bWERX Online Terms of Services Agreement for eTransmittal®

Welcome to bWERX, Inc. “Licensor” and developer of eTransmittal®. Licensor (also referred to as “we” or “our” or eTransmittal”) provides services (the “Services”) available at our Web site (the “Site”) http://www.etransmittal.com to you (“you” or “User” or “Licensee”). By registering for authorization to use the eTransmittal.com or bWERX.com web sites, or by executing a paper version of this document, you are agreeing to be bound by the following terms and conditions (referred to as “Contract” or “Terms of Service”).

Licensor owns all right, title, and interest in or a license to utilize those certain computer code, algorithms, programs and routines written in HTML, XML, .NET, C#, C++, COM, VB, and ASP (among other programs and languages), SQL, Access, Oracle, SAP (or other database programs) to produce a database management system for engineering drawings and other records and to provide Users with the capability to transfer data (collectively referred to as “Software,” excluding the database program(s) and code produced by other companies).

Licensor desires to license the Software to Licensee on a non-exclusive, world-wide basis, and Licensee desires to acquire this license to the Software and to utilize the Software in the operation of its business operations, in accordance with these Terms of Service

The following terms and conditions, along with any other policies or guidelines posted on this Site (collectively the Terms of Service), shall govern your use of this Site and Services, whether directly or through a third-party site. By using this Site, the Services, and any service, application, plug-in, component, functionality, or program created by bWERX or eTransmittal, you are agreeing to the following terms and conditions. Please read them carefully before using this Site’s services and associated components. Should you have any questions concerning the Terms of Service, please contact sales@etransmittal.com.

By completing the registration process for the Services, and by using the Services, you represent and warrant that you have read, understand, have the legal capacity to, and hereby agree to be legally bound by the Terms of Service.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee, intending to be legally bound, hereby agree as follows:

1. Definitions

A. MODIFICATIONS TO THIS AGREEMENT


WE RESERVE THE RIGHT, AT OUR SOLE DISCRETION, TO CHANGE, MODIFY OR OTHERWISE ALTER THESE TERMS OF SERVICE AT ANY TIME. YOU CAN FIND THE MOST RECENT VERSION OF THESE TERMS OF SERVICE ON THE SITE, WITH THE DATE OF LAST MODIFICATION NOTED ABOVE. SUCH MODIFICATIONS SHALL BECOME EFFECTIVE IMMEDIATELY UPON THE POSTING THEREOF. THEREFORE, WE ENCOURAGE YOU TO CHECK THE DATE OF OUR TERMS OF SERVICE WHENEVER YOU VISIT THIS SITE TO CHECK IF THEY HAVE BEEN UPDATED. YOU MUST REVIEW THE TERMS OF SERVICE ON A REGULAR BASIS TO KEEP YOURSELF APPRISED OF ANY CHANGES. IF YOU DO NOT AGREE TO THE REVISED TERMS OF SERVICE, YOUR SOLE RECOURSE IS TO IMMEDIATELY STOP ALL USE OF THE SERVICES. YOUR CONTINUED USE OF THE SERVICES FOLLOWING THE POSTING OF MODIFICATIONS WILL CONSTITUTE YOUR ACCEPTANCE OF THE REVISED TERMS OF SERVICE. Should you have any questions regarding the use of our Site, please contact us by visiting http://www.etransmittal.com/contactus.aspx or send an email to sales@etransmittal.com.

B. YOUR REGISTRATION OBLIGATIONS


To obtain and use the Services, you will be required to register with eTransmittal by completing a registration form, acknowledging your agreement to these Terms of Service and designating a user ID and password. When registering with eTransmittal you agree to: (a) provide true, accurate, current and complete information about yourself and your business as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).

You may not authorize any third party to access or use the Services on your behalf. You are responsible for maintaining the confidentiality of the user ID and password, and are fully responsible for all activities that occur under your user ID or password. You agree to immediately notify eTransmittal of any unauthorized use of your user ID or password or any other breach of security. eTransmittal cannot and will not be liable for any loss or damage arising from any unauthorized use of your account.

C. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION


By registering with eTransmittal, you understand that we may send you communications or data from eTransmittal regarding the Services, including but not limited to (i) notices about your use of the Services, including any notices concerning violations of use, (ii) updates, and (iii) promotional information and materials regarding eTransmittal.com’s products and services, via electronic mail. We receive and store any information you enter on our Web site or give us in any other way. You can choose not to provide certain information, but then you might not be able to take advantage of certain of the Site’s or Software’s features. We internally use the information that you provide for such purposes as responding to your requests, improving our Services, and communicating with you. We receive and store certain types of information whenever you interact with us. For example, like many Web sites, we use "cookies," and we obtain certain types of information when your Web browser accesses the Site. We might receive information about you from other sources and add it to our account information.

D. USER CONDUCT/ACCEPTABLE USE POLICY


Unauthorized use of the eTransmittal service, or the resale of said service without our prior written consent, is expressly prohibited. You shall not copy, sell, transfer, distribute, publish, or assign your license to our services in any format to any third party. In addition, you may not use the Services in any way that violates applicable federal, state, or international law, or for any unlawful purpose. Further, you may not use the Services to send, receive, or download messages or materials that are inappropriate or violate the intellectual property rights of eTransmittal or others.

To the extent that the Services provide Users with an opportunity to store and exchange information, materials, data, files, programs, ideas and opinions (“User Content”), you hereby represent and warrant that you have all necessary rights in and to all User Content you provide and all information contained therein. By registering to use the Services, you understand and acknowledge that eTransmittal and its contractors retain an irrevocable, royalty-free, worldwide license to use, copy, and publicly display such content for the sole purpose of providing to you the Services for which you have registered. In the event that you give eTransmittal the right to distribute your content, additional terms may apply to eTransmittal’s usage or distribution of this content. You continue to retain all ownership rights in any User Content you provide and shall remain solely responsible for your conduct, your User Content, and any material or information transmitted to other Users for interaction with other Users. eTransmittal does not claim any ownership rights in any User Content.

Content transmitted by Users and other non-eTransmittal contributors are generally not reviewed by eTransmittal.com. ETRANSMITTAL SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO REJECT, REFUSE TO POST, OR OTHERWISE MONITOR ANY OR ALL CONTENT DISPLAYED BY USERS, AND WE MAY REMOVE ANY CONTENT AT ANY TIME FOR ANY REASON IN OUR SOLE AND ABSOLUTE DISCRETION WITHOUT NOTICE. Without limiting the forgoing, we may remove or require Users to remove all content that eTransmittal, in its sole discretion, deems to be (a) inconsistent with eTransmittal’s strategic mission and vision (including but not limited to content that contains undesirable images of or links or references to tobacco and alcohol products, profanity, pornography, violence or prejudicial content) and/or these Terms of Use; or (b) possibly in violation of applicable law. In addition, eTransmittal has the right to remove any content if eTransmittal has reason to believe that displaying such content may infringe the rights of a third party or subject eTransmittal to expense or liability. Please notify us by contacting us through our support website or by sending an email to sales@etransmittal.com regarding any content that you believe might violate applicable law or your intellectual property rights or contain undesirable images of or links or references to tobacco and alcohol products, profanity, pornography, violence, prejudicial content, or content that is obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.

eTransmittal reserves the right, in its sole discretion, to determine whether and what action to take in response to each such notification, and any action or inaction in a particular instance shall not dictate or limit eTransmittal response to a future complaint. You acknowledge and agree that eTransmittal shall not assume or have any liability for any action or inaction by eTransmittal with respect to any User Content.

Additionally, eTransmittal reserves the right, without limitation, to terminate your access to and use of the Site and Services if, in our view, your conduct fails to meet any of the following guidelines for User conduct:

