Terms of Service
Welcome to bCommunities! bCommunities is an online business network specifically designed to foster secure and accountable collaboration within businesses and with their partners. There are many ways to use the “Service”. In this “Terms of Service” (TOS), bEcosystems, Inc., the company behind the bCommunities service, is referred to as us, we or our. When an individual or entity is using the Service, they are referred to as you or your. In some cases, you may be interacting with users of the Service outside of your organization, who have their own account, in that case the term “Business Partner” is used to identify the individual or entity.
By using the bCommunities “Service”, you are agreeing be bound by the following conditions and terms. The date you start using the network is the date this TOS is effective (“Effective Date”). If you are entering into this TOS on behalf of a company or some other legal entity, you represent and warrant that you have the authority to bind that entity to this TOS, and that you are authorized to use the Services. If your agreement is on behalf of an entity, the terms “you” or “your” refer to that entity and its affiliates.
bEcosystems, Inc. reserves the right to update and change these Terms of Service without notice.
Violation of any of the terms below may result in the termination of your account
b. Entities providing services to you through us are referred to as a “Third Party,” and their services as “Third Party Services.”
c. We provide you with several different membership options. You choose your membership option from the Settings>Checkout menu option within the app at any time after account creation. Whether you are able to choose a particular membership option will depend on your membership status, the selections you make during registration and subsequent changes to your membership selections.
d. Because the Service is designed to facilitate collaboration, individuals or entities who are part of your business are referred to as “Your Group.” The individuals or entities who are not officially part of your business but with whom you connect using the Service are referred to as “Business Partners.” You select the members of Your Group and your Business Partners. We do not endorse, warrant or guarantee the qualifications of any of these individuals or entities.
e. There are certain circumstances in which we do not give our consent for you to use our Services, even if you tick “I agree” or start using it. You may not use our Services if you are our competitor or for the purposes of developing products or services similar to ours.
f. The Services may contain advertising in its Light or free membership options. This advertising is based on advertising technology provided to us by advertisers. While we will not use Confidential Information, as defined in this TOS, to display advertising, nor allow our advertisers to gain access to your Confidential Information, it may be based on information stored on your computer, or your use of the Internet in general. We are not responsible for the privacy practices of these advertisers, nor the products and/or services they advertise.
2. Our Responsibilities
a. We agree to provide the products and Services set out on the order page at the time you accept this TOS. “Services” means the online, Internet based applications, platforms, desktop and mobile apps and functionality provided by us, or our third party vendors on our website. Our website describes aspects of certain Services you may select. The services you choose on our website are referred to as the “Package.” Depending on the Package you choose, not all features of the Service will be available for your use.
b. We will use reasonable efforts to ensure that the Services set out on our website are available during the Term. However in certain circumstances we may be unable to continue to provide the Services to you. We will not be in breach of this TOS if we are unable to provide the Services to you (i) because a Third Party stops making key aspects of the services available to us; (ii) a law, regulation or order prohibits us from providing the Services; (iii) circumstances beyond our reasonable control make it cost prohibitive for us to continue to provide the Services to you; (iv) an “alpha” or “beta” period ends; (v) a trial period ends; or (vi) at any time prior to a Renewal Term.
c. The Services are designed to facilitate the average amount of collaboration we anticipate to be used by you, Your Group, and Business Partners at the level chosen by you when you agreed to this TOS, or you have selected subsequent to the Effective Date. The Services may be subject to usage limits on disk storage space, bandwidth transmissions, and data exchanges. If we determine that your use of the Services exceeds the limits placed on them by your Package, we will provide you with written notice, and you will have 5 days to upgrade to a Package that provides for more usage (Upgrade). If you fail, or refuse, to Upgrade we have the right to put restrictions on your use of the Services to ensure that you meet our usage criteria.
d. Our website may contain descriptions of our standard support for the Services. This support is provided as part of the Services. At your request, we may agree to provide support to you other than that necessary to support the Services. This support is provided at our discretion, and will be charged at our standard consulting rate.
e. We may make non-material changes to the Service at our discretion. For the purposes of this sub-paragraph only, non-material changes means changes that, as a whole, would not reasonably be expected to affect the use of the Services for the majority of our customers. If we determine that aspects of the Services pose a material risk of harm to our network, we may make material changes to them. We will use reasonable efforts to determine whether these changes will alter our Services, and attempt to mitigate this change. You may not terminate this TOS even if these changes are material changes.
