American Business Software Terms of Service
Last updated: April 20, 2018
These American Business Software Terms of Service (`Terms of Service`) are a legal agreement between you (`you,` `your`, `client`) and American Business Software, Inc. (`American Business Software,` `we,` `our` or `us`) and govern your use of American Business Software`s services, including mobile applications, websites, software, hardware, and other products and services (collectively, the `Services`).
By creating an American Business Software Account, or through your acceptance of a sales quote, or your payment of an invoice or a deposit, or through your use of the Services, or by continuing to use the Services after a change to these Terms of Service, you agree to these Terms of Service and any policies referenced within (`Policies`), including terms that limit our liability (see Section 18) and require individual arbitration for any potential legal dispute (see Section 21). You also agree to any additional terms specific to Services you use (`Additional Terms`), such as those listed below, which become part of your agreement with us. You should read all of our terms carefully:
Payment Terms: These terms apply to all payments made through the Services.
E-Sign Consent: These terms confirms your consent to receive communications electronically from us.
2. American Business Software Account Registration
You must open an account with us (an `American Business Software Account`) to use the Services. During registration we will ask you for information, including your name and other personal information. You must provide accurate and complete information in response to our questions, and keep that information current. In some cases, we may have assigned an American Business Software Account to you. If you create or access an American Business Software Account on behalf of an entity, such as your business or employer, you represent that you have the legal authority to bind that entity to these Terms of Service. You cannot transfer your American Business Software Account credentials to another user or entity. To protect your account, keep your account details and password confidential. You are fully responsible for all activity that occurs under your American Business Software Account, including for any actions taken by persons to whom you have granted access to the American Business Software Account. We reserve the right to suspend or terminate the American Business Software Account of any user who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
3. Revisions, Disclosures and Notices
We may amend the Terms of Service, any Additional Terms, or our Policies, at any time with notice that we deem to be reasonable in the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a `Revised Version`). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined in Section 20) that arose before the changes will be governed by the Terms of Service, Additional Terms or Policies in place when the Dispute arose.You agree to American Business Software`s E-Sign Consent. We may provide disclosures and notices required by law and other information about your American Business Software Account to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your American Business Software Account. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered. If you wish to withdraw your consent to receiving electronic communications, contact American Business Software Support. If we are not able to support your request, you may need to terminate your American Business Software Account.
You may not, nor may you permit any third party, directly or indirectly, to: export the Services, which may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII); access or monitor any material or information on any American Business Software system using any manual process or robot, spider, scraper, or other automated means; except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services; perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure; copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from American Business Software; use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement; transfer any rights granted to you under these Terms of Service;use the Services in a way that distracts or prevents you from obeying traffic or safety laws;use the Services for any illegal activity or goods or in any way that exposes you, other American Business Software users, our partners, or American Business Software to harm; or otherwise use the Services except as expressly allowed under these Terms of Service and applicable Additional Terms. If we reasonably suspect that your American Business Software Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your American Business Software Account, and any of your transactions with law enforcement.
5. Compatible Mobile Devices and Third Party Carriers
We do not warrant that the Services will be compatible with your mobile device or carrier. Your use of the Services may be subject to the terms of your agreements with your mobile device manufacturer or your carrier. You may not use a modified device to use the Services if the modification is contrary to the manufacturer`s software or hardware guidelines, including disabling hardware or software controls`sometimes referred to as `jail broken.`
6. Your Content
The Services may include functionality for uploading or providing photos, logos, products, loyalty programs, promotions, advertisements and other materials or information (`Content`).You grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Content throughout the world in any media in order to provide and promote the Services. You retain all rights in your Content, subject to the rights you granted to us in these Terms of Service. You may modify or remove your Content via your American Business Software Account or by terminating your American Business Software Account, but your Content may persist in historical, archived or cached copies and versions thereof available on or through the Services.You will not upload or provide Content or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with American Business Software`s or its partners` products and services, as determined by us in our sole discretion; or (f) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose American Business Software, its affiliates or its customers to harm or liability of any nature.Although we have no obligation to monitor any Content, we have absolute discretion to remove Content at any time and for any reason without notice. You understand that by using the Services, you may be exposed to Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any Content, including any loss or damage to any of your Content.
7. Intellectual Property RightsThe content on the Services (?Company Content?) and the trademarks, service marks and logos contained therein (?Marks?) are owned by or licensed to American Business Software, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Company Content, includes, without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs and graphics. All our graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, common law trademarks or trade dress of Company in the United States and/or other countries. Our trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without Our prior written permission.
