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PLEASE READ THE FOLLOWING CONTENT PROVIDER TERMS
AND CONDITIONS. BY BECOMING A BHE-Bill PARTNER, YOU, THE CONTENT PROVIDER, AGREE
TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
YOU SHOULD PRINT OUT A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE.
IF YOU DO NOT OR CANNOT AGREE WITH THE TERMS AND CONDITIONS OF
THIS AGREEMENT, AS WELL AS THE BHE-BILL PARTNERSHIP AGREEMENT AND THE
ACCEPTABLE USE POLICY (AUP) BELOW, YOU MUST NOT BECOME A BHE-BILL PARTNER.
IF YOU ARE ALREADY A BHE-BILL PARTNER AND YOU DO NOT OR CANNOT AGREE
WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS WELL AS
THE BHE-BILL PARTNERSHIP AGREEMENT AND THE
ACCEPTABLE USE POLICY (AUP) BELOW, YOU MUST CANCEL THE PARTNERSHIP
AGREEMENT AS PROVIDED THEREIN AND ABIDE BY THESE TERMS AND CONDITIONS,
AS WELL AS THE BHE-BILL PARTNERSHIP AGREEMENT AND THE ACCEPTABLE USE
POLICY (AUP) BELOW, FOR THE DURATION OF YOUR PARTNERSHIP AGREEMENT.
BHE-Bill's AGREEMENT TO PROVIDE SERVICES TO YOU IS CONTINGENT UPON YOUR
AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN.
These Content Provider Terms and
Conditions ("Agreement"), together with the BHE-Bill Partnership
Agreement and the Acceptable Use Policy (AUP), which are hereby included
by reference, contain the complete and
entire terms and conditions that apply to your use of BHE-Bill's
Services (as defined below). BHE-Bill may modify the terms of these
Agreements, including but not limited to the Fees (as defined
below), in its sole discretion, upon thirty (30) day notice to you. Your
continued use of the Services after the effective
date of such notice constitutes your acceptance of such
modifications.
Definition of Terms
"Provider" -- the individual or business entity who owns or licenses
Content and enters into this Agreement with BHE-Bill for hosting services
related to that Content. Provider may be considered a "primary
producer" or "secondary producer" under the language of U.S.C.
2257, et seq.
"Content" -- information, data, products, services, text, graphics,
video, music, entertainment, computer programs, and any other physical or
electronic information, materials, or intellectual property provided to
BHE-Bill by Provider, whether for sale to Customers, for marketing and
promotional purposes, or for any other purpose.
"Site(s)" -- one or more interactive Internet sites maintained by
BHE-Bill for the purpose of displaying and offering Content for sale to
Customers.
"Customer" -- any person desiring to purchase Membership or
Product from Site(s).
"Services" -- tasks performed by BHE-Bill for Provider, including but not
limited to those items listed in the "Service Provided" and "Customer Support
Service" sections of this Agreement, below.
"Membership" -- either a
one-time or recurring, fixed-dollar charge for access to a protected area of
Site(s) for a specific period of time.
"Product" -- any tangible item which can be delivered physically
to a Customer or Content which can be delivered electronically to a Customer,
offered for sale on Site(s).
"Customer Charge" -- the dollar amount to be charged to the
Customer for a purchase.
"Delivery" - (i) BHE-Bill's act of making the Membership area of the
Site(s) available to the Customer for the term of the Membership, and/or (ii)
the physical delivery into the Customer's hands of a Product.
Provider Representations and Warranties
Provider hereby represents and warrants that:
(a) Provider or its agent for the purposes of this Agreement is over eighteen
(18) years of age or has reached the age of majority, and is fully capable of
entering into and abiding by the terms of this Agreement.
(b) Provider is legally authorized to own and operate its Site(s).
(c) Provider has obtained all necessary regulatory approvals and certificates
to provide any services it intends to offer Customers.
(d) All information submitted by Provider to BHE-Bill is true, complete, and
correct in all respects.
(e) Provider will at all times operate its business and its Site(s) in
compliance with all applicable laws and regulations.
(f) Provider will provide any goods and/or services for sale on its Site(s) for
the price quoted, and subject to the Terms and Conditions represented, to
prospective Customers on the Site(s).
