This Asset Bin Terms of Service (the “ToS”) is entered into by and between the entity agreeing to these terms (“Customer”) and the Asset Bin sales channel entity (”Service Provider”) that has been assigned by Asset Bin, for the Customers geographic region or business segment. This ToS is effective as of the date you click the “Sign Up” button (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this ToS; and (iii) you agree, on behalf of the party that you represent, to this ToS. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the “I Agree” button. This ToS governs Customer’s access to and use of the Services.
1.1 Facilities and Data Transfer. All facilities used to capture, enter, store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Service Provider stores and processes its own information of a similar type. Service Provider has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data, and protect against unauthorized access to or use of Customer Data. As part of providing the Services, Service Provider may transfer, store and process Customer Data in any country in which Service Provider or its agents or data hosting contractors maintain facilities. By using the Services, Customer consents to this transfer, processing and storage of Customer Data.
1.2 Modifications to the Services. Service Provider may make commercially reasonable changes to the Services, from time to time. If Service Provider makes a material change to the Services, Service Provider will inform Customer, provided that Customer has subscribed with Service Provider to be informed about such change.
1.3 Advertisement. Service Provider reserves the right to serve Ads on any Service Page. The default setting for the Services is one that allows Service Provider to send Newsletters by e-mail to Administrator or End User. Customer may change this setting.
2. Customer Obligations
2.1 Compliance. Customer will use the Services in accordance with the Acceptable Use Policy. Service Provider may make new applications, features or functionality available from time to time through the Services, the use of which may be contingent upon Customer’s ToS to additional terms.
2.2 Customer Administration of the Services. Customer may specify one or more Administrators through the Admin Center who will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer is responsible for: (i) maintaining the confidentiality of the password and Admin Account(s); (ii) designating those individuals who are authorized to access the Admin Account(s); and (iii) ensuring that all activities that occur in connection with the Admin Account(s) comply with the ToS. Customer agrees that Service Provider’s responsibilities do not extend to the internal management or administration of the Services for Customer and that Service Provider is merely a data-processor.
2.3 End User Consent. Customer’s Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. Customer will obtain and maintain all required consents from End Users to allow: (i) Customer’s access, monitoring, use and disclosure of this data and Service Provider providing Customer with the ability to do so and (ii) Service Provider to provide the Services.
2.4 Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services, and to terminate any unauthorized use. Customer will promptly notify Service Provider of any unauthorized use of, or access to, the Services of which it becomes aware.
2.5 Restrictions on Use. Unless Service Provider specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease or the functional equivalent, the Services to a third party (unless expressly authorized in this ToS); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities; or (e) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws.
2.6 Third Party Requests. Customer is responsible for responding to Third Party Requests. Service Provider will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request; (b) comply with Customer’s reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact Service Provider only if it cannot reasonably obtain such information.
3. Billing and Payment
3.1 Billing. Customer will not be committed to purchase the Services for a pre-defined term, but will pay for the Services on a monthly basis. Service Provider will bill Customer based upon Customer’s daily usage of the Services during the preceding month. The bill will be calculated according to the Price List.
3.2 Payment. All payments due are in USD unless the customer chooses to pay in another currency and pay all related transaction and exchange fees and costs.
- Credit Card or Debit Card. Fees for orders where Customer is paying with a credit card, debit card or other non-invoice form of payment, are due at the end of the month during which Customer received the Services. For credit cards, or debit cards, as applicable: (i) Service Provider will charge Customer for all applicable Fees when due and (ii) these Fees are considered delinquent thirty days after the end of the month during which Customer received the Services.
- Invoices. Fees for orders where Service Provider issues an invoice are due thirty days after the invoice date, and are considered delinquent after such date.
- Other Forms of Payment. Customer may change its payment method to those available within the Admin Center. Service Provider may enable other forms of payment by making them available in the Admin Center. These other forms of payment may be subject to additional terms which Customer may have to accept prior using the additional forms of payment.
3.3 Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Service Provider in collecting such delinquent amounts, except where such delinquent amounts are due to Service Provider’s billing inaccuracies.
