The BMC Group VDR LLC, a Delaware Limited Liability Company d/b/a BMC Group SmartRoom (“BMC Group SmartRoom”), licenses and operates BMC Group SmartRoom, a proprietary electronic commerce or internet site through which various business services may be offered. Business representatives (“SmartRoom Managers”) establish e-business sites on BMC Group SmartRoom (“Deal Areas”) through which their transactions may be completed. User desires to have access to BMC Group SmartRoom, and BMC Group SmartRoom desires to offer to User access to BMC Group SmartRoom, all on the terms and subject to the conditions of this Agreement.
As a condition of User’s access to BMC Group SmartRoom, and in consideration of the mutual covenants and agreements set out below, BMC Group SmartRoom and User hereby agree as follows:
BMC Group SmartRoom grants to User a limited, personal, non-transferable, non-exclusive revocable license to access and use BMC Group SmartRoom, including those Deal Areas as determined by the appropriate SmartRoom Managers, upon the terms and subject to the conditions set out in this Agreement. A Deal Area or transaction that is deemed unrestricted by a SmartRoom Manager may be accessed by any registered User. Any Deal Area or transaction deemed restricted by a SmartRoom Manager may only be accessed by those Users to whom access has been assigned for that specific Deal Area or transaction. Attempts to access restricted Deal Areas or transactions for which a User is not authorized is strictly forbidden and is a violation of this Agreement. BMC Group SmartRoom may suspend User’s license at any time in its sole discretion.
User consents to the collection and reporting to SmartRoom Manager of all actions taken and all messages sent by User on SmartRoom Manager’s Deal Area(s).
3. User Obligations; Certain Operating Procedures.
(a) Computer Equipment. User will furnish any computer equipment necessary for User to access the internet and use BMC Group SmartRoom. User will provide its own communication line(s), Internet Service Provider, and any other equipment and technology necessary in order for it to access and use BMC Group SmartRoom.
(b) Access. User represents and warrants that User’s use of BMC Group SmartRoom will not violate any law, regulation, or statute. User will not access and will not attempt to access any restricted Deal Area for which it has not been assigned access without the consent of the SmartRoom Manager that controls the Deal Area. User will comply with the terms established by the SmartRoom Manager for any Deal Area to which the User is granted access.
(c) ID and Password. In order to obtain access to BMC Group SmartRoom, User must register by completing an online profile, including selection of an ID and a password. User represents and warrants that all information provided by User to gain access to the BMC Group SmartRoom services is and will be complete and accurate. Hereinafter, ID’s and passwords are referred to collectively as “Authentication Information.”
(i) User will take such actions as are necessary in order for it to maintain the confidentiality of, and prevent the unauthorized use of, User’s Authentication Information. User will notify BMC Group SmartRoom immediately in writing if User determines, or has reason to believe, that an unauthorized party has gained access to any Authentication Information.
(ii) As a condition for gaining access to BMC Group SmartRoom, User authorizes BMC Group SmartRoom and any SmartRoom Manager to rely upon any information and/or instructions set forth in any data transmission using the Authentication Information, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of BMC Group SmartRoom. Use of the Authentication Information, whether or not authorized by User, shall be solely the responsibility of and at the risk of User. USER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS BMC Group SmartRoom AND ITS AFFILIATES FROM ANY CLAIM, PROCEEDING, OR DAMAGES BASED UPON ANY USE, MISUSE, OR UNAUTHORIZED USE OF USER’S AUTHENTICATION INFORMATION.
(d) Transaction Information. User assumes sole responsibility and liability for the accuracy and adequacy of information entered by any person using User’s Authentication Information. User will notify promptly BMC Group SmartRoom and any SmartRoom Manager if any inaccurate, incomplete or incorrect information relating to User’s anticipated or actual participation in a transaction or use of BMC Group SmartRoom is communicated to that SmartRoom Manager, whether or not through BMC Group SmartRoom, or if User determines that BMC Group SmartRoom includes inaccurate, incomplete or incorrect information relating to User; and, if applicable and within its control, User shall immediately withdraw and correct such information. BMC Group SmartRoom is not responsible for any damages caused by or related to inaccurate, incomplete, or incorrect information.
(e) Certain Consequences of System Malfunction. In the event of a system malfunction or system error, regardless of the cause thereof, that affects a transaction or purported transaction involving User using BMC Group SmartRoom, BMC Group SmartRoom may withdraw a confirmation that was issued with respect to such transaction or take other corrective action deemed reasonable by BMC Group SmartRoom under the circumstances, and such withdrawal or other action may have the effect of canceling such confirmation. User assumes all risks relating thereto.
