TERMS AND CONDITIONS
This agreement ("Agreement") (including the General and Specific Terms set forth below) contains all of the terms and conditions between bellshare GmbH ("we," "us," "our" or "bellshare") and you and governs the use of the services offered at the bellshare web site (the "Services"). You are deemed to have accepted this Agreement upon the earlier of: (a) your accepting the Terms of Service electronically during registration; (b) your use of the Service; (c) your clicking on "I agree to the Terms and Conditions" at the bottom of the signup page. If you do not agree to any of the terms set forth herein, you may not use the Service.
Use of Services is limited to Customer, Customer's employees, and Customer's consultants performing work for Customer (collectively, "End Users"). Customer shall promptly notify bellshare of any errors, "bugs," or problems with the Services of which Customer becomes aware. Notwithstanding any term of this Agreement, bellshare shall not be liable to Customer for any claim arising from or based upon the combination, operation or use of the Services with equipment, data or programming not supplied or certified by bellshare, or arising from any alteration or modification of the Equipment. For Tariffed Services, bellshare must be provided notice of any Service interruption as further set forth in the Limitation of Liability Section and as provided in applicable tariffs.
bellshare retains the right to Change, increase or decrease from time to time, in its sole discretion and without liability to Customer, the methods, processes and/or the suppliers by which bellshare provides Services to Customer; as well as to change, add to or delete service offerings with appropriate notice to Customers.
BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND FULLY ITS TERMS AND CONDITIONS.
All services are provided on a prepaid basis pursuant to the terms and conditions of the applicable tariff(s) if any, and this Agreement.
2. USE OF SERVICE
2.1 You will not use the Service for any purpose that is unlawful, abusive, intrusive on another's privacy, harassing, libelous, defamatory, threatening or hateful, or in any other way that would violate any applicable governmental law.
2.2 You may not offer the Service for sale or transfer to another person or entity. .
3. FEES FOR UNAUTHORIZED USE
Unauthorized use as described in Section 2 typically results in usage patterns which are easily recognized by automated reporting systems. bellshare uses such systems to identify prohibited use of the Service. bellshare reserves the right to take any and all actions it may deem appropriate with respect to such unauthorized use, including without limitation taking action to recover the costs and expenses of identifying offenders and removing them from using the Service, and levying cancellation and toll charges for the unauthorized use. bellshare reserves at all times all rights and remedies available to it with respect to such activities at law or equity.
4. DISCLAIMER OF WARRANTIES
bellshare MAKES NO REPRESENTATION OR WARRANTY WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, SYSTEM EQUIPMENT OR bellshare OWNED OR PROViDED EQUIPMENT USED BY THE CUSTOMER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR EQUIPMENT FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS. bellshare SPECIFICALLY DISCLAIMS ANY RESPONSEBILITY, AND MAKES NO WARRANTY, FOR THE SUBSTANCE, ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH ITS NETWORK, AN ACCOUNT, OR THAT THE SERVICE WILL BE ERROR-FREE, WHETHER OR NOT SUCH SERVICE IS USED BY CUSTOMER OR AN END USER. IN ADDITION, bellshare MAKES NO WARRANTY WITH RESPECT TO ANY SOFTWARE OR HARDWARE PRODUCTS ("PRODUCTS") USED OR PROVIDED BY bellshare IN CONNECTION WITH AN ACCOUNT. ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY CLAIMS, WHETHER ACTUAL OR ALLEGED, ARE THE DIRECT RESPONSEBILITY OF THAT PRODUCT'S MANUFACTURER. bellshare ASSUMES NO RESPONSEBILITY FOR ANY ACTIONS OR LIABILITIES ARISING FROM THE POSSESSION OR USE OF THE PRODUCTS.
