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Hello! Please keep reading these important Terms. They apply when you buy a monthly hosting and maintenance plan or use any of our services. Speaking of which, thank you for your interest. We appreciate you (and your apparent love of legal terms).
Who are we? We are Beyond Private Label. We might call ourselves “Beyond Private Label” (“We”, “Us” or “Our”).
Who are you? You are a customer, or you represent a customer, of our Beyond Private Label Services (as defined below). So, you be “You” (or “Your”).
A few things You should know right away:
THESE TERMS OF USE (“TERMS”) APPLY TO ALL SETUP AND MONTHLY MAINTENANCE AND MANAGEMENT FEES FOR BEYOND PRIVATE LABEL HOSTED WEBSITES AS A SERVICE AND ANY OTHER RELATED SERVICES THAT WE MAY PROVIDE TO YOU WHEN YOU ACCEPT THESE TERMS AS SET FORTH IN ANY ONLINE OR PRINTED ORDER FORM (AS DEFINED BELOW), AND YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. THESE TERMS ALSO INCLUDE AND INCORPORATE ANY BEYOND PRIVATE LABEL POLICY POSTED ON WWW.BEYONDPRIVATELABEL.COM/LEGAL. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE READ THESE TERMS, YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT ACCEPT THE ORDER FORM AND YOU SHALL NOT BE PERMITTED TO USE THE BEYOND PRIVATE LABEL SERVICE. YOU MUST BE AT LEAST 18 YEARS OF AGE TO PURCHASE OR USE THE BEYOND PRIVATE LABEL SERVICE OR PROFESSIONAL SERVICES.
Section 1: Definitions
“Authorized User” means any of Your employees, consultants, contractors or agents authorized to access and use the Beyond Private Label Service on behalf of Your business, in each case subject to such person’s agreement to be bound by these Terms.
“Front End Code” means our display and usability of our custom websites we made for you. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.
“Beyond Private Label Materials” means any documentation, user guides, or other similar materials provided by Beyond Private Label to You in connection with Your use of the Beyond Private Label Service.
“Beyond Private Label Service” means any of the Beyond Private Label set of solutions that are developed, operated, and maintained by Beyond Private Label (and its third party service providers) and that are subscribed to through an Beyond Private Label branded or controlled website (or Beyond Private Label partner website) that includes a link to or makes reference to these Terms. The definition of Beyond Private Label Service does not include any separate Professional Services (as defined below) that may be purchased by You from Beyond Private Label.
“Order Form” means any online or written order form or contract for the Beyond Private Label Service or for Professional Services submitted by You either during an online subscription process or separately signed by You and submitted to Beyond Private Label, and any future purchase order, contract, or order form that makes reference to these Terms.
“Professional Services” means any implementation, training or other professional services provided by Beyond Private Label to You pursuant to the terms of an Order Form.
“Subscription Term” means the use term for the Beyond Private Label Service set forth on Your Order Form and any additional renewals of such term, which are monthly thereafter the end of your initial contract term.
“Third Party Content” means the content, including website code and website-as-a-service offerings, that a Beyond Private Label partner or other third party may bundle with the Beyond Private Label Service, for a specific market or niche offering.
“Your Data” means registration information and other information relating to Your Authorized Users, and information relating to Your customers, contacts, business, marketing, and finances, and any similar data that You submit to the Beyond Private Label Service.
Section 2: Use Rights and Restrictions
2.1 Use Rights; Restrictions. Subject to these Terms, Beyond Private Label grants to You during the Term of your contract the non-transferable (except as permitted below), non-exclusive right to permit Your Authorized Users to access and use the Beyond Private Label Service (and any Beyond Private Label Materials provided to You) to allow You to have a great looking website with Google Analytics, and other related business functions that the Beyond Private Label Service is designed to perform, subject to the following restrictions: (i) Your use of the Beyond Private Label Service may not be on behalf of third parties unless a separate agreement between You and Beyond Private Label permits use of the Beyond Private Label Service on behalf of Your clients (and in such case limited to use on behalf of clients for whom You have purchased access and use rights); (ii) except as expressly permitted herein or in a separate partner agreement between You and Beyond Private Label, You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the Beyond Private Label Service or the Beyond Private Label Materials available to any third party; (iii) You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Beyond Private Label Service or Beyond Private Label Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), or access or use the Beyond Private Label Service or Beyond Private Label Materials in order to build a similar or competitive product or service; (iv) Your use of the Beyond Private Label Service shall conform with the restrictions set forth in the Order Form for the package purchased by You in terms of bandwidth and disk usage (Beyond Private Label may monitor Your compliance with these limits and if it detects overuse require that You upgrade to the appropriate higher subscription level); (v) Your use of the Beyond Private Label Service must not cause undue strain or stress on the Beyond Private Label network through excessive API calls or other non-standard use; and (vi) Your use of the Beyond Private Label Service must comply with the separate Beyond Private Label Acceptable Use Policy posted on the Beyond Private Label website (www.beyondprivatelabel.com) as updated by Beyond Private Label from time to time.
