Business Catalyst
Additional Terms of Use
LAST UPDATED: February 17, 2012
1. Acceptance of Adobe.com Terms of Use.
Your use of the Service(s) (as defined below) is subject to these
Additional Terms, which supplement the Adobe.com Terms of Service
(“General Terms”) located at http://www.adobe.com/go/terms.
The General Terms are incorporated herein by reference. If you are a
resident of North America, your relationship is with Adobe Systems
Incorporated, a United States company, and you agree to be bound by the
laws of the United States. If you reside outside of North America, your
relationship is with Adobe Systems Software Ireland Limited, and you
agree to be bound by the laws of Ireland, including Irish data
protection laws. Regardless of where you reside, you agree to be bound
by Section 18 of these Additional Terms of Use regarding the resolution
of disputes. Adobe Systems Incorporated (“Adobe”) reserves the right to
update and change, from time to time, these Additional Terms, the
General Terms, and all other documents incorporated by reference. If any
future changes to this Agreement (as defined below) are unacceptable to
you, (a) you should refuse to accept any updated terms proposed to you
by Adobe; (b) you must discontinue using the Services; and (c) you may
terminate this Agreement in accordance with Section 19 (Termination).
You can always find the most recent version of these Additional Terms
and the General Terms at http://www.adobe.com/go/terms.
Capitalized terms used in these Additional Terms shall be defined as
set forth in the General Terms or in these Additional Terms. In the
event of any inconsistency between these Additional Terms and the
General Terms, these Additional Terms shall control with respect to the
Services.
2. Description of the Services.
Adobe provides access to certain services, features, applications, and
tools related to website hosting and other web-based solutions
(individually and collectively, the “Services”). Depending on the plan
you purchase, the Services may include, without limitation, registration
functionality, purchasing functionality, email marketing campaign
delivery, web analytics, customer relationship management, reporting,
and domain name system services. Some Services may be subject to
additional terms and conditions.
Adobe may also facilitate your, or, if you are a Partner (as defined
below), your clients’ use of third-party services, including but not
limited to, payment gateways. Once Adobe has facilitated such use, Adobe
is not responsible for any aspect of your or your client’s relationship
and/or transactions with such third party.
3. Definitions.
“Adobe Online Privacy Policy” means the Adobe Online Privacy Policy, which is available at http://www.adobe.com/go/privacy or any successor Web site thereto.
“Agreement” means these Additional Terms, the General Terms, and the Adobe Online Privacy Policy.
“End User” means an individual who interacts with the Services as a
result of such party’s relationship with or connection to you. If you
are a Site Owner (as defined below), an End User is an individual who
uses your website that is hosted through the Services. If you are a
Partner (as defined below), an End User means: (i) your client (that is,
the person to whom you resell the Services); and (ii) the individuals
who use your client’s website that is hosted through the Services.
“Information” means personally identifiable information. “End User
Information” means personally identifiable information about an End
User.
“Partner” is the term we use to refer to you if you are permitted by us
to resell the Services to third parties. We refer to each such third
party as your “Client.”
“Site Owner” is the term we use to refer to you if you use the Services on your own behalf.
4. Your Compliance With This Agreement.
You acknowledge that your compliance with the terms of this Agreement
may require you to provide certain notices to, obtain certain rights
from, and impose certain obligations on your Clients and/or users of the
websites hosted by the Services. To that end, you agree that each
website for which Adobe provides Services on your behalf (including, if
you are a Partner, your Clients’ websites) will contain a clear and
conspicuous link to a terms of use and a privacy policy that comply with
all applicable laws, rules, and regulations.
