- END USER AGREEMENT -
BY PRESSING THE “ACCEPT” BUTTON YOU HEREBY AGREE TO BE LEGALLY BOUND BY THE FOLLOWING CONDITIOONS PURSUANT TO THE TRANSFER OF YOUR EXISTING MEMBERSHIP/ACCOUNT IN DKG TO BIZPAYE
PERSONAL GUARANTEE & MEMBERSHIP AGREEMENT
In consideration of BIZpaye granting membership of the BIZpaye Trade Exchange to the Applicant, the Applicant(s) and the Guarantor(s) hereby acknowledge and agree that (“the Agreement”): (1) The BIZpaye Trade Exchange is operated in accordance with the BIZpaye Rules of the Trading Program (“the Rules” “RTP”); (2) The Applicant(s) and the undersigned Guarantor(s) agree to adhere to and be bound by the Rules/RTP; (3) A copy of the Rules/RTP can be viewed by the Applicant(s) and Guarantor(s) on the BIZpaye website at www.bizpaye.de (4) The Applicant has seven (7) days from the date of this Agreement to review the Rules and advise BIZpaye, in writing, if they wish to cancel their membership and this Agreement.
The undersigned Guarantor(s) agree to jointly and severally guarantee the payment of all monies payable to BIZpaye, its duly appointed Franchisees and Agents and associated companies by the Applicant in accordance with this Agreement and the Rules. The Guarantee shall be a continuing guarantee and shall remain in full force and effect until all liabilities of the Applicant (including but not limited to any approved credit line) and reviewed credit line and credit loans are fully paid and satisfied. The Applicant and the undersigned Guarantor(s) shall indemnify and keep indemnified BIZpaye including its duly appointed Franchisees and Agents against all debts, liabilities, claims, suits, demands, costs and expenses in any way arising from this Agreement or the Applicant(s) involvement in the BIZpaye Trade Exchange. The Applicant(s) and the Guarantor(s) consent to BIZpaye and its duly appointed Franchisees and Agents: (A) Obtaining a credit report containing personal credit information about the Applicant and/or Guarantor(s) either for the purpose of assessing the Application for Membership or for the purpose of collecting overdue payments from the Applicant and/or the Guarantor(s); (B) Disclosing to a credit reporting agency personal information about the Applicant’s dealings with BIZpaye; (C) Disclosing personal information about the Applicant and/or Guarantor to any credit provider named in a report obtained and to BIZpaye receiving information from any credit provider. Please read the BIZpaye Rules of the Trading Program contained on the BIZpaye website at www.bizpaye.de. “Global Trade Management Ltd. of Hong Kong is the licensee and owner of the software, the brand, system and website pertaining to the operation of the BIZpaye Trade Exchange and has issued a Licence agreement to BIZpaye and its duly appointed Franchisees and Agents to manage the operations of the exchange in all countries worldwide. Global Trade Management is the proprietary owner of all intellectual property of the BIZpaye international payment platform including but not limited to , members electronic and hard copy information, the database and everything contained therein”. Members are members of Global Trade Management Limited, Hongkong, HK #1997992.
- The member acknowledges that all sales are dependent on the status of your BIZpaye Account as governed by the BIZpaye Rules of the Trading Program.
- The member acknowledges that they have seven (7) days from the date of this application to carefully review the BIZpaye Rules of the Trading Program and Members - Information available at www.mybizpayetrade.com.
- The member agrees that transaction fee means a fee charged on every sale and every purchase On the Combined Total of the sale not just the BIZpaye amount)
- International transaction will incur 2.2% cash fee.
