Billfish BPM Cloud Terms and Conditions
Please read these Terms and Conditions carefully before using the Service and associated Software. You may use the Service only if you first accept these terms, which constitute a binding agreement between you (either an individual or an entity) ("you") and Billfish Software, LLC. By using the Service, you signify your agreement with these terms, including each applicable Service Description, the Acceptable Use Policy, and the Privacy Practice. Billfish Software may modify, alter or otherwise update these terms from time to time. You agree to periodically check back to this location and the applicable websites to keep current on these Terms and Conditions, the applicable Service Description, the Acceptable Use Policy, and the Privacy Practice governing your use of the Service.
IF YOU DO NOT AGREE WITH THESE TERMS, OR ANY NEW OR MODIFIED TERMS, DO NOT IN ANY MANNER USE THE SERVICE OR PARTICIPATE IN ANY OF THE FUNCTIONALITY OFFERED THEREIN.
1. Purpose
These Billfish BPM Cloud Terms and Conditions ("Terms and Conditions") set forth the terms and conditions under which Billfish Software will provide you with access to and use of an online, web-based business process management service as described herein.
2. Definitions
All capitalized terms defined in the Terms and Conditions have the meanings set forth herein:
Acceptable Use Policy - the Acceptable Use Policy, located on the Internet at http://www.billfishsoftware.com/aup.html, and any subsequent modification.
Content - all data, software and information including, without limitation, any hypertext markup language files, email messages, scripts, programs, recordings, sound, video, music, graphics, images, applets or servlets that you create, install, upload, receive from a third party or transfer in connection with your use of the Service.
Evaluation Period - the period that begins when you agree to these Terms and Conditions and ends upon the earliest of (1) the evaluation end date specified by Billfish Software when you are provided access to the Service or (2) the date on which your access to the Service for evaluation is disabled by Billfish Software. Should Billfish Software provide you with an Evaluation Period, you may use the Service or Software on a trial basis for no charge as specified in a Service Description and in accordance with these Terms and Conditions. You are authorized to use the Service during the Evaluation Period specified in the Service Description. During an Evaluation Period or at the end of an Evaluation Period, you may order a Service at the then current charges.
Billfish Software Affiliates - any legal entity that owns at least 50% of Billfish Software, is owned by Billfish Software, or is under common ownership with Billfish Software.
Privacy Practice - the Privacy Practice, located on the Internet at http://www.billfishsoftware.com/privacypolicy.html, and any subsequent modification.
Service - the Billfish BPM Cloud software-as-a-service ("SaaS") offering that you are accessing under these Terms and Conditions located on the Internet at http://www.billfishbpmcloud.com.
Software - the software, if any, and all associated documentation and other materials provided to you by Billfish Software or Billfish Software Affiliates to facilitate access to and use of the Service. If Billfish Software or a Billfish Software Affiliate licenses Software to you, it shall be under a separate agreement, e.g., the International Program License Agreement.
3. Service Descriptions & Service Orders
3.1 Service Descriptions
Billfish Software provides the Service in accordance with an applicable set of terms called a "Service Description." A Service Description describes the Service, including available options, any applicable charges, and any additional terms applicable to such Service.
3.2 Service Orders on the Billfish BPM Cloud Web Site
You order a Service electronically on the Billfish BPM Cloud Web Site. The Billfish BPM Cloud Web Site, information regarding the Service, Account information, and Service Descriptions may be presented only in English and may not be translated into your local language. Despite any different allowances or practices of local laws or customs, (a) you agree that orders made electronically on the Billfish BPM Cloud Web Site are valid and binding, and (b) you represent that you understand terms written in English and agree that it is an appropriate language to conduct transactions under these Terms and Conditions. When you order a Service you will make selections during the electronic order process that may affect charges and terms of a Service. You will have the opportunity to review the applicable Service Description prior to ordering a Service. You agree that you will not order any Service if you do not agree to these Terms and Conditions and the terms of the applicable Service Description. By placing an order to initiate a Service you acknowledge and accept that the applicable Service Description and these Terms and Conditions govern your access to and use of such Service. Each Service Description is part of these Terms and Conditions only for the particular Service that it applies to and is independent of other Service Descriptions.