5. Partner Obligations.
Without limiting any obligations imposed by this Agreement, if you are a Partner, you understand and agree that:
(a) If Adobe provides notice to you that a website hosted through the
Services on behalf of your Client is alleged to contain material that
infringes upon the copyright of a third party, you will work with your
Client in accordance with Section 17 of the General Terms (Notification
of Copyright Infringement) to, within five (5) days of receipt of such
notice, either: (a) remove the allegedly infringing material from the
website and provide Adobe with written confirmation of such removal; or
(b) provide Adobe with a written counter notification consistent with
Section 17 of the General Terms. You agree that Adobe may remove
allegedly infringing material if Adobe does not receive a written
confirmation of removal or counter notification within five (5) days of
your receipt of such notice.
(b) It is solely your responsibility to ascertain and obey all
applicable local, state, federal and international laws and rules in
regard to the use and resale of the Services.
(c) You are responsible for your Clients’ compliance with applicable laws in connection with their use of the Services.
(d) You are responsible for complying with all applicable laws, rules,
and regulations regarding the collection, use, processing, disclosure,
maintenance, and retention of End User Information.
(e) You are responsible for determining whether your use and resale of
the Services comply with the privacy and data security requirements of
the laws of the applicable jurisdiction(s).
(f) You will obtain any authorizations from End Users required to enable
Adobe to provide the Services and to access and process End User
Information.
(g) You have or will obtain all rights necessary for you to grant Adobe the licenses granted in Section 16 (“Content”), below.
(h) The Content (as defined below) and your provision of the Content to
Adobe via the Services will comply with all applicable laws, rules and
regulations.
(i) Your agreement with each Client gives Adobe the right to access,
use, remove, and/or delete Content as set forth in this Agreement. In
any such agreement, you do not have to identify Adobe by name; you may
refer to Adobe as your service provider.
6. Your Compliance With Applicable Laws.
It is solely your responsibility to ascertain and obey all applicable
local, state, federal and international laws and rules in regard to the
use, and, if you are a Partner, the resale, of the Services. Without
limiting the generality of the foregoing or any other provision of this
Agreement, you understand and agree that such laws may include those
governing the collection, use, disclosure, and retention of personal
information; the advertisement of products and services; the sending of
commercial email messages, text messages, and other communications; and
export and import. If you are a Partner, you are further responsible for
your End User clients’ compliance with applicable laws in connection
with their use of the Services.
7. No Spam.
You agree that you will not directly or indirectly use the Services, or
permit the Services to be used, to deliver or facilitate unsolicited
commercial email or SMS messages.
8. Information Received from You.
If you are a Site Owner or a Partner, the terms of the Adobe Online Privacy Policy http://www.adobe.com/go/privacy
govern Adobe’s use of Information we collect from and about you in
connection with your purchase and use of the Services (excluding any End
User Information).
Use and Disclosure of Your Information. In addition to the uses and
disclosures described in the Adobe Online Privacy Policy, Adobe may:
- Use your Information to ask you to complete a survey.
- Use your Information to allow you to send messages to refer a friend
or colleague to Adobe. By using this functionality, you represent to
Adobe that you are entitled to use and provide Adobe with the referred
person’s name and email address.
- Disclose your Information to registered users of the Service, if you have requested that Adobe refer you to them.
Tracking on the Business Catalyst Website. This “Tracking” section
replaces the section of the Adobe Online Privacy Policy entitled
“Tracking, use of cookies, web beacon and similar devices.” Adobe and
its third party service providers may collect information that does not
reveal your specific identity in a variety of ways, including:
- Through your browser: Certain information is collected by most
browsers, such as your computer type (Windows or Macintosh), screen
resolution, operating system version, referring URL and browser type and
version. Adobe uses this information to ensure that our website
functions properly and for analytics purposes.