- All Fee’s are subject to local applicable taxes including VAT/GST excluding the DRF
- Other Fee’s may apply from time to time in accordance with the Rules of the Trading Program
- Normal credit application conditions apply
**The member will contribute towards the Debt Reserve Fund (DRF). The DRF is GST/VAT free
* Normal credit application conditions apply
SOTWARE & INTELLECTUAL PROPERTY AGREEMENT
This End User License Agreement (the "Agreement") is a legal agreement between you, individually if you are agreeing to it in your own capacity, or if you are authorized to acquire or access the Software (defined below) on behalf of your company or another entity, between the entity for whose benefit you act (in either case, "You"), and Global Trade Management Limited with a principal place of business at Unit 706, 7/F., South Seas Centre, Tower 2 75 Mody Road, Tsimshatsui Hong Kong (GTM) (together the "Parties" and individually a "Party").
BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON HEREWITH, OR BY INSTALLING, ACTIVATING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF, PRIOR TO INSTALLING, ACTIVATING OR USING THE SOFTWARE, YOU DECIDE YOU ARE UNWILLING TO AGREE TO THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THIS SOFTWARE AND YOU SHOULD PROMPTLY RETURN THE SOFTWARE USERNAME & PASSWORDS TO GTM, DELETE IT, OR DISABLE IT. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT THE TERMS OF THIS AGREEMENT, PLEASE CONTACT GTM AT [email protected]
Unless the context requires otherwise, the defined terms in this Agreement shall have the meanings set out below (and where the context so admits the singular shall include the plural and vice versa). "Registration Key" is the code that must be entered in the Software in order to use the Software.
"Authorized Users" means any of your employees or dependent contractors to whom you give permission to administer your use of the Software. This Agreement does not convey the right to have the Software hosted by a third party.
"Software" means any of the BARTERVANA proprietary software (comprised of BARTERVANA proprietary: software, interfaces, content and data, that may or may not technically be considered software code; and Third Party Components), or a portion thereof, provided to You under this Agreement, in whatever form, medium or manner provided or subsequently installed or used and including all updates and upgrades thereto for which other terms and conditions are not provided. The term "Software" does not include any Third Party Software, whether or not the Third Party Software is distributed by GTM or BARTERVANA, or the Third Party Software accompanies, is provided with, or operates in conjunction with, the Software.
"Third Party Products" means Third Party Hardware and Third Party Software and any other commercial products that are not GTM Products.
"Third Party Services" means services provided by a third party, including internet or mobile services and any website that is not operated by GTM or BARTERVANA.
"Third Party Software" means standalone software applications proprietary to a third party that are provided by GTM or BARTERVANA.
BARTERVANA means the legal and rightful owners of the software for which GTM leases from.
"User Account" means a single email address.
2. Software and Documentation License
The Software is licensed and not sold under this Agreement. Your license to use the Software is conditional upon your approval to operate an account within the BIZpaye Trading Platform. Subject to the terms and conditions herein, this Agreement grants You a personal, revocable, non-exclusive, non-transferable license that permits You and Your Authorized Users, collectively to use and access the Software.
This Agreement and the licenses granted herein, do not imply any rights or entitlement to: (a) future upgrades or updates of the Software or Third Party Software; or (b) acquire any new or modified Third Party Service. Notwithstanding the foregoing, the Software may include functionality to automatically check for updates or upgrades to the Software. Unless You, or a third party with whom You have an agreement to provide Software or portions thereof to You, configures the Software to preclude the transmission or use of upgrades or updates to the Software or Third Party Software, You hereby agree that GTM or BARTERVANA may (but is not obligated to) make such updates or upgrades available to You from time-to-time. If GTM or BARTERVANA, either directly or through a distributor, makes any updates or upgrades to the Software available to You, such updates or upgrades shall be subject to the terms and conditions of this Agreement unless the Software is expressly provided to You under other, or additional terms and conditions, in which case, if You accept the associated terms and conditions or use the update or upgrade, those other, or additional terms and conditions (which may include the payment of additional fees), shall apply.
