Adobe Business Catalyst (CoreCMS) End User Agreement
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF BUSINESS CATALYST'S ONLINE SERVICE (THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT PROCEED AND MAY NOT USE THE SERVICE.
As part of the Service, Business Catalyst will provide you with use of the Service, including a browser interface, plug-in into some 3rd party products, web services access and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Business Catalyst website incorporated by reference herein, including but not limited to Business Catalyst's privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.
1. Privacy & Security; Disclosure
Business Catalyst's privacy policies may be viewed at http://www.businesscatalyst.com/privacy. Business Catalyst reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users when they initially log in, will be asked whether or not they wish to receive marketing, weekly reports and other non-critical Service-related communications from Business Catalyst from time to time. They may opt out of receiving such communications at that time or at any subsequent time by choosing the unsubscribe link from such communication. Note that because the Service is a hosted, online application, Business Catalyst 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.2. License Grant & Restrictions
Business Catalyst hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Business Catalyst and its licensors.You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Business Catalyst immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Business Catalyst immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Business Catalyst user or provide false identity information to gain access to or use the Service.4. Account Information and Data
Business Catalyst will make best endeavours to backup Customer Data every 24 hours. Business Catalyst will not at any time retrieve Customer Data if it is accidentally or otherwise delete by you. In the unlikely case where Customer Data is lost because of software or hardware malfunction, Business Catalyst will endeavour to restore to the most recent successful backup. Business Catalyst takes no responsibility whatsoever whether implied or otherwise for the quality or frequency of Customer Data backup.Business Catalyst does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Business Catalyst, shall have sole responsibility for the input accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Business Catalyst shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Business Catalyst will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Business Catalyst reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Business Catalyst shall have no obligation to maintain or forward any Customer Data.
During your use of the Service, Business Catalyst will archive certain information as well as keep some usage and statistical information. In all cases Business Catalyst reserves the right to delete archived, usage and statistical data irretrievably once it is older than three (3) months.
5. Intellectual Property Ownership
Business Catalyst alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Business Catalyst Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Business Catalyst Technology or the Intellectual Property Rights owned by Business Catalyst. The Business Catalyst name, the Business Catalyst logo, and the product names associated with the Service are trademarks of Business Catalyst or third parties, and no right or license is granted to use them.6. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Business Catalyst and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Business Catalyst does not endorse any sites on the Internet that are linked through the Service. Business Catalyst provides these links to you only as a matter of convenience, and in no event shall Business Catalyst or its licensors be responsible for any content, products, or other materials on or available from such sites. Business Catalyst provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the setup and ongoing fees and charges, and billing terms in effect at the time a fee or charge is due and payable. The amount payable will be equal to the setup and ongoing charges related to your plan plus any excess number of total User licenses requested times the per User license fee currently in effect. Payments may be made, in advance, monthly, half-yearly or annually, consistent with the Initial Term (the first License Term), or as otherwise mutually agreed upon. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide Business Catalyst with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorised License Administrator may add user licenses by executing an additional written Order Form. Added user licenses will be subject to the following: (i) added user licenses will be coterminous with the pre-existing License Term (either Initial Term or renewed License Term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; (iii) where monthly License Terms are in-acted user licenses added in the middle of a billing month will be charged in full for that billing month; and (iv) where half yearly and yearly license terms are in-acted additional user licenses will be charged pro-rata with a minimum charge of one month. Business Catalyst reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by email. All pricing terms are confidential, and you agree not to disclose them to any third party. Any and all fees paid in advance are not refundable if you cease to use the Service.8. Limits and Excess Fees
The maximum disk storage space provided to you at no additional charge is dependent on the plan that you choose. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees.The maximum amount of incoming traffic to your website is 100GB per month. Outgoing traffic from your website is not chargeable unless the ratio of incoming to outgoing traffic from your website exceeds 1:10 (i.e. 10GB inbound and 100GB outbound). Business Catalyst reserves the right to negotiate an increased monthly fee effective from the next billing period should this ratio be exceeded.
The maximum number of email marketing broadcasts you may undertake per month is 10,000 if email marketing is part of your plan. If you require a larger broadcast per month, you will be charged the then-current email marketing fees.
The maximum number of free SMS messages that you can use is dependent on the plan that you choose. You will be charged for excess SMS messages sent in the next billing period at the then-current per SMS message fee.
Any failure by Business Catalyst to so notify you shall not affect your responsibility for such additional storage and traffic charges. Business Catalyst reserves the right to establish or modify its general practices and limits relating to storage of and traffic relating to Customer Data.