- Using cookies: Cookies are pieces of information stored directly on
the computer that you are using. Cookies allow Adobe to collect
information such as browser type, time spent on the website, pages
visited, language preferences, and features used. Adobe and its service
providers use the information for security purposes, to facilitate
navigation, to display information more effectively, and to personalize
your experience while visiting the website, as well as for online
tracking purposes. Adobe can recognize your computer to assist your use
of the website. Adobe also gathers statistical information about the
usage of the website in order to continually improve its design and
functionality, understand how customers use it and assist it with
resolving questions about it. Cookies further allow Adobe to select
which of our content, advertisements and/or offers are most likely to
appeal to you and display them while you are on the website. Adobe may
also use cookies in online advertising to track consumer responses to
our advertisements. Adobe may also collect data about your online
activities on the website for use in providing content and advertising
tailored to your interests; if this occurs, you will be able to choose
whether or not to have your information collected for such purpose.
Please go to http://businesscatalyst.com/Misc/optout.html for more information.
You can adjust the settings in your browser to refuse to accept cookies.
If you do, you may experience some inconvenience in your use of the
website.
- Using pixel tags and other technologies: Pixel tags (also known as
web beacons and clear GIFs) may be used in connection with some website
pages and HTML-formatted email messages to, among other things, track
the actions of users and email recipients, measure the success of
Adobe’s marketing campaigns and compile statistics about website usage
and response rates.
- IP Address: Your “IP Address” is a number that is automatically
assigned to the computer that you are using by your Internet Service
Provider. An IP Address is identified and logged automatically in
Adobe’s server log files whenever a user visits the website, along with
the time of the visit and the page(s) that were visited. Collecting IP
Addresses is standard practice on the Internet and is done automatically
by many web sites. Adobe uses IP Addresses for purposes such as
calculating website usage levels, helping diagnose server problems,
administering the website, providing (city/country-level)
location-specific information such as intelligent defaults for country
and time zone inputs, and compliance with export laws.
Your Access and Correction Rights. As set forth in the Adobe Online
Privacy Policy, you may access and/or correct or delete the Information
that Adobe has collected from you by writing to Adobe at: Adobe Systems
Incorporated, Privacy Officer/Customer Information, Legal Department,
A17, 345 Park Avenue, San Jose, CA 95110 2704 U.S.A. You may also email
Adobe at
privacy officer@adobe.com.
9. Purchases.
Use of the Services is subject to your payment of fees, which may vary
according to the plan and/or subscription you have chosen. Adobe is not
liable for Partners’ inability to collect payments from their clients.
Adobe will collect the fees for the Services in advance, by payment card
or by an invoice due upon receipt. No refunds will be issued, unless
required by law or if Adobe is in material breach of this Agreement. You
are responsible for paying all taxes levied in connection with your use
of the Services. Your payment card company or bank may impose on you
other fees in connection with your payment, and Adobe has no connection
to or responsibility for such fees. In addition, you, and not Adobe, are
responsible for obtaining and maintaining all telecommunications,
broadband, and computer hardware, equipment, and services needed to
access and use the Services, and paying all charges related thereto.
If you believe your invoice is incorrect, you must contact Adobe in
writing within sixty (60) days of the applicable invoice date to be
eligible to receive an adjustment or credit. Any such adjustments or
credits shall be at Adobe’s sole discretion.
Adobe reserves the rights to: (a) refuse to provide any person with the
Services; (b) determine which Services are available for resale by
Partners; and (c) offer certain Services for resale only by select
Partners.
Automatic Renewal of Subscriptions. If you purchase a subscription to
the Services, you will select the period of time for which you have
elected to pay (the “Subscription Term”). Your subscription will
automatically renew at the end of each Subscription Term until you
cancel. On the subscription renewal date, Adobe will automatically
charge your payment card for the next Subscription Term (“Billing Date”)
plus any other applicable charges, including, without limitation,
excess use and license fees. You may cancel your subscription at any
time before your next Billing Date. If you do, you will have access to
the Services until the end of your then-current Subscription Term.
