BOOKBIRD / THE LEGAL STUFF
Terms & Conditions
Please read this services agreement (“Agreement”) carefully before using any of the services provided by Bookbird Accounting Ltd. (“Bookbird”).
By clicking on “I accept Bookbird’s terms of service” on the sign-up page, or using any of Bookbird’s services, Customer (as defined below) is agreeing to be bound by and comply with the terms and conditions of this Agreement. If Customer does not agree to this Agreement, Customer is not permitted to use Bookbird’s services. Bookbird recommends that you print a copy of this Agreement for your records
a. “Customer” means the person, entity, partnership or organization utilizing Bookbird’s services. b. “Party” means either Customer or Bookbird and “Parties” means both Customer and Bookbird.
b. “Party” means either Customer or Bookbird and “Parties” means both Customer and Bookbird
c. “Recipient” means a Customer who is an accountant, accounting firm, or other third party whose clients include Bookbird customers. Recipients access the Services in accordance with this Agreement for the purposes of obtaining, with their clients’ authorization, Customer Data about such clients to provide them services.
d. “Services” means the services described on Bookbird’s website and selected by Customer during Sign-Up. Bookbird re- serves the right to update its description of the Services from time to time during the Term.
e. “Sign-up” means the on-line sign-up process on Bookbird’s website.
f. “Term” has the meaning set out in Section 6.
2. SUBSCRIBING TO THE SERVICE.
Customer subscribes for the Services by selecting them from the options available during Sign-up. In the event of any conflict between this Agreement and the information provided during Sign-up, this Agreement shall control.
a. License Grant. Subject to the terms and conditions of this Agreement, Bookbird grants to Customer a non-exclusive, non- transferable license during the Term, to permit Customer Personnel to access the Services through Bookbird’s currently available interfaces.
b. User IDs. Upon Customer’s request, Bookbird will issue a Customer ID to Customer. Customer may share this Cus- tomer ID with each of its partners, shareholders, employees and contractors who are bound by confidentiality restrictions at least as restrictive as this Agreement (“Customer Personnel”). Customer Personnel may only access and use the Service through the Customer ID. Customer will not allow Customer Personnel to share the Customer ID with third parties. Customer is responsible for all activity occurring under its Customer ID. Customer is responsible for all use of the Services by Customer Personnel and for maintaining the confidentiality of the Customer ID and will promptly notify Bookbird of any actual or suspected unauthorised use of the Services. Bookbird reserves the right to replace the Customer ID if it determines it may have been used for an unauthorised purpose.
c. Internet Connectivity; Disclaimer. Bookbird will make the Services available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary to ac- cess the Services. Customer acknowledges that the Internet is known to be unpredictable in performance, unsecure and may, from time to time, impede access to the Services or performance hereunder. Customer agrees that Bookbird is not in any way responsible for any interference with Customer’s use of or access to the Services or security breaches arising from or attributable to the Internet and Customer waives any and all claims against Bookbird in connection therewith.
d. Limitations. Customer agrees that it will not permit any Customer Personnel or any other party to: (a) permit any party to access or use the Services other than the Customer Personnel authorised under this Agreement; (b) modify, adapt, alter or translate any software underlying the Services, except as expressly allowed hereunder; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Service to any third party; (d) reverse engineer, decompile, disassem- ble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or or- ganization) of any software underlying the Services; (e) use or copy the any software underlying the Services except as expressly allowed hereunder; (f) conduct or promote any illegal activities while using the Services; (g) use the Services to gener- ate unsolicited email advertisements or spam; (h) use the Services to stalk, harass or harm another individual; (i) use any high volume automatic, electronic or manual process to access, search or harvest information from the Services (including without limitation robots, spiders or scripts); (j) interfere in any way with the proper functioning of the Services or interfere with or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (k) attempt to gain access to secured por- tions of the Services to which it does not possess access rights; (l) upload or transmit any form of virus, worm, Trojan horse, or other malicious code; (m) use any robot, spider, other automatic device, or manual process to ex- tract, “screen scrape”, monitor, “mine”, or copy any static or dynamic web page on the Services or the content con- tained on any such web page for commercial use without our prior express written permission; (n) imperson- ate any person or entity, or otherwise misrepresent its affiliation with a person or entity; or (o) mirror or frame the Services or any content, place pop-up windows over its pages, or otherwise affect the display of its pages.
