Zmanda Product Terms of Service and Software End User Agreement
Zmanda Product Terms of Service
Updated August 4, 2023.
These General Terms of Service (the “General Terms”) govern your use of BETSOL’s products and services (collectively, the “Products and Services”). The term of these General Terms shall be the duration of your use of the Products and Services. By registering a Customer Account (as defined below) or using any of the Products and Services, you agree to these General Terms, including terms that limit our liability (see Section 14), and electronic communications as set forth in Section 20. You also agree that certain Products and Services are also subject to Product and Service Specific Terms, provided that such terms are provided to you in advance, and agreed to by you in writing (see Section 2). These General Terms and the Product and Service Specific Terms (if any) are collectively referred to as the “Agreement”. These General Terms apply solely to Products and Services for consumer use.
1. Parties to the Agreement.
This Agreement is a legal contract between BETSOL, Inc. on behalf of itself and its affiliates and subsidiaries worldwide (collectively, “BETSOL,” "Company”, “we,” “our” or “us”) and you (“you”, “your” or “Customer”). You represent and warrant to us that: (a) you are least eighteen (18) years of age; and (b) you are eligible to register and use the Products and Services and have the right, power, and ability to enter into and perform under the Agreement.
2. Product and Service Specific Terms.
2.1 Online Backup Feature
2.1.1 The Software includes an online backup feature (“Online Backup Feature”), which provides the capability to sync, transfer, upload, store, and retrieve Your files, data, and content on (the “Customer Data”) You elect to store on our cloud based portal (“Backup”) during the Service Period (as defined below), subject to the amount of online backup storage space provided with our Software. Betsol uses a trusted third party service provider to host and store the Customer Data.
2.1.2 You are solely responsible for acquiring and maintaining the Internet or telecommunications services and devices required to access and/or use the Online Backup Feature. You acknowledge that the performance of the Online Backup Feature is dependent upon the data transfer speeds of Your network and connections to the Internet as well as the performance of Your computer hardware. The Online Backup Feature is provided “as is” and “as available” and Betsol shall not be liable for any downtime of the Online Backup Feature due to reasonable scheduled maintenance, maintenance for critical issues or forces beyond the reasonable control of Betsol.
2.1.3 Compliance with Laws. Use of the Online Backup Feature (including the transmission of any Customer Data) is subject to all applicable local, state, national and international laws and regulations, including but not limited to the United States export laws. You agree to comply with such applicable laws and regulations and with the specifications described in the Documentation or the applicable transaction documentation from the authorized reseller from which You obtained the Software and not to (a) use the Online Backup Feature for illegal purposes, (b) transmit or store material that may infringe the intellectual property rights or other rights of third parties or that is illegal, tortious, defamatory, libelous, or invasive of another’s privacy; (c) transmit or store data belonging to another party without first obtaining all consents required by law from the data owner for transmission of the data to Betsol for storage within the United States; (d) transmit any material that contains software viruses or other harmful computer code, files or programs such as Trojan horses, worms or time bombs; (e) interfere with or disrupt servers or networks connected to the Online Backup Feature; or (f) attempt to gain unauthorized access to the Online Backup Feature, the accounts of other Online Backup Feature users, or computer systems or networks connected to the Online Backup Feature.
The foregoing obligations regarding use of the Online Backup Feature apply to all use of the Online Backup Feature in connection with Your Rebit Account. You are solely responsible for the use of the Online Backup Feature, and the Data transmitted or stored through the Online Backup Feature in connection with Your Rebit Account.
2.1.4 Usage Limits. Your usage of the Online Backup Feature will be limited to the capacity allocated to You pursuant to the subscription level You purchase for the Online Backup Feature (“Storage Capacity”). Betsol will provide You with email notifications, to the email address provided as part of Your Registration Information (defined below) once Your usage reaches 80% of Your Storage Capacity. Once You reach 100% of Your Storage Capacity, automated backup via the Online Backup Feature will cease until You increase Your subscription level or add payment method to increase allocated storage or remove Customer Data from Your allocated storage.
2.1.5 Termination; Suspension. Your right to use the Online Backup Feature shall terminate upon expiration of the Service Period. In addition, Betsol may, at its sole discretion, immediately suspend or terminate use of the Online Backup Feature during the Service Period for Your failure to or Betsol’s reasonable belief that You have failed to comply with these terms and conditions or any other misuse of the Online Backup Feature. Following the expiration or termination of the Service Period: (i) Customer Data stored to the online backup space provided with Your Software may be purged; (ii) Betsol shall not be obligated to maintain such Customer Data, forward such Customer Data to You or a third party, or migrate such Customer Data to another backup service or account; and (iii) You will not be able to store Customer Data to any additional backup space that You may have purchased separately unless and until the Service Period is renewed.
2.2 Sentinel Account
2.2.1 A current Sentinel user account (“Sentinel Account”) is required to activate certain software features and to access and use the Online Backup Feature. In connection with establishing a Sentinel Account, You will be asked to submit certain information about Yourself (“Registration Information”) and, as applicable, Your association with the purchaser of the Software. You agree that: (a) all such Registration Information You provide will be accurate, complete, and current; (b) You will maintain and promptly update all such Registration Information to keep it accurate, complete, and current; and (c) You will not provide any Registration Information belonging to another person with the intent to impersonate that person. You are entirely responsible for maintaining the confidentiality of Your Sentinel Account password.
3. HIPAA Business Associate Agreement.
If you are subject to the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), as a Covered Entity or Business Associate (as defined in HIPAA) and use the Products and Services in a manner that causes BETSOL to create, receive, maintain, or transmit Protected Health Information on your behalf, please contact a sales representative or contact@BETSOL.com, in order to use the Products and Services in a compliant manner.
