BeProduct - Terms and Conditions

Terms and Conditions ("Terms")

Last updated: April 22, 2017

Wink Software, LLC. ("us", "we", or "our") operates the https://www.beproduct.com website (the "Service").

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.

By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.

Accounts

When you create an account with us, you must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of your account on our Service.

You are responsible for safeguarding the password that you use to access the Service and for any activities or actions under your password, whether your password is with our Service or a third-party service.

You agree not to disclose your password to any third party. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.

Organization Accounts and Administrators

When you sign up for an account for your organization you may specify one or more administrators. The administrators will have the right to configure the Services based on your requirements and manage end users in your organization account. If your organization account is created and configured on your behalf by a third party, it is likely that such third party has assumed administrator role for your organization. Make sure that you enter into a suitable agreement with such third party specifying such party’s roles and restrictions as an administrator of your organization account.

You are responsible for i) ensuring confidentiality of your organization account password, ii) appointing competent individuals as administrators for managing your organization account, and iii) ensuring that all activities that occur in connection with your organization account comply with this Agreement. You understand that Wink Software is not responsible for account administration and internal management of the Services for you.

You are responsible for taking necessary steps for ensuring that your organization does not lose control of the administrator accounts. You may specify a process to be followed for recovering control in the event of such loss of control of the administrator accounts by sending an email to support@winks.com, provided that the process is acceptable to Wink Software. In the absence of any specified administrator account recovery process, Wink Software may provide control of an administrator account to an individual providing proof satisfactory to Wink Software demonstrating authorization to act on behalf of the organization. You agree not to hold Wink Software liable for the consequences of any action taken by Wink Software in good faith in this regard.

Data Ownership

We respect your right to ownership of content created or stored by you. You own the content created or stored by you. Unless specifically permitted by you, your use of the Services does not grant Wink Software the license to use, reproduce, adapt, modify, publish or distribute the content created by you or stored in your user account for Wink Software’s commercial, marketing or any similar purpose. But you grant Wink Software permission to access, copy, distribute, store, transmit, reformat, publicly display and publicly perform the content of your user account solely as required for the purpose of providing the Services to you.

User Generated Content

You may transmit or publish content created by you using any of the Services or otherwise. However, you shall be solely responsible for such content and the consequences of its transmission or publication. Any content made public will be publicly accessible through the internet and may be crawled and indexed by search engines. You are responsible for ensuring that you do not accidentally make any private content publicly available. Any content that you may receive from other users of the Services, is provided to you AS IS for your information and personal use only and you agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose, without the express written consent of the person who owns the rights to such content. In the course of using any of the Services, if you come across any content with copyright notice(s) or any copy protection feature(s), you agree not to remove such copyright notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on any of the Services you affirm that you have the consent, authorization or permission, as the case may be from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, you expressly agree that Wink Software will have the right to block access to or remove such content made available by you if Wink Software receives complaints concerning any illegality or infringement of third party rights in such content. By using any of the Services and transmitting or publishing any content using such Service, you expressly consent to determination of questions of illegality or infringement of third party rights in such content by the agent designated by Wink Software for this purpose.

Support

We will provide the services described herein so as to maintain the Service in good working order, keeping it free from material defects and errors its specification so that the Service shall function in accordance with its specifications, the accepted level of performance and level of use set forth in this Agreement. We will make available to the user an email address (the “Support Email”) for a user to initiate trouble reports requesting service. The Support Email is accessible all times, and it will be handled between 9:00 AM and 7:00 PM Eastern Standard Time (GMT-5:00), Monday through Friday, excluding legal holidays in the United States. The Support email can also be used to notify us of problems associated with the Service and related documents. We shall respond as provided below:

