Terms of Service
Effective Date: June 4, 2018
These Terms of Service (“Terms”) govern your use of the websites (the “Sites”), mobile applications, developer platforms, premium services, plug-ins or any content or information (including documentation) provided by PeachWorks (the “Services”), which are owned or operated by Above & Beyond Business Services and Tools for Entrepreneurs, Inc. (“Beyond”, “we”, “our” or “us”). These Terms are an agreement between you and Beyond with respect to any Services you opt into (i.e. all Services identified as part of your sign-up process or other acceptance of these Terms) or otherwise use that are governed by these Terms.
These Terms may apply to you individually (“Personal User”), the business or other legal entity user you represent (“Business User”), or both. If you are using the Sites or Services on behalf of a company or other legal entity (i.e. a Business User), you hereby represent and warrant that you have the authority to enter into these Terms on behalf of the Business User. Notwithstanding the foregoing, these Terms shall not apply to any Business User that has an existing agreement with us to the extent such other agreement governs such Business User’s use of the applicable Services. However, if a Business User has a separate agreement with us for certain Services but not other Services, these Terms shall govern such other Services that are not already governed by an agreement with us. Additionally, if you are a natural person using the Sites or Services on behalf of a company or other legal entity, you (as a Personal User) are nevertheless individually bound by these Terms, even if your company has a separate agreement with us. As used in these Terms and unless separately identified as applicable to either a Personal User or Business User only, “you” and “your” refer to both you individually (Personal User) and, to the extent these Terms apply, the company on behalf of which you are entering into these Terms (Business User).
By accessing the Sites or registering for or using the Services, you: (1) acknowledge that you have read and understand these Terms; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us.
Our privacy statement, available at https://peachworks.com/privacy, is incorporated by reference into these Terms. Please read these Terms and the privacy statement before you access the Sites or Services, as these Terms form a binding legal agreement between you and Beyond.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SITES OR SERVICES. YOUR USE OF OUR SITES AND SERVICES REQUIRES YOUR ACCEPTANCE OF THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN, WHICH INCLUDES THE PEACHWORKS PRIVACY STATEMENT, WHICH CAN BE FOUND AT getbeyond.com/privacy-policy.
1. ELECTRONIC NOTICES AND DISCLOSURES
You acknowledge and agree that Beyond may provide notices and other disclosures to you, required by these Terms, any other agreement, or law, electronically by posting such notices or other disclosures on PeachWorks’ website or by emailing it to you at any email address provided to Beyond by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.
2. CHANGES TO THE TERMS
We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting on the Sites. As your next visit to a Sites or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you visit the Sites or use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account.
Your use or continued use of the Sites or Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.
3. AUTHORIZED USER; YOUR RESPONSIBILITY
You may not access or use the Sites or Services if you are unable to form a binding, legal agreement with Beyond. You affirm that you have the authority to enter into these Terms. You assume all responsibility for your use of, and access to, the Sites or Services.
Accounts are for a single user, company, or other legal entity, as applicable. Any multiple-party use, other than individual use on behalf of Business User, is prohibited. For example, sharing a login between Personal Users and other individuals is prohibited.
4. PERSONAL INFORMATION; YOUR DATA; YOUR ACCOUNT
By registering for our Services, you represent and warrant that all information you submit to us is true, accurate, current and complete and that you will promptly notify us in writing if your information changes. It is your responsibility to keep your account and profile information accurate and updated. We are not responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by you to us.
You may browse the Sites without providing us with any personal information; however, to use our Services, you must register with us and submit certain personally identifiable information. You expressly agree that we may collect, disclose, store and otherwise use your information in accordance with the terms of the Beyond privacy statement, which you can find and read at https://peachworks.com/privacy.