4. Customer Account Registration.
You are required to register an account with us (a “Customer Account”) in order to use the Products and Services. During registration of a Customer Account, you agree to provide accurate and complete information in response to our questions, and you further agree to promptly update this information should it change. In connection with use of the Customer Account, a Customer may authorize itself and others (collectively, “Authorized Users”) to use the Products and Services on Customer’s behalf. Each Authorized User will establish or be provided a username and password, and may also establish or be provided other access credentials, such as an encryption key (collectively, “Access Credentials”). You will, and will ensure that each of your Authorized Users will take reasonable steps to keep the Access Credentials confidential and ensure that they are not disclosed to any third party. You are responsible for the acts and omissions of your Authorized Users. You, and not BETSOL, are fully responsible for all activity that occurs under your Customer Account using the Access Credentials, including any loss or deletion of Customer Content (as defined below). We reserve the right to suspend or terminate the Customer Account, or the access of any Authorized User, for reasons set forth in Section 11(d), including if any registration information is inaccurate, untrue or incomplete, or if you or any of your Authorized Users fail to maintain the security of any Access Credentials. You agree to, and will ensure that each Authorized User will, notify us at privacy@BETSOL.com immediately upon learning of any unauthorized access to a Customer Account or any other suspected security breach.
5. Free Services and Pre-release Services.
(a) Free Services. We may offer free Products and Services, including free trials of the Products and Services (“Free Services”). The Free Services and Pre-release Services (as defined below) (together, the “Evaluation Services”) require an active Customer Account and are subject to the time limits that are made known to you via email or the Documentation. You acknowledge and agree that: (a) your use of the Evaluation Services is for the sole purpose of evaluating and testing the applicable Products and Services; (b) your use of the Evaluation Services will be in compliance with the Documentation and any Restrictions and Requirements made known to you; (c) you will not store Customer Content (as defined below) that is sensitive in nature, including personally identifiable information, Protected Health Information or sensitive financial information with the Evaluation Services; (d) you will inform your Authorized Users of the nature of the limitations on use of the Evaluation Services and (e) you will use the Evaluation Services solely in a non-production environment. Access to Evaluation Services associated with your Customer Account that remain inactive for a period of thirty (30) calendar days or more may be terminated and your Customer Content irretrievably deleted. We assume no liability for the loss of any such Customer Content. BETSOL, in its sole discretion, may discontinue the Evaluation Services at any time, at which point your access to the Evaluation Services will end and any Customer Content shall be irretrievably deleted.
(b) Pre-release Services. We may designate new products, services, enhancements or features as pre-release, alpha or beta services (collectively, “Pre-Release Services”). In addition to the terms set forth in Section 6(a), you agree that the Pre-Release Services are experimental in nature, have not been fully-tested and may be discontinued at any time with or without notice. You agree to assist us in testing, and evaluating the applicable Pre-Release Services. You agree to promptly report problems to us whenever the Pre-Release Services do not perform in accordance with the Documentation. Periodically and at our request, you may provide us with comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of the Pre-Release Services (collectively, the “Pre-Release Feedback”). You agree that we have the right to use the Pre-Release Feedback in the same manner that we have the right to use other Feedback (as defined herein).
6. Cloud Services.
(a) Access Grant. Subject to the terms and conditions of this Agreement, you and your Authorized Users may access and use BETSOL’s cloud services (the “Cloud Services”) solely: (i) for your personal use; (ii) in accordance with the applicable Documentation; and (ii) in accordance with any Restrictions and Requirements applicable to the Cloud Services. Customer’s authorization to use the Cloud Services is non-exclusive, non-transferable, non-sublicensable, terminable and limited to the Restrictions as set forth in the specific Products and Services Documentation.
(b) Software Client. The Cloud Services require software be installed within your Environment (as defined below) (the “Client Software”). Subject to the terms and conditions of this Agreement, BETSOL grants to you a non-exclusive, non-transferable, revocable, fee-bearing, limited license (without the right to sublicense) to install, execute and use the Client Software solely: (i) in object code format; (ii) for your personal use, with no right to make such software available to third parties either by transferring copies thereof or by providing a hosted service; and (iii) in accordance with any Restrictions, Requirements and Documentation applicable to the Cloud Services. Your license in the Client Software is co-terminus with your right to access the Cloud Services for which the Client Software is required.
Subject to the terms and conditions of this Agreement, you and your Authorized Users may access and use customer portals (the “Customer Portals”) that are made available to you in connection with the Products and Services, solely for your personal use and solely in accordance with the Documentation. Your authorization to use the Customer Portals is non-exclusive, non-transferable, non-sublicensable and terminable.
8. Customer Acknowledgements and Obligations.
You acknowledge and agree to the following:
(a) License. You grant to BETSOL a worldwide, non-exclusive, royalty-free, fully-paid up, non-transferable and non-sublicensable right to use, reproduce and store the Customer Content for the sole purpose of performing this Agreement. You retain all rights in the Customer Content, subject to the rights granted to BETSOL in this Agreement. You may modify or remove the Customer Content via the Customer Account. Customer Content will be irretrievably deleted (i) upon you or your Authorized User’s deletion of Customer Content or (ii) ninety (90) days following cancellation, termination or non-renewal of the Customer Account or subscription to the Products and Services.
(b) Requirements and Environment. BETSOL offers many different Products and Services, with different Restrictions and Requirements, each of which are designed to address the needs of a broad range of customers. You acknowledge and agree that (i) you assessed your data protection needs, network environment and the technical specifications and cost of each of the Products and Services; (ii) you are solely responsible for making the appropriate selection of the Products and Services even if a BETSOL representative has provided guidance to you regarding the Products or Services that you select; (iii) you are solely responsible for ensuring that you comply with the applicable Requirements and Restrictions; and (iv) you are solely responsible for ensuring that you maintain and operate the information technology infrastructure from which the applicable Products and Services copies, maintains and transfers the Customer Content, including the databases, applications, files, software, computer, server, tablet, smartphone or any other device registered with BETSOL (including, to the extent applicable, hardware delivered to you as part of any Product or Service) (collectively, your “Environment”).
