1. Authorization. BAHCS, LLC will
need to remotely connect to your
computer system in order to provide the
Services to you. By clicking "I Accept"
below, you hereby consent to BAHCS, LLC
remotely connecting to your computer
system for the sole and exclusive
purpose of providing the Services to
you. In order to facilitate such a
connection, BAHCS, LLC will temporarily
install agent software on your computer
system. Prior to BAHCS, LLC remotely
connecting to your computer system, you
will be prompted to permit BAHCS, LLC's
help desk technician to connect to your
computer system, so you will know when
BAHCS, LLC connects to your system.
Following provision of the Services,
BAHCS, LLC will close its connection to
your computer system, remove any agent
software used to facilitate the
connection, and will not connect to your
computer system again without your
permission. If you do not permit BAHCS,
LLC to remotely connect, BAHCS, LLC will
not be able to provide certain Services.
If you do not want BAHCS, LLC to
remotely connect to your computer
system, click on "I Decline," and BAHCS,
LLC will not provide the Services.
2. Release. EXCEPT FOR THE WILLFUL
MISCONDUCT OF BAHCS, LLC, YOU HEREBY
RELEASE BAHCS, LLC FROM ANY AND ALL
LIABILITY AND CAUSES OF ACTION ARISING
OUT OF OR RELATED TO BAHCS, LLC'S REMOTE
CONNECTION TO YOUR COMPUTER SYSTEM, AND
HEREBY ASSUME ALL RISK RELATED TO SAME.
FEES, EXPENSES AND PAYMENT. In
consideration of the Services provided
to you by BAHCS, LLC, you shall pay the
fees stated for such Services as stated
on the services order page (the "Fees").
Payment of any Fees shall be in advance.
All payment obligations are
non-cancelable and all amounts paid are
non-refundable. The Fees are exclusive
of all taxes, levies, or duties imposed
by taxing authorities, and you shall be
responsible for payment of all such
taxes, levies or duties, excluding only
United States (federal or state) taxes
based solely on BAHCS, LLC's income.
PROPRIETARY RIGHTS. The Services,
including, without limitation, any of
BAHCS, LLC's operations, designs,
content, software, processes,
procedures, templates, documentation,
know-how, good will, trade secrets and
any related intellectual property rights
throughout the world, and any derivative
works, improvements, modifications,
enhancements or extensions thereof are
and shall remain the sole and exclusive
property of BAHCS, LLC, and you shall
receive no interest in them whatsoever.
YOUR OBLIGATIONS.
3. You shall cooperate fully with
BAHCS, LLC and BAHCS, LLC personnel in
relation to the provision of the
Services. You shall retain
responsibility for your compliance with
all applicable federal, state and local
laws and regulations.
4. You shall not (i) license,
sublicense, sell, resell, transfer,
assign, distribute or otherwise
commercially exploit or make available
to any third party the Services in any
way; (ii) modify or make derivative
works based upon the Services; or (iii)
reverse engineer or access the Services
in order to build a competitive product
or service to the Services.
CONFIDENTIAL INFORMATION; PRIVACY.
BAHCS, LLC acknowledges that any
information or materials provided by
you, or made available pursuant to our
access to your computer system in the
course of providing the Services may
include confidential and proprietary
information. BAHCS, LLC covenants and
agrees (i) not to use any confidential
or proprietary information disclosed to
it for its own use or for any purpose
other than to provide the Services, and
(ii) to protect the secrecy of and avoid
disclosure of such confidential or
proprietary information to third parties
other than those persons authorized
under this Agreement to have such
information. BAHCS, LLC does not own any
data, information or material that you
submit or otherwise make available to
BAHCS, LLC as part of the Services
("Customer Data"). You, not BAHCS, LLC,
shall have sole responsibility for the
accuracy, quality, integrity, legality,
reliability, appropriateness and rights
of use for all Customer Data, and BAHCS,
LLC shall not be responsible or liable
for the deletion, correction,
destruction, damage, loss or failure to
store any Customer Data. Notwithstanding
the foregoing, you acknowledge and agree
that BAHCS, LLC may use information that
you provide to BAHCS, LLC via any order
form or customer survey in accordance
with the privacy policy [insert link to
privacy policy], incorporated herein by
reference.
RELATIONSHIP OF THE PARTIES. Nothing
in this Agreement shall be construed as
creating an agency, partnership, or
joint venture relationship between
BAHCS, LLC and you. This Agreement is
not a work-for-hire agreement. BAHCS,
LLC retains on an exclusive basis for
itself all rights, title and interest in
and to any intellectual property
developed, delivered and/or used by
BAHCS, LLC in the delivery and
performance of the Services under this
Agreement.