You may not print, distribute or modify the Software, in whole or in part. Except to the extent that GTM is expressly precluded by law from prohibiting these activities, You may not copy, reproduce or in any other manner duplicate the Software, in whole or in part, except as authorized in this Agreement or in a separate written agreement between You and BARTERVANA. For the purposes of this provision "copy" or "reproduce" shall not include copying of statements and instructions of the Software that naturally occurs during normal program execution when used in accordance with and for the purposes described in the Documentation or in the course of making unmodified regular back-ups of the Software or of the computer or system on which the Software is installed, in accordance with industry standard business practices. You may not copy any Documentation or portion thereof unless specifically authorized in writing to do so by BARTERVANA.
3. Use of the Software
You are responsible for all activities with respect to Your use of the Software undertaken by You and Your Authorized Users and You will ensure that:
(a) You and Your Authorized Users only use the Software and any portion thereof, in accordance with this Agreement, all applicable laws and regulations, and the appropriate Documentation for the Software or portion thereof;
(b) You have the right and authority to enter into this Agreement, either on Your own behalf or on behalf of a company or other entity, or minor, and You are over the age of majority;
(c) Any information that is provided to GTM pursuant to this Agreement is true, accurate, current and complete;
(d) You and Your Authorized Users will not knowingly, after making such inquiries as a reasonable person in Your or Your Authorized User's position would undertake, use or permit others to use the Software or portion thereof in isolation or with any other software or data in a manner that in GTM's judgment, acting reasonably, interferes with, degrades or adversely affects any software, system, network or data used by any person including GTM or otherwise has a detrimental effect upon GTM or any of its affiliates, and You will immediately cease any such activity upon GTM delivering notice of same to You;
(e) Without limiting Section 3(d) above, no part of the Software will be used as a transport for the dissemination of bulk unsolicited commercial email (commonly referred to as "spam");
(f) You and Your Authorized Users will not use the Software, or any part thereof, to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including any breach of privacy or infringement, violation or misappropriation of any intellectual property rights and/or other proprietary rights of any third party (including, without limitation, copying and sharing content for which You and Your Authorized Users do not have the rights to copy and share, or unlawfully circumventing any digital rights management protections);
(g) You and Your Authorized Users will not sell, rent, lease, sub-license, or transfer, or attempt to sell, rent, lease, sub-license, or transfer, the Software or any part thereof (including operating a service bureau or equivalent service using the Software) to any other person, without the prior express written permission of GTM; and
(h) You and Your Authorized Users will cooperate with GTM and provide information requested by GTM to assist GTM in investigating or determining whether there has been a breach of this Agreement and provide GTM or an GTM appointed independent auditor with access to the premises and computers where the Software is or has been used and any associated records. You hereby authorize GTM to cooperate with: (i) law enforcement authorities in the investigation of suspected criminal violations; (ii) third parties in investigating acts in violation of this Agreement; and (iii) system administrators at Internet service providers, networks or computing facilities in order to enforce this Agreement. Such cooperation may include GTM disclosing Your or Your Authorized Users' username, IP address, or other personal information.
4. Third Party Items and Third Party Services
In connection with Your use of the Software, You may acquire or obtain access to, Third Party Items and Third Party Services. You are responsible for ensuring that the Third Party Items and Third Party Services (including, without limitation, computer systems, internet connectivity and cellular services) with which You choose to operate the Software meets GTM's minimum requirements, including, without limitation, the processing speed, memory and the availability of dedicated internet access required for the Software as set out in the Documentation, and that You and Your Authorized Users' use of such Third Party Items and/or Third Party Services with the Software is not in violation of any licenses, terms, conditions, laws, rules and/or regulations respecting the use of such Third Party Items and Third Party Services.
