The Benjamin Terms of Service (the “Terms” or “Agreement”) is a legal agreement between you, either an individual or a single legal entity (“You” or “you” or “Your” or “your”), and Metakite Software, LLC for the Benjamin service (“Benjamin” or “Product” or “we” or “our”). These Terms govern your use of Benjamin, including any updates and accompanying written documentation.
Your use of Benjamin constitutes your binding legal agreement to these Terms, which are subject to change at any time by Metakite Software, LLC. If you are not legally able to be bound by these Terms, your use of Benjamin is prohibited.
Your Data and Privacy
When you use the Product, you agree that Benjamin may duplicate and store your data, information, files and folders in accordance with Benjamin’s policies and these Terms. As between You and Metakite Software, LLC, all information You provide to Metakite Software, LLC remains your property. By uploading or inputting any document or file into the Site or Benjamin, regardless of form or content, you grant Metakite Software, LLC a license to use that document as necessary to provide the services listed on the Site.
We may also need to share your data, information, files and folders with third parties who assist us in providing the service. You hereby consent to such sharing. In addition, Benjamin may contain links to third party websites or resources. Your use of the third party materials is governed by their terms and not this Agreement. We are not responsible for or endorse these third parties.
You are responsible for maintaining and protecting your data in Benjamin and Metakite Software, LLC is not responsible for any loss or corruption to your files or information or for backing up such information.
Benjamin is not intended for use by persons under the age of 18 years old. By accepting these terms you represent that you are at least 18 years old.
Accounts, Passwords and Security
You must be a registered user to access the Product. Individual users must register using their name and entity users must register under the legal name of their entity. You are responsible for keeping your password private and secure, and are prohibited from sharing your login and password with others. You will be solely responsible and liable for any activity that occurs under your user name.
Acceptable Use and Conduct
You are solely responsible for your conduct and your data content uploaded or otherwise placed into Benjamin. We are not responsible for the legality and appropriateness of information in Benjamin, which you may be able to access or view through your use. You agree to indemnify, defend, and hold harmless Metakite Software, LLC and its suppliers from any and all loss, cost, liability, and expense arising from or related to your data, your use of the Products, or your violation of these terms.
The Products are made available to you only for your personal or internal business use, which use must be in compliance with all applicable Benjamin policies, laws, rules and regulations and must not infringe or violate third party rights. You may not make commercial use of the Products, including but not limited to selling, licensing, providing services, or distributing the Products to any third party.
Any unauthorized use of any Metakite Software, LLC computer system is a violation of these Terms and may also violate certain federal and state laws. Such violations may subject the unauthorized user and his or her agents to civil and criminal penalties. Metakite Software, LLC may immediately remove any content or data, or suspend or cancel accounts if it becomes aware of any misuse or illegal actions associated with an account or user, without prior notice to You.
You must use Benjamin responsibly and in a way that does not interfere with the use, privacy or rights of others. When using Benjamin, you must not, and must not attempt to, use the services to do any of the following things.
- copy or upload files or information unless you have a legal right to the files or information
- probe, scan, or test the vulnerability of any system, or attempt to circumvent any security or authentication measures
- access, tamper with, or use non-public areas of Benjamin or attempt to access or search Benjamin through nonpublic interfaces
- attempt to disrupt any user or network by sending a virus, malware, overloading, flooding, spamming, or mail-bombing
- send unsolicited communications, promotions or advertisements, or spam
- send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”
- publish anything that is fraudulent, misleading, or infringes another’s rights misrepresent yourself or affiliation with an entity
- publish or share materials that are offensive, defamatory, or unlawful
Changes to Products and Terms
Metakite Software, LLC reserves the right at any time to modify, suspend, or discontinue providing the Product or any part thereof in its sole discretion with or without notice.
Metakite Software reserves the right at any time to modify these Terms in its sole discretion, without liability to you. This Agreement, as amended, will be effective upon use of the Products for all existing users immediately after posting of any amended terms on the Metakite Software, LLC website. You agree to be bound by this Agreement, as modified. If you do not agree to any changes to the Terms, you must stop using Benjamin and terminate your account immediately.
Please review the most current version of this Agreement from time to time, located at http://metakite.com/benjamin/terms/ (or such successor URL as Metakite Software, LLC may provide), so that you will be apprised of any changes.
License to Benjamin
Subject to the terms and conditions of this Agreement, Metakite Software, LLC grants you a non-exclusive, non-transferable, non-sublicensable limited and revocable license to use the Product (including but not limited to the client software) and to use the Products for the sole and exclusive purposes of your personal or internal business purposes. Certain third party code may be provided with, or contained in, the Product. The third-party license terms accompanying such code, and not the terms of this Agreement, will govern your use of such code. Metakite Software reserves all other rights to its Products.
The Products and their structure, organization, source code, and documentation contain valuable trade secrets of Metakite Software, LLC and its licensors, and accordingly you agree not to (and agree not to allow third parties to) (1) sublicense, transfer, or distribute any aspect of the Products or any derivative thereof to any third party, (2) modify, adapt, translate, or prepare derivative works from the Product, (3) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Product, (4) extract portions of the software’s files for use in other applications, or (5) remove, obscure, or alter Metakite Software, LLC’s or any third party’s trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Products.
You agree that Metakite Software, LLC shall have the right to automatically and without notice renew your license to continue to use the Products upon expiration of your license period. You agree that if you elect to not permit Metakite Software, LLC the right to automatically renew your license to use the Products or maintain your credit card information on file, then Metakite Software, LLC may terminate your license.