Company Content on the Services is provided to you ?AS IS? for your information and personal use only and may not be used, copied, reproduced, aggregated, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Provided that you are eligible to use the Services, you are granted a limited license to access and use the Services and the Company Content and to download or print a copy of any portion of the Company Content to which you have properly gained access solely for ordinary business purposes, reporting and record keeping. We reserve all rights not expressly granted to you in and to the Services and Company Content and Marks.
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.You are responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or American Business Software Account or any other breach of security. Notwithstanding Sections 20 and 21, in the event of any dispute between two or more parties as to account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any American Business Software Account subject to dispute) will be final and binding on all parties.
We strive to keep the Services up and running; however, all online services suffer
occasional disruptions and outages, and American Business Software is not liable for any disruption or loss you may suffer as a result. In the event of an outage, you may not be able to retrieve Your
Content or Data that you?ve stored. We recommend that you regularly backup Your Content
and Data that you store on the Services using the available backup functions.
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us. These communications may be generated by automatic telephone dialing systems which will deliver prerecorded messages, including for the purposes of secondary authentication, receipts, reminders and other notifications. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you. You may opt-out of receiving communications by following the unsubscribe options we provide to you. You acknowledge that opting out of receiving communications may impact your use of the Services.
10. Paid Services
American Business Software may offer Services to be paid for on a recurring basis (`Subscription Services`) or on an as-used basis (`A La Carte Services` and, together with the Subscription Services, `Paid Services`). American Business Software has the right to change, delete, discontinue or impose conditions on Paid Services or any feature or aspect of a Paid Service. Subscription Services may subject you to recurring fees and/or terms. By signing up for a Subscription Service, including after any free trial period, you agree to pay us the subscription fee and any applicable taxes as set forth in your American Business Software Account settings or as otherwise agreed in writing (`Subscription Fee`). A La Carte Services may subject you to fees charged per usage and/or terms. By using an A La Carte Service, you agree to pay the fees and any taxes incurred at the time of usage (`A La Carte Fees` and, together with Subscription Fees, the `Paid Service Fees`).Paid Service Fees may be paid by debit card, credit card, or bank draft. If you link a debit or credit card to your account, you authorize us to collect Paid Service Fees by debit from your linked debit card or charge to your linked credit card. Regardless of payment device, we reserve the right to collect Paid Service Fees by deduction from your transaction proceeds, the Balance (as defined in the Payment Terms) in your American Business Software Account or your linked bank account. Unless otherwise provided in a Subscription Service`s terms, Subscription Fees will be charged on the 1st of every month until cancelled. You may cancel a Subscription Service at any time from your American Business Software Account settings. If you cancel a Subscription Service, you will continue to have access to that Subscription Service through the end of your then current billing period, but you will not be entitled to a refund or credit for any Subscription Fee already due or paid. We reserve the right to change our Subscription Fee without notice. Your continued use of Subscription Services after a change to our Subscription Fee will constitute your agreement to such changes.
American Business Software will provide staff training, telephone support and Internet-based support as requested from time-to-time by Client at the American Business Software hourly rate in effect the service is requested, as long as such support is reasonably available, as determined by American Business Software.
A Phone Support Session is defined as a 15 minute period. Phone Consultation Sessions will be rounded up to the nearest whole 15 minute period. Phone Support Sessions lasting more than 15 minutes will be counted as multiple Phone Support Sessions. American Business Software reserves the right to limit each telephone call to one hour and to limit each call to one incident. American Business Software may also limit or terminate support service to a client who uses the service in an irregular, excessive, abusive or fraudulent manner. Support terms, conditions, support features, procedures, pricing and support availability are subject to change at any time without notice. Coverage is non-transferable and is valid for the individual purchaser only. Phone Support is available only to end users.
Prepaid support time must be used within 12 months from the date of prepayment. Service availability may occasionally deviate from stated business hours due to downtime for systems and server maintenance and observed U.S. holidays.
Inquires are limited to the following American Business Software product areas: installation, upgrade assistance, basic usability and basic functionality, as described in American Business Software product documentation. Phone Support does not cover inquires on accounting practices or include application consulting or training. American Business Software cannot provide clients with accounting advice, input entire customer, vendor or item lists, input historical transactions or perform data recovery. American Business Software does not provide technical support or troubleshoot systems. Calls will be scheduled during normal business hours.
