Last Updated Date: December 8, 2020
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT BEECANVAS’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 8 BELOW.
SERVICES. As part of the Services, BeeCanvas offers the Platform, which makes available online whiteboards (each, a “Canvas”) designed to allow users to more easily collaborate on projects. Your access to and use of certain Services available through the Platform may be subject to separate license agreements and terms and conditions, which will be presented to you upon initial access and use. By using the Services, you acknowledge that you understand that the Services are evolving. BeeCanvas may add, modify, or remove application programming interfaces, widgets, and other tools, documentation, and materials from the Services at any time without notice to you. Your use of any aspects of the Services is subject to the terms of this Agreement.
2.1 Account Registration. To obtain access to the Services, you may be required to become a Registered User. A “Registered User” is a user of the Platform who has registered an account (“Account”) with BeeCanvas. You may be required to provide certain information about yourself as prompted by the account registration form, such as your name, company name, and e-mail address. If you are an employee or other authorized user of a customer (“Customer”), then the user with administrative credentials for the customer’s Account (the “Authorized Account Administrator”) may have to send you an invitation to join or otherwise approve your registration. If you are the Authorized Account Administrator designated by a Customer, then you may be assigned different permissions than other end users and you represent and warrant that you will only use the features and functionality of your Account as authorized by the Customer. When registering with BeeCanvas, you must: (a) provide true, accurate, current and complete information about yourself and (b) maintain and promptly update your registration or profile data to keep it true, accurate, current and complete. You are responsible for maintaining the confidentiality of your Account log-in information and are fully responsible for all activities that occur under your Account. You agree to immediately notify BeeCanvas of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. BeeCanvas cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2.2 Third-Party Platforms. We may allow you to access the Services through or integrate with a third-party platform (“Third-Party Platform”) as part of the functionality of the Services, by linking your Account (via an application programming interface or otherwise) with your accounts on those Third-Party Platforms (“Third-Party Accounts”), as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to BeeCanvas and/or grant BeeCanvas access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Accounts and without obligating BeeCanvas to pay any fees or making BeeCanvas subject to any usage limitations imposed by such third-party service providers. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND BEECANVAS DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.
3.1 Services. Except with respect to Your Content and User Content, (as defined below in Section 4), you agree that BeeCanvas and its licensors own all rights, title and interest in the Services and all information, materials, and data thereon (including but not limited to, any computer code, objects, stories, dialogue, concepts, artwork, animations, sounds, audiovisual effects, methods of operation, moral rights, documentation, transcripts, and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Platform, or Services.
3.2 License to Platform. Subject to this Agreement, BeeCanvas grants you a non-transferable, non-exclusive, revocable, limited right to access and use the Platform via the Website for your own personal or internal business, non-commercial use, solely in accordance with this Agreement. BeeCanvas reserves the right to change the terms of your license and/or subscription, by imposing caps on the amount of Registered Users under an Account and/or the amount of data uploaded or stored by Registered Users of an Account, from time to time. When such changes are made, they shall become effective as of the beginning of your next billing period following the date we provide you with written notice of such change.
All related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of BeeCanvas and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
3.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to BeeCanvas through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that BeeCanvas has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to BeeCanvas a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of BeeCanvas’s business.
3.5 Your Content. BeeCanvas does not claim ownership of Your Content (as defined in Section 4 below). However, when you as a user submit, post, transmit, upload, distribute, or publish Your Content on or in the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, reproduce, modify, adapt, publish, translate, distribute, and communicate to the public, publicly perform and publicly display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
3.6 License to Your Content and Diagnostic Data. Subject to any applicable account settings that you select, you grant BeeCanvas (a) a fully paid, royalty-free, perpetual, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, reproduce, modify, adapt, publish, translate, distribute, and communicate to the public, perform and display (in whole or in part) Your Content solely for the purposes of operating and providing Services to you and to our other users; and (b) a fully paid, perpetual, irrevocable, royalty-free, worldwide, non-exclusive license to use Diagnostic Data (as defined below in Section 3.8) for its business purposes. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not BeeCanvas, are responsible for all of Your Content that you Make Available on or in Services.
