Welcome to www.agretail.com. These Terms of Service contain the terms and conditions that govern all use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “SBS Services”).The SBS Services are offered to you subject to your acceptance, without modification (other than Special Terms (as defined below) agreed by the parties pursuant to these Terms of Service), of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, our Privacy Policy at https://agretail.com/privacy-policy), the Guidelines (as defined below) and any future modifications thereof, and procedures that may be published from time to time on the Platform or made available to you on or through the SBS Services (collectively, the “Terms”). When accepted by you (as defined below), these Terms form a legally binding contract between you and Supplier (as defined below). If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.

PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE SBS SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE PLATFORM OR THE SBS SERVICES.

Supplier may, in its sole discretion, elect to suspend or terminate access to, or use of the SBS Services to anyone who violates these Terms.

If you register for a free trial of the SBS Services, the applicable provisions of these Terms will govern that free trial.

The original language of these Terms is English. Supplier may make available translations for convenience. In case of conflicts between the original English version and any translation, the English version shall prevail.

1. Definitions

2. Authority to Enter into These Terms with Supplier

The use of the SBS Services is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Partner, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.

The Terms are accepted as soon as one of the following occurs first:

1. the person has received the confirmation of the creation of the Account and necessary credentials from Supplier in order to log in to his/her/its Account; or
2. for those SBS Services and parts of the Web Site the use of which is not dependent on creating an Account, upon the moment of gaining access to such services.

You may not, without Supplier’s prior written consent, access the SBS Services (i) for production purposes, (ii) if you are a competitor of SBS, (iii) to monitor the availability, performance or functionality of the SBS Services or (iv) for other benchmarking or competitive purposes.

Once accepted, these Terms remain effective until terminated as provided for herein.

3. Modifications to Terms

Supplier reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Platform or the SBS Services. Please check these Terms periodically for changes. Your continued use of the SBS Services after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms will automatically be effective upon the earlier of (i) your continued use of the SBS Services, or (ii) 30 days from posting of such modified Terms on or through the Platform. Notwithstanding the foregoing, the resolution of any dispute that arises between you and Supplier will be governed by the Terms in effect at the time such dispute arose.

4. Our Responsibilities

4.1. Provision of SBS Services

Supplier will (a) make the SBS Services, Content and Partner Data available to a Partner pursuant to these Terms, (b) provide applicable standard support for the SBS Services to Partner at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the Partner Services available 24 hours a day, 7 days a week, except for:

(i) planned downtime (of which Supplier shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond Supplier’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.

4.2. Protection of Partner Data

Supplier will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Partner Data, as described in the Guidelines. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Partner Data by Supplier personnel except (a) to provide the SBS Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as a Partner or User expressly permit in writing.

The Services may be performed using equipment or facilities located in the United States.

By agreeing to these Terms, the Partner grants the Supplier a general authorization to engage processors for the purposes of providing the SBS Services. The Supplier will inform the Partner of changes in such processors in accordance with the procedure of modifying these Terms as stipulated in section 3 of these Terms.

List of processors:

Trinsic Technologies

Trinsic Technologies is used to deliver IT services which include anti-virus, backups and technological helpdesk support. Trinsic also provides the hosted cloud platform and file storage of SBS online services. See Trinsic’s Terms of Service and Privacy Policy 

Screen Connect

Service provider for accessing Partner workstations for technical support. See Clearbit’s Terms of Service and Privacy Policy

Wave

Service provider for billing Partners (Privacy Shield certified).

Slack

Service provider for the AgRetail To Go notification feature. Based in the US (Privacy Shield certified).

BlueHost

Service provider for hosting Partner websites and AgRetail to go ecommerce sites (Privacy Shield certified).

5. Using the SBS Services

5.1 Establishing an Account

Certain features, functions, parts or elements of the SBS Services can be used or accessed only by holders of an Account. The person who wishes to create an Account must:

1. complete the sign-up form on the Web Site or alternative process provided by a Reseller if access to the SBS Services is purchased from a Reseller; and
2. accept these Terms by clicking “Sign up” or other similar button

Each Partner may have only one Account. If several persons need to use an Account on behalf of Partner, Partner must designate such persons as Users. Each such User shall be subject to the restrictions set forth in these Terms.

