TERMS OF SERVICE
Last Modified: April 12, 2024
IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO A WAIVER OF CLASS ACTION RIGHTS AND THE RIGHT TO A JURY TRIAL AS DETAILED IN THE CLASS ACTION AND JURY TRIAL WAIVER SECTION BELOW. THIS AGREEMENT IS SUBJECT TO INDEMNITY OBLIGATIONS AS DETAILED IN THE INDEMNIFICATION SECTION BELOW.
THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU OR THE ENTITY THAT YOU REPRESENT THAT IS USING OR ACCESSING THE BIT SERVICES WHETHER IN CONNECTION WITH A PAID OR UNPAID SUBSCRIPTION (hereinafter “you” or “your”) AND BIT DEALERSHIP SOFTWARE, INC. (hereinafter “BIT” and referred to as “us”, “we”, or “our” as the context may require) GOVERNING YOUR USE OF BIT’S ONLINE DEALER MANAGEMENT SYSTEM (hereinafter “Product(s)”).
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
YOU MAY NOT ORDER OR OBTAIN SERVICES FROM THIS SITE (AS DEFINED BELOW) IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE UNDER 18 YEARS OF AGE, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS SITE OR ANY OF THIS SITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
Acceptance of the Terms
These terms and conditions (these “Terms”) apply to the purchase and/or use of services through www.bitdms.com or www.bitdms.net (the “Site”). These Terms are subject to change by BIT without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on this Site, and you should review these Terms prior to purchasing any product or services that are available through this Site. Your continued use of this Site after a posted change in these Terms will constitute your acceptance of and agreement to such changes. If you do not agree to the Terms, do not use any of our Services.
By using the Site or by clicking to accept or agree to the Terms when this option is made available to you, you accept and agree to be bound and abide by these Terms and our Privacy Policy, found at https://www.bitdms.net/onlineapp/privacy.html, incorporated herein by reference. If you do not want to agree to these Terms or the Privacy Policy, you must not access or use the Site.
Description of Service
Through our Products, we provide an array of services for online business management including point-of-sale invoicing, work order billing, technician tracking, inventory management, inventory price updates, unit sales, prospect management and customer relationship management applications, including email and text message communications, (“Service” or “Services”). You may use the Services for your personal and business use or for internal business purpose in the organization that you represent. You may connect to the Services using any Internet browser supported by the Services. You are responsible for obtaining access to the Internet and the equipment necessary to use the Services. You can create and edit content with your user account and, if you choose to do so, you can publish and share such content.
Subscription to Service
You hereby agree to license the Product(s) selected in the Admin/Billing page of your account on the Site (the “Subscription”). Each Product may include updates, cloud-based services, support services, applications or documentation, each of which is subject to the terms of this Agreement as applicable. BIT may add to, change or discontinue any component of the Products at any time; provided however, that no such change shall materially increase your obligations or materially decrease your entitlements under this Agreement. You are responsible for all actions taken under your BIT account credentials, regardless of whether such actions are taken by you, your employees or a third party. BIT is not liable for any loss or damage arising from any unauthorized use of your account.
Grant of License
During the Term (as defined below), BIT grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use, and, in the case of BIT Products that permit additional users, to allow such users to use, the Products on the terms set forth in this Agreement. You agree that all rights, title and interest in and to all the intellectual property rights in the Products, and all modifications, extensions, scripts and other derivative works of the Products provided or developed by BIT are owned exclusively by BIT or its licensors. All rights not granted to you in this Agreement are reserved by BIT.
Term of Agreement
The “Initial Term” shall mean the first month of a monthly subscription or the first year in an annual subscription in the term beginning with the day you or another user on your account first uses the Product (“Activation Date”). Upon expiration of the Initial Term and unless otherwise stated in the Subscription, this Agreement will automatically renew on a monthly basis for monthly subscriptions including those that began with an initial prepayment for 6 months and shall automatically renew each year for annual subscriptions (each a “Renewal Term,” and the Initial Term and all Renewal Terms collectively, the “Term”) until terminated by you or BIT by delivery of written notice to the other party at least thirty days prior to the end of the Initial Term or then-current Renewal Term, as applicable.
