Welcome to the Big 5 Software Ltd services, provided by Big 5 Software Ltd (“MyBig5” or “We”). These Terms of Service govern your use of the MyBig5 web site, as well as any other web sites, subdomains, or services owned or controlled by MyBig5 (collectively, the “MyBig5 Services”). To access the MyBig5 Services, users must always agree to and abide by these Terms. The MyBig5 Services allow you to submit, store, and access your data, documents, calendars, technology, and other information (collectively, “Information”).
1. User Accounts and Account Activity Responsibility.
1.1. User Accounts. To use certain aspects of the MyBig5 Services, you will have to register and create an account (“User Account”). When creating your account for the MyBig5 Services, you agree to provide true, accurate, current, and complete information. You further agree to maintain and update your personal information as needed to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID, password, or any credit, debit or charge card number), you agree to immediately notify MyBig5. You may be liable for the losses incurred by MyBig5 or others due to any unauthorized use of your account.
1.2. Administrator Accounts. The person who first completes the MyBig5 Services registration on behalf of any Subscribing Organization is the initial “Administrator” for purposes of such Subscribing Organization’s use of the MyBig5 Services, and exercises certain options to initially determine the level of access, privacy, and security for the MyBig5 Services related to the Subscribing Organization (“Administrator Account”). For example, the Administrator will determine who can be a User of the MyBig5 Services under the Subscribing Organization associated with that Administrator and Subscribing Organization and the level of privileges that such Users will possess. Once initial registration has been completed, each Subscribing Organization will be able to register additional Administrators, as permitted by the functionality of the MyBig5 Service. Each Administrator may designate other Users as additional and/or successor Administrators and is responsible for confirming that those person(s) accept such responsibility. Upon becoming an Administrator, each person will be deemed to agree to the obligations hereunder. In addition, any person designated as the billing contact in the MyBig5 Services billing record for a Subscribing Organization will be deemed to assume the rights and obligations of an Administrator. Administrator Accounts must comply in all respects with Section 9.1 above.
ADMINISTRATORS ARE FULLY AND SOLELY RESPONSIBLE FOR ALL ACTIVITY OCCURRING UNDER THE APPLICABLE SUBSCRIBING ORGANIZATION ACCOUNT.
1.3. Account Information. You acknowledge and agree that MyBig5 may access, preserve and disclose your account information and related contents if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Information violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of MyBig5, its users, or the public.
2. License Grant. Subject to the terms and conditions of this Agreement, MyBig5 hereby grants to you a limited, personal, non-transferable license to use the MyBig5 Services in the manner contemplated by this Agreement solely for the purposes of submitting, storing, and accessing your Information. Users shall have no right to sub-license or resell the MyBig5 Services or any component thereof.
4. Individual Features and Services. When using the MyBig5 Services, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms.
5. Modification of the Terms. MyBig5 reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time. When we change these Terms in a material manner, we will update the ‘last modified’ date at the bottom of this page. You agree to review these Terms and any Guidelines periodically for changes. Your continued use of the MyBig5 Services after the posting of changes constitutes your binding acceptance of such changes. If any such revision is unacceptable to you, your only remedy is to terminate your MyBig5 User Account. For any material changes to these Terms, such amended terms will automatically be effective thirty days after they are initially posted on the MyBig5 Services.
6. Digital Millennium Copyright Act. It is MyBig5’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. MyBig5 will promptly terminate without notice any user’s access to the MyBig5 Services, if that user is determined by MyBig5 to be a “repeat infringer.” A repeat infringer is a user who has been notified by MyBig5 of infringing activity violations more than twice and/or who has had user submitted Information removed from the MyBig5 Services more than twice.
7. DMCA Notice. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the MyBig5 Services, please notify MyBig5’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:
i. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
ii. Identification of the copyrighted work that you claim has been infringed;
iii. Identification of the material that is claimed to be infringing and where it is located on the Service;
iv. Information reasonably sufficient to permit MyBig5 to contact you, such as your address, telephone number, and e-mail address;
v. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
vi. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
MyBig5: Big 5 Software Ltd
Address: 126 Valley Road, Mount Eden 1024, New Zealand
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES. Please note that this procedure is exclusively for notifying MyBig5 that your copyrighted material has been infringed. The preceding requirements are intended to comply with MyBig5’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
8. Mobile Software
8.1. Generally. We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software, you must have a mobile device that is compatible with the Mobile Software. MyBig5 does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. MyBig5 hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one MyBig5 account on one mobile device owned or leased solely by you, for your personal use. You may not: (a) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (c) make any copies of the Mobile Software; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (e) delete the copyright and other proprietary rights notices on the Mobile Software.
