PLEASE READ THESE TERMS OF SERVICE (“TOS”) CAREFULLY. These Terms of Service apply to Bean Services Inc. (the “Company”) and any customer (the “Customer”) who utilizes the Company services described herein (the “Services”), whether or not the Customer pays for the Services.
Accepting the Terms
BY EITHER CLICKING THE “I ACCEPT THE TERMS OF SERVICE” CHECKBOX DISPLAYED AS PART OF THE ONLINE APPLICATION PROCESS, OR BY SIGNING AND RETURNING an ORDER FORM PROVIDED BY THE Company, (the “SIGNUP PROCESS”), YOU, THE CUSTOMER, SIGNIFY YOUR AGREEMENT TO THE TERMS SET OUT HEREIN WHICH GOVERN YOUR USE OF THE SERVICES.
By accepting these TOS, the Customer represents and warrants that it has the capacity to be bound by these TOS, or if the Customer is acting on behalf of a company or entity, that the Customer has the authority to bind such entity. The Customer should print or save a local copy of these TOS for its records.
Security Policy
For information about the Company’s security practices, please read the Company’s Security Policy, which is incorporated by reference into these TOS. This policy explains how the Company maintains the integrity and security of the Records, as “Records” is defined below. The Security Policy may be updated from time to time at the Company’s discretion. Such changes to the Security Policy shall be effective upon prominent posting to the Company’s web site at the following URL: http://www.beanservices.com (the “Web Site”).
Privacy Policy
For information about the Company’s privacy practices, please read the Company’s Privacy Policy, which is incorporated by reference into these TOS. This policy explains how the Company treats the Customer’s information, records and data that are collected. The Privacy Policy may be updated from time to time at the Company’s discretion. Such changes shall be effective upon prominent posting to the Web Site.
Description of the Services
The Company shall provide Services to the Customer relating to the processing, conversion and use of data in Records, as described below in these TOS. The Services allow the Customer to consolidate, analyze, share and collaborate their information. The Services are provided as a paid service.
Each Customer obtains from the Company a customer-specific on-line application that provides the Services to the Customer (the “Instance”).
The Services are:
the provision of an online Account, with an “Account” defined as the uploading, storage, retention, allocation, processing and reporting of the Customer’s electronic or physical documents, invoices, statements, letters, payroll notices, forms, legal agreements, vendor applications or other type of data or correspondence, (collectively, “Records”), uploaded onto the Instance, which Records are supplied by the Customer to the Company for the use of the Services and excluding any document accessed through a link contained within the Record to a third party web site;
any act of preparing, setting up, connecting, maintaining, terminating, or reconnecting the Account;
any use by the Customer, or any access provided to the Customer by the Company, of the Instance or the software provided to the Customer by the Company as part of the Services (the “Software”), information, networks, system, computers, telecommunications, hardware, and equipment provided by the Company or third parties affiliated with the Company to the Customer;
any act, or provision of any service, by the Company to the Customer related to server, data storage, usage and technical support for the Customer or Software, regardless of duration and whether paid for or not;
any access or use related to the Instance, including the Instance itself;
any other service mentioned herein, on the Web Site, or other Company literature; and
any other service made available by the Company to the Customer, whether used or not.
Instance Access
The Company shall use commercially reasonable efforts to make the Instance available to the Customer 24 hours per day, 7 days per week. However, the Customer understands and acknowledges that the Customer’s access and use of the Instance may be interrupted from time to time for any of several reasons, including, without limitation, circumstances beyond the Company’s control, the malfunction of equipment, periodic updating, maintenance or repair of the Instance, maintenance or repair of the Company’s system that operates and makes available the Services (the “System”) or other actions that the Company, in its sole discretion, may elect to take, or the activities of third parties not under Company’s control (including Internet and other service providers).
Maintenance and Support
The Company shall make commercially reasonable efforts to notify the Customer in advance if the Company becomes aware of, or plans any, System shutdowns, outages or other events that the Company believes are likely to interrupt access to the Instance by the Customer.
The Company shall maintain a support help desk for the Customer, based on their chosen support plan in the Service Package, as posted on the Web Site.
Record Processing Performance
The Company shall use commercially reasonable efforts to process the Records for capture within two business days, with “business days” meaning Monday to Friday, excluding weekends and statutory holidays in the Province of British Columbia (“Business Days”). The Customer acknowledges that the Company may from time to time receive volumes of Records that may delay Record processing. In such an event, the Company shall use commercially reasonable efforts to notify the Customer of expected delays and the Customer shall accept such delays. To address the accuracy of digitized Records for the Customer (the “Verification Services”), the Customer acknowledges that the Company may contract third parties to provide visual inspections and, if necessary, corrections to the recognition results of the electronic scans.