4.3 Customer Data.
As between you and Beyond, you shall remain the sole and exclusive owner of all data, information, text, graphics, works, and other materials provided to Beyond by you in the course of using the Services and/or transferred through, used in and/or stored by you in the Services (“Customer Data”) you provide Beyond or a TP Publisher (defined below), or through the Services or a TP App (defined below), under these Terms. However, you grant to Beyond an irrevocable, non-exclusive, nontransferable (except in connection with the assignment of these Terms), worldwide, royalty-free right to use the Customer Data as reasonably necessary to provide the Services or to perform its obligations under this Agreement. Customer grants to Beyond an ongoing non-exclusive, nontransferable (except in connection with the assignment of this Agreement), worldwide right to include Customer Data in Beyond’ collection, use, and sale of aggregate, non-identifiable data to analyze and report system metrics and other statistical data.
Any Customer Data you submit to us is provided at your own risk of loss. You are solely responsible for all Customer Data you share, provide, display, publish, or disseminate to others, whether such action was taken by us or you. By providing Customer Data to us, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third party rights (including any intellectual property rights), and that the Customer Data is not illegal, obscene, indecent, pornographic, discriminatory, fraudulent, deceptive, misleading, defamatory, trade libelous, slanderous, libelous, unlawfully harassing or otherwise injurious to any third party. Beyond may also remove or delete your Customer Data from the Sites or Services at any time in its sole discretion.
4.3.1 Business User License.
As a Business User, you grant to Beyond, and all of its subsidiaries, affiliates, successors, and assigns a worldwide perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to use, publish, reproduce, distribute, modify, adapt, publicly display and otherwise use the Customer Data as reasonably necessary and appropriate to provide the Services. Additionally, you authorize us to use your corporate logo and corporate name, if applicable, for any promotional purposes (to opt-out, email us at firstname.lastname@example.org).
4.3.2 Personal User License.
As a Personal User, you grant to Beyond, and all of its subsidiaries, affiliates, successors, and assigns, a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to use, publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use the Customer Data as reasonably necessary and appropriate to provide the Services. Such right to use such Customer Data shall survive the termination of these Terms and termination of the Services. If you chose to make certain portions of your profile public or if you choose to post on any publically accessible portions of the Sites or Services, you authorize us to use, forward, or post such information on other sites and services.
4.4 Interactions with Other Users.
You are solely responsible for all interactions with other users. You acknowledge and agree that you are responsible for making your own decisions regarding persons you employ or job positions you take, as applicable. You acknowledge and agree that we do not conduct user background checks or verify any Customer Data or other information provided by users on the Sites or Services. Beyond offers various forums which allow you to post comments. Beyond also enables sharing of information by allowing users to post content and information, including links and information regarding certain job opportunities. Pursuant to the license granted by you above, Beyond may grant other users of the Sites or Services access and share rights to your Customer Data in accordance with these Terms, your settings and the nature of your connection with such other users. Information you share may be seen and used by other users of the Sites or Services. Beyond cannot guarantee that users of the Sites or Services will not use the information that you share on PeachWorks, nor the manner of use. Beyond is not responsible for another user’s or other third party’s misappropriation or misuse of your Customer Data or other information. You are solely responsible for your interactions with other users. Additionally, Beyond is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the Customer Data or any other information provided by other users or any other third party. You hereby release Beyond from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between users of the Sites or Service, (ii) any dispute between you and another user, or (iii) arising out of any services which originated through the Sites or Services or were otherwise provided by a user. Additionally, you agree to immediately report to us any false information provided or misconduct by any user of the Sites or Services.
4.5 Your Account.
Except for your Customer Data licensed to us as set forth above, the account you create and any related profile is owned by us. With regard to your account, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.
You may from time to time identify problems, solutions to identified problems, provide suggestions, comments or other feedback related to our Sites, Services or otherwise relating to PeachWorks (“Feedback”) to Beyond. You acknowledge and agree that all Feedback is and shall be given entirely voluntarily and Beyond shall be free to use or disclose such Feedback for any purpose. You further acknowledge and agree that your Feedback does not contain confidential or proprietary information and you are not entitled to any compensation or reimbursement of any kind from Beyond under any circumstances relating to such Feedback.