Subscription to Beta Service
We may offer certain Services as closed or open beta services (“Beta Service” or “Beta Services”) for the purpose of testing and evaluation. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the Beta
Services as commercial services. You understand and agree that participation in the Beta Service is voluntary and does not create a legal partnership, agency, or employment relationship between you and BIT, unless otherwise agreed in writing. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to you. BIT may suspend or terminate your access to the Beta Services if your use of the Beta Services is disrupting or causing harm to BIT, the Beta Services, the Services, or any of BIT’s computer systems, or is in violation of, or likely to violate, any applicable laws. You agree that BIT will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason. Unless otherwise agreed or permitted by BIT in writing, you cannot share or transfer any software or other materials received from BIT in connection with being a Beta Services participant.
Modification of Terms
We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Site thereafter. You will be provided notice of any material modification by electronic mail or by publishing the changes at http://bitdms.net/onlineapp/terms.html. You may terminate your use of the Services if the Terms are modified in a manner that substantially affects your rights in connection with use of the Services. Your continued use of the Service after notice of any change to the Terms will be deemed to be your agreement to the amended Terms. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
User Sign up Obligations
You need to sign up for a user account by providing all required information in order to access or use the Services. If you represent an organization and wish to use the Services for corporate internal use, we recommend that you, and all other users from your organization, sign up for user accounts by providing your corporate contact information. In particular, we recommend that you use your corporate email address. You agree to: a) provide true, accurate, current and complete information about yourself and your organization during the sign up process, including authorized dealer status, if applicable; and b) maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if BIT has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, BIT may terminate your user account and refuse current or future use of any or all of the Services.
Personal Information and Privacy
Personal information you provide to BIT through the Service is governed by the BIT Privacy Policy found at www.bitdms.net/onlineapp/privacy.html. Your election to use the Service indicates your acceptance of the terms of the BIT Privacy Policy. You are responsible for maintaining confidentiality of your username, password and other sensitive information. You are responsible for all activities that occur in your user account and you agree to inform us immediately of any unauthorized use of your user account by email to support@bitdms.com or by calling us on any of the numbers listed on http://www.bitdms.com/contact. We are not responsible for any loss or damage to you or to any third party incurred as a result of any unauthorized access and/or use of your user account, or otherwise.
Communications from BIT
The Service may include certain communications from BIT, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Services. We also provide you the option of opting out from receiving newsletters from us. However, you will not be able to opt-out from receiving service announcements and administrative messages.
Order Acceptance and Cancellation.
You agree that your selection on the Admin/Billing page of the Site is an offer to buy, under these Terms, all products and services selected. All orders must be accepted by us or we will not be obligated to sell the Products or Services to you. We may choose not to accept any orders in our sole discretion.
Prices and Payments
All prices for Services are subject to change without notice. The price charged for a product or service will be the price in effect at the beginning of the Initial or Renewal Term. We are not responsible for pricing, typographical or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
Subscriptions to paid Services are available on monthly or annual subscription plans. Monthly subscriptions require a minimum commitment of three months. A discount may be offered for the prepayment of the first six months of a monthly subscription. Your subscription will be automatically renewed at the end of each Term unless you inform us that you do not wish to renew the subscription thirty (30) days before the end of the Term. In the event of termination of the subscription, you will not be refunded the subscription fee for the unused portion of the Term. You shall pay BIT the monthly fees or annual fee (“Fees”) specified in the Subscription, in accordance with the timing and currency specified in the Subscription. All payments by you to BIT under this Agreement are non-refundable, and made via the automatic credit card payment method specified by you in the Subscription, or as otherwise agreed by the parties. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any. You shall undertake any additional actions reasonably requested by BIT to implement the foregoing automated fee payment process. If you would like the payment for the renewal to be made through a different credit card, you agree to inform us at least seven days prior to the renewal date.
Any amounts past due from you under this Agreement shall accrue interest at a rate which is eighteen percent per annum or, if less, the maximum rate allowable by law. Any applicable federal, state, provincial, or other goods and services or sales taxes will be added to fees owing pursuant to this Agreement.
Maintenance activities
BIT regularly performs maintenance activities in order to safeguard the BIT Product functions properly. BIT shall, when possible, carry out the maintenance activities during such times that will cause the least disruptions. You shall cooperate if necessary for the purpose of maintenance work.
Restrictions on Use
In addition to all other terms and conditions of this Agreement, you shall not use the Site, the Services, or the Product:
To transmit the following types of content, which are explicitly prohibited:
Additionally, you shall not:
Confidential Information
BIT may provide confidential cost information or other confidential information to you based upon your truthful enrollment and disclosures to BIT. BIT and you (and its users) shall each retain in confidence all information received from the other party pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under the terms and during the term of this Agreement. Each party shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its immediate legal and financial consultants as required in the ordinary course of that party’s business. Notwithstanding the foregoing, the restrictions set forth above will not apply to (i) information previously known to the receiving party without reference to the disclosing party’s Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the receiving party, (iii) information that is independently developed by either of the parties, or (iv) information required to be disclosed pursuant to applicable law. The foregoing shall also not prevent BIT from using your name and/or trademark(s) in its marketing and training materials or your data on an aggregate, anonymized basis.
