Terms of Service
Last Modified: February 24, 2017
The following are the terms and conditions for use of the berkmansolutions.com (together with its affiliates and providers, "Berkman Solutions") online service or services (the "Service") between Berkman Solutions and you (either an individual or a legal entity that you represent as an authorized employee or agent). Please review this Terms of Service Agreement carefully. The Service may be used by individuals or organizations with capacity and authority to enter a contract.
BY COMPLETING THE LICENSE PURCHASE AND/OR USING THE SERVICE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY THIS TERMS OF SERVICE (THIS "AGREEMENT").
The offering of the Service is conditioned on your acceptance without modification of this Agreement.
You also agree to Berkman Solutions' Acceptable Use Policy, the current version of which is posted at https://www.berkmansolutions.com/acceptable-use-policy
"Account" refers to the billing account for the Service.
"Customer Data" means the data in tables or other files stored in your Account which is collected through use of the berkmansolutions.com website (the "Site").
"Deploy Code" means, collectively, the proprietary Berkman Solutions software that is installed on a web page for the purpose of displaying an application from your Account, together with any online documentation, and any fixes, updates and upgrades provided to you. The Deploy Code also refers to a URL, or the address of a web page, containing a link to the Service.
"Processing Software" means the proprietary software that displays your application, retrieves and renders your application data, and processes submissions to your activated forms.
"Servers" means the servers controlled by Berkman Solutions upon which the Processing Software and Customer Data are stored.
"Service" has the meaning ascribed to such term in the first paragraph of this Agreement.
"Software" means the Deploy Code and the Processing Software.
"Submissions" refers to the number of submissions from forms which are linked to tables or other files in your Account.
"Website" means the collection of pages containing the Deploy Code.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
To sign up for the Service, you shall provide Berkman Solutions with current, complete and accurate information as requested, including your e-mail address. You are solely responsible for any and all activities that occur under your Account. You agree to notify Berkman Solutions immediately upon learning of any unauthorized use of your Account or any other breach of security. From time to time, Berkman Solutions support staff may log into the Service under your Account in order to maintain or improve service, including without limitation assisting you with technical or billing issues. You hereby acknowledge and consent to such access.
Subject to the terms and conditions of this Agreement, Berkman Solutions hereby grants you a limited, revocable, non-transferable, non-exclusive license to use the Software.
Subject to the terms and conditions of this Agreement, you may remotely access the Service at berkmansolutions.com and other Servers provided by Berkman Solutions. Your use of and access to the Software and the Service is conditioned upon the following:
You shall not (i) copy, modify, adapt, translate or otherwise create derivative works of the Software, or permit others to do so; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except to the extent expressly permitted by the law in effect in the jurisdiction in which you are located, or permit others to do so; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Deploy Code or the Service; (iv) remove any proprietary notices or labels on the Deploy Code or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You shall use the Software and Service solely for your own use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You shall comply with all applicable laws and regulations in your use of and access to the Software and Service.
This license will terminate immediately if you fail to comply with the terms of this Agreement. Upon such termination, you shall destroy all originals and copies of the Deploy Code in your possession and cease any further use of the Service without the express written consent of Berkman Solutions.
The Service is offered to you to help you with the operation of your business. You agree not to use the products or services provided through or in connection with the Service to: (i) conduct any business that is unlawful, (ii) infringe or otherwise violate a third party's rights, (iii) collect information about third parties, without their express consent; or (iv) interfere with or disrupt the Service or Servers.
Berkman Solutions reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, from the Servers, at Berkman Solutions' sole and absolute discretion, without notice.
FEES AND SERVICES
The fees and services provided to you are set forth on your invoice from Berkman Solutions. Any additional or conflicting terms contained in any purchase order, standardized form or correspondence, which are in addition to or conflict with this Agreement, shall be null and void unless such terms and conditions are contained in an amendment to this Agreement duly executed by both parties hereto. Berkman Solutions reserves the right to suspend or terminate your access to the Service for your failure to remit payment in a timely manner. Berkman Solutions may change its fees and payment policies for the Service from time to time. The changes to the policy are effective after Berkman Solutions provides you with at least thirty (30) days' notice of the changes by posting the changes at https://www.berkmansolutions.com. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with your Account.