5. YOUR ELIGIBILITY
To be eligible to use the Sites or Services, you represent and warrant that you: (i) are not currently restricted from the Sites or Services and are not otherwise prohibited from having an account related thereto; (ii) will only provide accurate information to Beyond; (iii) have full power and authority to enter into these Terms and doing so will not violate any other agreement to which you are a party; and (iv) will not violate any rights of Beyond or a third party, including (but not limited to) intellectual property rights.
6. PERSONAL USE; LIMITED LICENSE; OWNERSHIP
Subject to the terms and conditions herein and any other agreements between you and Beyond, Beyond grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license and right to access the Sites and the Services through a generally available web browser, mobile device or PeachWorks authorized application to view content and information and otherwise use the Sites and Services to the extent intended and permitted by the functionality thereof. This license is personal to you, and neither you nor your vendors and/or agents may under any circumstance, directly or indirectly, market or re-sell our Services, permit other users access to our Services through your account, or use the Services to host content for others. The Services are for your sole internal business purpose, and you are prohibited from accessing the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. You may not copy or download any content from the Sites or Services except with the prior written approval of Beyond. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and Beyond.
Furthermore, without the prior written approval of Beyond, you may not distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of Sites or Services. Any commercial use of the Sites or Services not expressly authorized is prohibited. You agree not to remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to the Sites or Services. Your rights are subject to your compliance with these Terms as well as any other agreements applicable to the Services you are using.
Making unauthorized copies or distribution of Sites or Services content or otherwise violating these Terms may result in the termination of your PeachWorks account, prohibition on use of the Services, and further legal action.
The Sites and Services provided by Beyond are licensed, not sold. The Sites and Services, and all copies of the Sites and Services, are owned by Beyond or its third party licensors and are protected by various intellectual property laws, including, without limitation, copyright, patent, and trade secret laws. Beyond reserves all rights not expressly granted to you herein. You agree that you have no right to any PeachWorks trademark or service mark and may not use any such mark in any way unless expressly authorized by Beyond.
All rights, title and interests in and relating in any manner to the Sites and Services, and all software, applications, technology, and procedures developed or provided by Beyond and media and documentation thereto, including without limitation report designs, formats and graphics relating to the Sites and Services shall be the sole and exclusive property of Beyond including, without limitation, all intellectual property rights and all related patents, copyrights, and trade secrets, as well as the Services source code, and any and all enhancements, modifications, adaptations and/or derivative works of the foregoing, whether made by Beyond, you, or the parties jointly (the “Technology”). Unless expressly granted in writing, in no event whatsoever shall any ownership or similar rights or interests in or to the Technology be vested to you.
Beyond reserves the right to limit your use of or access to the Sites or Services, in its sole discretion in order to maintain the performance and availability of the Sites and Services and to enforce these Terms of Service. Such limitations may include, without limitation, the number of reviews posted, the number of: (i) messages sent through the Sites or Services, (ii) applications submitted, and (iii) reviews posted.
7. FEES; PAYMENT TERMS
If you purchase any services that we offer for a fee (“Paid Services”), you agree to pay the applicable fees for the Paid Services when due plus all related taxes. All applicable taxes are calculated based on the billing information you provide us at the time of purchase. You agree to reimburse us for all collection costs and interest for any overdue amounts. Unless otherwise denoted, all fees are assessed in U.S. dollars. You also agree that Beyond and its third-party service providers providing payment processing services may store your payment information. We may charge your payment information for subsequent charges you authorize, such as account upgrades or other special charges authorized by you. If the payment method you use with us reaches its expiration date and you do not edit the applicable information or cancel such Paid Service, you authorize us to continue billing that payment method and you remain responsible for any uncollected amounts.
