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Bnbtally Terms of Service
Last updated: April 11, 2022
Thank you for using Bnbtally!
These Terms of Service ("Terms") are a legal agreement between you (the "Customer", "you," "your") and Tally Lytics LLC t/a Bnbtally ("Bnbtally," "we," "our" or "us") and govern your use of services provided by Bnbtally (“Services”). Please read these Terms carefully. If you do not wish to accept these Terms, do not use our Services.
You may accept these Terms by accessing the Services or clicking the “Accept” box or similar icon presented when accessing the Services.
These Terms are effective as of the date in which you initially agree to them (the "Effective Date").
If you are an individual person accessing the Services on behalf of another party (such as your employer for example), you represent to us that you have authority to bind that other party to these terms.
By using any of the Services, you agree to these Terms and any policies referenced within ("Policies"), including terms that limit our liability (see Section 16) and require individual arbitration for any potential legal dispute (see Section 17).
These Terms do not permit distribution or repackaging of Services in other SaaS or software products but interested parties should feel free to contact us to discuss those opportunities.
You consent to Bnbtally's Privacy Notice, which explains how we collect, use, and protect the personal information you provide to us.
We may need to provide you with certain communications regarding our Services, including agreements, billing statements, and disclosures or notices required by law or under these Terms (“Communications”). By accepting these Terms , you consent to receive Communications electronically rather than in paper form (“Consent”). Under this Consent, we may provide Communications by posting them to our website, making them accessible through the Services, or emailing to the email address listed in your Account (as defined below). Communications sent electronically are considered received by you upon the earlier of your actual receipt or twenty-four (24) hours after the Communication is posted to our website, made accessible through the Services, or emailed to you (unless we receive notice that the email was not delivered).
You may withdraw your consent to receive electronic Communications by writing to us at 530 Showers Dr. Ste 7 #102 Mountain View, CA 94040; however, your withdraw of consent may result in termination of your access to Services. You may also request a paper copy of any Communication at no charge by writing to us at that same address.
Electronic Communications Consent
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the cellular telephone number you provide to us when you opened your Account or update the contact information associated with your Account. Such communications may include, but are not limited to requests for secondary authentication, receipts, reminders, notifications regarding updates to your Account, support, and marketing or promotional communications. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Services. Call and text message communications may be generated by automatic telephone dialing systems. Standard message and data rates applied by your carrier may apply to the text messages we send you.
You may opt-out of receiving promotional email communications we send to you by following the unsubscribe options on such emails. You may opt out of any promotional phone calls by informing the caller that you would not like to receive future promotional calls. You may opt-out of text messages from Bnbtally by replying STOP. You acknowledge that opting out of receiving communications may impact your use of the Services.
2. About Bnbtally Services
Scope of Services
Services are intended for use by persons who own, manage, or provide accounting services with respect to properties held out for rent on a short-term or long-term basis (each, a “Property”) to guests (“Guests”), which Properties are promoted via one or more listings (each, a “Listing”) on one or more third-party listing platforms, such as Airbnb and Vrbo (each, a “Third-Party Listing Platform”). Data generated by the Third-Party Listing Platforms may in some cases be used in the accounting platforms such as QuickBooks Online and Xero that track accounting information associated with the Properties (“Third-Party Accounting Platforms”) or with payment processors such as Stripe (“Third-Party Payment Processors” and, together with Third-Party Listing Platforms and Third-Party Accounting Platforms, the “Third-Party Platforms”).
Services consist solely of data processing services to provide limited data exchange between one or more Third-Party Listing Platforms, Third-Party Payment Processors and Third-Party Accounting Platforms. The Third-Party Platforms with which the Services will operate are listed on our website and are subject to change at any time.
We do not provide the Third-Party Platforms, nor are we affiliated with or endorsed by their providers. As a prerequisite to using the Services, you must separately procure authorized access to one or more Third-Party Platforms at your own expense.
The Services as defined above are the only services we currently provide. If we offer additional services, we may make these available subject to separate terms and conditions (“Additional Terms”), which you must agree to as a condition of receiving those additional services, and which will then be incorporated into these Terms as an addendum.