(g) Provider will at all times prominently provide access to the terms and
conditions governing Provider's Site(s). These terms and conditions must
accurately describe the products or services offered for sale on Provider's
Site(s), the conditions under which a sale is final, and the rights a
Customer has regarding the refund, cancellation, return, or termination of a
membership or other transaction.
(h) Provider will at all times clearly and prominently describe the conditions
on any "trial offers" or membership plans. These descriptions must fully
and prominently disclose and explain whatever actions (e.g., automatic
rebilling) will occur at the expiration of the trial or membership term, as
well as the Customer's options and responsibilities regarding the offer.
(i) Provider's will display on the member entry
page, and on any other page of Provider's Site(s) where a Customer can initiate
any purchase or transaction, the then-current BHE-Bill graphic, linked to
BHE-Bill's customer service site, together with either the paragraph below or
substantially similar language:
Please contact BHE-Bill with any questions regarding billing or account information.
Please contact this website's customer service for
any other inquiries.
(k) Provider will not use BHE-Bill's services in any manner which may subject
BHE-Bill to any investigation, prosecution, or legal action. In accordance
with the section titled "Indemnity" below, Provider hereby agrees to indemnify
and hold harmless BHE-Bill for any expense or damages resulting to BHE-Bill
as a result of any such investigation, prosecution, or legal action, including any investigation,
prosecution, or legal action related to record-keeping required by 18 U.S.C. 2257, et seq.
(l) Provider shall at all times comply with all applicable laws pertaining to record-keeping
and labeling, including but not limited to all applicable
provisions of 18 U.S.C. 2257, et seq.
Provider will review 18 U.S.C. 2257, et seq., and all
record-keeping provisions therein. Provider will determine whether it is a
"primary producer" and/or a "secondary producer" within the meaning of that
statute, and will take all necessary steps to fully comply with that statute.
Provider understands that under no circumstances will BHE-Bill provide any
content or be responsible in any way for the any content provided on Provider's
Site(s), and that BHE-Bill is not and will not be a
"provider" under the language of 18 U.S.C. 2257, et seq.
(m) Provider understands that it is fully responsible for the content of its
Site(s) and for any advertising or promotion of Provider's products or
offerings. Provider certifies and represents to BHE-Bill that it is the owner
of, or that it has full rights and authority to use and disseminate, all
information, data, graphics, text, video, music, or other intellectual property
displayed or otherwise made available on its Web site or which is used by
Provider in advertising and promotion of or on its Site(s).
(n) Provider's Site(s) will not contain:
1.
Child pornography;
2.
Anything that could be deemed obscene under applicable State or Federal law;
3.
Any pictorial or
textual matter which would constitute harmful matter or an indecent
communication that can be freely accessed and viewed by persons who have not
attained majority or that otherwise fails to be in full compliance with 18
U.S.C. § 2257, et seq.,
including all record-keeping provisions therein;
4.
Any material which
violates, infringes upon, or otherwise could give rise to any adverse claim
with respect to the right of any person or entity, including, without
limitation, copyright, trademark, service mark, trade name, patent, literary,
artistic, dramatic, privacy, and any other civil, personal, and proprietary
rights;
5.
Any material which depicts harm to living creatures;
6.
Any material which depicts bestiality;
7.
Any material which depicts bondage in any form;
8.
Any material which depicts the inflicting of pain;
9.
Any material which depicts domination;
10.
Any material which depicts rape or non-consensual sex acts;
11.
Any material which depicts sex with dead or dying partners;
12.
Any material which is libelous, slanderous, or defamatory;
13.
Material or communication of any kind which is harmful, violent, threatening, abusive, or
hateful; or
14.
Any file or data stream
which contains viruses, worms, "Trojan horses," or any other
destructive features, regardless of whether damage is intended or actually
results.
(o) Provider will not:
1.
Violate the letter,
spirit, or intent of the FTC Act (see http://www.ftc.gov),
with specific emphasis on the FTC publication "Advertising and Marketing
on the Internet: The Rules of the Road" (http://www.ftc.gov/bcp/conline/pubs/buspubs/ruleroad.htm);
2.
Violate any laws,
rules, regulations, or policies relating to the transmission of unsolicited
commercial email (i.e., "spamming").