Payment Cards. As a condition of your right to sign up for a
subscription plan, you must provide Adobe with a valid payment card
number belonging to you from a card issuer that Adobe accepts with
available funds sufficient to pay the applicable fees. Such card must be
associated with a valid address located in a jurisdiction into which
Adobe sells the Services. Adobe may seek validation of your payment card
prior to your first payment. In the event that you cancel the payment
card or it is otherwise terminated, you must provide Adobe with a new
valid payment card before the next Billing Date in order to avoid
interruption in your access to the Services. Adobe may elect not to
renew your subscription until a current valid payment card with
sufficient funds is provided.
Changes in Price and/or Terms. Adobe may at any time, upon notice
required by applicable law, (a) change the price of the Services; (b)
institute new charges or fees; or (c) change these Additional Terms.
Price and Terms changes and institution of new charges implemented
during your Subscription Term will apply to subsequent Subscription
Terms and to all new customers after the effective date of the change.
If you do not agree to any such changes, then you must terminate your
subscription (if any) and/or stop using the Services. Your continued use
of the Services after the effective date of any such change shall
constitute your acceptance of such change.
Currency. Unless Adobe in its discretion determines otherwise: (i) if
you reside or are headquartered in the United States, you will be billed
in U.S. dollars; (ii) if you reside or are headquartered in Australia
or New Zealand, you will be billed in Australian dollars; and (iii) if
you reside or are headquartered elsewhere, you will be billed in U.S.
dollars, Euros or local currency (in Adobe’s sole discretion).
10. Delinquent Accounts.
For the avoidance of doubt, any breach of your payment obligations will
constitute a material breach of this Agreement. In addition to any other
rights that Adobe may have under this Agreement or applicable law,
Adobe reserves the right to suspend or terminate this Agreement and/or
your use of the Services if you fail to pay any applicable fees or your
account otherwise becomes delinquent. In addition, Adobe reserves the
right to disable any web sites or other services maintained in
connection with the Services if any applicable fees are thirty (30) days
or more past due. Past due fees are subject to interest of 1.0% per
month on any outstanding balance, or the maximum permitted by law,
whichever is less, plus all collection expenses. You agree that Adobe
may charge any applicable fees (including past due fees) to your payment
card.
Adobe reserves the right to impose a reconnection fee if your use of the
Services is terminated or suspended and you thereafter request
reconnection. You acknowledge and agree that Adobe has no obligation to
retain Content (as defined below) and that both Content and End User
Information may be irretrievably deleted if any applicable fees are
thirty (30) days or more past due.
If you are receiving free use of the Services, Adobe reserves the right
to suspend or terminate such use at any time, and to delete any Content
and End User Information associated with such use.
11. Commissions.
Certain Partners are eligible to accrue commissions at a rate and in the
form defined in the terms of the plan you select. Commissions are
accrued on the applicable invoiced amount at the time the invoice is
paid. Cash commissions are payable on request through the Partner Portal
when the accrued total exceeds USD 500 or the local currency equivalent
according to the plan you select. Accrued commissions totaling less
than USD 500 or the local currency equivalent are forfeited if this
Agreement is terminated for any reason except Adobe’s breach. Adobe
reserves the right to modify the commission percentage and list prices
at any time, however any such changes will not negatively affect your
commission calculations until sixty (60) days after notice of such
changes.
12. License to Use the Services.
If you are a Site Owner, Adobe grants to you a non-exclusive,
non-transferable, revocable right for the individual(s) identified at
the time of purchase to access and use the Services for your own
internal business purposes, subject to your compliance with this
Agreement (including, without limitation, the payment of all applicable
fees).
If you are a Partner, Adobe grants to you a non-exclusive,
non-transferable, revocable right to resell the Services that you
purchase, subject to your compliance with this Agreement (including,
without limitation, the payment of all applicable fees). You acknowledge
and agree that this Agreement does not transfer ownership of the
Services to you, and you agree to assign, and hereby assign to Adobe,
its successors and assigns, ownership of all intellectual property
associated with the Services insofar as you obtain any right or interest
therein.
You will not alter or remove any Marks or Adobe copyright notices included in the Services.