  1. You may not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the eTransmittal Site, computer systems and network, or the Services.
  2. You may not attempt to interfere with any other person’s use of the Services.
  3. You may not misrepresent your identity or impersonate any person.
  4. You may not attempt to gain access to any account, computers or networks related to the Services without authorization.
  5. You may not attempt to obtain any data through any means from the Services, except if we intend to provide or make it available to you.
  6. You may not attempt to charge others to use the Services either directly or indirectly.
  7. You may not use the Services to send, either directly or indirectly, any unsolicited bulk e-mail or communications or unsolicited commercial e-mail or communications.
  8. You may not use the Services to send or otherwise make available, any material protected by intellectual property laws unless you own or control the rights to such material or have received all necessary consents.
  9. You may not use the Services to send or otherwise making available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another’s computer or property.
  10. You may not use the Services to download any material sent by another User of the Services that you know, or reasonably should know, cannot be legally distributed in such manner.
  11. You may not use the Services to violate any code of conduct or other guidelines which may be applicable to the Services or the Site.
  12. You may not use the Services to harvest or otherwise collect information about others, including e-mail addresses.
  13. You may not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by eTransmittal in connection with the eTransmittal Site or Services.
  14. You may not use the Services in a manner that results in excessive bandwidth usage, as determined by a representative of eTransmittal.com.

All judgments concerning the applicability of these guidelines shall be at the sole and exclusive discretion of eTransmittal. eTransmittal reserves the right, in its sole discretion, to determine whether and what action to take in response to each such notification or violation of the guidelines, and any action or inaction in a particular instance shall not dictate or limit eTransmittal’s response to a future complaint. You acknowledge and agree that eTransmittal shall not assume or have any liability for any action or inaction by eTransmittal with respect to any User Content. Users shall remain solely responsible for User Content, and any material or information transmitted to other Users for interaction with other Users.

E. INTELLECTUAL PROPERTY RIGHTS AND NOTICES


Except for the licenses granted herein, you have no right, title or interest in or to eTransmittal Software or Services or any content. You agree that eTransmittal or its licensors retain all proprietary right, title and interest, including copyright and all other intellectual property rights, in and to eTransmittal Software, Services and content, including, without limitation, text, images, and other multimedia data.

All contents of the eTransmittal’s Site and Services including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement (“Content”) are: Copyright © 2009 bWERX, Inc., and/or the proprietary property of its suppliers, affiliates, or licensors. Content may not be reproduced, modified, derivative works created from, displayed, performed, published, distributed, disseminated, broadcasted or circulated to any third party (including, without limitation, the display and distribution of the material via a third party Web sites or other networked computer environment) without the express prior written consent of eTransmittal and/or it suppliers, affiliates, or licensors. All rights reserved.

eTransmittal and the eTransmittal logo are without limitation the registered or unregistered trademarks and service marks of bWERX, Inc., and may not be copied, imitated, or used, in whole or in part, without bWERX, Inc.’s prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners.

eTransmittal may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter in its Site that are part of the Services. Unless we have granted you licenses to our intellectual property in these Terms of Service, our providing you with such Web pages does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.

The Software includes “open source” software named “jQuery,” and the license agreement for the use of this open source software requires the following disclosure within the Software with respect to this open source software:

© 2009 John Resig, http://jquery.com/

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the ‘Software’), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED ‘AS IS’, WITHOUT WARRANTY OF ANY KIND,EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

F. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT


eTransmittal respects copyright law and expects Users to do the same. eTransmittal expressly prohibits the use of its Services for the illegal transmission of copyrighted material, and will respond if notified by content owners to disable copyrighted material from being transmitted via its Services. In addition, eTransmittal may disable individual accounts if these accounts are found to be illegally transferring copyrighted material.

If a content owner believes that your work has been copied in a way that constitutes copyright infringement, that content owner may provide the eTransmittal Agent for Notice of claims of copyright or other intellectual property infringement (“Agent”) the written information specified below: (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 the content owner claims has been infringed upon; (3) A description of where the material that is the subject of the claimed infringement is located on the Site; (4) the content owner’s address, telephone number, and e-mail address; (5) A statement by the content owner that it have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (6) A sworn statement by the content owner that the above information in the notice is accurate and that the person submitting the notice is the copyright owner or is authorized to act on the copyright owner’s behalf. eTransmittal Agents can be reached by submitting a ticket on our support page or by sending an email to sales@etransmittal.com or by contacting us at 6050 Greenwood Plaza Blvd. Suite 125, Greenwood Village, CO 80111. Upon our receipt of such a notification, we reserve the right to immediate remove any allegedly infringing content until the User and the alleged content owner resolve their dispute.

