MY BUSINESS PLATFORM TERMS OF USE
FOR INTEGRATED SOLUTION PARTNERS
These Terms of Use (the “Terms“) govern your use of the My Business Platform web-based administrative dashboard as well as any other website, mobile application or related service that may, from time to time, be provided to you in connection with the Service. The ISP Platform Site, My Business Platform Site and the Service are owned and operated by My Business Platform.
AN ISP’s AND EACH USER’S USE OF THE SERVICE AND ISP PLATFORM SITE WILL CONSTITUTE ACCEPTANCE OF AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH AN ISP AND EACH USER AGREES TO BE BOUND BY THESE TERMS AND THE AGREEMENT, WITHOUT MODIFICATION.
1. DEFINITIONS
“Agreement” means the Order Form, these Terms, and each of the other agreements incorporated by reference in these Terms.
“Authorized Contacts” means the Support Services Authorized Contact(s) listed on the Order Form.
“Beta Service” means a My Business Platform service that is not generally available to each ISP.
“Client” means each client of My Business Platform that grants an ISP and its Users access to Client Data through some or all of the Client’s Modules on such Client’s My Business Platform Site.
“Client Data” means electronic data and information uploaded or submitted by or for a Client through such Client’s My Business Platform Site or collected and processed by or for a Client using such Client’s My Business Platform Site.
“Client User” means an individual who is authorized by a Client to access and use such Client’s My Business Platform Site.
“Documentation” means online user guide documentation and help and training materials, as updated from time to time, relating to the Service.
“ISP” means any party that executes an Order Form with My Business Platform.
“ISP Platform Site” means a web-based administrative dashboard as well as any other website, mobile application or related service that may, from time to time, be provided to allow an ISP and Users access through the Service to a Client’s Modules and Client Data.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Modules” mean the Modules in a Client’s My Business Platform Site to which such Client grants access to an ISP.
“My Business Platform” means My Business Platform, LLC, a Florida limited liability company with offices at 20423 State Road 7, Suite F-6, Boca Raton, FL 33498.
“My Business Platform Site” means a web-based administrative dashboard as well as any other website, mobile application or related service that may, from time to time, be provided to allow a Client and Client Users access to Client Data.
“My Business Platform IP” means all intellectual property rights in the Service, ISP Platform Site, any My Business Platform Site and other My Business Platform intellectual property rights.
“Order Form” means the My Business Platform Technology Services Integrated Solution Partner Order Form executed by an ISP and My Business Platform.
“Parties” and “Party” means each ISP and My Business Platform.
“Service” means the My Business Platform software as a service that is made available online through the ISP Platform Site. The “Service” does not include the Support Services.
“Support Services” means the onboarding and training support services relating to setting up the ISP Platform Site.
“User” means an individual for whom ISP has authorized password protected access to the ISP Platform Site through the Service.
3. MY BUSINESS PLATFORM RESPONSIBILITIES
3.1 Provision of Service. My Business Platform shall make the Service available to an ISP through the ISP Platform Site pursuant to the Agreement. My Business Platform makes no guarantees as to the continuous availability of the Service through the ISP Platform Site or of any specific feature of the ISP Platform Site since: (a) it is hosted by third parties and (b) it interoperates with products from third parties, including web browsers.
3.2 Beta Service. From time to time, My Business Platform may invite an ISP to try a Beta Service. ISP may accept or decline any Beta Service in ISP’s sole discretion. A Beta Service will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a description of similar import. A Beta Service is for evaluation purposes only and not for production use, is not considered a “Service” under the Agreement, is not supported, and may be subject to additional terms. My Business Platform may discontinue a Beta Service at any time in its sole discretion without notice and may never make it generally available. My Business Platform will have no liability for any harm or damage related to use of a Beta Service.
3.3 PRIVACY POLICY. Where My Business Platform is a controller or a “business” as defined by applicable law or regulations, its processing of personal information/data shall also be governed by the Privacy Policy posted at https://mybusinessplatform.com and incorporated by reference herein (“Privacy Policy”). The Privacy Policy may be amended from time to time, and it is the responsibility of the ISP to regularly review the Privacy Policy. Continued use of the Service through the ISP Platform Site by an ISP following any change to the Privacy Policy will constitute ISP’s agreement to be bound by the revised terms of the Privacy Policy.