(c) Customer Conduct. The Products and Services include functionality that enables you and your Authorized Users to copy, maintain, sync, transfer and upload text, graphics, photos, videos, presentations and other materials or information (“Customer Content”) pursuant to the terms of this Agreement, including the Requirements and Restrictions. You shall take reasonable steps to ensure that your Customer Content and you and your Authorized User’s, use of the BETSOL website, portals, Products and Services, and the technology related thereto, shall not (i) give rise to civil or criminal liability, e.g. defamatory, threatening, pornographic, indecent, abusive, libelous or otherwise objectionable actions; (ii) violate or infringe upon any third party right, including any intellectual property right or right of privacy, or that abuses, harasses or stalks any other person; or (iii) with knowledge, initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware.
(d) User Restrictions on Intellectual Property. You acknowledge and agree that you shall not, and shall ensure your Authorized Users do not: (i) access or use the Products and Services in any manner or for any purpose other than expressly permitted by the Documentation; (ii) change, modify or otherwise create derivative works of all or any portion of the Products and Services; (iii) modify, disassemble, decompile or reverse engineer any part of the Products and Services or apply any other process or procedure to derive source code of any software included in the Products and Services (except solely to the extent permitted by applicable law); (iv) access or use the Products and Services in a way intended to avoid exceeding usage limits or quotas; (v) use the Products and Services in order to build a similar or competitive application or service; (vi) remove, tamper with or alter any disabling mechanism or circumvent any technical protection measures associated with the Products and Services, or otherwise use any tool to enable features or functionalities that are otherwise disabled in the Products and Services; (vii) resell or sublicense the Products and Services (except as solely to the extent permitted by applicable law); or (viii) remove or alter any proprietary notices (e.g., copyright and trademark notices) pertaining to the Products and Services.
(e) Changes to Products and Services. You acknowledge and agree that BETSOL may, at any time and without notice to you, discontinue, suspend or modify the Products and Services, any functionality or feature of the Product and Services or the availability of the Products and Services on any particular device or hardware. In the event of any such discontinuation, suspension or modification, You reserve the right to terminate the Agreement and receive a prorata refund of all prepaid fees for the period after such termination.
(g) Third-Party Software. The Services may provide You with the choice to access software developed, provided, or maintained by other third-party providers (“Third-Party Software”). In addition to the terms of this Agreement, Your access to and use of any Third-Party Software may also be subject to any other agreement You may agree to before being given access to the Third-Party Software (each, a “Third-Party Software Agreement”). The terms of any Third-Party Software Agreement (which may include payment of additional fees) will apply to the applicable Third-Party Software provided under that Third-Party Software Agreement in addition to the terms of this Agreement but will not apply to any other Software You may access through Platform.
(h) Your Right to Copy Materials. The Software may be used to copy materials located on Your Workstation for backup purposes. You, not Betsol, are responsible for determining whether You have the right to copy such materials and Your license to use the Software does not extend to copying copyrighted materials which You are not permitted to copy.
(i) Law Enforcement. If BETSOL reasonably suspects that Customer’s Account has been used for an unauthorized, illegal or criminal purpose, or law enforcement requests access to Customer’s Account or Customer Content via a validly issued subpoena, an investigative demand or warrant, BETSOL may share information about you, your Customer Account, Customer Content, and any of its transactions with law enforcement, provided BETSOL (1) gives Customer prompt advanced written notice prior to sharing such information and (2) provides reasonable assistance to Customer (at the Customer’s expense) in protecting the information from disclosure.
9. Fees and Payment.
(a) Fees. You agree to pay all fees, charges and expenses (collectively, “Fees”) for the Products and Services as specified at the time of purchase. Unless otherwise indicated at the time of purchase, all Fees exclude sales, use, value-add and similar taxes (collectively, “Sales and Use Taxes”), import tariffs, and shipping and handling fees, which shall be your responsibility. You shall indemnify, defend and hold BETSOL harmless for any liability or expense BETSOL may incur in connection with the failure to pay, or collection of, any Fees, Sales and Use Taxes, import tariffs or shipping and handling fees.
(b) Payment and Credit Cards. For Products and Services purchased directly from BETSOL’s website or portals, BETSOL may utilize a third party to process credit card payments on BETSOL’s behalf (“Payment Provider”). Payment Provider’s policies govern the processing of your payment, and you must refer to those policies and not this Agreement to determine your rights and liabilities. For a list of the Payment Providers BETSOL currently uses, please write to contact@BETSOL.com. You agree to provide BETSOL’s Payment Provider with a valid credit card (Visa, MasterCard or any other branded credit card accepted by BETSOL) (the “Card-on-File”) as a condition to such transactions. By providing your Card-on-File, you authorize BETSOL, through our Payment Provider, to immediately charge the Fees to the Card-On-File for the Initial Term and any Renewal Term (as defined herein).
(c) Auto Renewal. Certain Software features require payment from You on a recurring basis (“Subscription Services”). When You sign up for a Subscription Service, including after any free trial period, You agree to pay us the subscription fee (“Subscription Fee”) and acknowledge that the Subscription Services may subject You to recurring fees and/or terms. Your subscription to any Subscription Services will continue and automatically renew on a recurring basis corresponding to the term of Your subscription unless and until You cancel Your subscription, or Your Rebit Account is otherwise suspended or terminated pursuant to this Agreement (the “Service Period”). Subscription Fees will be charged to Your credit or debit card or other payment account as part of the automatic renewal plan. Unless otherwise provided in a Subscription Service’s terms, Subscription Fees will be charged when You sign up for a Subscription Service or after any applicable free trial period has expired, and, unless canceled, You will continue to be charged on a monthly or annual basis depending on the payment plan you elected. The annual or monthly billing is Your “Billing Period.” Prior to Your subscription renewing, You will receive an e-mail to the e-mail address You provided in the Registration Information informing You of the date that Your annual subscription will be renewing. For monthly subscribers, You will receive an e-mail if Your monthly subscription is renewing for a 12th month, and thereafter on an annual basis.
