This agreement (hereafter the "Agreement") is between you (hereafter "You") and Visible Asset LLC (hereafter "VA") and governs Your use of the EzBillMaker software and associated internet-based service (hereafter collectively known as the "Service"). It governs a free trial of the Service. If You purchase a subscription to the Service, either with or without a prior free trial, the Agreement also governs that purchase as well as Your ongoing use of the Service. You agree to the terms and conditions set forth below. If You are entering into this agreement on behalf of another legal entity, such as a corporation, You represent that You have the authority to bind this entity to these terms and conditions. In this case, the words "You" or "Your" will refer to this entity. If You do not accept these terms and conditions, You must not enter into this agreement and You may not use the Service. The Agreement is effective between You and VA as of the date You check the 'I accept' box on the website (or on a screen shown on Your phone) that references this Agreement.
"Users" means individuals who are authorized by You to use the Service on Your behalf. Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business."We," "Us" or "Our" means Visible Asset LLC. "Your Data" means all electronic data or information submitted by You to the Service.
2.1 You may not use the Service if You sell or plan to sell products or services that would compete directly with the Service. You may not access the Service in order to monitor their availability, performance, or functionality in order to benchmark the Service or for any other competitive purpose.
2.2 VA will use commercially reasonable efforts to make the Service available 24 hours a day, 7 days per week, except for planned downtime and downtime caused by circumstances beyond Our control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of war, strikes, or Internet service provider failures or delays.
2.2 You are responsible for Users' compliance with this Agreement. You are also solely responsible for the accuracy, quality, integrity and legality of the data You store in the Service. You will use commercially reasonable efforts to prevent unauthorized use of the Service, and notify us promptly of any such unauthorized access or use. You will use the Service only in accordance with the documentation published on our web site and applicable laws and government regulations. You will not make the Service available to parties other than Users, nor will You sell, resell, or lease the Service. You will not use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material. You will not use the Service to transmit material in violation of third-party rights. You will not interfere with or disrupt the integrity or performance of the Service or third-party data contained therein. You will not try to obtain unauthorized access to the Service.
2.3 The Service may be subject to limitations, such as limits on the number of bills You may store. Such limitations will be described in the documentation published on our web site.
2.4 VA will provide email-based support for the Service at no additional charge. Additional support may be provided for an additional fee under a separate agreement.
3.1 We may offer You a free trial of the service, in which case there is no fee to use the Service during the trial period. However, after the trial period ends, You must pay the fee described below to continue using the service. The remainder of this section does not apply if You are using the service as part of a free trial.
3.2 In order to use the Service (except as part of a free trial), You must purchase a subscription by paying the one time fee, monthly fee, or yearly fee stated on the VA website.
3.3 The fee may change from time to time at our discretion. Unless otherwise noted, the fee is in US dollars. For a one-time fee, the fee is due before You start using the service. For monthly and yearly fees, the fee is due at the beginning of each month or year and is due whether You use the Service or not during that month or year. Also for monthly and yearly fees, You may cancel the service at any time but any fee already paid is non-refundable.
3.4 For a one-time fee, the subscription will be limited to the term specified on the website or, if no term is specified on the website, the subscription will be limited to a term of two (2) years, after which time You must purchase a new subscription to continue using the service.
3.5 For a monthly or yearly fee, You will authorize either Amazon.com or PayPal to charge You on a monthly or yearly basis and to remit the amount charged (less a percentage to Amazon.com or PayPal) to VA. To cancel a monthly or yearly subscription, You will use the Amazon.com or PayPal website features that allow this. While the subscription is in effect, it is Your responsibility to ensure that Amazon.com or PayPal is able to collect the fees (for example, by making sure Amazon.com or PayPal has a valid unexpired credit card number). If You cancel Your subscription at Amazon.com or PayPal, this agreement will terminate immediately thereafter.
3.6 If Amazon.com or PayPal is unable to collect the fee, You will be notified when You use the Service that Your subscription has lapsed and You will be given a 7 day grace period to resolve the matter. If the fee is not collected by the end of the grace period, You will be sent an email and the subscription will be terminated. We will make a good faith effort to preserve Your data for an additional 90 days after the subscription terminates, and should You then pay the fee We will restore the Service. If You do not pay said fees after 90 days, Your data will be discarded and this agreement will be terminated.
3.7 Taxes. Our fees do not include any taxes, duties or assessments of any kind from any kind of governmental body. You agree to pay all such taxes, duties, or assessments that may be associated with any purchase You make under the Agreement.
4.1 Except for the limited rights expressly granted herein, VA reserves all rights, title and interest in the Service, including all related intellectual property rights. No rights are granted to You other than those expressly set forth herein.