3. Your Responsibilities
a. In your use of the Services, a level of cooperation and civility is required. While we have endeavored to set out specific instances in which cooperation is required, you agree to use the Services in a civil, cooperative and businesslike manner and abide by our Collaboration Guidelines set out on our website from time to time.
b. You have the opportunity to use the Services in many different ways. We have provided you with instructions that guide you through the configuration and use of the Services (Services Manual and Knowledge Base). It is your obligation to review the Services Manual and Knowledge Base and understand how different uses of the Services and their settings may affect your use of the Services and the confidentiality of your data and that of Your Group and Business Partners. You acknowledge that the initial settings of the Service may not represent the best or most secure settings for the Service. You release us from any liability for disclosure of Your Data, or that of Your Group and/or Business Partners based on your failure to understand or configure the Services in a way that would have increased the confidentiality or security of that data.
c. You are responsible for legal compliance in your use of the Services. You will form relationships within Your Group and with your Business Partners in which confidential information may be exchanged and business advice given. It is important that you secure professional advice and counsel prior to using the Services to ensure that you are not jeopardizing your business and that you are in compliance with laws, regulations and business norms for your business are complied with.
d. You are required to respect the intellectual property of others. You may not use the Service in a way that infringes the intellectual property rights of any other individual or entity. If we request it, you are required to provide us with evidence of your authorization to use the Services in the manner in which you have been using them. If we determine, or are informed, that you use of Services is not authorized, you agree to cooperate with us to establish that your use is in fact authorized.
e. You are responsible for the safekeeping and maintenance of the confidentiality of your username and password. Services will be provided to anyone using your username and password, and we have no responsibility for any misuse of the Services in this case, even if you have not authorized such a use.
a. Between you and Your Group.
You are ultimately responsible for your use of the Services even if you are using them as part of Your Group. It is your obligation to honor the requirements Your Group places on the use of the Services. However, we have no responsibility to enforce these rules, nor are we liable if you fail to follow them, even if our refusal to enforce those rules may lead to harm or liability to Your Group.
b. Between you and your Business Partners and between Your Group and its Business Partners.
When you or Your Group approach Business Partners and invite them to become users of the Service you each agree that a relationship is present in which an invitation to use the Services will be acceptable and not an unwelcome or illegal solicitation. You and Your Group agree to only share with, and receive from, Business Partners information that is within the scope of each of your agreed upon relationship. You and Your Group expressly understand that we have no control over information exchanged using the Services, and that this information may be used outside the Services, even such a use is restricted by you, Your Group, your Business Partners, or by law.
c. Obligations of good faith and fair dealing
Each of you, Your Group and Business Partners covenants and agrees to act with good faith and fair dealing in the use of the Services, posting of Feedback, as defined in this TOS, and exchange and use of information.
The relationship between you and Your Group on the one hand, and your Business Partners on the other, is one of independent contractors. To the extent any business relationship is created, each agrees that the Services performed shall be as an independent contractor. Nothing in this TOS shall be deemed to create a partnership, joint venture, agency, or employer-employee relationship between you and your Business Partner, or Your Group and its Business Partner, or between any of those entities and us.
a. The Services may be used to collaborate on many different types of information. Information that you place on the Services, is “Your Information.” Information that you exchange with Your Group is “Group Information.” Information you collect from Business Partners, or that Business Partners place on the Service and share with you or other members of your Group is “Partner Information.” Collectively, this information is referred to as “Information.”
b. It is important to understand that Information may not be kept confidential by members of Your Group or your Business Partners. An essential element of the Service is collaboration. You control how Your Information is shared. Based on the settings you choose, and ways you use the Service, Your Information may be shared within Your Group and Business Partners. Once Your Information is shared, you cannot control its further dissemination. For example, if you share Your Information with a Business Partner, the Business Partner may store Your Information in its account, download it to a local computer, or share it with other users of the Service with whom you have no relationship. You may not be able to recover this information, and we have no obligation to assist you in doing so.
c. You always have the ability to download Your Information through the use of our Reports section or through your email client as notifications are sent. Upon expiration or termination of this TOS, Your Information will be scheduled for deletion. We agree not to delete Your Information for thirty days following the expiration or termination of this TOS. However, after that period of time, Your data may be deleted without notice to you.