Indemnity
Provider agrees to indemnify and hold harmless BHE-Bill, its employees,
officers, agents, and directors, for any and all fines, penalties, losses,
claims, expenses (including attorney fees), or other liabilities incurred by
BHE-Bill as a result of or in connection with this Agreement or either
party's performance thereunder. BHE-Bill will not assume any liability as a
result of Provider's failure to follow this Agreement or any result caused
by the acts, omissions, or negligence of Provider or its subcontractor, agent,
or employee, including, without limitation: (i) claims of third parties arising
out of, resulting from, or in connection with the Provider's products or
services; (ii) any expense or damages suffered by BHE-Bill
or its agents or employees, due to any failure
by Provider or its agents or employees to comply with the provisions of 18
U.S.C. 2257, et seq.; or (iii) any claim for libel, slander, or violation
of copyright, trademark, or other intellectual property rights.
Service
Provided by BHE-Bill
Provider hereby appoints BHE-Bill to process payments for Memberships and Products
offered on Provider's Site(s), as provided under this Agreement. Provider
acknowledges that BHE-Bill does not
warrant or guaranty any Membership or Product offered on Provider's Site(s).
Provider further acknowledges that BHE-Bill does
not and will not provide any content to be
displayed on Provider's Site(s).
Product/Membership Sales
Provider agrees that it will clearly display Membership price and term options,
and/or Product price, warranty, and delivery conditions. Each Membership term
option must clearly state the length of the term and whether it automatically
renews, and each Product delivery option must clearly state the time period
within which Provider will deliver the Product to the transport agent for
delivery to the Customer.
Provider agrees that for each purchase opportunity presented by Provider on its
Site(s) to the Customer, Provider will cause the Customer to be connected to
the BHE-Bill purchase form on BHE-Bill's secure server.
Processing of Customer Charges and Completion of Order Process
If the Customer Charge is approved,
If the Customer Charge includes a Membership, BHE-Bill
will:
1.
Add the Customer's username/password to the Provider's Site(s) authorization file(s);
2.
Present an approval page to the Customer's browser which indicates the username/password which
will remain valid for the Membership term and displays a link to the Provider's
Site(s);
3.
Send an order confirmation/receipt to both Provider and Customer by email; and
4.
Within 24 hours, request the capture of funds from the Customer's chosen payment instrument.
If the Customer
Charges includes a Product, BHE-Bill will:
1.
Present an approval page to the Customer's browser which summarizes the Product(s) ordered, total
Customer Charge, delivery option selected, and anticipated delivery date;
2.
Send a confirmation receipt to the Customer by email;
3.
Send a purchase order to the Provider by email; and
4.
Request the capture of funds from the Customer's chosen payment method within 24 hours of
notification by Provider that the Product ordered has been delivered to the
appropriate carrier for delivery to the Customer, unless Provider fails to so
notify BHE-Bill within 30 days after the order is placed, in which case the
Customer Charge authorization will be canceled and the funds will be
released.
BHE-Bill will attempt to identify
incomplete, fraudulent, unauthorized, or duplicative transactions. However,
Provider understands and agrees that BHE-Bill will not incur any liability in
the event that such transactions are not identified. If a transaction fails
any of these tests, BHE-Bill will notify the Customer through its browser of
the failed transaction and suggest corrective action where possible and
appropriate. For any Customer Charge accepted by BHE-Bill, BHE-Bill will
submit the Customer's authorization request to the appropriate credit
instrument processor. In either event, BHE-Bill will immediately notify the
Customer through the Customer's browser of an approval or rejection.
BHE-Bill will retain information
collected regarding Customer Purchases.
BHE-Bill will scan all transactions pending renewal each day and enter a
Customer Charge for any automatically renewing Memberships. If a renewal
fails, BHE-Bill will remove the Customer username/password from the Provider
authorization file and notify both Provider and Customer by email of the failed
Customer Charge.
Accounting data will be available to the Provider in the "Provider
Tools" area of the BHE-Bill site and may be retrieved by Provider via the
Internet.
Delivery of Goods and Services to Customers by Provider
Provider agrees
to deliver to the appropriate Customers all Products and services sold by
Provider's Site(s) through BHE-Bill. In the case of Memberships for a specific
term, Provider agrees to supply service as represented on Provider's Site(s) or
in other sales material for the full duration of the purchased Membership
term. In the case of Products, Provider agrees to initiate delivery of Product
to Customer in a timely fashion. In no case may Provider initiate the delivery
of any Product more than thirty (30) days after the Product is ordered.