5. Additional Terms for Third Party Software and Third Party Components
Without limiting the foregoing, the Software may include Third Party Components, and Third Party Software may be provided in conjunction with Software when originally shipped by GTM or may subsequently be transmitted, distributed or otherwise made available to You from time-to-time. Your use of the Third Party Software and Third Party Components (including any updates or upgrades thereto) may be subject to separate or additional terms and conditions. These separate or additional terms and conditions, if any, will be made available in a text file accompanying the Software and/or, in the case of Third Party Software, may be made available when You use or install the Third Party Software for the first time. With respect to Third Party Software provided to You by GTM, GTM is only able to provide such software with Your understanding, acknowledgment and agreement that such software is: (a) provided as a convenience to You only; and (b) if it is not accompanied by a separate software license, it is subject to the terms and conditions of this Agreement as though it were Software, except that in all cases it is provided by GTM "AS IS" and "AS AVAILABLE" with no express or implied conditions, endorsements, guarantees, representations or warranties. If You wish to obtain Third Party Software on other terms, You should acquire this Third Party Software directly from its suppliers. In no event shall such separate license agreements or additional terms and conditions between You and the supplier be binding on GTM or impose any additional obligations, or obligations inconsistent with the terms of this Agreement, upon GTM whatsoever. To the extent that any particular Third Party Component is covered by additional terms and conditions that provide You with rights to use, copy, distribute, or modify all or part of such Third Party Component broader than the rights afforded You under this Agreement for the Software then, solely to the extent You can exercise such broader rights without breaching the terms of this Agreement for the remainder of the Software, You obtain the benefit of such broader rights.
6. Intellectual Property
Neither You nor Your Authorized Users acquire hereby any ownership right, title or interest in or to any intellectual property or other proprietary rights, including patents, designs, trademarks, copyright, database rights or rights in any confidential information or trade-secrets, in or relating to the Software or any part thereof. Neither You nor Your Authorized Users acquire any license rights in or related to the Software or any portion thereof, other than the rights expressly licensed to You under this Agreement or in another mutually agreed upon written agreement that You may have with GTM. Any rights not expressly granted herein are expressly reserved. For clarity, notwithstanding anything else in this Agreement, in no event shall the licenses granted in the Software herein extend, or be construed to extend, to the use of any Third Party Software either on a standalone basis or in conjunction with the Software, and, without limiting the foregoing, in no event shall the licenses granted hereunder be construed such that any supplier of such Third Party Software be able to successfully assert that use of such Third Party Software either in conjunction with all or a part of the Software or on a standalone basis are licensed under GTM's patents by virtue of the fact that the Software is licensed hereunder. The Software, including any copies You make of the Software, is only licensed, and not sold, to You, and the Software, all Documentation and any site(s) which allow You to access any services are protected by Canadian, U.S. and international copyright and patent laws and international treaty provisions. There are severe penalties, both civil and criminal, for intellectual property infringement. You agree that nothing in this Agreement shall adversely affect any rights and recourse to any remedies, including, without limitation, to injunctive relief, that GTM may have under any applicable laws relating to the protection of GTM's intellectual property or other proprietary rights.
You hereby agree to indemnify GTM, its affiliates and its suppliers from any claims, actions, liability or expenses (including reasonable lawyers' fees and costs) resulting from Your failure to act in accordance with the acknowledgements, agreements, and representations in this Section.
8. Confidentiality and No Reverse Engineering
You acknowledge and agree that the Software was: (a) developed at considerable time and expense by BARTERVANA and/or its affiliates and their respective suppliers; and (b) that the Software, including the Registration Key, contains confidential information including the trade-secrets of BARTERVANA and its suppliers. You agree that You will not alter, modify, adapt, create derivative works, translate, deface, or Reverse Engineer (defined below) the Software, including the Registration Key, or attempt to do so, or permit, acquiesce, authorize or encourage any other party to do the same. For the purpose of this Agreement, "Reverse Engineer" includes any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing (including any aspect of "dumping of RAM/ROM or persistent storage", "cable or wireless link sniffing", or "black box" reverse engineering) data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code), service, or hardware or any method or process of obtaining or converting any information, data or software from one form into a human-readable form.
