TERMS OF USE
for All Digital Product Downloads
Welcome to the BNi download, owned by BNI Publications, Inc. (“BNi”, “we”, or “us”). We are providing this download (including linked/connected downloads, collectively, the “download”) as a service to those customers who have subscribed with us to access the download [“Subscriber(s)” or “you”]. Please review the following rules (“Terms of Use”) that govern your use of the download. By using our download, you agree to be bound by the terms and conditions set forth below and in our Privacy Policy, and by all disclaimers or other terms and conditions that appear elsewhere on our download (collectively, the “Agreement”). Your use of our download constitutes your agreement to follow and be bound by the Agreement. If you do not agree to be bound by the Agreement, you are not authorized to use our download. We may revise the Agreement at any time for various reasons, and we strongly recommend that you visit these pages periodically in order to review the Agreement. Although you are not required to review the Agreement each time you access the download (whether by choice or by electronically bypassing this page), your use of or clicking onto any portion or any page of our download nonetheless binds you to the Agreement.
1. Proprietary Rights. Unless otherwise noted, all written and/or other materials that are part of our download, including information, images, illustrations, designs, icons, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds and other material (collectively, "Content"), are protected by copyright, trademark, patent or other proprietary rights, and these rights are valid and protected in all forms, media, and technologies existing now or developed in the future. Except as provided in Paragraph 2 below or authorized or licensed to Subscriber in writing, Subscriber may not copy, modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale, lease, or rental of, create derivative works from, or in any way exploit any of, the Content, in whole or in part. All Content is copyrighted as a collective work under United States and international copyright laws, and as between Subscriber and BNi, BNi owns, to the fullest extent allowed by such laws, the copyright in the selection, coordination, arrangement, and enhancement of all Content. The BNi trademarks, logos and other trademarks on our download are the property of their respective owners and are owned by, licensed to, or, where required, used with permission of BNi, and, as such, may not be reproduced, copied, or manipulated in any manner without the express written approval of the trademark owner.
2. Your Use of the download.
a. The download and the Content are intended solely for use by one Subscriber working at one computer workstation (“Workstation”). You acknowledge and agree that the download may permit Subscriber to copy or download portions of the Content and/or other downloadable materials displayed on the download (“Excerpts”), but BNi may restrict or impose limitations on Subscriber’s ability to copy or download Excerpts, in BNi’s sole and absolute discretion. With respect to such Excerpts, Subscriber agrees to leave intact all copyright, trademark and other proprietary notices contained in such material, and will not modify or alter the material or copy or post the material on any network computer or broadcast the material in any media whatsoever. Subscriber may not modify, transmit, distribute, use or reuse, repost or “frame” the Content for public or commercial purposes without express written permission from an authorized representative of BNi. No right, title or interest in any Content is transferred to the Subscriber as a result of the Subscriber’s downloading or copying of an Excerpt. Except as noted above, Subscriber shall not publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Content, the download, Excerpts or any related intellectual property. As a condition of using the download, Subscriber agrees that if BNi, in its sole and complete discretion, requests in writing that Subscriber remove any link or links to the download, Subscriber will promptly do so. Subscriber further agrees that BNi may, in its sole and complete discretion and at any time, terminate Subscriber’s access to and use of our download, or any part thereof, with or without notice to Subscriber.
b. Subscriber agrees not to tamper with our download, misrepresent Subscriber’s identity, conduct fraudulent or unauthorized activities in connection with our download, or use agents to do any of the same. Subscribers are prohibited from violating or attempting to violate the security of our download, including, without limitation, (i) accessing the download from more than one Workstation at one time; (ii) providing Subscriber’s access information to others, and/or allowing others to access the download using Subscriber’s access information; (iii) accessing data not intended for such Subscriber or logging onto a server or into an account which the Subscriber is not authorized to access; (iv) using our download for unintended purposes or trying to change the behavior of our download; (v) attempting to probe, scan or test the vulnerability of the download; (vi) attempting to interfere with other Subscribers’ access to the download, including without limitation, via means of submitting a virus to our download, overloading, “flooding,” “spamming,” “mailbombing” or “crashing”; (vii) forging communications on behalf of our download (impersonating our download), or to our download (impersonating as a legitimate Subscriber). Sending unsolicited and unauthorized e-mail on behalf of BNi, including promotions and/or advertising of products or services, is expressly prohibited. You agree not to use any device, software or routine or data to interfere or attempt to interfere with the proper working of our download or any activity being conducted on this download. You agree, further, not to use or attempt to use any engine, software, tool, agent, data or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search or remove Excerpts from our download other than the tool or tools provided by the download or by generally publicly available and acceptable Internet browsers. If and when requested, you agree to provide true, accurate and complete Subscriber information to BNi.