If Partner has designated Users and granted them Authorization, such Users will be deemed to be authorized to act on behalf of Partner when using the Account. Supplier is not responsible for and shall have no liability for verifying the validity of Authorization of any User. However, Supplier may, in its discretion, request additional information or proof of the person’s credentials. If Supplier is not certain if a User has been granted Authorization, Supplier may, in its sole discretion, prevent such User from accessing the SBS Services.

A User may be associated with multiple Partners and Accounts. Deleting a User from one Account will not remove the User from the Platform if he/she is connected to multiple Accounts.

The Partner and any User associated with an Account must provide Supplier with true, accurate, current, and complete information about the Partner, Users or Account and keep it up to date.

5.2 Logging Into an Account

Supplier shall provide Partner with a username and password (“Login Credentials”) to be used to log in to its Account unless the Partner uses the single sign-on feature or another service to log in. These Login Credentials must not be used by multiple persons. If Partner has designated several Users, each User will be provided with separate Login Credentials. Partner and each User are responsible for keeping confidential all login credentials associated with an Account. Partner must promptly notify Supplier:

1. of any disclosure, loss or unauthorized use of any Login Credentials;
2. of a User’s departure from the Partner’s organization;
3. of a change in a User’s role in the Partner’s organization;
4. of any termination of a User’s right for any reason.

5.3 Termination of Account

Partner may terminate these Terms at any time as provided in Section 17.

Supplier may permanently delete the Account within three months of the effective date of the termination.

5.4 Fees.

The use of an Account is subject to a Fee. Upon sign-up for an Account, the Partner must select a Plan. Different rates apply to different Plans. The applicable Fee is charged in advance on monthly or annual payment intervals, unless agreed otherwise between parties. All Fees are non-refundable, i.e. there are no refunds or credits for periods where the Partner did not use an activated Account, used it only partially, or deactivated the Account or terminated these Terms during an ongoing payment interval. If, after signing up, Partner elects to upgrade to a more expensive Plan, the unused portion of any prepaid Fees shall be applied to the Fee of the more expensive Plan.

All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Partner is solely responsible for the payment of such taxes, levies or duties.

5.5 Changing Plans

Any Partner has the right to upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by the Supplier. In such an event, the Partner’s credit card on file with the Supplier will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan.

Downgrading of the current Plan may cause the loss of features or capacity of the Account, as well as the loss of Partner Data.

5.6 Free Trial

A new Partner may be entitled to a Free Trial, unless the Partner has applied for the Account as a result of an ongoing marketing campaign organized by the Supplier in co-operation with its partners. The Partner is not required to provide any credit card information during the period of Free Trial. If the period of Free Trial has expired, the Account will be automatically deactivated. In order to prevent deactivation or to reactivate the Account, the Partner is required to select a suitable Plan and pay the first Fee. If the Partner does not pay the first Fee within 2 weeks as of the expiry of the Free Trial, Supplier has the right to permanently delete the Account, including all Partner Data therein.

In addition to the current collection of Plans, Supplier may offer special discounts and motivation schemes (for example finder’s fees, etc.).

6. Payment

The following provisions are applicable only if you purchase access to the SBS Services directly from Supplier.  If you purchase access to the SBS Services through a Reseller, the payment terms are set forth in the agreement with your Reseller.

6.1 Payment Card Authorization

Supplier may seek pre-authorization of Partner’s payment card account prior to your purchase of SBS Services in order to verify that the card is valid and has the necessary funds or credit available to cover your purchase. You authorize such payment card account to pay any amounts described herein, and authorize Supplier to charge all sums described in these Terms to such card account. You agree to provide Supplier updated information regarding your payment card account upon Supplier’s request and any time the information earlier provided is no longer valid.

6.2 Direct Debit Payments

In some markets Supplier may, if Partner elects, request that Partner complete a direct debit mandate to enable direct debit payments. In such cases Supplier shall comply with all applicable national rules and regulations related to direct debit payments.

6.3 Electronic Invoice

If Supplier has not sought pre-authorization of your payment card, then before the end of each payment interval, Partner will be issued an electronic invoice for payment of the Fee of the next payment interval. Partner must pay the invoice by the due date indicated on the invoice.

6.4 Overage Charges

Upon delay with any payments, Supplier may require the Partner to pay interest on the delay (penalty for late payment) for the period as of the time the payment obligation falls due until conforming performance is rendered. The interest rate of penalty for late payment due, shall be 1% per month; provided, however, if any interest paid to Supplier is determined to be in excess of the then legal maximum rate, then that portion of each interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of amounts owing under Section 6.2. Upon calculation of the penalty for late payment, one year shall be deemed to contain 365 calendar days.