By signing up for a Subscription Service, You acknowledge that Your purchase of the Subscription Services:
- Is subject to automatic renewal;
- Will continue until You cancel the subscription; and
- Is subject to automatic charges on Your method of payment.
You may cancel Your subscription at any time by going to Your “Account” page and selecting “CANCEL SUBSCRIPTION.” Alternatively, You may e-mail email@example.com to cancel Your subscription.
(d) Payment of Subscription Fee. Unless otherwise indicated, You will be required to provide a credit card or other payment method accepted by us, as may be updated from time to time (“Payment Method”). We will charge Your Payment Method the Subscription Fee on a recurring basis corresponding to the terms of Your subscription, and any applicable taxes. You are solely responsible for any and all Subscription Fees charged to Your Payment Method. When You provide a Payment Method, we will attempt to verify the information You entered by processing an authorization hold. We do not charge You in connection with this authorization hold, but Your available balance or credit limit may be reduced. If You want to use a different Payment Method than the one You signed up to use during registration, You may edit Your Payment Method information by logging in to Your Account and viewing Your Account details.
(e) Changes to Subscription Fees. We reserve the right to change our Subscription Fee upon thirty (30) days’ advance notice, provided, that You will pay the revised fees only upon renewal of the Service Period. Your continued use of the Subscription Services after notice of a change to our Subscription Fee will constitute Your acceptance of and agreement to such changes.
(f) Cancellation. You can cancel Your subscription by logging into Your Account and following the instructions on Your Account page on the Website. You must cancel Your subscription prior to 11:59 p.m. Eastern time on the day before Your next recurring billing date to avoid being charged. Unless otherwise communicated, if You cancel Your subscription, You will continue to have access to the Platform through the end of Your current Billing Period. Payments are nonrefundable. There are circumstances where we may provide credits on a case by case basis. The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. If You cancel, modify Your subscription, or if Your account is otherwise terminated under this Agreement, You will not receive a credit.
10. Technical Support
In connection with Your use of the Software, You may choose to access assistance from a Technical Support agent via remote computer access. Any such Technical Support shall be provided in Betsol’s sole discretion without any guarantee or warranty of any kind. It is solely Your responsibility to complete a backup of all Your existing data, software and programs before receiving any Technical Support. In the course of providing the Technical Support, Betsol may determine that the technical issue is beyond the scope of the Technical Support. Except as may be set forth in a separate agreement with Betsol, Betsol is under no obligation to provide to You with any support, maintenance, or training relating to the Software. Notwithstanding the foregoing, should Betsol elect to provide You with any support, maintenance, or training for the Software, such support, maintenance, or training will be pursuant to Company’s then-current terms for the same.
10.1 Best Effort Support for Discontinued Product Versions
10.1.1 Notwithstanding anything to the contrary in this Agreement, once a version of the Product is no longer officially supported (End of Support) by the Company, as announced by the Company from time to time, the Company will no longer provide standard support for the discontinued version.
10.1.2 In lieu of standard support, the Company agrees to provide "Best Effort Support" for the discontinued version, subject to the terms and conditions set forth herein.
10.1.3 "Best Effort Support" is defined as reasonable efforts made by the Company to assist Customer in the resolution of problems and issues related to the discontinued version, within the practical limitations of the Company's resources, abilities, and constraints, and without a guaranteed response time or issue resolution.
10.1.4 Best Effort Support may include, but is not limited to, providing guidance, advice, and potential workarounds, where feasible. It does not include commitments to provide patches, updates, or upgrades, or to resolve all problems or issues that may arise in relation to the discontinued version.
10.1.5 Best Effort Support is provided on an as-is, as-available basis, without any warranty or guarantee of any kind, either express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, or non-infringement.
10.1.6 Customer acknowledges and agrees that the Company's ability to provide Best Effort Support may be limited or diminished over time, and may eventually cease altogether, due to factors beyond the Company's control, such as the advancement of technology, changes in industry standards, or the allocation of the Company's resources to more current versions of the Product.
11. Term and Termination.
(a) Term. The term of your access to the Products and Services (a “Subscription”) will continue for the period identified at the time of your purchase (the “Initial Term”).
(b) Termination for Material Breach. Either party may terminate this Agreement and the Subscription at its discretion if the other party materially breaches any provision of this Agreement and does not substantially cure the breach with thirty (30) days after receiving written notice.
(c) Termination Upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event: (i) the other party becomes insolvent or unable to pay debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against the other party, such petition is not removed within ninety (90) days after such filing; or (iii) a receiver is appointed or there is an assignment for the benefit of the other party’s creditors.
(d) Suspension. BETSOL may, at any time and in its sole discretion, suspend access to any Products and Services for one or all of your Authorized Users, for the following reasons: (i) a validated threat to the security or integrity of the Products and Services, provided that BETSOL provides You with a prorata refund for the suspended period, or (ii) you have materially breached this Agreement and failed to cure within thirty (30) days.. BETSOL shall re-instate access to any such Products and Services as soon as the security/integrity threat has been removed or the breach has been cured.
(e) Effects of Termination. Upon termination or expiration of this Agreement or any Subscription, (i) by BETSOL, any amounts owed to BETSOL for the period prior to such termination or expiration will be immediately due and payable, (ii) for any reason, all license and access rights granted will immediately cease to exist; (iii) for any reason, if your subscription included hardware, you will timely return the hardware. Those provisions of this Agreement that by their nature are intended to survive termination or expiration of this Agreement or a Subscription shall so survive.
We have implemented administrative, physical and technical safeguards designed to secure your Customer Account and Customer Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat our safeguards or use the Customer Account and Customer Content for improper purposes. You are solely responsible for safeguarding, and ensuring that your Authorized Users safeguard, the Access Credentials.