American Business Software offers products and services to Client, including Application Setup, Design, Development, Modifications, Training and Support Services. American Business Software will work together with Client to reach operational status as quickly as possible under all of the circumstances. Client realizes that, depending on the nature of the work which needs to be done and the availability of hardware and other resources, in some situations it could conceivably take several months to reach full operational status. Also, Client realizes that for many factors outside American Business Software?s control, it is difficult, if not impossible, to predict how long it will take to become operational for any particular Client.
American Business Software will provide these services on an hourly basis, plus expenses. Client realizes that, depending on a variety of circumstances, the total cost for the services required to reach fully operational status can reach, or even exceed, the license fee of the software products.
Although sales quotes and estimates can often provide some guidance when budgeting for a particular project, those sales quotes and estimates should not, and cannot, be viewed as establishing specific limits on the overall cost of any particular project. Establishing budgetary limitations is the sole responsibility of Client, and American Business Software will not be bound by any self-imposed limitation established by a client unless such limitation is specifically agreed to in writing and signed by an authorized representative of American Business Software.
Any license fees payable for the services shall be the price in effect at the time the services are ordered. American Business Software shall be entitled to change the license fees and price of the services without notice to Client. The fees payable for Services are billed on an hourly basis for time spent on the client`s behalf at the rate currently in effect. American Business Software bills per hour or part thereof during business hours, plus time and a half for evenings and weekends. American Business Software hourly rates are subject to change without notice. All costs, plus a markup, incurred in performing the proposed services or for third party products or services are in addition to fees. Any costs advanced will be included in the invoice. In addition to the license fees payable for the Services, Client shall bear and pay all related costs for shipping, taxes, and handling. With approved credit, all license fees and other amounts shall be due and payable as specified in the American Business Software notice of credit approval. Otherwise, all amounts payable under this Agreement are due at the time each order is placed by Client. Client agrees to pay interest on past due balances at the rate of the lesser of 1.5% per month together or the maximum rate allowed by applicable law with necessary collection charges. All returned third party products are subject to a 25% restocking charge and must be authorized by American Business Software prior to return. NO RETURNS ARE ALLOWED ON THE PRODUCTS OR SERVICES EXCEPT AS MAY BE PROVIDED UNDER THE AMERICAN BUSINESS SOFTWARE REFUND AGREEMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF AMERICAN BUSINESS SOFTWARE AND CLIENT.
We may terminate these Terms of Service or any Additional Terms, or suspend or terminate your American Business Software Account or your access to any Service, at any time for any reason. We will take reasonable steps to notify you of termination by email or at the next time you attempt to access your American Business Software Account. You may also terminate the Terms of Service and Additional Terms applicable to your American Business Software Account by deactivating your American Business Software Account at any time.
12. Effect of Termination
If these Terms of Service or your American Business Software Account is terminated or suspended for any reason: (a) the license and any other rights granted under these Terms of Service and any Additional Terms will end, (b) we may (but have no obligation to) delete your information and account data stored on our servers, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data. In addition to any payment obligations under the Payment Terms, the following sections of these Terms of Service survive and remain in effect in accordance with their terms upon termination: 6 (Your Content), 7 (Copyright and Trademark Infringement), 12 (Effect of Termination), 14 (Ownership), 15 (Indemnity), 16 (Representations and Warranties), 17 (No Warranties), 18 (Limitation of Liability and Damages), 19 (Third Party Products), 20 (Disputes), 21 (Binding Individual Arbitration), 22 (Governing Law), 23 (Limitation on Time to Initiate a Dispute), 24 (Assignment), 25 (Third Party Service and Links to Other Web Sites), and 26 (Other Provisions).
13. Your License
We grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the software that is part of the Services, as authorized in these Terms of Service. We may make software updates to the Services available to you, which you must install to continue using the Services. Any such software updates may be subject to additional terms made known to you at that time.
Client may not:
b. Reverse engineer, decompile, or disassemble any portion of the Software;
c. Allow any third parties to make unauthorized copies of, or study the inner workings of the Software or any portion thereof;
a. Determine whether the Software and Services to be licensed meets its needs and expectations;
b. Actively assist in providing training and technical support for users of the Software and Services:
c. Complete and return any and all software and hardware Registration and Warranty Cards to the respective Manufacturers:
d. Designate a member of their staff as the Authorized Client Representative. Authorized Client Representative will prioritize and coordinate all client requests and communications as well as approve all work assignments and invoices presented for payment.
Any responsibility or obligation not specifically assigned to American Business Software under the terms of this Agreement remains Client?s responsibility.