To use Services, you must open an online account with us (“Account”). When you open an Account, we will ask you for information, which may include but is not limited to, your name and other personal information. You must provide accurate and complete information in response to our questions, and you must keep that information current. We may suspend or terminate the Account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
Notwithstanding any contrary provision herein, in the event of any dispute between two or more parties as to Account ownership, we will be the sole arbiter of such dispute in our sole discretion. Our decision (which may include termination or suspension of any Account subject to dispute) will be final and binding on all parties.
Grant of Rights to Use Services
Subject to your compliance with these Terms, including timely payment of amounts owed hereunder, we grant to you a limited, revocable, non-transferable, non-exclusive right to access the Services solely for Permitted Uses, subject to and in accordance with these Terms while they are in effect. Almost all features and functionalities of the Services require purchase of Paid Services (defined below) but some may be available on a free or trial basis as indicated on the user interface presented to you when you access your Account. Depending on the Paid Services that you have purchased, your authorization to use Services may be limited to specific metered entitlements (such as the number of Listings with which you may use the Services) and you may not use Services beyond these limitations without purchasing additional Paid Services or entitlements.
Through the Services, you may delegate, to your accountants, bookkeepers, property managers, and similar service providers, the right to access your instance of the Services on your behalf so long as their use is solely for your benefit and would be a Permitted Use if performed by you.
“Permitted Uses” means: (a) if you are an individual, your personal use of Software, Services, or Bnbtally Content solely in connection with Properties that you own or lease; (b) if you are an entity, use of Software, Services, or Bnbtally Content by your employees solely in connection with Properties that you own or lease; (c) if you are an accounting firm or property management firm, use of the Software, Services, or Bnbtally Content relative to a Property solely to provide professional services for the benefit of the owner, leasee, or manager of that Property.
Bnbtally does not manage Properties or Listings, the Customer or its client does. We and our personnel do not visit the Properties, respond to Guest inquiries of Listings, or handle the setup of Properties, Listings, or any Third-Party Platform.
Moreover, Bnbtally is not an accounting firm, law firm, property management firm, or real estate agency. Accordingly, we do not provide tax, accounting, or legal advice or related services nor do we provide brokerage or property management services.
To facilitate your use of the Services, we may provide (in the Services, on our website, or otherwise) tools and information including templates, guides, blogs, software presets, and general recommendations (“Bnbtally Content”). Bnbtally Content is provided for informational purposes only and not as accounting, legal, or other advice for your specific circumstance.
You should review, on an ongoing basis, your implementation of the Services with qualified accountants, tax advisors, and other professional advisors to verify the correctness of any accounting or financial information generated in connection with your use of the Services.
Notwithstanding any provision herein to the contrary, you agree that:
- We are not responsible for the Properties, the legality of renting Properties out to Guests, or payment of any licensing or fees involved with the same.
- We are not responsible for the Third-Party Platforms, your procurement of authorized access to these, or any fees that you are required to pay for such access.
- We are not responsible for the accounting and financial information that you generate in connection with your use of the Services.
- We are not responsible for accounting errors, however caused, arising out of or related to your use of the Services, including without limitation errors caused by: (a) the malfunction of Third-Party Platforms, Software, Services, or other systems; (b) reliance upon Bnbtally Content; or (c) incorrect use or configuration of the Services.
- We are not responsible for the Listing configuration information in the Services or Third-Party Platforms.
- We are not responsible for cancellation and refund policies applicable to the Properties.
- We are not a party to any engagements, transactions, or dealings between Customer and its Guests.
- We are not responsible for collecting any type of tax or fee or for remitting any tax or fee (or reports or other documents relating thereto) to any government, public or private entity.
- We are not responsible for collecting any income or paying any expenses relating to the Properties, Guests, Listings, or Third-Party Platforms.
- We are not responsible for the Customer's compliance, or non-compliance, with all requirements under any law or regulation regarding Customer's use of the Services, the Properties, renting the Properties out, or accommodating Guests.
- We are not responsible for the completeness, accuracy, legality, or reliability of the data that originates or is imported from Third-Party Platforms (including data pertaining to Properties, Listings, reservations, rankings, past guests, communications with guests, host fees, cleaning fees, accommodation fares, taxes, or reservation totals).
- We are not responsible for any inaccurate, incorrect, or misleading data, content, or other information that you provide or that otherwise originates from Third-Party Platforms.
