PowerBooks LLC End User License Agreement and Terms of Service
Last updated: June 1, 2019
Please read this End User License Agreement and Terms of Service (this “EULA”) carefully as this EULA constitutes a binding contract between you, an individual user (“you”) and PowerBooks LLC (“PowerBooks”) governing your use of the PowerBooks website found at www.PowerBooks.com (“Website”), any mobile applications (each an “App”), or other Internet services under PowerBooks’ control and used to provide PowerBooks’ services to you (the Website, Apps, and those Internet services are, collectively, the “Services”). By clicking on “I accept” on the sign-up page, installing the App, or otherwise accessing or using the Services, you have read, understood, and agree to be bound by and comply with the terms and conditions of this EULA. If you are using the Services on behalf of an entity, partnership, or other organization, then you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind that entity to this EULA, and (ii) agree to be bound by this EULA on behalf of that entity. If you do not agree, Customer (as defined below) is not permitted to use the Services.
If customer accesses or uses the service from any other region outside of the United States, all disputes between customer and PowerBooks will be resolved by binding arbitration. please review Section 14(b) for details regarding customer’s agreement to arbitrate any disputes with PowerBooks.
PowerBooks recommends that you print a copy of this Agreement for your records.
“Customer” means you or, if you are using the Service on behalf of a company, entity, or organization, the entity, partnership or organization on whose behalf you are utilizing the Services.
“Party” means either Customer or PowerBooks and “Parties” means both Customer and PowerBooks
“Recipient” means a Customer who is an accountant, accounting firm, or other third party whose clients include PowerBooks 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.
"Representative" means a representative of Customer, including an accountant, accounting firm, or other third party, to whom Customer provides (or for whom Customer authorizes PowerBooks to provide) access to Customer’s Data stored via the Services for the purpose of providing Customer professional services.
“Sign-up” means the on-line customer sign-up process on PowerBooks’ website.
“Term” has the meaning set out in Section 6.
(2) Subscribing to the Service; Eligibility.
Customer subscribes for the Services by selecting them from the options available during Sign-up. In the event of any conflict between this EULA and the information provided during Sign-up, this EULA shall control. Customer and all Customer Personnel (as defined below) must be at least 18 years of age to use the Services. By agreeing to this EULA, you represent and warrant to PowerBooks that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with all applicable laws and regulations.
License Grant. Subject to Customer’s complete and ongoing compliance with all the terms and conditions of this EULA and payment of all applicable fees, PowerBooks hereby grants to Customer a personal, limited, revocable, non-exclusive, non-sublicensable, non-transferable license during the Term, to access and use the Services through PowerBooks’ available interfaces and to permit Customer Personnel (as defined below) to access and use the Services through PowerBooks’ available interfaces, in each case, solely in connection with Customer’s internal business operations.
User IDs. Upon Customer’s request, PowerBooks will issue a Customer ID to Customer. Customer may share this Customer ID with each of its partners, shareholders, employees and contractors who are bound by confidentiality restrictions at least as restrictive as this EULA (“Customer Personnel”). Customer Personnel may only access and use the Service through the Customer ID and in compliance with this EULA. 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 PowerBooks of any actual or suspected unauthorized use of the Services. PowerBooks reserves the right to replace the Customer ID if it determines it may have been used for an unauthorized purpose.
Internet Connectivity; Disclaimer. PowerBooks may 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 access 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 PowerBooks 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 PowerBooks in connection therewith.
Limitations. Customer agrees that it will not, and it will not permit any Customer Personnel or any other party to: (i) permit any party to access or use the Services other than the Customer Personnel authorized under this EULA; (ii) modify, adapt, alter or translate any software underlying the Services, except as expressly allowed hereunder; (iii) sublicense, lease, rent, loan, distribute, or otherwise transfer the Service to any third party; (iv) except if, and solely to the extent that, such a restriction is impermissible under applicable law, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software underlying the Services; (v) use or copy the any software underlying the Services except as expressly allowed hereunder; (vi) conduct or promote any illegal activities while using the Services; (vii) use the Services to generate unsolicited email advertisements or spam; (viii) use the Services to stalk, harass or harm another individual; (ix) 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); (x) except if, and solely to the extent that, such a restriction is impermissible under applicable law, 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; (xi) attempt to gain access to secured portions of the Services to which it does not possess access rights; (xii) upload or transmit any form of virus, worm, Trojan horse, or other malicious code; (xiii) use any robot, spider, other automatic device, or manual process to extract, “screen scrape”, monitor, “mine”, or copy any static or dynamic web page on the Services or the content contained on any such web page for commercial use without our prior express written permission; (xiv) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity; (xv) mirror or frame the Services or any content, place pop-up windows over its pages, or otherwise affect the display of its pages; or (xvi) publicly display or publicly perform any part of the Services. Customer may not use the Services for any purpose other than a purpose for which the Services are expressly designed. If Customer is prohibited under applicable law from using the Services, Customer may not use them.