We reserve all rights not expressly granted to you in these Terms of Service. We own all rights, title, interest, copyright and other worldwide Intellectual Property Rights (as defined below) in the Services and all copies of the Services. We also retain exclusive title and all other rights to any and all portions of the software which may be customized, developed, altered or modified specifically for the you. All aspects of the software, including without limitation, programs, methods of processing, specific design and structure of individual programs and their interaction, and the unique programming techniques employed therein shall remain the sole and exclusive property of American Business Software and shall not be sold, revealed, disclosed or otherwise communicated, directly or indirectly, by Client or Client?s representatives to any person, company or institution whatsoever. These Terms of Service do not grant you any rights to our trademarks or service marks. For the purposes of these Terms of Service, `Intellectual Property Rights` means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction. You may submit comments or ideas about the Services (`Ideas`). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys` fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms of Service or any Additional Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; and (e) any other party`s access and/or use of the Services with your unique name, password or other appropriate security code.
16. Representations and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these Terms of Service; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including the Health Insurance Portability and Accountability Act (`HIPAA`); (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) your use of the Services will be in compliance with these Terms of Service and applicable Additional Terms.
17. No Warranties
THE USE OF `AMERICAN BUSINESS SOFTWARE` IN SECTIONS 17 AND 18 MEANS AMERICAN BUSINESS SOFTWARE, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).THE SERVICES ARE PROVIDED `AS IS` WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, AMERICAN BUSINESS SOFTWARE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. AMERICAN BUSINESS SOFTWARE DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. AMERICAN BUSINESS SOFTWARE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY. AMERICAN BUSINESS SOFTWARE DOES NOT HAVE CONTROL OF, OR LIABILITY FOR, GOODS OR SERVICES THAT ARE PAID FOR USING THE SERVICES.
AMERICAN BUSINESS SOFTWARE HAS NOT AGREED TO MAKE WHATEVER CHANGES CLIENT MIGHT WISH MADE IN THE SERVICES LICENSED TO CLIENT IN ORDER TO ALLOW CLIENT TO USE THE SERVICES AS CLIENT MIGHT LIKE TO USE IT. IF AMERICAN BUSINESS SOFTWARE MAKES REVISIONS OR UPDATES, FROM TIME TO TIME, TO CERTAIN PORTIONS OF THE SERVICES, THOSE REVISIONS AND UPDATES REMAIN AMERICAN BUSINESS SOFTWARE`S COPYRIGHTED PROPERTY. FURTHERMORE, AMERICAN BUSINESS SOFTWARE HAS NOT GUARANTEED THAT ANY SUCH REVISIONS OR UPDATES WHICH MAY BE LICENSED TO CLIENT WILL BE OFFERED FREE OF CHARGE.
NO AGENT OF AMERICAN BUSINESS SOFTWARE IS AUTHORIZED TO ALTER THIS AGREEMENT OR EXTEND ANY WARRANTY OF ANY KIND TO ANY CLIENT OF AMERICAN BUSINESS SOFTWARE. THE ENTIRE RISK AS TO THE QUALITY OF, OR ARISING OUT OF THE USE OR PERFORMANCE OF, THE SERVICES REMAINS WITH THE CLIENT. THE PARTIES AGREE THAT AMERICAN BUSINESS SOFTWARE`S LIABILITY, IF ANY, FOR ANY DAMAGES RELATING TO ANY SOFTWARE, HARDWARE, OR SERVICES RELATED TO THIS AGREEMENT WILL BE LIMITED TO REPLACEMENT OF DEFECTIVE MEDIA. THIS LIABILITY, IF ANY, IS VOID IF FAILURE OF THE SERVICES HAS RESULTED FROM ACCIDENT, ABUSE, OR MISAPPLICATION. THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND INDEPENDENT OF ANY FAILURE OF ESSENTIAL PURPOSE OF THE REMEDIES PROVIDED HEREUNDER. NO CLAIM MAY BE BROUGHT BY CLIENT UNDER THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER ACCRUAL OF SUCH CLAIM. CLIENT UNDERSTANDS THAT AMERICAN BUSINESS SOFTWARE`S LICENSE FEES DEPEND IN PART ON THE FOREGOING EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY.
CLIENT UNDERSTANDS THAT THE SERVICES PROVIDED BY AMERICAN BUSINESS SOFTWARE DO NOT CONSTITUTE ACCOUNTING, LEGAL OR OTHER PROFESSIONAL ADVICE. CLIENT IS EXPECTED TO RETAIN THE SERVICES OF SUCH PROFESSIONALS AS MAY BE REQUIRED IN CLIENT`S SOLE JUDGMENT TO REVIEW AND APPROVE USE OF THE SERVICES IN CLIENT`S ENVIRONMENT.