13. Service Limitations and Excess Fees.
Certain Services may have limitations, which Adobe may change from time
to time in its discretion. Adobe will charge you excess fees, as
specified at
http://www.businesscatalyst.com/tou-excess-fees,
if you exceed such limitations. The Service limitations may involve
(but are not limited to): (a) the number of individuals associated with
you who are authorized to use the Services; (b) the amount of disk
storage space, CPU load, and API calls available to you; (c) the amount
of incoming traffic to your or your client’s website; (d) the number of
e-mail marketing broadcasts you may undertake per month on behalf of
yourself or a client; and (e) the number of SMS messages available to
you or a client;
Any failure by Adobe to notify you of excess usage shall not affect your responsibility to pay for it.
Adobe reserves the right, in its discretion, to impose and enforce
limits on payment velocity (that is, the number of transactions per a
certain unit of time) and any other feature of the Services. Enforcement
by Adobe against a website may include blacklisting of the website’s IP
address.
14. Product Service Level.
Adobe uses reasonable efforts to make the Services available 24 hours a
day, 7 days a week. However, there will be occasions when the Services
will be interrupted for maintenance, upgrades and repairs, or as a
result of failure of telecommunications links and equipment that are
beyond Adobe’s control. Adobe will take reasonable steps to minimize
such disruption, to the extent it is within Adobe’s reasonable control.
The Services may not be available in all languages.
If a Service includes e-mail marketing broadcasts, such broadcasts will
be undertaken at any time during the date specified for such broadcasts,
and may take up to 24 hours to deliver starting from the commencement
of such broadcasts. Further, Adobe cannot guarantee the delivery of such
broadcasts by third-party intermediaries. If a Service includes
real-time alerts, such alerts will be sent as soon as possible, however
Adobe cannot guarantee their delivery by third-party providers and
aggregators or other intermediaries.
15. Marketing.
If you are a Partner, you agree to promote the Services. Adobe may, but
is under no obligation to, provide you with a non-exclusive license to
use re-brandable material from time to time to support such marketing
efforts.
16. Content.
You (if you are a Site Owner) or your End Users (if you are a Partner),
and/or each such party’s respective licensors, retain ownership of any
information, content and/or materials that they submit in the course of
using the Services (“Content”); however, Adobe needs certain rights to
Content in order to provide the Services. Accordingly, you hereby grant
to Adobe and its service providers and designees a worldwide,
non-exclusive, transferable, sublicensable (through multiple tiers),
royalty-free, perpetual, irrevocable right and license, without
compensation to you: to use, reproduce, distribute, adapt (including
without limitation edit, modify, translate, and reformat), create
derivative works of, transmit, publicly display and publicly perform
such Content, in any media now known or hereafter developed.
You represent and warrant that you will comply with the provisions of Section 6 of the General Terms (User Conduct).
Without limiting the generality of the foregoing license, you agree that
Adobe may access, use, remove and/or delete any Content in accordance
with Section 6 of the General Terms.
17. Indemnity.
In addition to the Indemnity obligations set forth in Section 19 of the
General Terms, you agree to indemnify and hold Adobe and its
subsidiaries, affiliates, officers, directors, employees, agents,
co-branders or other partners, and licensors harmless from any claim or
demand, including reasonable attorneys’ fees, due to or arising out of
the Content, the End User Information, or your violation of this
Agreement.
18. Resolution of Disputes.
This section hereby replaces Section 20(a) (“Resolution of Disputes”) of the General Terms.
(a) If you are a resident of North America, then all matters relating to
your access to, or use of, the Services shall be governed by the laws
of the State of California, United States of America, without regard to
conflict of laws principles thereof. You agree that any claim or dispute
you may have against Adobe must be resolved by a court located in Santa
Clara County, California, United States of America, except as otherwise
agreed by you and Adobe, or as set forth in section (d) below. You
agree to submit to the personal jurisdiction of the courts located in
Santa Clara County, California, United States of America for the purpose
of litigating such claims or disputes.