e. Suspension of Access. In addition to any other suspension or termination rights of Bookbird pursuant to this Agreement, certain extraordinary circumstances may require Bookbird to suspend or terminate (where appropri- ate), as determined in Bookbird’s discretion, Customer’s access to and/or use of, or otherwise modify, the Services and/or any component thereof, without notice in order to: (a) prevent damages to, or degradation of the integ- rity of, Bookbird’s Internet network; (b) comply with any law, regulation, court order, or other governmental request or order; or (c) otherwise protect Bookbird from potential legal liability or harm to its reputation or busi- ness. Bookbird will use commercially reasonable efforts to notify Customer of the reason(s) for such suspen- sion or termination action as soon as reasonably practicable. In the event of a suspension, Bookbird will promptly restore Customer’s access to the Services as soon as the event giving rise to the suspension has been re- solved as determined in Bookbird’s discretion. Nothing contained in this Agreement will be construed to limit Book- bird’s actions or remedies or act as a waiver of Bookbird’s rights in any way with respect to any of the foregoing activi- ties. Bookbird will not be responsible for any loss or damages incurred by Customer as a result of any termination or suspension of access to or use of the Services.
4. RESERVATION OF RIGHTS.
a. Bookbird. Bookbird expressly reserves all rights in the Service and all other materials provided by Bookbird hereun- der not specifically granted to Customer. It is acknowledged that all right, title and interest in the Service and all other materials provided by Bookbird hereunder, any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Bookbird (or third party suppliers, if applicable) and that the Service and all other materials provided by Bookbird hereunder are licensed on a subscription basis and not “sold” to Customer. Certain of the names, logos, and other materials displayed on the Services consti- tute trademarks, tradenames, service marks or logos (“Marks”) of Bookbird or other entities. Customer is not authorised to use any such Marks. Ownership of all such Marks and the goodwill associated therewith re- mains with Bookbird or those other entities. Any use of third party software provided in connection with the Services will be governed by such third parties’ licenses and not by this Agreement.
b. Customer. Customer expressly reserves all rights in any information, records, files or other data that Customer (or Customer Personnel) loads, enters into, or otherwise makes available to Bookbird or the Service and all results from processing such data, including compilations, and derivative works thereof (the “Customer Data”), except that Cus- tomer grants Bookbird a perpetual, non-exclusive, world-wide, royalty free, fully sub licenseable, fully paid-up license to use, reformat, modify, display, perform, reproduce, and create derivative works of the Customer Data: (i) in providing the Service to Customer or (ii) in connection with Bookbird’s internal business purposes. Unless specifically agreed in writing, each Party’s rights under this clause (b) extend to any update, adaptation, translation, customization or derivative work of Customer Data, made under this Agreement.
c. Feedback. In the event that Customer provides Bookbird any ideas, thoughts, criticisms, suggested improve- ments or other feedback related to the Services (collectively “Feedback”), Customer agrees that Bookbird may use the Feedback to modify the Services and that Customer will not be due any compensation, including any royalty related to the product or service that incorporates the Feedback. Customer hereby grants Bookbird a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether Customer provides the Feedback on the Services or through any other method of communication with Bookbird.
5. CUSTOMER DATA.
a. Responsibility. Customer has sole responsibility for the accuracy, appropriateness and completeness of all Cus- tomer Data. Bookbird will use the Customer Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data.
c. Restrictions. Customer agrees not to upload or transmit any Customer Data: (i) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidenti- ality or fiduciary obligations that Customer might have with respect to the Customer Data); (ii) for which Customer does not have the consent or permission from the owner of any personally identifiable information contained in the Customer Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprie- tary rights or violates any privacy rights of any third party (including, without limitation, any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or mislead- ing;
(v) that is defamatory, obscene, or offensive; (vi) that violates, or encourages any conduct that would violate, any appli- cable law or regulation or would give rise to civil or criminal liability; or (vii) that contains any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or PI.
d. Indemnity. Customer agrees to indemnify and hold harmless Bookbird, its employees, officers, directors and affiliates against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) to third parties (including, but not limited to, any Clients, the Canadian government and provincial taxing authorities) relating to: (a) Customer Data, (b) Customer’s breach of any of its obligations, representations and/or warranties under this Agreement; or (c) except for claims for which Bookbird is liable under Section 11 (IP Indemnity) below, Customer’s use of the Services, including in combination with any third party software, application or service.
