Acturent Terms and Conditions
By using Acturent, a service of Bia Creations, LLC (“Bia Creations”), you are agreeing to be bound by the following terms and conditions (“Terms of Service”).
SOFTWARE LICENSE AND HOSTING AGREEMENT
- Title. The ACTURENT software and its source code and related documentation, including without limitation, trademarks, copyrights, trade secrets, confidential information and any other intellectual property related to the software, its source code and related documentation (collectively referred to as “Software”) shall remain, at all times, the sole and exclusive property of Bia Creations, and no ownership rights are transferred to you except for the licensed rights and privileges set forth below.
- Grant of License. Subject to the terms and conditions of this Agreement, and by clicking the “I AGREE” checkbox at sign up, and further upon payment of the fees set forth below, Bia Creations grants to you a non-exclusive, non-transferable License to use the Software through the access specified herein and solely for the purpose of managing your properties. The Software shall not be used for any other purposes not expressly authorized herein.
- Restrictions on License. You shall not engage in, nor cause or permit others to engage in, the reverse engineering, disassembly, decompilation or similar manipulation of the Software. You shall not remove from the Software, and you shall not alter, any trademarks, trade names, logos, copyright notices, or other notices or markings, nor add any other notices or markings to the Software without the prior express written consent of Bia Creations. You shall not, and you shall not allow others to, reproduce the software, make copies of the software, nor distribute the software to any other person or entity.
- Access and Services. The Software will not be installed on your hardware but, instead, will be housed on Bia Creations’s hardware. You may access the Software at https://acturent.com; however, access will only be allowed if you have clicked the “I AGREE” checkbox at sign up and have paid the required fees as set forth below.
Description of Hosting Services. Bia Creations
will host your private website on the World Wide Web and provide the following server
- Daily backups with up to 14-day retention
- Standard Monitoring of web sites includes:
- Site availability
- Overall CPU Utilization
- Disk Free MB Remaining
- Overall Physical Memory Utilization
- Any critical error reported by Manager
- Virus protection on all servers
As part of its services, Bia Creations or its agent or subcontractor shall have the right to suspend the operation of your website or temporarily disable your website (hereafter collectively referred to as “Downtime”) for maintenance purposes. From time to time you also may be unable to access the Software due to maintenance and updating requirements. Bia Creations and its agents and subcontractors shall not be liable to you for any damages, costs or inconvenience caused by such Downtime and/or Software updating/maintenance.
Prohibited Practices. Bia Creations
prohibits the following website practices and you represent and warrant that you
will not engage in any of these prohibited practices:
- The display of materials not suitable for audiences of all ages. This includes, without limitation, the display of adult-oriented advertising, the direct hyperlinking to pornographic sites or images, the display of body parts that may not be legally revealed in public in the State of Wisconsin, and the display of acts that may not legally be performed in public in the State of Wisconsin;
- Unlawful activities such as the unauthorized distribution or copying of copyrighted photos, materials or software, violation of trademark or other intellectual property rights of others, violation of U.S. export restrictions, fraud, misrepresentation, the solicitation of illegal gambling or prostitution, or other practices which may be considered obscene, offensive and/or illegal;
- PageJacking, which includes stealing the look and feel of a third party website that you do not own with the intention of defrauding consumers into believing that your website is officially associated with that third party website;
- Net mail abuse, including message delivery considered to be spamming, mailbombing (sending numerous and very similar messages to the same e-mail addresses), trolling (generating outrageous messages with the purpose of generating greater response), subscribing others to a mailing list without permission, posting off-topic messages to news groups or discussion groups to generate web traffic, distribution of bulk e-mail software, or any other net mail practices Bia Creations considers to be unlawful or harassment;
- The posting of defamatory, scandalous, inflammatory, offensive, personally identifiable or private information about a person or group without the person’s or group’s consent, or negligently or intentionally inflicting emotional distress;
- The posting of materials intended to harm another person or group, such as racist hate sites, and/or the posting of materials detailing methods of harming persons or property, such as bomb-making instructions;
- Misuse of system resources, including but not limited to, knowingly employing programs which consume excessive Bia Creations time or storage space;
- The linking of graphics or data files from an html/ASP page not maintained by Bia Creations, the storage of unapproved data files, or the storage of misidentified files; and
- The display of any content, products, services or other information that, in Bia Creations’s reasonable determination, may be illegal under applicable law, statute, ordinance or regulation, may infringe or violate the proprietary rights of others, or is otherwise inappropriate.