(b) If you reside outside of North America, then all matters relating to
your access to, or use of, the Services shall be governed by the laws
of Ireland, without regard to conflict of laws principles thereof. You
agree that any claim or dispute you may have against Adobe must be
resolved by a court located in Dublin, except as otherwise agreed by you
and Adobe, or as set forth in section (c) below. You agree to submit to
the personal jurisdiction of the courts located in Dublin for the
purpose of litigating such claims or disputes.
(c) You and Adobe specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods.
(d) For any claim (excluding claims for injunctive or other equitable
relief) for less than U.S. $10,000, the party requesting relief may
elect to resolve the dispute in a cost-effective manner through binding
non-appearance-based arbitration. In the event a party elects
arbitration, it shall initiate such arbitration through an established
alternative dispute resolution (“ADR”) provider mutually agreed upon by
the parties. The ADR provider and the parties must comply with the
following rules: (A) the arbitration shall be conducted by telephone,
online, and/or be based solely on written submissions, the specific
manner shall be chosen by the party initiating the arbitration; (B) the
arbitration shall not involve any personal appearance by the parties or
witnesses unless otherwise mutually agreed by the parties; and (C) any
judgment on the award rendered by the arbitrator may be entered in any
court of competent jurisdiction.
(e) All claims you bring against Adobe must be resolved in accordance
with this section. All claims filed or brought contrary to this section
shall be considered improperly filed. Should you file a claim contrary
to this section, Adobe may recover attorneys’ fees and costs up to U.S.
$1,000, provided that Adobe has notified you in writing of the
improperly filed claim and you have failed to properly withdraw the
claim.
(f) Notwithstanding the foregoing, in the event of your or others’
unauthorized access to or use of the Services in violation of the
Agreement, you agree that Adobe shall be entitled to apply for
injunctive remedies (or an equivalent type of urgent legal relief) in
any jurisdiction.
19. Termination.
This Agreement will continue to apply until terminated by either you or
Adobe as set forth in the General Terms or in these Additional Terms.
Upon termination, you shall promptly discontinue use of the Services;
however, in addition to the sections set forth in Section 13(f) of the
General Terms, the following sections of these Additional Terms shall
survive termination: 1, 3, 5-9, 10, 13, 17-19 and 22. Adobe will not be
liable to you or any third party for any damages that may result or
arise out of Adobe’s termination of your account and/or access to the
Services.
20. Filtering.
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you
that parental control protections (such as computer hardware, software
or filtering services) are commercially available that may assist you in
limiting access to material that is harmful to minors. Information
identifying current providers of such protections is available on the
two websites GetNetWise (
http://kids.getnetwise.org) and OnGuard Online (
http://onguardonline.gov). Please note that Company does not endorse any of the products or services listed at such site.
21. Notice for California Residents.
Under California Civil Code Section 1789.3, California users are
entitled to the following consumer rights notice: If you have a question
or complaint regarding the Site, please send an e-mail through the
Adobe Customer Support Portal
https://www.adobe.com/go/support_contact.
You may also contact us by writing to 345 Park Avenue, San Jose, CA
95110 2704, or by calling us at 800 833 6687. California residents may
reach the Complaint Assistance Unit of the Division of Consumer Services
of the California Department of Consumer Affairs by mail at 1625 North
Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445 1254 or
(800) 952 5210.
22. Miscellaneous.
This Agreement does not, and shall not be construed to, create any
partnership (notwithstanding the use of the term “Partner” to describe
certain Adobe customers), joint venture, employer-employee, agency or
franchisor-franchisee relationship between you and Adobe. Any heading,
caption or section title contained herein is inserted only as a matter
of convenience, and in no way defines or explains any section or
provision hereof. Adobe will not be responsible for failures to fulfill
any obligations due to causes beyond its control.
Copyright © 2011 Adobe Systems Incorporated. All rights reserved.
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