13. Proprietary Rights.
(a) Reservation of Rights. You acknowledge and agree that the software, code, hardware, trademarks, trade secrets, proprietary methods and systems used to provide the Products and Services (“our Technology”) and the content made available or displayed by us through the Products and Services, including all text, graphics, images and the look and feel of such Products and Services (collectively “our Content”) are owned by or licensed to BETSOL, including all intellectual property rights therein. Nothing in this Agreement or any of the Documentation shall be considered an assignment or other transfer of ownership in and to our Technology or our Content to you, either expressly, or by implication, estoppel, or otherwise. Other than the authorizations or licenses as may be conferred or granted by us to you in this Agreement or any of the Documentation, BETSOL reserves all right, title and interest in and to our Technology and our Content. No right or license is granted by BETSOL to you or your Authorized Users to use any BETSOL trademark, trade name, service mark, product name or other source designator.
(b) Continuous Development. BETSOL may continually develop and provide ongoing innovation to the Products and Services in the form of new features, functionality, and efficiencies. In the event BETSOL adds new features or functionality (collectively, “Functionality”) to a particular Product or Service, BETSOL may offer the Functionality to you at no additional charge or, if BETSOL generally charges customers for such functionality, BETSOL may condition your use of the Functionality on the payment of additional Fees.
(c) Feedback. In the course of using the Products and Services, you or your Authorized Users may provide BETSOL reports, comments, suggestions or ideas relating the Products and Services (“Feedback”). BETSOL shall have no obligation to incorporate Feedback into any Product or Service, and you shall have no obligation to provide Feedback. BETSOL shall have no obligation to treat such Feedback as your confidential or trade secret information. You, on behalf of yourself and your successors in interest, grant to BETSOL a world-wide, non-exclusive, irrevocable, perpetual, royalty-free and fully paid-up right and license to use, profit from, disclose, publish, or otherwise exploit any Feedback. Without limiting the generality of the foregoing, you agree that its provision of Feedback does not give it any intellectual property or any other right, title, or interest in or to any aspects of the Products and Services, even if such Feedback leads BETSOL to create new Products or Services. No representations, warranties, or indemnities as may be granted by either party to the other under this Agreement or the Documents shall apply to Feedback.
(d) Open Source Software. The Products and Services may contain redistributables, agents or other code resident on your devices that includes open source software. Some of the provisions of the licenses granted to BETSOL may apply to your use of such open source software. A list of such open source software can be found in notices or acknowledgement files.
14. General Disclaimers.
THE USE OF “BETSOL” IN SECTIONS 12 (Proprietary Rights), 13 (General Disclaimers) AND 14 (Specific Disclaimers) MEANS BETSOL, and ITS AFFILIATES. THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, BETSOL SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. BETSOL DOES NOT WARRANT (AND SPECIFICALLY DISCLAIMS) THAT THE PRODUCTS AND SERVICES ARE ACCURATE, RELIABLE OR CORRECT, THAT THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE PRODUCTS AND SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DEFECT, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, THAT THE PRODUCTS AND SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE OR THAT THE PRODUCTS AND SERVICES GENERALLY WILL BE SECURE. BETSOL DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES:
- WILL RUN PROPERLY ON ALL HARDWARE OR INFORMATION TECHNOLOGY ENVIRONMENTS; OR
- (ii) WILL MEET YOUR NEEDS OR REQUIREMENTS OR THOSE OF YOUR AUTHORIZED USERS; OR (iii) WILL OPERATE IN COMBINATIONS THAT MAY BE SELECTED FOR USE BY YOU OR YOUR AUTHORIZED USERS.
15. Specific Disclaimers.
(a) YOU ASSUME ALL RESPONSIBILITY FOR THE USE OF RESULTS OBTAINED FROM THE PRODUCTS AND SERVICES.
(b) YOUR ACCESS TO AND USE OF THE PRODUCTS AND SERVICES ARE AT YOUR SOLE DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR ENVIRONMENT, ANY HARDWARE PROVIDED AS PART OF THE PRODUCTS AND SERVICES, AND THE LOSS OR DAMAGE OF YOUR CUSTOMER CONTENT.
(c) DEPENDING ON THE PRODUCTS AND SERVICES YOU CHOOSE TO UTILIZE, YOUR CONTENT MAY NOT BE AVAILABLE OR RESTORABLE IF:
(i) THE PRODUCTS OR SERVICES HAVE NOT COMPLETED COPYING, SYNCING, TRANSFERRING, OR UPLOADING (COLLECTIVELY, “BACKUP”) YOUR CUSTOMER CONTENT;
(ii) FOR FILES, FOLDERS, DATABASES, SERVERS, OR DRIVES THAT THE PRODUCTS AND SERVICES DO NOT AUTOMATICALLY BACK UP PURSUANT TO THE DOCUMENTATION, YOU DO NOT MANUALLY SELECT FOR BACKUP OR YOU DESELECT CERTAIN FILES, FOLDERS, DEVICES, DATABASES, SERVERS OR DRIVES FOR BACKUP;
(iii) YOU DELETE CERTAIN CUSTOMER CONTENT FROM YOUR DEVICE AND DO NOT RESTORE IT AFTER DELETION PURSUANT TO BETSOL’S OR YOUR OWN DATA RETENTION POLICIES, OR YOU DELETE A DEVICE, DATABASE, DRIVE, OR SERVER FROM CUSTOMER’S ACCOUNT;
(iv) YOU MOVE CUSTOMER CONTENT TO A LOCATION ON YOUR DEVICE THAT IS NOT AUTOMATICALLY SCANNED TO SELECT FILES FOR BACKUP, OR YOU UPGRADE YOUR OPERATING SYSTEM RESULTING IN CHANGES TO YOUR FILE MAPPING;
(v) CUSTOMER’S CONTENT IS CORRUPTED;
(vi) YOUR DEVICE IS UNABLE TO ACCESS THE INTERNET OR NETWORK SERVICE OR HAS EXPERIENCED INTERMITTENT OR SLOW INTERNET CONNECTION;
(vii) ANY HARDWARE PROVIDED TO YOU AS PART OF THE PRODUCTS AND SERVICES IS UNABLE TO CONNECT TO YOUR DEVICES AND YOU DO NOT TAKE STEPS NECESSARY TO CORRECT SUCH PROBLEM;
(viii) YOUR DEVICE OR HARDWARE IS UNABLE TO MAKE A CONNECTION WITH BETSOL’S SERVERS OR NETWORK;
(ix) YOU FAIL TO FOLLOW BETSOL’S TECHNICAL REQUIREMENTS AND THE DOCUMENTATION FOR UTILIZING THE PRODUCTS AND SERVICES, INCLUDING UPGRADING THE PRODUCTS AND SERVICES OR FAILING TO PERIODICALLY TEST YOUR BACKUPS AND RESTORES OR TO ENSURE THAT CERTAIN CUSTOMER CONTENT IS BACKED UP; OR
(x) YOU TERMINATE OR FAIL TO RENEW YOUR SUBSCRIPTION TO ANY PRODUCT OR SERVICE, OR YOUR ACCESS TO THE PRODUCTS AND SERVICES HAS OTHERWISE BEEN TERMINATED OR SUSPENDED.(d) THE PRODUCTS AND SERVICES MAY ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT BETSOL DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (i) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR COMPONENTS; OR (ii) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR CUSTOMER CONTENT, WEBSITES, DEVICES AND NETWORKS. YOU ACKNOWLEDGE AND AGREE BETSOL IS NOT RESPONSIBLE FOR SUCH ACTIVITIES.