4. General Charge Terms
Authorized User is a unit of measure by which the Service may be purchased. An Authorized User is a unique person who is given access to the Service. The Service may be installed on any number of computers or servers and each Authorized User may have simultaneous access to any number of instances of the Service at one time. Licensee must obtain separate, dedicated entitlements for each Authorized User accessing the Service in any manner directly or indirectly (e.g., via a multiplexing program, device, or application server) through any means. An entitlement for an Authorized User is unique to that Authorized User and may not be shared, nor may it be reassigned except for a permanent transfer of the Authorized User entitlement to another person.
5. Your Account and Access
When you register for an account ("Account"), Billfish Software will provide you an Account identification and password. You are responsible for managing and keeping your Account information current, including maintaining current payment information. For any personal information you provide in connection with your registration (including as part of your Account profile) or your use of the Service, you are responsible for obtaining consents from the relevant people to allow Billfish Software to store, use, and transfer such personal information as part of our business relationship anywhere Billfish Software and Billfish Software Affiliates do business, in accordance with the Privacy Practice. At any time you may request that any personal information you provide is corrected or removed from your account information and this information will be corrected or removed, but removal may prevent access to the Service.
You are responsible for protecting your Account identification and password and for controlling who may access your Account or use any Service on your behalf. You are responsible for the actions of any person or entity that accesses any Service on your behalf or otherwise uses your Account, and for ensuring that each such person or entity complies with these Terms and Conditions.
6. Access to Services; Suspension and Cancellation
Subject to your compliance with the Terms and Conditions, Billfish Software grants you a revocable, non-exclusive, nontransferable right to access and use the Service. You agree that Billfish Software is not providing you with access to the Internet in order to use the Service and that you remain responsible for Internet access. The Services are provided with Restricted Rights for U.S. Government users.
7. Restrictions
The Service is to be used by individuals and entities only as permitted under these Terms and Conditions and the Acceptable Use Policy. Under no circumstances may you resell, redistribute, or sublicense the Services, or use the Services on a timeshare or service bureau basis, or to operate a website or host an online business unless expressly permitted under another written agreement between you and Billfish Software or Billfish Software Affiliates. You may not use the Services for the development, production or marketing of a service or product substantially similar to the Services.
You agree not to copy, modify, reverse assemble, reverse compile, otherwise translate, or reverse engineer the Services or Software, except as expressly permitted by law without possibility of contractual waiver. Unless expressly permitted in another written agreement between you and Billfish Software or Billfish Software Affiliates, you may not: remove, deface, cover, alter or obscure any copyright or trademark notices and/or legends or other proprietary notices associated with the Services.
8. Scheduled Maintenance
Billfish Software will give reasonable advance notice to you of any scheduled maintenance of the Service. Billfish Software will attempt to schedule such maintenance -- to the extent reasonably practicable -- during the weekend hours or after normal business hours (i.e., between 8:00 pm and 7:00 am Eastern time). Billfish Software will post any scheduled maintenance hours on the Billfish BPM Cloud Web Site. Service may not be available during these times. Billfish Software reserves the right to interrupt Services to perform emergency maintenance as needed. Billfish Software may change scheduled maintenance hours and will post to the Billfish BPM Cloud Web Site any such changes, as well as any emergency maintenance information. Billfish Software shall use commercially reasonable efforts to maintain the security of the Service.
9. Updates; Applicable Terms and Authorization for Auto Updates
These Terms and Conditions apply to all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Service (collectively, "Updates") that Billfish Software may provide or make available generally to its customers after the date that the Service commences, subject to any additional terms provided by Billfish Software applicable to such Updates. You hereby authorize Billfish Software to, and agree that Billfish Software may, in accordance with Billfish Software's standard operating procedures, automatically and in good faith transmit, access, install, and otherwise provide Updates to the Software or Service without further notice or need for consent. Billfish Software has no obligation to, and nothing in these Terms and Conditions may be construed to require Billfish Software to, create, provide, or install Updates. Billfish Software may change these Terms and Conditions or any Service Description at any time by posting a new version on the Billfish BPM Cloud Web Site and may change the Acceptable Use Policy or the Privacy Practice by posting a new version at the applicable Web site identified herein. You agree to periodically review these Web sites for changes to these Terms and Conditions, applicable Service Descriptions, the Acceptable Use Policy, and the Privacy Practice, and you accept any modified terms by continuing to use the affected Service or ordering a new Service after the changes are posted. A change will take effect upon the date specified in such posting or thirty (30) days after posting if no date is specified.
10. Technical Support
Technical Support, if available, will be specified in the applicable Service Description. Technical Support is offered via email only at support@billfishsoftware.com. Any enhancements, updates and other materials provided by Billfish Software as part of any such Technical Support are considered to be part of the Service or Software, as applicable, and are governed by these Terms and Conditions.