d. We use commercially reasonable methods to backup Your Information. Our backups are designed for disaster recovery. This means that if we are required to restore your data from backup, it may not be in the format in which you placed it on the Service. Our only obligation to you when restoring Your Information is to restore it in the form in which we maintain it. We strongly suggest that you backup Your Information to a source other than the Service. Our liability for failure to backup Your Information is limited by the paragraph entitled “Limitation of Liability.” This Agreement does not create any responsibility on our part to store, backup, retain or grant access to any information or data for any period other than as set out in this subparagraph.
e. Monitoring communications
i. You are solely responsible for ensuring that Your Information complies with this TOS and relevant laws. We may, at our sole discretion, take any action we deem necessary to ensure that you or members of Your Group comply with this TOS and the law.
ii. While Your Information might only be shared with members of Your Group and Business Partners chosen by you, your supervisors (You Group account users with roles of Administrator or Account Owner) will be able to review your communications and other Information you post to your account, whether it’s shared with others or not.
f. Disclosure of Your Information
i. Law Enforcement. We may disclose Information, including Confidential Information, in order to comply with a court order, subpoena, summons, discovery request, warrant, regulation, or governmental request. We assume no obligation to inform you or members of Your Group that Information has been so provided, and in some cases may be prohibited by law from giving such notice. We may also disclose such Information when it is necessary for us to protect our business, or others, from harm.
ii. Civil Litigation. We have no obligation to provide Your Information or Group Information to third parties as part of any pending or filed litigation matter. If we agree to do so, it will be at our hourly consulting rate and you may be required to reimburse us for our attorneys’ fees.
iii. We have implemented procedures to comply with notices of copyright infringement presented to us under the “Digital Millennium Copyright Act” or “DMCA.” You are required to take action on our DMCA notices to you within the time period set out in them. Failure to do so will result in termination of your ability to use the Service, without a refund of Fees paid. You agree to indemnify and hold us completely harmless for the actions we take related to DMCA notices.
iv. We have no obligation to provide Your Information to third parties. Please see the paragraph entitled “Civil Litigation” for more information.
g. Third Parties may have reserved the right to make changes to their services. We will use reasonable efforts to determine whether these changes will alter our Services, and work with the Third Parties to mitigate this change. However, we have no liability for these changes and you may not terminate this contract even if these changes are material changes.
6. Third Parties
a. Third Party Services may have an additional charge. You are not required to purchase Third Party Services to use the Services. It is important that you understand how Third Party Services affect the Services as a whole and Your Information in particular. Third Party Services may have contracts that differ substantially from this TOS, and we are not liable for the impact of these differences. In particular, we do not warrant or support Third Party Services.
b. When you purchase Third Party Services, you acknowledge that Your Information will be shared with the providers of the Third Party Services. We are not responsible for Your Information when it is shared in this manner.
c. Third Parties may have reserved the right to make changes to their services. We will use reasonable efforts to determine whether these changes will alter our Services, and work with the Third Parties to mitigate this change. However, we have no liability for these changes and you may not terminate this contract even if these changes are material changes.
7. Information and Feedback
a. We require accurate information about you in order to perform our obligations under this TOS. It is your initial, and continuing obligation, to provide us with accurate and up-to-date information. We are not liable for any errors or issues that arise from your failure to do so.
b. The individual or entity set out as Account Owner in our Services is the owner of the account. Upon learning of an ownership dispute, we may lock the account, prohibit transfer of the account to another entity, and require judicial resolution of the ownership dispute.
c. If you administer the account on behalf of another individual or entity, you agree that you will do so on a good faith basis. You agree to indemnify us against all losses and liabilities we sustain should you administer the account in ways that are adverse to a member of Your Group or Business Partner.
d. The Service provides the opportunity to provide comments, observations and ratings of members of Your Group and Business Partners (Feedback). You agree that any Feedback you provide, or that is provided on your behalf, is based on actual experience, is entirely truthful, and is not defamatory, libelous or designed to harass. The indemnification section applies to your obligations to indemnify us and our Third Party Vendors based on your Feedback.
e. Members of Your Group and Business Partners also have the opportunity to provide Feedback about you. This Feedback may, or may not, be visible to you, or Your Group. You have no opportunity to comment on or challenge this Feedback. You expressly understand and agree that we have no liability for Feedback and you agree to release us from any liability therefor.
f. You may be offered the opportunity to provide suggestions to us on how to improve the Services. When you provide us with those suggestions, you grant to us a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services, or any of our other businesses, this feedback.