Suspension and Termination
We may suspend your user account or temporarily disable access to the whole or part of any Service in the event of any suspected illegal activity, non-payment for services, violation of the Terms, extended periods of inactivity or requests by law enforcement or other government agencies. Objections to suspension or disabling of user accounts should be made to info@bitdms.com within thirty days of being notified about the suspension. We may terminate a suspended or disabled user account after thirty days. We will also terminate your user account on your request. In addition, we reserve the right to terminate your user account and deny the Services upon reasonable belief that you have violated the Terms and to terminate your access to any Beta Service in case of unexpected technical issues or discontinuation of the Beta Service. Termination of user account will include denial of access to all Services and deletion of information in your user account such as your e-mail address and password and may include deletion of all data in your user account.
Upon termination of this Agreement, you shall discontinue your use of the Product(s). Notwithstanding the foregoing, termination of this Agreement by BIT shall not limit your obligation to pay all of the applicable fees, nor restrict BIT from pursuing any other remedies available to it, including injunctive relief.
You agree that following termination of your account and/or use of the Product, BIT may immediately deactivate your account and, after 30 days, delete your data. You further agree that BIT shall not be liable to you nor to any third party for any termination of your access to the Product or deletion of your data.
Third Party Services
You may decide to enable, access or use any Third Party Services (as defined below). You agree that access and use of such Third Party Services shall be governed solely by the terms and conditions of such Third Party Services, and that BIT is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle data (including your data) or any interaction between you and the provider of such Third Party Services, regardless of whether or not such Third Party Services are provided by a third party that is a member of a BIT partner program or otherwise designated by BIT as “certified”, or “approved” by BIT. Any use by you of Third Party Services shall be solely between you and the applicable third party provider. You irrevocably waive any claim against BIT with respect to such Third Party Services. BIT is not liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access or use of any such Third Party Services, or your reliance on the privacy practices, data security processes or other policies of such Third Party Services. “Third Party Services” means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which one or more Products link to, or which you may connect to or enable in conjunction with one or more Products, including but not limited to credit card processing services.
Inactive User Accounts Policy
We reserve the right to terminate unpaid user accounts that are inactive for a continuous period of 60 days. In the event of such termination, all data associated with such user account may be deleted. We will provide you prior notice of such termination. The data deletion policy may be implemented with respect to any or all of the Services. Each Service will be considered an independent and separate service for the purpose of calculating the period of inactivity. In other words, activity in one of the Services is not sufficient to keep your user account in another Service active. In case of accounts with more than one user, if at least one of the users is active, the account will not be considered inactive.
Data Ownership
We respect your right to ownership of content created or stored by you. You own the content created or stored by you. Unless specifically permitted by you, your use of the Services does not grant BIT the license to use, reproduce, adapt, modify, publish or distribute the content created by you or stored in your user account for BIT’s commercial, marketing or any similar purpose. But you grant BIT permission to access, copy, distribute, store, transmit, reformat, publicly display and publicly perform the content of your user account solely as required for the purpose of providing the Services to you.
User Generated Content
You may transmit or publish content created by you using any of the Services. However, you shall be solely responsible for such content and the consequences of its transmission or publication. You are responsible for ensuring that you do not accidentally make any private content publicly available. Any content that you may receive from other users of the Services, is provided to you AS IS for your information and personal use only and you agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose, without the express written consent of the person who owns the rights to such content. In the course of using any of the Services, if you come across any content with copyright notice(s) or any copy protection feature(s), you agree not to remove such copyright
notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on any of the Services you affirm that you have the consent, authorization or permission, as the case may be from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, you expressly agree that BIT will have the right to block access to or remove such content made available by you, if BIT receives complaints concerning any illegality or infringement of third party rights in such content. By using any of the Services and transmitting or publishing any content using such Service, you expressly consent to determination of questions of illegality or infringement of third party rights in such content by the agent designated by BIT for this purpose.
Sample files and Applications
BIT may provide sample files and applications for the purpose of demonstrating the possibility of using the Services effectively for specific purposes. The information contained in any such sample files and applications consists of random data. BIT makes no warranty, either express or implied, as to the accuracy, usefulness, completeness or reliability of the information or the sample files and applications.