IF AN IMPLIED WARRANTY OR CONDITION IS CREATED BY CLIENT`S STATE/JURISDICTION AND FEDERAL OR STATE/PROVINCIAL LAW PROHIBITS DISCLAIMER OF IT, CLIENT HAS AN IMPLIED WARRANTY, BUT ONLY AS TO SERVICE DEFECTS DISCOVERED AND REPORTED TO AMERICAN BUSINESS SOFTWARE DURING THE PERIOD OF THIRTY (30) DAYS AFTER INSTALLATION OF THE SERVICES. AS TO DEFECTS DISCOVERED AFTER THAT PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND.
AMERICAN BUSINESS SOFTWARE WILL SUPPORT THE CURRENT VERSION OF THE SOFTWARE AND SERVICES AND ANY PREVIOUS VERSIONS THAT AMERICAN BUSINESS SOFTWARE ELECTS TO SUPPORT. HOWEVER, DUE TO THE CONSTANTLY CHANGING ENVIRONMENT OF PERSONAL COMPUTER TECHNOLOGY, PREVIOUS VERSIONS MAY BECOME INOPERABLE OR INCOMPATIBLE WITH CURRENT OPERATING SYSTEMS, HARDWARE, OR OTHER TECHNOLOGIES. FOR CLIENT TO CONTINUE TO OPERATE SUCCESSFULLY, IT MAY BE NECESSARY TO UPGRADE THEIR OPERATING SYSTEM, HARDWARE, OR OTHER TECHNOLOGIES. ANY SUBSEQUENT SUPPORT REQUIRES THE PURCHASE OF A SUPPORT OPTION. LIKEWISE, CHANGES IN STATE, FEDERAL OR LOCAL TAX LAWS MAY RENDER SERVICES, OR PREVIOUS VERSIONS, OBSOLETE. TO CONTINUE TO OPERATE SUCCESSFULLY, IT MAY BE NECESSARY FOR CLIENT TO PURCHASE AN UPGRADE. THIS PROGRAM HAS BEEN DESIGNED TO WORK IN THE ENVIRONMENT DOCUMENTED BY AMERICAN BUSINESS SOFTWARE. ANY DEFECTS, INCONSISTENCIES, OR ISSUES ARISING OUT OF OPERATING OUTSIDE THE PARAMETERS SET FORTH BY AMERICAN BUSINESS SOFTWARE MAY REQUIRE THE LICENSEE TO PAY ADDITIONAL MAINTENANCE/SERVICE COSTS TO AMERICAN BUSINESS SOFTWARE FOR SUPPORT AND/OR TO RECTIFY ANY SUCH PROBLEMS. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON`T OCCUR, NOR DO WE GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM THE COMPUTER NETWORKS.
18. Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AMERICAN BUSINESS SOFTWARE BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL CASES, AMERICAN BUSINESS SOFTWARE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE. UNDER NO CIRCUMSTANCES WILL AMERICAN BUSINESS SOFTWARE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR AMERICAN BUSINESS SOFTWARE ACCOUNT, OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF AMERICAN BUSINESS SOFTWARE IS LIMITED TO THE LESSOR OF (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY, OR (B) $500.THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF AMERICAN BUSINESS SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
19. Third Party Products
All third party hardware and other products included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. American Business Software MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
`Disputes` are defined as any claim, controversy, or dispute between you and American Business Software, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms of Service, any Additional Terms, or the Services, or any other aspect of our relationship.
21. Binding Individual Arbitration
You and American Business Software agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THESE TERMS OF SERVICE WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST AMERICAN BUSINESS SOFTWARE. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).
In the event any dispute arises under the terms of this Agreement, before Client files any claim in any civil court, or initiates any arbitration proceeding in which American Business Software is a party, Client shall first attempt to resolve the dispute informally through mediation with American Business Software. All mediation proceedings shall be conducted in the English language, in-person and shall take place in Albany, Oregon. The mediation shall consist of a single mediator to be agreed upon by the parties. The mediator must have a background in computer software engineering and a working knowledge concerning the general type of software or website functionality at issue. In the event the parties are unable to resolve the dispute in informal mediation, the matter must then be submitted to an independent, unbiased, expert with a background in computer software engineering and a working knowledge concerning the general type of software or website functionality at issue. If either party is dissatisfied with the recommendations for resolution provided by that expert, such party may then, and only then, pursue whatever other remedies may then be available to that party.