11. Privacy
11.1 Personal Information about you and Authorized Users.
You agree to allow Billfish Software and Billfish Software Affiliates to store, use, and transfer the personal information about you that you provide to us in connection with your use of the Service, including without limitation, your name, phone number(s), and e-mail address(es), anywhere Billfish Software and Billfish Software Affiliates do business, in accordance with the Privacy Practice at http://www.billfishsoftware.com/privacypolicy.html. In connection with your use of the Service, you acknowledge and agree that: (a) your name, title, company name and any photograph posted by you can be viewed by other users of the Service, and (b) at any time you may request that your Profile information be corrected or removed from the Service and such Profile information will be corrected or removed, but removal may prevent access to the Service.
11.2 Personal Information included in your Content.
THE SOFTWARE AND/OR SERVICES MAY ALLOW YOU TO INCLUDE IN YOUR CONTENT PERSONAL INFORMATION ABOUT OTHERS. THE LAWS OF SOME JURISDICTIONS MAY REQUIRE THE CONSENT OF INDIVIDUALS PRIOR TO INCLUDING THEIR PERSONAL INFORMATION IN YOUR CONTENT. You agree to comply with all applicable laws to obtain all necessary consents and make all necessary disclosures before including personal information in your Content and using the Software and Service. You confirm you are solely responsible for any personal information contained in your Content, including any information you share with third parties, and that you are in compliance with all applicable data protection laws. Billfish Software agrees to process any personal information that meets these requirements according to these Terms and Conditions. In connection with your use of the Service, certain features of the Service may permit you to interact or share your Content with third party websites or services. If you choose to transmit your Content or provide any other information to such third parties, you agree to be bound by any applicable third party Terms and Conditions, and Billfish Software accepts no responsibility or liability for any such third party services.
12. Ownership of Software, Services, and Marks
Billfish Software and Billfish Software Affiliates and their suppliers own the Service and the underlying Software. You agree that title to, ownership of and all rights in and to patents, copyrights, trademarks, and all other intellectual property rights in the Service, and any copy or part of the Service will remain with Billfish Software, Billfish Software Affiliates, and their suppliers. Billfish Software may subcontract the Service, or any part thereof, including technical support, to subcontractors selected by Billfish Software.
13. Ownership of Content
You are solely responsible for: (a) all Content including, without limitation, its selection, creation, design, licensing, installation, accuracy, maintenance, testing, backup and support, including any rights, licenses and/or consents necessary for Billfish Software to perform its obligations under these Terms and Conditions; (b) all copyright, patent and trademark clearances in all applicable jurisdictions and usage agreements for any and all Content; and (c) the selection of controls on the access to and use of Content.
By virtue of your agreeing to these terms, Billfish Software does not claim ownership of any Content. You confirm that you have all necessary authorization to allow Billfish Software to host, cache, record, copy, and display Content solely for the purpose of providing the Service to you. Except as set forth in this Section 13, you retain your right, title, and interest in and to the Content, and to display and transfer Content. You hereby grant to Billfish Software a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy, and display Content solely for the purpose of providing the Services to you. Billfish Software may not otherwise use or edit Content except as specifically permitted by these Terms and Conditions. If you choose to transmit your Content to a third party site which may be linked to or accessible by the Service, you are providing Billfish Software with the consent to enable such transmission of Content, and you remain liable for such transmission.
You acknowledge that Billfish Software and Billfish Software Affiliates do not control the transfer of data over telecommunications facilities, including the Internet, and that in a public Internet environment Billfish Software and Billfish Software Affiliates cannot commit to particular confidentiality obligations. Consequently, all Content and other information you provide to Billfish Software in connection with these Terms and Conditions will be considered non-confidential. You agree that Billfish Software and Billfish Software Affiliates have no responsibility for Content, including if Content is modified or lost. You are solely responsible for determining the appropriate security procedures and controls regarding encryption and backup of all Content and for the implementation of those procedures and controls.
14. Representations and Warranties About Content
You represent and warrant that you: (a) are the owner or authorized licensee of any and all Content; (b) will not publish, post, upload, record, or otherwise distribute or transmit Content that violates the Acceptable Use Policy or applicable law; and (c) are the data owner or controller and have all required permissions and consents from any relevant authority and any third party whose personal information you may have posted or uploaded to the Service.