8. Directory and website Information
a. When you register for the Services, certain information you provide us might be included in a public directory of our users (Directory Information) or on our website. The information that might be included without your express consent is your Group Name and Company Logo. If you prefer not to have that information included in our directory or website, let us know by sending an email to email@example.com. Otherwise, you agree that we may publish the information to the general public, and that we retain ownership of the compilation of information we publish.
b. If after your initial consent to our use of this information, you choose to stop participating, you may make this choice by sending us an email to firstname.lastname@example.org. Your choice will be honored during our next revision of the directory or website.
a. The security of the Service and Information is maintained according to generally accepted industry standards. If we determine that your use of the Service endangers the security of our network, or any of our other customers or third parties, you are required to cooperate with us in a security review. If we determine that your use of the Service has in fact compromised the security of the items set out in this paragraph, you will be charged for any security remediation. Your ability to use the Services may be suspended during this time.
b. You are required to implement industry standard methods to maintain the security of the Service and Information. This includes, but is not limited to, only uploading data, software and other items that you have determined are free of security issues.
c. Use the email address email@example.com to report security breaches to us. It is your obligation to report any security breaches in the Service.
10. Free Use and Payment
a. You may use certain features of the Service at no charge as set out on our website through our Light Edition account. We reserve the right to terminate the free use of the Services at any time by providing you with 10 days written notice.
b. Upon payment of the fees set out on our website (Fee), we agree to make the Services you have chosen available to you. You pay for the Premium Services in advance (Service Credit) and the Fee is deducted from the Service Credit. Fees will be deducted from your Service Credit as set out on our website. Our obligation to provide these Services to you is contingent on your timely payment of the Fees and continued compliance with this TOS.
c. Any upgrade in plan levels, will result in the new rate being charged at the time of upgrade in a prorated form. There will be no prorating for downgrades in between billing cycles.
d. Services are purchased as subscriptions and may only be accessed the number of members of Your Group selected by you during sign up. You may add additional members to Your Group by paying an additional Fee. The Term of the subscription for these additional members will be the same as your Term.
e. Each member of Your Group has a unique identity. These identities may not be shared or used by more than one member of Your Group.
f. Your credit card will be automatically charged for the Service Credit charges, bandwidth or storage overages, and any other charges set out in this TOS.
g. It is your responsibility to keep an accurate and valid credit card on file with us. We have no liability to you or any third party should your access to the Services be disrupted by your failure to provide us with a valid credit card, or should the charges on your credit card be declined.
h. If your credit card is declined, or you fail to pay the Fees, the Service will be suspended. This means that neither you, nor Your Group, will have access to the Service or Information. You must pay all past due Fees, and any other charges, before we will restore access to the Service.
i. If you feel that we have charged your credit card in error, or otherwise made an error in the Fees, it is your obligation to provide us with written notice of this fact and provide us with enough information for us to investigate the dispute. If you do not provide us with this notice within thirty days from the date of the charge, or when a Fee is due, you waive your right to dispute any charge. We agree not to charge you for that portion of the Fee or charge in dispute. In return, you agree to pay those charges and Fees that are not in dispute, and only use this paragraph in good faith. If you routinely present us with bill disputes, we may suspend the Services while we investigate the root cause of your disputes and may refund any Service Credits and terminate this TOS.
j. We reserve the right to change membership fees, service fees or any other Fee that may be charged by us at any time. We will provide you with notice of such a change by placing notice on our website in a reasonable amount of time in advance of such a change. At the time the change is made, the Fee will be adjusted. If you object to such a change, you may terminate this TOS without charge or penalty.
k. Unless set out on our website, the Fees do not include any taxes, levies, duties or similar assessments of any nature (Taxes). It is your responsibility to pay all Taxes when due. If we are required to pay Taxes on your purchase of the Services, we will charge the credit card on file for the amount of these Taxes. We are not obligated to refund this charge to you until we receive official notification that the Taxes were paid by us in error. However, we are responsible for any taxes assessed on our income.