If you purchase a subscription to a Paid Service, you will be billed for your first month immediately upon purchasing or upgrading to a subscription account. Unless otherwise set forth on an applicable ordering document incorporating these Terms, the Services are billed in advance on a monthly basis and are non-refundable. For any upgrade or downgrade in plan level, your payment information will automatically be charged the new rate on your next billing cycle in addition to the prorated change in the amount of your subscription for the remainder of the current billing cycle (downgrading your plan level may cause the loss of features or capacity of your account; Beyond does not accept any liability for such loss). Your subscription account shall automatically renew, provided that you may cancel the subscription any time before the end of the current billing period and the cancellation will take effect on the next billing period. You shall retain access to such Paid Services from the time you cancel until the start of the next billing period, but you will not receive a refund or credit for any days remaining in your current billing period.
Failure to pay may result in the termination of your subscription. You may cancel or suspend your Paid Services by contacting Beyond at 609-436-9414. Unless expressly stated to the contrary, we do not guarantee refunds for lack of usage, dissatisfaction or any other reason.
Paid Services may be subject to additional terms, in addition to these Terms, related to the provision of the Paid Service.
8. USE OF SERVICES
Beyond is not liable for the loss, corruption, alteration or removal of any content transmitted using our Sites or Services. By using our Services, you expressly waive the right to seek damages and agree to hold Beyond harmless for any such loss, alteration, corruption or removal. You acknowledge and agree that you are solely responsible for retaining all records and reconciling all transaction information relating to your use of the Sites or Services.
Beyond may also at any time modify or discontinue, temporarily or permanently, all or any part of the Sites, Services or your account, with or without notice, and you agree that Beyond will not be liable to you or any third party for any such modification, suspension or discontinuance. Our Services are not intended to be used in countries where offering or providing the Services is illegal, and we do not offer the Services in such countries or to citizens of such countries.
Subject to Section 20.9, you may terminate these Terms by terminating your use of the Sites and Services and any related account.
9. MOBILE AND THIRD-PARTY INTEGRATIONS
Beyond may offer the Services through applications built using PeachWorks’ platform, including any mobile device applications or interactive plugins distributed on third-party websites. If you use Services through an application or interact with a PeachWorks plugin on a third-party site, we may receive information about you and your use of the Services. Additionally, by using an application that relates to or enables your use of the Services, you are accepting the terms of any end user license agreement associated with such application, in addition to these Terms.
If you send SMS messages through the Services, you acknowledge that standard text messaging rates or other carrier charges may apply to such use.
If you authorize Beyond to access your Address Book on your iOS product, you acknowledge and agree that Beyond may access and use such data to invite and share information with your contacts.
Beyond may send you Push Notifications if you authorize Beyond to do so.
10. THIRD-PARTY APPLICATIONS, CONTENT & SITES
10.1 Third-Party Applications.
In connection with the Services, Beyond may make available certain third-party software applications (“TP Apps”), including TP Apps that interoperate with Services. Your use of TP Apps will be governed by the terms and conditions of an end user license agreement (“TP EULA”) between you and the publisher of such TP App (“TP Publisher”). The TP Publisher has the right to enforce the TP EULA against you. If you do not want to comply with the TP EULA for a TP App, you must not use that TP App. Beyond is not a party to the TP EULA for any TP App. No TP EULA may be inconsistent with these Terms or with any other license, agreement, term, or condition offered or imposed by Beyond in connection with the sites or Services. Any term in any TP EULA that adversely affects Beyond is preempted by these Terms. Unless otherwise agreed to in writing by Beyond, any support or maintenance of the TP Apps shall be provided by the TP Publisher and only to the extent described in the TP EULA. You agree and acknowledge that Beyond has no responsibility for providing such support and maintenance. Failure of TP Publisher to provide support and maintenance will not entitle you to any refund of fees from Beyond in connection with obtaining the applicable TP App or support and maintenance.
