Bizwigi | MASTER SUBSCRIPTION AGREEMENT (MSA)

BIZWIGI TERMS OF USE:
BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF BIZWIGI’ ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS, IF ANY, (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE.

Welcome
As part of the Service, Bizwigi will provide You with use of the Service, including a browser interface, software applications and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be Your agreement to abide by this Agreement including any materials available on the Bizwigi website incorporated by reference herein, including but not limited to Bizwigi’ privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

1. Modification to Terms.
Unless otherwise agreed in written form, Bizwigi reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes.

2. Privacy & Security Disclosure.
Bizwigi’ privacy and security policies may be viewed online at www.Bizwigi.com. Bizwigi reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, Bizwigi occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If You become a paying customer of the Service, You agree that Bizwigi can disclose the fact that You are a paying customer and the edition of the Service that You are using. You will not (and will not allow any third party to) use the Services to track or collect personally identifiable information of Internet users, nor will You (or will You allow any third party to) associate any data gathered from Your Properties (or such third parties’ website(s)) with any personally identifying information from any source as part of Your use (or such third parties’ use) of the Services unless You perfectly comply with the applicable laws relating to the collection of personally identifiable information. You will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from visitors to Your Properties. Even if You don’t collect any personally identifiable information You must post a privacy policy and that policy must provide notice of Your use of a cookie that collects anonymous traffic data.

3. License Grant & Restrictions.
Bizwigi hereby grants You a non-exclusive, non-transferable, worldwide right to use the Service, solely for Your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to You are reserved by Bizwigi and its licensors. You may not access the Service if You are a direct competitor of Bizwigi, except with Bizwigi’ prior written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. You may use the Service only for Your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

4. Your Responsibilities.
You are responsible for all activity occurring under Your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Bizwigi immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Bizwigi immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by You or Your Users; and (iii) not impersonate another Bizwigi user or provide false identity information to gain access to or use the Service.

5. Account Information and Data.
Bizwigi does not own any data, information or material that You submit to the Service in the course of using the Service (“Customer Data”). You, not Bizwigi, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Bizwigi shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Your breach), Bizwigi will make available to You a file of the Customer Data of the last 6 months within 60 (sixty) days of termination if You so request at the time of termination. Bizwigi reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Your non-payment. Upon termination for cause, Your right to access or use Customer Data immediately ceases, and Bizwigi shall have no obligation to maintain or forward any Customer Data. Bizwigi will not share information associated with You or your Site with any third parties unless Bizwigi (i) has Your consent; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of Bizwigi, its users or the public; or (iii) provides such information in certain limited circumstances to third parties to carry out tasks on Bizwigi’ behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by Bizwigi. When this is done, it is subject to agreements that oblige those parties to process such information only on Bizwigi’ instructions and in compliance with this Agreement and appropriate confidentiality and security measures.

6. Intellectual Property Ownership.
Bizwigi alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Bizwigi Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the Bizwigi Technology or the Intellectual Property Rights owned by Bizwigi. The Bizwigi name, the Bizwigi logo, and the product names associated with the Service are trademarks of Bizwigi or third parties, and no right or license is granted to use them.

7. Third Party Interactions.
During use of the Service, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between You and the applicable third-party. Bizwigi and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third-party. Bizwigi does not endorse any sites on the Internet that are linked through the Service. Bizwigi provides these links to You only as a matter of convenience, and in no event shall Bizwigi or its licensors be responsible for any content, products, or other materials on or available from such sites. Bizwigi provides the Service to You pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require Your agreement to additional or different license or other terms prior to Your use of or access to such software, hardware or services. Service features that interoperate with Third Party programs depend on the continuing availability of the programs for use with the Services. If any Third Party ceases to make the program available on reasonable terms for the Services, Bizwigi may cease providing such Service features without entitling You to any refund, credit, or other compensation. If You provide access to Your Account or any portion thereof to any Third Party or use the Service to collect information on behalf of any third party (“Third Party”), whether or not You are authorized to do so by Bizwigi or its wholly owned subsidiaries, the terms of this Section shall apply to You. If You use the Service on behalf of any Third Party, You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, that Third Party , (b) as between the Third Party and You, the Third Party owns any rights to Customer Data in the applicable account, and (c) You shall not disclose Third Party’s Customer Data to any other party without the Third Party’s consent. You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. Bizwigi and its wholly owned subsidiaries make no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to Bizwigi and its wholly owned subsidiaries, the Service, the Software or the Reports, or use thereof. You agree to indemnify, hold harmless and defend Bizwigi and its wholly owned subsidiaries, at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against Bizwigi or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Bizwigi, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports; (c) violations of Your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services, the Software or Reports.

8. Charges and Payment of Fees.
You shall pay all fees or charges to Your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide Bizwigi with valid credit card or approved purchase order information as a condition to signing up for the Service. Bizwigi reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to You, which notice may be provided by e-mail. Unless otherwise specified, all pricing terms are confidential, and You agree not to disclose them to any third party.

