Terms of Service - EQHarvest Platform


A.  User’s Acknowledgment and Acceptance of Terms

BealsCunningham (“BC”) provides you (“You” or “Client”) the integration and use of the EQHarvest website platform (the “Service”) subject to your compliance with all the terms, conditions, and notices contained or referenced herein (“Terms of Use”). Additionally, You and Your users shall be subject to any posted guidelines or rules applicable to the Services. All such guidelines or rules are hereby incorporated by reference into these Terms of Use. BY USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT WISH TO BE BOUND BY THE THESE TERMS OF USE, YOU MUST IMMEDIATELY DISCONTINUE YOUR USE OF THE SERVICE.

YOUR EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE, OR ANY PRODUCTS, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THE SERVICE, IS TO STOP USING THE SERVICE. YOUR AGREEMENT WITH US REGARDING COMPLIANCE WITH THESE TERMS OF USE BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THIS SITE.

BC reserves the right to change these Terms of Use from time to time without notice to You. You acknowledge and agree that it is Your responsibility to review this site and these Terms of Use periodically and to be aware of any modifications. Your continued use of this site after such modifications will constitute Your acknowledgement of the modified Terms of Use and agreement to abide and be bound by the modified Terms of Use.

B.  Description of the Service

The Service includes the integration and use of the EQHarvest platform into Your website (“the Website”) while hosted by BC on its servers. The Service also includes routine maintenance by BC to support your integration and use of the EQHarvest platform. We reserve the sole right to either modify or discontinue the Service, including any features therein, at any time with or without notice to You. We shall not be liable to You or any third party should we exercise such rights. Modifications may include, but are not limited to, changes in the pricing structure, the addition of fee-based services, or changes to limitations on allowable file sizes. Any new features that augment or enhance the then-current services on this site shall also be subject to these Terms of Use

You understand and agree that temporary interruptions of the Service may occur as normal events. You further understand and agree that we have no control over third party networks, or carriers, and therefore delays or disruptions of network connectivity or transmissions are beyond our control. 

You understand and agree that the Service is provided “AS IS” and that we assume no responsibility for the timeliness, deletion, failure to delivery or failure to store any user communications or personalization settings.

Either party may terminate the Service by providing notice to the other party. Upon termination of the Service, any amounts owed to BC will be immediately due. You agree to pay BC any amounts outstanding for the Service. Except as a result of Your breach of these Terms and Conditions, if BC terminates the Service BC will provide you with a pro-rated refund of any amounts prepaid but unused by You. BC reserves the right to increase the amount charged to You for the Service with thirty days’ notice.

C.  BC Warranties

BC represents and warrants that the Service shall perform in material accordance with the Specifications. BC further warrants to Client that, to the best of BC’s knowledge, the BC Materials do not and will not infringe, or be misappropriations of, the property rights of third parties, provided, however, that BC shall not be deemed to have breached such warranty to the extent that Client or its agent(s) have modified the Website in any manner without the approval of BC, if the Website incorporates unauthorized third-party materials, through framing or otherwise, or to the extent the inclusion of Client Content or other specifications of Client cause such infringement.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN TERMS OF USE OR OTHERWISE PROHIBITED BY LAW, BC EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. BC DOES NOT WARRANT THAT THE WEBSITE, SERVICES OR USE THEREOF WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES BC MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE WEBSITE OR THE SERVICES, OR THE TIMELINESS, SEQUENCE, ACCURACY, ADEQUACY OR COMPLETENESS OF THE WEBSITE OR THE SERVICES EXCEPT TO THE EXTENT THAT THESE MATTERS ARE ADDRESSED BY THE CONTENTS OF THIS TERMS OF USE.

D.  Client Representatives, Warranties and Responsibilities

You represent and warrant that Your use of the Service and the Website will not violate any international, federal, state, or local law or regulation relating to individual privacy. Client will not use the Service for purposes of (i) distributing any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive or otherwise objectionable information of any kind, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or foreign law; (ii) any chain letters, pyramid schemes, or other similar deceptive, misleading and/or fraudulent content; (iii) any unsolicited commercial communication; (iv) any emails with deceptive, misleading or false subject lines or header information that makes it difficult to identify the initiator of the email; or (v) any information containing a virus, Trojan horse, worm, or other harmful component. You represent and warrant that Your use of the Service and the Website will fully comply with any banking, data security, privacy and other laws, and you agree to fully indemnify, defend and hold BC harmless against any claims arising from your breach of Your representations and warranties contained herein.

E.  Client Content

You agree and acknowledge that BC will not control, monitor, store, or take responsibility for Client Content, which may include information provided to You by your customers and other visitors to the Website. Client shall provide BC access to and permission to use all Client Content and any other information, materials, internal resources, databases, facilities and personnel as reasonably necessary and proper for BC to complete and provide the Service. As between Client and BC, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto. Nothing in the Terms of Use shall be construed to grant BC any ownership right in the Client Content. Client understands and agrees that it is solely responsible for obtaining the necessary licenses, rights and permissions to use the Client Content in conjunction with the Website. Client hereby grants to BC a non-exclusive, worldwide, royalty-free license to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Content, Client Data and the Website as necessary to render the Services to Client under the Terms of Use.