G. THIRD PARTY CONTENT, SITES AND SERVICES


All transactions using eTransmittal’s services are between the transacting parties only. The Services may contain features and functionalities linking you or providing you with certain functionality and access to third party content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. We may also provide some content to you as part of the Services. However, eTransmittal is neither an agent of any transacting party, nor a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Similarly, we are not responsible for any third party content you access with the Services, and you irrevocably waive any claim against us with respect to such sites and third-party content. eTransmittal shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You accept all risk associated with your dealings with third parties related to the Services, and you are solely responsible for your dealings with any third party related to the Services, including the delivery of and payment for goods and services. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses because of problems with any of your other service providers or any third-party services, you agree that we have no responsibility or liability for those problems or their consequences.

H. PRIVACY


eTransmittal has established a Privacy Policy to explain to Users how their information is collected and used, which you can read on our Site. Your use of the Services signifies acknowledgment of your agreement to the eTransmittal Privacy Policy. You further acknowledge and agree that eTransmittal may disclose your personal information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to comply with legal process, to enforce these Terms of Service, or, in its sole discretion, to protect the rights, property, or personal safety of eTransmittal, its employees, users and third parties, and the public, or as otherwise described in the Privacy Policy.

PROTECTION OF CONFIDENTIAL INFORMATION


Obligation to Protect Confidential Information. The parties agree that unless required by law, they shall not make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party agrees to take reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. The agreement for confidentiality contained in this Section shall survive termination of this Agreement.

Definition of Confidential Information. Without limitation, Licensor’s “Confidential Information” shall include the Software source code and the Software Trade Secrets contained in the Software. Licensee acknowledges and agrees that the Software, Software Trade Secrets, and portions of the User Documentation constitute and contain valuable proprietary information, products and trade secrets of Licensor, embodying substantial creative efforts, information, ideas, and expressions. Licensee agrees to not reverse decompile or reverse engineer the Software. While Licensor will endeavor to store User data in secure data systems, User acknowledges and agrees that “Confidential Information” shall NOT include Licensee’s information which is stored on the eTransmittal data servers or transmitted via eTransmittal unless we have agreed in advance and in writing to recognize a specified data file or transmission as Confidential Information which is governed by this section. “Confidential Information” shall include Licensee’s proprietary information which is disclosed to Licensor during the performance of support and warranty services provided that the proprietary information is specifically identified as such in writing prior to the commencement of the support and warranty services. “Confidential Information” shall also include such proprietary and confidential information in Licensee’s other software products, to which Licensor’s personnel may have access in the performance of support services described herein.

Exclusions from Definition of Confidential Information. A party’s “Confidential Information” shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; (d) is independently developed by the other party; or (e) is required to be disclosed by any judicial or governmental requirement or order (provided that the recipient timely advises the disclosing party of the governmental demand for disclosure).

Right to Injunctive Relief. Both parties acknowledge that the unauthorized use, transfer or disclosure of the Confidential Information of the other party will (a) substantially diminish the value to the aggrieved party of the Confidential Information and other proprietary interests that are the subject of this Agreement; (b) render the aggrieved party’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (c) cause irreparable injury in a short period of time. If either party breaches any of its obligations with respect to the use of either party’s Confidential Information, the aggrieved party shall upon the posting of a bond in an amount not to exceed $1,000 be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and/or permanent injunctive relief.

I. ETRANSMITTAL WARRANTIES


LICENSOR WARRANTS ONLY THAT IT WILL USE REASONABLE CARE TO STORE AND TRANSMIT USER’S DATA IN ACCORDANCE WITH THESE TERMS OF SERVICE. THIS IS AN EXCLUSIVE AND LIMITED WARRANTY. LICENSOR MAKES AND USER RECEIVES NO OTHER WARRANTY. LICENSOR SHALL HAVE NO DUTY EXCEPT AS DESCRIBED IN THE FORGOING WARRANTY. IN THE EVENT OF A BRECH OF THE WARRANTY, LICENSOR’S SOLE OBLIGATIONS ARE TO RETRANSMIT THE DATA (IF TECHNICALLY FEASIBLE), RETURN THE DATA TO USER (UNLESS SUCH RETURN IS IMPRACTICAL OR IMPOSSIBLE FOR ANY CAUSE BEYOND LICENSOR’S REASONABLE CONTROL), AND TO PERMIT USER TO IMMEDIATELY DISCONTINUE ITS SERVICES AND TO REFUND FEES PAID BY USER IN ACCORDANCE WITH THE LIMITATION OF LIABILITY SECTION BELOW.