Amounts not paid by you to Berkman Solutions when due may bear interest at the lesser of (i) one and one-half percent (1.5%) per month, and (ii) the maximum rate permitted by applicable law.
You understand and agree that your Service fee consists of an annual fee even though we may show the equivalent monthly amount by dividing the annual fee by twelve (12). The annual fee applies to all Accounts even if your Account is inactive. Annual fees automatically recur on every annual anniversary of the opening of your Account, unless you properly close your account with Berkman Solutions. Annual fees are charged at the beginning of your annual cycle, beginning upon activation of your Account by Berkman Solutions and continuing annually thereafter.
Berkman Solutions may close Accounts at any time. If we close your Accounts at our election and you have not violated the terms of this Agreement, we will refund your annual fee for the Service on a pro rata basis through the end of the annual period, provided that we have not offered a new or replacement services within thirty (30) days. We will pay the refund at the end of the first full calendar month following closing the Accounts. If the account is closed within thirty (30) days of the end of the term no refunds are available for the remainder of that current term.
TERM; AUTOMATIC RENEWAL
You may cancel the Service at any time by sending written notice to Berkman Solutions. In the event, you cancel the Service prior to the expiration of your subscription, you will not be entitled to a refund in whole or in part for any charges or fees paid for the Service.
This Agreement, as may be amended from time to time by Berkman Solutions in its sole and absolute discretion, shall remain in full force and effect for so long as your Account is valid.
When you initially create an account, you may be asked whether or not you wish to receive marketing and other non-critical Service-related communications from Berkman Solutions and our partners from time to time. You may opt out of receiving such communications at that time or at any subsequent time by changing your preference under Account Information. Free Berkman Solutions account users will not have the option of opting out unless they terminate their free account or upgrade to a paying Account. Please be aware that because the Service is a hosted online application, Berkman Solutions occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you are or become a paying customer of the Service, you agree that Berkman Solutions can disclose the fact that you are a paying customer and the edition of the Service that you are using.
You acknowledge that Berkman Solutions may use third party services, software, or technology in order to provide the Service. Berkman Solutions is not liable under any circumstances for injury or damages caused by the negligence, misconduct, gross negligence, or intentional acts of any third party.
ACCOUNT INFORMATION AND DATA
Berkman Solutions does not own any Customer Data. You, not Berkman Solutions, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Berkman Solutions shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Berkman Solutions reserves the right to withhold, remove and/or discard Customer Data without notice for any breach of this Agreement, including, without limitation, your non-payment. Upon termination of your Account, your right to access or use Customer Data immediately ceases, and Berkman Solutions shall have no obligation to maintain or forward any Customer Data.
You are prohibited from storing, transmitting, or entering information that personally identifiable information subject to United States or European Union law, such as, without limitation personally identifiable medical information. You must immediately immediately remove any such information from the Account. Storing or failure to remove such information constitutes a breach of this Agreement.
Berkman Solutions shall not be liable for taxes and other governmental fees and assessments to be paid which are related to purchases made from you or from the Server. You agree that you shall be solely responsible for all taxes, fees, and assessments of any nature associated with products or services sold through the use of or with the aid of the Services.
SECURITY AND STORAGE OF INFORMATION
ENHANCING AND MODIFYING THE SERVICE
Berkman Solutions reserves the right to enhance, upgrade, or modify the Service with or without notice to you. Berkman Solutions shall not be liable to you or any third party should Berkman Solutions exercise its right to enhance or modify the Service.
You shall indemnify, hold harmless and defend Berkman Solutions, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Berkman Solutions or any of its officers, directors, employees, agents, affiliates, and third party providers, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Berkman Solutions or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of this Agreement, (ii) your negligence or misconduct in connection with the Service, or (iii) your violations of applicable law in connection with the Service.
THIRD PARTY TERMS
If you provide access to your Account or any portion thereof to any third party or use the Service to collect information from or on behalf of any third party (a "Third Party"), whether or not you are authorized to do so by Berkman Solutions, these Third Party Terms shall apply to you.