9. Billing and Renewal
Business Catalyst charges and collects in advance for use of the Service. Business Catalyst will automatically renew the License Term and bill your credit card or issue an invoice to you (a) every month for monthly licenses, (b) every 6-months for half-yearly licenses, (c) each year on the subsequent anniversary for annual licenses, or (d) as otherwise mutually agreed upon. The renewal charge will be equal to the then-current plan fee plus any excess User licenses times the user license fee in effect during the prior term, unless Business Catalyst has given you at least 30 days prior written notice of a fee change, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Business Catalyst's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.You agree to provide Business Catalyst with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorised billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Business Catalyst reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless Business Catalyst in its discretion determines otherwise: (i) entities with headquarters in United States will be billed in U.S. dollars ("U.S. Customers"); (ii) entities with headquarters in Australia will be billed in Australian dollars; and (iii) all other entities will be billed in U.S. dollars, Euros or local currency (if available) ("Non-U.S./Australia Customers").
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
10. Non-Payment and Suspension
In addition to any other rights granted to Business Catalyst herein, Business Catalyst reserves the right to suspend or terminate this Agreement and your access to the Service, if your account becomes delinquent (falls into arrears). Access to the Administration interface will be suspended immediately if an invoice is delinquent and is re-enabled when such delinquent invoices are paid in full. Business Catalyst reserves the right to suspend or terminate your public website if delinquent invoices are 60 days overdue. Delinquent invoices are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or Business Catalyst initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Business Catalyst may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.Business Catalyst reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Business Catalyst has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
11. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. The Initial Term (the first License Term) will be as you elect during the online subscription process or as otherwise mutually agreed upon. You are obligation to pay for the service begins from the Effective Date and invoices must be paid according to the then current payment terms. Access to the Administration interface will be suspended immediately if an invoice is delinquent. Upon the expiration of the Initial Term, this Agreement will automatically renew for a successive License Term equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Business Catalyst's then current fees, and payable in advance. Either party may terminate this Agreement or reduce the number of User licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least fourteen (14) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), Business Catalyst will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Business Catalyst has no obligation to retain the Customer Data, and may delete such Customer Data irretrievably, more than 30 days after termination.12. Termination for Cause
Any breach of your payment obligations or unauthorised use of the Business Catalyst Technology or Service will be deemed a material breach of this Agreement. Business Catalyst, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Business Catalyst may terminate a free account at any time in its sole discretion. You agree and acknowledge that Business Catalyst has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.13. Subscribing to Extra Services
As part of the Service, you may be able to subscribe to extra features such as real-time alerts via SMS and email marketing. Each service may have a fixed monthly charge as well as data usage charges. In the case where usage charges apply, these will be calculated automatically and billed at the end of each calendar month or as mutually agreed based on the then-current Business Catalyst pricing.14. Service Level Agreement
Business Catalyst will provide a service level of 99.98% uptime per month excluding scheduled downtime on average of 1 hour per week for system maintenance and upgrades. The service level comprises of your ability to access Customer Data via a web-browser interface and any other reliability, timeliness, quality, suitability, truth, availability or completeness of the Service is not covered in this agreement. Scheduled downtimes are set between the hours of 2000 to 0600 (AEST). In the unlikely event where Service Level Agreements are not met for any given month, a pro-rota rebate will be applied against the next License Term period. Normal billing will resume from the following period. No rebate applies nor is payable if no future billing period exists.Business Catalyst will use best endeavours to ensure the delivery of real-time alerts. Business Catalyst guarantees to send real-time alerts instantly but cannot guarantee their delivery by 3rd party providers and aggregators.
Email marketing broadcasts will be undertaken at any-time during the date specified for the broadcast and may take up to 24 hours to deliver from commencement of the broadcast. Email marketing broadcasts cannot be sent unless approved by Business Catalyst and may take up to 6 hours for approval.
15. Marketing
You grant Business Catalyst the right to display your brand including company name and logo on its website and other marketing communications.16. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Business Catalyst represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Business Catalyst help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.17. Mutual Indemnification
You shall indemnify and hold Business Catalyst, its licensor and each such party's parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Business Catalyst (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defence and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Business Catalyst of all liability and such settlement does not affect Business Catalyst's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.Business Catalyst shall indemnify and hold you and your parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Business Catalyst of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Business Catalyst; provided that you (a) promptly give written notice of the claim to Business Catalyst; (b) give Business Catalyst sole control of the defence and settlement of the claim (provided that Business Catalyst may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Business Catalyst all available information and assistance; and (d) have not compromised or settled such claim. Business Catalyst shall have no indemnification obligation, and you shall indemnify Business Catalyst pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
18. Disclaimer of Warranties
EXCEPT FOR WHAT IS STATED IN SECTION 14 BUSINESS CATALYST AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT EXCEPT FOR WHAT IS STATED. BUSINESS CATALYST AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BUSINESS CATALYST AND ITS LICENSOR'S.19. Internet Delays
EXCEPT FOR WHAT IS STATED IN SECTION 14 BUSINESS CATALYST'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BUSINESS CATALYST IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.20. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSOR'S BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSOR'S HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.21. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.22. Local Laws and Export Control
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Australia, Switzerland and the European Union. The user of this site ("User") acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Australia, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Australian, Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
Business Catalyst and its licensor's make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America or Australia, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or Australian law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorised by the United States or Australia for such purposes.