This Agreement shall be effective upon Your agreeing to be bound by the terms of this Agreement (as described in the preamble above) and shall continue in effect unless terminated in accordance with the provisions set out herein.
10. Remedies and Termination for Default
(a) If You or Your Authorized Users breach this Agreement, GTM may, in addition to all other rights and remedies provided by this Agreement or by law, immediately terminate this Agreement. Where You have provided GTM with accurate contact information, GTM shall provide You with notice of termination.
(b) Without limiting the generality of the foregoing sentence, You will be deemed to be in breach of this Agreement and GTM will have the right to terminate this Agreement if:
(i) You fail to comply with or perform a term or condition herein;
(ii) You interfere with GTM's customer service or business operations or the services or operations of its suppliers; or
(iii) any monthly or other periodic fees or costs associated with Your use of the Software are not paid within thirty (30) days of their becoming due.
(c) In addition, GTM may terminate this Agreement without any liability whatsoever to You or Your Authorized Users if GTM is prevented from providing any portion or all of any Software, or any services made available through the Software, by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body.
(d) Nothing herein shall be construed to require GTM to seek a waiver of any such law, rule, regulation, or restriction, or seek judicial review or appeal of any court order. GTM shall not have any liability to You or Your Authorized Users arising from or related to the termination of this Agreement in accordance with this Section.
11. Effect of Termination
Upon termination of this Agreement, you will immediately discontinue all use of the Software. In the event of the termination of this Agreement by GTM pursuant to provisions of this Agreement, You shall pay to GTM all fees (including reasonable lawyers' fees and costs) and related expenses expended or incurred by GTM in the enforcement of its rights hereunder.
You shall defend, indemnify, and hold harmless GTM, GET’s, GTM's affiliates, suppliers, successors, agents, authorized distributors and assigns and each of their directors, officers, employees and independent contractors (each a "GTM Indemnified Party") from any claims, damages, losses, costs or expenses (including, without limitation, reasonable lawyers' fees and costs) incurred by a GTM Indemnified Party arising from: (a) infringement of patents or other intellectual property or proprietary rights arising from combining with or using any software, system or service in connection with the Software or any portion thereof; (b) damages arising from Your breach of any of the following Sections of Agreement: "Use of the Software" (Section 3), "Software and Documentation License" (Section 2), "Intellectual Property" (Section 6), "Export, Import and Use Restrictions and U.S. Government Licenses" (Section 7), "Confidentiality and No Reverse Engineering" (Section 8); (c) any injury, death or property damage arising from Your or Your Authorized Users' negligence or misconduct in connection with Your or Your Authorized Users' use of the Software or any portion thereof; or (d) claims made by third parties against GTM arising from or related to Your or Your Authorized Users' use of the Software or any portion thereof (other than such claims that arise solely from the use of the Software contemplated by and strictly in accordance with the terms of this Agreement and the Documentation which specifically pertains to such version of the Software). No remedy herein conferred upon GTM is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative.
13. Limited Warranties
(a) If the Software as made available by GET’s or any GTM authorized distributor is not capable of performing the functions, GTM will, at its sole option and discretion, either make reasonable efforts to correct or provide You with a workaround for such problem (which fix or workaround may be provided to You at GTM's reasonable discretion in one of a variety of forms, including in the course of telephonic or email customer support provided to You, in a generally available software fix release, on GTM's web site or in any other form of which GTM advises You).
(b) Notwithstanding anything to the contrary in this Agreement, updates, and upgrades provided to You free of charge are provided "AS IS" and without warranty of any kind.
Support for the Software and it’s use is available from either [email protected] or through your local office.
THE LAW OF SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OF LIABILITY OR THE EXCLUSION OF WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THESE EXCLUSIONS MAY NOT APPLY TO YOU.
(a) General Warranties.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, ENDORSEMENTS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
(b) Third Party Items and Third Party Services.