- We are not responsible for providing training with respect to accounting or the use of any Third-Party Platform.
4. Additional Customer Responsibilities
In addition to Customer’s other obligations as set forth in these Terms:
- You shall timely pay to Bnbtally all Fees (as defined below) for Paid Services (as defined below) that you have purchased from us.
- You shall properly secure any passwords or other credentials for accessing your Account. You are responsible for all activity that occurs through your Account, including actions taken by persons to whom you have granted access to your Account.
- You shall comply with all laws and regulations that are applicable to you in connection with the Properties, Listings, Guests, and your use of the Services, including without limitation regulations governing the collection, use, or storage of personally identifiable data that you maintain on the Services or Third-Party Platforms.
- You shall timely report and pay all taxes, including submission of all forms, declarations, and other required documents to the applicable tax authorities, as required by applicable law or regulation, in connection with the Properties and any income generated thereby.
- As between the parties, you are solely responsible for all other aspects of the Properties, Listings, and Guests and your management of the Third-Party Platforms, including any responsibility that we have disclaimed in the preceding section.
You are responsible for the accounting-related information that you put into or derive using the Services. If you are not well versed in tax and accounting, you should seek the advice of a qualified accountant or other professional with respect to your implementation and use of the Services or Bnbtally Content, including the configurations that you use with the Services or any Third-Party Platform. Improperly setting these configurations may result in adverse tax and accounting consequences, for which you are solely responsible.
5. Paid Services
Bnbtally may offer Services to be paid for on a recurring basis ("Subscription Services") or on an as-used basis ("A La Carte Services" and, together with the Subscription Services, "Paid Services"). One or more fee schedules (“Fee Schedules”) of fees for Paid Services (“Fees”) will be displayed on the user interface presented to you when you access your Account or set forth in a written quotation that we provide to you upon request.
As specified in the applicable Fee Schedule, Subscription Services are subject to monthly recurring Fees, which include a base fee payable at the start of each monthly billing period (“Base Fee”) and additional Fees based on usage or other specified metrics for the just-concluded monthly billing period (“Usage Fees”). The first monthly billing period for Subscription Services begins on the day that those Services are initiated and recurs monthly thereafter so long as Subscription Services are in effect. A La Carte Services are subject to one-time fees.
We may change a Fee Schedule upon thirty (30) days’ notice. Your continued use of Paid Services beyond thirty (30) days after such notice constitutes your agreement to pay Fees in accordance with the updated Fee Schedule.
You may purchase Paid Services through your Account, and if you do so, you agree to pay all Fees in accordance with the applicable Fee Schedule in effect at the time Services are provided, including in cases where the purchase is made by someone to whom you have delegated access to your Account, such as your accountant or property manager.
As specified in the Fee Schedule, Usage Fees for some Subscription Services are based on a “per Set Listing” metric. A “ Set Listing” means one (1) single rentable unit of a Property in one (1) Listing on one (1) Third-Party Listing Platform connected to one (1) Third-Party Accounting Platform that is set up and enabled in the Services at any given time during the monthly billing period. For example, if a single Property has two Set Listings in the Services, then it would count as two metered “per Set Listing” units for determining the “per Set Listing” Usage Fee. If the Property has one Set Listing from one Third-Party Listing Platform (e.g., Airbnb) set up in the Services and another Set Listing from another Third-Party Listing Platform (e.g., Vrbo) set up in the Services for the same Property, then that Property would count as two metered "per Set Listing" units for determining the "per Set Listing" Usage Fee. If Listing offers more than one unit (e.g., multiple rooms in a home or condos in a building that are available for separate bookings), then each unit counts as a separate “rentable unit of a Property” for purposes of counting Set Listings.
Fees do not include VAT or sales tax, or any other tax which may be applicable, all of which are payable by Customer.
Through your account, you may provide to us one or more debit or credit card accounts, and you authorize us to collect amounts owed to us by charging any such card that you provide.