4. USE OF ISP PLATFORM SITE AND SERVICE
4.1 ISP Responsibilities. ISP shall: (a) be responsible for each Users’ compliance with the terms of the Agreement; (b) be responsible for the use of any Client Data and the means by which ISP and Users acquire Client Data by accessing Modules; (c) be responsible for accurately setting the access permissions for each User; (d) use commercially reasonable efforts to prevent unauthorized access to or use of ISP Platform Site and the Service, (e) notify My Business Platform promptly of any unauthorized access or use of the ISP Platform Site and the Service; and (f) use the ISP Platform Site and the Service only in accordance with the terms of the Agreement and applicable laws and government regulations.
4.2 Usage Restrictions. ISP shall not: (a) make the ISP Platform Site, the Service or the My Business Platform IP available to anyone other than Users, or use ISP Platform Site for the benefit of any party other than ISP; (b) sell, resell, license, sublicense, distribute, rent or lease the ISP Platform Site, the Service or the My Business Platform IP, or include them in a service bureau or outsourcing offering; (c) use the ISP Platform Site to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party’s privacy rights; (d) use the ISP Platform Site or the Service to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the IP Platform Site, the Service, any My Business Platform Site or third-party data contained in or accessed through the ISP Platform Site, including the Client Data; (f) attempt to gain unauthorized access to the ISP Platform Site, the Service or My Business Platform IP or their respective related systems or networks; (g) permit direct or indirect access to or use of the ISP Platform Site in a way that circumvents a contractual usage limit; (h) copy the ISP Platform Site, the Service or the My Business Platform IP or any part, feature, function, software code, or user interface thereof; (i) copy the Documentation other than as reasonably necessary in connection with the permitted use by an ISP of the Service; (j) frame or mirror any part of the ISP Platform Site or the Service; (k) access the ISP Platform Site, the Service, any My Business Platform Site or the My Business Platform IP in order to build a competitive product or service; (l) reverse engineer the ISP Platform Site, the Service, any My Business Platform Site or the My Business Platform IP; (m) download, read, display, copy, modify or transmit any program code or documentation comprising an internal part of the ISP Platform Site, the Service, any My Business Platform Site or the My Business Platform IP; or (n) use the ISP Platform Site, the Service, any My Business Platform Site or the My Business Platform IP for any purpose that is unlawful or prohibited by the Agreement.
4.3 Usernames and Passwords. With respect to My Business Platform’s requirement that access to the ISP Platform Site, or any portion of the ISP Platform Site, is password protected, ISP shall: (a) provide accurate, complete, and up to date information; (b) update information to keep it accurate, current, and complete; and (c) comply with the terms of the Agreement. Failure to provide accurate information constitutes a breach of the Agreement, which may result in immediate termination of an ISP’s right to access the ISP Platform Site. Furthermore, ISP and each User shall not: (a) give a password to any unauthorized person; (c) use the ISP Platform Site as the agent of a third party; (b) allow any unauthorized party to use the ISP Platform Site; (d) sell or transfer use of or access to the ISP Platform Site or permit anyone else whose account was suspended or terminated to use the ISP Platform Site through an ISP username or password; or (e) select a username that impersonates someone else, is intended to disguise the user’s identity, is or may be illegal, may be protected by trademark or other proprietary rights, is vulgar or offensive, or may cause confusion. My Business Platform reserves the right to reject any username in its sole discretion. If any security breach or unauthorized use of an ISP’s account occurs, ISP shall notify My Business Platform immediately in writing (including by email). My Business Platform will not be liable for any loss ISP may incur as a result of an unauthorized user accessing an ISP password and account with or without the ISP’s permission.
4.4 Certification and Audit Rights. On written request, ISP shall provide a signed certification: (a) verifying that the ISP Platform Site and the Service is being used in accordance with the terms of the Agreement; and (b) listing the Users and the locations where the IPS Platform Site and the Service is accessed. My Business Platform may audit an ISP’s use of the ISP Platform Site and the Service and compliance with the terms of the Agreement. Any audit will be conducted during Business Hours and will not unreasonably interfere with ISP ’s business activities. ISP shall provide all reasonable assistance and information reasonably requested to determine whether ISP is in compliance with the Agreement. My Business Platform reserves the right, in its sole discretion, to remove any data, images, statements or other information uploaded by ISP or the Users to the ISP Platform Site and ISP and each User consents to My Business Platform’s right to remove any such data, images, statements or other information.
5. SUPPORT SERVICES
5.1 Scope of Support. My Business Platform shall provide Support Services in accordance with this Section 5 and subject to the Service Level Agreement posted at https://mybusinessplatform.com and incorporated by reference herein (“SLA”). The SLA may be amended from time to time, and it is the responsibility of the ISP to regularly review the SLA. Continued use of the Service through the ISP Platform Site by an ISP following any change to the SLA will constitute ISP’s agreement to be bound by the revised terms of the SLA.
