In consideration of the premises and mutual covenants herein, the parties hereby agree as follows:
BY SUBSCRIBING TO THE DEVICEBITS SERVICE (THE “SERVICE”), YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”). PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
The following terms are used throughout the Agreement, and have specific meanings. You should know what they mean. As used in this Agreement:
The “Service” means the business-to-consumer messaging technology and service provided by DeviceBits, Inc;
The “Website” refers to the DeviceBits website located at https://www.DeviceBits.com/, and all content, services, and products available at or through the Website, notably access to the User Account;
The “Subscriber”, “User”, “You” and “Your” refer to the individual person that is entering into this Agreement with us, or his or her representative;
“DeviceBits”, “We” and “Us” refer to DeviceBits, Inc., as well as its affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees;
“Subscription” means a recurring right to receive Service;
“Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
“Subscriber Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service;
“Effective Date” means the date the Service commences;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“DeviceBits” is an Ohio Limited Liability Company, having its principal place of business at 929 Harrison Ave. Suite 100 Columbus, OH 43215;
“Service Technology” means all DeviceBits proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by DeviceBits in providing the Service;
Privacy and Security; Disclosure.
License Grant & Restrictions.
DeviceBits hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service Technology, solely for your own purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by DeviceBits and its licensors.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, Service Technology or the Content in any way; (ii) modify or make derivative works based upon the Service, Service Technology or the Content; (iii) create Internet “links” to the Service or Service Technology or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service or Service Technology in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service or Service Technology, or (c) copy any ideas, features, functions or graphics of the Service or Service Technology.
You may use the Service only for your business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violate third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to physical storage of items, data privacy, international communications and the transmission of technical or personal data. You shall abide by all DeviceBits policies and your use of the Service shall solely be for purposes that are permitted by this Agreement. You shall: (i) notify DeviceBits immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to DeviceBits immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you; and (iii) not impersonate another DeviceBits user or provide false identity information to gain access to or use the Service.
You are responsible for paying your DeviceBits Subscription Fees on time and ensuring that your Subscription to DeviceBits does not lapse.
Account Information and Data.
DeviceBits does not own any Subscriber Data. You, not DeviceBits, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Subscriber Data, and DeviceBits shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Subscriber Data. DeviceBits reserves the right to withhold, remove and/or discard Subscriber Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Subscriber Data immediately ceases, and DeviceBits shall have no obligation to maintain or forward any Subscriber Data.
Intellectual Property Ownership.
DeviceBits alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Service and Content and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party related to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service or the Intellectual Property Rights owned by DeviceBits. The DeviceBits name, the DeviceBits logo, and the product names associated with the Service are trademarks of DeviceBits or third parties, and no right or license is granted to use them.
Third Party Interactions.
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. DeviceBits and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party.
Charges and Payment of Fees.
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the applicable Subscription fees currently in effect. Payments will be made once every month. You are responsible for paying for your Subscription for the entire Subscription Term (Initial Term or Renewal Term), whether or not such Subscription is actively used. You must provide DeviceBits with a valid credit card to remain on-file as a condition of signing up for the Service. DeviceBits’ pricing and payment terms will be provided in a monthly invoice email. DeviceBits reserves the right to modify its pricing and payment terms and to introduce new charges at expiration of either the Initial Term or Renewal Term, upon at least 30 days prior notice to you, which notice may be provided by e-mail.
In the event that You fail to make timely payments or fail to make payment in full within the time period set forth on the invoice or expressly agreed upon in writing by the parties, such failure will constitute a material breach of contract by You permitting DeviceBits to suspend the Service and/or terminate this Agreement or any other agreement between You and DeviceBits. You shall pay to DeviceBits’ interest on any unpaid amount at the maximum rate permitted by law or the Prime Rate as published in the Money Market Section of the Wall Street Journal on the first day of the month such amounts first become past due, plus eight percent (8%), whichever is greater. DeviceBits shall have, in addition, all other remedies permitted to DeviceBits by law, equity or this Agreement. If DeviceBits takes legal action to collect any amount due hereunder, You shall pay all dispute resolution costs, including court costs plus reasonable attorney fees incurred by DeviceBits in bringing such legal action. DeviceBits shall have the right to set off against any monies due DeviceBits hereunder any obligations of DeviceBits or its affiliates to You.
Billing and Renewal.
DeviceBits charges and collects in advance for use of the Service. DeviceBits will automatically renew and bill your on-file credit card once every month for your Subscription. The renewal charge will be equal to the then-current Subscription fee in effect during the month, unless DeviceBits has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. DeviceBits’ 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 DeviceBits’ income.
You agree to provide DeviceBits with complete and accurate billing and contact information. This information includes your legal name, street address, e-mail address, and telephone. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, DeviceBits reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless DeviceBits in its discretion determines otherwise, you will be billed in U.S. dollars and will be subject to U.S. payment terms and pricing.
If you believe your bill is incorrect, you must contact us in writing within 60 days of receiving the bill in question to be eligible to receive an adjustment or credit. Please contact us at support@DeviceBits.com
You may cancel your Subscription at any time by logging on to your User account or contacting support; however, you will be billed for your cancelled Subscription for the remainder of the Term.