Monitoring
The Company reserves the right, and the Customer consents, to the Company monitoring the Services and the data on the Account to determine whether or not the Customer is using the Services in compliance with these TOS. The Customer understands and acknowledges that the Company does not monitor the Customer’s communications, activities, Account or data as a general practice, but has the right to do so.
Virus Protection
The Company may scan Records and attachments for viruses. Where possible, any suspicious content or unacceptable file types shall be deleted by the Company. Without limiting the foregoing, the Customers should protect themselves by using their own virus detection software.
Record Content
The Company shall not be responsible for the content and layout of any Record, including, without limitation: (i) the content of the Record(s) and any supplementary materials; and (ii) the transmitting or publishing of any information in a Record, where such activity constitutes a criminal offence or is otherwise unlawful. Notwithstanding the foregoing, the Company reserves the right, but is not obligated, to decline the Services with respect to any Record brought to the Company’s attention that they determine, in their sole discretion, to be in breach of these TOS or to be otherwise objectionable.
Grant of Licence
The Company grants to the Customer, during the term of these TOS, a worldwide, royalty-free, non-assignable, non-sublicensable and non-exclusive licence to use the Services, the Software and the Customer’s Instance in accordance with their Service Package. This licence is for the sole purpose of enabling the Customer to use the Services as provided by the Company, in the manner consistent with the terms herein and in their Service Package.
Third Party Licences and Resources
The Customer understands and acknowledges that the Company may provide the Customer with the Services, the Instance, developments and innovations, part of which are being licensed or co-branded from or by third party entities.
The Customer’s use of networks, computing resources, or other services, including but not limited to Verification Services, from any third party is subject to that third party’s respective permission and usage or service policies. In the event of any conflict between the usage or service policies of any third party and these TOS, these TOS shall prevail and the Customer shall comply with these TOS.
Customer’s Use of the Services
Customer’s Profile Information
The Customer agrees to maintain a secure password to the Account. Only the Customer or persons or entities who have access to the Account through a username and password for the Account (the “Users”) may use the Account. The Customer agrees to provide the Company with an e-mail address of the personal contact for the Customer who will be the administrative User of the Account (the “Administrator”). By providing an e-mail address, the Customer agrees to receive all required notices electronically, to that e-mail address. The e-mail address, passwords and usernames, together with any or other user information the Customer provides, becomes the Customer’s profile information (the “Profile Information”).
The Customer agrees to provide true, accurate and complete Profile Information for the Account. The Customer is solely responsible for updating or changing its Profile Information, as appropriate. The Customer understands and agrees that certain Profile Information is crucial for the Services to function effectively, and without such information, the Company may be unable to service the Customer. The Company may, but is not obligated to, access the Account to make such necessary changes to the Profile Information, and the Customer hereby consents to such actions.
It is the Customer’s responsibility to change and maintain its Users’ usernames and passwords to secure access to the Account. The Customer is also solely responsible, and the Company is in no way responsible, for ensuring the confidentiality and secrecy of each Customer’s password, except as set out in the Privacy and Security Policies. The Customer agrees not to disclose its usernames and passwords to any third party and prevent Customer’s employees and personnel from sharing usernames and passwords even among themselves. The Customer is only entitled to access and use the Services and the Account for lawful purposes. Upon learning that the Customer’s Profile Information has been disclosed or obtained by a third party, or may be known by a third party, or that unauthorized use of the Customer’s Profile Information has occurred or may be occurring, the Customer shall change its usernames and passwords to re-establish confidentiality and privacy, or the Company may, at its sole discretion, change it on the Customer’s behalf, and thereafter notify Customer.
Customer’s Account
The Customer acknowledges, warrants and agrees that the legal and beneficial owner of the Account and Records data shall be the individual, company or entity whose name is listed in the Company’s database as the owner of the Account (the “Account Owner”). Only the Account Owner may make modifications, including a change of ownership, to the Account, subject to the Company’s written consent.
The Customer shall fully cooperate with and abide by any and all of the Company’s security measures and procedures, including the provision to the Company of valid identification and/or notarized affidavit, in the event of any conflict with regards to the ownership of the Account. The Customer understands and agrees that if the Customer does not comply with or does not satisfy, in the Company’s sole discretion, the Company’s security and identification verification procedures, then the Company reserves the right to refuse any or all of the Customer’s inquiries and/or requests as they relate to the Services and/or the Account.
Customer’s Users
The Account may include a single User or multiple Users resulting in multiple usernames and passwords being issued by the Customer. All Users must be authorized by the Customer before being provided passwords and issued access to use the Services.