3.7 Publicity. Unless you provide BeeCanvas with a written request to opt out of such identification (via email at email@example.com), you grant BeeCanvas the right to identify you (using the name of the user to whom the Account is registered) as a customer of BeeCanvas and the Services for BeeCanvas’s marketing and promotional purposes, using such user’s tradenames, trademarks, service marks, and logos (“Marks”) of the user to whom this Agreement is registered. If you do not have the authority to grant such rights to the Marks for the user named on the Account, please immediately contact BeeCanvas at firstname.lastname@example.org.
3.8 Diagnostic Data; Analytics and Improvements. You acknowledge that BeeCanvas will have the right to collect Diagnostic Data in connection with your use of the Services. “Diagnostic Data” includes information that we automatically collect when you use the Services, including diagnostic information about the routine operations of the Services (including without limitation, its performance, data reduction rations, configuration data, and any software faults). Furthermore, you hereby grant BeeCanvas the right to de-identify, aggregate, and/or analyze any data or information you provide us through your use of the Services, including uploaded activities, run artifacts, process metrics, and configurations (“Aggregate and Anonymized Data”), and agree that BeeCanvas exclusively owns such Aggregate and Anonymized Data and any improvements or new services arising therefrom.
3.9 Open Source Software. Certain items of software are available to you with the Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.2, 3.3, or 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, we make such Open Source Software, and our modifications to that Open Source Software, available by written request at the notice address specified below.
RESPONSIBILITY FOR CONTENT
4.1 Types of Content. You acknowledge that all files, materials, text, audio, video, images, data or other content (“Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not BeeCanvas, are entirely responsible for all Content that you upload, post, e-mail, transmit, store or otherwise make available (“Make Available”) through the Services, including Content that you make available on or as part of a Canvas (“Your Content”), and that you and other users of Services, and not BeeCanvas, are similarly responsible for all Content they Make Available through the Services (“User Content”).
4.2 Your Warranty; Responsibility for Security. You represent and warrant that Your Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage BeeCanvas’s system or data; and (e) otherwise violate the rights of a third party. BeeCanvas is not obligated to back up any of Your Content; you are solely responsible for creating backup copies of any of Your Content at your sole cost and expense. You agree that any use of the Services contrary to or in violation of the representations and warranties in this Section 4.2 and/or applicable laws, rules, and regulations, constitutes unauthorized and improper use of the Services. You will be responsible for all changes to and/or deletions of Your Content and the security of all passwords and other access protocols required in order the access the Services. You will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of Your Content, including in the event of a security breach resulting from your own actions.
4.3 No Obligation to Pre-Screen Content. You acknowledge that BeeCanvas typically does not and has no obligation to pre-screen Content (including, but not limited to, User Content) although BeeCanvas reserves the right in its sole discretion to remove any Content that it believes violates this Agreement, and/or any applicable laws, rules, or regulations, or is otherwise objectionable.
4.5 Shared Organization Data. If you are invited by an Authorized Account Administrator, and confirm membership within your company’s designated group (“Organization”) within the Services, you may view the Content of other Registered Users within your Organization. When you join an Organization, your directory data (name, date of signup, and email address) may be visible to other Registered Users of Services within your Organization.
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is BeeCanvas’s policy to terminate membership privileges of any users (including Registered Users) who repeatedly infringe copyright upon prompt notification to BeeCanvas by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your first and last name, address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for BeeCanvas’s Copyright Agent for notice of claims of copyright infringement is as follows: BeeCanvas, Inc., Attn: Raymond Hong, 353 Kearny Street, San Francisco, California 94108.
