BACKGROUND BURNER TERMS OF SERVICE
THESE TERMS OF SERVICE (THIS “AGREEMENT”) ARE AN AGREEMENT BETWEEN YOU (“CUSTOMER” OR “YOU”) AND BONANZA.COM, INC. (“BONANZA”) AND SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH BONANZA AGREES TO GRANT CUSTOMER THE RIGHT TO ACCESS AND USE BONANZA’S BACKGROUND BURNER SERVICE. THIS TERMS OF SERVICE DOES NOT GOVERN YOUR USE OF THE BONANZA.COM GENERALLY OR USE OF OUR MARKETPLACE SERVICE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE REFERENCES TO “CUSTOMER,” “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE.
1. CONSTRUCTION. Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, and Customer’s subscription Order. For the purpose of this Agreement, an “Order” means an your registration and subscription for the level of Service you opt into through the Service. The Order may be a physical purchase order, or may be a form that you click through electronically. Bonanza offers both free and paid subscription tiers for the Service. If your Order indicates that your selected subscription tier will be provided at no charge, the payment obligations set forth in Section 4.1 will not apply until such time as Customer upgrades to a paid subscription tier or places an subscription order for paid Services.
2. THE SERVICE.
2.1 Access. Commencing on the Start Date specified in the applicable Order, Bonanza shall make available to Customer the Background Burner services identified in the Order, subject to the terms of this Agreement and any scope limitations set forth in the Order (the “Service”).
2.2 Rights to the Service. Subject to the terms and conditions of this Agreement, Bonanza hereby grants Customer a non-exclusive, non-transferable, worldwide right during the Term to access the Service to use the Service solely for Customer’s own personal and internal business purposes. Service provided to Customer is subject to any scope limitations set forth in the applicable Order.
2.3 Updates. At no charge to Customer, Bonanza shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement.
2.4 Restrictions and Conditions. Customer shall not, directly, indirectly or through its employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) publicly publish, copy (except for internal use), duplicate or replicate the Service; (c) scrape any data, content or intellectual property, or otherwise trespass or interfere with Bonanza’s Service or systems; (d) "frame," "mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (e) allow access to the Service by multiple individuals impersonating a single end user; (f) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Bonanza technologies, services, systems or other offerings, including data transmission, storage and backup; (g) use the Service for the purpose of developing a product or service that competes with the Bonanza online products and services; (h) circumvent or disable any security features or functionality associated with Service; or (i) use the Service in any manner prohibited by law. You must be 18 years or older to use the Service. By registering to use our Service, you represent and warrant that you are 18 years of age or older.
2.5 Reservation of Rights. All rights not expressly granted to Customer are reserved by Bonanza, its suppliers and licensors.
2.6 Delivery of Service and Materials. The Service, and any updates or maintenance releases thereof, shall be made available only on a hosted basis, and will not be delivered in object code or physical media to Customer. The Service, and any deliverables provided under this Agreement will be delivered only through an electronic transfer.
3. YOUR CONTENT.
3.1 You Own Your Images. You will retain all rights to any images you submit to the Service for processing and the resulting image output from the Service.
3.2 Limited License to Bonanza. By submitting any content (including without limitation, any photograph, words, pictures, or symbols) or information to us in connection with your registration for and use of the Service, you grant us a license to use, copy, modify, create derivative works, publicly perform and distribute such content for the purpose of providing you with the Service, and for the purposes of improving Bonanza’s products and services (including improvements to the Background Burner Service). If you post images to public areas of the Service (e.g., the Background Burner Hall of Fame) you grant us a perpetual, irrevocable, worldwide, non-exclusive, royalty-free license, sublicensable through multiple tiers, in all media now known or hereinafter created and for any purpose, license to use, copy, modify, create derivative works, publicly perform and distribute such content. You represent and warrant that you have sufficient rights to grant us the foregoing licenses. The foregoing licenses include any personality or publicity rights encompassed in such content, and you acknowledge we may use any such content to promote the Service. You must obtain consent and a release from any person (or the legal guardians of any persons) depicted in your content before you submit it to us, with full knowledge from these persons that we may use and publish the content in which they are depicted it in any manner whatsoever.
3.3 Responsibility for Content. You are solely responsible for any content that you submit, post or transmit via our Service. You may not post or submit any content that: (i) infringes the copyright, trademark, or other intellectual property rights of any person; (ii) is defamatory; (iii) contains nudity or sexually explicit content, or is otherwise obscene; (iv) may disparage any ethnic, racial, sexual, religious, or other group by stereotypical depiction or otherwise; (v) depicts or advocates the use of illicit drugs; (vi) makes use of offensive language or images; (vii) characterizes violence as acceptable, glamorous or desirable; (viii) provides a link to any other websites; or (ix) provides a phone number, email or other personal contact information. Bonanza has no obligation to process or post any specific content from you or anyone else. Bonanza may, in our sole and unfettered discretion, edit, remove or delete any content that you post or submit, including without limitation, if such content is judged by Bonanza to violate the foregoing restrictions or otherwise inappropriate for the Service.
4. CUSTOMER OBLIGATIONS.
4.1 Fees and Payment Terms. In consideration of the rights granted herein, Customer shall pay Bonanza the amounts
specified in each applicable Order (“Fees”) for the level of access specified in the Order.
(a) Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Customer shall be solely responsible for the payment of any Sales Taxes. In the event Bonanza is required to pay Sales Taxes on Customer’s behalf, Customer shall promptly reimburse Bonanza for all amounts paid.