15. Return of Your Content
You may request that Billfish Software return your Content within thirty (30) days of the effective date of termination of these Terms and Conditions if you are entitled to use the Subscribed Edition of the Service at the time of termination. If so requested, Billfish Software will create a file containing your Content and make it available to you for download for a period of fifteen (15) days. After the 30-day period following termination or if you do not download your Content within the 15-day period that Billfish Software makes your Content available for download, Billfish Software shall have no obligation to maintain or provide any of your Content and shall thereafter, unless legally prohibited, delete all of your Content in Billfish Software's systems or otherwise in Billfish Software's possession or control. The foregoing does not apply to any of your Content associated with a Free Edition or Evaluation Edition of the Service, which Billfish Software at its discretion may delete from its systems upon any termination of these Terms and Conditions or the Service, unless legally prohibited.
16. Confidentiality
You agree not to disclose to others your account number and/or password for the Service. You remain responsible for all uses of your account in accordance with these Terms and Conditions, whether or not expressly authorized by you. All information exchanged with Billfish Software and Billfish Software Affiliates or posted on the Service is non-confidential. If either of us requires the exchange of confidential information, it will be made under a separate signed confidentiality agreement.
17. Compliance with Applicable Export Law
Regardless of your location when you access the Service, you agree to comply with all applicable export control and sanctions laws and regulations, including but not limited to those of the United States. You may not export, re-export, divert, transfer, disclose or permit access to any portion of the Service, Software or technical information, directly or indirectly, in violation of any applicable export control or sanctions law or regulation. You are also responsible for complying with all other laws, rules, and regulations that may be applicable to your use of the Service and Software. You agree that the Services shall not be used in support of any prohibited end uses, including but not limited to, nuclear facilities, space or missile and weapons systems (including chemical and biological weapons), or by any prohibited end users including but not limited to nationals of Country Group E, identified in Supplement No. 1 to Section 740 of the U.S. Export Administration Regulations, wherever they may be located. You understand and acknowledge that Billfish Software may use its global resources, including but not limited to, Billfish Software Affiliates and personnel located in various countries, for the delivery of the Service. You shall provide Billfish Software with advance written notice prior to posting Content that requires an export license for Billfish Software to provide the Service as contemplated herein, including access by Billfish Software or Billfish Software Affiliates worldwide.
18. Charges & Payment
18.1 Charges
Your order will specify the charges, if any, and the charge period for the applicable Service. Charges will begin for a Service when the Service is enabled and ready for your use and will continue until the Service expires, terminates or is withdrawn. You agree to pay all applicable charges and any taxes for such Services. Recurring charges will be billed at the beginning of each charge period (e.g. monthly, quarterly, or annual) specified in the Service Description or your order and will be prorated for when a Service begins or ends. At the end of the term of a charge period, you will be billed for an additional charge period equal in length to the previous charge period and you agree to pay the charges applicable to each additional term, unless you notify Billfish Software thirty (30) days prior to the end of the current charge period that you would like to cancel your Service.
Billfish Software will bill applicable charges to your credit card on file for your Account, unless other arrangements have been agreed to by Billfish Software. If Billfish Software provides you an invoice instead of charging your credit card, amounts are due upon receipt and payable as specified in the invoice, including late payment fees.
Services for which you prepay must be used within the applicable Service period. Billfish Software does not give credits or refunds for any prepaid or other charges already due or paid.
18.2 Taxes
If any authority imposes upon the Service (including the import into or export, transfer, access or use of such Service outside the country where these Terms and Conditions were executed) a duty, tax, levy or fee, excluding those based on Billfish Software net income, then you agree to pay that amount as specified in an invoice, unless you supply valid and complete exemption documentation. For any such amounts, Billfish Software will charge your credit card or, if applicable, invoice you for payment.
19. Indemnity
You agree to defend, indemnify, and hold harmless Billfish Software and Billfish Software Affiliates and their officers, directors, employees, consultants, agents, representatives, attorneys, advisors and suppliers from and against any and all third party claims, liabilities, damages, and/or costs (including, but not limited to, fees, costs and other expenses of attorneys and expert witnesses) arising out of or related to (a) Content or (b) any of the following by you or any entity using your Account: (i) your use of the Service or underlying Software; (ii) any violation of these Terms and Conditions or applicable law by you; (iii) actual or alleged infringement by you, or any person accessing the Service using your password or access key, of any intellectual property or privacy or other right of any third party; or (iv) any unauthorized use of the Service or underlying Software.