6.1 As a condition of use, you agree not to use the Services for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third party) either take any action or make available any Content on or through the Site that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane or otherwise violates another party’s rights; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without BeeCanvas’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of BeeCanvas; (vi) interferes with or attempts to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement, including by overburdening the servers on which the Services are made available; (vii) attempts or achieves a denial-of-service attack on BeeCanvas’s shared systems; or (viii) attempts to engage in or engage in, any potentially harmful acts that are directed against BeeCanvas, the Services or any users of Services, including but not limited to violating or attempting to violate or circumvent any security features of Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Services, introducing viruses, worms, or similar harmful code into Services, or interfering or attempting to interfere with use of Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. You further agree: (a) that you shall not access the Services in order to build a similar or competitive product or service; (b) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (c) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement.
7.1 Generally. By entering into this Agreement or using the Services, you agree to receive communications, including marketing and promotional email communications, and administrative text or SMS messages from us (unless you separately opt in to receive promotional text or SMS messages from us). You agree that for all of our communications, including for any SMS messages sent on behalf of BeeCanvas: (i) message and data rates may apply to communications between you and BeeCanvas; and (ii) texts, calls or prerecorded messages may be generated by automatic telephone dialing systems.
7.2 Email Communications. If we send marketing or promotional communications to you by email, you will have the ability to opt out of receiving such communications by following the instructions in this section. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SERVICES. IF YOU WISH TO OPT OUT OF RECEIVING PROMOTIONAL EMAIL COMMUNICATIONS FROM US, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
7.3 SMS Communications. You agree that we may provide you notices, disclosures, and other administrative (but not marketing) communications by SMS message (including text message). You consent to be contacted by us or our representatives at any telephone number or electronic address you provide or at which you may be reached. You consent to receive SMS messages from us or our representatives at the numbers you have provided to us, with information or questions relating to you or the Services. To unsubscribe from text messages, reply STOP to any text message you receive from us. If you unsubscribe, we may restrict or terminate your access to the Services. You consent that following a request to unsubscribe from text messages, you may receive one final text message from us confirming your request and/or providing an alternative to access your BeeCanvas Account. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM YOU CAN EMAIL US AT PRIVACY@BEECANVAS.COM. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE SERVICES.
FEES AND SUBSCRIPTION TERMS.
8.1 Free Trials. Any free trial or other promotion that provides access to the Platform must be used within the specified time of the trial or promotion. At the end of the specified period, your use of the Platform will expire and any further use of the Platform is prohibited unless you pay the Service Subscription Fee (as defined below).
8.2 Payment. We may charge for certain tools or features and functionality of the Services, and certain Accounts require payment of a subscription (e.g., Business Accounts and Corporate Accounts). You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You (or the Organization) must provide BeeCanvas with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or bank account information (“Payment Provider”), as a condition to signing up for Services for which we charge. With respect to any transactions made by you through the Services, your Payment Provider agreement governs your use of the designated payment method, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing BeeCanvas with your credit card number and associated payment information, you agree that BeeCanvas is authorized to immediately invoice your Account for all fees and charges due and payable to BeeCanvas hereunder and that no additional notice or consent is required. You agree to immediately notify BeeCanvas of any change in your billing address or the credit card used for payment hereunder. BeeCanvas reserves the right at any time to change its prices and billing methods, either immediately upon posting through the Services.
8.3 Third-Party Payment Processor. For online payments and/or automated clearing house (ACH) payouts within the United States, we use the payment services of Stripe (https://stripe.com/). We may use other third-party payment processors to process payments outside the United States. We do not process, record or maintain your credit card or bank account information and we will share transaction data with our payment services providers only to the extent necessary for the purposes of processing your payments, refunding such payments and dealing with complaints and queries relating to such payments and refunds. For more information on how payments are handled, or to understand the data security and privacy afforded such information, please refer to https://stripe.com/privacy.