Severity 1 incident defined as one that produces an emergency situation in which the Service is substantially or completely non-functional or inoperable. We will respond via email to begin to diagnose the problem within one (1) hour. We will devote all reasonable resources and use its best effort to resolve Severity 1 problem as quickly as possible. The resolution will be delivered to the User as a workaround or as an emergency hotfix. If we deliver an acceptable workaround, the severity classification will drop to a Severity 2.
Severity 2 incident is defined as one that produces a detrimental situation in which the Service is usable but materially incomplete; and/or causes some performance degradation. This category may include provisioning/change management requests, enhancement requests, common how-to questions, and any product issues with a viable workaround. We will respond via email within eight (8) hours. We will devote all reasonable resources and will use its best efforts to resolve Severity 2 problem within five (5) days. The resolution will be delivered to the User in the same format. If the Service delivers an acceptable workaround for a Severity 2 problem, the severity classification will drop to Severity 3.
Severity 3 incident is defined as one that produces an inconvenient situation in which the Service is usable, but does not provide a function in the most convenient or expeditious manner, but the user suffers little or no significant impact. We will exercise commercially reasonable efforts to resolve Severity 3 problems in the future maintenance releases.

Maintenance

Upgrade and Updates will be provided when available and include bug fixes, security updates, new features, enhancements to existing features, and/or performance enhancements to existing features. Upgrade and Updates are provided to end user at no additional fee, including all documentation describing the purpose and function of the Upgrade and Updates. Each maintenance downtime shall generally not exceed four hours and we will plan maintenance downtime at non-core business hours.

Upgrade and Updates do not include product extensions to third party tools and/or third party applications, new functionality being sold as a separate module, or add-on modules or custom development whether created by the Service, user, or a third party. We assume no responsibility for the operation or performance of any add-on modules, custom software, or integrated applications, whether created by the Service, user, or a third party. We reserve the right to determine how and when to develop and apply any Upgrades and Updates.

Security

We strives to protect your personal information. For security of transactions, we use the Secure Sockets Layer (SSL) protocol, which encrypts any information, you send to us electronically. All information traveling between your browser and Service is protected from eavesdroppers with 256-bit SSL encryption. The encryption process protects your information, by scrambling it before it is sent to us from your computer. Once BeProduct receives your transmission, we make commercially reasonable efforts to ensure its security on our system. Unfortunately, no data transmission over the Internet can be guaranteed to be 100% secure. While we strive to use commercially acceptable means to protect your Personal Information, we cannot guarantee its absolute security.

Reliability

Our infrastructure uses redundant storage and servers to keep the application and your data available in the case of hardware failure - and another set of servers and storage in a geographically separate datacenter in case our primary datacenter is made unavailable by a disaster or other disruption. Wink Software has chosen Microsoft Azure for our hosting needs. Microsoft Azure platform complies with the key industry standards for security and reliability to provide our customers a secure platform but if your application has security vulnerabilities then it can make your architecture susceptible to an attack.

Backups

The data in your BeProduct account is replicated across multiple servers in three geographic locations to prevent a single failure from causing data loss. Additionally, that data is backup nightly and stored in geo-replicated storages which maintain multiple copies of your data across two Azure datacenters, even in the event of a catastrophe like a tornado or a flood, your information will be safe and your records can be quickly restored.

Third Party Applications

If you elect to utilize any third-party application in connection with your use of the Service, by doing so you are consenting to your Content being shared with such third-party application. To understand how such third-party application provider utilizes your Content and other information, you should review their privacy policy.

Links to Other Web Sites

Our Service may contain links to third-party websites or services that are not owned or controlled by Wink Software.

Wink Software has no control over and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or services. You further acknowledge and agree that Wink Software shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit.

Billing

We will begin billing you for subscription fees corresponding to your subscription plan, plus any applicable tax, at the end of your Free Trial, unless you cancel prior to the end of your Free Trial. You will not receive a notice from us that your Free Trial has ended or that your paying subscription has begun.

Unless canceled, your Service subscription will be automatically renewed at the end of your subscription period. We will bill the subscription fee plus any applicable tax to you. Your membership will automatically renew for successive subscriptions, without prior notice to you, unless and until you cancel your membership, or we terminate it. You must cancel your membership before it renews in order to avoid billing of the next period's subscription fees to your payment method.

By using the Service, you are expressly agreeing that we are permitted to bill you a subscription fee, any applicable tax and any other charges you may incur in connection with your use of the Service. Additional charges may include service level changes you request. The subscription fee will be billed at the beginning of your subscription and on each renewal thereafter, unless and until you cancel your membership. We will automatically bill you each billing period on the calendar day corresponding to the commencement of your membership. Except and to the extent required by applicable law, all fees and charges are nonrefundable, and there are no refunds or credits for partially used periods, or where you have elected to downgrade service levels or otherwise remove any paid component or feature. If you elect to upgrade your service level or otherwise add any paid component or feature, we will pro-rate the amount due based on the number of days remaining in your billing cycle; provided, however, that any such proration shall be based on your service level or paid components or features in existence immediately prior to your election to upgrade or add paid components or features.