You shall ensure that each Third Party abides by the terms of this Agreement. Any information of a Third Party that is considered confidential information of such Third Party shall be treated as confidential by you and shall not be disclosed to any other third party. Each Third Party shall be considered a customer of you, and not a customer of Berkman Solutions; provided, however, that Berkman Solutions reserves the right to enforce the terms of this Agreement against such Third Parties and you shall provide that Berkman Solutions is a third party beneficiary with respect to your agreement with the Third Party.
Berkman Solutions makes no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, you shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Berkman Solutions, the Service or the Software, or use thereof. You shall indemnify, hold harmless and defend Berkman Solutions, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against Berkman Solutions or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Berkman Solutions, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) any representations and warranties made by you concerning any aspect of the Service or the Software to Third Parties; (ii) any claims made by or on behalf of any Third Party pertaining directly or indirectly to your use of the Service or the Software; (iii) violations of your obligations of privacy to any Third Party; and (iv) any claims with respect to acts or omissions of Third Parties in connection with the Service or the Software that would otherwise be a breach of this Agreement by you.
DISCLAIMER OF WARRANTIES
Berkman Solutions does not warrant or represent that the use of the Service will be correct, accurate, timely or otherwise reliable. You specifically agree that Berkman Solutions shall not be responsible for unauthorized access to or alteration of the Customer Data or data from the Website.
THE SERVICE AND THE SOFTWARE ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY BERKMAN SOLUTIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE AND THE SOFTWARE INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. Berkman Solutions DOES NOT WARRANT THAT THE SERVICE AND/OR THE SOFTWARE WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT ERRORS WILL BE FIXED, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
BERKMAN SOLUTIONS SHALL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST REVENUE, PROFITS OR DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF BERKMAN SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOREGOING PARAGRAPH.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.
Berkman Solutions' cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the total fees paid by you to Berkman Solutions for use of the Service.
PROPRIETARY RIGHTS NOTICE
Title, ownership rights, and intellectual property rights in and to the Software, Berkman Solutions' confidential information, and any other Berkman Solutions information and materials, and the Service, shall remain with Berkman Solutions. Berkman Solutions reserves all rights not expressly granted to you in this Agreement.
You hereby grant Berkman Solutions the right to use your trade name and/or your corporate logo in connection with Berkman Solutions' promotional materials and/or website to identify you as a customer of Berkman Solutions.
You and Berkman Solutions (each a “Disclosing Party” and “Receiving Party”) will have access to information that is confidential to the other party ("Confidential Information"). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Berkman Solutions' Confidential Information shall include, without limitation, the Service, Software, documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, licensee names, prospective licensee names, the terms and pricing under this Agreement, and the results of any comparative or other benchmarking tests with respect to the Service or the Software, in each case regardless of whether such information is identified as confidential. Confidential Information includes all information received from third parties that you are obligated to treat as confidential and oral information that is identified by Berkman Solutions as confidential. Confidential information include your information used in the course of your license of the Service.
This obligation of confidentiality does not apply to any information that is or becomes a part of the public domain through no act or omission by the disclosing party, was in your lawful possession prior to the disclosure without any restriction on disclosure, or is independently developed by the Receiving Party without use of or reference to such Confidential Information. If the Receiving is required to disclose such Confidential Information to any court or government authority, then the Receiving Party agrees to provide the Disclosing Party with sufficient written notice prior to disclosure to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. Such obligations of confidentiality shall survive any termination of this Agreement indefinitely.
Both parties agree, unless required by law, (i) not to make Confidential Information available in any form to any third party except to employees or agents who are required to know such Confidential Information to allow the party to exercise its rights under this Agreement, and (ii) not to use the Confidential Information for any purpose other than in the performance of this Agreement.
You shall not disclose the results of any performance tests of the Software or Service to any third party without Berkman Solutions' prior written approval. Both parties acknowledge and agree that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this section of the Agreement and that such breach would cause irreparable harm to the Disclosing Party, therefore the Disclosing Party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law, in equity and/or under this Agreement. No confidentiality provision in this Agreement shall alter in any way the limitations and exclusions of liability and remedies provided for in this Agreement.