eTransmittal warrants the information stored on its Site and the transmission Services to be performed will be reasonably secure, accurate and reliable. However, User acknowledges the inherent risk associated with the storage and transmission of data, and acknowledges that breaches of security and errors of transmission sometimes may occur. Accordingly, User agrees that Licensor is in no way liable for loss of User data, whether in storage or during transmission. Under no circumstances, will Licensor be held liable for any loss of User data. By becoming a eTransmittal User you acknowledge that you neither acquire nor have no right to hold Licensor liable for any and all technical errors, including loss of User files (customer data). USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ETRANSMITTAL IS NOT TO BE USED AS AN OFF-PREMISES BACK UP FOR USER’S DATA, AND USER EXPRESSLY WARRANTS THAT IT WILL ITSELF BACK UP ALL DATA WHICH IS STORED ON ETRANSMITTAL’S SERVERS AND WILL NEVER STORE OR TRANSMIT DATA WHICH USER HAS NOT BACKED UP.

eTransmittal does not guarantee length of service and may discontinue Services upon 30 days notice to User. In the event that eTransmittal concludes offering data storage services, eTransmittal users will be provided with 30 days to retrieve all data belonging to User via electronic download of that data, but eTransmittal shall have no obligation to return data or store data beyond this 30 day period.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, ETRANSMITTAL PROVIDES ITS SITE AND SERVICES WITHOUT WARRANTY, “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND THE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ETRANSMITTAL, ITS AFFILIATES, RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND/OR SUPPLIERS (EACH, A “ETRANSMITTAL PARTY,” AND COLLECTIVELY, THE “ETRANSMITTAL PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. THE ETRANSMITTAL PARTIES DISCLAIM ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2) WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, (3) WARRANTIES OR REPRESENTATIONS THAT ACCESS TO OR USE OF THE WEB SITES WILL BE FULLY SECURE AND UNINTERRUPTED OR ERROR-FREE; AND (4) SERVICE DESCRIPTIONS CONTAINED IN ANY PROMOTIONAL INFORMATION OR MATERIALS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS CONTRACT.

J. LIMITATIONS OF LIABILITY


IN NO EVENT WILL ANY ETRANSMITTAL PARTY BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS CONTRACT OR YOUR USE OF THE SOFTWARE OR SERVICE, EVEN IF SUCH ETRANSMITTAL PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER THIS SECTION IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM A CLAIM OF (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION (EXCLUDING ONLY GROSS NEGLIGENCE AND WILLFUL MISCONDUCT), TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH THE SERVICE, YOU DO NOT AGREE WITH ANY PART OF THIS CONTRACT, OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST ANY ETRANSMITTAL PARTY WITH RESPECT TO THIS CONTRACT OR THE SERVICE, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE AND TO RECEIVE A REFUND OF AMOUNTS ACTUALLY PAID BY YOU TO LICENSOR DURING THE 12 MONTHS PRECEEDING YOUR DISCONTINUANCE OF SERVICE. In the event that, notwithstanding the foregoing, eTransmittal is found responsible to any eTransmittal User for any reason whatsoever, Licensor’s responsibility shall be limited to payment to you of the amounts actually paid by you for eTransmittal’s services during the 12 months prior to your discontinuance of Service, and shall not include punitive damages or indirect, incidental, consequential or resulting damages of any nature. In the event of the tender by Licensor of a refund of the fees paid by Licensee in the 12 months prior to discontinuance of Services, such refund shall be full and final settlement of all present and future claims and causes of action (excluding only gross negligence and willful misconduct), whether known or unknown, and the eTransmittal Parties and their suppliers, agents and employees shall be thereupon generally and fully released.