(i) EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, THE THIRD PARTY SERVICES AND THIRD PARTY ITEMS ARE NOT UNDER THE CONTROL OF GTM, GTM DOES NOT ENDORSE ANY PARTICULAR THIRD PARTY ITEMS OR THIRD PARTY SERVICES, AND GTM HAS NO RESPONSIBILITY WHATSOEVER FOR YOUR SELECTION, USE, ACCESS, OR IMPLEMENTATION OF THE THIRD PARTY SERVICES OR THIRD PARTY ITEMS.
(ii) THE FOREGOING APPLIES REGARDLESS OF: (A) HOW YOU ACQUIRE OR OBTAIN ACCESS TO THIRD PARTY ITEMS AND/OR THIRD PARTY SERVICES, I.E. WHETHER INDEPENDENT OF, OR THROUGH GTM; OR (B) WHETHER ANY SUCH THIRD PARTY ITEMS OR THIRD PARTY SERVICES ARE REQUIRED IN ORDER TO USE ALL OR ANY PORTION OF THE SOFTWARE.
(iii) WITHOUT LIMITING THE FOREGOING, EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, ALL THIRD PARTY SERVICES AND THIRD PARTY ITEMS ARE PROVIDED BY GTM ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY CONDITION, ENDORSEMENT, GUARANTEE, REPRESENTATION OR WARRANTY OF ANY KIND, AND GTM SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY THIRD PARTY CLAIMING BY OR THROUGH YOU, FOR ANY ISSUE RELATING TO THE THIRD PARTY SOFTWARE INCLUDING, WITHOUT LIMITATION: (A) THE ACCURACY, TRANSMISSION, TIMELINESS OR CONTINUED AVAILABILITY OF SUCH THIRD PARTY ITEMS, OR THIRD PARTY SERVICES, OR OF ANY PORTION OF THE SOFTWARE THAT IS DESIGNED SOLELY TO ENABLE SUCH ACCESS; (B) THE PERFORMANCE OR NON-PERFORMANCE OF THE THIRD PARTY ITEMS, OR THIRD PARTY SERVICES; OR (C) THE INTEROPERABILITY OF THE THIRD PARTY SOFTWARE WITH ALL OR A PORTION OF THE SOFTWARE.
(iv) WITHOUT LIMITING THE FOREGOING, EXCEPT TO THE EXTENT SPECIFICALLY PROHIBITED BY APPLICABLE LAW, YOU SPECIFICALLY AGREE THAT GTM IS NOT RESPONSIBLE OR LIABLE FOR, ANY VIRUSES, OR ANY THREATENING, DEFAMATORY, OBSCENE, TORTIOUS, OFFENSIVE OR ILLEGAL THIRD PARTY SERVICES, THIRD PARTY ITEMS OR FOR ANY THIRD PARTY ITEMS OR THIRD PARTY SERVICES OR THE TRANSMISSION THEREOF, THAT INFRINGE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. YOUR RECOURSE IN THE EVENT OF ANY SUCH CLAIM WITH RESPECT TO ANY THIRD PARTY ITEMS, OR THIRD PARTY SERVICES, SHALL BE SOLELY AGAINST THE RELEVANT THIRD PARTIES.
(c) Mission Critical Applications.
THE SOFTWARE AND ANY PART THEREOF, IS NOT SUITABLE FOR USE IN MISSION CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. WITHOUT LIMITING THE FOREGOING, YOU REPRESENT AND WARRANT THAT IN THE USE OF THE SOFTWARE, YOU WILL MAINTAIN ADEQUATE DATA RECOVERY AND BACK-UP SYSTEMS, AND IN THE EVENT OF: (i) USE OR SERVICE INTERRUPTION; OR (ii) DIFFICULTIES OR ERRORS IN DATA TRANSMISSION; YOU AGREE TO IMMEDIATELY MITIGATE ANY AND ALL LOSSES AND DAMAGES AND REPORT SUCH ISSUES TO GTM.