You acknowledge that Metakite Software, LLC or third parties own all right, title and interest in and to the computer source code related to the Product, portions thereof, or software or content provided through or in conjunction with the Product, including without limitation all intellectual property rights. Except for the license granted in this Section, all rights in and to the Products are reserved, and no implied licenses are granted by Metakite Software.
If you have comments on the Products or ideas on how to improve them, please email email@example.com. Please note that by doing so, you also grant Metakite Software, LLC a perpetual, fully paid, royalty-free, irrevocable, transferable license, with right of sublicense, to use and incorporate your ideas or comments into the Products (or third party software, content, or services), and to otherwise exploit your ideas and comments, in each case without further compensation.
When using Benjamin, you must respect the intellectual property rights of others. We will respond to any notice of alleged copyright infringement if they comply with the law and are properly reported to us. We reserve the right to delete or disable content alleged to infringe.
Pricing Terms and Conditions
The fees for any premium, upgraded, or paid accounts (“Paid Account(s)”) will be billed from the date you elect, or convert to, a Paid Account and on each monthly or yearly renewal thereafter unless and until you cancel your account. Metakite Software, LLC will automatically bill your credit card each month or year on the anniversary of the commencement of your Paid Account. You acknowledge that the amount billed each month or year may vary for reasons that include, differing amounts due to promotional offers, differing amounts due to changes in your account, or changes in the amount of applicable sales tax, and you authorize us to charge your credit card for such varying amounts. Metakite Software, LLC may also periodically authorize your credit card in anticipation of account or related charges. All fees and charges are noncancelable and nonrefundable and no credits will be given for partially used periods.
If any fee is not paid in a timely manner, or Metakite Software, LLC is unable to process your transaction using the credit card information provided, Metakite Software, LLC reserves the right to revoke access to your Benjamin account and reserves the right to use our discretion to delete some or all of Your data in order to prevent incurring continued costs.
Metakite Software may change the fees and charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes by email or on the website. It is your responsibility to keep your contact information and payment information current and updated.
Canceling Your Account
Your Benjamin Paid Account will continue in effect unless and until you cancel your Paid Account or we terminate it. You must cancel your Paid Account before it renews each month or year in order to avoid billing of the next month’s or year’s fees to your credit card. Metakite Software, LLC will bill the monthly or yearly fees associated with your Paid Account plus any applicable tax to the credit card you provide to us.
You may cancel your Benjamin Paid Account at any time, and cancellation will be effective immediately. Should you elect to cancel your Paid Account, please note that you will not be issued a refund for the most recently (or any previously) charged monthly or annual fees.
By signing up for a Benjamin Paid Account and providing Metakite Software with your payment account information, you hereby agree to these payment terms and conditions.
Term and Termination
This Agreement is effective upon any use and remains in effect until your account is terminated. Terms that by their nature extend beyond termination shall survive termination of this Agreement.
Your right to use Benjamin automatically terminates if you fail to comply with these Terms. Metakite Software, LLC reserves the right to refuse or discontinue participation to any user at any time at its sole discretion. You agree that, upon such termination, you will discontinue all use of the Products and that your access rights will immediately terminate.
If this Agreement terminates, other than for your failure to comply, Metakite Software, LLC will use commercially reasonable efforts to make your Data available for you by request only for a period of fifteen (15) calendar days. Metakite Software, LLC has no obligation to provide you with a copy of your Data and may remove and discard any Data.
Disclaimer of Warranties
THE PRODUCTS AND ANY THIRD PARTY SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. METAKITE SOFTWARE, LLC AND SUCH THIRD PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE PRODUCTS, SOFTWARE AND SERVICE AND SUCH THIRD PARTY SOFTWARE OR SERVICES.
YOU UNDERSTAND AND AGREE THAT YOU USE THE PRODUCT, AND ALL THIRD PARTY SOFTWARE OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PRODUCT, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE PRODUCT AND SUCH THIRD PARTY SOFTWARE AND SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, AND WHERE THAT IS IN EFFECT, THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL METAKITE SOFTWARE, LLC, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE PRODUCT, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF COPY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF METAKITE SOFTWARE, LLC, AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED (i) US$25 IF NO AMOUNTS HAVE BEEN PAID BY YOU TO METAKITE SOFTWARE, LLC OR (ii) THE AMOUNT PAID BY YOU FOR COPY IN THE THREE MONTH PERIOD IMMEDIATELY PRIOR TO THE CLAIM.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE PRODUCT, FROM INABILITY TO USE THE PRODUCT, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE PRODUCT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DEATH OR BODILY INJURY OR THE LIMITATIONS ABOVE AND IN THOSE JURISDICTIONS THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You acknowledge and agree that the Product that is the subject of this Agreement, may be controlled for export purposes. You agree to comply with all United States export laws and regulations. You assume sole responsibility for any required export approval and/or licenses and all related costs and for the violation of any United States export law or regulation.
Governing Law, Dispute Resolution, and Venue
THESE TERMS AND THE USE OF THE PRODUCT AND SOFTWARE WILL BE GOVERNED BY INDIANA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE PRODUCT OR SOFTWARE MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF HAMILTON COUNTY, INDIANA, AND BOTH PARTIES CONSENT TO VENUE AND PERSONAL JURISDICTION THERE.
If a provision is found unenforceable the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted which as closely as possible reflects Metakite Software, LLC’s intent.
Entire Agreement and Assignment
You may not assign or transfer any of your rights or obligations under this Agreement. Metakite Software may freely assign its rights and obligations and this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void.
All inquiries to Metakite Software about the Terms should be made by emailing firstname.lastname@example.org.