2.2 Technical Support. During Your contracted Term, You will be entitled at no extra charge to access Beyond Private Label’s Customer Service team to make text changes and image replacements for the Beyond Private Label Service.
2.3 Intellectual Property Rights. You acknowledge and agree that Beyond Private Label retains all proprietary rights in and to the Beyond Private Label website (https://www.beyondprivatelabel.com/) which we may update from time to time. Beyond Private Label also retains all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Beyond Private Label Service and Beyond Private Label Materials (including application development, business and technical methodologies, and implementation and business processes, used by Beyond Private Label to develop or provide the Beyond Private Label Service or Beyond Private Label Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted to You under these Terms, You do not acquire any interest in the Beyond Private Label Service or Beyond Private Label Materials. You agree that Beyond Private Label can use any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Authorized Users relating to the Beyond Private Label Service or the Beyond Private Label Materials without restriction or obligation to You.
2.4 Additional Restrictions. You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of Your authorized use of the Beyond Private Label Service. Any replication or use of any aspect of the Front End Code or other Beyond Private Label application or Professional Services for any purpose designed or intended to compete with Beyond Private Label’s solutions is strictly prohibited.
Section3: Data Protection
3.1 Ownership of Your Data. As between You and Beyond Private Label, Your Data is and will remain Your property. You grant to Beyond Private Label a non-exclusive right to use, copy, distribute and display Your Data solely in connection with Beyond Private Label’s operation of the Beyond Private Label Service on Your behalf. You, not Beyond Private Label, have sole responsibility for the accuracy, integrity, and reliability of Your Data, and Beyond Private Label will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data.
3.2 Notification of Decreased Protection Standards Event. Beyond Private Label agrees to promptly notify You if Beyond Private Label becomes unable to satisfy its obligations under this Section III on Data Protection or Section V on Confidentiality.
Section 4: Fees
4.1 Fees. The fees for the Beyond Private Label Service and any additional Professional Services (“Fees”) are set forth in your Proposal & Contract and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and these Terms. You agree to provide Beyond Private Label with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or You otherwise provide Beyond Private Label with credit card information, You authorize Beyond Private Label to bill such credit card (a) at the time that You order the Beyond Private Label Service or other Professional Services set forth in the Proposal & Contract, (b) for any billing frequency otherwise established in the Contract, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. If Beyond Private Label, in its discretion, permits You to make payment using a method other than a credit card, Beyond Private Label will invoice You at the time of the initial Order Form and thereafter on a monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of Your receipt of Beyond Private Label’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less.
4.2 Non-Payment; Other Suspension Rights. Beyond Private Label may terminate the Beyond Private Label Service if the billing or contact information provided by You is false or fraudulent. Beyond Private Label also reserves the right, in its discretion, to suspend or cancel Your access and/or use of the Beyond Private Label Service: (i) where any payment is due but unpaid under any Contract or account associated with You and You have been requested but failed to promptly cure such payment failure; or (ii) in the event a dispute arises on Your account as to who at Your business has authority to act or manage Your account and Beyond Private Label is not promptly provided with written instructions from the interested parties associated with Your account that fully resolves the dispute. You acknowledge and agree that if a dispute arises as to management of Your account, then (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, Beyond Private Label may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of Your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, Beyond Private Label may assume that the person or entity that has been making payments on Your account has the authority to manage the account. You agree that Beyond Private Label shall not be liable to You nor to any third party for any suspension or cancellation of the Beyond Private Label Service resulting from Your non-payment of Fees or from a dispute as to the management rights to Your account.