5. LIMITATION OF LIABILITY
WITH RESPECT TO CLAIMS OR SUITS BY CUSTOMERS, OR ANY OTHERS, FOR DAMAGES RELATING TO OR ARISING OUT OF ACTS OR OMISSIONS UNDER THIS AGREEMENT, bellshare's LIABILITY FOR SERVICE INTERRUPTIONS, IF ANY, SHALL BE LIMITED TO CREDIT ALLOWANCES AS EXPRESSLY PROVIDED IN APPLICABLE TARIFFS, UNLESS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT. WITH RESPECT TO INTERNET SERVICES, CUSTOMER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS WHICH ARE SEPARATELY OWNED AND THEREFORE ARE NOT SUBJECT TO THE CONTROL OF bellshare. MALFUNCTION OF, OR CESSATION OF INTERNET SERVICES BY, ISPs OR OF ANY OF THE NETWORKS, WHICH FORM THE INTERNET, MAY MAKE RESOURCES CUSTOMER WISHES TO USE TEMPORARILY OR PERMANENTLY UNAVAILABLE. CUSTOMER AGREES THAT bellshare SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF INTERNET SERVICES BY, NETWORK (S) OR ISPs NOT SUBJECT TO CONTROL OF bellshare, OR DUE TO ANY ACCIDENT OR ABUSE BY CUSTOMER. bellshare IS NOT LIABLE FOR ANY BREACH OF SECURITY ON THE CUSTOMER'S NETWORK.
bellshare SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES RESULTING FROM: (A) THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATION OR USE OF AN ACCOUNT, THE EQUIPMENT, OR SERVICE; (B) ANY ACT OR OMISSION OF CUSTOMER, OR ITS END-USERS OR AGENTS, OR ANY OTHER ENTITY FURNISHING EQUIPMENT, PRODUCTS OR SERVICES TO CUSTOMER; OR (C) ANY PERSONAL OR PROPERTY DAMAGES DUE TO THE LOSS OF STORED, TRANSMITTED OR RECORDED DATA RESULTING FROM THE SERVICE OR THE EQUIPMENT, EVEN IF bellshare HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL bellshare's LIABILITY FOR DIRECT DAMAGES BE GREATER THAN THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO bellshare DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED, BUT IN NO EVENT TO EXCEED $1,000.
IN NO EVENT SHALL bellshare BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE LOSS OF DATA, GOODWILL OR PROFITS, SAVINGS OR REVENUE, HARM TO BUSINESS, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY CAUSE WHATSOEVER, OR ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH LIABILITY.
Customer agrees to indemnify, defend and hold bellshare and its officers, directors, employees, agents, affiliates and suppliers harmless from and against any claims, actions, demands, losses, damages and expenses including attorney's fees, relating to any violation of this Agreement, including but not limited to a breach or failure of any representation or warranty contained in this Agreement by Customer, its End Users, or other users of its account, the placement or transmission of any message, information, software or other materials on the Internet by Customer or End Users of Customer's account, or Customer's traffic being processed through the bellshare switch, port or node. This indemnification shall survive the termination of the Agreement.
7. REGULATORY AND LEGAL COMPLIANCE
The parties acknowledge that the respective rights and obligations of each Party as set forth in this Agreement are based on existing law and the regulatory environment as it exists on the date of execution of this Agreement. Customer and bellshare agree that in the event of any effective decision by a legislative body, regulatory or judicial order, rule, regulation, arbitration or dispute resolution or other legal or regulatory action materially affecting the provisions of this Agreement at the federal, state or local level either Party may, by providing written notice to the other Party, require that the affected provisions of this Agreement be renegotiated in good faith. This Agreement shall be amended accordingly to reflect the pricing, terms and conditions of such Amendment.
8. FUTURE CHANGES TO THIS AGREEMENT
bellshare may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on www.bellshare.com. Such changes will become binding on you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when posted supersedes all previously agreed to electronic and written terms of service, including, without limitation, any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including, without limitation, any written terms enclosed within the packaging of the Device.
Nothing in this Agreement shall be construed as making either party the partner, joint venture, agent, legal representative, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. This Agreement shall be interpreted in accordance with the laws of Hamburg, Germany (excluding any rules governing choice of laws) and any legal proceeding arising out this Agreement will occur in Hamburg, Germany. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. This Agreement (and the policies referenced herein and incorporated by reference) constitutes the entire agreement between bellshare and any user with respect to the subject matter hereof, and users have not relied upon any promises or representations by bellshare with respect to the subject matter except as set forth herein.
Last Updated: May 16, 2009. Copyright 2009