16. Limitation of Liability
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL, INDIRECT OR OTHER DAMAGES IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THE LIMITATIONS OR EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE SPECIFIC REMEDIES SET OUT IN THIS AGREEMENT, IN NO EVENT SHALL GTM BE LIABLE FOR ANY OF THE FOLLOWING TYPES OF DAMAGES: CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR AGGRAVATED DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, FAILURE TO REALIZE ANY EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY, OR CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH THE SOFTWARE, DOWNTIME COSTS, LOSS OF THE USE OF THE SOFTWARE OR ANY PORTION THEREOF, COST OF SUBSTITUTE GOODS, COSTS OF COVER, FACILITIES OR SERVICES, COST OF CAPITAL, OR OTHER SIMILAR PECUNIARY LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE INCLUDING THE USE OR INABILITY TO USE, PERFORMANCE OR NON-PERFORMANCE OFTHE SOFTWARE, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND EVEN IF GTM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) To the maximum extent permitted by applicable law, in no event shall the aggregate liability of GTM exceed the greater of: the amount paid by You to join the BIZpaye Trading Program and any claim will be settled in BIZpaye Trade Credits.
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY SHALL BE LIABLE TO THE OTHER ONLY AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER WHETHER IN CONTRACT, TORT, OR OTHERWISE.
(d) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS AGREEMENT SHALL: (i) APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR ACTION BY YOU INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, TORT, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY; (ii) SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN; (iii) NOT APPLY TO THE INDEMNITY OBLIGATIONS SET OUT HEREIN OR MISAPPROPRIATION OR INFRINGEMENT BY EITHER PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY OR A BREACH OF THE SECTIONS OF THIS AGREEMENT ENTITLED: "USE OF THE SOFTWARE" (SECTION 3), "SOFTWARE AND DOCUMENTATION LICENSE" (SECTION 2), "INTELLECTUAL PROPERTY" (SECTION 6), "EXPORT, IMPORT AND USE RESTRICTIONS AND U.S. GOVERNMENT LICENSES" (SECTION 7), AND "CONFIDENTIALITY AND NO REVERSE ENGINEERING" (SECTION 8); AND (iv) APPLY IN THE AGGREGATE, TO GTM OR ITS AFFILIATES, THEIR SUCCESSORS, ASSIGNS, AND AUTHORIZED GTM DISTRIBUTORS.
(e) IN NO EVENT SHALL ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, DISTRIBUTOR, SUPPLIER, SERVICE SUPPLIER, INDEPENDENT CONTRACTOR OF GTM HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT.
(f) YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES.
17. Consent to Collection of Information
You may provide feedback to GTM about the Software. Unless GTM otherwise agrees in writing, You hereby agree that GTM shall own all feedback, comments, suggestions, ideas, concepts and changes that You provide to GTM regarding the Software and all associated intellectual property rights (collectively the "Feedback") and You hereby assign to GTM all of Your right, title and interest thereto. You will not knowingly provide GTM any Feedback that is subject to third party intellectual property rights. You agree to cooperate fully with GTM with respect to signing further documents and doing such other acts as are reasonably requested by GTM to confirm that GTM owns the Feedback and to enable GTM to register and/or protect any associated intellectual property rights and/or confidential information.
19. Assignment and Delegation
GTM may assign this Agreement without notice to You. You shall not assign this Agreement in whole or in part without the prior written consent of GTM (such consent may be withheld or conditioned at GTM's discretion) and any assignment without GTM's prior written consent shall be null and void and of no effect. GTM may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its contractor or subcontractors or its subsidiaries or affiliates.
Except as otherwise provided in this Agreement, all notices or other communications hereunder shall be deemed to have been duly given when given to you electronically. Electronic notice to You shall be deemed to have been duly given when transmitted to an email address furnished by You to GTM.