Pursuant to Section 16(B) of this Agreement, if Bia Creations determines, in its sole discretion, that you have participated or are currently participating in any of these prohibited practices, Bia Creations may, at any time in its sole discretion, terminate this Agreement effective immediately and/or refuse to host or discontinue hosting your website. Bia Creations also reserves the right, at any time and in its sole discretion, to refuse to host or discontinue hosting your website which it believes: (1) has substantially changed from the time it was initially accepted; (2) has become the subject of consumer complaints; (3) has become the subject of a government complaint or investigation; or (4) has violated or is alleged to have violated any local, state or federal law or regulation.
- Placement of Cookies. This Site will place a 'cookie' (a unique code that identifies your computer to our site) on your computer when you visit this Site. This cookie will be used only to route you to the appropriate local language site on future visits and does not include any personal or individually identifiable information; however, the cookie may contain your user name and password.
- Property Information. You shall be responsible for the content and accuracy of all property information entered into your website, all materials used or displayed at the website, and all acts or omissions that occur in connection with your website or in connection with your account or password.
- Forms. All forms supplied by the Software are provided as samples. You shall be solely responsible for any and all damages, costs or liabilities you incur in connection with your use of forms, the Software, and/or your own software, systems, or hardware.
- Public Announcements. Any press releases and other public announcements related to this Agreement and subsequent transactions between you and Bia Creations, including the method and timing of such announcements, must be approved in advance and in writing by Bia Creations. Bia Creations reserves the right to withhold approval of any public announcement in its sole discretion.
- Power and Authority. You represent and warrant that you have full power and authority under all relevant laws and regulations to manage the properties identified on your website.
- Proprietary Rights. You grant to Bia Creations, its agents, successors and assigns (for purposes of this Section 9, collectively “Bia Creations”), during the Term of this Agreement, a non-exclusive, worldwide, royalty-free, non-revocable license under your copyrights, trademarks and other intellectual property/proprietary rights, if any, in all material and content displayed in your website in order for Bia Creations to maintain such content on Bia Creations’s servers during the term of this Agreement. You shall not attempt to gain unauthorized access to any servers controlled by Bia Creations.
- Information. Bia Creations maintains information about you and your website on Bia Creations’s servers including, without limitation, your account registration information, credit card number and information and other data (the “Information”). You agree that Bia Creations may use the Information as set forth below.
- Credit Card Information. You hereby authorize Bia Creations to store, use and disclose your credit card number and Information as may be necessary to process your payments for fees and services under this Agreement.
- Disclosure of Information. You also authorize Bia Creations to disclose any and all of your Information if Bia Creations believes, in good faith, that such action is reasonably necessary: (1) to comply with the law; (2) to comply with legal process; (3) to enforce this Agreement; (4) to respond to claims that you or your website is engaged in activities that violate the rights of third parties; or (5) to protect the rights or interests of Bia Creations, Bia Creations websites or others; provided, however, that nothing in this section shall impose a duty on Bia Creations to make any such disclosures.
- Password. You will create a login password in order to access the Software and/or your website. You are entirely responsible for any and all activities that occur under your account and password. You shall keep your password confidential, shall not allow any other person or company to use your password, and shall promptly notify Bia Creations if you have any reason to believe that the security of your password has been compromised. You may create separate passwords or separate logins for other permitted users of your website in your sole discretion and determination.
- Technical Access. You acknowledge and agree that technical processing of Information is and may be required: (a) for the server requirements to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the server; (d) to conform to other, similar technical requirements. You also acknowledge and agree that Bia Creations may access your account and its contents as necessary to identify or resolve technical problems or respond to server complaints.