F.  BC Rights

As between Client and BC, Client agrees that the Website, the EQHarvest and all other software, data, services and products owned, developed, or provided by BC shall be the sole and exclusive property of BC. BC shall be deemed the sole author and owner of all BC Materials. Nothing in the Terms of use shall be construed to grant Client any ownership right in, or license to, the BC Materials.

G.  Platform Monitoring and Security

BC will continuously use updated security software, technology, methods, and measures to ensure that the EQHarvest platform is free of any virus, bug, worm, hacking, tampering, unauthorized intervention, misuse, or criminal activity that would adversely affect the proper operation of the EQHarvest platform.

H.  Privacy and Confidentiality

You consent to BC’s Privacy Notice, which explains how BC collects, uses and protects the personal information provided to us. Each party agrees that during the course of the Service, Confidential Information may be disclosed to the other party. Confidential Information shall not include information that the receiving party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party, (b) was known to the receiving party as of the time of its disclosure, (c) is independently developed by the receiving party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in the Terms of Use, each party shall not make any disclosure of the Confidential Information of the providing party to anyone other than its employees or service providers who have a need to know in connection with the Terms of Use. Each party shall notify its employees and service providers of their confidentiality obligations with respect to the Confidential Information of the providing party and shall require its employees and service providers to comply with these obligations. The confidentiality obligations of each party and its employees and service providers shall survive the expiration or termination of the Terms of Use. A party may disclose Confidential Information of the providing party as required by law or in compliance with any court or administrative order; provided that such party gives the providing party reasonable notice as permitted by law that such Confidential Information is being sought by a third party in order to afford the providing party the opportunity to limit or prevent such disclosure.

I.  Indemnification

Client agrees to indemnify, defend, and hold harmless BC, its respective directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (a) if true, would constitute a breach of any of Client’s representations, warranties, or agreements hereunder; (b) arises out of the willful misconduct of Client; or (c) any of the Client Content or other material provided by Client on the Website infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses. In claiming any indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing paragraphs. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party's written consent, which shall not be unreasonably withheld.

J.  Limitation of Liability

UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, BC SHALL HAVE NO LIABILITY WITH RESPECT TO BC’S OBLIGATIONS UNDER THE TERMS OF USE OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF BC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF BC TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO BC BY CLIENT FOR THE SERVICE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THIS LIMITATION OF LIABILITY AND THE WAIVER OF CONSEQUENTIAL DAMAGES WILL SURVIVE AND APPLY EVEN IF THE EXCLUSIVE REMEDY PROVISIONS FAIL THEIR ESSENTIAL PURPOSE. YOU AGREE AND ACKNOWLEDGE THAT THE CHARGES FOR THE SERVICE ARE BASED ON THE ALLOCATION OF RISK SET FORTH IN THESE TERMS AND CONDITIONS AND THAT THE COST FOR THE SERVICE WOULD BE SIGNIFICANTLY HIGHER IF BC WAS FORCED TO ASSUME GREATER RISK UNDER THESE TERMS AND CONDITIONS.

K.  Third Party Sites and Information

This site may link you to other sites on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These sites may contain information or material that some people may find inappropriate or offensive. These other sites and parties are not under our control, and you acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the site or party by us, or any warranty of any kind, either express or implied. AS SUCH, BC MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Likewise, Client agrees to be bound by any additional terms provided by third parties

L.  MISCELLANEOUS

In the event of any change in applicable law governing the operation of the Website (including, without limitation, changes to an applicable privacy law) (a “Change in Law”), BC reserves the right to amend its policies, notifications and procedures to the extent affected and required by such Change in Law. Additionally, if such Change in Law dictates a change in the functionality or operation of the Website or the EQHarvest platform, then the Parties shall mutually agree to modify the Service and mutually agree to any reasonably necessary and proper additional fees relating thereto. If the Service is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes and the payment of fees may be affected by the same whereby fee payments are suspended, adjusted, or both by reason of force majeure. The Terms of Use shall be governed in all respects by the laws of the State of Oklahoma without regard to its conflict of laws provisions, and Client and BC agree that the sole venue and jurisdiction for disputes arising from the Terms of Use shall be the appropriate state or federal court located in Oklahoma County, and Client and BC hereby submit to the jurisdiction of such courts.

BC and its personnel, in performance of the Service provided to Client, are acting as independent contractors and not employees or agents of Client.

Any notice provided pursuant to the Terms of Use, if specified to be in writing, shall be in writing and shall be deemed given (a) if by hand delivery, upon receipt thereof, (b) if by mail, three (3) days after deposit in the United States mail, postage prepaid, certified mail, return receipt requested, (c) if by facsimile or electronic mail, upon electronic confirmation thereof, or (d) if by next day receipted delivery service, upon such delivery.

The waiver of failure of either Client or BC to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. This Terms of Use, and any documents referenced herein and herby expressly incorporated by this reference constitute the entire agreement between Client and BC with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Terms of Use.

If any provision of the Terms of Use is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Terms of Use shall remain enforceable.

The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof. All provisions of the Terms of Use relating to Client and BC warranties, confidentiality, non-disclosure, ownership, use, and transfer of intellectual property.