Any information that a TP Publisher collects from you or your device will be subject to the applicable TP EULA, privacy notice, or similar terms that the TP Publisher provides to you. You hereby explicitly acknowledge and authorize Beyond to, in connection with your purchase, download, or use of one or more TP Apps, provide the TP Publisher with the information provided by you in completing the purchase. If you purchase, download, or use TP Apps, such TP Apps may transmit your data outside of PeachWorks’ systems during normal use, and the TP Publishers of those TP Apps may be able to obtain access to your data in the Services through an application programming interface (API) or other means. Such access may result in the disclosure, modification or deletion of your data by those TP Publishers or their TP Apps. Further, the TP Publisher and its agents and partners may collect and use data pertaining to your configuration and/or use of the TP Apps. Beyond is not responsible for any transmission, collection, disclosure, modification, use or deletion of your data, as described in this paragraph, by or through TP Apps or their TP Publishers. The third-party content included in the TP Apps is the sole responsibility of the TP Publisher of that content. Beyond is not responsible for any third-party content, whether or not it reviewed or moderated such content. You agree that you bear all risks associated with using or relying on TP Apps. Beyond does not in any way warrant the accuracy, reliability, security, completeness, usefulness, non-infringement, or quality of any TP Apps (including without limitation any applications or content contained therein), regardless of who originated that content.
Beyond does not warrant that TP Apps are error free. TP Apps warranted by the respective rights holders in such TP Apps and, to the extent that Beyond is authorized to do so, Beyond passes through to you such third party warranties. Beyond itself makes no warranties regarding TP Apps, except that Beyond does warrant that is has full rights and authority to grant all licenses and privileges conveyed under these Terms and that its performance under these Terms will not violate any agreement between it and a third party.
BEYOND HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELATING TO SUCH TP APPS. BEYOND SHALL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY LOSSES OR DAMAGE OF ANY KIND, INCLUDING LOST PROFITS OR OTHER INDIRECT OR CONSEQUENTIAL DAMAGES, RELATING TO YOUR USE OF OR RELIANCE UPON ANY TP APPS.
10.2 Other Third Party Content and Sites.
In addition to the foregoing provisions regarding TP Apps, we do not control, and we are not responsible for, any third-party data, content, services, or products (including software) that you access, download, receive or buy while using the Services. We may, but do not have any obligation to, block information, transmissions or access to certain information, services, products or domains to protect the Services, our network, the public or our users. We are not responsible for the content, accuracy, timeliness or delivery of any opinions, advice, statements, messages, services, graphics, data or any other information provided to or by third parties as accessible through the Service.
11. ACCEPTABLE USE POLICY
You agree to comply with all applicable laws and regulations in connection with your use of the Sites and Services. You may not use our Sites or Services to post or transmit any illegal material, including without limitation any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
- The transmission or posting of chain letters or pyramid schemes, or other acts that involve deceptive online marketing practices or fraud;
- Acts that may materially and adversely affect the quality of other users’ experience;
- Actual or attempted unauthorized use or sabotage of any computers, machines or networks;
- Introducing of malicious programs into PeachWorks’ Services, network or servers (e.g. viruses, worms, Trojan horses, etc.);
- Engaging in any monitoring or interception of data not intended for you without authorization;
- Attempting to circumvent authentication or security of any host, network, or account without authorization;
- Reverse engineering, decompiling, disassembling, deciphering or otherwise attempting to derive the source code for any underlying intellectual property used to provide the Sites or Services, or any part thereof;
- Adapting, modifying, or creating derivative works based on the Sites, Services, or technology underlying the Services, or other users’ content, in whole or part;
- Duplicating, licensing, sublicensing, publishing, broadcasting, transmitting, distributing, performing, displaying, selling, rebranding, or otherwise transfering information found on the Sites or Services (excluding content posted by you) except as permitted in these Terms, or as expressly authorized by Beyond in writing;
- Using any method, software or program designed to collect identity information, authentication credentials, or other information;
- Transmitting or receiving, uploading, using or reusing material that is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights;
- Transmitting or receiving, uploading, using or reusing material that violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights;
- Transmitting, receiving, uploading, using or reusing material that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements)
- Falsifying user identification information
- Using the Services for anything other than lawful purposes including, but not limited to, intentionally or unintentionally violating any applicable local, state, national or international law; or Impersonating any person or entity, including, but not limited to, a Beyond representative, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.