ENTIRE AGREEMENT. This Agreement,
including all order forms submitted with
the Agreement, represents the entire
agreement between BAHCS, LLC and you
with respect to the subject matter
hereof and shall supersede all prior
agreements and communications of the
parties, oral or written
WAIVER. The waiver by any party of
any breach or default shall not
constitute a waiver of any different or
subsequent breach or default.
GOVERNING LAW; USE OUTSIDE OF THE
U.S.; VENUE
5. This Agreement shall be governed
by and interpreted in accordance with
the laws of the State of California
without
regard to the conflicts of laws
principles thereof. BAHCS, LLC and its
licensors make no representation that
the Services are appropriate or
available for use in locations outside
of the United States. If you use the
Service from outside the United States,
you are solely responsible for
compliance with all applicable laws,
including without limitation, export and
import regulations of the United States
and other countries.
6. Any action or proceeding seeking
to enforce any provision of, or based on
any right arising out of, this Agreement
shall be brought against any of the
parties only in the state or federal
courts sitting within San Mateo County,
California
and
each of the parties hereto consents to
the exclusive jurisdiction of such
courts in any such action or proceeding
and irrevocably waives any objection
based upon inconvenience of the forum or
otherwise to venue therein. Process in
any action or proceeding referred to in
the preceding sentence may be served on
any party anywhere in the world.
SUCCESSORS AND ASSIGNS. This
Agreement may not be assigned by you, by
operation of law or otherwise, without
the prior written consent of BAHCS, LLC.
This Agreement shall be binding upon,
and inure to the benefit of, the
permitted successors and assigns of each
party. Any purported assignment other
than as permitted in this Section 11
shall be null and void.
NOTICES. All notices, requests,
consents and other communications which
are required or permitted hereunder
shall be in writing, and shall be
delivered by registered U.S. mail,
postage prepaid (effective three (3)
days after mailing) or sent by facsimile
or electronic mail, with a confirmation
copy simultaneously sent by U.S. mail,
postage prepaid (effective upon
transmission), at, if the notice is sent
to you, the address set forth on the
order form, and if the notice is sent to
BAHCS, LLC, the following address: Attn:
Customer Service, PO Box 5251, Redwood
City, CA 94063. Notice of change of
address shall be given in the same
manner as other communications.
SEVERABILITY; NO ADDITIONAL TERMS. If
any provision of this Agreement is held
to be invalid, illegal or unenforceable
for any reason, such invalidity,
illegality or unenforceability shall not
affect any other provisions of this
Agreement, and this Agreement shall be
construed as if such invalid, illegal or
unenforceable provision had never been
contained herein. Except for the order
form submitted with this Agreement, no
text, information or terms and
conditions set forth on any other
purchase order, preprinted form or other
similar document shall add to or vary
the terms and conditions of this
Agreement.
NON-SOLICITATION. During the term of
this Agreement, and for a period of
twelve (12) months thereafter, you shall
not, directly or indirectly, solicit,
offer work to or employ any BAHCS, LLC
personnel providing or associated with
any services performed under this
Agreement.
SURVIVAL. This Agreement shall expire
upon the completion of the Services by
BAHCS, LLC. Sections 2B, 3, 4, and 6-20
as well as any accrued payment
obligations, shall survive any
expiration or termination of this
Agreement.
DISCLAIMER OF WARRANTIES.
7. YOU AGREE THAT USE OF THE SERVICES
IS AT YOUR SOLE RISK. BAHCS, LLC MAKES
NO WARRANTIES OF ANY KIND, EXPRESS
IMPLIED OR STATUTORY, WITH RESPECT TO
THE SERVICES INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR GUARANTEE AS TO
THE RELIABILTY, TIMELINESS, QUALITY,
SUITABILITY, TRUTH, AVAILABILITY,
ACCURACY OR COMPLETENESS OF THE
SERVICES. BAHCS, LLC AND ITS LICENSORS
DO NOT REPRESENT OR WARRANT THAT (I) THE
USE OF THE SERVICES WILL BE SECURE,
TIMELY, UNINTERRUPTED OR ERROR-FREE OR
OPERATE IN COMBINATION WITH ANY OTHER
HARDWARE, SOFTWARE, SYSTEM OR DATA, OR
(II) THE SERVICES OR THE SERVER(S) THAT
MAKE THE SERVICE AVAILABLE ARE FREE OF
VIRUSES OR OTHER HARMFUL COMPONENTS.