8.4 Service Subscription Fees. You or your Organization will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you subscribe to paid Services and select your pricing package through your Account (each, a “Service Commencement Date”). Except as set forth in the Agreement, all Service Subscription Fees are non-refundable.
8.5 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at BeeCanvas’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from BeeCanvas that your subscription will be automatically renewed, you will have thirty days from the date of the BeeCanvas notice), by logging into your Account and going to the “Payment” page of your “Account Settings” page. If you do not wish for your Account to renew automatically, or if you want to change or terminate your subscription, please make this selection by logging into your Account and visiting the “Payment” page of your “Account Settings” page, or contact BeeCanvas at email@example.com. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize BeeCanvas to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if BeeCanvas does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that BeeCanvas may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
8.6 Taxes. The payments required under this Section 8 do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If BeeCanvas determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, BeeCanvas shall collect such Sales Tax in addition to the payments required under Section 8 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to BeeCanvas, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify BeeCanvas for any liability or expense BeeCanvas may incur in connection with such Sales Taxes. Upon BeeCanvas’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
8.7 Withholding Taxes. You agree to make all payments of fees to BeeCanvas free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to BeeCanvas will be your sole responsibility, and you will provide BeeCanvas with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
8.8 Disputes. You may dispute a payment through our payment processor, Stripe in accordance with Stripe’s terms and conditions available at https://stripe.com/legal.
THIRD-PARTY SERVICES. In addition to Open Source Software, the Services may contain links, integrations, or other access to third-party websites, applications, tools, or services (collectively, “Third-Party Services”). When you click on a link to a Third-Party Service, we may not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of BeeCanvas. BeeCanvas is not responsible for any Third-Party Services. BeeCanvas provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or their products or services. You access and use all Third-Party Services at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
INDEMNIFICATION. You agree to indemnify and hold BeeCanvas, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “BeeCanvas Party” and collectively, the “BeeCanvas Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any BeeCanvas Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations, including any violation of applicable laws, rules, or regulations resulting from your use of the Services or Your Content. BeeCanvas reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with BeeCanvas in asserting any available defenses. This provision does not require you to indemnify any of the BeeCanvas Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Services.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF BEECANVAS SERVICES IS AT YOUR SOLE RISK, AND BEECANVAS SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. BEECANVAS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) BEECANVAS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) BEECANVAS SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF BEECANVAS SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF BEECANVAS SERVICES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH BEECANVAS SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS BEECANVAS SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. BEECANVAS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BEECANVAS OR THROUGH BEECANVAS SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, BeeCanvas may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at BeeCanvas’s sole discretion. The provisions of this section apply with full force to such features or tools.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT BEECANVAS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD BEECANVAS PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL BEECANVAS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT BEECANVAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF BEECANVAS PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE BEECANVAS SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH BEECANVAS SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON BEECANVAS SERVICES; OR (5) ANY OTHER MATTER RELATED TO BEECANVAS’S SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A BEECANVAS PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A BEECANVAS PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A BEECANVAS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL BEECANVAS PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) SIX (6) MONTHS’ FEES PAID TO BeeCanvas BY YOU OR YOUR ORGANIZATION AS APPLICABLE; and (B) ONE HUNDRED U.S. DOLLARS ($100.00). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A BEECANVAS PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A BEECANVAS PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A BEECANVAS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3 User Content. BEECANVAS ASSUMES NO RESPONSIBILITY HEREUNDER FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BEECANVAS AND YOU.
13.1 Violations. If BeeCanvas becomes aware of any possible violations by you of the Agreement, BeeCanvas reserves the right to investigate such violations. If, as a result of the investigation, BeeCanvas believes that criminal activity has occurred, BeeCanvas reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. BeeCanvas is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Services, including Your Content, in BeeCanvas’s possession in connection with your use of Services, to (a) comply with applicable laws, legal process or governmental request, (b) enforce the Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of BeeCanvas, its Registered Users or the public, and all enforcement or other government officials, as BeeCanvas in its sole discretion believes to be necessary or appropriate.
