BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF BORGSOLUTIONS'ASTRAL ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). 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. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.
As part of the Service, BorgSolutions will provide Customer with use of the Service, including a browser interface and data encryption, transmission, access and storage. Customer's signature shall be deemed to be Customer's agreement to abide by this Agreement including any materials available on the BorgSolutions website incorporated by reference herein, including but not limited to BorgSolutions' privacy and security policies
BorgSolutions' privacy and security policies may be viewed at www.BorgSolutions.com. BorgSolutions reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, BorgSolutions occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. Customer agrees that BorgSolutions can disclose the fact that Customer is a paying customer.
BorgSolutions hereby grants Customer a non-exclusive, non-transferable, worldwide right to use the Service, solely for Customer's own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer are reserved by BorgSolutions and its licensors.
Customer may not access the Service if Customer is a direct competitor of BorgSolutions, except with BorgSolutions' prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the audio and visual information, documents, software, products and services contained or made available to Customer in the course of using the Service ("Content") in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or other device; or (iv) disassemble, decompile or otherwise reverse engineer or access the Service 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 (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are employees of the same company and who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
Customer may use the Service only for Customer's internal 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 tortious material, including material harmful to children or violative of 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.
Certain editions of the Service offer integration capabilities via an application programming interface, or API. The number of API calls Customer can make per account is limited as follows (excluding calls resulting from use of BorgSolutions client applications):
Customer is responsible for all activity occurring under Customer's User accounts, whether authorized or not, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify BorgSolutions immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to BorgSolutions immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or Customer's Users; and (iii) not impersonate another BorgSolutions user or provide false identity information to gain access to or use the Service.
BorgSolutions does not own any data, information or material that Customer submits to the Service in the course of using the Service ("Customer Data"). Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and BorgSolutions shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer's breach), BorgSolutions will make available to Customer a file of the Customer Data, at Customer's expense, within thirty (30) days of termination if Customer so requests in writing at the time of termination. BorgSolutions reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Customer's non-payment. Upon termination for cause, Customer's right to access or use Customer Data immediately ceases, and BorgSolutions shall have no obligation to maintain or forward any Customer Data.
BorgSolutions (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the BorgSolutions Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information ("Feedback") provided by Customer or any other party relating to the Service and Customer hereby grants to BorgSolutions all right, title and interest in such Feedback. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the BorgSolutions Technology or the Intellectual Property Rights owned by BorgSolutions. The BorgSolutions name, the BorgSolutions logo, and the product names associated with the Service are trademarks of BorgSolutions or third parties, and no right or license is granted to use them.
During use of the Service, Customer 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 Customer and the applicable third-party. BorgSolutions and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third-party. BorgSolutions does not endorse any sites on the Internet that are linked through the Service. BorgSolutions provides these links to Customer only as a matter of convenience, and in no event shall BorgSolutions or its licensors be responsible for any content, products, or other materials on or available from such sites. Customer recognize, however, that certain third-party providers of ancillary software, hardware or services may require Customer's agreement to additional or different license or other terms prior to Customer's use of or access to such software, hardware or services.
Service features that interoperate with the third party programs depend on the continuing availability of the third party's application programming interface ("API") and program for use with the Services. If the third party ceases to make the API or program available on reasonable terms for the Services, BorgSolutions may cease providing such Service features without entitling Customer to any refund, credit, or other compensation.
Customer shall pay all fees or charges to Customer's 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 current number of total User licenses requested times the User license fee currently in effect. Payments must be made annually in advance unless otherwise mutually agreed upon in an executed Order Form. All payment obligations are noncancelable and all amounts paid are nonrefundable. Customer is responsible for paying for all User licenses ordered for the entire period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s) ("License Term"), whether or not such User licenses are actively used. Customer must provide BorgSolutions with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized representative may add licenses by executing an additional written Order Form. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. BorgSolutions reserves the right to modify its fees and charges and to introduce new charges at any time, upon thirty (30) days prior notice to Customer, which notice may be provided by e-mail. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
BorgSolutions reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.
BorgSolutions charges and collects fees in advance for use of the Service. BorgSolutions will automatically renew and bill Customer's credit card or issue an invoice to Customer (i) every month for monthly licenses; (ii) each year on the subsequent anniversary for annual licenses; or (iii) as otherwise mutually agreed upon in writing. The renewal charge will be equal to the then-current number of total User licenses times the then-current license fee in effect. Fees for other services will be charged on an as-quoted basis. BorgSolutions' fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States taxes based solely on BorgSolutions' income.
Customer agrees to provide BorgSolutions with complete and accurate billing and contact information. This information includes Customer's legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. Customer agrees to update this information within ten (10) days of any change to it. If the contact information Customer has provided is false or fraudulent, BorgSolutions reserves the right to terminate Customer's access to the Service in addition to any other legal remedies.
All fees hereunder shall be in U.S. dollars.
