Benergy Website Terms Of Use

THESE TERMS OF USE ("Terms and Conditions") ARE A LEGAL AGREEMENT BETWEEN YOU (COLLECTIVELY THE INDIVIDUAL AND THE COMPANY, IF ANY, THAT THE INDIVIDUAL REPRESENTS "CLIENT" OR "YOU") AND EBIX, INC. ("WE" OR "US"). THE PERSON AGREEING FOR CLIENT REPRESENTS AND WARRANTS THAT PERSON HAS AUTHORITY TO, AND DOES, AGREE TO THIS AGREEMENT ON BEHALF OF CLIENT. CLIENT REPRESENTS AND WARRANTS THAT CLIENT HAS CAREFULLY READ AND AGREED TO THESE TERMS AND CONDITIONS. The parties agree as follows:

1. Subscription Services. You subscribe to the services made available through the Benergy website ("Benergy Services") and We grant to You a non-exclusive, non-transferable, non-assignable license to access and use the Benergy Services solely for Your internal use by Your Users to manage and communicate Your information with Your employees. You are only authorized to access and use the Benergy Services. We may update, enhance, or modify the Benergy Services from time to time to include new features, improve functionality, and address customer feedback without notice. You shall maintain a copy of all computer software applications required to provide the Benergy Services on computers owned or operated on Your behalf. You will not be entitled to receive a copy of the software used to provide the Benergy Services. We will provide the Benergy Services pursuant to Our service levels viewable at http://www.adam.com/BenergyServiceLevelAgreement.aspx. We may make available end-user instructions for use and operation of the Benergy Services ("Documentation") electronically or otherwise, and You and the individuals you authorize to access the Benergy Services ("Users") may use the Documentation only in connection with use of the Benergy Services.

2. Reservation of Rights. All rights granted in this Agreement are a license, not a sale. We reserve all rights not expressly granted in this Agreement. You may not, and will not permit any third party to, copy, modify, adapt, or create derivative works of the Benergy Services or Documentation, remove any copyright or other proprietary rights notices, or disassemble, decompile, decrypt, or reverse engineer, or otherwise attempt to discover or replicate source code for the Benergy Services.

3. Login Information. Each of Your Users will be required to provide password and login identification ("Login Information") in order to access the Benergy Services. You are fully responsible for all uses of the Login Information attributable to You and Your Users. You will (i) protect the confidentiality of all Login Information, (ii) require Login Information for each User; (iii) notify Us of any breach of the confidentiality of any Login Information, and (iv) update and maintain current the Login Information in a manner to notify Us if any individual is no longer authorized to use the Login Information or misuses the Login Information. You will not provide Login Information to any person that is not Your employee or contractor. We reserve the right to suspend or terminate access by any User accessing the Benergy Services under user/login rights granted to You if such use represents a breach of the terms and conditions of this Agreement or security risk to Our systems without liability or limiting any other remedies available to Us.

4. Your Data. In order to utilize the Benergy Services as intended, You are responsible to provide information and data for inclusion in the Benergy Services ("Your Data") and as otherwise described in this Agreement. You grant Us the right to copy, transmit and use Your Data in connection with providing the Benergy Services or other services You order. We acknowledge that Your Data constitutes Your Proprietary Information. You grant Us a limited license to access, copy, display, reproduce, and transmit Your Data solely for the purpose of providing the Benergy Services and performing Our obligations under this Agreement, and You warrant that You are authorized to provide Your Data to Us for these purposes. Additionally, We may use Your Data in an aggregated manner without identifying You or Your employees for purposes of optimizing the Benergy Services or providing information to Our prospective customers, investors or advisors. You authorize us to make your Data accessible to your Broker -- who sold with access to the Benergy Services, if applicable.

