This Service Directory Subscription Agreement (this “Agreement”) is a contract and binding legal agreement between you (“you,” “your,” or “Company”) and Accessibly Inc., doing business as Be My Eyes (“BME”).
1. Subscription. Subject to Company’s compliance with the terms and conditions of this Agreement, including the payment of applicable fees, Be My Eyes will provide Company with a premium listing in Be My Eyes’ single source listing of accessible service centers (“Service Directory”) for Company’s home country during the term of your subscription. The premium Service Directory listing will allow Company to establish and change the customer service number presented to BME users and include, at Company’s option, (i) Company’s logo; (iii) open hours for Company’s customer service center(s); (iii) a description of Company’s business and accessibility services; and (iv) if indicated on the order, the ability to list customer service numbers for the additional number of countries described in the order.
2. Fees and Payments. Your subscription’s fees are set out in the order you placed with BME and are payable in advance. All payments, including the fees for your subscription, are non-refundable and will be made in U.S. dollars unless otherwise indicated on your order. Company will be responsible for all taxes, withholdings, duties, and levies arising from the order (including VAT but excluding taxes based on the net income of BME). BME will be entitled to suspend Service Directory at any time following Company's failure to make a required payment. Subscription fees are subject to change at the beginning of each Renewal Term.
3. Company Marks. Company hereby grants BME a non-exclusive, non-transferable, fully revocable license to use Company’s trademarks, trade names, service marks, slogans, designs, labels, logos and other source-identifying symbols (collectively “Marks”) provided by Company to BME to (a) identify Company to BME Users seeking Company’s customer support via the Service Directory (b) to identify the Company on BME's website(s), newsletters, emails, and other marketing materials while promoting or operating the Service Directory; and (c) to disclose Company as a customer of BME (including use of Company’s name and logo in customer lists on BME’s website and marketing materials). All such licensed use will comply with Company's trademark usage guidelines provided to BME and occur in a way that preserves Company's rights. Company has and will retain all rights, title, and interest in and to Company's Marks, and all uses of Company's Marks will inure to the benefit of Company. BME acknowledges that it has no right, title, or interest in the Company's Marks aside from this license. Upon termination or expiration of this Agreement, or notice from the Company, BME's license to the Company's Marks will expire and BME will stop using the Company's Marks.
4. Ownership. Company and its suppliers have and will retain all rights (including, without limitation, all intellectual property rights), title, and interest in and to the Company Marks. BME and its suppliers have and will retain all rights (including, without limitation, all intellectual property rights), title, and interest in and to the Service Directory; all BME trademarks and service marks; content it creates; and all copies, modifications, and derivative works of them.
5. Term and Termination. The term of this Agreement and your subscription will begin on the date of your order (the “Effective Date”) and end one (1) year from the Effective Date (“Initial Term”). Thereafter, the Agreement and your subscription will automatically renew for successive one (1) year periods (each, a “Renewal Term”), unless either party provides written notice to the other party of non-renewal no later than thirty (30) days prior to the expiration of the then applicable Term, or the Agreement is otherwise terminated. The Initial Term and any Renewal Term are referred to as the “Term.” Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
6. Warranties. Each party warrants to the other that: (1) it has all rights and authority necessary to enter into this Agreement and to carry out its terms and conditions; (2) entering this Agreement will not conflict with or cause violation of any agreement between that party and any third party; (3) it will comply with all applicable laws.
7. Disclaimers. BME SERVICE DIRECTORY IS PROVIDED “AS IS,” AS AVAILABLE, AND WITHOUT ANY WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. BME DOES NOT GUARANTEE THAT ANY NUMBER BME USERS WILL ACCESS OR USE COMPANY’S SERVICE DIRECTORY LISTING.
BME Users’ ability to use the Service Directory is dependent on the functionality of the device used to access BME services as well as the availability and coverage of wireless networks, telecommunications networks, and the Internet, all of which involve facilities manufactured, owned and/or operated by third parties. BME IS NOT RESPONSIBLE FOR THE OPERATION, AVAILABILITY OR FAILURE OF ANY THIRD-PARTY DEVICES, SYSTEMS OR FACILITIES, INCLUDING WITHOUT LIMITATION THOSE REQUIRED TO USE BME PRODUCTS OR SERVICES.
8. Limitations of Remedies and Damages. NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EACH PARTY'S AND ITS SUPPLIERS' ENTIRE LIABILITY TO THE OTHER WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY COMPANY TO BME PURSUANT TO THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE DATE LIABILITY AROSE FOR THE MATTER ASSERTED TO HAVE CAUSED THE DAMAGES.
THE PRECEDING LIMITATIONS OF LIABILITY DO NOT APPLY TO LIABILITIES THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS.
9. Applicability and Interpretation. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any business form employed by Company will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. If any court of competent jurisdiction adjudges any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
10. Dispute Resolution. If a dispute arises between the parties in any way connected with this Agreement or the commercial relationship between the parties (a “Dispute”), the party raising the dispute must provide written notice of the Dispute to the other party, and the parties must work diligently and in good faith to resolve the Dispute. If the Dispute is not resolved within 30 days following the date of the written notice, then either party may bring an action against the other as provided by Section 11.
11. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the United States and the State of California without regard to their conflicts of law provisions, and without regard to the United Nations Convention on the International Sale of Goods. Jurisdiction and venue for any dispute in any way connected with this Agreement or the commercial relationship between the parties are the State of California and United States federal courts for Palo Alto, California, and both parties hereby irrevocably submit to the personal jurisdiction of such courts.
12. Electronic Acceptance. The parties each consent to the use of electronic signatures and indications of online acceptance for purposes of signing this Agreement, intending to become legally bound.