7. Partner data

7.1 Uploading Partner Data to Platform

If the Partner uploads Partner Data to the Platform, such Partner Data and any processing of such Partner Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Partner Data belong to the Partner or third persons (including Users, persons and Customers) whether posted and/or uploaded by you or made available on or through the SBS Services by Supplier. By uploading Partner Data to the Platform, Partner authorizes Supplier to process the Partner Data. The Partner is responsible for ensuring that:

1. the Partner and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Partner Data that violates the terms of these Terms, the rights of Supplier, other Partners or Users, persons or Customers or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful; and
2. the Partner and all of the Users associated with the Account have the necessary rights to use the Partner Data, including to insert it into the Platform and process it by means of the Account.

7.2 No Guarantee of Accuracy

Supplier does not guarantee any accuracy with respect to any information contained in any Partner Data, and strongly recommends that you think carefully about what you transmit, submit or post to or through the SBS Services. You understand that all information contained in Partner Data is the sole responsibility of the person from whom such Partner Data originated. This means that Partner, and not Supplier, is entirely responsible for all Partner Data that is uploaded, posted, transmitted, backed up or otherwise made available through the SBS Services, as well as for any actions taken by the Suppliers or other Partners or Users as a result of such Partner Data.

7.3 Unlawful Partner Data

Supplier is not obliged to pre-screen, monitor or filter any Partner Data or acts of its processing by the Partner in order to discover any unlawful nature therein. However, if such unlawful Partner Data or the action of its unlawful processing is discovered or brought to the attention of Supplier or if there is reason to believe that certain Partner Data is unlawful, Supplier has the right to:

1. notify the Partner of such unlawful Partner Data;
2. deny its publication on the Web Site or its insertion to the System;
3. demand that the Partner bring the unlawful Partner Data into compliance with these Terms and applicable law;
4. temporarily or permanently remove the unlawful Partner Data from the Web Site or Account, restrict access to it or delete it.

If Supplier is presented convincing evidence that the Partner Data is not unlawful, Supplier may, at its sole discretion, restore such Partner Data, which was removed from the Web Site or Account or access to which was restricted.

In addition, in the event Supplier believes in its sole discretion Partner Data violates applicable laws, rules or regulations or these Terms, Supplier may (but has no obligation), to remove such Partner Data at any time with or without notice.

Without limiting the generality of the preceding sentence, Supplier complies with the Digital Millennium Copyright Act, and will remove Partner Data from the Platform upon receipt of a compliant takedown notice.

7.4 Compelled Disclosure

Supplier may disclose a Partner’s confidential information to the extent compelled by law to do so. In such instance, Supplier will use commercially reasonable efforts to provide Partner with prior notice of the compelled disclosure (to the extent legally permitted) and Partner shall provide reasonable assistance, at its cost, if Partner wishes to contest the disclosure. If Supplier is compelled by law to disclose Partner’s confidential information as part of a civil proceeding to which Supplier is a party, and Partner is not contesting the disclosure, Partner will reimburse Supplier for its reasonable cost of compiling and providing secure access to that confidential information.

8. Services

8.1 Use of the SBS Services

Subject to these Terms, and the payment of the applicable service Fee, Supplier grants Partner and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to use the SBS Services to:

1. collect, store and organize Partner Data, such as add new inventory and Customers, create invoices and ship or deliver products, generate reports based on Partner Data,  add new Users and grant them Authorizations, assign Activities to a particular User;
2. modify and delete Partner Data;
3. customize the standard features of the SBS Services;
4. receive reasonable help and guidance and from Supplier regarding the use of the SBS Services.

If Supplier determines Partnert usage of the Services to be outside of the permitted and intended use as outlined herein, or bandwidth usage of the Service or any features to be significantly excessive in relation to other Users, Supplier reserves the right to suspend respective Partner Account, (or part thereof) until Partner assures Supplier that Partner shall refrain from further abuse of the Services.

8.2 Technical Support.

Supplier shall provide reasonable technical support to Partner and its authorized User at the reasonable request of the Partner. Supplier shall respond to enquiries of support from a Partner utilizing the contacts set forth below as soon as reasonably possible. Responding to enquiries of Partners and Users who have accepted these Terms but do not have an Account may be less expedient, or may not occur at all.