- Fees and Payments. You will be charged a non-refundable License Fee each month to use the Software, which License Fee shall be based on the usage package you select. Taxes and other governmental charges or fees are your responsibility and will be added and billed to your account. The monthly License Fee will provide you with continued access to the Software so that you may make changes to your website. The License Fee will be billed to your credit card upon your access to the Software and monthly thereafter until you terminate this Agreement as set forth below. Failure to pay the License Fee will result in your inability to access the Software and will result in the immediate termination of this Agreement and removal of your website from Bia Creations’s servers as set forth in Section 16. License Fees are subject to change upon 30 days notice from Bia Creations. Such notice may be provided at any time by posting the changes to the Acturent Site (https://acturent.com) or the Service itself.
- Disclaimer of Warranty. THE SOFTWARE, HOSTING SERVICES AND OTHER OBLIGATIONS AND DUTIES OF BIA CREATIONS, UNDER THIS AGREEMENT, ARE BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE HOSTING SERVICES, ACCESS TO THE SOFTWARE OR ANY OTHER OBLIGATIONS OR DUTIES OF BIA CREATIONS WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE.
Limitation of Liability.
- Uses With Other Software. You acknowledge that Bia Creations shall have no obligation to ensure that the Software operates in conjunction with your other software systems or hardware. You shall be solely responsible for any and all damages, costs or liabilities you incur in connection with your use of the Software, and/or your own software, systems, or hardware.
- Limitation of Liability. Notwithstanding anything to the contrary contained in this Agreement: (a) Bia Creations' aggregate liability in connection with this Agreement, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), shall not exceed the aggregate fees paid by you to Bia Creations under this Agreement; (b) Bia Creations shall not be liable for any indirect, punitive, exemplary, economic, consequential or incidental damages of any kind (including, without limitation, loss of profits or goodwill), even if Bia Creations has been advised of the possibility of such damages; (c) Bia Creations shall not be liable for any downtime, lost data, interruption of business, exposure to hacking and/or viruses, or damage to software and/or hardware that you may experience as a result of this Agreement, the hosting services, or your use, or attempted use, of the Software; and (d) Bia Creations shall not be liable for any claims of third parties relating to the Software, the hosting services or your website.
- Indemnification. You shall not hold Bia Creations responsible for, and shall defend, indemnify and hold Bia Creations, its agents, subcontractors, successors and assigns harmless from and against, any claim, demand, damage, loss, liability or expense, including reasonable attorneys’ fees, relating to or arising out of your website (including the contents thereof), your use of the Software, the information entered into your website, your acts or omissions, any alleged violation of this Agreement, or any alleged violation of any rights of another.
- Term of Agreement. This Agreement shall commence upon your acceptance (by clicking I Agree) and your payment of the fees required hereunder, and shall continue until terminated in accordance with Section 16, below.
- Termination for Breach. Either party may terminate this Agreement at any time upon seven (7) days’ written notice if the other party has breached or is otherwise not in compliance with any provision of this Agreement (except the provisions of Sections 6 and 11, breach of which shall be governed by Section 16(B), below), and such breach or noncompliance is not cured within such seven (7) day period. Bia Creations reserves the right to immediately suspend your access to the Software and/or your website until such breach or noncompliance is cured. Bia Creations shall have the right, but not the obligation, to review your website at any time for compliance with this Agreement.
- Termination for Illegal or Other Activity. Notwithstanding the foregoing, Bia Creations may, but has no duty to, immediately terminate this Agreement and remove your website from Bia Creations’ servers if you have failed to pay any fees required under Section 11 or if Bia Creations, in its sole discretion, concludes that you are engaged in illegal or prohibited activities, the sale of illegal or harmful goods or services, activities or sales that may damage the rights of Bia Creations or others, and/or any activity prohibited under Section 6 of this Agreement. Any termination under this Section 16(B) shall take effect immediately and you shall have no opportunity to cure.