8.2. You acknowledge that MyBig5 may from time to time issue upgraded versions of the Mobile Software and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and MyBig5 or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. MyBig5 reserves all rights not expressly granted under these Terms. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Software originates in New Zealand and is subject to New Zealand export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from New Zealand. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all New Zealand and foreign laws related to use of the Mobile Software and the Service.
8.3. Mobile Software from Apple App Store. The following applies to any Mobile Software you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms is solely between you and MyBig5, not Apple, Inc. (“Apple”), and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to MyBig5 as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to MyBig5 as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, MyBig5, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and MyBig5 acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
8.4. Mobile Software from Google Play Store. The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that the Agreement is between you and MyBig5 only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (d) MyBig5, and not Google, is solely responsible for its Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (f) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to MyBig5’s Google-Sourced Software.
9. Customer Service; Customer Communications and Notice. Please email support@MyBig5.work for further assistance. Under these Terms, you expressly agree and consent to receive communications and notices, including any notices required by law, from MyBig5 electronically (in lieu of communication by postal mail). You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. We will communicate with you by email or by posting notices on the MyBig5 Services. You expressly acknowledge and agree that we may also use your email address to send you other messages, such as newsletters, changes to features of the MyBig5 Services, and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your profile settings. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
10. Eligibility. THE COMPANY SERVICES ARE NOT AVAILABLE TO PERSONS UNDER 18 YEARS OF AGE OR TO ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE COMPANY SERVICES BY COMPANY. MyBig5 may terminate your account, delete any content or information that you have posted on the MyBig5 Services, and/or prohibit you from using or accessing the Services (or any portion, aspect or feature of the Services) for any reason or no reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 18. By clicking the “I Agree” button or by otherwise subscribing to or using the MyBig5 Services you represent that you are at least 18 years of age.
11. Payment Terms; Charges and Taxes.
11.1. Billing. Customer will pay for the MyBig5 Services as agreed upon the contract agreement. We may add or adjust Service fees at any time by providing you with thirty (30) days prior notice. You are responsible for all charges incurred under your account made by you or anyone who uses your account (including your Administrators).
11.2. Payment. All payments due are in New Zealand dollars unless otherwise indicated on the order page. Fees for credit card orders are due immediately upon order placement. Declined credit card authorizations shall be considered delinquent. You agree to pay for all services that you purchase through the MyBig5 order page, and we may charge your selected payment method for any such fees owed. You are required to keep your billing information current, complete, and accurate (e.g., a change in billing address, credit card number, or expiration date) and to notify MyBig5 if your selected payment method is cancelled (e.g., for loss or theft). Authorization to charge your chosen payment method account will remain in effect until you cancel or modify your payment preferences; provided, however, that such notice will not affect charges submitted before MyBig5 could reasonably act. Your charges may be payable in advance, in arrears, per usage, or as otherwise described on the MyBig5 order page. You agree that charges may be accumulated as incurred and may be submitted as one or more aggregate charges during or at the end of the applicable billing cycle. You must cancel your subscription at least five business days prior to the first day of the next payment period (such as, for example, the next calendar month, if you are on a monthly plan) to avoid being charged the renewal fee for such period. THERE ARE NO REFUNDS FOR MONTHLY OR ANNUAL FEES PAID HEREUNDER, FOR ANY REASON. Subject to the foregoing, MyBig5 does offer the ability to downgrade from a higher paying plan to a lower paying plan, but the change will not be made until the beginning of the next renewal period (e.g., the next month if monthly or the end of the annual contract date if annual). For annual contracts, no refunds are available if you downgrade the number of users or use fewer than the number of seats allotted during the contract year. However, you may use those seats for other users.
11.3. Delinquent Payments. Delinquent payments may bear interest at the rate of 1.5% percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by MyBig5 in collecting such delinquent amounts, except where such delinquent amounts are due to MyBig5’s billing inaccuracies.