5.2 Support Requests. An Authorized Contact may request Support Services by telephone or email (a “Support Request”) during normal business hours between 9:00 am and 5:30 pm ET, Monday through Friday, excluding the Holidays (“Business Hours”).
5.3 Additional Support. ISP may have a need for support that is not covered under Support Services. This additional support will be available for additional fees.
5.4 Support Limitations. My Business Platform agrees to provide Support Services under the Agreement only to an ISP’s Authorized Contacts. My Business Platform has no other obligation to provide any Support Services to ISP’s Users, customers, employees, contractors, agents, or vendors. My Business Platform is not obligated to provide help desk or similar services to Users or any on-site services.
5.5 Holidays. My Business Platform does not provide Support Services on company holidays, which are New Year’s Day, Martin Luther King Jr. Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after, Christmas Eve and Christmas Day. If any of these holidays fall on a Saturday, the Saturday and the Friday before will be considered holidays. If any of these holidays fall on a Sunday, the Sunday and the Monday after will be considered holidays.
6. PROPRIETARY RIGHTS
6.1 My Business Platform IP. Subject to the limited usage rights expressly granted in the Agreement, My Business Platform and its licensors reserve all right, title and interest in and to the ISP Platform Site, the Service, My Business Platform Site and the My Business Platform IP, including all related patent, copyright, trade secret, trademark, and other intellectual property rights. This ownership includes any suggestions, ideas, enhancement requests, feedback, or recommendations ISP may provide relating to the Service (“Feedback”), and ISP hereby assigns to My Business Platform all right, title and interest in the Feedback and all intellectual property rights therein. ISP is not getting a license to any software programs, but only the right to access and use the ISP Platform Site and the Service in accordance with the terms of the Agreement. No rights are granted to ISP other than as expressly set forth in the Agreement.
6.2 Client Data. ISP agrees that all right, title and interest in and to any Client Data belongs to the applicable Client, including all related patent, copyright, trade secret, trademark, and other intellectual property rights. ISP agrees that it is not getting a license to use any Client Data in the Agreement, but only the right to access the Client Data through the Modules. The right of ISP to use any Client Data will be solely governed in accordance with any agreements between the ISP and the applicable Client. My Business Platform exercises no control over and has no liability to ISP with respect to ISP’s or the User’s access to the Client Data or ISP’s or User’s use of Client Data or any other information accessed by ISP or Users through the Modules.
6.3 Federal Government End Use Provisions. My Business Platform provides the ISP Platform Site and Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the ISP Platform Site and Service include only those rights customarily provided to the public as defined in the Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with My Business Platform to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
7. FEES AND PAYMENT
7.1 Fees. ISP shall pay all monthly fees specified in the Order Form (the “Fees”). Except as otherwise specified in the Agreement, payment obligations are non-cancelable, and Fees paid are non-refundable.
7.3 Suspension of Service and Acceleration. If any amount owing by an ISP under the Agreement is five (5) or more days overdue, My Business Platform may, without limiting any other rights and remedies, do one or both of the following: (a) accelerate ISP’s unpaid fee obligations so that they all become immediately due and payable; and/or (b) suspend ISP’s access to the ISP Platform Site and the Service until the unpaid amounts are paid in full.
7.4 Payment Disputes. My Business Platform shall not exercise its rights under Section 7.3 (Suspension of Service and Acceleration) above if ISP is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
7.5 Stripe Payment Processing Services. My Business Platform uses Stripe for payment of all Fees. The Stripe Privacy Policy and Data Processing Agreement posted at [●] (collectively, the “Stripe Terms”) governs Stripe’s use of personal data provided to Stripe in connection with the collection and payment of the Fees. By submitting your payment and associated personal data, ISP grants My Business Platform the right to provide the information to Stripe for the purpose of effectuating payment of the Fees. ISP agrees to the Stripe Terms. My Business Platform is not responsible and has no liability for any acts, omissions or errors of Stripe in connection with the collection and payment of the Fees or the collection, use, storage and disclosure of personal data.
7.6 Taxes. The Fees payable under the Agreement do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction related to the Service under the Agreement (collectively, “Transaction Taxes”). ISP is responsible for paying all Transaction Taxes associated with the Service. If My Business Platform has the legal obligation to pay or collect Transaction Taxes for which ISP is responsible, My Business Platform shall notify ISP and ISP shall pay that amount unless ISP provides My Business Platform a valid tax exemption certificate authorized by the appropriate taxing authority.