Beyond enforces a zero-tolerance SPAM policy regarding information transmitted through our network. Beyond may determine in its sole discretion whether any transmissions are considered SPAM. SPAM includes, but is not limited to, the following:
- Bulk unsolicited e-mail, promotional material, or other forms of solicitation sent via the Sites or Services, or e-mail that advertises any IP address belonging to Beyond or any URL (domain) that is hosted by Beyond.
- The use of web pages set up on ISPs that allow SPAM-ing that directly or indirectly reference customers to domains or IP addresses hosted by Beyond.
- Forging or misrepresenting message headers, whether in whole or in part, to mask the true origin of the message.
If Beyond determines that you have posted one or more articles of SPAM, we may cancel your account immediately and take steps to prevent you from using our network at any time thereafter.
You agree not to use the Sites or Services for the purpose of recruiting for another website or soliciting or otherwise contacting other users for employment or any other business purpose (other than connecting with other users for the purpose of receiving or providing a job in connection with the purpose of the Sites and Services, as applicable, and in accordance with these Terms of Service).
12. COPYRIGHT PROTECTED MATERIALS
Beyond respects the intellectual property rights of others and expects that you do the same. It is our policy to terminate, in appropriate circumstances, the accounts of subscribers who infringe the copyrights of others. You may not upload, download, post, publish, transmit, reproduce, or distribute in any way, files, material, information, software or other material obtained through the Sites or Services that is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the copyright owner or other right holder. Beyond has the right, but not the obligation, to remove from the Sites and Services any files, material, information, software or other material Beyond believes is or may be, in its sole discretion, infringing or otherwise in violation of the rights of others.
If you believe in good faith that your copyright has been infringed, please provide a written communication regarding such belief to: email@example.com.
13. EXPORT CONTROL LAWS
The Sites and Services are controlled, operated, and administered by Beyond or its agents from offices and utilizing servers within the United States of America. Beyond makes no representation that materials available on the Sites or Services are appropriate or available for transmission to or from, or use in, locations outside of the United States. You may not use the Sites or Services to export materials in violation of import or export laws or regulations. If you access the Sites or Services a location outside of the United States, you are solely responsible for compliance with all local laws.
The Services may be subject to export control restrictions of the United States. By using the Services, you represent and warrant that (i) you are not located in any country, or exporting the Service to any person or place, to which the United States has embargoed goods or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to Services any content, data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The assurances and commitments in this Section shall survive termination of these Terms.
14. RIGHT TO RESTRICT OR TERMINATE ACCESS
Beyond may deny or restrict your access to all or part of the Sites or Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that Beyond in its reasonable discretion believes violates the letter or spirit of any of these Terms. If Beyond denies or restricts your access to the Services because of such a violation, you shall have no right to obtain any refund or credit for the subscriptions fees you have paid.
In the event that these Terms or the Services are terminated for any reason or no reason, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Sites and Services and any license granted to you under any agreement related to your use of the Sites or Services shall immediately terminate. Termination of these Terms or the Services does not relieve you from your obligation to pay Beyond any amounts owed to Beyond. Upon termination, Beyond may, in its sole discretion, store your Customer Data on its servers for a reasonable period of time or longer pursuant to its rights under these Terms, but we do not guarantee that your Customer Data will still be available upon re-activation at a later time. Notwithstanding the foregoing, Beyond reserves the right to delete all of your Customer Data, data, and other information stored on PeachWorks’ servers. Beyond will not be liable to you or any third party as a result of the termination of these Terms or the Services or for any actions taken by Beyond pursuant to these Terms as a result of such termination. Without limiting the generality of the foregoing, Beyond will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Sites or Services, or the termination thereof.
You acknowledge and agree that you are solely responsible for protecting your password and other personal information and for the consequences of not protecting such data. Access to our Services and to certain online transactions may involve the use of identification numbers, passwords, payment accounts or other individualized nonpublic information (“Private Documentation”). You shall use your best efforts to prevent unauthorized use of our Services, your account, or of any Private Documentation, and shall promptly report to Beyond any suspected unauthorized use or other breach of security. You shall be responsible for any unauthorized use of your account, identification numbers or passwords until we receive written notice of a breach of security and a request to block further access for such numbers and passwords. Beyond shall not be liable for any unauthorized use of payment accounts.