11.4. Adding users. If users are added during a cycle, MyBig5 will bill them a prorated amount for those users for the remainder of the term. For monthly plans, users will be billed at the beginning of the next month a prorated amount for the of users during the prior month. For annual plans, each month MyBig5 will issue a bill for a prorated amount for each new seat for the number of days from the date the user was added through to the end of the annual contract (e.g., if an annual contract for 100 people adds 20 users after 5.5 months, at the end of month 6 MyBig5 will issue an invoice for 20 people prorated for 6.5 months).
12. Users’ Rights to Information. Upon any termination of a User’s account, Users will have fifteen (15) days to request a copy of all data that has been input by or on behalf of the User into such User’s account on the MyBig5 Services. MyBig5 will provide the data in Microsoft Excel spreadsheet format within two (2) business days of such request, to the e-mail address on file in the User’s account. Fifteen (15) days after termination of a User’s account, MyBig5 will have no obligation to retain, and liability for, all User data.
13. Restrictions. When using the MyBig5 Services you agree not to:
13.1. Upload or transmit via the MyBig5 Services pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libellous, or otherwise inappropriate content;
13.2. Use the MyBig5 Services for any purpose that is unlawful or is otherwise prohibited by these Terms;
13.3. Use the MyBig5 Services in any manner that in our sole discretion could damage, disable, overburden, or impair the services;
13.4. Attempt to gain unauthorized access to the MyBig5 Services, or any part of them, other accounts, computer systems or networks connected to the MyBig5 Services, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the MyBig5 Services or any activities conducted on the MyBig5 Services;
13.5. Modify the MyBig5 Services in any manner or form, or use modified versions of the MyBig5 Services, including (without limitation) for the purpose of obtaining unauthorized access to the MyBig5 Services;
13.6. Use any robot, spider, scraper, or other automated means to access the MyBig5 Services for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to the MyBig5 Services;
13.7. Impersonate another person or access another User’s account without that person’s permission or to violate any contractual or fiduciary relationships;
13.8. Share MyBig5-issued passwords with any third party or encourage any other User to do so;
13.9. Misrepresent the source, identity, or content of Information transmitted via the MyBig5 Services;
13.10. Modify, adapt, translate or create derivative works based upon the MyBig5 Services;
13.11. Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the MyBig5 Services, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
13.12. Rent, lease, loan, resell, sublicense, distribute or otherwise transfer the MyBig5 Services to any third party; provide time sharing or similar services for any third party; or use the MyBig5 Services for any purpose other than your own internal personal or business use;
13.13. Remove, circumvent, disable, damage or otherwise interfere with security-related features of the MyBig5 Services, features that prevent or restrict use or copying of any content accessible through the MyBig5 Services or MyBig5 Services, or features that enforce limitations on use of the MyBig5 Services or MyBig5 Services;
13.14. Access the MyBig5 Services if you are a direct competitor of MyBig5, except with MyBig5’s prior written consent, or for any other competitive purposes; or
13.15. Collect or harvest any personally identifiable information, including account names, from the MyBig5 Services.
14. Violations; Termination. You agree that MyBig5, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have with MyBig5. In addition, MyBig5 reserves the right to discontinue any aspect of the MyBig5 Services at any time, including the right to discontinue the display of any Information. You agree that any termination of your access to the MyBig5 Services or any account you may have or portion thereof may be affected without prior notice, and you agree that MyBig5 will not be liable to you or any third-party for such termination. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the MyBig5 Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies MyBig5 may have at law or in equity.
15. User Provided Information.
15.1. Definition of User Provided Information, Ownership. MyBig5 may now or in the future permit the uploading of Information through the MyBig5 Services (“User Provided Information”), and the hosting, sharing, display and/or analysis of such User Provided Information. Users may use their account settings to control other Users’ access to their User Provided Information (“User Permissions”). User Provided Information shall also include, without limitation, questions, responses, and related data, in any format or media, whether now known or hereafter developed within the MyBig5 Services and through any applicable channels. MyBig5 will use its commercially reasonable efforts to apply User Permissions. However, MyBig5 does not guarantee that User Permissions will always be applied, or that your User Provided Information will be kept secure from viewing by others, or from damage or loss. MyBig5 takes no responsibility and assumes no liability for any User Provided Information that you or any other Users or third parties post or send over the MyBig5 Services. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Provided Information that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the MyBig5 Services is solely your responsibility. If you want MyBig5 to remove your User Provided Information from the MyBig5 Services, please delete it as specified in the MyBig5 Services. However, other Users may have already copied or forwarded your User Provided Information to others, making recovery impossible. MyBig5 is not responsible for any public display or misuse of your User Provided Information. You understand that whether such User Provided Information is displayed, MyBig5 does not guarantee any confidentiality with respect to any User Provided Information. Users retain all right, title, and interest in and to all User Provided Information.