21. Force Majeure
Notwithstanding any other provision of this Agreement, neither Party shall be deemed in default of this Agreement for failure to fulfil its obligations when due to causes beyond its reasonable control. This provision shall not be construed as excusing non-performance of any obligation by either Party to make payment to the other Party under this Agreement.
(a) Third Party Beneficiaries. GTM's affiliates and GTM's suppliers and their respective directors, officers and employees thereof are intended third party beneficiaries for the purpose of the Sections of this Agreement entitled, "Limitation of Liability" (Section 16) and "Disclaimer" (Section 15). Except as otherwise specifically stated in this Section, the provisions herein are for the benefit of the Parties and not for any other person or entity.
(b) Waivers of Default. No Party is to be deemed to have waived or forfeited any right under this Agreement, whether on the basis of failure, delay or any other legal or equitable doctrine, unless such waiver is made in writing signed by an authorized signatory of the Party against whom the waiver is sought to be enforced. Waiver of any provision, or any breach of any provision, of this Agreement in one instance shall not constitute a waiver as to any other instance.
(c) Survival. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof shall so survive the completion of performance, cancellation or termination of this Agreement.
(d) Governing Law and Dispute Resolution. This Agreement is to be governed by and construed under the laws of Scotland, excluding any body of law governing conflicts of law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement.
(e) Severability. To the extent any section, clause, provision or sentence or part thereof ("Part") of this Agreement is determined to be illegal, invalid or unenforceable by a competent authority in any jurisdiction, then such determination of that Part will not affect: (i) the legality, validity or enforceability of the remaining Parts of this Agreement; or (ii) the legality, validity or enforceability of that Part in any other jurisdiction, and that Part will be limited if possible and only thereafter severed, if necessary, to the extent required to render the Agreement valid and enforceable.
(f) Language. If this Agreement is translated into a language other than English, the English version will prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof. Unless, and only to the extent, prohibited by law in Your jurisdiction, any and all disagreements, disputes, mediation, arbitration or litigation relating to this Agreement shall be conducted in the English language, including, without limitation, any correspondence, discovery, submissions, filings, pleadings, oral pleadings, arguments, oral arguments and orders or judgments.
(g) Entire Agreement. This Agreement (which for the purposes of any Addenda hereto, shall in relation to the subject matter of that Addenda, include the terms of the Addenda), constitute(s) the entire agreement of the Parties with respect to the subject matter hereof and there are no provisions, understandings, communications, representations, warranties, undertakings, collateral agreements or agreements between the Parties relating to the Software other than as set out in this Agreement. This Agreement supersedes any prior or contemporaneous provisions, understandings, communications, representations, warranties, undertakings, collateral agreements and agreements between the Parties, whether oral or written, with respect to the subject matter hereof, and You acknowledge that You have not relied on any of the foregoing in agreeing to enter into this Agreement. This Agreement may be amended at any time upon mutual agreement by the Parties. Except to the extent that GTM is expressly precluded by applicable law, GTM further reserves the right to make changes to this Agreement on a prospective basis, either to reflect changes in or required by law (including without limitation changes to ensure the enforceability of this Agreement) or changes in business practices, by providing You with reasonable notice of the change either electronically (as contemplated by the Notice provision above) or by posting notice of the change to any and all GTM or BIZpaye websites. If You continue to use the Software after notice of the change has been given, then You shall be deemed to have accepted this change.
(h) Compliance With Laws. You will, at Your expense, obtain and maintain all licenses, registrations and approvals required by the government authorities or applicable law in Your jurisdiction for the execution and performance of this Agreement or any related license agreements. In particular and for the avoidance of doubt, You will comply with all applicable laws and regulations and will obtain any necessary license, registration and approval from competent government authorities for the importation and use of any Software that contains commercial encryption or other security function required by applicable law. You will provide GTM with the assurances and official documents that GTM periodically may request to verify Your compliance with this obligation.