Suspension of Access. In addition to any other suspension or termination rights of PowerBooks pursuant to this EULA, certain circumstances may require PowerBooks to suspend or terminate (where appropriate), as determined in PowerBooks’ discretion, Customer’s access to and/or use of, or otherwise modify, the Services and/or any component thereof, without notice in order to: (i) prevent damages to, or degradation of the integrity of, PowerBooks’ Internet network; (ii) comply with any law, regulation, court order, or other governmental request or order; or (iii) otherwise protect PowerBooks from potential legal liability or harm to its reputation or business. PowerBooks will use commercially reasonable efforts to notify Customer of the reason(s) for such suspension or termination action as soon as reasonably practicable. Nothing contained in this EULA will be construed to limit PowerBooks’ actions or remedies or act as a waiver of PowerBooks’ rights in any way with respect to any of the foregoing activities. PowerBooks 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.
PowerBooks. PowerBooks expressly reserves all rights in the Services and all other materials provided by PowerBooks hereunder not specifically granted to Customer. It is acknowledged that all right, title and interest in the Services and all other materials provided by PowerBooks hereunder, any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with PowerBooks (or third party suppliers, if applicable) and that the Services and all other materials provided by PowerBooks hereunder are licensed on a subscription basis and not “sold” to Customer. PowerBooks reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Services. Certain of the names, logos, trademarks, trade names, service marks, content, visual interfaces, interactive features, information, compilation, computer code, products, services, and other materials displayed on the Services (“PowerBooks Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between Customer and PowerBooks, all PowerBooks Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of PowerBooks or its subsidiaries or affiliated companies and/or its third-party licensors. Customer is not authorized to use, sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit adapt, or create derivative works from any such PowerBooks Materials except as expressly authorized hereunder. Customer shall not acquire any right, title, or interest to the PowerBooks Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this EULA, and any goodwill associated therewith shall ensure solely to PowerBooks, or its subsidiaries or affiliated companies and/or its third-party licensors, as applicable. Any use of third party software or services in connection with the Services will be governed by such third parties’ licenses or terms of service and not by this EULA and may be subject to separate fees, including, without limitation, your mobile network operator’s fees, including fees charged for data usage and overage, which are Customer’s sole responsibility.
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 PowerBooks or the Services and all results from processing such data, including compilations, and derivative works thereof (the “Customer Data”), except that Customer grants PowerBooks a perpetual, non-exclusive, world-wide, royalty-free, fully sublicenseable, fully paid-up license to use, reformat, modify, display, perform, reproduce, and create derivative works of the Customer Data: (i) in providing the Services to Customer or (ii) in connection with PowerBooks’ internal business purposes. Unless specifically agreed in writing, each Party’s rights under this clause 4(b) extend to any update, adaptation, translation, customization or derivative work of Customer Data, made under this EULA.
Feedback. In the event that Customer provides PowerBooks any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Services (collectively “Feedback”), Customer agrees that PowerBooks 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 PowerBooks 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 PowerBooks.
Privacy. PowerBooks knows that privacy is important. For this reason, PowerBooks has created a that describes its collection, use and disclosure practices regarding any personal information that Customer provide to PowerBooks. The security of Customer’s personal information is important to PowerBooks. While there is no such thing as “perfect security” on the Internet, PowerBooks will take reasonable steps to help protect Customer’s personal information. However, Customer understands and agrees that such steps do not guarantee that the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. PowerBooks reserves the right to cooperate with local, state, provincial and national authorities in investigations of improper or unlawful activities and this may require the disclosure of Customer’s personal information. PowerBooks may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.
(5) Customer Data.
Responsibility. Customer has sole responsibility for the accuracy, appropriateness and completeness of all Customer Data. PowerBooks 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.