You may cancel Subscription Services at any time through your Account. If you cancel Subscription Services, you are still obligated to pay the Base Fee for the monthly billing period in which cancellation occurs, along with Usage Fees incurred prior to cancellation. Upon cancellation, you will not be entitled to a refund or credit for any Fees already due or paid, your Set Listings will be disabled, and you will have no further access to any Services. Your Set Listings cannot be reinstated unless and until you reinstate and pay for Subscription Services. Upon reinstatement of Subscription Services, the initial monthly Base Fee is immediately due, even if you reinstate Subscription Services during the monthly billing period in which you canceled Subscription Services.
You may not, nor may you permit any third party, directly or indirectly, to:
- export the Software (as defined below) or Services, which may be subject to export restrictions imposed by US law, including US Export Administration Regulations;
- access or monitor any material or information through the Services or our website using any robot, spider, scraper, or other automated or semi-automated means;
- resell or otherwise distribute or make available to others the Bnbtally Content, Software, or Services, either directly or indirectly, except that you may delegate access to your Account as permitted in Section 2 and, for the avoidance of doubt, you may use Bnbtally Services in connection with a Property to provide accounting services to your third-party client who owns, leases, or manages the Property;
- incorporate or use Services in connection with any Unauthorized Product (as defined below);
- violate the restrictions in any robot exclusion headers on any user interface of the Services, work around, bypass, or circumvent any of the technical limitations of the Services, or use any tool to enable features or functionalities that are otherwise disabled in the Software or Services;
- perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
- disassemble, reverse engineer, or decompile Software (as defined below) or the systems used by Bnbtally to render Services, or otherwise attempt to derive the source code of such Software or systems, except solely to the extent such activity is permitted under applicable law notwithstanding this restriction, and then only if you first request from Bnbtally the information that you intend to obtain from such disassembly, reverse engineering, or decompilation and Bnbtally does not make that information available to you on reasonable terms;
- use Services or Bnbtally Content to develop a competing product or service;
- alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell, or distribute in any way Bnbtally Content or Services;
- transfer any rights granted to you under these Terms;
- use any of Bnbtally's trade names, trademarks, service marks, or domain names, or any other names, trademarks, service marks, or domain names that are similar thereto, for any purpose;
- use the Services in a way that distracts you while driving or prevents you from obeying traffic or safety laws;
- access Services or use Software on a mobile device that has been modified in a manner is contrary to the manufacturer's software or hardware guidelines, including a modification (sometimes referred to as a “jail break”) that disables hardware or software controls;
- use the Services for any fraudulent or illegal activity or that exposes you, other Bnbtally users, our partners, or Bnbtally to liability, harm, or risk;
- use the Software or Services or use or reproduce Bnbtally Content other than for Permitted Uses;
- upload to the Services or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches or infringes any duty toward or rights of any person or entity, including rights of publicity, privacy, or intellectual property; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Bnbtally's or its partners' products and services, as determined by us in our sole discretion; or (f) in our sole judgment, is objectionable or restricts or inhibits any person or entity from using or enjoying any portion of the Services; or
- otherwise use the Software, Services, or Bnbtally Content except as expressly allowed under these Terms.
“Unauthorized Product” means software or an online service that offers functionality comparable to or competitive with the Services and that performs this functionality, in whole or in part, by interoperating with the Services themselves. Interested software and services providers may contact Bnbtally to discuss white labeling and other distribution opportunities. These arrangements, however, are not permitted under these Terms.
7. Third-Party Platforms and Products
Access to Third-Party Platforms
To use the Services, you are required to and hereby do grant Bnbtally permission to access one or more accounts with applicable Third-Party Platforms that you link the Services. To accomplish this access, you may be required in some cases (e.g., Airbnb) to provide us with login credentials, including usernames and passwords, for these third-party accounts. Bnbtally does not store these passwords but rather uses them to generate an encrypted authentication token, which Bnbtally stores. To revoke Bnbtally’s access to your accounts of such Third-Party Platforms, you must do so directly from within the Bnbtally website within your account, or use a link that we have provided to you by email when you granted Bnbtally access to said Third-Party Platforms.
You represent and warrant to us that you have the authority to share login credentials for and permit access to each Third-Party Platform that you link to the Services.
Accessing Third-Party Platforms on Behalf of Others
If you link the Services to another person’s account with a Third-Party Platform (such as may happen if you are an accountant linking to your client’s Airbnb account), you further represent that you have authority from the other person to grant us access to their account. If that authority is revoked, you must immediately disconnect your instance of the Services from the other person’s third-party account.