a. Termination by you
i. In order to terminate this TOS, or a particular Service, you are required to provide us with written notice of your intent to terminate the Services (Termination Notice). The Termination Notice must be sent to us to firstname.lastname@example.org no later than [thirty]  days prior to the expiration of the Initial Term or a Renewal Term. Your Termination Notice is only effective if provided as set out in this paragraph. If you fail to provide us with a Termination Notice as set out in this paragraph, and the TOS is renewed, you will be charged for the remainder of the Term.
b. Termination by us
i. We will provide you written notice of our intent to terminate this TOS, or a particular Service, 30 days prior to the expiration of an Initial Term or a Renewal Term. Notice will be provided to you to the email address on record for the Account Owner.
ii. We may terminate this TOS, or a particular Service, without notice if: (i) you or a member of Your Group violates this TOS and that breach endangers our network or ability to provide the Services; (ii) a Third Party stops making essential elements of the Service available to us and we are unable to secure replacement services on reasonable terms; (iii) you file for bankruptcy or reorganization, or such an action is filed against you; (iv) you do not provide us with technical information necessary for us to implement the Service in a commercially reasonable amount of time; (v) you, or members of Your Group, do not have the level of technical expertise necessary to use the Services, and the use of our technical support services indicates this; (vi) you, or members of Your Group, defame or harass our support staff, or use profanity in your interactions with them, or use Feedback for this purpose.
c. Termination by either party
i. Either party may terminate this TOS, or a particular Service, for the other party’s material breach. The party claiming a material breach, must provide written notice to the allegedly breaching party, and 15 calendar days to cure. Any notice must contain sufficient information that would allow the allegedly breaching party to cure the material breach. The term “material breach” shall be determined from the perspective of a reasonable business person experienced in using an Internet-based Social Network. Your termination of this TOS, or a particular Service, is your sole and exclusive remedy for our material breach. The following activities shall be considered to be a material breach on your part entitling us to immediate termination of this TOS without opportunity for you to cure: (i) failure to pay Fees when due; (ii) failure to cure your, or a member of Your Group’s, violation of our Collaboration Guidelines; or (iii) failure to cooperate with our security requests. Either party may terminate this TOS, or a particular Service, immediately if a material breach is incapable of cure.
d. Upon termination the status of Your Information is governed by the paragraph entitled “Data.”
12. Intellectual Property
a. Your Information is your property. We have no ownership interest in, and make no such claim, in Your Information. It is your obligation to determine how using the Services affects your ownership of Your Information. You expressly agree that you are solely responsible for protecting and enforcing your proprietary rights and that we have no obligation to do so, nor to assist you in your efforts to do so.
b. The Services, Feedback, and Directory Information are our property. Subject only to the paragraph above, we reserve all rights, title and interest in, and to, the Services, Feedback, and Directory Information, including all related intellectual property rights. No rights are granted to you under this TOS other than those expressly set forth.
c. You shall not permit any third party to access the Services except as permitted in this TOS. You shall not (i) create derivative works based on the Services; (ii) reverse engineer the Services; (iii) access the Services in order to compete with us, or build a competitive Service; or (iv) copy, mimic or otherwise duplicate the graphics, form, function or features of the Service.
d. Any U.S. government access is granted subject to this TOS, and only those rights are given to the U.S. government as are given to the general public. For the U.S. government only, your use of the Services is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
b. Except as otherwise permitted in advance, in writing, by the Discloser, (i) the receiver shall use the same degree of care that it uses to protect the confidentiality or use of an Confidential Information of the Discloser for any purpose outside the scope of this TOS; and (ii) the Receiver shall limit access to Confidential Information of the Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this TOS and who are bound by obligations of confidentiality running to Discloser which are no less protective of Discloser’s interests as those set out in this TOS. Our employees shall be entitled to access Your Information and Group Information in order to provide the Services to you, and to diagnose and resolve problems with the Service. If necessary to diagnose and resolve problems with the Service, you agree that we may allow third parties to access Your Information and/or Group Information as long as they have agreed to keep both sets of information confidential.
c. Inadvertent disclosure of your Confidential Information based on a security breach is governed by the paragraph entitled “Security.”