You agree to provide Bizwigi with complete and accurate billing and contact information. This information includes Your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information You have provided is false or fraudulent, Bizwigi reserves the right to terminate Your access to the Service in addition to any other legal remedies. Unless Bizwigi in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes (“U.S. Customers”); (ii) all other entities will be billed in U.S. dollars, Euros or local currency and be subject to either U.S. or non-U.S. payment terms and pricing schemes at the discretion of Bizwigi (“Non-U.S. Customers”). If You believe Your bill is incorrect, You must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

9. Non-Payment and Suspension.
In addition to any other rights granted to Bizwigi herein, Bizwigi reserves the right to suspend or terminate this Agreement and Your access to the Service if Your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If You or Bizwigi initiates termination of this Agreement, You will be obligated to pay the balance due on Your account computed in accordance with the Charges and Payment of Fees section above. You agree that Bizwigi may charge such unpaid fees to Your credit card or otherwise bill You for such unpaid fees. Bizwigi reserves the right to impose a reconnection fee in the event You are suspended and thereafter request access to the Service. You agree and acknowledge that Bizwigi has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Your account is 30 days or more delinquent.

11. Termination upon Expiration/Reduction in Number of Licenses.
This Agreement commences on the Effective Date. The Initial Term will be as You elect during the online subscription process or as otherwise mutually agreed upon in an Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Bizwigi’ then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination.

12. Termination for Cause.
Any breach of Your payment obligations or unauthorized use of the Bizwigi Technology or Service will be deemed a material breach of this Agreement. Bizwigi, in its sole discretion, may terminate Your password, account or use of the Service if You breach or otherwise fail to comply with this Agreement. In addition, Bizwigi may terminate a free account at any time in its sole discretion. You agree and acknowledge that Bizwigi has no obligation to retain the Customer Data, and may delete such Customer Data, if You have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

13. Representations & Warranties.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Bizwigi represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Bizwigi help documentation under normal use and circumstances. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to the Service and that Your billing information is correct.

You shall indemnify and hold Bizwigi, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by You of Your representations and warranties; or (iii) a claim arising from the breach by You or Your Users of this Agreement, provided in any such case that Bizwigi (a) gives written notice of the claim promptly to You; (b) gives You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally release Bizwigi of all liability and such settlement does not affect Bizwigi’ business or Service); (c) provides to You all available information and assistance; and (d) has not compromised or settled such claim.

14. Disclaimer of Warranties.
BIZWIGI AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. BIZWIGI AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BIZWIGI AND ITS LICENSORS.

15. Service Levels.
BIZWIGI’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BIZWIGI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. BIZWIGI DOES NOT GUARANTEE THE SERVICE WILL BE OPERABLE AT ALL TIMES OR DURING ANY DOWN TIME (1) CAUSED BY OUTAGES TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS, (2) CAUSED BY ANY FAILURES OF YOUR EQUIPMENT, SYSTEMS OR LOCAL ACCESS SERVICES, (3) FOR PREVIOUSLY SCHEDULED MAINTENANCE OR (4) RELATING TO EVENTS BEYOND BIZWIGI’ (OR ITS WHOLLY OWNED SUBSIDIARIES OR INFRASTRUCTURE PARTNERS) CONTROL SUCH AS STRIKES, RIOTS, INSURRECTION, FIRES, FLOODS, EXPLOSIONS, WAR, GOVERNMENTAL ACTION, LABOR CONDITIONS, EARTHQUAKES, NATURAL DISASTERS, OR INTERRUPTIONS IN INTERNET SERVICES TO AN AREA WHERE BIZWIGI (OR ITS WHOLLY OWNED SUBSIDIARIES OR INFRASTRUCTURE PARTNERS) OR YOUR SERVERS ARE LOCATED OR CO-LOCATED. COMPLETE ACCURACY IN ALL ASPECTS OF YOUR CUSTOMER DATA AT ALL TIMES ALSO IS NOT GUARANTEED.

16. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

17. Additional Rights.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to You.

18. Local Laws and Export Control.
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The user of this site (“User”) acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, You represent and warrant that You are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Bizwigi and its licensors make no representation that the Service is appropriate or available for use in other locations. If You use the Service from outside the United States of America, You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.

Bizwigi may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in Bizwigi’ account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Bizwigi’ account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Bizwigi (such notice shall be deemed given when received by Bizwigi) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Bizwigi at the following addresses: Bizwigi Inc. 534 W Remington Chandler, Arizona 85286 (USA) – to the attention of: Chief Executive Officer.

19. Assignment; Change in Control.
This Agreement may not be assigned by You without the prior written approval of Bizwigi but may be assigned without Your consent by Bizwigi to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of Bizwigi directly or indirectly owning or controlling 50% or more of You shall entitle Bizwigi to terminate this Agreement for cause immediately upon written notice.

With respect to Customers located in North, Central of South America (including the Caribbean), this Agreement shall be governed by Arizona law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Delaware. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between You and Bizwigi as a result of this agreement or use of the Service. The failure of Bizwigi to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Bizwigi in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between You and Bizwigi and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

Questions or Additional Information: If You have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@Bizwigi.com