8. TERM AND TERMINATION
8.1 Term. The Agreement commences on the Effective Date specified on the Order Form and continues in accordance with the terms specified in the Order Form.
8.2 Termination. A Party may terminate the Agreement for cause: (a) if the other Party is in material breach of the Agreement and the breach remains uncured for fifteen (15) days after the non-breaching Party provides the breaching Party with written notice of such breach and the breaching Party has failed to correct such breach within such timeframe; or (b) immediately and without notice if the other Party becomes the subject of any bankruptcy or insolvency proceeding.
8.3 Termination By My Business Platform. My Business Platform may terminate the Agreement, in whole or in part, without cause at any time and without liability, upon not less than thirty (30) days’ written notice to ISP. My Business Platform may terminate the Agreement, without cause, without prior notice and without liability, if My Business Platform believes ISP may cause or create a risk or possible legal exposure for My Business Platform or provision of the Service is no longer commercially viable.
8.4 Effect of Termination. Termination of the Agreement for any reason will in no way affect ISP’s obligations to pay all Fees owed prior to the date of such termination. My Business Platform’s termination rights set forth in the Agreement are cumulative and are in addition to all other rights and remedies available to My Business Platform.
8.5 Surviving Provisions. Section 1 (Definitions), Section 4 (Use of the Service), Section 6 (Proprietary Rights), , Section 7 (Fees and Payment), Section 8 (Term and Termination), Section 9 (Confidentiality), Section 10 (Limited Warranties; Exclusive Remedies), Section 11 (Limitation of Liability), and Section 12 (General Provisions) will survive any termination of the Agreement.
9. CONFIDENTIALITY
9.1 Definition. “Confidential Information” means all information disclosed by a Party (the “Discloser”) to the other Party (the “Recipient”), whether verbally or in writing, which is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. My Business Platform’s Confidential Information includes the Service, the ISP Platform Site, My Business Platform IP, business and marketing plans, technology and technical information, product plans and designs, and business processes of My Business Platform. Confidential Information of each Party includes the confidential terms of the Agreement (including pricing).
9.2 Protection of Confidential Information. The Recipient shall: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information for any purpose outside the scope of the Agreement; and (c) except as otherwise authorized by the Discloser in writing, limit access to Confidential Information to those of its employees and consultants who need that access for purposes consistent with the Agreement and who are bound by confidentiality obligations no less stringent than those in the Agreement. Neither Party shall disclose the confidential terms of the Agreement to any third party other than its legal counsel. tax advisors and accountants without the other Party’s prior written consent, provided that a Party that makes a disclosure to its legal counsel, tax advisors or accountants will remain responsible for their respective compliance with this Section 9.2 (Protection of Confidential Information).
9.3 Exceptions. The Recipient has no obligations under Section 9.2 (Protection of Confidential Information) with respect to any Confidential Information if it: (a) is or becomes generally known, or readily ascertainable by proper means, by the public other than through a breach of the Agreement by the Recipient; (b) was known by the Recipient before it is disclosed to the Recipient by the Discloser as evidenced by Recipient’s written records; or (c) is disclosed to the Recipient by a third party not subject to any nondisclosure obligations with respect to the Confidential Information.
9.4 Compelled Disclosure. If the Recipient receives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or order issued by a court or other governmental agency, the Recipient shall: (a) if legally permissible, immediately notify the Discloser of the existence, terms, and circumstances surrounding the request; (b) consult with the Discloser on the advisability of taking legally available steps to resist or narrow the request; and (c) if disclosure is required, cooperate with the Discloser at the Discloser’s expense in obtaining an order or other reliable assurance that confidential treatment will be accorded to the portion of the information as the Discloser may designate.
9.5 Business Associate Agreement. ISP has executed a Business Associate Agreement with each Client, which governs use and disclosure of certain types of Client Data.
9.6 Use of ISP’s Name. Notwithstanding any other provision of the Agreement, upon execution of the Order Form, ISP shall promptly provide My Business Platform with a file containing ISP’s preferred logo(s) for limited use on My Business ‘s website. In addition, My Business Platform may also use ISP’s name and logo on: (a) My Business Platform’s sales and marketing materials and case studies; and (b) My Business Platform’s tradeshow booths, sales proposals and printed collateral. It is expressly understood and agreed that My Business Platform will be permitted to use ISP’s name and logo within a representative list of My Business Platform’s clients. My Business Platform shall not use ISP’s logo or name for any additional uses without ISP’s prior written approval (which may be by email).