K. CHANGES TO THE SERVICE; ADDITIONAL LIABILITY LIMITATION


WE MAY CHANGE THE SOFTWARE AND SERVICE OR DELETE FEATURES AT ANY TIME AND FOR ANY REASON. WITHOUT LIMITING THE GENERAL NATURE OF SECTIONS I AND J, THE ETRANSMITTAL PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY CONDUCT, TRANSMISSIONS OR DATA. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF SECTIONS H AND I, ETRANSMITTAL IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE SOFTWARE AND SERVICES, (2) ANY INCOMPATIBILITY BETWEEN THE SOFTWARE AND SERVICES AND OTHER WEB SITES, SERVICES, SOFTWARE AND HARDWARE, (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE SOFTWARE AND SERVICES IN AN ACCURATE OR TIMELY MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF ANY SOFTWARE AND SERVICES AVAILABLE FROM THIRD PARTIES THROUGH LINKS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

L. ONLINE SUPPORT


To access online support, log into eTransmittal’s Customer Support portal located on our website, http://www.etransmittal.com. Users can submit and monitor help tickets and review the history of submitted service requests.

M. INDEMNIFICATION


You agree to indemnify, defend and hold harmless, eTransmittal, its affiliates, and their respective officers, directors, employees, agents, licensors, representatives, and third party providers, to and from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of these Terms of Service by you. eTransmittal reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with eTransmittal in asserting any available defenses.

N. TERMINATION OF SERVICE


eTransmittal reserves the right to terminate without notice your password, account or use of eTransmittal Services and delete any data within eTransmittal service, at any time in our sole and absolute discretion, without cause and without prior notice.

The following Refund Policy applies to all paid eTransmittal subscriptions services. All paid members are bound by the Terms of Services for all eTransmittal.com sites. Subscription Fees will not be refunded if the Membership has been canceled due to a violation by User of the Terms of Services including but not limited to User’s nonpayment.

Monthly Subscriptions.
Monthly Subscriptions are non-refundable. You may cancel your monthly renewing membership at any time during the month. If you choose this option, your subscription will expire 30 days from the last payment. Any amounts paid prior to your cancellation will not be refunded.

Annual Subscriptions
Annual Subscriptions may be canceled within thirty (30) days of initial registration, or within thirty (30) days of the renewal date. Amounts paid for the “current year” by customer to bWERX, Inc. for Annual Subscription will be refunded to customer in full upon a timely cancellation. bWERX, Inc. will terminate the membership at time of refund. Annual Subscriptions may not be cancelled more than thirty (30) days after initial registration, or more than thirty (30) days after the renewal date for the Annual Subscription. bWERX, Inc. will not provide refunds under these circumstances.

Modification
bWERX Inc. reserves the right to revise the terms of this Refund Policy. Any changes made will apply to all memberships created or renewed after the date such change was implemented.

IF A USER ACCOUNT IS TERMINATED FOR ANY REASON, ANY DATA YOU HAVE STORED ON ETRANSMITTAL’S SYSTEMS MAY NOT BE RETRIEVED, and eTransmittal shall have no obligation to maintain any data stored in your account or to forward any data to you or any third party. USER MUST AT ALL TIMES BACK UP USER’S OWN DATA.

O. PAYMENT OF FEES; AUTOMATIC RENEWAL TERMS


  1. A valid credit card is required for paying accounts. Guest accounts are not required to provide a credit card number.
  2. An upgrade from a trial plan to any paying plan will end your free trial. You will be billed for your first month immediately upon upgrading.
  3. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based on Licensor’s income.
  4. For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle.

The fees applicable for eTransmittal Services are available at http://www.etransmittal.com and as published within the Services. eTransmittal reserves the right to change the Fees or applicable charges and to institute new charges at any time, upon thirty (30) days prior notice to you (which may be sent by email to the address you have most recently provided us).

Unless specifically agreed upon in writing between User and eTransmittal at the commencement of a subscription term, or unless User notifies eTransmittal via a phone call to (303) 309-2490 (with cancellation confirmation from a eTransmittal representative) no later than fourteen days prior to the conclusion of the term, at the conclusion of any service term, whether monthly, yearly, or otherwise, eTransmittal will automatically renew the service for the same term and will charge the User's credit card or PayPal account on the first day of the renewal term at the current rates of eTransmittal services. Unless otherwise agreed by eTransmittal in writing, rates are not guaranteed beyond the current term.