The term of this Agreement (“Term”) shall commence upon the date the Sign-up process is complete and will continue on a month to month basis thereafter until terminated. If Customer has elected to receive a “30 day free trial”, not- withstanding anything else to the contrary herein, the Term of this Agreement will be 30 days. At the end of the “30 day free trial” if Customer wishes to continue to receive the Services, Customer must begin paying for the services, and may not receive a further “30 day free trial”.
7. CUSTOMER SUPPORT.
During the Term for the applicable Services, Bookbird will provide the following standard customer support:
a. Web Support. Customer’s designated representative shall have access to Bookbird’s technical support web site and may use the web site to submit service requests. Bookbird may also elect to offer Customer the option of sub- mitting service requests to Bookbird by telephone. Bookbird will use reasonable efforts to respond within three (3) business days. Web support shall not include, and Bookbird will not provide, any tax or other professional or expert ad- vice of any kind, including, but not limited to any advice regarding the appropriate handling of tax and accounting issues, or otherwise. Bookbird will use commercially reasonable efforts to correct any reproducible failure of the Services to substantially conform to its expected operation; provided that Bookbird is not require to provide a correc- tion for all such nonconformities.
b. Service Upgrades and Scheduled Downtime. Bookbird will update the Service in its sole discretion. Bookbird will make such updates available to Customer, at no additional charge, as and when it offers them generally to its other customers. Bookbird may from time to time schedule downtime for maintenance and upgrades.
c. Data Storage & Backup. The Service does not include online data storage which is provided via the Xero sys- tems’ servers. It is Customer’s responsibility to backup onto Xero’s systems all Customer Data, including all data and records that Customer submits to Bookbird.
8. FEES & PAYMENT.
a. Subscription Fees. Subscription Fees are recurring monthly fees. Subscription Fees are initially the fees indicat- ed during Sign-up but Bookbird may change the Subscription Fees from time to time by providing Customer with one (1) month’s notice.
b. Usage Fees. Usage Fees are charged in respect of Customer’s use of the Services (for example, fees per trans- action in excess of the amount Customer subscribed for). Rates for Usage Fees are initially the rates indicated during Sign -up but Bookbird may change the rates from time to time by providing Customer with one (1) month’s notice.
c. Automatic Credit Card Payments. Customer agrees to provide Bookbird with credit card information for a credit card it is authorised to use agrees that, during the Term, Bookbird may charge the applicable credit card for: (i) Subscription Fees each month in advance; and (ii) for Usage Fees, immediately after the end of the applicable measurement period (normally at the end of each month). Bookbird will issue Customer a receipt for each payment monthly. Bookbird must be notified in writing of any billing discrepancies within ten (10) days after the date of the applicable receipt to be eligible to receive an adjustment or credit (if any) on customer’s next payment to Bookbird.
d. Late Payment. Customer may not withhold or “seto” any amounts due hereunder. Bookbird reserves the right to suspend Service until all past due amounts are paid in full. Any late payment shall be subject to any costs of collection and shall bear interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maxi- mum legal rate if less, per month or fraction thereof until paid.
e. Certain Taxes. Fees quoted do not include and Customer shall pay, indemnify and hold Bookbird harmless from all sales, use, gross receipts, value-added, personal property or other taxes, and all applicable duties, tariffs, assess- ments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transaction contemplated herein, other than taxes based on the net income or profits of Bookbird.
f. Refunds. In the event of termination of a Service, we may provide you with a refund of any pre-paid, but unused fees related to such Service, effective at the beginning of the next month of your Service. No refund shall be paid for the current month’s services, regardless of the day on which you cancel the Services. We will issue the refund within 60 days of when your cancellation request is processed. You will not be entitled to any refund for our termination of the Services based upon your breach. If you purchased access to the Services at a discounted price, any refund will lose the benefit of that discount.