By agreeing to these Terms, you are giving us permission to charge your on-file credit card for fees that you authorize for DeviceBits. Depending on the transaction, we may charge you on a one-time or a recurring basis.
Client and DeviceBits may agree to enter an evaluation subscription, the Service (“Evaluation Period”), will be mutually discussed, agreed upon, and executed on a separate Agreement, subject to terms and conditions outside this Agreement. During the Evaluation Period, you shall not be charged any Fees by DeviceBits. DeviceBits reserves the right to terminate your Evaluation Subscription at any time, upon seven (7) days written notice to you, which notice may be provided by email.
Non-Payment and Suspension.
In addition to any other rights granted to DeviceBits herein, DeviceBits reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). If you or DeviceBits initiates termination of this Agreement, you will be obligated to pay the balance due on your account. You agree that DeviceBits may charge such unpaid fees to your on-file credit card.
You agree and acknowledge that DeviceBits has no obligation to retain Subscriber Data and that such Subscriber Data may be irretrievably deleted if your account is 60 days or more delinquent.
Term and termination upon Expiration.
This Agreement commences on the Effective Date. The Initial Term will be one (1) year, commencing on the date when the Evaluation Period ends. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive Renewal Terms. Each Renewal Term will be equal to one (1) year. Either party may terminate this Agreement, effective only upon the expiration of the then current Subscription Term by providing written notice of non-renewal at least 30 days prior to the expiration of the then current Subscription Term. You agree and acknowledge that DeviceBits has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, more than 30 days after termination.
Termination for Cause.
Any breach of your payment obligations or unauthorized use of the Service will be deemed a material breach of this Agreement. DeviceBits, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. You agree and acknowledge that DeviceBits has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
Representations & Warranties.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. DeviceBits represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You agree to indemnify and hold DeviceBits, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with your use of the Service, including but not limited to your violation of this Agreement or misuse of the Service. If you harm someone else, misuse our Service, or get into a dispute with someone else, we will not be involved.
Disclaimer of Warranties.
DEVICEBITS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR SERVICE TECHNOLOGY OR ANY CONTENT. DEVICEBITS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY DEVICEBITS AND ITS LICENSORS.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DEVICEBITS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability.
In no event will DeviceBits be liable to you for any loss of profits, use, or data, or for any incidental, indirect, special, consequential or exemplary damages, however arising, even if foreseeable, that result from (i) your use or inability to use the Service; (ii) the Service generally; the timeliness or availability of the Service; or your access to Subscriber Property; or (iii) any other interactions with DeviceBits, whether based on warranty, contract, tort (including negligence) or any other legal theory, and whether or not we have been informed of the possibility of such damage, and even if a remedy set forth in this agreement is found to have failed of its essential purpose. We will have no liability for any failure or delay due to matters beyond our reasonable control.
DeviceBits will not be liable for any default or delay in performance of any of our obligations under this Agreement, or for the damage or destruction of any Subscriber Property, if caused, directly or indirectly, by fire, earthquake, flood, the elements, or other such causes; labor disputes, strikes, or lockouts; wars, acts of terrorism, riots, or civil disorder; environmental disaster; accidents or unavoidable casualties; interruptions of or delays in transportation or communication; governmental action or change in regulation; or any similar cause beyond DeviceBits’ control.
IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
Local Laws and Export Control.
This Service provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. User acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
DeviceBits and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
DeviceBits may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in your Subscription account information, or by written communication sent by nationally recognized overnight courier to your address on record in your Subscription account information. Such notice shall be deemed to have been given upon the expiration of 24 hours after mailing (if sent by nationally recognized overnight courier) or 12 hours after sending (if sent by email). You may give notice to DeviceBits (such notice shall be deemed given when received by DeviceBits) at any time by any of the following: letter sent by a nationally recognized overnight courier to DeviceBits at the following address: 929 Harrison Ave. Suite 100 Columbus, OH 43215, USA, addressed to the attention of: Chief Financial Officer, or via email to support@DeviceBits.com. Copies of any notices to DeviceBits will be simultaneously delivered to John W. Hilbert II, Esq., Shumaker, Loop & Kendrick, LLP, 1000 Jackson Street, Toledo, Ohio 43604.
Modification to Terms.
DeviceBits reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
Assignment; Change in Control.
This Agreement may not be assigned by you without the prior written approval of DeviceBits but may be assigned without your consent by DeviceBits to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
Throughout this Agreement, section headings and numbers are used as a matter of convenience and are not legally binding. This Agreement shall be governed by Ohio law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Franklin County, Ohio and each party irrevocably submits to the jurisdiction of the state and federal courts in Franklin County, Ohio. You, waive any right, statutory or otherwise, to remove from state court to federal court any lawsuit filed against You arising out of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of DeviceBits to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by DeviceBits in writing. Our rights under this Agreement will survive any termination of this Agreement. You agree that any cause of action related to or arising out of your relationship with DeviceBits must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred. This Agreement comprises the entire agreement between you and DeviceBits and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. This Agreement may only be modified by a written amendment signed by an authorized executive of DeviceBits, or by posting by DeviceBits of a revised version.