15.3. Limited License Grant to other MyBig5 Users. By submitting User Provided Information to MyBig5 Services, in cases where you display your User Provided Information for other Users to view or when you directly exchange or otherwise provide your User Provided Information to other Users as permitted by certain MyBig5 Services functionality and these Terms, you hereby grant to such Users of the MyBig5 Services a non-exclusive license to use, display, and reproduce such User Provided Information as necessary for such Users to use the relevant MyBig5 Services functionality or features.
15.4. License Termination. The foregoing licenses granted by you terminate as to specific User Provided Information once you remove or delete such User Provided Information from the MyBig5 Services; except for MyBig5’s right to archive such User Provided Information in accordance with its standard policies and to use such Information in aggregate form to improve the way the MyBig5 Services work and look, and to create new features and functionality.
15.5. Required Rights. You shall be solely responsible for your own User Provided Information and the consequences of posting or publishing it. In connection with User Provided Information, you affirm, covenant, represent and warrant that you own, or have the necessary licenses, rights, consents, and permissions to use and to authorize MyBig5 and MyBig5’s Users to use the User Provided Information uploaded by you as necessary to exercise the licenses granted by you in this Section 14, and otherwise in the manner contemplated by MyBig5 and these Terms.
15.6. User Provided Information Representations. You agree not to submit User Provided Information that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libellous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (vii) contains any information or content that you know is not correct and current. You agree that any User Provided Information that you post does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights, rights of publicity and privacy. MyBig5 reserves the right, but is not obligated, to reject and/or remove any User Provided Information that MyBig5 believes, in its sole discretion, violates these provisions.
15.7. User Provided Information Disclaimer. You understand that when using MyBig5 Services you will be exposed to User Provided Information from a variety of sources, and that MyBig5 is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Provided Information. You further understand and acknowledge that you may be exposed to User Provided Information that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against MyBig5 with respect thereto, and agree to indemnify and hold MyBig5, its owners/operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of User Provided Information. MyBig5 does not endorse any User Provided Information or any opinion, recommendation or advice expressed therein or based upon such User Provided Information, and MyBig5 expressly disclaims all liability in connection with User Provided Information. If notified by a User or a content owner of User Provided Information that allegedly does not conform to these Terms, MyBig5 may investigate the allegation and determine in good faith and in its sole discretion whether to remove the User Provided Information, which it reserves the right to do at any time. MyBig5 does not permit copyright infringing activities on MyBig5 Services.
16. Ownership; Proprietary Rights. The MyBig5 Services are owned and operated by MyBig5. The visual interfaces, graphics, design, compilation, information, computer code, products, software, services, and all other elements of the MyBig5 Services provided by MyBig5, but expressly excluding any of the foregoing owned or licensed by and posted to the MyBig5 Services at the direction of Users (including without limitation User Provided Information) (“Materials”) are protected by New Zealand copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any technology licensed by MyBig5, which is owned by and provided by our third-party licensors, all Materials contained in the MyBig5 Services, including without limitation the intellectual property rights therein and thereto, are the property of MyBig5 or its subsidiaries or affiliated companies. All trademarks, service marks, and trade names are proprietary to MyBig5 or its affiliates and/or third-party licensors. Except as expressly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Materials or the intellectual property rights therein or thereto, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
