Terms of Service
Acceptance of terms
Your Use of the Website shall be deemed to constitute your consent to be bound by this Agreement and shall be enforceable in the same way as if you had signed this Agreement.
THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY “CLAIM” (AS SUCH TERM IS DEFINED HEREIN) TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, THE SECTION BELOW ENTITLED “PRE-DISPUTE, MANDATORY BINDING ARBITRATION, AND CLASS ACTION WAIVER” DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THE ARBITRATION AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION.
You understand and agree that the Service may include advertisements. You also understand and agree that the Service may include certain communications from BM, such as service announcements and administrative messages. Changes and features that augment or enhance the current Service shall be subject to the TOS. You understand and agree that the Service is provided "as is" and that BM assumes no responsibility for the timeliness, deletion, mis-delivery of or failure to store any user content or settings. You are responsible for obtaining access to the Service, which access may involve third-party fees (such as Internet Service Provider charges). You are responsible for those fees, including fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
You may not access the Service for purposes of monitoring its performance, availability, or functionality, or for any other benchmarking or competitive purposes, without BM's prior written consent. You may not access the Service if you are a direct competitor of BM, except with BM's prior written consent.
In consideration of your use of the Service, you represent and warrant that (i) you are not barred from receiving services under any applicable jurisdiction, (ii) your use of the Service does not violate any applicable law or regulation, and (iii) you access the Service through one or more humans. Accounts registered by "bots" or other automated methods are not permitted. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form ("Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or BM has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, BM has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
You will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify BM of any unauthorized use of your password or account or any other breach of security; and (b) ensure that you exit from your account at the end of each session. BM cannot and will not be liable for any loss or damage arising from your failure to comply with the TOS, including, without limitation, this section.
The Service are owned and operated by BM and contain materials (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) which are derived in whole or in part from materials supplied by BM, as well as other sources, and are protected by copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Service are also protected as a collective work or compilation under copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Service. You acknowledge that the Service have been developed, compiled, prepared, revised, selected, and arranged by BM and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of BM. You agree to protect the proprietary rights of BM Service during and after the term of these Terms and to comply with all written requests made by BM or its suppliers and licensors (collectively, “Suppliers”) of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Service. You agree to notify BM immediately upon becoming aware of any claim that the Service infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Service shall, as between you and BM, at all times be and remain the sole and exclusive property of BM. Any unauthorized use of any material contained on or through the Service may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
User content and feedback
- User Content and Submissions on the Service. The Service allows you to create tasks and submit associated information, text, files, and other materials (collectively, “User Content”) and to share that User Content with others. User Content submitted or otherwise made available to the Service is subject to the following terms:
Content submitted to the Service by Subscribers (“Subscriber User Content”) is owned and controlled by the Customer as set forth in the introduction to these Terms and the Customer Agreement, except with respect to Subscriber User Content submitted by students pursuant to a Customer Agreement with an educational institution (“Student Content”). Such Student Content is owned by the student and not the educational institution. BM maintains a limited, non-exclusive and non-transferrable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display Subscriber User Content for the following limited purposes: (i) to maintain, provide and improve the Service; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Subscriber User Content is in violation of the Customer Agreement or these Terms; (iv) to comply with a valid legal subpoena, request, or other lawful process that meets the requirements of the Customer Agreement and our Law Enforcement Guidelines; and (v) as otherwise set forth in our Customer Agreement or as expressly permitted in writing by the Customer.
- Feedback on the Website. The Website may have certain features that allow you to submit comments, information, and other materials (collectively, “Feedback”) to BM and share such Feedback with other users, or the public. By submitting Feedback through the Website, you grant BM a license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Feedback for any purpose (including in testimonials or other BM marketing materials and where required to do so by law or in good faith to comply with legal process.). We reserve the right to remove any Feedback posted in public forums for any reason at our sole discretion.
- User Content and Feedback Representations. You acknowledge and agree that you have all required rights to submit User Content and Feedback without violation of any third-party rights. You understand that BM does not control, and is not responsible for, User Content or Feedback, and that by using the Service and/or Website, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content and Feedback may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless BM for all claims resulting from User Content or Feedback you submit through the Service and/or Website. We reserve the right, at our own expense, to assume the exclusive defence and control of such disputes, and in any event you will cooperate with us in asserting any available defences.