The contacts for all enquiries of support are:

1. phone,
2. built-in notification form on the Web Page, or
3. e-mail: [email protected]

Notwithstanding the foregoing, if you purchased access to the SBS Services from a Reseller, then first-line technical support will be provided by the Reseller and not by the Supplier.

8.3 Modifications to Service

Supplier reserves the right to modify the SBS Services or any part or element thereof from time to time without prior notice, including, without limitation:

1. rebranding the SBS Services at its sole discretion;
2. ceasing providing or discontinuing the development any particular SBS Service or part or element of the Platform temporarily or permanently;
3. taking such action as is necessary to preserve Supplier’s rights upon any use of the SBS Services that may be reasonably interpreted as violation of Supplier’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity.

As applicable, Partner may be notified of such modifications when logging in to the Account. Modifications, including change in applicable rates for the SBS Services, will become effective thirty (30) days before the effective date of such modification.

If the Partner does not accept the modification, the Partner shall notify Supplier or Reseller (if Partner purchased access to the SBS Services from a Reseller) before the effective date of the modification, and these Terms will terminate on the effective date of the modification. The Partner’s continued use of the SBS Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. Supplier shall not be liable to the Partner or to any third person for any modification, suspension or discontinuance of the SBS Services, or any part or element thereof.

9. Data Processing Contract

The Partner hereby instructs the Supplier to process the data as described in these Terms.

9.1 Subject matter and nature of processing

The Supplier provides the Platform where the Partner, as the data controller, can collect, store and organize the personal data of data subjects determined by the Partner.

The Platform has been designed to work as a point of sales tool but, to the extent not regulated by these Terms, the Partner decides how they use the Platform.

9.2 Duration

The Supplier will process data on behalf of the Partner until the termination of the SBS Services in accordance with these Terms. Upon termination, Supplier will store the Partner’s data for a period of three months, should the Partner wish to reopen the Account to resume the use of the SBS Services or to request Supplier export of Partner Data, unless instructed otherwise by the Partner. After that, the contents of the account may be recoverable from Supplier’s backups for another three months.

9.3 Parties’ rights and obligations

The Partner’s rights and obligations regarding Partner Data are provided in sections 4 through 10 of these Terms. The Supplier ensures that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

10. Restrictions

10.1 Prohibited Activities

Partner and its authorized Users may use the SBS Services and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Partner nor any User may:

1. use the SBS Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions;
2. copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the SBS Services or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that the Supplier is not permitted by that applicable law to exclude or limit the foregoing rights;
3. use the SBS Services or any part or element thereof unless it has agreed to these Terms.

10.2 Certain Uses Require Supplier Consent

The Partner or any User may not, without Supplier’s prior express written consent (e-mail, fax, Skype, etc.):

1. sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant Access or make the SBS Services available in whole or in part to any third persons, unless such third person is another authorized User of the same Partner;
2. use the SBS Services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created;
3. use the SBS Services or any part or element thereof by means of programs that send them automatic enquiries or requests, unless such program has been made available by Supplier;

11. Privacy

Supplier takes the privacy of its Partners and Users very seriously. Supplier’s Privacy Policy at www.sbstexas.com/privacy is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs Supplier’s collection, use, and disclosure of Partner’s or User’s personal information.

12. Intellectual Property Rights

12.1 SBS’s Intellectual Property Rights in the SBS Services

The SBS Services, SBS Materials, SBS trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by Supplier and its third party vendors and hosting partners. SBS Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. Supplier, its affiliates and licensors retains all right, title and interest in such SBS Services, SBS Materials, SBS trade names and trademarks, and any parts or elements. Your use of the SBS Services and SBS Materials, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the SBS Materials is strictly prohibited unless you have received the express prior written permission from Supplier or the otherwise applicable rights holder. Supplier reserves all rights to the SBS Services, SBS Materials and SBS trade names and trademarks not expressly granted in the Terms.

12.2 Content Owned by SBS

Subject to these Terms and the payment of the applicable service Fee, Supplier grants Partner and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the SBS Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the SBS Services or as otherwise permitted by applicable law.