- Termination for Convenience. Notwithstanding any other provision herein, you may terminate this Agreement at any time for any or no reason by entering the View Account link in the global navigation menu at the left of your screen. Bia Creations may terminate this Agreement at any time for any or no reason upon ten (10) days written notice to you. Termination shall be effective at the end of the ten (10) day period.
- Waiver. You expressly waive any statutory or other legal protection in conflict with the provisions of this Section 16.
- Deletion of Information. Immediately upon termination, Bia Creations reserves the right to delete from its servers any and all information contained in your account including, without limitation, your website and property information.
- No Liability. Bia Creations shall not be liable to you for any claim of damages relating to a termination under this Section 16 and you shall have no claims against Bia Creations relating to termination. Further, upon termination for any reason, you shall not be entitled to and Bia Creations shall not provide a refund of any fees or payment made by you.
- Equitable Remedies. You acknowledge that your breach of any of the restrictions placed upon you in this Agreement will result in irreparable harm to Bia Creations and, accordingly Bia Creations, may enforce its rights and this Agreement by equitable remedies, including, without limitation, injunctive relief and/or specific performance, in addition to, or as an alternative to, remedies available to Bia Creations at law. You will be responsible for paying any and all expenses, including reasonable attorneys’ fees, incurred by Bia Creations to enforce this Agreement.
- Subcontracting and Assignments. You may not assign this Agreement to any other party without the express written authorization of Bia Creations. Bia Creations may assign all or any part of this Agreement and/or subcontract all or any part of its services, duties and/or obligations under this Agreement to any other party without your consent and without notice to you. This Agreement is binding on the parties hereto and their respective heirs, successors, agents, subcontractors and permitted assigns.
- Severability. Should any part, term, or provision of this Agreement be declared or determined by any court to be illegal, unreasonable, or invalid, the validity of the remaining parts, terms, or provisions shall not be affected thereby, and said illegal, unreasonable, or invalid part, term, or provision shall not be deemed to be a part of this Agreement.
- Governing Law. This Agreement shall be governed by the laws of the State of Wisconsin without regard to its conflict of laws rules.
- Jurisdiction and Venue. Any and all claims, questions or disputes regarding the interpretation, performance and enforceability of this Agreement, the rights and remedies of the parties hereunder, and all related actions or counterclaims shall be initiated and prosecuted exclusively in Brown County Circuit Court, Green Bay, Wisconsin, or the United States District Court for the Eastern District of Wisconsin in Green Bay, Wisconsin, as may be applicable. You further agree to submit to the jurisdiction of said Courts.
- Force Majeure. Neither party shall be liable to the other for any delay or failure in performance under this Agreement (except for payment obligations) resulting directly or indirectly from acts of nature, acts of God, war, riots, terrorist acts or causes beyond its reasonable control.
- Non-Waiver. Bia Creations’s failure to exercise any right or enforce any provision of this Agreement shall not constitute a waiver of such right or ability to enforce such provision relating to your past or future acts or omissions.
- Authority To Bind. You agree that you are authorized to bind your principal or employer, and have the legal capacity to enter into this binding Agreement.
- Survival. Any rights or obligations under this Agreement which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation or expiration of this Agreement, including but not limited to Sections 1, 8, 10, 11, 12, 13, 14, 16 (F), 17, 20 and 21.
Any written notice to
Bia Creations required under this Agreement shall be effective on the date e-mailed or
sent by first class mail, postage prepaid as follows:
Bia Creations, LLC
2717 S. Delaware
Milwaukee, WI 53207
- Bia Creations, LLC
- Revision of Legal Notices, Terms and Conditions. Bia Creations reserves the right to revise the legal notices, terms and conditions for using this Site without prior notice, by updating the content of this Site. Please periodically visit this page (https://acturent.com/Terms) to check the latest usage provisions for this Site. Your continuing use of the Software shall be deemed acceptance of the modified terms and conditions.
- Complete Agreement. This Agreement constitutes the complete agreement between you and Bia Creations, and supercedes any prior statements, representations or agreements, either oral or written, made between us.