The Customer acknowledges that the use of its username and password and any actions taken by any of its Users or any person using a valid username or password of Customer, with or without the Customer’s knowledge or consent, is legally binding and makes the Customer responsible to the same extent and effect as if the Customer had given written authorization to the Company. The Customer hereby authorizes the Company to accept, without any further verification, and the Customer agrees to be responsible for, all activities with respect to the Services when conducted using the Customer’s Account, including its usernames and passwords.
Management of the Account
At the time of ordering the Services from the Company for the Customer, its Account, and its Users, the Customer shall identify the Administrator. The Administrator shall be responsible on behalf of the Customer for managing and controlling all activities, the Account, access to the Instance, usernames and passwords, and the Services used. It is the Customer’s sole responsibility to notify the Company if the Customer changes or intends to change its Administrator.
The Customer acknowledges that all information, whether personal or commercial, submitted by any User onto the Account may be available for the Administrator and other Users to view, regardless of any Customer’s privacy policy, and the Customer agrees to inform all its Users of the Company’s policy in this regard. It is the Customer’s sole responsibility to ensure their employees conform to their own Customer privacy policy when using the Account and the Company provides no assurances or monitoring activities thereby.
Data Transfer and Integration
Data formats uploaded onto or downloaded from the Instance by the Customer are restricted to those set out in the Company’s published documentation for integration or specified on the Instance. The Company reserves the right to change the formats or data structures on notice to the Customer, provided that backward compatibility is provided for a reasonable period of time. The Company shall store Records for the Customer in the format that the Company originally received the Record from the Customer. At the Company’s then current fee for such activity, the Company will return such Records upon the request of the Customer.
The Customer is responsible (and the Company is not responsible) for any data that has been removed from the Instance by the Customer, its employees or agents in any circumstance, including, but not limited to, data export or direct integration.
Intellectual Property
As the owner of any data, Records, Profile Information, other information or content on or in the Account and provided to the Company through the Instance, the Customer is licensing such content to the Company solely for the purpose of providing the Services, and as may otherwise be expressly provided for in this Agreement.
The contents of the System, Service and the Software are owned by or are licensed to the Company, including all “look and feel” of any web page provided by the Company. The Customer may download or print a copy of any information provided on or by the Company for its personal and internal use only. Any distribution, reprint or electronic reproduction of any content from the Company, in whole or in part, for any other purpose is expressly prohibited, without the Company’s prior express written consent.
The Customer must not, without the Company’s express written consent, use any of the Company’s trademarks, service marks, copyrighted materials, or other intellectual property.
The Customer acknowledges that any ideas, suggestions, concepts, processes or techniques that it provides to the Company related to the Services, the Instance or the Company’s business (the “Feedback”) shall become the Company’s property without any compensation or other consideration payable to the Customer by the Company, and the Customer does so of its own free will and volition. The Company may or may not, in its sole discretion, use or incorporate the Feedback, in whatever form or derivative that the Company may decide, into the Service, Software, documentation, business or other products. The Customer hereby assigns all rights on a worldwide, exclusive basis in perpetuity to the Company in any Feedback and, as applicable, waives any moral rights.
General Prohibitions
Prohibited Conduct
The Customer and its Users agree that they shall not:
use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Instance or any portion of the Instance, without the Company’s express written consent, which may be withheld, in the Company’s sole discretion;
post or transmit any data on the Account that contains viruses, worms, Trojan horses or any other contaminating, corrupting or destructive features, or use the Services in an irresponsible, or otherwise disturbing manner that interferes with the proper working and normal operation of the System, other customer’s accounts, host or network, or the Services, including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks, forging of any TCP/IP packet header or any part of the header information in an e-mail, or a newsgroup posting.;
attempt to circumvent, violate or hack the system, the network security or any security requirement or process when using the Services or the System, or attempt to access any part of the Services or the System (or any of their related systems, networks, servers or other equipment) for which the Customer is not authorized to access, or attempt to disrupt in any manner the operation of the Services or the System, the servers or networks, including, without limitation, the following: gaining unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or any attempt to breach security or authentication measures;
attempt to interface with the data through any means other than the means provided to the Customer by the Company, or access or attempt to access other customer’s data, or other data or logic that is not expressly made available to the Customer through its passwords;
attempt to use the Services in a manner that harasses or may harass third parties or that disrupts, undermines, corrupts or in any way threatens the Services or infringes its integrity, or that is likely or has the potential to have any of those effects;
copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to extract the source code from any prototypes, hardware, the Software or any part thereof, or other tangible objects provided to the Customer by the Company, unless this is expressly permitted or required by law, or unless the Customer has been specifically told that it may do so by the Company, in writing;
copy, reproduce, republish, or otherwise use any material, in whole or in part, that is located on the Company’s Web Site, including the Company’s sales and marketing materials, without the express written consent of the Company (excluding any content or information that relates to the Records);
transfer, sell, lease, rent or assign, in any way, all or a portion of, the Account and/or the Services to any third party, unless the Customer obtains the Company’s prior written consent;
assign or grant a sublicense of the Customer’s right to use the Instance or otherwise transfer any part of the Customer’s right to use the Instance; or
grant a security interest in or over the Customer’s right to use the Software;
(each a “Prohibited Conduct”).