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 confidentiality 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 proprietary 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 misleading; (v) that is defamatory, obscene, or offensive; (vi) that violates, or encourages any conduct that would violate, any applicable 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 personal information.
The term of this EULA (“Term”) shall commence upon the date the sign-up process is complete and will continue on a month to month basis for so long as Customer is current on all fees due unless or until terminated as permitted under this EULA. If Customer has elected to receive 1 free month of financial statements, notwithstanding anything else to the contrary herein, the Term will begin on the date the sign-up process is complete and end upon delivery of the 1 free month of financial statements as communicated by PowerBooks (“Pilot Term”) At the end of the Pilot Term, if Customer wishes to continue to receive the Services, Customer must begin paying for the Services.
(7) Customer Support.
Technical Support. During the Term for the applicable Services, and for so long as Customer is current with its payment of all applicable fees, PowerBooks will use commercially reasonable efforts to provide Customer with technical support services relating to the Services via its technical support website, email, or telephone.
Web Support. Web support shall not include any tax or other professional or expert advice of any kind, including, but not limited to any advice regarding the appropriate handling of tax and accounting issues, or otherwise.
Service Upgrades and Scheduled Downtime. PowerBooks may update the Services in its sole discretion. PowerBooks may from time to time schedule downtime for maintenance and upgrades.
Data Storage & Backup. PowerBooks is not responsible for performing, and is not liable for any failure to perform, any back-up of any data (including Customer Data) provided, transmitted, processed, or stored by Customer in or through the Services. It is Customer’s responsibility to backup onto Customer’s own local system all Customer Data, including all data and records that Customer submits to PowerBooks.
Call Monitoring. PowerBooks may monitor and record support-related and other outbound calls to Customer, as well as inbound calls to PowerBooks by Customer or Customer’s representatives, for compliance, support, training and other purposes. Customer acknowledges and agrees that PowerBooks may record any call between Customer and PowerBooks relating to the Service, and agrees to (i) notify all relevant Customer employees that calls with PowerBooks may be monitored and (ii) indemnify and hold harmless PowerBooks from any claim arising as a result of PowerBooks’ monitoring or recording of calls between PowerBooks and Customer’s representatives.
(8) Fees & Payment.
Fees. Access to the Services may require Customer to pay fees, as may be further described at https://www.powerbooks.com/Home/Pricing. Before Customer pays any fees, Customer will have an opportunity to review and accept the fees that Customer will be charged. All fees are in U.S. dollars and are, except as described in this Section 8, non-refundable. If PowerBooks changes the fees for the Services, including by adding additional fees or charges, PowerBooks will provide Customer advance notice of those changes. If Customer does not accept the changes, PowerBooks may discontinue providing the Services to Customer. PowerBooks will charge the payment method Customer specifies at the time of purchase. Customer authorizes PowerBooks to charge all sums for the Services Customer selects, to that payment method. If Customer pays any fees with a credit card, PowerBooks may seek pre-authorization of Customer’s credit card account prior to Customer’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase.
Automatic Credit Card Payments. The Services may include functionality for activating, updating, or canceling recurring payments for periodic charges. If Customer activates or updates recurring payments through the Service, Customer authorizes PowerBooks to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Customer’s account, all accrued sums on or before the payment due date for the accrued sums. If Customer uses the Service to update or cancel any existing authorized one-time or recurring payment, it may take up to 10 business days for the update or cancellation to take effect.
Late Payment. Customer may not withhold or “setoff” any amounts due hereunder. PowerBooks reserves the right to suspend the Services until all past due amounts are paid in full.
Certain Taxes. Fees quoted do not include and Customer shall pay, indemnify and hold PowerBooks harmless from all sales, use, gross receipts, value-added, personal property or other taxes, and all applicable duties, tariffs, assessments, 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 PowerBooks.
Refunds. In the event of termination of the Services for any reason except for Customer’s breach, PowerBooks may provide Customer with a refund of any pre-paid, but unused fees related to such Services, subject to the following: (i) no refund shall be paid for the current month’s services, regardless of the day on which Customer cancels the Services; (ii) PowerBooks will retain and not be obligated to refund any prepaid fees up to and including the amount of fees Customer would have been required under this EULA to pay for Customer’s use of the Services for the two month period following the effective date of the termination of the Services. Customer is not entitled to any refund for PowerBooks’ termination of the Services based upon Customer’s breach. If Customer purchased access to the Services at a discounted price, any refund will lose the benefit of that discount.