10. LIMITED WARRANTIES; EXCLUSIVE REMEDIES
10.1 Limited Warranty; Disclaimer. The ongoing hosting, maintenance, support and other services that may be provided by My Business Platform pursuant to the terms of the Agreement shall be performed in a professional and workmanlike manner and pursuant to the terms of the SLA. My Business Platform shall not be liable for a breach of the warranty set forth in the immediately preceding sentence unless ISP gives written notice (describing the defect in reasonable detail) to My Business Platform within five (5) days of the time when ISP discovers or should have discovered that the Service was defective. Subject to My Business Platform receiving proper notice that the Service was defective in accordance with this paragraph and verification of such defect, ISP may terminate the Agreement and receive a refund of any prepaid Fees, if any, attributable to the month of the date of termination. The foregoing notwithstanding, ISP’s sole and exclusive remedy for any Unavailability (as defined in the SLA) shall be subject to the remedies set forth in the SLA. Notwithstanding any provision of the Agreement, the Parties agree that there will not be defective Service arising from the fact that certain Service is provided in one Module of the My Business Platform Site and not provided in another Module of the My Business Platform Site.
10.2 Exclusive Remedies. THE REMEDIES SET FORTH IN THIS SECTION 10 AND PURSUANT TO THE SLA SHALL BE ISP’S SOLE AND EXCLUSIVE REMEDY AND MY BUSINESS PLATFORM’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10.1. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ISP FROM MY BUSINESS PLATFORM, OR THROUGH OR FROM THE USE OF THE ISP PLATFORM SITE, THE SERVICE OR ACCESS TO A CLIENT’S MODULES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10.1, ISP’S USE OF THE SERVICE AND THE ISP PLATFORM SITE AND ACCESS TO A CLIENT’S MODULES IS AT ISP’S SOLE RISK AND ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND MY BUSINESS PLATFORM MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICE OR THE ISP PLATFORM SITE OR WITH RESPECT TO A CLIENT’S MODULES, OR THE RESULTS THEREOF, INCLUDING (A) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE; (B) THAT ISP’S USE OF THE SERVICE OR THE ISP PLATFORM SITE OR ACCESS TO A CLIENT’S MODULES AND CLIENT DATA WILL MEET ISP’S REQUIREMENTS; (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; OR (D) THAT ISP’S USE OF THE SERVICE OR ISP PLATFORM SITE OR ACCESS TO A CLIENT’S MODULES OR CLIENT DATA WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; IN EACH CASE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE FOREGOING DISCLAIMERS AND LIMITATIONS ON WARRANTY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
10.3 Additional Disclaimers. MY BUSINESS PLATFORM DOES NOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY ISP OR USERS IN USING THE ISP PLATFORM SITE OR THE SERVICE, OR THAT THE USE OF THE ISP PLATFORM SITE OR THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR THAT THE SERVICE WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS, OR DATA OTHER THAN AS IDENTIFIED IN THE AGREEMENT, OR THAT THE SERVICE WILL MEET ISP’S OR ANY USER’S REQUIREMENTS.
10.4 Internet Delays. ISP PLATFORM SITE AND THE SERVICE AND ACCESS TO A CLIENT’S MODULES AND CLIENT DATA MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MY BUSINESS PLATFORM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
10.5 Future Functionality. ISP agrees that ISP’s subscription for the Service is not contingent on the delivery of any future functionality or features, or dependent on any verbal or written public comments made by My Business Platform regarding future functionality or features.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. IN NO EVENT WILL MY BUSINESS PLATFORM BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE OR (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IF NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON MY BUSINESS PLATFORM, EACH ISP AGREES THAT MY BUSINESS PLATFORM’S TOTAL LIABILITY UNDER THE AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY AN ISP UNDER THE AGREEMENT IN THE TWO (2) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS ABOVE AND ELSEWHERE IN THE AGREEMENT SHALL APPLY REGARDLESS OF WHETHER A PARTY IS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS AND EVEN IF THE AVAILABLE REMEDIES UNDER THE AGREEMENT FAIL THEIR ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIVE REMEDIES SET FORTH IN THE AGREEMENT ARE RELATED TO THE FEES AT WHICH MY BUSINESS PLATFORM IS PROVIDING THE SERVICE HEREUNDER AND, WERE MY BUSINESS PLATFORM TO ASSUME ANY FURTHER LIABILITY, THE FEES OFFERED TO ISP WOULD, OUT OF NECESSITY, BE SET MUCH HIGHER.