4. Proprietary Rights – Restrictions on Use – Usage Rights.
All information and materials supplied by BMC Group SmartRoom in connection with this Agreement, together with all modifications thereto, and all copyrights, trademarks, patents, trade secret rights and other intellectual and proprietary rights, titles and interests relating thereto, shall at all times be and remain the property of BMC Group SmartRoom, its successors and assigns, the use of the same by User being permissive only.
5. Confidentiality and Related Obligations.
(a) Certain User Obligations. Information of BMC Group SmartRoom that is designated confidential or proprietary and made accessible to User through User’s use of BMC Group SmartRoom (“Designated BMC Group SmartRoom Information”) is intended for User’s sole use and not for redistribution in any form. Without the written consent of BMC Group SmartRoom, User will not copy, reproduce or distribute any Designated BMC Group SmartRoom Information. Unless otherwise provided in the terms established by a SmartRoom Manager, these obligations (i) apply only to Designated BMC Group SmartRoom Information, (ii) do not apply to any information of any SmartRoom Manager unless BMC Group SmartRoom is the SmartRoom Manager and such information is Designated BMC Group SmartRoom Information. These obligations are in addition to any confidentiality and related arrangements or agreements between a SmartRoom Manager and User. User shall not use BMC Group SmartRoom or the information included thereon, directly or indirectly, to engage in any unlawful transaction.
6. Information Disclaimer; Limitation of Liability.
(a) Disclaimer Regarding BMC Group SmartRoom. User acknowledges that software programming is inherently complex. User accepts the risk that the operating system and software included in BMC Group SmartRoom, as well as all information of User that is included on BMC Group SmartRoom, from time to time may contain inaccuracies and may be adversely affected by computer viruses, unknown programming difficulties resulting in incorrect information or system malfunctions or shut-downs. However, BMC Group SmartRoom will use reasonable commercial efforts to correct any inaccuracies expressly made known to it and to correct and/or remove (as appropriate) any computer viruses and other system malfunctions and shut-downs that are within its control. In addition, user acknowledges that there are risks inherent in Internet connectivity that could result in the loss of User’s privacy and confidential information.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BMC Group SmartRoom DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THE AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. USER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOOSEN. ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
(b) Disclaimer Regarding SmartRoom Manager. BMC Group SmartRoom does not monitor or screen SmartRoom Managers of the content placed by SmartRoom Managers on Deal Areas. User’s use of content on Deal Areas is at User’s sole risk, and BMC Group SmartRoom disclaims responsibility for any such content.
(c) LIABILITY LIMITATION.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF BMC Group SmartRoom AND ANY OF ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED ONE HUNDRED DOLLARS ($100.00).
IN NO EVENT SHALL BMC Group SmartRoom OR ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE DIRECTLY OR INDIRECTLY TO USER OR ANY PARTY CLAIMING THROUGH IT FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS AND DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING OUT OF THIS AGREEMENT, OR THE USE OF BMC Group SmartRoom, AND REGARDLESS OF THE NATURE OR CAUSE OF SUCH DAMAGES EVEN IF BMC Group SmartRoom HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
(d) Not an Offer. This Agreement is not an offer of any financial or other products, goods or services other than the BMC Group SmartRoom service.
(a) Termination. At its sole election at any time, BMC Group SmartRoom may temporarily or permanently suspend the rights of User to access BMC Group SmartRoom™ or any part thereof.
(b) Waiver. No waiver by either party of any default or breach of any obligation under this Agreement of the other party hereto shall operate as a waiver of any continuing or future default or breach.
(c) Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally or mailed, certified or registered mail with postage prepaid, or sent by email, as follows (or at such other address, fax number or email address for a party as shall be specified by like notice):
if to BMC Group SmartRoom, at: 3732 W 120th Hawthorne, CA 90250
Attn: BMC Group SmartRoom Site Manager
E-mail: contact SmartRoom Customer Support
if to User, at the address, fax number or email address specified in User’s registration information submitted by User through BMC Group SmartRoom™.
(d) Expenses. Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.
(e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the laws that might otherwise govern under principles of conflicts of laws applicable thereto.
(f) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
(g) Acceptance and Changes. User accepts the terms of this Agreement by continued use of the site. If User does not accept the terms of this Agreement, it may not use the BMC Group SmartRoom™ site. BMC Group SmartRoom reserves the right to amend this Agreement at any time by notifying User of changes. The continued use of BMC Group SmartRoom™ by User following the posting of changes or amendments to this Agreement constitutes acceptance of such changes or amendments.
(h) By using this site you acknowledge your acceptance of this agreement and its policies