5. Your Obligations. You represent and warrant that (a) You will provide all information reasonably necessary for Our provision of the Benergy Services and to allow You and Your Users to use the Benergy Services as intended; (b) You and Your Users are authorized to provide all data and information submitted to the Benergy Services and other of Your Data or otherwise to Us; (c) You shall fully comply, and be and remain in compliance, with all applicable laws, rules and regulations; (d) You and each of Your Users shall be responsible for providing Your own Internet access (including all equipment, software and services required to obtain and maintain such access); and (e) the use of Your Data by Us as contemplated in this Agreement will not infringe the copyrights, patents, trademarks, service marks, trade secrets, confidential information or privacy right of any third party or constitute a defamation, invasion of privacy, or violation of any right of publicity or other third party right. You will use commercially reasonable efforts to implement reasonable physical, technical and administrative safeguards for Your information technology systems as required by law, including without limitation preventing any virus, Trojan horse, worm or other disabling code from being transmitted to or introduced into the Our systems.

6. Disclaimer. NO OTHER WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARE MADE WITH RESPECT TO THE BENERGY SERVICES OR ANY SERVICES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ERROR-FREE, ORIGINALITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE RELY ON DATA PROVIDED BY YOU, AND THEREFORE WE DO NOT GUARANTY OR WARRANTY THE ACCURACY, COMPLETENESS OR ADEQUACY OF ANY DATA OR OTHER INFORMATION PROVIDED AS PART OF THE BENERGY SERVICES OR ANY RESULTS ASSOCIATED WITH USE OF THE BENERGY SERVICES.

You acknowledge that transmission of information via the Internet is not secure, and third parties out of Our control provide access to and maintain Internet connectivity for You to access and use the Benergy Services. We are not responsible for any interception or corruption of information or data during any transmission over the Internet or any related telecommunications network or at Your network access point. We expressly disclaim any and all liability related to Your use of such telecommunications services and related networks, including without limitation any erroneous transmissions, corruption or loss of data, or inability to access the Benergy Services as a result of telecommunications or Your equipment failure. No information contained in any of the Benergy Services or any process related thereto constitutes legal or tax advice. You should obtain legal advice to ensure its compliance with laws applicable to Your business.

7. Termination. Either of us may terminate this Agreement (i) if the other commits a material breach of this Agreement that remains uncured thirty (30) days after written notice of such breach is delivered to the other, or (ii) immediately if the other assigns any of its assets to its creditors, or voluntarily or involuntarily petitions for the protection of bankruptcy court. Rights of termination are in addition to any other remedies available to the parties, at law or in equity. Upon any termination or expiration of this Agreement (i) All license rights shall immediately terminate and You and Your Users shall immediately cease use of the Benergy Services and We may immediately terminate You and Your Users’ access to the Benergy Services; (ii) So long as Your are not in breach of this Agreement, We shall return or destroy all of Your Data, provided any of Your Data remaining in Our archival or back-up systems shall be destroyed pursuant to Our standard policy. The sections of this Agreement intended to survive shall continue past any termination of this Agreement.

8. Confidentiality. Both of us shall protect the non-public proprietary information and trade secrets of the other (“Proprietary Information”) with the same standard of protection and care that it uses for its own Proprietary Information, but in no event less than reasonable care and diligence. Except as authorized in this Agreement or otherwise in writing by the disclosing party, neither of us shall disclose, publish, transmit or make available all or any part of such Proprietary Information except in confidence or a need-to-know basis to our own employees and third party contractors who have undertaken a written obligation of protection and confidentiality at least as protective as those, and shall not duplicate, transform or reproduce such Proprietary Information except as expressly permitted hereunder. Any information will not be considered Proprietary Information to the extent that such information: (a) is already known to the receiving party free of any confidentiality obligation at the time it is obtained; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) is rightfully received from a third party without restriction and without breach of this Agreement; or (d) is required to be disclosed by law or court order. In the event that either party is required by law or court order or regulatory authority to disclose any Proprietary Information, except such disclosure may be made only after the other party has been notified and has had a reasonable opportunity to seek a court order or appropriate agreement protecting disclosure of such Proprietary Information. With regard to Trade Secrets, the obligations in this Section shall continue for so long as such information continues to be a Trade Secret. With regard to Confidential Information, the obligations in this Section shall continue for the term of this Agreement and for three (3) years thereafter.