13.2 Breach. In the event that BeeCanvas determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for the Services, BeeCanvas reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to BeeCanvas) that you have violated the Agreement;
(b) Delete any of Your Content provided by you or your agent(s) to the Services;
(c) Discontinue your registration(s) with any of the Services, including any Services or any BeeCanvas community;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which BeeCanvas deems to be appropriate.
TERM AND TERMINATION.
14.1 Term. The Agreement commences on the date when you accept it (as described in the preamble above) and remains in full force and effect while you use Services, unless terminated earlier in accordance with the Agreement.
14.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Services or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
14.3 Termination of Services by BeeCanvas. The Service Subscription Fee for any Service shall be non-refundable. BeeCanvas has the right to, immediately and without notice, suspend or terminate any Services provided to you, for any reason, including for non-payment or late payment of any Service Subscription Fee. You agree that all terminations for cause shall be made in BeeCanvas’s sole discretion and that BeeCanvas shall not be liable to you or any third party for any termination of your Account.
14.4 Termination of Services by You. If you want to terminate the Services provided by BeeCanvas, you may do so on our Website by logging into your Account and visiting the “Payment” page on the “Account Settings” page. If you wish to delete your Account you may notify BeeCanvas at firstname.lastname@example.org. Your notice should be sent, in writing, to BeeCanvas’s email address set forth in this Section. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 8.
14.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. BeeCanvas will not have any liability whatsoever to you for any suspension or termination, including for deletion of your data. All provisions of the Agreement which by their nature should survive, shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
14.6 No Subsequent Registration. If your registration(s) with or ability to access the Site or the Services is discontinued by BeeCanvas due to your violation of any portion of the Agreement or for otherwise inappropriate conduct, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to the Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, BeeCanvas reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
INTERNATIONAL USERS. The Site and Services may be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that BeeCanvas intends to announce such Services or Content in your country. Services are controlled and offered by BeeCanvas from its facilities in the United States of America. BeeCanvas makes no representations that the Site and Services are appropriate or available for use in other locations. Those who access or use Site or Services from other countries do so at their own volition and are responsible for compliance with local law.
DISPUTE RESOLUTION. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its principles of conflicts of law. In the event of any dispute in connection with this Agreement, the Parties shall first attempt to resolve such dispute informally within fifteen (15) business days using internal escalation procedures. In the event informal resolution is not achieved within the stated time period, the Parties shall have the right to extend the time period for informal resolution upon mutual written agreement. In the event an extension cannot be mutually agreed upon, the Parties reserve all rights under law or equity.
17.1 Electronic Communications. The communications between you and BeeCanvas may take place via electronic means, whether you visit the Services or send BeeCanvas e-mails, or whether BeeCanvas posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from BeeCanvas in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that BeeCanvas provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2 Release. You hereby release BeeCanvas Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a BeeCanvas Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
17.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without BeeCanvas’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.4 Force Majeure. BeeCanvas shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes, pandemics, or shortages of transportation facilities, fuel, energy, labor or materials.
17.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us at: BeeCanvas, Inc., 353 Kearny Street, email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.6 Governing Law. The AGREEMENT and any action related thereto will be governed and interpreted by and under the laws oF the State of CALIFORNIA, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and BEECANVAS 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 SAN FRANCISCO COUNTY, CALIFORNIA..
17.7 Notice. Where BeeCanvas requires that you provide an e-mail address, you are responsible for providing BeeCanvas with your most current e-mail address. In the event that the last e-mail address you provided to BeeCanvas is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Agreement, BeeCanvas’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to BeeCanvas at the following address: BeeCanvas, Inc., 353 Kearny Street, San Francisco, California 94108. Such notice shall be deemed given when received by BeeCanvas by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.10 Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by BeeCanvas are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer BeeCanvas products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.11 Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. This Agreement, and any contract between us, are only in the English language.
17.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.13 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.