(9) Confidential & Proprietary Information.
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 PowerBooks (or its designated third party supplier), and PowerBooks 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.” Discloser’s Confidential & Proprietary Information does not include: (i) information already known or independently developed by Recipient without use of or reference 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 obligations.
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 EULA (including Section 5(b)), or to such other recipients as the Discloser may approve in writing, including Representatives; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this EULA; 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 safeguarding its own confidential information of a similar nature, but in no event shall less than reasonable care. Upon the earlier of Discloser’s written request or termination or expiration of this EULA, 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. PowerBooks 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 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 EULA or is required by law or by the order of a court or similar judicial or administrative body, provided that prior to disclosing any Confidential & Proprietary Information due to a legal requirement, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.
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) No Warranties.
Content from other users, suppliers, advertisers, and other third parties may be made available to Customer through the Services. Because PowerBooks does not control such content, Customer agrees that PowerBooks is not responsible for any such content. PowerBooks does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and PowerBooks assumes no responsibility for unintended, objectionable, inaccurate, misleading, 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 PowerBooks. PowerBooks 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 Customer finds offensive, indecent or otherwise objectionable. PowerBooks makes no warranty, representation, endorsement, or guarantee regarding, and accepts 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. PowerBooks provides these links for Customer’s convenience only and does not control such websites. PowerBooks’ 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 PowerBooks but which operate under different terms. It is Customer’s responsibility to review the privacy policies and terms and conditions of any other website Customer visits. CUSTOMER AGREES THAT IN NO EVENT WILL POWERBOOKS BE LIABLE TO CUSTOMER IN CONNECTION WITH ANY WEBSITES, CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.
Warranty Disclaimer. THE SERVICES AND ALL MATERIAL OR CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POWERBOOKS HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, 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, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. POWERBOOKS DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE POWERBOOKS ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS EULA. CUSTOMER ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM CUSTOMER’S USE OF OR ACCESS TO THE SERVICES, CUSTOMER’S DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER USES THE SERVICES, AND USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY (INCLUDING CUSTOMER’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION
(11) Limitation of Liabilities.
The Parties acknowledge that each provision of this EULA that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does reflect a fair allocation of risk between the parties, and this allocation of risk forms an essential element of the basis of the bargain between the parties and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. Each of these provisions is severable and independent of all other provisions of this EULA. The limitations in this Section 11 will apply even if any limited remedy fails of its essential purpose.
Amount. IN NO EVENT WILL POWERBOOKS BE LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS EULA EXCEEDING FEES PAID IN RESPECT OF THE SERVICES AT ISSUE IN THE LAST THREE (3) MONTHS. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS EULA WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL POWERBOOKS’ SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS EULA.
Type. IN NO EVENT SHALL POWERBOOKS BE LIABLE TO CUSTOMER FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFITS, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS EULA, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL POWERBOOKS BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO CUSTOMER. TO THE EXTENT THAT POWERBOOKS 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 POWERBOOKS’ 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 overnight 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 server. Notices must be in writing and addressed as follows:
For PowerBooks, addressed to Customer Support at: (i) PowerBooks LLC., 15050 SW 27 St Miami, FL 33185; or (ii) admin@PowerBooks.com; and
For 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 EULA).
PowerBooks may change its contact information by giving notice of such change to the Customer. Customer may change its contact information by using the currently available interfaces on PowerBooks’ website. For contractual purposes, Customer (i) consents to receive communications from PowerBooks in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that PowerBooks provides to Customer electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. Customer’s consent to receive Communications and do business electronically, and PowerBooks’ agreement to do so, applies to all of Customer’s interactions and transactions with PowerBooks. 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 PowerBooks prior to the time Customer withdraws its consent.
You Consent to Receive SMS Text Messages from Us. By providing PowerBooks with Customer’s mobile telephone number, Customer consents to receiving text messages at that number as requested for account verification, invitations, and other purposes related to the Service. While PowerBooks does not charge a fee for text messages, Customer’s carrier may charge standard messaging, data, and other fees. Customer is responsible for these charges. PowerBooks may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. PowerBooks is not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the cellular telephone operator or other networks.
On Notice. Either Party can terminate this EULA for their convenience by providing the other party with notice of termination prior to the last day of the then current monthly renewal.