Except as provided elsewhere in this agreement, any dispute arising out of or in connection with this agreement not otherwise resolved through mediation, or through discussions with said expert, shall be decided by arbitration. All arbitration proceedings shall be conducted in the English language, in-person and shall take place in Albany, Oregon. The arbitration tribunal shall consist of a single arbitrator to be agreed upon by the parties. The arbitrator must have a background in computer software engineering and a working knowledge concerning the general type of software or website functionality at issue. Any party intending to initiate an arbitration proceeding shall notify the other party of such intention by sending a demand for arbitration to the other party by certified mail, return receipt requested, describing the matter in dispute and the nature of the relief requested. The arbitrator shall resolve disputes in accordance with the laws of the State of Oregon and shall have the power to order, among other things, specific performance and injunctive relief. The arbitrator, however, shall not have the power to award punitive damages. Any arbitration conducted pursuant to this agreement shall be completed within a period of ninety (90) days after the date either party hereto receives from the other a written demand for arbitration. The fees of the arbitrator and the expenses incident to any arbitration proceedings conducted pursuant to this agreement shall be borne equally by the parties to such arbitration. All other expenses, including a party`s attorney fees, shall be borne by the party incurring such expenses.
22. Governing Law
This Agreement shall be governed in all respects by the laws of Oregon without regard to its conflicts of laws rules. Client hereby irrevocably consents to the jurisdiction of the state courts located in Linn County, Oregon, and of the federal courts located in Multnomah County, Oregon in any action arising out of or relating to this Agreement, and agrees that any action arising out of or relating to this Agreement shall be maintained in the same venue. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable under any applicable statute or rule of law, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
23. Limitation on Time to Initiate a Dispute
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.
25. Third Party Services and Links to Other Web Sites
26. Other Provisions
These Terms of Service, and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and American Business Software regarding the Services. In the event of a conflict between these Terms of Service and any other American Business Software agreement or Policy, these Terms of Service will prevail and control the subject matter of such conflict. If any provision of these Terms of Service or any Additional Term is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These Terms of Service do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these Terms of Service will be deemed a further or continuing waiver of such term or any other term.
Client has no authority to assume, create, or incur any obligation or liability on behalf of American Business Software.
Client agrees not to make any statement at any time in the future, whether written or oral, to any third party, which is derogatory or disparaging of any of the software or services provided by American Business Software. Notwithstanding any other provision of this agreement, the forgoing provision concerning statements to third parties shall survive the termination of this agreement.
The headings in this Agreement are for the purposes of reference only and shall not limit or define the meaning of the provisions of this Agreement.
This Agreement sets forth the entire understanding and supersedes and merges all prior and contemporaneous agreements between the parties relating to the subject matter contained herein. Any modification of this Agreement must be in writing and signed by an authorized representative of American Business Software and Client. Any release or termination of this Agreement must also be in a signed writing. All waivers hereunder must be made in writing, and failure at any time to require the other party?s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver of any breach of this Agreement shall not be construed as a waiver of any continuing or succeeding breach.
Any notice required or permitted by this Agreement shall be in writing and delivered by personal delivery or by registered or certified mail to the address of the receiving party or to any other address of which the sending party has written notice, and will be deemed effective upon mailing.
CLIENT ACKNOWLEDGES HAVING READ, UNDERSTOOD, AND RECEIVED A COPY OF THIS AGREEMENT, AVAILABLE AT WWW.AMERICANBUSINESSSOFT.COM, AND HEREBY AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. CLIENT REPRESENTS AND WARRANTS THAT CLIENT HAS MADE NO ADDITIONS, CHANGES OR DELETIONS TO THIS AGREEMENT WHICH HAVE NOT BEEN INITIALED BY CLIENT AND DISCUSSED WITH, AND ALSO INITIALED BY, AN AUTHORIZED REPRESENTATIVE OF AMERICAN BUSINESS SOFTWARE. THE REPRESENTATIVE OF CLIENT FURTHER REPRESENTS AND WARRANTS THAT SAID REPRESENTATIVE HAS OBTAINED ALL AUTHORIZATIONS, CONSENTS AND APPROVALS AS ARE CONDITIONS PRECEDENT TO HIS OR HER AUTHORITY TO EXECUTE THIS AGREEMENT AND THUS WARRANTS THAT THEY ARE FULLY AUTHORIZED TO BIND CLIENT TO THE TERMS OF THIS AGREEMENT.