11.2 Basis of the Bargain. ISP ACKNOWLEDGES THAT THE FEES UNDER THE AGREEMENT REFLECT THE OVERALL ALLOCATION OF RISK BETWEEN THE PARTIES, INCLUDING BY MEANS OF THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDIES DESCRIBED IN THE AGREEMENT. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN AND A MODIFICATION OF THESE PROVISIONS WOULD SUBSTANTIALLY AFFECT THE FEES. IN CONSIDERATION OF THESE FEES, ISP AGREES TO THIS ALLOCATION OF RISK AND HEREBY WAIVES ANY RIGHT, THROUGH EQUITABLE RELIEF OR OTHERWISE, TO SUBSEQUENTLY SEEK A MODIFICATION OF THESE PROVISIONS OR ALLOCATION OF RISK.
12. GENERAL PROVISIONS
12.1 Export Compliance. The Service, other technology My Business Platform may make available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. ISP represents that it is not named on any U.S. government denied-party list. ISP shall not permit Users to access or use the Service in a U.S. embargoed country or in violation of any applicable export or import law or regulation.
12.2 Legal Expenses. In the event legal action is taken by a Party to enforce its rights under the Agreement, the non-prevailing Party shall reimburse the prevailing Party for all costs and expenses incurred by it, including reasonable attorneys’ fees and court costs.
12.3 Notice. All notices under the Agreement, including notices of address change, must be in writing and will be deemed given when received by: (a) certified mail, return receipt requested; or (b) a nationally recognized overnight delivery service (such as Federal Express), to the appropriate Party at the relevant address stated in the Order Form, unless a Party notifies the other of a new address in writing, in which case the new address will be used.
12.4 Severability. If any provision of the Agreement is held by a court to be illegal, unenforceable, or in conflict with any law of a federal, state, or local government, the validity of the remaining provisions will remain in full force and effect.
12.5 Governing Law. The Agreement and all matters arising out of or relating to the ISP Platform Site, the Service, access to a Client’s Module or Client Data or the terms of the Agreement are governed by the laws of the state of Florida, without regard to its conflict of law principles to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the state of Florida. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. Any action arising out of a dispute between the Parties shall be brought in the state or federal courts located in Palm Beach County, Florida. Each Party submits itself to the jurisdiction and venue of those courts for purposes of such action and each shall accept service of process by certified mail, return receipt requested.
12.6 Waiver. The waiver by either Party of any breach of the Agreement will not constitute a waiver of any other or subsequent breach.
12.7 Assignment. ISP shall not transfer, by operation of law or otherwise, these Terms or the Agreement or any right or duty arising hereunder or thereunder to a third party without My Business Platform’s prior written consent. My Business Platform may transfer these Terms and the Agreement, together with all of its rights and duties hereunder and thereunder without the consent of any ISP. Any purported transfer in violation of this Section 12.7 by ISP will be void.
12.8 Relationship of the Parties. The relationship of the Parties is that of independent contractors. Neither Party is the agent of the other Party, and neither Party is authorized to act on behalf of the other Party.
12.9 No Third-Party Beneficiaries. There are no third party beneficiaries of the Agreement, including without limitation any User, any Client or any Client User.
12.10 Force Majeure. My Business Platform will not be held responsible for any delay or failure in performance hereunder caused by fire, strike, flood, pandemic, embargo, labor dispute, delay or failure of any subcontract, act of sabotage, riot, accident, delay of carrier or supplier, limitations or delays inherent in the use of the internet, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any other cause beyond the My Business Platform’s reasonable control.
12.11 Entire Agreement; Modifications. The Agreement contains all the agreements, representations, and understandings of the Parties, and supersedes any previous understandings, commitments, or agreements, verbal or written, with respect to the subject matter of the Agreement. Notwithstanding the foregoing, My Business Platform reserves the right, in their sole discretion, to change these Terms and the Agreement and/or the Service offered from time to time (“Updated Terms”). Unless My Business Platform makes a change for legal or administrative reasons, My Business Platform will provide reasonable advance notice before the Updated Terms become effective. ISP agrees that My Business Platform may notify ISP of the Updated Terms by posting notification of such Updated Terms on the ISP Platform Site and that ISP’s or any User’s use of the ISP Platform Site after the effective date of any Updated Terms constitutes ISP’s agreement to such Updated Terms. Accordingly, ISP should carefully review these Terms, the Agreement and any Updated Terms.
