Terms of Service

The Service

The ‘Service’ includes:
The site
The Bixmile app related to your account
Your account specific Bixmile data, the cloud managed database of data.
Any new features added to or augmenting the Service are also subject to these Terms of Service.

Acceptance of terms

Bixmile provides its service to you through its website, www.bixmile.com, and individual Bixmile accounts created for you, the customer, as outlined above. By accepting these terms or accessing Bixmile provided URLs, you acknowledge that you have read, understood and agreed to be bound by the following terms, and that representations made by you on www.bixmile.com are accurate, complete and within your rights to make. If you are entering into these terms on behalf of an employer or third party, you represent that you have authority to bind that entity to these terms. If you do not have such authority or do not agree to the terms and conditions, you cannot use the Bixmile service. You acknowledge that these terms constitute an agreement between Bixmile and you and that your electronic signup acts in place of a physical signed agreement.

Terms of Use

Bixmile reserves the right to terminate or modify the service at any time, without prior notification. The Service is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory. Bixmile makes no claims that the service will be uninterrupted or error-free and customers use the application at their own risk. However, if the application will be unavailable due to planned maintenance we will notify all users at least 5 days in advance. You agree, as a customer, not to license, resell, lease, transfer or distribute the service to any third party vendors. You agree, as a customer, not to use Bixmile for unlawful purposes, such as infringing privacy, data ownership or intellectual property rights. You agree to act within anti-spam policy guidelines for your country and shall not use Bixmile to transmit unsolicited mail. As a customer of Bixmile you acknowledge that Bixmile is the proprietor of the software and you do not have the right to adapt, hack, or reverse engineer the source code of the software. You are responsible for the data stored in your Bixmile account, and for all data, be it spreadsheets, sent from your Bixmile account. Bixmile does not take responsibility for any racist, libel or defamatory data created with or sent from the Bixmile application, and you indemnify Bixmile from any damages relating to such an occurrence. You agree to keep your login information confidential, and to restrict each login to one person. A single user account cannot be shared by multiple people. Bixmile reserves the right to cancel the account of a customer immediately, and without warning, if the customer infringes the above terms. If, at Bixmile’s sole discretion, we determine the customer has abused their access rights to the Bixmile application, termination without warning will take effect immediately.

Data privacy & security

In providing you the service we shall maintain all administrative and technical safeguards to protect the security, confidentiality and integrity of your data. Bixmile will only ever access your account upon your request for technical assistance. You will be asked to provide explicit consent each time an employee of Bixmile needs to access your account. No employee of Bixmile will access your account without prior permission, unless required to do so by law.

Intellectual property rights

Bixmile shall maintain all rights, title and interest in our respective patents, inventions, copyrights, trademarks, domain names, and any other intellectual or property and/or proprietary rights. The rights granted to you to use the Service do not convey, by extension, any title to patents, inventions, copyrights, trademarks, domain names or any other intellectual property owned by Bixmile. Any feedback, enhancement suggestions or recommendations received from you can be incorporated into the Bixmile service: worldwide; royalty-free; in perpetuity; and to any other Bixmile product(s) by transfer. You cannot claim any rights to these incorporations, either now or in the future.

Third party services

To deliver our service to you, Bixmile may utilize third party services. Your acceptance of these services confirms your compliance with the terms and conditions of these third party services. Bixmile is not responsible for, nor does it endorse, the governance of your rights by third party companies. Bixmile is not liable for any damage or loss attributed to, or connected to, your access of a third party’s services.

Billings and Payments

The initial Free account gives full access to functionality and can be used for 1 year without entering your billing information. If you do not login for 1 year or continue with a paid plan, Bixmile does not take any responsibility for loss of data. There are no refunds for downgrades or cancellations of accounts before the pre-paid month or year has expired. If the customer upgrades during their pre-paid month or year, the difference for the remaining days of their billing month/year will be charged pro-rata at time of upgrade. Thereafter the customer will be charged the new price for each subsequent billing month or year.