(b) Unless otherwise specified in the applicable Order, all amounts shall be paid to Bonanza in advance by credit card payment through the Service. Customer authorizes Bonanza or its third party payment processors to charge the credit card identified by Customer (which Customer represents and warrants that it is authorized to use) all applicable fees for your purchase in US dollars, including all applicable taxes, and you agree that Bonanza may store your credit card information. If Bonanza does not receive payment from Customer’s credit card provider, Customer agrees to pay all amounts due upon demand and Bonanza may suspend your access to the Service. All sales are final and Bonanza will not issue refunds. Bonanza is not responsible for any actions or the performance of the third party payment processors.
(c) Fees not paid when due shall be subject to a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Bonanza further reserves (among other rights and remedies) the right to suspend access to the Service. Amounts payable to Bonanza shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Bonanza.
(d) Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the scope of the subscription cannot be decreased during the relevant subscription term.
(e) Prices of all services, including but not limited to monthly subscription plan fees, are subject to change upon 30 days of notice from Bonanza. Such notice may be provided at any time by posting the changes to the Background Burner site (bonanza.com/background_burner) or the Service itself. 4.2 Compliance with Laws. The Background Burner Service is of U.S. origin. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights. 4.3 Feedback and Use of Data. Customer has no obligation to give Bonanza any suggestions, comments or other feedback (“Feedback”) relating to the Service. or other current or potential Bonanza products or services. However, Bonanza may use and include any Feedback that Customer provides to improve the Service or other Bonanza products, services, software and technologies. Accordingly, if Customer provides Feedback, Customer grants Bonanza and its affiliates and subsidiaries a worldwide, non-exclusive, irrevocable, royalty-free, perpetual license to, directly or indirectly, use, reproduce, license, sublicense, distribute, make, have made, sell and otherwise commercialize the Feedback in the Service or other products, services, software and technologies. Customer further agrees not to provide any Feedback that (a) Customer knows is subject to any patent, copyright or other intellectual property claim or right of any third party or (b) is subject to license terms which seek to require any products incorporating or derived from such Feedback, or other Bonanza intellectual property, to be licensed to or otherwise shared with any third party. Customer agrees that Bonanza shall have the right to use your uploaded images and other information provided by Customer on an aggregated basis to improve Bonanza’s products and services.
5.1 Termination. Unless otherwise set forth in the applicable Order, either party may terminate this Agreement at any time upon written notice to the other. In any event, either party may terminate this Agreement if the other party materially breaches this Agreement and such breach has not been cured within thirty (30) days of providing notice thereof.
5.2 Effect of Termination. Upon expiration or termination for any reason, Customer shall discontinue all use of the Service, and return any and all software and documentation provided to Customer by Bonanza.
6. INDEMNIFICATION. Customer agrees to indemnify and hold Bonanza and (as applicable) Bonanza’s parent, subsidiaries, affiliates, officers, directors, agents and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Customer’s breach of this Agreement or the documents it incorporates by reference, or Customer’s violation of any law or the rights of a third party.
7. WARRANTY/ LIABILITY/ TOTAL LIABILITY.
7.1 No Warranty. BONANZA, BONANZA'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND BONANZA'S SUPPLIERS PROVIDE THE BACKGROUND BURNER WEB SITE AND SERVICE "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. BONANZA, BONANZA'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND BONANZA'S SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. BONANZA IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND BONANZA’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY BONANZA.
7.2 Limitation On Liability. IN NO EVENT SHALL BONANZA, AND (AS APPLICABLE) BONANZA'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR BONANZA'S SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE BACKGROUND BURNER SITE, THE BACKGROUND BURNER SERVICE OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). BONANZA'S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF BONANZA'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES CUSTOMER PAID TO BONANZA IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CUSTOMER.
8. COPYRIGHT INFRINGEMENT. Bonanza respect the intellectual property rights of others, and ask you to do the same. It is our policy to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Service in a way that constitutes copyright infringement, please contact us at the address below and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, and identification of the time(s) and date(s) the material that you claim is infringing was displayed on the Service; (3) your address, telephone number, and email address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. If you believe that your user content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your user content, you may send a counter-notice containing the following information to the copyright agent: (1) your physical or electronic signature; (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (4) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in the Western District of Washington and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the copyright agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion. Our designated agent for notice of copyright infringement can be reached at: Bonanza.com, Inc., Attention: Copyright Notice, 3131 Western Ave #428, Seattle, WA 98121, firstname.lastname@example.org.
9. CHANGES TO TERMS. Bonanza reserve the right to modify the Service and this Agreement at any time (on a prospective basis), effective ten (10) calendar days upon posting of an updated version of these Terms on the Background Burner Service. You are responsible for regularly reviewing these Terms. By using the Service, you agree that the posting of new or revised Terms on the Service will constitute adequate and constructive notice to you of any and all revisions and changes. Continued use of the Service after any such changes or after explicitly accepting the new terms upon logging into the Service shall constitute your consent to such changes and you agree to be bound by them as of the date of the modification.
10. GENERAL. This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in King County, Washington. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of Bonanza to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. Sections 1, 3, 4, 5, 6, 7, 8, 9 and 10 will survive termination or expiration of this Agreement for any reason. If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect. This Agreement may not be transferred or assigned by Customer to any third party, including by operation of law, without Bonanza’s prior written consent. This Agreement, together with any applicable Orders comprises the entire agreement between Customer and Bonanza and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.