If Customer believes Customer's bill is incorrect,Customer must contact us in writing within sixty (60) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
In addition to any other rights granted to BorgSolutions herein, BorgSolutions reserves the right to suspend or terminate this Agreement and Customer's access to the Service if Customer's account becomes delinquent. Delinquent invoices are subject to interest of 5% per month on any outstanding balance, or $25.00 per month, whichever is greater, plus all expenses of collection, including attorney's fees. Customer will continue to be charged for User licenses during any period of suspension. If Customer or BorgSolutions initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer's account. Customer agrees that BorgSolutions may charge such unpaid fees to Customer's credit card or otherwise bill Customer for such unpaid fees.
BorgSolutions reserves the right to impose a reconnection fee in the event Customer is suspended and thereafter request access to the Service. Customer agrees and acknowledge that BorgSolutions has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Customer's account is delinquent.
This Agreement commences on the Effective Date. The Initial Term will be as mutually agreed upon in an executed Order Form, commencing on the start date of the Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at BorgSolutions' then-current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then-current License Term, by notifying the other party in writing at least thirty (30) business days prior to the date of the invoice for the following term.
Any breach of Customer's payment obligations or unauthorized use of the BorgSolutions Technology or Service will be deemed a material breach of this Agreement. BorgSolutions, in its sole discretion, may terminate Customer's password, account or use of the Service if Customer breaches or otherwise fail to comply with this Agreement. In addition, BorgSolutions may terminate a free account at any time in its sole discretion. Customer agrees and acknowledges that BorgSolutions has no obligation to retain the Customer Data, and may delete such Customer Data, if Customer has materially breached this Agreement, including but not limited to failure to pay outstanding fees.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. BorgSolutions represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. Customer represents and warrants that Customer has not falsely identified Customer nor provided any false information to gain access to the Service and that Customer's billing information is correct.
Customer shall indemnify and hold BorgSolutions, its licensors and each of 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: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customer's representations and warranties; or (iii) a claim arising from the breach by Customer or Customer's Users of this Agreement.
BORGSOLUTIONS 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 ANY CONTENT. BORGSOLUTIONS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (I) 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; (II) THE SERVICE WILL MEET CUSTOMER's REQUIREMENTS OR EXPECTATIONS; (III) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER's REQUIREMENTS OR EXPECTATIONS; (V) ERRORS OR DEFECTS WILL BE CORRECTED; OR (VI) 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 CUSTOMER 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, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BORGSOLUTIONS AND ITS LICENSORS.
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BORGSOLUTIONS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING INTERNET CONGESTION, VIRUS ATTACKS, DENIAL OF SERVICE (DOS) ATTACKS.
IN NO EVENT SHALL BORGSOLUTIONS BE LIABLE ON ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT CUSTOMER HAS PAID IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL BORGSOLUTIONS 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 THE SERVICE OR THIS AGREEMENT, 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 BORGSOLUTIONS OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Customer shall comply with all then-current export and import laws and regulations of the United States and such other governments as are applicable when using the Service and Customer assumes sole responsibility for obtaining licenses to export or re-export as may be required. Customer hereby certify that Customer will not directly or indirectly export, re-export, transship, or transmit the Service, or any portion thereof, or related information, media, or products in violation of United States and other government laws and regulations. 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. BorgSolutions and its licensors make no representation that the Service is appropriate or available for use in all locations. 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 other government bodies for such purposes.
BorgSolutions may give notice by means of a general notice on the Service, electronic mail to Customer's e-mail address on record in BorgSolutions' account information, or by written communication sent by first class mail or pre-paid post to Customer's address on record in BorgSolutions' account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to BorgSolutions (such notice shall be deemed given when received by BorgSolutions) at any time by any of the following: letter sent by confirmed facsimile to BorgSolutions at the following fax number: 512-535-5441; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to BorgSolutions at the following addresses: BorgSolutions, Inc., 8834 N. Capital of Texas Highway Suite 280, Austin, TX 78759 addressed to the attention of: Chief Financial Officer.
BorgSolutions 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. Customer is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Customer's consent to such changes.
This Agreement may not be assigned by Customer without the prior written approval of BorgSolutions. Any actual or proposed change in control of Customer that results or would result in a direct competitor of BorgSolutions directly or indirectly owning or controlling 50% or more of Customer shall entitle BorgSolutions to immediately terminate this Agreement.
This Agreement shall be governed by the laws of the state of Texas without regard to the conflict of laws provisions of any state or 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 Austin, Texas. No text or information set forth on any purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions 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. No joint venture, partnership, employment, or agency relationship exists between Customer and BorgSolutions as a result of this Agreement or use of the Service. The failure of BorgSolutions 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 BorgSolutions in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between Customer and BorgSolutions and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
As used in this Agreement and in any Order Forms now or hereafter associated herewith:"Agreement" means these online terms of use, any Order Forms, whether written or submitted online, and any materials available on the BorgSolutions website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by BorgSolutions from time to time in its sole discretion;"BorgSolutions Technology" means all of BorgSolutions' 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 Customer by BorgSolutions in providing the Service."Initial Term" means the initial period during which Customer is obligated to pay for the Service beginning on the contract start date and ending on the contract end date, specified on the applicable Order Form;"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."Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms agreed upon in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail)."User(s)" means Customer's employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by BorgSolutions at Customer's request).
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@borgsolutions.com.
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