9. Our Indemnity Obligations. We agree to defend You and pay any and all amounts payable under any judgment or verdict finally awarded, or agreed to in a written settlement executed by such, to the extent resulting from any third party allegation against You that the Benergy Services directly infringe such third party’s U.S. patent, U.S. copyright or U.S. trademark or misappropriate such third party’s trade secret. Should Your use of the Benergy Services be determined to have infringed, or if, in Our judgment, such use is likely to be infringing, We may, at its sole option and discretion: (i) procure for You the right to continue using the Benergy Services, or (ii) replace or modify them to make their use non-infringing while achieving substantially similar results. If neither of the above options is or would be available on a basis that We find commercially reasonable, We may terminate Your license to the Benergy Services, You will cease using the Benergy Services and We will refund to the You the pre-paid and unused fees paid for such infringing Benergy Services, if any. Our obligations under this section will be subject to Your providing prompt written notice of the claim; giving Us sole control of the defense and settlement of the claim (including selection of counsel); providing information reasonably available and assistance reasonably necessary to facilitate the settlement or defense of such claim and, to the extent permitted by law, making any of Your defenses available to Us. THIS SECTION 9 SETS FORTH YOUR EXCLUSIVE REMEDY AND OUR SOLE AND COMPLETE LIABILITY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION.

10. Your Indemnity Obligations. In addition to any other obligations of indemnity provided in this Agreement, You agree to indemnify, defend and hold harmless Us, Our affiliates, and Our affiliates’ directors, officers, shareholders, employees and agents from and against any claims, actual and direct liabilities or damages, causes of action or injuries, together with costs and expenses, including reasonable attorneys' fees, arising out of or resulting from (a) any breach of this Agreement or any violation of law by You or Your representatives, or (b) any third party claim related to or that arise in connection with Your use the Benergy Services, except to the extent any such claim is subject to Section 9 Our development efforts based upon Your Data or direction.

11. Limitations of Liability. WE WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, TIME, SAVINGS, DATA, OR GOODWILL, DAMAGES ARISING FROM USE OF OR INABILITY TO USE THE BENERGY SERVICES OR OTHER PRODUCTS OR SERVICES, OR COST OF REPLACEMENT GOODS OR SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THE BENERGY SERVICES, PRODUCTS, SERVICES OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, EVEN IF SUCH DAMAGES WERE FORESEEABLE. EXCEPT FOR ANY DIRECT DAMAGES FOR BODILY INJURIES OR TANGIBLE PROPERTY DAMAGE PROXIMATELY CAUSED BY US, THE MAXIMUM AGGREGATE LIABILITY OF US IN ALL EVENTS SHALL BE LIMITED TO THE AMOUNT OF FEES YOU PAID TO US UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE FIRST CLAIM.

12. Governing Law. This Agreement shall be governed, construed, and interpreted in accordance with the internal laws of the State of Georgia.

13. Audit. Upon receiving at least 30 days prior written notice, You will permit us to review Your books and records and other information, including without limitation insurance quotations and/or proposals, Federal or State payroll information or other information relating to the Your use of the Benergy Services or to otherwise determine the number of Your employees.

14. General. Our relationship with you is as an independent contractor, and this Agreement shall not be construed to create any employment relationship, partnership, joint venture, or agency relationship or to authorize either of our companies to enter into any commitment or agreement binding on the other. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its rules regarding conflict of laws. This Agreement and all rights and obligations may not in any event be assigned in whole or in part by either party without the prior written consent of the other, except the rights and obligations of Ebix may be assigned without consent to another entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the voting securities and/or assets of Ebix. Any attempted assignment in contravention hereof shall be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of the parties, their legal representatives, successors, and assigns as permitted by this Agreement. Neither party shall be liable for failure to perform any of its respective obligations hereunder if such failure is caused by an event outside its reasonable control, including but not limited to, an act of God, war, natural disaster, utility or telecommunications failure, or changes in governmental regulations. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any prior or subsequent breach. No modifications, waivers, additions, or amendments to this Agreement shall be effective unless made in writing and expressly referencing this Agreement and signed by handwritten signature by duly authorized representatives of the parties.