3.4 Suspension for Non-Payment.
- Automatic Suspension. Customer will have thirty days to pay Service Provider delinquent Fees. If Customer does not pay Service Provider delinquent Fees within thirty days, Service Provider will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays Service Provider all outstanding Fees.
- During Suspension. Service Provider will stop charging Customer monthly Fees during Customer’s suspension for non-payment.
- Termination After Suspension. If Customer remains suspended for non-payment for more than sixty days, Service Provider may terminate Customer for breach pursuant to Section 11.
3.5 Taxes. Customer is responsible for any Taxes, and Customer will pay Service Provider for the Services without any reduction for Taxes. If Service Provider is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Service Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to Service Provider, Customer must provide Service Provider with an official tax receipt or other appropriate documentation to support such payments.
4. Technical Support Services (TSS)
4.1 By Customer Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer’s or End Users’ use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to Service Provider.
4.2 By Service Provider If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to Service Provider in accordance with the TSS Guidelines. Service Provider will provide TSS to Customer in accordance with the TSS Guidelines.
5.1 Of End User Accounts by Service Provider. If Service Provider becomes aware of an End User’s violation of the ToS, then Service Provider may specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with Service Provider’s request to Suspend an End User Account, then Service Provider may do so. The duration of any Suspension by Service Provider will be until the applicable End User has cured the breach which caused the Suspension.
5.2 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Service Provider may automatically suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If Service Provider Suspends an End User Account for any reason without prior notice to Customer, at Customer’s request, Service Provider will provide Customer the reason for the Suspension as soon as is reasonably possible.
6. Confidential Information
6.1 Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this ToS, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates, employees and agents in violation of this Section.
6.2 Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
6.3 Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
7. Intellectual Property Rights; Brand Features
7.1 Intellectual Property Rights. Except as expressly set forth herein, this ToS does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data. All Intellectual Property Rights in the Services are vested in the Asset Bin Group.
7.2 Display of Brand Features. Service Provider may display only those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services), and only within designated areas of the Service Pages. Customer may specify the nature of this use using the Admin Center. Service Provider may also display Asset Bin Brand Features on the Service Pages to indicate that the Services are provided by Asset Bin. Neither party may display or use the other party’s Brand Features beyond what is allowed in this ToS without the other party’s prior written consent.
7.3 Brand Features Limitation. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party’s right to use its Brand Features pursuant to this ToS with written notice to the other and a reasonable period to stop the use.
8.1 Publicity. Either party may make any public statement regarding the relationship contemplated by this ToS unless the other party’s withdraw this right by written notice.
9. Representations, Warranties and Disclaimers
9.1 Representations and Warranties. Each party represents that it has full power and authority to enter into the ToS. Each party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.
9.2 Disclaimers. To the fullest extent permitted by applicable law, except as expressly provided for herein, neither party makes any other warranty of any kind, whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use and non-infringement. Service Provider makes no representations about any content or information made accessible by or through the services.
10.1 ToS Term. This ToS will remain in effect for the Term.
10.2 Services Term and Purchases During Services Term. Service Provider will provide the Services to Customer during the Services Term.
10.3 Renewal. The Customer is not committed to purchase the Services for a pre-defined term, but pays for the Services on a monthly basis. As a result, there is no renewal event, Service Provider will simply continuing billing Customer Fees based upon Customer’s daily usage of the Services during the preceding month, and Customer can cancel their service at any time.
10.4 Revising Rates. Service Provider may revise its rates by providing Customer written notice (which may be by email to e.g. Notification Email Address) at least thirty days prior to the following billing period.
11.1 Termination for Breach. Either party may suspend performance or terminate this ToS if: (i) the other party is in material breach of the ToS and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this ToS more than two times notwithstanding any cure of such breaches.
11.2 Effects of Termination. If this ToS terminates, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in this Section); (ii) Service Provider will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at Service Provider’s then-current rates for the applicable Services; (iii) after a commercially reasonable period of time, Service Provider will delete Customer Data by removing pointers to it on Service Provider’s active and replication servers and overwriting it over time; and (iv) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party. If a Customer on an annual plan terminates the ToS prior to the conclusion of its annual plan, Service Provider will bill Customer, and Customer is responsible for paying Service Provider, for the remaining unpaid amount of Customer’s annual commitment.