9. CONFIDENTIAL & PROPRIETARY INFORMATION.
a. Definitions. For purposes of this section, a Party receiving Confidential & Proprietary Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Discloser” and “Confidential & Proprietary Information” means all information disclosed by Discloser to Recipient during the Term and marked as “confidential” or “proprietary”. Customer hereby acknowledges that the Service will be considered Confidential and Proprietary Information belonging exclusively to Bookbird (or its designated third party supplier), and Bookbird hereby acknowledges that Customer Data will be considered Confidential and Proprietary Information belonging exclusively to Customer, in each case regardless of whether or not marked as “confidential” or “proprietary”. Dis- closer’s Confidential & Proprietary Information does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (ii) information in the public domain through no wrongful act of Recipient, or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obliga- tions.
b. Covenant. Recipient hereby agrees that during the Term and at all times thereafter it shall not (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, as permitted by this Agreement (including Section 5(b)), or to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient shall use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safe- guarding its own confidential information of a similar nature, but in no event shall less than due diligence and reasona- ble care be exercised. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 9 (Confidential & Proprietary Information ) if it affords the other party’s Confidential & Proprietary Information at least the same degree of care it takes in protecting its own confidential information from unauthorised disclosure (but in no event using less than a reasonable degree of care). Upon the earlier of Discloser’s written request or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Bookbird may retain a copy of such Confidential & Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, and/or reasonable internal back-up or archival policies and requirements. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, pro- vided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.
c. Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
10. WARRANTIES AND DISCLAIMERS.
a. Limited Noninfringement Warranty. Bookbird represents and warrants that, to the best of its knowledge as of the date the Service (and each update thereto) is first made available hereunder, the Service, when properly used in ac- cordance with this Agreement, will not misappropriate or infringe any third party’s intellectual property rights. Cus- tomer’s sole and exclusive recourse and remedy, and Bookbird’s sole, exclusive and entire liability, for breach of this Sec- tion 10(a) (Limited Noninfringement Warranty) shall be the exercise of Customer’s indemnity rights under Section 11 (IP Indemnity) below.
b. Content from other users, suppliers, advertisers, and other third parties may be made available to Customer through the Services. Because Bookbird does not control such content, Customer agrees that Bookbird is not responsible for any such content. Bookbird does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and Bookbird assumes no responsibility for unintended, objectionable, inaccurate, mis- leading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. The Services may contain links to websites not operated by Bookbird. Bookbird is not responsible for the content, products, materials, or practices (including privacy practices) of such websites. Customer understands that by using the Site and/or Services Customer may be exposed to third-party websites that Cus- tomer finds offensive, indecent or otherwise objectionable. Bookbird makes no warranty, representation, endorse- ment, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services. Bookbird provides these links for Customer’s convenience only and does not control such websites. Bookbird’s inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. The Services may contain links to websites that are operated by Bookbird but which operate under di- fferent terms. It is Customer’s responsibility to review the privacy policies and Terms of Service of any other website Customer visit. CUSTOMER AGREES THAT IN NO EVENT WILL BOOKBIRD BE LIABLE TO CUSTOMER IN CONNEC- TION WITH ANY WEBSITES, CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.
c. Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 10 (WARRANTIES AND DISCLAIMERS) THE SERVICES AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY BOOKBIRD TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. BOOKBIRD HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. BOOKBIRD DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
11. IP Indemnity.
Bookbird shall defend at its expense any suit brought against Customer and will pay any settlement Bookbird makes or approves or any damages finally awarded in such suit insofar as such suit is based on a claim by any third party alleging that Bookbird has violated Section 10(a) (Limited Noninfringement Warranty); provided that Bookbird is given prompt notice of the claim and sole control over the defence and any settlement thereof and Customer reasona- bly cooperates with Bookbird (at Bookbird’s expense) to facilitate the settlement or defence of any claim. Book- bird is not obligated under this section to the extent any claim arises from Customer’s breach of this Agreement or use of the Service in combination with any software, data, or technology not supplied by Bookbird (where there would be no claim, but for such combination). If any portion of the Service becomes, or in Bookbird’s opinion is likely to become, the subject of a claim of infringement, Bookbird may, at Bookbird’s option: (a) procure for Customer the right to continue using the Service; (b) replace the Service with non-infringing software or services which does not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate this Agreement and upon such termination, Customer will immediately cease all use of the Services. This Section 11 (IP Indemnity) states the sole and exclusive remedy of Customer and the entire liability of Bookbird for infringement claims and actions.
12. LIMITATION OF LIABILITIES.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
a. Amount. EXCEPT FOR INDEMNITIES EXPRESSLY PROVIDED BY THIS AGREEMENT, NEITHER PARTY IS LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT EXCEEDING FEES PAID IN RE- SPECT OF THE SERVICES AT ISSUE IN THE LAST THREE (3) MONTHS. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL BOOKBIRD’S SUP- PLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
b. Type. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY (I) SPECIAL, INDIRECT, INCI- DENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL, (III) BUSINESS INTER- RUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIA- BILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL BOOKBIRD BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
c. SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO CUSTOMER. TO THE EXTENT THAT BOOKBIRD MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
Notices sent to either Party shall be effective when delivered in person or by email, one (1)day after being sent by over- night courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by the other party’s serv- er. Notices must be in writing and, in the case of notices to:
a. Bookbird addressed to Customer Care at: (i) Bookbird Accounting Ltd, 96 St Georges Bay Road. Parnell, Auckland 1052, New Zealand; or (ii) firstname.lastname@example.org; and
b. (b) Customer, to the addresses or email address provided by Customer on Sign-up (as such address or email address may be updated by Customer from time to time in accordance with this Agreement). Bookbird may change its contact infor- mation by giving notice of such change to the Customer. Customer may change its contact information by using the currently available interfaces on Bookbird’s website. For contractual purposes, Customer (i) consents to receive communications from Bookbird in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that Bookbird provides to Customer electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Customer’s consent to receive Communi- cations and do business electronically, and Bookbird’s agreement to do so, applies to all of Customer’s interactions and trans- actions with Bookbird. The foregoing does not affect Customer’s non-waivable rights. If Customer withdraws such consent, from that time forward, Customer must stop using the Services. The withdrawal of Customer’s consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between Bookbird prior to the time Customer withdraw its consent.
a. On Notice. Either Party can terminate this Agreement at the end of the then current term of this Agreement by providing the other party with notice of termination prior to the last day of the then current term of this Agreement.
b. Generally. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party breaches any material provision thereof and fails within fifteen (15) days after receipt of notice of default to correct such ma- terial breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due dili- gence to completion. Either Party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in Bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days.
c. Survival. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both Parties (except for Customer’s payment of all sums then owing), including all licenses granted hereunder, shall immediately termi- nate except as provided below; (b) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth Section 9 (Confidential & Proprietary Information). The following Sections will survive expiration or termination of this Agreement for any reason: Section 4 (Reservation of Rights), Section 5(d) (Customer Data), Section 9 (Confidential & Proprietary Information), Sec- tion 10(b) (Warranty Disclaimer), Section 12 (Limitation of Liabilities), Section 14(c) (Survival), and Section 15 (General Provi- sions).
15. GENERAL PROVISIONS.
a. Assignment. Customer may not assign this Agreement or any of its rights or obligations hereunder to any third party without Bookbird’s prior written consent. Any assignment in violation of this section shall be void. The terms of this Agreement shall be binding upon permitted assignees.
b. Arbitration. All controversies, disputes, demands, counts, claims, or causes of action between Customer and Bookbird arising out of, under, or related to this Agreement or Bookbird’s privacy practices (including any action Bookbird takes or authorises with respect to information about or provided by Customer) shall be settled exclusively through binding arbitration.