17. Third-Party Sites, Disclaimer of Content Warranties.
17.1. The MyBig5 Services may call the servers of other web sites or services solely at the direction of and as a convenience to Users (“Third-party Sites”). Any business relationship, exchange of data or other interaction between you and a third party, and/or any purchase, download or use by you of any product or service offered by a third-party (each, a “Third-Party Interactions”), is solely between you and such third-party, and you hereby agree to release and hold the MyBig5 harmless from and will look to such third-party with regard to any claims relating to or arising out of a Third-Party Interaction. MyBig5 is not a party to, has no involvement or interest in, and has no obligation in connection with, any communication, transaction, interaction, dispute or any relation whatsoever between you and any third-party through the MyBig5 Services; including, but not limited to, interactions related to payment and delivery of items and services, and any other terms, conditions, warranties or representations associated with such Third-Party Interactions. You hereby acknowledge such third-party owns all right, title and interest in and to the graphics, logos, service marks and trademarks, applications, multimedia content, or other information, published on MyBig5 website and referring to such third-party. You further acknowledge and agree you solely are responsible for ensuring that your Third-Party Interactions: (i) comply with all applicable foreign, federal and state laws and regulations; and (ii) do not violate any term, condition, rule, procedure, policy or other guideline, published by a third-party with which you interact or violate any proprietary rights of such third-party. MyBig5 makes no express or implied warranties about the Information, or other material, products, or services that are contained on or accessible through Third-party Sites. Access and use of Third-Party Sites, including the information, material, products, and services on such sites or available through such sites, is solely at your own risk.
17.2. YOU ACKNOWLEDGE THAT COMPANY DOES NOT MANAGE OR CONTROL THE USER PROVIDED INFORMATION THAT YOU ACCESS, STORE OR DISTRIBUTE THROUGH THE COMPANY SERVICES, AND ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR THAT INFORMATION REGARDLESS OF WHETHER SUCH USER PROVIDED INFORMATION IS TRANSMITTED TO OR BY YOU IN BREACH OF THESE TERMS. COMPANY MAKES NO WARRANTY WITH RESPECT TO SUCH USER PROVIDED INFORMATION YOU MAY ACCESS, STORE OR DISTRIBUTE THROUGH THE COMPANY SERVICES. IN PARTICULAR, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY MAKES NO WARRANTY THAT SUCH USER PROVIDED INFORMATION WILL BE FREE OF ANY VIRUS, WORM, TROJAN HORSE, EASTER EGG, TIME BOMB, CANCELBOT, OR OTHER DESTRUCTIVE OR MALICIOUS CODE OR PROGRAMS. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST MyBig5 WITH RESPECT TO THIRD-PARTY AND/OR USER PROVIDED INFORMATION THAT YOU CHOOSE TO ACCESS, STORE OR DISTRIBUTE, THROUGH THE COMPANY SERVICES.
18. Security and Privacy Settings. We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You understand that internet technologies have the inherent potential for disclosure. You acknowledge that you are under no obligation to provide personal or sensitive information to use the MyBig5 Services, and that you provide any personal or sensitive information at your own risk.
19. Disclaimers; No Warranties.
19.1. THE COMPANY SERVICES AND ANY THIRD-PARTY OR USER PROVIDED INFORMATION, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH COMPANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY, ITS SUPPLIERS, LICENSORS, AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
19.2. COMPANY, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN COMPANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE (INCLUDING WITHOUT LIMITATION ANY FORECASTS OR PREDICTIONS RELATED TO THE PROJECT MANAGEMENT FUNCTIONALITY AND BASED UPON USER PROVIDED INFORMATION THEREIN), THAT THE COMPANY SERVICES WILL MEET YOUR REQUIREMENTS, THAT DEFECTS WILL BE CORRECTED, OR THAT COMPANY SERVICES OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
19.3. COMPANY, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF COMPANY SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT COMPANY NOR ITS SUPPLIERS, LICENSOR OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THIRD-PARTY OR USER PROVIDED INFORMATION, MATERIAL, OR DATA THROUGH THE USE OF COMPANY SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH THIRD-PARTY OR SUBSCRIBER PROVIDED INFORMATION, MATERIAL, OR DATA. COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE OR MAINTAIN ANY THIRD-PARTY OR USER PROVIDED INFORMATION.