12.3 Partner Data

1. Supplier may use Partner Data in an aggregated or anonymized format for research, educational, commercial and other similar purposes. Supplier may not otherwise use or display Partner Data without Partner’s written consent. Supplier respects your right to exclusive ownership of your Partner Data. Unless specifically permitted by you, your use of the SBS Services does not grant Supplier the license to use, reproduce, adapt, modify, publish or distribute the SBS Data created by you or stored in your Account for Supplier’s commercial, marketing or any similar purpose. Partner expressly grants Supplier the right to use and analyze aggregate system activity data associated with use of the SBS Services by Partner and its Users for the purposes of optimizing, improving or enhancing the way the SBS Services operate, and to create new features and functionality in connection with the SBS Services in the sole discretion of Supplier.
2. Partner is solely responsible for its own Partner Data and the consequences of posting or publishing them on or through the SBS Service. In connection with Partner Data, Partner affirms, represents, and warrants that: (i) Partner either owns its Partner Data or has the necessary licenses, rights, consents, and permissions to use and authorize the Suppliers to display or otherwise use the Partner Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to your Partner Data in a manner consistent with the intended features of the SBS Services and these Terms, and to grant the rights and license set forth in Section 11.3(a), and (ii) Partner Data, Supplier’s or any SBS Licensee’s use of such Partner Data pursuant to these Terms, and Supplier’s or any SBS Licensee’s exercise of the license rights set forth in Section 11.3(a), do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any fees and/or royalties by Supplier to any third party for the performance of any PSBS Services Partner has chosen to be performed by Supplier or for the exercise of any rights granted in these Terms, unless Partner and Supplier otherwise agree.

12.4 Feedback

If Partner or a User provides Suppliers with any comments, bug reports, feedback, or modifications for the SBS Services (“Feedback”), Supplier shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the SBS Services.

Partner or User (as applicable) hereby grants Supplier a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose. Supplier shall have the right to modify or remove any Feedback provided in the public areas of the Web Site if the Supplier deems, at its discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.

13. Third-Party Sites, Products and Services

The SBS Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Partners. Unless otherwise specifically and explicitly indicated, Supplier does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, Supplier makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.

Any content referred to as community provided is provided by third parties and not developed or maintained by SBS. By using any community marked code or libraries in your software development, you acknowledge and agree that SBS is not in any way responsible for the performance or damages caused by such community provided code or library.

14. Disclaimers; No Warranty

UNLESS OTHERWISE EXPRESSLY STATED BY SUPPLIER, THE SBS SERVICES, SBS MATERIAL, AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SBS SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SUPPLIER AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.

UNLESS OTHERWISE EXPRESSLY STATED BY SUPPLIER, SUPPLIER AND ITS AFFILIATES DO NOT WARRANT THAT THE SBS SERVICES AND ANY CONTENT, PARTNER DATA SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SBS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SBS SERVICES AND ANY CONTENT, PARTNER DATA, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SBS SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

UNLESS OTHERWISE EXPRESSLY STATED BY SUPPLIER, SUPPLIER AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE SBS SERVICES, SBS MATERIAL OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

15. Indemnification

You agree to defend, indemnify and hold harmless Supplier and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the SBS Services, SBS Materials, representations made to the Supplier, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Supplier reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Supplier, and you agree to cooperate with such defense of these claims.

16. Limitation of Liability

16.1 No Liability

Supplier shall not be liable to the Partner or User for any consequences resulting from:

1. any modifications in these Terms, calculation and rates of Fees, the SBS Services, SBS Material, or any part or element thereof (including but not limited to Account), including any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the SBS Services or SBS Material;
2. deletion of, corruption of, or failure to store any Partner Data;
3. use of Partner Data by the Partner or any of the Users associated with the Account;
4. upgrading or downgrading the current Plan;
5. any disclosure, loss or unauthorized use of the login credentials of Partner or any authorized User due to Partner’s failure to keep them confidential;
6. the Partner’s use of the Account or the SBS Services by means of browsers other than those accepted or supported by the Supplier;
7. the application of any remedies against the Partner or authorized Users by the Supplier, for example if the Partner or User has committed a crime or conducted a breach of applicable law by using the SBS Services or any part or element thereof;
8. the differences between technologies and platforms used for access, for example if certain features, functions, parts or elements of the SBS Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
9. the Supplier’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.

In addition, Supplier and its affiliates shall not be liable to the Partner for any claim by any User, person, Customer or third persons against the Partner arising out of the Partner’s failure to:

1. provide Supplier with accurate information about the Partner, Users or Account;
2. notify Supplier of any reasons due to which a User does not have the right to use the Account on behalf of the Partner;
3. provide any Products which it has agreed to provide to such a person or Customer (whether such failure arises as a result of Supplier’s negligence, breach of these Terms or otherwise);
4. ensure the lawfulness of the Partner Data;
5. obtain the necessary rights to use the Partner Data; or
6. abide by any of the restrictions described in these Terms.