1. The arbitration shall be conducted before one commercial arbitrator with substantial experience in re- solving commercial contract disputes. As modified by this Agreement, and unless agreed upon by the parties in writing, the arbitration will be governed by the rules proposed by the arbitrator.
2. Customer is thus GIVING UP ITS RIGHT TO GO TO COURT to assert or defend its rights under this contract EXCEPT for matters that may be taken to small claims court. Customer’s rights will be determined by a NEU- TRAL ARBITRATOR and NOT a judge or jury. Customer is entitled to a FAIR HEARING, BUT the arbitration proce- dures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as en- forceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
3. Customer and Bookbird must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by Customer and Bookbird, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both par- ties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY CUSTOMER OR BOOKBIRD MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUR- PORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that Customer is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Bookbird will pay as much of Customer’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) Bookbird also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honour claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either Customer or Bookbird shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/Bookbird customer; and (j) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses.
5. With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or col- lective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not con- tained herein. If, however, either subpart
(d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither Customer nor Bookbird shall be entitled to arbitration.
c. Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the substantive laws of New Zealand, without regard to conflicts of law principles. Except as specified in Sec- tion 15(b) (Arbitration), the Parties will initiate any lawsuits in Auckland, New Zealand and irrevocably consent to exclu- sive personal jurisdiction and venue therein. The U.N. Convention on Contracts for the International Sale of Goods and the Unfair Contracts Act in the United Kingdom shall not apply to this Agreement. Any claim against Bookbird must be brought within six months after it arose, or be barred.
d. Right to List As A Customer. Customer agrees that Bookbird may utilize Customer’s entity name in listings of cur- rent customers. Use of Customer’s name in any other marketing materials or press announcements will be sub- mitted to Customer in advance for approval, and such approval will not be unreasonably withheld.
e. Compliance with Export Regulations. Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Bookbird harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertain- ing to the importation, exportation, or use of the technology to be developed or provided herein. Customer shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.
f. European Union Residents. If Customer resides in the European Union (EU) or if any transfer of information between Customer and the Service is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Customer consents to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided by the Ser- vice.
g. Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumu- lative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
h. Force Majeure. Neither Party shall be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder shall not be excused by this provision.
i. Severable. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and e- ffect.
j. Waiver. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occa- sions.
k. Independent Contractors. Customer’s relationship to Bookbird is that of an independent contractor, and nei- ther Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Bookbird.
l. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same ex- tent and subject to the same conditions as other business documents and records originally generated and main- tained in printed form.
m. Amendments. Bookbird reserves the right to change this Agreement at any time and from time to time without no- tice by posting revisions to this Agreement (including the description of the Services) on Bookbird’s website. Continued use of the Services after Customer become aware of any such change shall constitute Customer’s consent to such changes. Customer is responsible for regularly reviewing the most current version of this Agreement which is available on Bookbird’s website.
n. English Language. It is the express wish of the parties that these Terms of Service and all related documents be drawn up in English.
WHAT IS PI?
PI includes your name, mailing address, phone number, e-mail address and demographic and other personally iden- tifiable information about you as an individual. If you are a user of our site, it will also include business information that you contribute which concerns business and personal relationships between yourself and other individuals and organi- sations (“Bookkeeping Data”). You may provide or upload PI in order to enable us to provide you with our services. We may also ask for certain PI when you request information about or order our products and services, participate in our marketing, sales or other promotional activities, or correspond with us. If you are in a part of our site that requires you to provide your PI, it will be clear what PI we are requesting.
WHY DO WE COLLECT YOUR INFORMATION?
We collect, use and disclose information that can identify you (“PI”) so that we can:
• establish your identity;
• provide to you the services offered by the Site and bill any amounts due from you;
• troubleshoot and resolve problems;
• improve the usability, performance and effectiveness of our Site and business;
• provide you with news, updates, and reminders related to our services;
• enforce our Terms of Service;
• protect you and us from error and fraud;
• understand your needs and eligibility for products and services;
• comply with legal and regulatory requirements;
• and as otherwise described to you at the time of collection.