14. Warranties, Disclaimers and Limitation of Liability
a. Our Warranties. We warrant that the Services will perform in a commercially reasonable manner, as described on our website. Your remedy for our failure to meet this warranty is to either (i) terminate this TOS pursuant to the section entitled “material breach;” or (ii) request a refund of your Service Credit pro-rated by the remainder of the Term.
b. Your Warranties. You represent and warrant that: (i) you have the experience and knowledge necessary to use the Service; (ii) you understand and appreciate the risks inherent to you, your business and your person, that come from accessing the Services; (iii) you have sufficient knowledge regarding administering, designing and operating the functions facilitated by the Service to take advantage of it; (iv) that in entering into this TOS, and performing the obligations set out in it, you will not violate any applicable laws and regulations; (v) that you will make backup copies of Your Information; (vi) that you are over the age of 18; (vii) if you are purchasing the Services on behalf of your employer, you have the authorization to enter into this TOS; (viii) you will not give your username and/or password to any third party; (ix) you will not upload any of Your Information to the Service if doing so will harm the Service or subject us to legal action; and/or (x) you will use the Service solely for the purpose of bona fide business dealings.
c. Other than set out in the paragraph above entitled “Our Warranties” we make no warranties, and any implied warranties are expressly disclaimed. In particular, we make no warranties whatsoever about the materials posted on our FAQ, support, or other self-help websites. We are expressly not liable for, and expressly disclaim, information provided to you by your Business Partners. Your use of this information is at your own risk.
d. We are not a party to the dealing, contracting and/or exchange of Information between you, Your Group and/or Business Partners. We have no control over, and do not guarantee or warrant the quality, safety or legality of any services performed or deliverables created, or of the qualifications, background, abilities or ethical qualities of any entity using the Services. You, Your Group and/or Business Partners must look to the other for enforcement and performance of all rights and obligations you create with each other using the Services, and any other terms associated with that use.
e. THE SERVICE(S) ARE PROVIDED AS-IS. YOUR USE OF THE SERVICE(S) IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL OTHER EXPRESS, AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE(S), WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICE(S) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE OR THAT ANY INFORMATION YOU RECEIVE FROM YOUR BUSINESS PARTNERS IS ACCURATE. NO EMPLOYEE, OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF.
f. YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER THIRD PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS AGREEMENT FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US DURING THE  MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
a. We agree to defend you against any claim, demand, suit or other proceeding (Indemnification Claim) brought against you by a third party, other than a member of Your Group or a Business Partner, alleging that the use of the Services, as set out in this TOS, infringes or misappropriates the intellectual property rights of a third party. This indemnification is limited to damages finally awarded against you, and for the reasonable attorneys’ fees incurred by you in connection with the Indemnification Claim. Our obligation to indemnify you is contingent on your providing us with prompt written notice of the Indemnification Claim, your giving us sole control of the defense and settlement of it, and providing us with reasonable assistance associated with our defense of the Indemnification Claim. This is your sole liability to, and exclusive remedy against, us of the type of Indemnification Claim described in this paragraph.
b. You agree to defend us against any Indemnification Claim made or brought against us by a third party, including, but not limited to, a member of Your Group or a Business Partner, alleging that Your Information, or your use of the Services in violation of this TOS, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, or that Feedback you provide violates any of the same. This indemnification is limited to damages awarded against us, and for the reasonable attorneys’ fees incurred by us in connection with the Indemnification Claim. Your obligation to indemnify us is contingent on your providing us with prompt written notice of the Indemnification Claim, our giving you sole control of the defense and settlement of it, though you may not agree to a settlement of judgment that compromises our interests, and we provide you with reasonable assistance associated with our defense of the Indemnification Claim.
16. General Release
a. If you have a dispute with a member of Your Group or of a Business Partner group, you release us, and our officers, directors, agents, subsidiaries, joint venturers and employees from claims, demands and damages of any sort, known and unknown, arising out of, or in any way connected with such a dispute. If any claim is brought against us based on such a dispute, you agree to indemnify us.
17. General Provisions
a. Each of our rights and obligations set out in this TOS are undertaken as independent contractors. Neither of the parties shall have the right to create an obligation on behalf of the other, unless expressly set out in this TOS.
b. Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than 10 days from the beginning of the event.
c. This TOS shall be governed by the internal laws of the State of Delaware. The parties agree that venue and jurisdiction is proper before this court, and agree not to contest notice therefrom. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.
d. No waiver of rights under this TOS, or any of our policies, or other agreement between the parties shall constitute a subsequent waiver of this or any other right under this TOS.
e. This TOS may not be assigned by you. It may be assigned by us.