16.2 Limitation of Liability

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SBS AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY PARTNER HEREUNDER FOR THE SBS SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.

THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT PARTNER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE.

16.3 Exclusion of Consequential and Related Damages

IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

17. Termination of These Terms

17.1 For Convenience

These Terms may be terminated for convenience in the following situations;

1. by the Partner any time by contacting Supplier; or if the Partner is paying for the Service via a Reseller, by means agreed upon between the Partner and the Reseller;
2. by Supplier upon decision to end provision of the SBS Services and close the Platform; or
3. immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.

17.2 For Default

These Terms may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below:

1. by either party in case of breach of these Terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party; or
2. immediately by either party if the other party breaches its obligations, as applicable under Sections 12 [Intellectual Property Rights], 15 [Indemnification], or 10 [Restrictions] of these Terms.

17.3 Effect of Termination

Upon termination of these Terms,

1. Supplier shall deactivate and permanently delete the Account, within six months of the effective date of termination of these Terms. If the Partner has specifically requested for an earlier deletion of the Account, Supplier shall fulfill such request within 1 month of its receipt of such request.
2. Partner must:
   1. stop using and prevent the further usage of the SBS Services, including, without limitation, the Platform;
   2. pay any amounts owed to Supplier under these Terms; and
   3. discharge any liability incurred by the Partner before under these Terms prior to their termination; and
3. The following provisions shall survive the termination of these Terms: Sections 1, 7.4, 10, 11, 12, 14, 15, 16, 18 and 19.

17.4 Remedies

If Supplier terminates these Terms as a result of an uncured breach by a Partner or User, Supplier is entitled to use the same or similar remedies against any other persons who use the SBS Services in conflict with these Terms. Notwithstanding the foregoing, Supplier may also apply any other remedies available to it under the applicable law. Upon application of any remedies, the Partner or User may lose Access or suffer a loss of certain features, functions, parts or elements of the SBS Services.

If Supplier has reasonable grounds to believe that the Partner’s or User’s use of the SBS Services, including the Account may harm any third persons, Supplier has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.

The Supplier has the right to suspend access to all or any part of the Service, including removing Content, at any time for violation of this Agreement or to protect the integrity, operability, and security of the Service, effective immediately, with or without notice. Unless prohibited by law or legal process or to prevent imminent harm to the Service or any third party, Supplier typically provides notice in the form of a banner or email on or before such suspension. Supplier will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of the Service.

18. Who You Are Contracting With

18.1 Governing Law and Jurisdiction

In the event of a dispute, controversy or claim arising out of or in relation to these Terms, including but not limited to the formation, validity, breach or termination thereof, the parties shall attempt to solve the matter amicably in mutual negotiations. In the event a mutually acceptable resolution cannot be reached within a reasonable time, either party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth below. Notwithstanding the foregoing and subject to the terms and conditions set forth below, either party may seek injunctive relief with respect to any disputed matter to the extent possible under applicable law. Should an amicable settlement between parties not be possible, the dispute shall be finally solved in court or by arbitration as designated herein subject to the terms and conditions set forth below.

Terms shall be governed by and construed in accordance with the following:

The United States of America, including all of its territories, and Canada	These Terms (and any further rules, policies or guidelines incorporated by reference therein) shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any principles of conflicts of law. Unless otherwise agreed in writing by the Partner and Supplier, any dispute arising out of or relating to these Terms, or the breach thereof, shall be governed by the terms set forth in this Section 18.2.

We each agree that we shall bring any dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, we each agree that disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.

If any part of this provision is ruled to be unenforceable, then the balance of this provision shall remain in full effect and construed and enforced as if the portion ruled unenforceable were not contained herein.

Use of the SBS Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section.

Notwithstanding the foregoing, you and the Suppliers agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, or (iii) to file suit in a court of law to address intellectual property infringement claims.

19. General Provisions

19.1 Relationship of the Parties

The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the Partner and either Supplier, and the Partner shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.

19.2 Severability

If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.

19.3 Entire Agreement

These Terms are the entire agreement between Partner and Supplier regarding Partner’s use of the SBS Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.

19.4 Assignment

Partner may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without Supplier’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Partner, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Partner, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Partner, or its permitted successive assignees or transferees.

19.5 No Waiver

Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.

19.6 Notices

Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Services system administrator designated by you.

Last update: May 21, 2020