WE ONLY COLLECT PI THAT WE CONSIDER NECESSARY FOR ACHIEVING THESE PURPOSES.
We may send you communications via email about our service. You can opt out of receiving communications from us by changing your notification settings on our website. Please note that even if you unsubscribe or opt-out, we may still send you urgent service related communications (e.g., if your credit card payment was declined). If you do not wish to receive them, you must delete your account with us.
WHO DO WE SHARE YOUR PI WITH?
We retain the right to manage our operations, including using service providers of our own choosing, to facilitate the development, hosting and ongoing support of our services to meet our business goals. For example, we may use the ser- vices of third-party companies to host our services and these services may or may not be located in the same jurisdic- tions or regions as the customers using our services. Our employees, consultants, contractors, suppliers and partners, if authorised, may have access to our customer information or the systems storing it as part of and solely for the purposes of performing their jobs, or within the scope of their agreements with us. In all cases, we use reasonable efforts to en- sure that your PI, as part of our confidential business information, is protected under contracts with such persons.
While we take care to use only service providers that we believe are reputable and able to live up to our and your expec- tations, including about the handling of confidential information, Bookbird is not liable for unlawful or unauthorised use of PI by any of such persons unless such unlawful use was a direct result of our gross negligence or wilful misconduct.
We will also share your PI if we are required by law (including any generally applicable law or any specific court order or other legal process binding on us) or if we otherwise determine in good faith that such disclosure is necessary to resolve disputes and/or protect or defend the rights or property of Bookbird and other users. We will use reasonable efforts to make you aware of such disclosure promptly unless we are prevented from doing so.
YOUR USE OF THE PI OF OTHERS
If you choose to provide PI of any third party, we will assume that you have the third party’s permission to provide us that information. Examples include Site referrals to friends. This information will not be used for any purposes other than those described above. You agree
The site may contain links to other websites that are not owned or controlled by us. We have no control over, do not review and are not responsible for the privacy policies of or content displayed on such other websites. When you click on
such a link, you will leave our service and go to another site. During this process, another entity may collect PI from you, and we do not collect information from you that you submit on such third party sites.
WHAT IS OUR SECURITY POLICY?
We use commercially reasonable efforts to ensure that PI is secure, including https protocol and encryption. In order to pre- vent unauthorised access or disclosure, we put in place suitable physical, electronic and managerial procedures to safe- guard and secure the information we collect, as well as the modes of access to it. While we strive to protect your PI, we
HOW CAN YOU ACCESS, CORRECT AND UPDATE YOUR PI?
Much of your PI is available to you through your account. To review and update your PI to ensure it is accurate, you may login into your account to make the changes, or you may contact us. If we are unable to provide access or disclose infor- mation to you, we will explain why, subject to any legal or regulatory restrictions.
HOW CAN YOU DELETE YOUR ACCOUNT?
All PI linked to your account will be deleted at your request as soon as reasonably possible in accordance with the law. When you make a request to delete your account, your data will be deleted from our production servers, and you will no longer be able to access your account. However, we may retain your PI to comply with laws, prevent fraud, resolve dis- putes, troubleshoot problems, assist with any investigations, enforce our terms of
service, and take other actions otherwise permitted by law.
Please remember, however, if we have already disclosed some of your PI to third parties, such as your accountant, we cannot access that PI any longer and cannot force the deletion or modification of any such information by the parties to whom we have made those disclosures.
Aggregated or anonymous data derived from your PI, which cannot be traced back to your account, may remain on our production servers indefinitely. We reserve the right to use any aggregated or anonymous data derived from or incorpo- rating your PI.
HOW WILL YOU LEARN OF UPDATES TO OUR PRIVACY RULES?
Our service is not directed to children and children are not eligible to use it. Protecting the privacy of children is very im- portant to us. We do not collect or maintain PI from people we actually know are under 13 years of age, and no part of our service is designed to attract people under 13 years of age. If we later learn that a user is under 13 years of age, we will take steps to remove that user's PI from our databases and to prevent the user from utilising the service.
WHO SHOULD YOU CONTACT WITH COMMENTS AND QUESTIONS?