 

9.1.    These Terms represent the entire agreement between the Subscriber and BDS in respect of the Subscribers use of the Service and shall supersede any prior agreement, understanding or arrangement, whether oral or in writing.

 

9.2.    Subscriber acknowledges and agrees that during and after the period of these Terms, BDS shall have the right to use Subscribers company name, logo, URL, description in BDS’s marketing, publicity, and promotional activities and materials, including, but not limited to, press releases, marketing collateral, and print, without further consent or approval of Subscriber.

 

9.3.    The Subscriber acknowledges that in entering into these Terms, the Subscriber has not relied on any representations, undertaking or promise given by or implied from anything said or written whether on the Service, the Internet or in negotiation between the parties except as expressly set out in these Terms.

 

9.4.    BDS reserves the right to modify these Terms at any time. Any changes BDS may make to this document in the future will be notified and made available to the Subscriber using the Website.

 

9.5.    This Agreement will be governed by the laws of the State of Arizona.