Reporting Prohibited Conduct
The Customer agrees to report to the Company any Prohibited Conduct by the Customer, its Users, any other customer of the Company, or anyone else using the Instance. If the Customer is unsure of whether or not a particular activity constitutes Prohibited Conduct, the Customer shall nevertheless notify the Company and the Company may make such determination. The final determination of what constitutes breach of these TOS shall be at the Company’s sole discretion.
Notice of Prohibited Conduct
The Company shall provide Notice to the Customer of any Prohibited Conduct by the Customer or its Users.
Misclassification
The Customer acknowledges that in certain cases the Customer’s activity may be misclassified as “Prohibited Conduct”. If the Customer believes that their activity has been misclassified, the Customer may appeal to the Company. Should the Company disagree with the Customer, an arbitrator, as described below, shall be used to make a final decision in this regard.
Service Packages and Payment
Service Packages
The Customer shall, as part of the Signup Process, select from a group of Services offered by the Company as a package (the “Service Package”) and the Company shall provide the chosen Service Package in accordance with the terms of these TOS.
Service Fees
The Customer shall pay the Company the fees according to the Service Package. All references to payments are in the currency noted in the Signup Process.
The Customer shall continue paying for the Service Package for any commitment period noted in the Signup Process.
Usage Tracking
The Company shall track the System usage by the Customer, including, without limitation, number of users, auto-capture and data storage, and invoice the Customer according to the fees outlined in their Service Package.
Upgrading Packages
The Customer may upgrade their Service Package at any time. No administrative service fee will be charged for upgrading Service Packages but higher fees will be payable for the upgraded Service.
Downgrading Packages
The Customer may downgrade their Service Package at the end of any calendar month with 30 days written notice. The Customer may only downgrade their Service Package once without being charged a downgrade fee. In the event that the Customer wishes to downgrade again, and the administrative downgrade fee, as determined by the Company, will be charged for each subsequent downgrade.
Billing Period
The billing for the Service Package fees will be in advance on a calendar month basis. Usage of particular services, including, without limitation, auto-capture and data storage, and any other additional service fees, will be billed in arrears at the end of the calendar month. The Company shall post calendar monthly invoices that are due and payable on the date the invoice is posted (the “Payment Date”). If the Customer fails to pay the invoice within 60 days following the Payment Date, the Company may, at its sole discretion, declare the Account delinquent (a “Delinquent Account”).
Payment by Credit Card Pre-Authorization
The Customer may pay for the Services by credit card. If the Customer chooses such method of payment, the Customer hereby authorizes the Company to charge the credit card account designated by the Customer, in the currency noted in the Signup Process, for all service fees and applicable taxes. If the Company is unable to charge the Customer’s credit card account due to insufficient funds or for any other reason, the Customer must pay all service fees due and applicable taxes within five Business Days of a written demand from the Company. If Customer chooses to pay for the Services by way of a preauthorized debit of a bank account, Customer shall fill in, execute and submit the appropriate form of the Sign up Process. Interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month (18% per year) on such past due amounts, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by the Company. The Customer shall reimburse the Company for the reasonable costs of collection, including reasonable legal fees.
Professional Services
In the event that custom work is required, including producing custom reports, such custom work shall be subject to a separate agreement between the Customer and the Company.
Applicable Taxes
The Company shall charge the Customer, and the Customer shall pay to the Company, all applicable taxes, including any retroactive taxes on past fees or charges (whether already paid or not) in cases where the Company is under a legal obligation to collect such tax from the Customer. The Customer shall be responsible for any and all other taxes that the Customer is under a legal obligation to pay.
Disciplinary Measures
Prohibited Conduct
Disciplinary Measures by the Company
The Customer recognizes that the Prohibited Conduct outlined above can result in the Company implementing, at the Company’s sole discretion, any disciplinary measure, including warning, suspension, or termination of the Account and all the Services. The Company may also, at its sole discretion, report Prohibited Conduct to the relevant law enforcement agencies.