Delegating Access to Your Accounts
If you, as our customer, provide another person (such as your accountant or bookkeeper) with permission to access your Account or link their or your instance of Services to your or their account with a Third-Party Platform, then we are entitled to treat that person’s transactions with the Third-Party Platform account as authorized and performed by you. You (and not us) are responsible for the other person’s activities in accessing or using your accounts (including incurrence of Fees on your behalf) and we are not liable for any damages flowing from the other person’s actions relative to your Account with us or your accounts with providers of Third-Party Platforms. Notwithstanding the foregoing, you may not assign to any person your entitlement to receive Subscription Services.
We are not responsible for the performance of Third-Party Platforms that are linked to the Services, including degradation in the performance of the Third-Party Platform or your inability to access or use the Third-Party Platform (such as if your account is locked out).
Other Third-Party Products and Services
While visiting Bnbtally’s website or using the Services, you may be offered services, products and promotions provided by third parties and not by Bnbtally, including, but not limited to, third party bookkeepers or accountants ("Third-Party Services"). If you decide to use Third-Party Services, you will be responsible for reviewing and understanding the terms and conditions for these services. You will resolve any disagreement between you and a third party regarding the terms and conditions of any Third-Party Services directly with that third party directly in accordance with the terms and conditions of that relationship.
The Services may contain links to third party websites. The inclusion of any website link does not imply an approval, endorsement, or recommendation by Bnbtally. You access any such website at your own risk. We expressly disclaim any liability arising out of or in connection with your use of these websites. When you use a link to go from the Services to a third-party website, our Privacy Notice is no longer in effect. Your browsing and interaction on a third-party website, including those that have a link in the Services, is subject to that website's terms, conditions, and policies.
We are not responsible for objectionable or offensive third party content that may be displayed to you while using the Services, such as the postings of other users.
Bnbtally will make reasonable commercial efforts to provide Services other than during scheduled maintenance; however, we do not promise that the Services will operate without disruption, errors or interruptions, or that they will be accessible, or available at all times. Without limiting the foregoing, we do not warrant the availability of Third-Party Platforms. Changes instituted by the operators of Third-Party Platforms may interrupt your access to the Services.
We may add or remove, suspend, stop, delete, discontinue, or impose conditions on Services or any feature or aspect of Services. We will take reasonable steps to notify you of these and changes to the Services by email or at the next time you attempt to access your Account.
Your exclusive remedy if we breach our obligations hereunder with respect to providing Services or if you are otherwise dissatisfied with the availability or quality of Services is to terminate your Account and discontinue use of Services.
9. Your Content and Data
“Customer Data” means data, other than PII, as generated by a Third-Party Listing Platform, including information pertaining to a Property, Listing, or specific reservation, including general location of the Property, size, number of rooms or beds of a Property, type of Listing, accommodation fares, cleaning fees, service fees of Third-Party Platforms, check-in and check-out dates, the number of guests, taxes and other line items, and invoice totals.
“Customer Configuration Settings” means the configuration settings entered by you into the Services regarding accounting, including reconciliation configurations for Third-Party Accounting Platforms, account coding, descriptions, naming, categories, and classes, other than Bnbtally Content to the extent incorporated therein.
“PII” means personally identifiable information or other information whose collection, use, storage, or dissemination is subject to any law or regulation.
Ownership of Your Data and Configuration Settings
You retain all rights to Customer Data and Customer Configuration Settings, subject to the rights you granted to us in these Terms. You may modify or remove Customer Data via your Account or by terminating your Account, but your Customer Data may persist in historical, archived or cached copies and versions thereof available on or through the Services.
Right to Remove
Although we have no obligation to monitor any Customer Data or Customer Configuration Settings, we have absolute discretion to remove Customer Data or Customer Configuration Settings at any time and for any reason without notice. Bnbtally may also monitor such Customer Data or Customer Configuration Settings to detect and prevent fraudulent activity or violations of Bnbtally's Terms.