Section 5: Confidentiality; Use of Names
5.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, the Beyond Private Label Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Beyond Private Label will restrict its employees’ access to Your Confidential Information to only those employees necessary as determined in Beyond Private Label’s sole discretion to successfully provide the Beyond Private Label Service. Beyond Private Label may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Beyond Private Label in connection with the performance of this Agreement. Except for personal information within Your Data which is at all times understood to be Confidential Information notwithstanding anything to the contrary in these Terms, Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
5.2 Credit Card Information. Beyond Private Label agrees that it will retain and store any provided credit card information only for the minimum amount of time required for business, legal and/or regulatory purposes, and will use standard industry practices to protect such information from unauthorized access, disclosure or use.
5.3 Use of Names in Marketing. You may not use Beyond Private Label’s name without prior written consent. Furthermore, Beyond Private Label will contact you should they seek to use your name, other than in the event of showing a Client or prospective Client example sites in which we use your company’s beautiful website as the example. If you wish to not allow Beyond Private Label to use your website as an example, please email [email protected] and we will make sure to have it unavailable as a direct example of a website we previously made.
Section 6: Term & Termination
6.1 Standard Term. Unless a different Term is specified in a signed Contract between You and Beyond Private Label, the Initial Term of Your subscription for a Beyond Private Label Service will begin on the submission or execution of Your Contract and shall continue on a month-to-month basis after the initial twelve month term (unless stated otherwise in your contract) until the subscription is terminated as provided for in this Section 6.
6.2 Notice of Non-Renewal. Either party may terminate the Subscription Term to a Beyond Private Label Service by providing prior written notice of non-renewal to the other party at least 30 days prior to the end of the then-current Subscription Term. Beyond Private Label’s termination rights are in addition to any termination or suspension rights it may have under these Terms or any incorporated policy.
6.3 Effect of Termination. Upon termination of the Subscription Term, all Fees then due and payable to Beyond Private Label must be paid in full. Contingent upon its receipt of all such Fees, Beyond Private Label will maintain a copy of your website for 30 days after the termination date on its server, but not live on the web. Following this 30-day grace period, Beyond Private Label may remove Your Website from its servers. The provisions of these Terms which by their nature are intended to survive expiration or termination, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses, shall survive any termination.
Section 7: Warranties, Limitation of Liability, and Indemnity
7.1 Limited Warranties.
7.2 Beyond Private Label Not Responsible for Third Party Content. The Beyond Private Label Service may be bundled by third parties (including but not limited to Beyond Private Label marketing or content partners) with Third Party Content designed to facilitate use of the Beyond Private Label Service in certain market niches or to customize the Beyond Private Label Service for use by certain categories of target customers. To the extent that You either purchase the Beyond Private Label Service from such third parties or acquire the Third Party Content or configuration services from such third parties (even though You may purchase the core Beyond Private Label Service directly from Beyond Private Label), Beyond Private Label does not warrant in any manner and will not be responsible for such Third Party Content and You agree to look solely to the relevant third party provider (and not Beyond Private Label) if and to the extent that You have any complaints or issues relating to the Third Party Content or its interaction with an Beyond Private Label Service.
7.3 Payment Processing Services. Beyond Private Label uses third party payment processing providers in our Beyond Private Label Payments offering. In order for You to use any of these payment processing services through Beyond Private Label’s offering, You may be required to register with the applicable processor(s) as a merchant. By accepting these Terms, You agree that You have reviewed the terms of use of the applicable third party payment processor(s) (the “Payment Processor Terms”) and agree to them. You also agree that, notwithstanding any such registration or acceptance of Payment Processor Terms, You are liable for all Fees You owe us under any Order Form, regardless of whether You use Beyond Private Label Payments or a different merchant processor. You acknowledge that failure to pay any Fees due under any account You have with us, including accounts associated with Beyond Private Label Payments or another payment processor, is a breach of these Terms, and in such event You acknowledge we have the right to cancel or suspend access to the Beyond Private Label Service or Professional Services associated with any account we have with You or which is under Your control. We can set off any obligation You owe us, to the extent permitted by law, against any credit in any account we have with You or under Your control, and You will be liable for the costs we incur to pursue collections against You in order to collect any outstanding Fees, including without limitation attorneys’ and collection agency fees and expenses, and interest at the lesser of 1.5% or highest rate permitted by law. Beyond Private Label is not a party to any Payment Processor Terms, and we have no obligations or liability to You under the Payment Processor Terms or for any services that any such payment processor provides to You. Beyond Private Label’s current third party payment processor(s) include without limitation:
7.4 Warranty Disclaimers. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT BEYOND PRIVATE LABEL SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATING TO THE BEYOND PRIVATE LABEL SERVICE.