Correction of Prohibited Conduct
If the Customer or its Users engage in Prohibited Conduct, then the Customer must take immediate preventative and corrective action and complete such action within seven days of having discovered said Prohibited Conduct or having been so notified by the Company. Action may include, but may not necessarily be limited to, removal of objectionable material or code from the Instance, termination of Users responsible, and resetting of passwords. The Company must approve any such action plan in advance of implementation. The Company has the sole discretion to determine if any such plan is an adequate corrective or preventative action, and to determine if any approved plan has been adequately implemented by the Customer. The Company may take any disciplinary measures as stated above, at its sole discretion, until the Company is satisfied that any such actions taken by the Customer are satisfactory.
The Company’s Right to Suspend the Account
The Company, at its sole discretion, may suspend the Customer’s Account, wherein the Customer may be suspended from using the Account and prevented from using any of the Services, if the following occurs:
an Account becomes a Delinquent Account; or
the Customer engages in Prohibited Conduct.
If the Account is suspended, the Account shall continue to accrue charges, including interest charges.
If the Account has been suspended, the Customer acknowledges and agrees that the Customer will have limited or no access to their Account, the Services or the Instance at the sole discretion of the Company.
Reconnection Charge
If the Account has been suspended, the Company, at its sole discretion, may charge the Customer a reconnection fee of $150, before the Company removes the suspension on the Account and provides any further Services to the Customer.
Cancellation, Termination and Refunds
Term of this Agreement
The term of these TOS is as set out in the Signup Process, and shall renew automatically on a monthly basis at 5:00 p.m. PST on the last Business Day of the last billing month unless cancelled at set out below.
Cancellation of Services by the Customer
The Customer understands, acknowledges and agrees that charges are not pro-rated, unless specified otherwise in these TOS, when the Customer cancels the Account with the Company. The Customer’s Account must be paid in full up to the requested date of cancellation before any cancellation request will be considered effective.
If the Customer wishes to cancel the Services, the request for cancellation must be received by the Company 30 days prior to the last business day of the last billing month in order for the cancellation request to be processed by the end of that month; otherwise, the Company will automatically renew the Account for the next month. Upon receipt of the Customer’s cancellation request, the Company shall cancel all or a portion of the Services purchased on a monthly basis, effective on the last day of that calendar month.
Effective upon cancellation of the Customer Account, all associated data and Records shall be deleted. Should the Customer want the return of any Records stored on their Instance, they must notify the Company in advance of cancellation and a fee will be charged to return the Records.
Refunds
Within 30 days after the Customer has signed up for the Service, upon the Customer’s cancellation request, the Company will refund all service fees paid by the Customer. After 30 days, except as expressly provided herein, service fees are not refundable.
The Company’s Right of Termination
The Company may terminate these TOS in the following circumstances:
- without cause, with 90 days written notice to the Customer;
- immediately, without prior notice to the Customer, if a Delinquent Account and the Company returns any and all Records and data to the Customer at the Customer’s expense;
- if the Company, at its sole discretion, deems the Customer to be in material breach of these TOS and the breach is not remedied within 30 days after the Company has notified the Customer of the specific breach;
- immediately, without prior notice to the Customer, if the Company, at its sole discretion, deems the Customer to be in material breach of these TOS and such breach cannot be remedied, and for clarity, but without limiting the generality of the foregoing, such material breach includes any Prohibited Conduct; or
- immediately, without prior notice to the Customer, if the Customer becomes insolvent or any bankruptcy petition is filed by the Customer or any third party against the Customer.
Survival
The following sections of these TOS shall survive the cancellation or termination of these TOS for any reason: “Intellectual Property”, “Service Packages and Payment”, “Customer’s Warranty and Indemnification”, “Disclaimer of Representations and Warranties”, “Limitations on the Company’s Liability”, and “General”.
Modifications, Changes and Upgrades
Changes, Modifications, Movement of Services
The Customer agrees that the Company may discontinue, upgrade, replace, modify, change or physically move, in any way, without limitation, any Services, Software, application, program, data, hardware, equipment or portions or components thereof, used to provide the Customer with the Services. The Customer understands, acknowledges and agrees that certain changes to the Services may affect the operation of the Customer’s Account and content.
The Company shall notify the Administrator of any significant changes with the Account or changes with the Services. Such notifications shall also be prominently posted by the Company on the Account to alert the Customer and Users to the changes. The Customer agrees and is considered to have reviewed all such messages on their Account within two Business Days of its posting.
Changes to these TOS
The Company reserves the right to change, add, delete, or modify any provision of these TOS, without notice, effective upon notifying the Administrator via the email address provided and the prominent display of the revised TOS on the Web Site.