4.2 You will not permit a third party to access the Service except as permitted herein. You will not create derivate works based on the Service. You will not try to reverse engineer the Service, or use the Service in order to build a competitive product or service.
4.3 You exclusively own all rights, title and interest in any and all data You store using the Service.
4.4 You grant VA a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement ideas, recommendations or other feedback provided by You that relate to operation of the Service.
5.1 VA will make a good faith effort to ensure that the Service operate substantially in accordance with the documentation published on our web site. For any breach of warranty, Your exclusive remedy shall be a refund of the fees You paid to VA.
5.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, VA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.1 You will defend VA against any Claim made or brought against it by a third party alleging that Your data, or Your use of the Service infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and You will indemnify VA for any damages finally awarded against it, and for reasonable attorney's fees incurred by it, in connection with any such Claim. VA agrees to promptly give You written notice of the Claim and give You sole control of the defense and settlement of the Claim except that any such settlement must abide by the above conditions.
7.1 IN NO EVENT SHALL VA OR ITS SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING, but not limited to, loss of use, loss of data, loss of business, loss of goodwill, loss of reputation, loss of credit, loss of publicity, loss of revenue and interest, loss of profits or anticipated profits, publicity and/or claims for such damages by a third party or any other claim of loss or liability. WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH DAMAGE WAS REASONABLY FORESEEABLE, VA's total aggregate liability for all claims for direct damages shall not exceed the fees actually paid by You while using the Service.
7.2 VA's service providers shall have no liability arising from, relating to, or resulting from this agreement. Further, You agree to abide by all terms and conditions of these service providers as accepted by You.
7.3 This disclaimer of warranties and limited liability are fundamental elements of the basis of the bargain between You and VA. You acknowledge and agree that VA WOULD NOT BE ABLE TO PROVIDE THE SERVICE FOR THE FEES CHARGED WITHOUT SUCH LIMITATIONS. In jurisdictions which do not allow the exclusion or limitation of certain types of damages, VA's liability for such damages shall be limited to the maximum extent permitted by applicable law.
8.1 Term of Agreement. This Agreement commences on the date You accept it and continues until it terminates per Section 3. If You use the Service for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
8.2 Surviving Provisions. All sections except Section 3 shall survive termination of this Agreement.
9.1 The Service may be subject to limitations, delays, and other problems associated with the use of internet, cellular carrier networks and electronic communications. VA is not responsible for any delays, delivery failures, or other damage resulting from such problems.
9.2 VA reserves the right to modify the terms and conditions of the Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service's web site. You are responsible for regularly reviewing the website and this Agreement. Continued use of the Service after any such changes shall be deemed to signify Your consent to the changes.
9.3 You are strongly advised to use a phone password to prevent unwanted disclosure of confidential data.
9.4 Delivery of documents sent by the Service should be confirmed by phone call or subsequent contact with the intended recipient. You should always review and scrutinize bills, quotes and reports prior to sending. There is no guarantee of delivery.
9.6 The Service is NOT certified as a HIPPA compliant system and should not be used to store medical record information or a patient's clinical or confidential information.
9.7 You are responsible for obtaining a phone data plan through Your cellular provider that will enable You to use the Service. DO NOT USE THE SERVICES WHILE DRIVING OR OPERATING EQUIPMENT.
9.8 Use of the Service is subject to limitations described on the Service's website. If You exceed these limitations, You may be charged for additional subscriptions. If You grossly exceed these levels or conduct activities which are automated or inconsistent with a normal individual user, Your subscription may be terminated.
10.1 VA may give You notice by means of a message on the Service's web site, or by electronic mail to the email address You gave to the Service. Such notice shall be deemed to have been given 72 hours after its posting on the website and/or 24 hours after its sending (if sent by email). You may give notice to VA bv sending a letter via a nationally recognized overnight delivery service or first class postage prepaid mail to: Visible Asset, LLC, 49357 Pontiac Trail, Suite 202, Wixom MI, 48393, attention: Chief Financial Officer.
11.1 This Agreement will be governed by and interpreted using the laws of the State of Michigan, USA. Any matter, claim or controversy with regard to this Agreement, or Your dealings with VA, or Your use of the Service shall be resolved in the District Court of Oakland County Michigan or The Oakland County Circuit Court of the State of Michigan, USA.
12.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You will not access or use Service in violation of any U.S. export embargo, prohibition or restriction.
12.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.4 Waiver of Jury Trial. You and VA hereby waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.7 Attorney Fees. You shall pay on demand all of VA'a reasonable attorney fees and other costs incurred by VA to collect any fees or charges due to VA under this Agreement following any breach of Section 3.
12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to a third party if that third party has acquired the original party's assets through merger or acquisition.
12.9 Entire Agreement. This Agreement, including any exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
Copyright 2009, Visible Asset LLC, All Rights Reserved.