For indemnification under this Section 19, Billfish Software will: (a) promptly notify you in writing of the claim; and (b) allow you to control, and will cooperate with you in, the defense and any related settlement negotiations.
20. DISCLAIMER OF WARRANTIES
BILLFISH SOFTWARE DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF ANY SERVICE OR THAT BILLFISH SOFTWARE WILL CORRECT ALL DEFECTS.
THE SERVICE AND SOFTWARE (INCLUDING ANY ASSOCIATED DOCUMENTATION, INFORMATION AND MATERIALS) ARE PROVIDED TO YOU "AS IS" AND BILLFISH SOFTWARE, BILLFISH SOFTWARE AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE MINIMUM WARRANTY PERIOD REQUIRED BY LAW. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
21. Acceptance of Risk
You acknowledge and agree that: (a) use of the Services is at your sole risk; (b) any material and/or data created, downloaded, or otherwise obtained through the use of the Services is at your own discretion and risk; (c) you will be solely responsible for any damages to you resulting from your use of the Services; and (d) the entire risk arising out of use or performance of the Services remains with you.
22. Limitation of Liability
The limitations and exclusions in this Section 22 (Limitation of Liability) apply to the full extent permitted by applicable law without the possibility of contractual waiver.
22.1 Items for Which Billfish Software May Be Liable
Circumstances may arise where, because of a default on Billfish Software's part or other liability, you are entitled to recover damages from Billfish Software. Regardless of the basis on which you are entitled to claim damages from Billfish Software (including breach of contract, negligence, misrepresentation, or other contract or tort claim), Billfish Software's entire liability for all claims in the aggregate arising from or related to the Service or otherwise arising under these Terms and Conditions shall not exceed the amount of any (a) damages for bodily injury (including death) and damage to real property and tangible personal property and (b) other actual direct damages, up to the charges (if the Service is subject to fixed term charges not to exceed twelve months' charges) you paid for the Service or if Billfish Software has provided you with access to the Service for use during an Evaluation Period then other actual direct damages not to exceed U.S. $1,000 (or the equivalent in your local currency).
This limit also applies to any of Billfish Software's and Billfish Software Affiliates' program developers and suppliers. The damage limitations set forth in this Section 22 are the maximum damages for which Billfish Software, Billfish Software Affiliates and their program developers and suppliers are collectively responsible.
22.2 Items for Which Billfish Software Is Not Liable
UNDER NO CIRCUMSTANCES ARE BILLFISH SOFTWARE, BILLFISH SOFTWARE AFFILIATES, AND THEIR PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
(a) LOSS OF, OR DAMAGE TO, DATA;
(b) SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES; OR
(c) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, ANTICIPATORY DAMAGES OR ANTICIPATED SAVINGS.
23. Termination
23.1 Termination of the Terms and Conditions
Either of us may terminate these Terms and Conditions if the other does not comply with any of the terms, provided the party in breach is given written notice and reasonable time to comply. Notwithstanding anything to the contrary in these Terms and Conditions, if Billfish Software terminates your access to the Service due to your breach of any provision of these Terms and Conditions or a Service Description, Billfish Software is not obligated to issue a refund or credit for any unused portion of the Service.
Any provision(s) of these Terms and Conditions that by their nature extend beyond termination of these Terms and Conditions remain in effect until fulfilled, and apply to both parties' respective successors and assignees.
23.2 Suspension, Termination, or Cancellation of a Service
Billfish Software may terminate or suspend your access to a Service, or prevent you from ordering any new Services if (a) credit card information is invalid or you fail to pay charges due; (b) in Billfish Software's sole discretion there is an emergency situation, including but not limited to breach of security, (c) continued provision of a Service or your use of a Service may cause Billfish Software or Billfish Software Affiliates to violate any law, rule, regulation, governmental policy, or court order; (d) use of a Service is inconsistent with a contractual commitment or intellectual property right of a third party; (e) you materially violate these Terms and Conditions, or (f) there is a violation of the Acceptable Use Policy.
Billfish Software will provide you written notice of a termination or suspension and the reason for the termination or suspension. In the event of a suspension for which the cause is reasonably capable of being remedied, Billfish Software will inform you of what actions you must take to reinstate the Service or your eligibility to request new Services. If you fail to take the specified actions within a reasonable time, Billfish Software may terminate a suspended Service or these Terms and Conditions upon written notice. Upon any suspension, discontinuance or cancellation of a Service or termination of these Terms and Conditions, your access and other rights to the Service will be cancelled and cease. In such event you must cease any further use of the Service and destroy all copies of the associated Software within your possession or control.