Price and Service Changes
The Company reserves the right to amend the fees and/or charges from time to time, in its sole discretion, for any of the Services and the nature of the Services offered to the Customer. The Company shall give the Customer notice of any such changes in their Services 60 days in advance of the expiration of any commitment period in the Customer’s Service Package. The Company cannot decrease the level of Service or increase the cost of the Services until the end of any commitment period noted in the Service Package in effect for the Customer. If the change in service fees is not acceptable, the Customer’s sole and exclusive remedy shall be to cancel the applicable Service by providing the Company with written notice of cancellation to bean@beanservices.com prior to the increase date and the Company’s sole and exclusive obligation shall be to refund any prepaid and unused portion service fees for the then current commitment period on a pro-rated basis. Continuing to use the applicable Service after the increase date constitutes the Customer’s acceptance of all changes in service fees.
Mandatory Upgrades
If the Company, in its sole discretion, deems a Customer or the Account to be adversely affecting the Company’s server performance or network integrity, or the Account is consuming use of bandwidth, disk space and filing storage above a reasonable amount or over that stipulated in the Agreement, then the Company may request that the Customer, and the Customer must comply with such request, upgrade the Account to a different Service Package that would, in the Company’s sole discretion, adequately accommodate the use, consumption, and other requirements of the Account and accommodate the Company’s provision of the Services to the Account.
Customer’s Warranty and indemnification
Customer’s Warranty
The Customer represents, warrants, and covenants to the Company that (i) the Customer has the necessary rights to use, or permit to use (and hereby grants such rights to Company,) any materials, data, information, item or Record on the Account (and be used by the Company) for any of the Services, and that (ii) the use, reproduction, distribution, transmission, or display of any materials, data, information, Record or report provided by Customer to Company for the purposes of, and use in, the Services, shall not:
violate or potentially violate any right of any third party, including copyrights, patents, trademarks, trade secrets, or other proprietary rights;
constitute or potentially constitute violations, including false advertisement, unfair competition, defamation, invasion of privacy, invasion of rights, and discrimination;
cause or potentially cause any dispute or legal action/proceeding;
contain or potentially contain any material that is unlawful, harmful, fraudulent, libellous, slanderous, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, or otherwise offensive, or that discloses private or personal matters concerning any person;
contain or potentially contain any material that is racially, ethnically, disputatiously, argumentatively, or ethically objectionable; or
contain any other material that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law (including export control laws).
Customer’s Indemnification of the Company
The Customer shall defend, indemnify and hold harmless the Company, any third party entity related to the Company (including third party vendors, creditors or suppliers), and the Company’s executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, parent companies, subsidiaries, and affiliates from and against any and all liabilities, losses, costs, judgments, damages, claims, or causes of action, including, but not limited to, any and all legal fees and expenses, in whole or in part, arising out of or relating to the Customer’s breach of any provision of these TOS, or to any use by the Customer of the Services, the Account, the System or the Web Site, OR THE REVOCATION OF ANY THIRD PARTY LICENCE TO THE COMPANY, or any other third party claim with respect thereto.
Disclaimer of Representations and Warranties
No Warranties
The content, information, data and all Services provided by the Company and associated with the Instance are provided to the Customer on an “as-is” and “as available” basis. The Company expressly disclaims and makes no representations, conditions, guarantees or warranties of any kind, express or implied, statutory or otherwise, including, but not limited to:
the content, the Services, or the operation of the Instance and the System;
the content, sequence, accuracy, timeliness or completeness of the information on the Account, or the reliability of the information on the Account for any reason, including, but not limited to, the accuracy of the Services when converting any data on Records into digital form, even if the Company has performed verification Services on the data;
the quality, accuracy, reliability, validity or continued existence of any or all aspects of such third party licences;
the effectiveness of any virus scans of any Records or attachments performed by the Company;
any advice, whether written, oral or otherwise, that is given by the Company, its employees, agents, licensors or the like; or
any representations or warranties made by the vendors of third party products or services.
The Customer expressly agrees that the Customer’s use of the Services and reliance on any information or advice is at the Customer’s sole risk, and the Company shall in no way be liable to anyone for such reliance.
For the purposes of this section, “the Company” includes the Company’s divisions, subsidiaries, affiliates, successors, parent companies and their (including the Company’s) executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, affiliates, third party providers, merchants, licensors and the like.