U.S. GOVERNMENT RIGHTS
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or any related documentation, shall be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
From time to time, Berkman Solutions may offer access to beta software to interested parties. Beta software is software that is not officially released, and may contain problems or bugs, and is not warranted by Berkman Solutions in any way. Any beta services are provided "as is" for evaluation and testing purposes only, and beta users are advised to not rely on the features or performance of such services for any reason. By registering for and using beta services, you acknowledge that you are accessing a pre-release evaluation of such services and that such services and/or any products and services offered in connection therewith may contain bugs, may not operate properly or perform all intended functions, may interfere with the functioning of other applications, and may cause errors, data loss or other problems. Berkman Solutions shall not be liable for any damages, including but not limited to direct, indirect, incidental or consequential damages or for loss of data, profits, or revenue incurred by you or third parties.
As a beta user, you agree that you shall promptly report to Berkman Solutions any failure of the applicable beta service to perform in accordance with applicable documentation, and will provide such other information relating to the beta service as Berkman Solutions may reasonably request. At Berkman Solutions' request, you will provide a written evaluation of the beta service in a form reasonably requested by Berkman Solutions. You grant Berkman Solutions an unrestricted, royalty-free right to use all such feedback for purposes of marketing, public relations, correcting and/or enhancing the beta service and developing additional products and services.
Berkman Solutions' beta programs have a fixed duration. At the end of a beta program you may be offered the opportunity to convert your beta account to a regular Account. Beta accounts that are not converted to a regular Account are deleted at the end of the beta program and all Customer Data is lost. You agree that if you do not convert your beta account to a regular Account, you will remove all Berkman Solutions Software and Deploy Code from your websites immediately at the conclusion of the beta program.
MONEY BACK GUARANTEE
From time to time Berkman Solutions may offer a money back guarantee for a specified period of time. You must terminate your subscription following the procedure in the “Termination” section of this Agreement. We will refund the then current subscription fee within sixty (60) days.
The guarantee applies solely to fees charged for subscription to the Service during the then current period. Fees for subscriptions for prior periods are not eligible for refund under this guarantee. Fees for professional services are not eligible for refund under this guarantee.
The money back guarantee expires on the sooner of thirty (30) days from the date the invoice or the start of any professional services that we perform at your request.
Within thirty (30) days of receipt and verification of your voluntary termination, Berkman Solutions will provide an extract of your Customer Data stored in the Service to you in a format and means in its sole discretion. A Berkman Solutions representative will delete your Account and all of your Customer Data. You must also remove the Deploy Code from your Website, if any. You will be charged for the billing period in which you terminate your Account according to the terms of this Agreement. If you do not formally request the termination of your Account, you will continue to be billed for the Service.
This Agreement and the license granted herein will terminate automatically if you fail to comply with any of these terms and conditions (“involuntary termination”). Upon involuntary termination, you must remove the Deploy Code and all other Berkman Solutions materials and information from any internet access point. Berkman Solutions shall have the right to charge you for any requested Berkman Solutions reserves the right to terminate this Agreement and your use of the Service for any reason or no reason.
Under no circumstance is Berkman Solutions liable to refund any fees or charges for any voluntary or involuntary termination, except as expressly provided in the “Money Back Guarantee” or the "Fees and Services" sections of this Agreement.
MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
Berkman Solutions reserves the right to change or modify any of the terms and conditions contained in this Agreement, the Service, or any policy governing the Service, at any time, by posting the new agreement to the Site. You are responsible for regularly reviewing the site. Your continued use of the Site or the Services shall constitute your acceptance of any such changes and your agreement to be legally bound thereby.
MISCELLANEOUS; APPLICABLE LAW AND VENUE
Berkman Solutions shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control, including service interruptions caused by third party providers. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between the parties concerning its subject matter, and supersedes all prior agreements and representations between them. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable, and all other provisions of this Agreement shall remain in full force and effect. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by you, and any such attempted assignment shall be void and of no effect without the advance written consent of Berkman Solutions, such consent not to be unreasonably withheld, conditioned or delayed. This Agreement shall be binding upon and will inure to the benefit of the parties and their respective heirs, successors, permitted assigns, and legal representatives. This Agreement shall be governed by and construed in accordance with the laws of the state of Texas without regard to its conflict of laws principles. You agree, in the event any claim or suit is brought in connection with Berkman Solutions' provision of the Services to you, to submit to the jurisdiction of the state of Texas, and agree to the courts of Harris County, Texas as the appropriate forum.
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