If you change your service level (downgrade it), you may cause the loss of Content or features for your account. Wink Software does not accept any liability for such loss. You may cancel your subscription to the Service at any time, and cancellation will be effective immediately. Except and to the extent required by applicable law, WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIODS OR ANY FEATURE OF COMPONENT THAT YOU HAVE PAID FOR BUT NOT USED.

In connection with your purchase and/or use of the Service you may be subject to taxes, including, without limitation, sales, and use taxes, by any authority which has jurisdiction to impose such taxes. You agree that the obligation and payment of any such taxes shall be your sole and absolute responsibility, and you agree, that unless otherwise required by applicable law, to indemnify Wink Software pursuant to the section below entitled “Indemnity” to the extent that Wink Software incurs any obligations or other liabilities in connection with such taxes.

Fee Increases

We may change the fees and charges in effect or add new fees and charges from time to time. Furthermore, notwithstanding any other provision contained herein (but subject to any applicable law), at the time of any renewal of your subscription you agree that we may increase your recurring fees up to the greater of (i) the then list price as publicly marketed on our website, or (ii) five percent (5%). We may, in our sole discretion, offer you a grace period in which your fees will not increase for a certain period of time. If you do not accept the increase or addition to the existing fees, you may elect to terminate your account during the then current billing period and you shall not be liable for such fee increase after the applicable billing period; however, any later renewal of service will be subject to the increased fee structure. If your credit or debit card reaches its expiration date, your continued use of the Service constitutes your authorization for us to continue billing you, and you remain responsible for any uncollected amounts.

Travel & Expenses

Wink Software is hereby authorized to incur, with prior notice to you, reasonable travel expenses when appropriate in performing your instructions. You agree to reimburse these in addition to the subscription fee. Reasonable travel expenses vary to reflect the different standards applied to business travel in various parts of the world. For illustrative purposes, they include, economy (or 'coach') class flights, accommodation and incidental costs within a hotel, meals while traveling on your behalf, rail travel and taxis and car hire costs as appropriate. Where appropriate to the circumstances, Wink Software reserves the right to vary the class of travel to meet a reasonable business need.

Disclaimer of Warranties

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WINK SOFTWARE IS NOT RESPONSIBLE FOR ANY THIRD-PARTY CONTENT THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE USE OF THE SERVICE OR FOR ANY DAMAGE OR LOSS OF DATA THAT MAY RESULT. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY APPLICATION OR SERVICE THAT PROVIDES ACCESS TO OUR SERVICE (E.G., ANY THIRD-PARTY APPLICATION DEVELOPED USING BEPRODUCT’S API).

The Service is controlled, operated and hosted from within the U.S. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WINK SOFTWARE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICE, WHETHER OR NOT WINK SOFTWARE HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. WINK SOFTWARE’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATED TO THE SERVICE SHALL NOT EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO WINK SOFTWARE IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO THE CLAIM GIVING RISE TO SUCH LIABILITY.

Indemnification

You agree to indemnify and hold harmless Wink Software, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney's fees and costs) arising out of or relating to any claims that you have used the Services in violation of another party's rights, in violation of any law, in violations of any provisions of the Terms, or any other claim related to your use of the Services, except where such use is authorized by Wink Software.

Arbitration

Any controversy or claim arising out of or relating to the Terms shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in New Jersey and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, Wink Software may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.

Governing Law

These Terms shall be governed and construed in accordance with the laws of New Jersey, United States, without regard to its conflict of law provisions.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have between us regarding the Service.

Termination

We may terminate or suspend access to our Service immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

We may terminate or suspend your account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms.

Upon termination, your right to use the Service will immediately cease. If you wish to terminate your account, you may simply discontinue using the Service.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Changes

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is a material we will try to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.

END OF TERMS OF SERVICE

If you have any questions or concerns regarding this Agreement, please contact us at support@beproduct.com.