Generally. Either Party may, in addition to other relief, terminate this EULA if the other Party breaches any material provision thereof and fails within fifteen (15) days after receipt of notice of default to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence 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, or, in the case of Customer, for the failure to pay all applicable fees.
Survival. Upon termination or expiration of this EULA for any reason: (i) all rights and obligations of both Parties (except for Customer’s payment of all sums then owing), including all licenses granted hereunder, shall immediately terminate except as provided below; (ii) 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 in Section 9 (Confidential & Proprietary Information). The following Sections will survive expiration or termination of this EULA for any reason: the introductory paragraph, Sections (1), (3)(d), (4), (5(d)), (6), (10), (11), (13), and (14).
(14) General Provisions.
Assignment. Customer may not assign this EULA or any of its rights or obligations hereunder to any third party without PowerBooks’ prior written consent. Any assignment in violation of this section shall be void. PowerBooks may assign this EULA without restriction and without any notice to Customer. The terms of this EULA shall be binding upon permitted successors and assigns.
Arbitration. This Section 14(b) only applies to residents outside of the United States. Except as expressly provided in this EULA, all controversies, disputes, demands, counts, claims, or causes of action between Customer and PowerBooks arising out of, under, or related to this EULA or PowerBooks’ privacy practices (including any action PowerBooks takes or authorizes with respect to information about or provided by Customer) shall be settled exclusively through binding arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) As modified by this EULA, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This EULA to arbitrate disputes includes all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS EULA, CUSTOMER AND POWERBOOKS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective 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 contained 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 PowerBooks shall be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between Customer and PowerBooks shall be exclusively brought in the state or federal courts specified in subsection “(d)” above. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, Customer may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
Choice of Law. If Customer is a resident of the United States, this EULA is governed by the laws of Florida, United States, and Customer agrees to submit to the personal and exclusive jurisdiction of the courts located within Miami, Florida for the purpose of litigating any dispute relating in any way to this EULA or the Services. PowerBooks operates the Services from its offices in Florida and PowerBooks makes no representation that the Services are appropriate or available for use in other locations. If Customer is a resident of any jurisdiction outside of the United States, this EULA is governed by and construed in accordance with the substantive laws of Florida State, without regard to conflicts of law principles, and Customer and PowerBooks are subject to the arbitration provisions in Section 14(b). If Customer is a resident of any jurisdiction outside of the United States, and if a lawsuit or court proceeding is permitted under this EULA, then Customer and PowerBooks agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Miami-Dade County, Florida for the purpose of litigating any dispute. 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 EULA. Any claim against PowerBooks must be brought within six months after it arose or be barred.
Right to List As A Customer. Customer agrees that PowerBooks may utilize Customer’s entity name in listings of current customers. Use of Customer’s name in any other marketing materials or press announcements will be submitted to Customer in advance for approval, and such approval will not be unreasonably withheld.
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 PowerBooks harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining 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.
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 Service.
Construction. Except as otherwise provided herein, the Parties rights and remedies under this EULA are cumulative. The term “including” means “including without limitation.” The headings of sections of this EULA are for reference purposes only and have no substantive effect.
Force Majeure. Customer acknowledges and understands that if PowerBooks is unable to provide Services as a result of a force majeure event PowerBooks will not be in breach of this EULA and will not be liable for delays caused by such event. A force majeure event means any event beyond the control of PowerBooks.
Severable. NOTHING IN THIS EULA WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO CUSTOMER. 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 the validity, legality, and enforceability of all other provisions shall remain in full force and effect.
Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in this EULA or by law in one instance shall not preclude enforcement thereof on future occasions.
Independent Contractors. Customer’s relationship to PowerBooks is that of an independent contractor, and neither 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 PowerBooks.
Entire Agreement. This EULA constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior agreements, negotiations, or other communications, whether written or oral. This EULA 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 EULA and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this EULA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Amendments. PowerBooks reserves the right to change this EULA at any time and from time to time upon notice by posting revisions to this EULA (including the description of the Services) on PowerBooks’ website. Continued use of the Services after Customer become aware of any such changes shall constitute Customer’s consent to such changes. Customer is responsible for regularly reviewing the most current version of this EULA which is available on PowerBooks’ website.
English Language. It is the express wish of the parties that this EULA and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.