Limitations on the Company’s Liability
Exclusion of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND UNDER NO THEORY OF LAW OR EQUITY, SHALL THE COMPANY (INCLUDING THE COMPANY’S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS, MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS, OR THE LIKE) OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DISTRIBUTING THE SERVICES, THE WEB SITE OR THE SYSTEM, BE LIABLE FOR ANY BUSINESS OR PERSONAL LOSS, REVENUE DECREASE, EXPENSE INCREASE, COST OF SUBSTITUTE PRODUCTS AND/OR THE CUSTOMER’S SERVICES, OR ANY OTHER LOSS OR DAMAGE WHATSOEVER, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND – EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES – SUCH LOSSES OR DAMAGES INCLUDE, WITHOUT LIMITATION, THOSE THAT ARISE OUT OF:
ANY USE OF OR INABILITY TO USE OR ACCESS ANY OF THE SERVICES, THE WEB SITE, THE ACCOUNT OR THE SYSTEM , FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, A MALFUNCTION OF THE SERVICE OR THE SYSTEM OR A DELAY IN THE PROCESSING OF ANY RECORD OR TRANSACTION;
THE COMPANY’S transfer of data BELONGING TO THE CUSTOMER AND/OR THE COMPANY, INCLUDING THE DELIVERY OF THE RECORDS TO THE COMPANY OR THE CUSTOMER AND SUBSEQUENT LOSS INCURRED BY THE CUSTOMER AS A RESULT OF THE RECORDS NOT BEING RECEIVED BY THE COMPANY OR THE CUSTOMER;
ANY MISALLOCATION OF THE RECORDS (INCLUDING EXPENSES, BILLS OR DATA IN THE ACCOUNT), FOR ANY REASON WHATSOEVER, HOWEVER ARISING OR CAUSED;
ANY UNAUTHORIZED ACCESS OF THE ACCOUNT;
THE COMMUNICATION OF CONFIDENTIAL OR PERSONAL INFORMATION TO THE COMPANY OR TO THE CUSTOMER BY E-MAIL OVER THE INTERNET OR IN ANY OTHER UNSECURED MANNER AT THE CUSTOMER’S REQUEST;
ANY INFORMATION BEING ON THE ACCOUNT AND ANY DAMAGE TO THE CUSTOMER’S COMPUTER, ANY HARDWARE, DATA, INFORMATION, MATERIALS, AND BUSINESS RESULTING FROM THE INFORMATION, OR THE LACK OF INFORMATION, AVAILABLE ON THE ACCOUNT OR THROUGH THE SERVICE;
LATE, MISDIRECTED OR FAILED PAYMENTS OR ATTEMPTS TO PAY A VENDOR, CREDITOR, SUPPLIER OR OTHER PARTY BY THE CUSTOMER, REGARDLESS OF THE CAUSE, AND INCLUDING ANY RESULTING FEES, INTEREST OR OTHER CHARGES IMPOSED BY THE VENDOR, CREDITOR, SUPPLIER, CREDIT CARD ISSUER OR OTHER THIRD PARTY; OR
THE SUSPENSION, CANCELLATION OR TERMINATION BY THE COMPANY OF THESE TOS AND THE SERVICES TO THE CUSTOMER.
Limitation of Liability
THE COMPANY’S TOTAL CUMULATIVE LIABILITY, IF ANY, TO THE CUSTOMER, OR ANY THIRD PARTY, FOR ANY AND ALL DAMAGES, RELATED TO THE TOS OR THE SERVICES, INCLUDING THOSE FROM ANY NEGLIGENCE, ANY ACT OR OMISSION BY THE COMPANY OR THE COMPANY’S REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, SHALL BE LIMITED TO, AND SHALL NOT EXCEED, THE SETUP FEE as set out in the SIGNUP PROCESS OR the MONTHLY FEES as set out in the SERVICE PACKAGE PAID BY THE CUSTOMER FOR THE SERVICES for a maximum of three months, WHICHEVER IS LESS.
THE CUSTOMER SHALL MAKE NO CLAIM, COMPLAINT, OR PROCEEDING AGAINST THE COMPANY FOR ANY OR ALL PORTIONS OF THE SERVICES THAT MAY REQUIRE THE DOWNLOADING OF WEB SITE COOKIES FOR the CUSTOMER TO ACCESS SUCH PORTIONS OF THE ACCOUNT.
Once a Record is submitted to or deposited into the Account, the Customer is solely responsible for ensuring it is reviewed and acted upon in a timely manner, as per any terms dictated by any agreements between the Customer and the Vendor. It is the Customer’s sole responsibility to make allocations, billing and tracking relating to Records in the Account, and for ensuring that their Vendors, creditors, suppliers or any third party to be paid by the Customer receive all payments on time.
For the purposes of this “LIMITATION ON THE COMPANY’S LIABILITY” section, “the Company” includes the Company’s divisions, subsidiaries, affiliates, successors, parent companies and their (including the Company’s) executives, directors, officers, attorneys, managers, employees, consultants, contractors, agents, affiliates, third party providers, merchants, licensors and the like.