License and acceptable use
- Acceptable Use. All Users must comply with the following rules regarding acceptable use of the Service. Disruption of the Service. You may not:
- access, tamper with, or use non-public areas of the Service, BM’s computer systems, or the technical delivery systems of BM’s providers;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
- access or search the Service by any means other than BM’s publicly supported interfaces (for example, “scraping”);
- attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or
- interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of User Content in such a manner as to interfere with or create an undue burden on the Service.
Misuse of the Service. You may not utilize the Service to carry out, promote or support:
- any unlawful or fraudulent activities;
- the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
- activities that are defamatory, libellous or threatening, constitute hate speech, harassment, or stalking;
- the publishing or posting of other people’s private or personal information without their express authorization and permission;
- the sending of unsolicited communications, promotions advertisements, or spam;
- the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or
- the promotion or advertisement of products or services other than your own without appropriate authorization.
User Content Standards Within the Service. You may not post any User Content on the Service that:
- violates any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
- is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography), defamatory, libellous or threatening, constitutes hate speech, harassment, or stalking;
- contains any personal information of minors;
- contains any sensitive personal information, such as financial information, payment card numbers, social security numbers, or health information without BM’s prior written consent granted as part of a Customer Agreement;
- contains viruses, bots, worms, or similar harmful materials; or
- contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.
Violations of this Section 5. In addition to any other remedies that may be available to us, BM reserves the right to take any remedial action it deems necessary, including immediately suspending or terminating your account or your access to the Service, upon notice and without liability for BM should you fail to abide by the rules in this Section 5 or if, in BM’s sole discretion, such action is necessary to prevent disruption of the Service for other users. If you are a Subscriber, BM reserves the right to notify the Customer’s Account Administrator(s) or other Customer representative(s) of any violations of these Terms.
Warranties, disclaimers and limitation of liability
THE SERVICE AND USER CONTENT, WHETHER PROVIDED BY BM, ITS LICENSORS, ITS VENDORS OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICE ARE PROVIDED “AS IS” WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, BUT WITHOUT LIMITATION, BM DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICE AND WEBSITES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF USER CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICE AND WEBSITES OR THE SERVER(S) THAT MAKE THE SERVICE AND WEBSITES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN NO EVENT SHALL BM OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AND WEBSITES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICE AND WEBSITES, OR ANY LINK PROVIDED ON THE SERVICE AND WEBSITES, WHETHER OR NOT BM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE SERVICE OR WEBSITES TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100. BM DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE, AND BM WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICE. BM WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Exclusions and limitations
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above in Section 7. Accordingly, some of the above limitations may not apply to you.
BM reserves the right at any time to modify or discontinue, temporarily or permanently, the Service (or any part thereof), with or without notice. You agree that BM shall not be liable to you or any third party for any modification, suspension or discontinuance of the Service.
Mandatory arbitration and class action waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
- Application. You and BM agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 11 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
- Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with BM, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
- Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section 11.7 below) subject to the terms set forth below.
- Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
- Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration (“Demand”) that (i) briefly explains the dispute, (ii) lists your and BM’s names and addresses, (iii) specify the amount of money in dispute, if applicable, (iv) identify the requested location for a hearing if an in-person hearing is requested, and (v) state what you want in the dispute; (b) send one copy of the Demand to the arbitrator, along with a copy of these Terms and the filing fee required by the arbitrator; and (c) Send one copy of the Demand for Arbitration to us.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
- Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND BM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- Exception: Litigation of Intellectual Property and Small Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
- 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within the later of 30 days of your first use of the Service or within 30 days of changes to this section being announced on the Site. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, BM also will not be bound by them.
- Changes to This Section. BM will provide thirty (30) days’ notice of any changes to this section by posting on the Service. Amendments will become effective thirty (30) days after they are posted on the Service or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Service.
- Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Service and Websites.
- Force Majeure. Under no circumstances shall BM or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
- No Waiver. No waiver of any provision of these Terms will be binding unless in writing, no waiver of any provisions of these Terms will be deemed a further or continuing waiver of such provision or any other provision, and the failure of BM to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavour to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
- Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
- Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and BM and govern your use of the Service and supersede any prior agreements between you and BM on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by BM without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of BM. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form.
- Notices. We may deliver notice to you by e-mail, posting a notice on the Service or any other method we choose, and such notice will be effective on dispatch.