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General Terms and Conditions of Sale
Date of last revision January 19, 2018
1. Price and Payment
You agree to pay the price for the Product(s) you order, as specified in the Store or an order form, as well as amounts for Pre-sale Key Packs as set forth in Section 1.a. below. All prices are quoted in the Store or order form exclusive of federal, state, or local excise, sales, use, or similar taxes, or any export or import fees, customs duties and similar charges applicable to the sale or to the Products sold, except taxes based upon Resilio's net income (\"Taxes\"). Resilio may collect Taxes with respect to certain jurisdictions. You agree to pay any and all Taxes, applicable shipping and handling fees, and other charges incidental to the purchase or sale of the Product (including, for international shipments (i.e., those outside the United States), customs duties, import fees, and other similar fees). Without limiting other remedies, Resilio reserves the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%) per month on the unpaid balance or the highest rate allowed by law. You will pay for all collection costs, attorneys fees, and court costs incurred in the collection of past due amounts.
Resilio accepts certain debit and credit cards as well as other forms of cash payment (e.g., Paypal transfers, wire transfers, etc.) as payment methods (each, an “Accepted Payment Method”) for Products, subject to the procedures and rules contained in these Terms and any applicable contract with the Accepted Payment Method. Accepted Payment Methods may vary by country, by Product and may change from time to time. When you purchase with an Accepted Payment Method, the fees for your Product will be billed on the date of your purchase or, for Products that are not delivered or made available on the date of purchase, when your Product is shipped or becomes available to you, as described below.
1.a. Pre-sale Key Packs. If you have been given a Pre-sale Key Pack, you shall send a screenshot of the Connect Management Console License Manager Screen on the first business date of each month (unless otherwise agreed in writing by Resilio's head of Finance). You shall pay Resilio for every agent license that you have assigned (sometimes referred to as “connected agents”) that is above the number of seats then in effect for which you have paid Resilio, at the then-current rate quoted to you by Resilio for the annual term in effect for each such license, as pro-rated for the remainder of such annual term. You shall pay Resilio all amounts owed within 30 days after the end of each calendar month.
2. Orders; Delivery; Title, and Risk of Loss
Your order is subject to cancelation by Resilio, in its sole discretion, and any automatic confirmation email sent by Resilio in connection with your order does not constitute acceptance of the order by Resilio. Resilio is not responsible for pricing, typographical, or other errors in any offer on the Store and reserves the right to cancel any orders resulting from such errors.
The Products may be delivered by or downloaded from Resilio and Resilio may provide you with the means to use the Products, for example through providing unlock keys or serial numbers.
3. Right to Use; License
The terms and conditions and the scope of such rights or licenses to the Products you are purchasing are as set forth at www.resilio.com/legal/eula-subscription
4. Representation and Warranty
You represent and warrant that any information you provide to Resilio in connection with your purchase of any Products via the Store or order form (including, without limitation, any personal and payment-related information) is true, correct, and complete. You are fully liable for any damages that Resilio (or any of Resilio's suppliers) may incur due to your breach or inaccuracy of the foregoing representation and warranty.
5. Limited Warranty; Disclaimer of Warranties
5.1. Limited Warranty. Resilio hereby warrants to Licensee that the Product will perform substantially in accordance with the functional description applicable thereto at the Resilio Site if used in accordance with the terms of this Agreement and any applicable directions or requirements in the Documentation. The foregoing warranty is extended to the initial Licensee only, is not transferable, and, in the case of non-subscription-based Products, shall be in effect for thirty (30) days immediately following Licensee’s receipt of the Software and, in the case of the case of subscription-based Products, shall be in effect during the applicable subscription term (each such period referred to as (the "Warranty Period"). Licensee’s sole and exclusive remedy and the entire liability of Resilio and its suppliers and licensors for any breach of this limited warranty will be, at Resilio’s option, repair or replacement of the Software or refund, if such breach is reported prior to the expiration of the applicaple Warranty Period to Resilio or the Resilio authorized distributor that supplied the Software to Licensee (the "Warranty Remedy"). Resilio may require that Licensee certify the destruction of all copies of the Software to Resilio or to the authorized distributor in order to receive the designated remedy hereunder. Any replacement Software provided pursuant to this Section 5.1 will be covered by the warranty in this Section 5.1 for the remainder of the original Software Warranty Period or for 30 days from the date on which Licensee receives such repaired or replacement Software, whichever is longer.
5.2. Disclaimer of Warranties. (a) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, THE PRODUCT IS BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND RESILIO HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES AS TO THE CONDITION, NONINFRINGEMENT, MERCHANTABILITY, DESIGN, OPERATION OR FITNESS FOR ANY PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RESILIO, ITS RESELLERS AND/OR ITS OR THEIR AGENTS OR EMPLOYEES, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE OR MODIFY THE SCOPE OF THE WARRANTIES EXPRESSLY SET FORTH HEREIN. If Licensee’s legal jurisdiction provides that a certain implied warranty may not be disclaimed, such implied warranty shall only apply to defects discovered during the period of the express Warranty Period provided herein. There is no implied warranty for defects discovered after the expiration of such Warranty Period. Some legal jurisdictions do not allow limitations on how long an implied warranty lasts, so these limitations may not apply to Licensee. (b) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, RESILIO DOES NOT WARRANT THAT THE PRODUCTS WILL MEET ALL REQUIREMENTS OF LICENSEE, OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL PRODUCT DEFECTS WILL BE CORRECTED. FURTHER, RESILIO IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM: (I) THE MODIFICATION, MISUSE OR DAMAGE OF THE PRODUCT BY PARTIES OTHER THAN RESILIO OR PARTIES PERFORMING AS A CONTRACTOR TO, AND AT THE DIRECTION OF, RESILIO, (II) LICENSEE’S FAILURE TO IMPLEMENT ALL BUG FIXES OR OTHER DEFECT CORRECTIONS WHICH ARE MADE AVAILABLE BY RESILIO, (III) USE OF THE PRODUCT IN A MANNER INCONSISTENT WITH THE DIRECTIONS PROVIDED IN THE DOCUMENTATION OR AS PERMITTED BY THIS AGREEMENT, (IV) ANY COMPUTER VIRUS OR (V) ANY DEFECT IN OR FAILURE OF ANY THIRD PARTY’S INDIVIDUAL COMPUTER, EQUIPMENT, NETWORK OR PRODUCTS OR SERVICES, OR FOR ANY USER ERROR. RESILIO DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO NON-RESILIO PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, THIRD-PARTY SOFTWARE OR HARDWARE, INTERNET CONNECTIONS OR CONNECTIVITY OR COMPUTER NETWORKS.