Indemnity. You agree to indemnify and hold Beyond Private Label harmless from and defend Beyond Private Label against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees), that arise due to Your violation of law or breach of these Terms, including any losses that result from claims You make that are prohibited under any provision of these Terms, such as the Limitation of Liability section below, or any other section.
7.6 Limitation of Liability. IN NO EVENT WILL BEYOND PRIVATE LABEL BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, IN NO EVENT WILL BEYOND PRIVATE LABEL’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO BEYOND PRIVATE LABEL DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT.
Section 8 General Provisions
8.1 Notice. Notices to Beyond Private Label will only be effective when delivered to [email protected] with a copy to: Beyond Private Label, Attn. General Counsel, W237 N2920 Woodgate Road, Suite 300, Pewaukee, WI 53072 USA, or any subsequent address we may provide the Beyond Private Label Service. We may give general notices within the Beyond Private Label Service, which will be effective when posted. Alternatively, we may give You notice (a) by email or mail to the last known email or physical address that we have on record for You, which will be effective when we send it; or (b) via telephone, by calling the number we have on record for You, which will be effective when we talk with You. It is Your responsibility to keep all Your contact information current.
8.2 Assignment. You do not have a right to assign these Terms without providing prior notice to and obtaining the consent of Beyond Private Label. Any purported assignment in violation of this Section shall be void. We can assign these Terms without Your consent.
8.3 Integration; Modification. These Terms and any amendments thereto, along with the information incorporated into these Terms (including reference to information contained in a URL or referenced policy), together with any applicable Order Form, represent the parties’ entire understanding relating to the Beyond Private Label Service, the Beyond Private Label Materials and the Professional Services, and supersede any prior or contemporaneous, conflicting or additional communications. We may modify all or parts of these Terms at any time. If we revise these Terms, the modified version will not be retroactive and will be effective and binding the day after we post the revised Terms on https://www.beyondprivatelabel.com/legal. We will give You notice of material changes to our Terms, most likely via email or within the Beyond Private Label Service, though we may instead give You notice by calling to discuss material changes with You. If You object to any changes we make to our Terms, You must give us notice within 10 days after the revised Terms are posted; in this event, Your continued use of the Beyond Private Label Service and Professional Services will continue to be governed by the Terms in effect prior to Your notice, provided that those Terms will remain in effect only until the expiration or earlier termination of Your then-current Subscription Term. If Your subscription renews at the end of Your Subscription Term, the Terms posted on https://www.beyondprivatelabel.com/legal at the time of Your renewal will apply to You upon such renewal. If You don’t timely object to changes we make to these Terms by giving us notice as described above, Your continued access to or use of the Beyond Private Label Service means You have agreed to be bound by the most current version of these Terms which will govern our relationship with You as soon as they become effective. You can always find our most up-to-date Terms at https://www.beyondprivatelabel.com/legal/terms-of-use. Since we might update these Terms from time to time or at any time, we suggest You review them occasionally and check the “Revised” date which will reflect the date the current version was posted.
8.4 Governing Law. These Terms shall be governed exclusively by the laws of the State of Arizona, USA, excluding its conflict of laws rules. We and You agree to the exclusive jurisdiction and venue of the state or federal courts in Waukesha County, WI, USA for any and all disputes, controversies and claims arising out of or relating to these Terms or concerning the respective rights or obligations of the parties.
8.5 Force Majeure. Except for Your obligation to pay Fees, neither party will be responsible for failure of performance due to causes beyond its control.
8.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the Beyond Private Label Service, including Beyond Private Label technology. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the Beyond Private Label Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
8.7 Severability. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect.
8.8 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between Beyond Private Label and You as a result of these Terms or use of the Beyond Private Label Service.
8.9 Waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