Intellectual Property Rights
The Site and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by BIT, BIT’s licensors or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Site except as follows:
You must not:
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Site in breach of the Terms, your right to use the Site will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Site or any content on the Site is transferred to you, and all rights not expressly granted are reserved by us. Any use of the Site not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
Trademark
BIT, BIT’s logo, the names of individual Services and their logos are trademarks of BIT Dealership Software, Inc. You agree not to display or use, in any manner, the BIT trademarks, without BIT’s prior permission.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SITE, THE SERVICES, OR THE PRODUCT IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. BIT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO (a) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (b) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, (c) WARRANTY OF TITLE OR NON-INFRINGEMENT; OR (d) STATUTORY REMEDY. BIT MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR VIRUS FREE. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM BIT, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT.
WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation of Liability
BIT AND ITS AFFILIATES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE TO SUCH LIABILITY WAS FIRST ASSERTED. EXCEPT WITH RESPECT TO (i) ANY WILLFUL OR DELIBERATE INFRINGEMENT OR MISAPPROPRIATION BY CUSTOMER OF ANY OF BIT’S, ITS AFFILITIATES’ OR SUPPLIERS’ INTELLECTUAL PROPERTY RIGHTS, AND (ii) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT AS BETWEEN THEM. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE PRODUCTS AVAILABLE TO CUSTOMER AND THAT, WERE BIT TO ASSUME FURTHER LIABILITY OTHER THAN AS SET FOR HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SIGNIFICANTLY HIGHER.
IN NO EVENT WILL BIT, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SITE, ANY SITES LINKED TO IT, ANY CONTENT ON THE SITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Indemnification
You agree to indemnify and hold harmless BIT, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to your violation of these Terms or your use of the Site, including, but not limited to any use of the Site’s content, the Services, and the Products other than as expressly authorized in these Terms or your use of any information obtained from the Site. You further agree to indemnify and hold harmless BIT, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to any violation of the Telephone Consumer
Protection Act, 47 U.S.C. § 227, et seq. related to, concerning, or regarding your transmission of text message through the Services or the Products.
Your Representations and Indemnification
You represent and warrant that currently and throughout the Term (i) you are fully authorized to enter into this Agreement and that you and any users are fully authorized to utilize the Products, and (ii) you and any users are and will remain in compliance with all applicable laws and regulations with respect to its and their activities related to this Agreement, including but not limited to privacy laws. Any violation of this section may result in loss of features, up to and including termination of your account. You will indemnify BIT for any costs, fines or damages incurred by BIT due to you or your user’s failure to comply with this section.
Arbitration
Any controversy or claim arising out of or relating to the Terms shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Tennessee and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, BIT may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. Claims not covered by this agreement to arbitrate are claims for injunctive relief and any other equitable relief arising out of BIT’s efforts to enforce its rights under the Terms.
Governing Law
All matters relating to the Site and these Terms and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule (whether of the State of Tennessee or any other jurisdiction).
Any legal suit, action or proceeding arising out of, or related to, these Terms or the Site that is not subject to the agreement to arbitrate discussed above shall be instituted exclusively in the federal or state courts located in Knox County, Tennessee, although BIT retains the right to bring any suit, action, or proceeding against you for equitable or injunctive relief for breach of these Terms in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Class Action And Jury Trial Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. BIT and you agree that the resolution of any disputes between the parties shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND BIT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
To the extent not prohibited by applicable law that cannot be waived, the parties hereby waive, and covenant that they will not assert (whether as plaintiff, defendant or otherwise), any right to trial by jury in any action arising in whole or in part under or in connection with these Terms or any of the contemplated transactions, whether now existing or hereafter arising, and whether sounding in contract, tort or otherwise. The parties agree that a copy of this paragraph may be filed with any court as written evidence of the knowing, voluntary and bargained-for agreement among the parties to irrevocably waive their right to trial by jury in any proceeding whatsoever between them relating to the Terms or any of the contemplated transactions and that such proceeding will instead be tried in a court of competent jurisdiction by a judge sitting without a jury.
BIT will provide 60-days’ notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day.
Waiver and Severability
No waiver by BIT of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of BIT to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
Miscellaneous
BIT may provide any and all notices, statements and other communications to you through either e-mail, posting on its site, or by mail or express delivery service.
The provisions of this Agreement shall not be construed against either party by virtue of their authorship.
The parties acknowledge that they require that this Agreement be drawn up in the English language, that the English language version prevails and that any translation is for information purposes only.