General
Interpretation of these TOS
The term “including,” wherever used in any provision of these TOS, means “including but without limiting the generality of any description preceding or succeeding such term.” Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the construction or interpretation of these TOS.
The division of the TOS into sections/paragraphs, and the insertion of headings/captions, are for the convenience of reference only and shall not affect the construction or interpretation of these TOS or be deemed a part of these TOS.
Inurement
The rights and liabilities of both the Customer and the Company (collectively, the “Parties”) under these TOS shall bind and inure to the benefit of the Parties’ respective successors, executors, and administrators, as the case may be.
Assignments
The Customer may not assign or delegate the Customer’s rights or obligations under these TOS, either in whole or in part, without the prior written consent of the Company.
Governing Law
These TOS and any other agreement for the Services shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada without reference to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods should not apply. The Customer agrees that any action, proceeding, claim, litigation or arbitration between Customer and the Company shall take place in the exclusive jurisdiction if the Province of British Columbia, and the Customer consents to the personal jurisdiction and venue in that jurisdiction.
Severability
If any provision or portion of these TOS is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of these TOS shall continue in full force and effect.
Arbitration
The Parties to these TOS agree that upon written notice by any party to the other, any dispute arising under these TOS may be finally settled by arbitration by the British Columbia International Commercial Arbitration Centre (“BCICAC”) in accordance with its rules, as amended from time to time, based upon the following:
the arbitration tribunal shall consist of one arbitrator appointed by the BCICAC ;
the arbitration shall take place in English and in Vancouver, British Columbia;
the arbitration award shall be given in writing and shall be final and binding on the parties, not subject to any appeal, and shall deal with the question of costs of arbitration and all related matters;
all disputes referred to arbitration (including the scope of the agreement to arbitrate, any statute of limitations, set-off claims, conflict of laws rules, tort claims and interest claims) shall be governed by the substantive law of British Columbia; and
the Parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions and any awards) shall not be disclosed beyond the arbitrator, the Parties, their counsel and any person necessary to the conduct of the proceeding, except as may lawfully be required in judicial proceedings relating to the arbitration or otherwise.
Force Majeure
The Customer understands, acknowledges, and agrees that the Company shall not be liable for delays in its performance of these TOS or any other agreement for the Services caused by circumstances beyond the Company’s reasonable control, including acts of God, wars, insurrection, civil commotions, riots, national disasters, earthquakes, strikes, fires, floods, water damage, explosions, shortages of labor or materials, labor disputes, transportation problems, accidents, embargoes, or governmental restrictions (collectively, “Force Majeure”). The Company will make reasonable efforts to reduce to a minimum and mitigate the effect of any Force Majeure.
Independent Contractors
Nothing in these TOS shall be construed as creating a partnership or relationship of employer and employee, principal and agent, partnership or joint venture between the Parties. Each Party will be deemed an independent contractor at all times and shall have no right or authority to assume or create any obligation on behalf of the other Party, except as may be expressly provided herein.
The Customer must not, in any way, misrepresent the Customer’s relationship with the Company, attempt to pass itself off as the Company, or claim that the Customer is the Company.
Injunction
The Customer acknowledges and agrees that money damages are not an adequate remedy for any breach or threatened breach related to the Company’s rights or the Customer’s use of the Services, Software and the System beyond the rights granted to Customer in these TOS. The Customer therefore agrees that in addition to other remedies available hereunder, by law or otherwise, the Company shall be entitled to an injunction against any such breach by the Customer.
Notices
Notice to Customer
Any notice to the Customer from the Company will be sent to the e-mail address of the Administrator, or provided in writing, first class postal service (postage prepaid), or by pre-paid commercial courier delivered to the Customer at the mailing address specified on their Instance, but does not include notification of parties by way of the Web Site as permitted by these TOS.
Notice to Company
Any and all notices to the Company from the Customer must be given by in writing, e-mail, first class postal service (postage prepaid), or by pre-paid commercial courier delivered to the Company at:
Bean Services Inc.
Suite 508 – 4190 Lougheed Highway
Burnaby, B.C. V5C 3Y5
Tel: 604-637-7170
Fax: 604-357-1431
email: info@beanservices.com
Complete Agreement
These TOS constitute the complete understanding and agreement between the Customer and the Company. Except when expressly agreed to the contrary in signed writing by an authorized representative of the Company, these TOS supersede any other written (including digitized/computerized) agreement, oral agreement, and/or agreement by conduct. These TOS, or any other specific agreement for the Services between the Company and the Customer shall each be exclusively between the Company and the Customer only and shall not confer any rights in any third party.
EFFECTIVE SEPTEMBER 15, 2008