Termination / cancellation of Service

Cancellation can be done on the Account page within the Bixmile application or by emailing a written request to info@bixmile.com As soon as the cancellation notification is fulfilled the customer will no longer have access to the application or its contents. Bixmile reserves the right to delete the Bixmile data contents of all cancelled accounts.

Modifications to service or prices

Bixmile reserves the right at any time to modify, or discontinue, the Service (or any part thereof) with or without notice. Bixmile shall not be liable to you or to any third party for any modification, price change, suspension or discontinuation of the Service. Bixmile reserves the right to implement price changes with 30 days notice to the customer. Customers on monthly subscriptions will be charged the new price the next billing month that falls after the 30 days. Customers on annual accounts will be charged the agreed amount for the full 12 months of their contract; thereafter the new price will take effect.

Disclaimer of warranties

The service, including the site and content, and all server and network components are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and Bixmile expressly disclaims any and all warranties, whether express or implied, including, but not limited to, the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. You acknowledge that Bixmile does not warrant that the service will be uninterrupted, timely, secure, error-free or virus-free, and no information or advice obtained by you from Bixmile or through the service shall create any warranty not expressly stated in these terms.

Limitation of liability

No consequential damages. Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to these terms, or such party’s affiliates or their respective officers, directors, employees, agents, suppliers or licensors be liable to the other party or any third party for any indirect, incidental, special, exemplary, consequential, punitive or other similar damages, including lost profits, lost sales or business, lost data, business interruption or any other loss incurred by such party in connection with these terms or the service, regardless of whether such party has been advised of the possibility of or could have foreseen such damages.

Limits on monetary damages.

Notwithstanding anything to the contrary in these terms, Bixmile’s (including any of its affiliates) aggregate liability, for damages (monetary or otherwise) under these terms claimed by you or any third party arising from our service, shall be limited to the lesser of (i) actual damages incurred, or (ii) payments made by you for the service during the twelve (12) months preceding the claim. the parties acknowledge and agree that the essential purpose of this section 11.2 is to allocate the risks under these terms between the parties and limit their potential liability given the fees charged under this agreement, which would have been substantially higher if Bixmile were to assume any further liability other than as set forth herein. The parties have relied on these limitations in determining whether to enter into these terms.

Indemnification

Bixmile will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes a valid patent or copyright, or misappropriates a third party’s trade secret (such claims, collectively, “Claim”). Bixmile shall, at its expense, defend such Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Bixmile for such defense, provided that (i) You promptly notify Bixmile of the threat or notice of such Claim, (ii) Bixmile will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) You fully cooperate with Bixmile in connection therewith. If Your use of the Service has become, or in Bixmile’s opinion is likely to become, the subject of any such Claim, Bixmile may at its option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate these Terms and repay You any unused Service fees. Bixmile will have no liability or obligation under this Section 12.1 with respect to any Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than Bixmile; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing. The provisions of this Section 12.1 state the sole, exclusive and entire liability of Bixmile to You and constitute Your sole remedy with respect to a Claim brought by reason of Your permitted use of the Service. Indemnification by You. You agree to defend, indemnify, and hold harmless Bixmile from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms, or Your and Your end users’ access to, use, misuse or illegal use of the Service. Bixmile will provide You notice of any such claim, suit, or proceeding. Bixmile reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist Bixmile’s defense of such matter.

Assignment; entire agreement; revisions

Either party may assign or transfer these Terms, in whole or in part, without restriction, provided the assignee agree to be fully bound by these Terms. These Terms supersede prior versions of these Terms, or any other discussions, agreements or understandings by or among the parties (other than written agreements expressly accepted and executed by both parties). We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of such changes and direct You to the latest version.

Severability

If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

Relationship of the parties

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

Governing law and dispute resolution

This Agreement shall be governed by and construed in accordance with the laws of The Netherlands. Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof shall be finally settled by the competent court in Amsterdam, The Netherlands.

No other rights

No other rights or licenses are granted under this Agreement, by implication, estoppel, statute or otherwise, except as expressly provided herein.

Version 1.0 September 2015