License Granted to Bnbtally
You grant us and our subsidiaries, affiliates, and successors (“Licensees”) a worldwide, non-exclusive, royalty-free, fully-paid, transferable, irrevocable, perpetual, and sub-licensable license, throughout the world, to use, reproduce, import, export, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display: (a) Customer Configuration Settings in any media for any reason, including to provide, promote, or incorporate into the Services; and (b) Customer Data in any media but solely to provide Services to you or (when the Customer Data is in aggregated or anonymized form) to maintain and improve the Services generally, to study markets, and offer information services to others based on the data.
The Services do not accept as input (and you agree to otherwise not provide to Bnbtally) any third-party PII. Guests are referenced (but not identified) using only their first name and the first initial of their last name.
You represent and warrant that any information that you submit to Bnbtally to or through the Services, or during or in connection with your use of the Services (including PII that you submit in violation of your agreement not to) has not been collected, stored, or transferred to Bnbtally in violation of any law, regulation, or contractual obligation applicable to you. You shall have sole responsibility for the accuracy, quality, and legality of such information and the means by which you acquired such information and compliance with applicable data protections regulations including GDPR.
We will not intentionally disclose Customer Data to third parties other than as permitted above or as directed by you through your Account, including in cases where you authorized third parties to access your Account or the Third-Party Platforms with which you use the Services; provided however, that we may disclose Customer Data, with or without notice to you, if we are compelled to do so by any subpoena, search warrant court order, administrative order, or applicable law or regulation.
10. Security and Disaster Recovery
We have implemented technical and organizational measures including periodic backups (“Security Measures”), designed to secure Customer Data and Customer Configuration Settings from accidental loss and from unauthorized access, use, alteration, or disclosure.
Notwithstanding this effort, we do not promise or warrant that the Security Measures will keep your Customer Data or Customer Configuration Settings free from accidental loss or unauthorized access, use, alternation, or disclosure.
You are responsible for independently backing up Customer Data and Customer Configuration Settings and providing your own disaster recovery plans relative to loss of Services, Customer Data, or Customer Configuration Settings.
You are responsible for safeguarding your password and other credentials for accessing Third-Party Platforms, your Account, and the Services generally, and for restricting access to your Third-Party Platforms and your Account. You will immediately notify us of any unauthorized use of your credentials or any other breach of security of which you are aware regarding your Account or the Services. See Section 7 above for further terms regarding access to Third-Party Platforms.
11. Intellectual Property
"Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademarks, trade dress and service mark rights, goodwill, trade secret rights, right in confidential information, and other intellectual property rights that may exist now or come into existence in the future, and all their applications, registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction
In some cases, we may provide downloadable software, including applications for mobile devices (“Software”) that is required for you to access and use the Services. Software includes periodic maintenance releases and other updates, which you must install to continue using Services. Software does not include the software or systems operated by Bnbtally to render the Services.
Ownership of Services, Software and Bnbtally Content
Services, Software, and Bnbtally Content are proprietary to and exclusively owned by Bnbtally and its licensors. Without limiting the foregoing, you agree that Bnbtally owns all Intellectual Property Rights subsisting in the Services, Software, and Bnbtally Content other than Customer Data and Customer Configuration Settings. Software and Bnbtally Content are licensed not sold and all copies of Software and Bnbtally Content are owned by Bnbtally. There are no implied licenses under these Terms. We reserve all rights not expressly granted to you.
License to You
So long as you comply with these Terms (including payment of all amounts owed hereunder), Bnbtally grants you a limited, personal, revocable, non-transferable, nonexclusive license under its Intellectual Property Rights to: (a) install and use the Software on computers and other devices that you own solely for use in accessing and using the Services for Permitted Uses in accordance with these Terms so long as they are in effect; (b) access and use the Services in accordance with these Terms so long as they are in effect; and (c) reproduce (but not distribute, publicly perform, or publicly display) Bnbtally Content for Permitted Uses.
Notwithstanding any contrary provision herein, Bnbtally grants no rights to use its trademarks or service marks or to directly access, reproduce, or execute on your machines the systems operated by Bnbtally to render the Services.
You may submit to Bnbtally comments, suggestions, and other feedback (“Feedback”) about the Services. You agree that your disclosure of Feedback is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality, or other obligation, and that we are free to use the Feedback without any additional compensation to you, and to disclose the Feedback on a non-confidential basis or otherwise to anyone.