16. CHILDREN AND MINORS
By using our Services, you affirm that you are at least 13 years of age. In accordance with the Children’s Online Privacy Protection Act (COPPA) and associated rules, we do not knowingly collect or maintain any personal information from children under 13.
17. DISCLAIMER OF WARRANTY
Actual service coverage, speeds, locations and quality may vary. Beyond will attempt to provide the Services at all times, except for limited periods for maintenance and repair. However, the Services and Sites may be subject to unavailability for a variety of factors beyond our control including emergencies, third-party service failures, transmission, equipment or network problems or limitations, interference, signal strength, and may be interrupted, limited or curtailed. Delays or omissions may occur. We are not responsible for data, messages or pages lost, not delivered, delayed or misdirected because of interruptions or performance issues with the Sites, Services, or communications services or networks. We may impose usage or Services limits, suspend the Services, or block certain kinds of usage in our sole discretion to protect users, the Services or the Sites. The accuracy and timeliness of data received is not guaranteed.
YOUR USE OF THE SITES AND SERVICE IS AT YOUR SOLE RISK. THE SITES, ALL SITE CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, NONINFRINGEMENT, AVAILABILITY OR ACCURACY OF INFORMATION. BEYOND DOES NOT WARRANT THAT THE SITES OR SERVICES WILL BE AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. BEYOND DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITES OR SERVICE, IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. BEYOND SHALL NOT BE RESPONSIBLE FOR LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, BEYOND’ WARRANTIES AND CONDITIONS WITH RESPECT TO THE SITES AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
18. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL BEYOND, ITS AFFILIATES, EMPLOYEES, SHAREHOLDERS, DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, LICENSORS, SUCCESSORS, ASSIGNS, OR OTHER THIRD PARTY PARTNERS (“BEYOND PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES OR SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, GOOD WILL, USE, DATA, LOST DATA, OTHER INTANGIBLE LOSSES, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DERIVED FROM THIRD PARTY CLAIMS OR LOSSES OF ANY NATURE WHATSOEVER OR OTHERWISE, WHETHER SUCH LIABILITY WAS BASED UPON TORT, WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SITES AND SERVICES.
BEYOND’ TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID BEYOND FOR YOUR USE OF THE SERVICES IN THE PRIOR NINETY (90) DAYS; AND (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE BEYOND PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN SHALL BE APPLICABLE TO AND SHALL INURE TO THE BENEFIT OF BEYOND AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS. THE LIMITATIONS SET FORTH HEREIN ARE INTENDED TO COMPLY TO THE FULLEST EXTENT POSSIBLE WITH ANY APPLICABLE LAW, REGULATION, OR STATUTE PROHIBITING OR LIMITING THE EXCLUSION OR LIMITATION OF DAMAGES OR THE DISCLAIMER OF WARRANTIES AND REPRESENTATIONS.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BEYOND TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN SECTIONS 19 AND 20 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
You agree to, at your expense, defend, indemnify and hold the Beyond Parties harmless from and against all damages, costs, penalties, sanctions, fees (including reasonable attorneys’ fees), and other liability of any kind associated with any third-party claim, suit, or cause of action that does, or is alleged to, arise out of or relate to (i) any violation of these Terms by you; (ii) injury, including death) to any persons or damage to or loss of tangible personal or real property resulting from any negligence or willful misconduct of you, your agents, servants, or employees, (iii) your Customer Data or any other content or material you submit or otherwise transmit through our Sites or Services; (iv) your violation of any rights of another; or (v) your use of the Sites or Services. Beyond reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you.