(e) YOU ACKNOWLEDGE AND AGREE TO BETSOL’S USE OF CYBERSOURCE, A SUBSIDIARY OF VISA, AND LITLE & CO., A SUBSIDIARY OF VANTIV, TO PROCESS AND STORE YOUR CREDIT CARD INFORMATION. IN THE EVENT OF A SECURITY BREACH INVOLVING YOUR CREDIT CARD INFORMATION, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE RECOURSE IS AGAINST THESE THIRD-PARTY VENDORS WHO PROCESS AND STORE YOUR CREDIT CARD INFORMATION, AND NOT BETSOL.
(f) YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF THE CUSTOMER ACCOUNT, CUSTOMER’S CONTENT, DEVICES AND ANY HARDWARE PROVIDED AS PART OF THE PRODUCTS AND SERVICES. YOU ACKNOWLEDGE AND AGREE THAT BETSOL SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM YOUR FAILURE TO MAINTAIN ACCURATE CUSTOMER ACCOUNT INFORMATION OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, YOUR FAILURE TO RECEIVE CRITICAL COMMUNICATION ABOUT THE PRODUCTS AND SERVICES.
(g) YOU ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BETSOL OR ANY BETSOL EMPLOYEE, PARTNER OR AGENT WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF BETSOL’S OBLIGATIONS HEREUNDER.
(h) BETSOL DOES NOT WARRANT THAT: (A) THE OPERATION OF THE SOFTWARE OR ONLINE BACKUP FEATURE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT FUNCTIONS CONTAINED IN THE SOFTWARE WILL OPERATE IN COMBINATIONS OF SOFTWARE OR HARDWARE THAT MAY BE SELECTED FOR USE BY YOU; (B) THE SOFTWARE OR ONLINE BACKUP FEATURE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR (C) ANY RESULTS, OUTPUT, OR DATA PROVIDED THROUGH OR GENERATED BY THE SOFTWARE WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE. EXCEPT AS EXPRESSLY STATED IN SECTION 10, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BETSOL SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARISING BY LAW OR OTHERWISE, RELATING TO THIS AGREEMENT AND THE SOFTWARE, ONLINE BACKUP FEATURE, AND ANY OTHER SERVICES PROVIDED TO YOU, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
(i) Regular Backups Disclaimer. YOU ARE SOLELY RESPONSIBLE FOR YOUR DATA. YOU MUST BACK UP YOUR DATA BEFORE BETSOL OR A THIRD PARTY PERFORMS ANY REMEDIAL, UPGRADE OR OTHER WORK ON YOUR PRODUCTION SYSTEMS. YOU ACKNOWLEDGE THAT IT IS A BEST PRACTICE TO HAVE MORE THAN ONE BACK UP COPY OF YOUR DATA. IF APPLICABLE LAW PROHIBITS EXCLUSION OF LIABILITY FOR LOST DATA, THEN LICENSOR WILL ONLY BE LIABLE FOR THE COST OF THE TYPICAL EFFORT TO RECOVER THE LOST DATA FROM YOUR LAST AVAILABLE BACK UP.