You will keep confidential and not disclose to any person any information disclosed to you through the Services and Bnbtally Content that is not already publicly available. You will not use such information for any purpose other than to use the Services in accordance with these Terms.
12. Term and Termination
These Terms shall remain in effect from the Effective Date until terminated as provided in this Section 12.
We may without liability terminate these Terms or suspend, limit, or terminate your Account or your access to the Services, at any time with or without notice for any reason including (but not limited to) your failure to pay amounts owed hereunder or other breach of any representation, warranty, or covenant under these Terms. You may also terminate these Terms for any reason by notice to us through your Account. Such termination shall be effective immediately.
Upon termination of these Terms, any amounts due to Bnbtally will be immediately due and payable.
Upon termination of these Terms for any reason: (a) any licenses or other rights granted to you under these Terms will end, including any Paid Services, (b) we may (but have no obligation to) delete your Customer Data and Customer Configuration Settings stored on our servers, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or deletion of Customer Data or Customer Configuration Settings; and (d) the following sections of these Terms survive and remain in effect in accordance with their terms upon termination, together with any provision necessary to give them effect: 1, 2 (other than the subsection captioned “Grant of Rights to Use Services), 3, 4, 5 (final three paragraphs), 6, 7, 8 (final paragraph) 9, 10, 11 (other than paragraph captioned “License to You”), 12, 13, 14, 15, 16, 17, and 18.
You will indemnify, defend (though counsel of our choosing), and hold us and our processors (and our and their respective employees, directors, officers, agents, affiliates, and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, settlement payments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees and other costs of defense) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; and (e) any other party's access or use of the Services through your Account or otherwise with your unique name, password or other appropriate security code. No settlement of a third-party claim shall be binding upon us without our consent, which shall not be unreasonably withheld.
14. Representations and Warranties
The individual accepting these Terms, either on their own behalf or on behalf of their employer or other person, represents and warrants to us that: (a) they are at least eighteen (18) years of age; and (b) they have full right, power and authority to enter into these Terms on behalf of themselves or the person they represent, and that these Terms when accepted by them will constitute a legal, valid and binding obligation enforceable against Customer. Customer warrants that it will comply with all applicable laws and regulations in connection with their use of the Services and that information provided to us by Customer is accurate and as applicable truthfully represents Customer’s identify under which Customer does business.
15. Disclaimer of Warranties
THE USE OF "BNBTALLY" IN SECTIONS 15 AND 16 MEANS BNBTALLY, ITS PROCESSORS, ITS SUPPLIERS, AND ITS AND THEIR LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, OFFICERS AND EMPLOYEES).
THE SERVICES. SOFTWARE, AND BNBTALLY CONTENT ARE PROVIDED "AS IS" WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, BNBTALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO STATEMENT ON BNBTALLY’S WEBSITE OR MARKETING MATERIALS CONSTITUTES A WARRANTY. YOUR USE SERVICES, SOFTWARE, AND BNBTALLY CONTENT IS AT YOUR OWN RISK.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BNBTALLY DISCLAIMS ANY WARRANTY THAT THE SERVICES, SOFTWARE, AND BNBTALLY CONTENT ARE: ACCURATE, RELIABLE OR CORRECT; WILL MEET YOUR REQUIREMENTS; WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR WILL BE COMPATIBLE WITH YOUR MOBILE DEVICE OR CARRIER.