Users retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. If not complied with, at the end of 90 days, User's account will be deactivated and all files will no longer be retrievable.

P. REFUND OF CHARGES, DOWNGRADES


Except as specifically set forth in this section, all eTransmittal services are prepaid for the period selected (monthly, yearly or otherwise) and are non-refundable. This includes accounts that are renewed in accordance with the previous section.

Users on our free trial may cancel or downgrade their accounts, free of charge, at any during the trial period. (The day of creation constitutes the first day of the trial.)

When s a User cancels tits account, it will not be issued refunds for their most recent (or any previous) billing. The single exception to this is NON-TRIAL annual subscribers. Annual subscribers who wish to cancel and request a refund may do so within 30 days of the day on which they were charged for their account; in these cases, only a partial refund equivalent to 80% of the annual fee will be returned. Other requests for refunds may be accepted or denied at the sole discretion of an eTransmittal sales staff member.

All cancellations and downgrades are processed automatically. To cancel or downgrade, please submit a service request, email us at sales@etransmittal.com or call us on (303) 309-2490. If you have a question while canceling your account, you must give our email staff adequate time to respond to your message. Delays in our support system do not qualify as a reason to extend your trial period.

Q. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES


These Terms of Service shall be governed by and construed in accordance with the laws of the State of Colorado, United States of America, excluding its conflicts-of-law principles. Please note that your use of the Services may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with eTransmittal or relating in any way to your use of the Services resides in the courts of Colorado and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of Colorado in connection with any such dispute including any claim involving eTransmittal or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers.

R. OUTSIDE OF THE USA USERS


By using the eTransmittal Services, Users outside of the United States understand and consent to the processing of personal information in the United States.

S. NOTICES TO ETRANSMITTAL.COM


You may notify us by e-mail at sales@etransmittal.com.

You may notify us by mail at 6050 Greenwood Plaza Blvd. Suite 125, Greenwood Village, CO 80111.

T. OTHER TERMS


If any part of these Terms of Service are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of the Terms of Service shall continue in effect. A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All rights not expressly granted herein are reserved.

U. MISCELLANEOUS


Licensor may assign this Contract, in whole or in part, at any time with or without notice to you. You may not assign this Contract, or any part of it, to any other party. Any attempt by you to do so is void. ANY CLAIM RELATED TO THIS CONTRACT OR THE SOFTWARE AND SERVICE MUST BE BROUGHT WITHIN ONE YEAR. THE ONE-YEAR PERIOD BEGINS ON THE DATE WHEN THE FACTUAL BASIS FOR THE CLAIM IS KNOW TO YOU OR IN THE EXERCISE OF REASONABLE DILIGENCE SHOULD BE KNOWN TO YOU. IF IT IS NOT, THEN THAT CLAIM IS PERMANENTLY BARRED. THIS APPLIES TO YOU AND YOUR SUCCESSORS. IT ALSO APPLIES TO US AND OUR SUCCESSORS AND ASSIGNS. THIS APPLIES TO ANY CLAIM OR CAUSE OF ACTION WHETHER IN CONTRACT OR IN TORT. The failure of eTransmittal to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. If this Contract is executed in writing it may be executed in counterparts and facsimile signatures of any party shall be deemed to be equivalent to an original signature. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind. Neither party will be in default if its performance is delayed or becomes impossible or impractical by reason of any cause beyond such party’s reasonable control (not including non-payment).

Entirety and Amendment. This Agreement and any written proposal supplied by Licensor to Licensee with respect to the Software or Services which specifically identifies Licensee constitute the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, any representations or communications including all product descriptions and other information contained in promotional materials. The terms of this Agreement may not be amended except by a writing executed by both parties.

Waiver of Jury Trial. IN THE EVENT OF ANY JUDICIAL PROCEEDINGS, THE PARTIES KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.

If you have any questions about these Terms of Service, please contact eTransmittal at sales@etransmittal.com.