(j) Online Backup Feature Disclaimer. IF YOU USE THE ONLINE BACKUP FEATURE, YOUR CUSTOMER DATA MAY NOT BE AVAILABLE OR RESTORABLE IF: (i) THE ONLINE BACKUP FEATURE HAS NOT COMPLETED COPYING, SYNCING, TRANSFERRING, OR UPLOADING YOUR CUSTOMER DATA; (ii) FOR FILES, FOLDERS, DATABASES, SERVERS, OR DRIVES THAT THE ONLINE BACKUP FEATURE DOES NOT AUTOMATICALLY BACK UP PURSUANT TO THE DOCUMENTATION, YOU DO NOT MANUALLY SELECT FOR BACKUP OR YOU DESELECT CERTAIN FILES, FOLDERS, DEVICES, DATABASES, SERVERS OR DRIVES FOR BACKUP; (iii) YOU DELETE CERTAIN CUSTOMER DATA FROM YOUR DEVICE AND DO NOT RESTORE IT AFTER DELETION, OR YOU DELETE A DEVICE, DATABASE, DRIVE, OR SERVER FROM YOUR REBIT ACCOUNT; (iv) YOU MOVE CUSTOMER DATA TO A LOCATION ON YOUR DEVICE THAT IS NOT AUTOMATICALLY SCANNED TO SELECT FILES FOR BACKUP, OR YOU UPGRADE YOUR OPERATING SYSTEM RESULTING IN CHANGES TO YOUR FILE MAPPING; (v) THE CUSTOMER DATA IS CORRUPTED; (vi) YOUR DEVICE IS UNABLE TO ACCESS THE INTERNET OR NETWORK SERVICE OR HAS EXPERIENCED INTERMITTENT OR SLOW INTERNET CONNECTION; (vii) YOUR DEVICE OR HARDWARE IS UNABLE TO MAKE A CONNECTION WITH BETSOL’S SERVERS OR NETWORK; (viii) YOU FAIL TO FOLLOW THE DOCUMENTATION FOR UTILIZING THE ONLINE BACKUP FEATURE, INCLUDING UPGRADING THE ONLINE BACKUP FEATURE OR FAILING TO PERIODICALLY TEST YOUR BACKUPS AND RESTORES OR TO ENSURE THAT CERTAIN CUSTOMER DATA IS BACKED UP; OR (ix) YOU TERMINATE OR FAIL TO RENEW YOUR SUBSCRIPTION TO THE ONLINE BACKUP FEATURE, OR YOUR ACCESS TO THE ONLINE BACKUP FEATURE HAS OTHERWISE BEEN TERMINATED OR SUSPENDED.
16. Disclaimers of and Limitations on Certain Remedies.
(a) No Consequential and Similar Damages. Except for BETSOL’s indemnification obligation, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF CUSTOMER CONTENT, LOSS OF USE, LOST REVENUE, BUSINESS INTERRUPTION OR PROPERTY OR ENVIRONMENT DAMAGE ARISING OUT OF OR RELATED TO YOUR USE OF THE PRODUCTS AND SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE).
(b) No Procurement of Substitute Services or Customer Content. Accept for wilful misconduct, gross negligence or fraud, IN NO EVENT WILL BETSOL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE PRODUCTS OR SERVICES, CUSTOMER CONTENT, LOST OR DAMAGED CUSTOMER CONTENT OR THE COST OF RETRIEVING LOST CUSTOMER CONTENT. UNDER NO CIRCUMSTANCES WILL BETSOL BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PRODUCTS AND SERVICES, YOUR CUSTOMER ACCOUNT OR THE CUSTOMER CONTENT.
(c) Limitation on Aggregated Damages. EXCEPT FOR BETSOL’S (I) INDEMNIFICATION OBLIGATIONS, (II) BREACH OF CONFIDENTIALITY, AND (III) BREACH OF DATA SECURITY AND PRIVACY OBLIGATIONS, AND DAMAGES ARISING FROM BETSOL’S GROSS NEGLIGENCE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF EITHER PARTY FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER ARISING IN CONTRACT, BREACH OF WARRANTY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY)) WILL BE LIMITED TO THE FEES PAID BY YOU TO BETSOL IN THE TWELVE (12) CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING. IF THE PRODUCTS AND SERVICES ARE PROVIDED TO YOU WITHOUT CHARGE, THEN BETSOL WILL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING LIMITATIONS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES.
(d) THE PARTIES EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE PRODUCTS AND SERVICES AND BETSOL’S WILLINGNESS TO PROVIDE YOU THE PRODUCTS AND SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, THEREFORE SOME OF THE FOREGOING TERMS MAY NOT APPLY TO YOU.
(e) THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
You will indemnify, defend, and hold BETSOL (and its processors, respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest and expenses (including, without limitation, reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties or obligations set forth in this Agreement; (b) your wrongful or improper use of the Products and Services; (c) your violation of any third party’s rights, including without limitation, any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; and (e) any other party’s access and/or use of the Products or Services using your Access Credentials or the Access Credentials of any of your Authorized Users. BETSOL reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify BETSOL and you agree to cooperate with BETSOL’s defense of these claims. You agree not to settle any matter without BETSOL’s prior written consent. BETSOL will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
18. Consent to Use Data.
18.2 In an effort to monitor and improve the performance of the Software, Betsol will have the right to extract, compile, synthesize, and analyze anonymous, non-personal information about the configuration of Your Workstation and the performance of the Software with the Workstation (“Performance Data”). To the extent that any Performance Data is collected by Betsol, the Performance Data will be solely owned by Betsol and may be used by Betsol for any lawful business purpose in an aggregated form without specifically identifying the source of the Performance Data.
18.3 In the course of using the Services, You may provide Betsol reports, comments, suggestions or ideas relating to the Services (“Feedback”). Betsol shall have no obligation to incorporate Feedback into any Service, and You shall have no obligation to provide Feedback. Betsol shall have no obligation to treat such Feedback as Your confidential or trade secret information. You, on behalf of Yourself and Your successors in interest, grant to Betsol a world-wide, non-exclusive, irrevocable, perpetual, royalty-free and fully paid-up right and license to use, profit from, disclose, publish, or otherwise exploit any Feedback. Without limiting the generality of the foregoing, You agree that its provision of Feedback does not give it any intellectual property or any other right, title, or interest in or to any aspects of the Services, even if such Feedback leads Betsol to create new Products or Services. No representations, warranties, or indemnities as may be granted by either party to the other under this Agreement or the Documents shall apply to Feedback.