20. GENERAL TERMS
20.1 Entire Agreement.
These Terms, the Beyond Privacy Statement (in combination with any mutually signed Sales Contract, hereby incorporated in their entirety by reference), along with any rules, guidelines, or policies published on the PeachWorks homepage (collectively “this Agreement”) constitute the entire agreement between Beyond and you with respect to your use of our Sites Services. If there is any conflict between the Terms and any other rules or instructions posted on the Sites or Services, the Terms shall control. If there is any conflict between these Terms and any signed Sales Contract, the Sales Contract shall control.
No amendment to this Agreement by you by shall be effective unless acknowledged in writing by Beyond. Notwithstanding the foregoing, Beyond reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above.
20.3 Governing Law, Jurisdiction and Venue.
This Agreement, shall be governed in all respects by the laws of the State of Ohio and the federal law of the United States without regard for conflict of law provisions.
Subject to Section 20.4, the sole venue and jurisdiction for disputes arising out of, or related to, this Agreement shall be the New Jersey state courts sitting in Mercer County, New Jersey, and each party hereby submits to the jurisdiction of, and consents to venue in, such courts. Notwithstanding the foregoing, you agree that Beyond shall be entitled to apply for injunctive remedies or other equitable relief in any jurisdiction.
20.4 Dispute Resolution.
Any dispute arising out of, or relating to, the construction, scope, effect, breach, termination, or validity of this Agreement shall be finally and exclusively settled exclusively by arbitration under, and in accordance with, the Commercial Arbitration Rules of the American Arbitration. The parties will conduct the arbitration in Mercer County, New Jersey. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction if reasonably necessary to obtain injunctive or other relief in equity that is not readily available from an arbitrator. Each party shall continue to perform its obligations under this Agreement pending final resolution of any such dispute. Each party will pay its own costs of the arbitration and will each pay half of the fees of the arbitrator(s) and /or the American Arbitration Association. Any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration each party waives any right to a jury trial.
20.5 Limited Time to Bring Claim.
Subject to any applicable law to the contrary, you agree that any cause of action arising out of or related to the use of our Sites or Services must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred.
If for any reason this Agreement, or portion thereof, is found to be unenforceable, that provision shall be enforced to the maximum permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
You may not assign your rights or obligations under this Agreement without the prior written consent of Beyond, which may be withheld in Beyond’ sole discretion. Beyond may freely assign any or all of its rights and obligations under this Agreement.
Any waiver of a Beyond’ right or remedy related to this Agreement must be in writing, signed by that us to be effective. No waiver shall be implied from a failure of Beyond to exercise a right or remedy. In addition, no waiver of Beyond’ right or remedy will affect the other provisions of these Terms.
All headings included in these Terms are included for convenience only, and shall not be considered in interpreting these Terms.
20.11 Beyond’ Rights Cumulative.
These Terms do not limit any rights that Beyond may have pursuant to any intellectual property laws or any other laws. All rights and remedies available to Beyond, pursuant to these Terms or otherwise, at law or in equity, are cumulative and not exclusive of any other rights or remedies that may be available to Beyond, and may be exercised concurrently or separately.
20.12 No Injunctive Relief.
In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Sites or Services, or any other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.
Unless otherwise provided in these Terms, all notices (except for routine business communications) must be in writing and sent to the individual below, either by hand delivery; messenger; certified mail, return receipt requested; overnight courier; or by facsimile or by e-mail (with a confirming copy by regular mail) and shall be effective when received by such party at the address listed below or other address provided in writing.
902 Carnegie Center, Ste 160
Princeton, NJ 08540
The relationship between Customer and Beyond is that of independent contractor. Nothing in these Terms shall be construed as creating a relationship between you and Beyond of joint ventures’, partners, employer-employee, or agent. Neither party has the authority to create any obligations for the other, or to bind the other to any representation or document.
Beyond will be responsible for all personnel it may assign to perform its obligations under these Terms. Under no circumstances will personnel furnished by Beyond be considered Customer’s employees or agents. No Federal, state, local income or payroll tax of any kind shall be withheld or paid by Customer on behalf of Beyond or its personnel. No Beyond personnel shall participate in any benefit of Customer, including health insurance, paid vacation or other benefit provided by Customer to its employees.