12.1 By Customer. Customer will indemnify, defend, and hold harmless Service Provider from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding Customer Data or Customer Domain Names; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer’s use of the Services in violation of the Acceptable Use Policy.
12.2 By Service Provider. Service Provider will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that Service Provider’s technology used to provide the Services or any Asset Bin Brand Feature infringe or misappropriate any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall Service Provider have any obligations or liability under this Section arising from: (i) use of any Services or Asset Bin Brand Features in a modified form or in combination with materials not furnished by Asset Bin, and (ii) any content, information or data provided by Customer, End Users or other third parties.
12.3 Possible Infringement.
- Repair, Replace, or Modify. If Service Provider reasonably believes the Services infringe a third party’s Intellectual Property Rights, then Service Provider will: (i) obtain the right for Customer, at Asset Bin’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe.
- Suspension or Termination. If Asset Bin does not believe the foregoing options are commercially reasonable, then Asset Bin may suspend or terminate Customer’s use of the impacted Services. If Asset Bin terminates the impacted Services, then Service Provider will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of such Services.
12.4 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (ii) the other party may join in the defense with its own counsel at its own expense. The indemnities above are a party’s only remedy under this ToS for violation by the other party of a third party’s intellectual property rights.
13. Limitation of Liability
13.2 Limitation on Indirect Liability. Neither party will be liable under this ToS for lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, even if the party knew or should have known that such damages were possible and even if direct damages do not satisfy a remedy.
13.2 Limitation on Amount of Liability. Neither party may be held liable under this ToS for more than the amount paid by customer to Service Provider hereunder during the twelve months prior to the event giving rise to liability.
13.3 Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
14.1 Notices. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
14.2 Assignment. Customer shall not transfer any part of this ToS to a third party without the written consent of Service Provider, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this ToS; and (b) the assigning party remains liable for obligations incurred under the ToS prior to the assignment. Any other attempt to transfer or assign is void.
14.3 Corportate Transaction. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control.
14.4 Transfer of ToS. Asset Bin is entiteled to transfer this ToS from one Service Provider to another Service Provider. In order to excercise this right Asset Bin shall provide and continue an uninterrupted Service.
14.5 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
14.6 No Waiver. Failure to enforce any provision of this ToS will not constitute a waiver.
14.7 Severability. If any provision of this ToS is found unenforceable, the balance of the ToS will remain in full force and effect.
14.8 No Agency. The parties are independent contractors, and this ToS does not create an agency, partnership or joint venture.
14.9 Third-Party Beneficiaries. Apart from members of the Asset Bin Group, there can be no third-party beneficiaries to this ToS.
14.10 Equitable Relief. Nothing in this ToS will limit either party’s ability to seek equitable relief.
14.11 Governing Law. This ToS is governed by the local law and juristiction of the Service Provider.
14.12 Amendments. Any amendment must be in writing and expressly state that it is amending this ToS.
14.13 Survival. The following sections will survive expiration or termination of this ToS: Section 3, 6, 7.1, 11.2, 12, 13, 14 and 15.
14.14 Entire ToS. This ToS, and all documents referenced herein, is the parties’ entire ToS relating to its subject and supersedes any prior or contemporaneous ToS on that subject. The terms located at a URL and referenced in this ToS are hereby incorporated by this reference.
15. Acceptable Use Policy
Customer agree not to, and not to allow third parties or End User, to use the Services:
- to violate, or encourage the violation of, the legal rights of others; for any unlawful, invasive, infringing, defamatory, or fraudulent purpose;
- to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
- to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;
- to alter, disable, interfere with or circumvent any aspect of the Services;
- to test or reverse-engineer the Services in order to find limitations, vulnerabilities or evade filtering capabilities;
- to use the Services, or a component of the Services, in a manner not authorized by Asset Bin.