19. Export Controls and Trade Sanctions Compliance.
Your use of the Products and Services is subject to compliance with United States and other applicable export control and trade sanctions laws, rules and regulations, including without limitation, the U.S. Export Administration Regulations, administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and U.S. trade sanctions, administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). You will not export, re-export, download or otherwise transmit the Products and Services, or technical data relating thereto, in violation of any applicable Export Control Laws. In particular, You acknowledge that the Products and Services, or any part thereof, may not be exported, transmitted, or re-exported to, or otherwise used in: (a) any country subject to a U.S. embargo or comprehensive trade sanctions or that has been designated a state sponsor of terrorism by the U.S. Government (“Sanctioned Countries”); or (b) anyone identified on any U.S. Government restricted party lists (including without limitation, the Specially Designated Nationals and Blocked Persons List, Sectoral Sanctions Identifications List, and Foreign Sanctions Evaders List, administered by OFAC, and the Entity List, Denied Persons List, and Unverified List administered by BIS) (collectively, “Restricted Party Lists”). By purchasing a Product or Service, you represent and warrant that it is not located in any Sanctioned Country or on any Restricted Party List. You acknowledge that the Products and Services may not be available in all jurisdictions and that you are solely responsible for complying with applicable Export Control Laws related to the manner in which you choose to use the Products and Services, including your transfer and processing of your Customer Content and the region in which any of the foregoing occur.
20. Dispute Resolution.
Please read the following arbitration agreement in this Section 19 carefully (“Arbitration Agreement”). It requires you to arbitrate disputes with BETSOL and limits the manner in which you can seek relief from us. If you are a user of our Products and Services and you are a resident outside of the United States, country specific provisions can be found here: Country Specific Terms.
(a) Applicability of Arbitration Agreement, Rules and Forum. You agree that any dispute or claim relating in any way to this Agreement, including but not limited to, arbitrability of the matter or the formation, interpretation, scope, applicability, termination or breach of this Agreement, your access or use of the Products and Services, or to any aspect of your relationship with BETSOL, will be resolved by binding arbitration, rather than in court. This Arbitration Agreement will apply to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement. Such disputes and claims shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures, or JAMS International Arbitration Rules, if the matter is deemed “international” within the meaning of that term as defined in the JAMS International Arbitration Rules. The arbitration shall be administered by JAMS, shall take place before a sole arbitrator, and shall be conducted in Denver, Colorado. If the JAMS International Arbitration Rules apply, the language to be used in the arbitral proceedings will be English. Judgement upon the arbitral award may be entered by any court having jurisdiction.
(b) Waiver of Jury Trial. YOU AND BETSOL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and BETSOL are instead electing that all claims and disputes will be resolved by final, binding arbitration under this Arbitration Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration and court review of an arbitration award is subject to very limited review.
(c) Waiver of Class or Consolidated Actions. IF YOU AGREE TO THIS AGREEMENT AND/OR USE THE PRODUCTS AND SERVICES, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST BETSOL ALLEGING CLASS, COLLECTIVE AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST BETSOL IN AN INDIVIDUAL ARBITRATION PROCEEDING. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT PRIOR TO USING THE PRODUCTS AND SERVICES, INCLUDING THIS ARBITRATION AGREEMENT. If a court decides that applicable law precludes enforcement of any of this Section’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and BETSOL’s rights to appeal the court’s decision. All other claims will be arbitrated.
(d) Severability. Except as otherwise provided under the terms and conditions of this Arbitration Agreement, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.
(e) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with BETSOL.
(f) Modification. Notwithstanding any provision in this Agreement to the contrary, it is agreed that if BETSOL makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) already in progress or that you have has already provided written notice to BETSOL.
21. Governing Law.
These General Terms and any dispute arising hereunder will be governed by the laws of the Commonwealth of Massachusetts and/or applicable federal law (including the Federal Arbitration Act) without regard to its choice of law or conflicts of law principles. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and BETSOL agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Denver, Colorado. The parties hereto waive to the fullest extent permitted by law all rights to a trial by jury.
22. Electronic Communications.
By using the Products and Services, you acknowledge that we communicate with you electronically to the email address provided in your Customer Account. It is your responsibility to keep your email address current for notice purposes. For contractual purposes, you (a) consent to receive communications from BETSOL in an electronic form and (b) agree that notices and other communications that BETSOL provides to you electronically satisfies any legal requirement that such communications would satisfy if it were to be in writing. You agree that all disclosures, notices and communications are considered received by you within twenty-four (24) hours of the time emailed to you.
23. Contacting BETSOL.
To contact BETSOL regarding this Agreement (i) email contact@BETSOL.com or (ii) write to 10901 W. 120th Ave, Suite 235, Broomfield, CO 80021.
24. Changes in this Agreement.
We may not amend the General Terms, any Product and Service Specific Terms, or our Documentation, at any time unless Customer reviews and agrees in writing to any revised version (each a “Revised Version”).
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without BETSOL’s consent (which shall not be unreasonably withheld or delayed), unless to an affiliate of Customer, and any attempted transfer or assignment to the contrary will be null and void. We may assign this Agreement to any person or entity that is an affiliate, or acquires by sale, merger or otherwise, all or substantially all or a portion of our assets, stock or business. If another entity acquires BETSOL, or all, substantially all or a portion of BETSOL’s assets, stock or business you agree your encrypted stored data and information that BETSOL has collected from you, including personally identifiable information, may, and you consent to, the secure transfer of such information to such successor or assignee. In the event of an assignment by BETSOL, Customer may terminate the Agreement, and BETSOL will refund to Customer all prepaid fees for the remainder of the terms following such date of assignment.
26. Force Majeure.
Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
27. Government Use.
The Products and Services constitute Commercial Off the Shelf (“COTS”) items as that term is defined in the U.S. Government Federal Acquisition Regulations (“FAR”). Government use rights are limited to those minimum rights required by the appropriate provisions of the FAR.
28. Other Provisions.
These General Terms, the Product and Service Specific Terms, and the Documentation, are a complete statement of the agreement between you and BETSOL regarding the Products and Services and the matters covered in this Agreement. If any provision of the Agreement is invalid or unenforceable under applicable law, then it will be changed, interpreted or severed, as appropriate to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these General Terms will be deemed a further or continuing waiver of such term or any other term.