19.4. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
19.5. At all times, the MyBig5 Services will be rendered by MyBig5 for you and not for any other party. MyBig5’s views expressed therein are for the sole purpose of assisting you in evaluating and making decisions regarding various potential courses of action or opportunities. MyBig5’s views are not a recommendation of any particular course of action and are not intended to induce any party to take any action. You and your end users should make an independent determination of the course of action to pursue based on your own analysis of all available information including the advice of other third parties. Information obtained by MyBig5 from you or third parties on your behalf has been assumed to be accurate and complete and MyBig5 shall rely on and will not independently verify it. MyBig5’s views expressed in the results of the MyBig5 Services are based on various assumptions that may or may not prove to be correct and on information made available to us as of, the date thereof. Further, MyBig5 is not an insurance provider or a healthcare provider and does not provide psychological diagnosis or any other professional services. MyBig5 role is limited to providing the MyBig5 Services to you and/or facilitate your access to the Information and or the User Provided Information. The Information included in the MyBig5 Services is in no way intended as healthcare-related advice and is not provided for the purpose of diagnostics or treating medical and/or psychiatric problems.
Neither MyBig5, nor any of its subsidiaries or affiliates or any third party that may promote the MyBig5 Services or provide a link to the MyBig5 Services, shall be liable for any information provided to you via the MyBig5 Services. You acknowledge that your reliance on any information provided by MyBig5 via the MyBig5 Services is solely at your own risk and you assume full responsibility for all risk associated therewith.
20. Limitation of Liability.
20.1. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSSES OR LIABILITY RESULTING FROM LOSS OF DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, OR LOSS OF BUSINESS OPPORTUNITY) THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE INFORMATION OR MATERIALS ON COMPANY SERVICES, OR ANY OTHER INTERACTIONS WITH COMPANY, EVEN IF COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, COMPANY’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
20.2. IN NO EVENT WILL COMPANY’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSOR’S, OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF COMPANY SERVICES, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER USERS, (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING COMPANY SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
20.3. YOU ACKNOWLEDGE AND AGREE THAT COMPANY HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY.
21. Location of the MyBig5 Services. The MyBig5 Services are controlled and operated from our facilities in New Zealand. MyBig5 makes no representations that the MyBig5 Services are appropriate or available for use in other locations. Those who access or use the MyBig5 Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. You may not use the MyBig5 Services if you are a resident of a country embargoed by New Zealand, or are a foreign person or entity blocked or denied by the New Zealand government. Unless otherwise explicitly stated, all materials found on the MyBig5 Services are solely directed to individuals, companies, or other entities located in New Zealand. By using the MyBig5 Services, you are consenting to have your personal data transferred to and processed in New Zealand.
22. Indemnification; Hold Harmless. You agree to defend, indemnify and hold harmless MyBig5 and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the MyBig5 Services, including any data or work transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation of New Zealand or any other country; (v) any claim or damages that arise as a result of any of your User Provided Information or any other data that are submitted via your account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code. MyBig5 will have the right to control the defence, settlement, adjustment or compromise of any such claims, actions or proceedings by using counsel selected by MyBig5. MyBig5 will use reasonable efforts to notify you of any such claims, actions, or proceedings upon becoming aware of the same.
23.1. Notice. MyBig5 may provide you with notices, including those regarding changes to MyBig5’s terms and conditions, by email, regular mail or postings on the MyBig5 Services. Notice will be deemed given twenty-four hours after email is sent, unless MyBig5 is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the MyBig5 Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the MyBig5 Services is deemed given 5 days following the initial posting.
23.2. Waiver. The failure of MyBig5 to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by MyBig5.
23.3. Governing Law. These Terms will be governed by and construed in accordance with the laws of New Zealand, without giving effect to any principles of conflicts of law.
23.4. Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or MyBig5 will be filed only in New Zealand, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
23.5. Severability. If any provision of these Terms or any Guideline is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
23.6. Assignment. These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by MyBig5 without restriction.
23.7. Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, shall survive such termination or expiration, including, but not limited to, Sections 4-6, and 8 through 22 herein.
23.8. Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
23.9. Entire Agreement. This is the entire agreement between you and MyBig5 relating to the subject matter herein and will not be modified except in a writing, signed by both parties, or by a change to these Terms or Guidelines made by MyBig5 as set forth in Section 3 above.
23.10. Claims. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE COMPANY SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
23.11. Disclosures. The services hereunder are offered by Big 5 Software Ltd, located at: 126 Valley Road, Mount Eden 1024, New Zealand and email: support@MyBig5.work.
23.12. Publicity. You hereby consent to MyBig5’s use of your name and logo in MyBig5’s marketing and promotional materials and on the MyBig5 website.
These Terms were last modified on November 25, 2020.