BNBTALLY MAKES NO WARRANTY REGARDING THIRD-PARTY PLATFORMS OR OTHER THIRD-PARTY PRODUCTS AND SERVICES. ALL THIRD-PARTY PRODUCTS INCLUDED OR SOLD WITH THE SERVICES ARE PROVIDED SOLELY ACCORDING TO THE WARRANTY AND OTHER TERMS SPECIFIED BY THE THIRD-PARTY PROVIDER, WHO IS SOLELY RESPONSIBLE FOR SERVICE AND SUPPORT FOR ITS PRODUCT. FOR SERVICE, SUPPORT, OR WARRANTY ASSISTANCE, YOU SHOULD CONTACT THE THIRD-PARTY PROVIDER DIRECTLY. BNBTALLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
16. Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BNBTALLY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, FOR THIRD-PARTY CLAIMS OR FOR DAMAGES FOR LOSS OF PROFITS, REVENUES, USE, OR DATA, OR INJURY TO GOODWILL OR REPUTATION, OR THE COST OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATED TO THESE TERMS OR THE SERVICES, SOFTWARE OR BNBTALLY CONTENT, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF BNBTALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BNBTALLY’S TOTAL CUMULATIVE LIABILITY FOR ALL MATTERS ARISING FROM OR RELATED TO THESE TERMS OR THE SERVICES, SOFTWARE, OR BNBTALLY CONTENT SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM FOR LIABILITY OR (B) $500.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UNDER NO CIRCUMSTANCES WILL BNBTALLY BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM OR RELATING TO: (A) AN ACCOUNTING ERROR (HOWEVER CAUSED); (B) HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF OR THROUGH THE SERVICES OR YOUR BNBTALLY ACCOUNT BY A THIRD PARTY (HOWEVER CAUSED); (C) CUSTOMER DATA OR CUSTOMER CONFIGURATION SETTINGS, (D) A THIRD-PARTY PRODUCT OR SERVICE, INCLUDING THE THIRD-PARTY PLATFORMS, EVEN IF INCLUDED IN OR PROMOTED OR SOLD THROUGH BNBTALLY OR THE SERVICES; OR (E) LOST REVENUE REGARDING PROPERTIES OR LISTINGS, EVEN IN CASES WHERE SUCH DAMAGE, LOSS, OR INJURY IS ALLEGED TO BE CAUSED BY BNBTALLY’S OR ITS AGENT’S NEGLIGENCE OR AN ERROR IN THE SERVICES, SOFTWARE, OR BNBTALLY CONTENT.
"Disputes" are defined as any claim, controversy, or dispute between you and Bnbtally or its processors, suppliers, or licensors (or its or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship.
These Terms and any Dispute will be governed by California law and/or applicable federal law (including the Federal Arbitration Act), without regard to its choice of law or conflicts of law principles.
The parties agree that either party’s breach of confidentiality obligations or provisions relating to Intellectual Property Rights, data security, or compliance with law or regulation will cause irreparable damage for which recovery of money damages would be inadequate, and that the other party will therefore be entitled to seek timely injunctive relief to protect such party’s rights under this Agreement, in addition to other remedies available hereunder.
You and Bnbtally agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST BNBTALLY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the "Arbitrator") administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. The Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms and/or Additional Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. Any arbitration hearing will occur in San Francisco, California, or another mutually agreeable location. The arbitrator's award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party's claim. An Arbitrator's decision and judgment thereon will not have a precedential or collateral estoppel effect. Bnbtally will reimburse the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this section for all claims totaling less than $10,000 unless the Arbitrator determines that your claims were frivolous. If you prevail on any claim for which you are legally entitled to attorney's fees, you may seek to recover those fees from the arbitrator. For any claim where you are seeking relief, we will not seek to have you pay our attorney's fees, even if fees might otherwise be awarded, unless the Arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Bnbtally also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases as discussed above) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court in the Northern District of California.
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
18. General Provisions
Customer may not assign these Terms or assign or transfer its rights or delegate its obligations under these Terms, by operation of law or otherwise, without the prior written consent of Bnbtally, which consent may be granted or withheld in Bnbtally's sole and absolute discretion. Any attempted or purported assignment or delegation by Customer in violation of the previous sentence will be null and void. Bnbtally may freely assign or transfer its rights or delegate its obligations under these Terms. Subject to the foregoing, these Term will be binding upon, and will inure to the benefit of the parties and their respective successors and permitted assigns.
The Terms constitute the final and entire agreement between the parties regarding the subject matter hereof and supersede and terminate all prior or contemporaneous, agreements, understandings, and communications between the parties, whether written or oral. These Terms shall control over any conflating provision of a quotation or a Policy.
If any provision of these Terms is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term.
We may amend the Terms at any time with notice that we deem to be reasonable under the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a "Revised Version"). The Revised Version will be effective as of the time it is posted but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute that arose before the changes will be governed by the Terms in place when the Dispute arose.
Each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other. Neither party shall make any commitment, by contract or otherwise, binding on the other or represent that it has any authority to do so. There are no third-party beneficiaries to this Agreement.