Charges will continue to accrue during any suspension period and you are responsible to pay all charges due and payable up to the date of termination.
You may cancel a Service at any time upon written notice to Billfish Software, without any right of refund.
23.3 Withdrawal of a Service
Billfish Software may withdraw the Service in its entirety on written notice to all then current users by letter or e-mail. Such notice of withdrawal will be equal in length to the then applicable charge period for the Service (e.g., 1 month if monthly, 3 months if quarterly, or 12 months if annual).
24. Geographic Scope
Although you may have accessed the Services outside of the United States of America, Billfish Software's delivery of the Services will only occur within the United States of America, and the obligations of Billfish Software and Billfish Software Affiliates hereunder are valid only in the United States of America.
25. Governing Law; Exclusive Forum
The Terms and Conditions, and the relationship between you and Billfish Software resulting from your use or attempted use of the Services, and the resolution of any dispute arising out of that relationship, shall all be governed by and construed in accordance with the internal substantive laws of the State of California, without regard to any conflict of law principles or provisions. You agree that any legal action or proceeding arising out of or related in any manner to the Terms and Conditions, or the relationship between you and Billfish Software resulting from the Terms and Conditions or your use or attempted use of the Services, shall be brought exclusively in the state or federal courts of the State of California located in the County of Los Angeles. You expressly waive any right to a jury trial for disputes related to the subject matter of the Terms and Conditions. Unless otherwise provided by local law without the possibility of contractual waiver or limitation, any legal or other action related to a breach of the Terms and Conditions must be commenced no later than two (2) years from the date on which the cause of action arose.
26. Miscellaneous
These Terms and Conditions and any Service provided under it do not create an agency, joint venture, or partnership between you and Billfish Software. Each party is free to enter into similar agreements with others to develop, acquire or provide competitive services. Each party grants only the licenses and rights specified in these Terms and Conditions. No other licenses or rights (including licenses or rights under patents) are granted either directly, by implication, or otherwise. You are responsible for selecting Services that meet your needs and the results obtained from your use of the Services. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, (i) neither party will bring a legal action, regardless of form, arising out of or related to these Terms and Conditions or any Service more than two years after the cause of action arises; and (ii) after such time limit, any legal action arising out of these Terms and Conditions or any Service and all respective rights related to any such action lapse. Neither party is relying on any representation that is not specified in these Terms and Conditions including without limitation any representations concerning: (i) total charges for any Service, (ii) the experiences or recommendations of other parties or (iii) results or savings you may achieve. If any part of these Terms and Conditions is held to be invalid or unenforceable the remaining provisions of this Agreement remain in full force and effect. Billfish Software's failure to exercise or enforce any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision unless agreed to by Billfish Software in a writing signed by one of its duly authorized representatives. Nothing in the Terms and Conditions affects any statutory rights of consumers that cannot be waived or limited by contract. Neither party is responsible for failure to fulfill any obligations due to causes beyond its control. No right or cause of action for any third party is created by these Terms and Conditions, nor is Billfish Software responsible for any third party claims against you, except as permitted in Subsection 18.1 (Items for Which Billfish Software May Be Liable) above for bodily injury or death or damage to real or tangible personal property for which Billfish Software is legally liable to that third party.
27. Entire Agreement
These Terms and Conditions, each applicable Service Description, the Acceptable Use Policy, and the Privacy Practice constitute the entire agreement between Billfish Software and you with respect to the Services and Software and supersede all other prior or contemporaneous communications and proposals, whether electronic, non-electronic, oral or written, between Billfish Software and you regarding the Service.
Any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that you may now or later provide to Billfish Software, will have no effect. These Terms and Conditions may only be amended as set forth herein.
Service Description
The Billfish BPM Cloud Service is a web-based business process management platform available at http://www.billfishbpmcloud.com. The Service is comprised of the Evaluation Edition (a trial version of the Subscribed Edition), or the Subscribed Edition (a fee-paid Service). Billfish Software reserves the right to modify the Service and/or any components thereof, the User Guide, its support policies and service levels, its security and privacy policies and any other information and/or policies as set forth and described at the foregoing websites at its sole discretion and without notice, but this will not affect the security procedures and controls you have applied to protect the Content. Technical Support is offered via email only at support@billfishsoftware.com.
Last Updated: July 9, 2010