6. Limitation of Liability
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. Neither Resilio nor any of our subsidiaries, affiliated companies, suppliers, employees, shareholders, or directors (“Resilio Affiliates”) shall be cumulatively liable for (a) any damages in excess of the purchase price for the specific products giving rise to the claim paid by you during the six months preceding the claim, if any, or US $10, whichever amount is greater, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Products, or any of the content or other materials on, accessed through or downloaded through the Products. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
6.1. Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
6.2. Not apply to any damage that Resilio may cause you intentionally or knowingly in violation of these Terms or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed in these Terms.
7. Media and Press
Resilio may use your Company Names and Logos in case studies, promotional materials, or other write-ups, unless you request otherwise.
If you purchase a subscription for a Product that renews automatically, such as monthly or annually, you agree that we may process your Accepted Payment Method on each monthly, annual or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the commencement of your Premium Service or Product subscription, as applicable. In addition, you agree that we have permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms we retain in the future) information regarding your purchase and your submitted payment information in order to process your purchase. If your Product subscription began on a day not contained in a subsequent month (e.g., your service began on January 30, and there is no February 30), Resilio will process your payment on the last day of such month. See below for information describing what you must do to change your Accepted Payment Method.
9. Changes in Fees
We may change the price of any Product from time to time, and add new fees and charges for certain features or to reflect a change in business or legal rules, but we will send advance notice of changes in recurring subscription fees by email to the address in your account information. Any increase in charges for the same Product would not apply until the expiration of your then current billing cycle, unless otherwise specifically provided in our notice to you, and would become effective no sooner than the next time you would be charged for that Product. If you do not agree to pay the new price or other applicable charges, you may elect not to renew the Product subscription before the price change goes into effect, which cancellation would be effective at the expiration of your then current billing cycle. See “Subscription Cancellation” below for information on how you must cancel a Product subscription.
10. Changes to Payment Methods and Account Information
You are responsible for ensuring that all of your account information, including your email address and all payment information (address, debit or credit card number and expiration date), is accurate and up to date at all times. You may change this information at any time. If you have a Product subscription, you may notify Resilio’s customer service by making the changes at https://orders.resilio.com/account/me. If your credit card expires or the information is otherwise invalid, or you make changes to your billing account too close in time to when we charge for any Product subscription (so we cannot reasonably act on your changes prior to billing), we will probably not be aware of this, and we will bill the current charges to the card we had on record; the continuation of your Product subscription constitutes your authorization for us to do so, and you remain responsible for any uncollected amounts and any charges incurred by you or us as a result of billing to an invalid card.
11. Refund Policy
For non-subscription-based Products, if you choose to cancel your order, you may do so within 7 days from when you received your Product without giving any reason. To cancel your order, you must send us your clear communication of cancellation before the 7-day period has expired to email@example.com. Exception to the right of cancellation: You cannot cancel your order for the supply of digital content if the delivery has started upon your request and acknowledgement that you thereby lose your cancellation right.
12. Subscription Cancellation
You may elect to cancel a Product subscription at any time. Any cancellation of a Product subscription will be effective as of the end of the then-current billing period. If you desire to cancel your subscription for the Product as of the end of the current billing period, you may do so at help.resilio.com. If you are taking part in any trial period offer that enables you to use a Product without charge, and that trial period converts into a paid Product subscription upon the expiration of the trial period, you must cancel the Product subscription prior to the end of the trial period in order to avoid incurring the charges for the paid Product subscription.
13. Governing Law and Forum
This Agreement or any claim, cause of action or dispute (“claim”) arising out of or related to this Agreement shall be governed by the laws of the state of California regardless of your country of origin, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. You and Resilio agree that all claims arising out of or related to this Agreement must be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You and Resilio agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims. Notwithstanding the above, you agree that Resilio shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. YOU AND RESILIO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
If any provision hereof is held invalid, unenforceable or void in any respect, such provision shall be construed so as to render it enforceable and effective to the maximum extent possible, and the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. You agree to adhere to all legal requirements applicable to the Products, including U. S. export laws. You represent that you are not a resident of any U. S.-embargoed country and that any sale to you complies with U. S. export laws. The parties are independent contractors and nothing herein shall be construed to imply a partnership, joint venture, principal-agent, or employer-employee relationship between the parties. Neither party shall have the right, power, or authority to create any obligation, expressed or implied, on behalf of the other party. You may not assign, by operation of law or otherwise, any of its rights, or delegate any of its duties, under these Terms to any third party without Resilio's prior written consent. Any assignment, delegation or transfer in violation of the foregoing will be null and void. These Terms constitutes the entire agreement between the parties as to the subject matter hereof and supersedes and merges all prior or contemporaneous oral or written agreements, representations, statements, negotiations, understandings, proposals, and undertakings with respect to the subject matter of these Terms.