3. NO WARRANTIES; LIMITATION OF LIABILITY. YOUR USE OF AND RELIANCE UPON ANY AND ALL INFORMATION, INCLUDING, BUT NOT LIMITED TO, THE CONTENT IS AT YOUR SOLE RISK. SUCH INFORMATION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BNI MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, OR GUARANTEES WITH REGARD TO THE APPROPRIATENESS, ACCURACY, SUFFICIENCY, CORRECTNESS, VERACITY, VALUE, COMPLETENESS, OR TIMELINESS OF SUCH INFORMATION. BNI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN NO EVENT SHALL BNI AND/OR ITS AGENTS, EMPLOYEES, OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF OUR DOWNLOAD, WITH THE DELAY OR INABILITY TO USE OUR DOWNLOAD OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES, AND RELATED GRAPHICS OBTAINED THROUGH THE DOWNLOAD, OR OTHERWISE ARISING OUT OF THE USE OF OUR DOWNLOAD, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, EVEN IF BNI OR ANY OF ITS AGENTS, EMPLOYEES, OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR DOWNLOAD, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING OUR DOWNLOAD.
4. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, WHETHER CONTAINED IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL BNI'S AGGREGATE LIABILITY HEREUNDER EXCEED THE AMOUNT OF THE FEES PAID HEREUNDER TO BNI IN THE SIX MONTHS PRIOR TO THE DATE ANY DAMAGES WERE INCURRED. THIS LIMITATION SHALL APPLY TO ALL CAUSES OF ACTION AND CLAIMS IN THE AGGREGATE, AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
5. Kids’ Privacy. Our download is intended for use by individuals 13 years of age or older. Our download is not directed to children under the age of 13. Subscribers under the age of 13 must use the assistance of a parent or guardian before they use or visit our download. You agree to contact BNi immediately if you have knowledge that a child under the age of 13 has used the download or submitted Personal Information (as described in our Privacy Policy) to us, via our download or otherwise.
6. Errors, Corrections and Changes. Occasionally there may be information on our download that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We reserve the right (and we will use commercially reasonable efforts) to correct any errors, inaccuracies, or omissions. Additionally, we reserve the right to change or update information at any time without prior notice.
7. Information & Content You Submit to Us. Except as described in our Privacy Policy, by using the download, you agree that any information (except for purchase information as applicable), materials, suggestions, ideas or comments you send to us or any other third party using our download is not confidential. By submitting any solicited or unsolicited information using our download, you grant to BNi and its affiliates an irrevocable and unrestricted license to use, modify, reproduce, transmit, display, and distribute such materials, information, suggestions, ideas or comments for any purpose whatsoever, to the extent permitted by law.
8. Indemnity. You agree to indemnify, defend and hold harmless BNi, its agents, employees, partners, affiliates, subsidiaries and suppliers from any liability, loss, claim and expense (including reasonable attorneys’ fees, as incurred) related to your violation of this Agreement or in connection with your use.
9. Third Party Sites & Links. Our download may contain links to other sites that are not under our control [“Third-Party Site(s)”]. We provide links solely for the convenience and information of our Subscribers. We do not warrant or make any representation about the substance, quality, functionality, accuracy, fitness for a particular purpose, merchantability, or any other representation about any Third-Party Site or its content. A link to a Third-Party Site on our download does not constitute sponsorship, endorsement, approval, or responsibility for any Third-Party Site. We make no representation or warranty as to any products or services offered on any Third-Party Site. The conditions of use and privacy policy of any Third-Party Site may differ substantially from the Terms of Use that apply to your use of our download. Please review the conditions of use for all Third-Party Sites for more information about the terms and conditions that apply to your use of Third-Party Sites.
10. Applicable Law & Other Terms. Our download is created, operated and controlled by BNi in California, in the United States of America. Subscriber agrees that BNi and the download shall be deemed solely based in the State of California and the download shall be deemed a passive download that does not give rise to personal jurisdiction over BNi, either specific or general, in jurisdictions other than the State of California. These Terms of Use are to be governed by and construed in accordance with the internal laws of the State of California, without regard for principles of conflicts of laws. Any civil action, claim, dispute, or proceeding arising out of or relating to this Privacy Policy shall be referred to final and binding arbitration, before a single arbitrator, under the commercial arbitration rules of the American Arbitration Association in San Diego County, California. THEREFORE, YOU DO NOT HAVE THE OPPORTUNITY TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS, AND YOU GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. BY USING THE DOWNLOAD, YOU AGREE TO STRICTLY ABIDE BY THESE RESTRICTIONS. You and BNi shall select the arbitrator, and if you and BNi are unable to reach agreement on selection of the arbitrator within thirty (30) days after the notice of arbitration is served, then the American Arbitration Association shall select the arbitrator. Subscriber and BNi each agree to bear its own attorneys’ fees and costs in any arbitration proceeding. Judgment upon any award rendered by the arbitrator shall be final, binding, and conclusive upon Subscriber and BNi and the respective administrators of each, executors, legal representatives, successors, and assigns, and may be entered in any court of competent jurisdiction. Should a dispute arise and should the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and BNi, jurisdiction over and venue of any suit shall be exclusively in the state or federal courts sitting in Los Angeles County, California. Notwithstanding the foregoing arbitration requirement, the parties may apply to such courts for immediate injunctive relief against the breach or threatened breach of this agreement, in addition to any other legal remedies that may be available.
11. Miscellaneous. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of the Agreement shall continue in effect. Unless otherwise specified herein, this Agreement constitutes the entire agreement between Subscriber and BNi with respect to the download, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between Subscriber and BNi with respect to the download. 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 extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.