8. ALL CONDITIONS, REPRESENTATIONS
AND WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE ARE
HEREBY DISCLAIMED TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW BY BAHCS,
LLC AND ITS LICENSORS. BAHCS, LLC'S
SERVICES MAY BE SUBJECT TO LIMITATIONS,
DELAYS AND OTHER PROBLEMS INHERENT IN
THE USE OF THE INTERNET AND ELECTRONIC
COMMUNCIATIONS. BAHCS, LLC IS NOT
RESPONSIBLE FOR ANY DELAYS, DELIVERY
FAILURES OR OTHER DAMAGE RESULTING FROM
SUCH PROBLEMS.
9. YOU UNDERSTAND AND AGREE THAT ANY
MATERIAL AND/OR DATA DOWNLOADED OR
OTHERWISE OBTAINED THROUGH THE USE OF
THE SERVICES IS DONE AT YOUR OWN
DISCRETION AND RISK AND THAT YOU WILL BE
SOLELY RESPONSIBLE FOR ANY DAMAGE TO
YOUR COMPUTER SYSTEM OR LOSS OF DATA
THAT RESULTS FROM THE DOWNLOAD OF SUCH
MATERIAL AND/OR DATA OR USE OF THE
SERVICES.
10. AS PART OF THE SERVICES BAHCS,
LLC MAY MAKE SUGGESTIONS WITH REGARD TO
USING THIRD PARTY PRODUCTS OR SERVICES.
BAHCS, LLC SHALL NOT BE RESPONSIBLE OR
LIABLE FOR THE PERFORMANCE OR
NON-PERFORMANCE OF ANY SUCH THIRD PARTY
PRODUCTS OR SERVICES, OR FOR ANY DAMAGES
SUSTAINED BY YOU ARISING FROM OR RELATED
TO USE OF SAME.
11. NO ADVICE OR INFORMATION, WHETHER
ORAL OR WRITTEN, OBTAINED BY YOU THROUGH
THE SERVICES SHALL CREATE ANY WARRANTY
NOT EXPRESSLY MADE HEREIN.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL BAHCS, LLC OR ANY
OF ITS LICENSORS BE LIABLE FOR THE COST
OF PROCUREMENT OF SUBSTITUTE SERVICES OR
TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE OR INDIRECT DAMAGES ON ANY
THEORY OF LIABILITY, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE.
BAHCS, LLC'S TOTAL LIABILITY UNDER
THIS AGREEMENT FOR BREACH THEREOF,
WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR ANY
OTHER LEGAL THEORY, AND YOUR EXCLUSIVE
REMEDY FOR ANY FAILURE OF THE SERVICES
OR BAHCS, LLC TO PERFORM IN ACCORDANCE
WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT, SHALL BE, AT BAHCS, LLC'S
ELECTION, EITHER (I) THE REPERFORMANCE
OF THE SERVICES, OR (II) A REFUND NOT TO
EXCEED THE TOTAL AMOUNTS PAID TO BAHCS,
LLC UNDER THIS AGREEMENT FOR THE
SERVICES THAT ARE THE SUBJECT MATTER OF
THE CLAIM. BAHCS, LLC SHALL NOT BE
LIABLE FOR ANY DAMAGES ARISING OUT OF OR
RELATING TO SERVICE INTERRUPTIONS, LOST,
ALTERED OR INACCURATE MESSAGES OR
TRANSMISSIONS; INTEROPERABILITY,
INTERACTION OR INTERCONNECTION PROBLEMS;
OR UNAUTHORIZED ACCESS TO OR THEFT,
ALTERATION, LOSS OR DESTRUCTION OF YOUR
OR THIRD PARTY'S APPLICATIONS, CONTENTS,
DATA, PROGRAMS, INFORMATION, NETWORK OR
SYSTEMS.
CERTAIN STATE LAWS 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.
20. PUBLICITY. You hereby grant to
BAHCS, LLC the right to: (a) use your
name, trademark, service mark and/or
logo in any press release, advertising
materials, BAHCS, LLC's web site and any
other promotional materials; (b) the use
of a quote provided or written by you in
a press release or on BAHCS, LLC's
website; and (c) identify you as a
customer of BAHCS, LLC.
By clicking on "I Accept", you
acknowledge that you have read this
Agreement and agree to be bound by its
terms and conditions. If you disagree
with any of the terms and conditions of
this Agreement, click "I Decline". By
clicking "I Decline" you will not be
bound by these terms and conditions, but
you will not be provided with any access
to the Services.