Customer Support Service
BHE-Bill will provide customer support service on the BHE-Bill website,
through email, and through other methods that BHE-Bill, in its sole
discretion, may deem feasible. Customers may request information about
billing history, refund of Customer Charges, Membership cancellation, updates
to account information (such as changes in credit card expiration date),
status of shipment of Products ordered, and other issues of concern to
Customers.
BHE-Bill shall use its reasonable best
efforts to provide services at all times (24 hours per day, seven days per
week, and 365 days per year); provided, however, that BHE-BILL shall incur no
liability whatsoever for its failure to do so, including without limitation
any direct or consequential damages resulting from such failure by BHE-Bill.
Provider expressly authorizes BHE-Bill to
provide information regarding Provider, a Customer, and/or any transaction
handled by BHE-Bill, in response to requests from apparently authorized
persons (whether in the form of retrieval requests or otherwise). Provider
further authorizes BHE-Bill to resolve disputes involving Provider, a customer,
and/or any transaction handled by BHE-Bill in any manner determined by
BHE-Bill, in its sole discretion, to be fair and commercially reasonable,
given all the facts and circumstances of the particular situation. BHE-Bill
will attempt to resolve all Customer Service matters arising between Customer
and Provider; however, BHE-Bill will not be responsible or liable in any way
for claims or damages resulting from BHE-Bill's resolution of or inability to
resolve any dispute or claim between a Customer and Provider. Provider expressly
agrees to indemnify, defend, protect, and hold harmless BHE-Bill and its
Representatives with respect to any liability arising in connection with the
provision of Customer Services (including, without limitation, the delivery
of information to third parties).
No License Granted to Provider
Provider is granted no rights of ownership, in whole or part, to the software
and systems owned and/or operated by BHE-Bill or to software installed by
BHE-Bill on Provider systems. BHE-Bill grants Provider a limited license to use
certain software and systems owned and/or operated by BHE-Bill. This license
is limited to the processing of transactions described on the Provider's
Site(s), and is non-assignable and non-transferable.
Payments
BHE-Bill will compile a summary of the gross amount of all Customer Charges
twice each month. The first monthly summary will cover transactions made on
the 1st through the 15th calendar days of the month, and the second monthly
summary will cover transactions made on the 16th through the last calendar
day of the month. BHE-Bill will issue a payment to Provider for the first
monthly summary on the first banking day on or after the 1st of the following
month and will issue a payment to Provider for the second monthly summary
on the first banking day on or after the 16th of the following month.
To calculate the payment amount due Provider, BHE-Bill will deduct from the
gross sales total for the summary period an amount equal to the gross
sales total for the summary period multiplied by the then-current percentage due
BHE-Bill. BHE-Bill will then
subtract the gross amount of any customer credits and customer refunds
recognized by BHE-Bill during the period, and will pay the final net amount
to Provider.
Payment to Provider is conditional upon the receipt of funds by BHE-Bill from
its card services agent(s).
BHE-Bill shall bear no responsibility for any inaccurate, incomplete,
fraudulent, or duplicate transactions by Customers, nor for the use of stolen
credit, charge, or debit cards.
BHE-Bill reserves the right to impose limits on the length of and/or the
total charge for any Membership(s) or the total charge for a sale of any
Product(s) to an individual Customer. BHE-Bill may, in its sole discretion,
refuse to sell to or do business with specific Customers for any reason.
BHE-Bill may, in its sole discretion, impose limits on any sales by Provider,
even if such limits are more restrictive than those limits placed on other
Provider, in order to reduce BHE-Bill's reasonable apprehension of risk of
loss. BHE-Bill will not bear any responsibility for any losses sustained by
Provider on account of such limits, including but not limited to claims for
lost profits.
The sale of a Membership to a Customer by Provider represents a promise by
Provider of provision of future Content. For that reason, BHE-Bill reserves
the right to require the withholding of a Reserve should Customer claims
during ongoing operations exceed a threshold amount determined solely by
BHE-Bill. Further, BHE-Bill reserves the right to withhold any and all unpaid
funds in the event that Provider is unable to continue providing services or
where BHE-Bill suspects that Provider has violated or imminently will violate
any term of this Agreement.
In such event, Provider will receive the full amount of such withheld unpaid
funds, less customer credits and refunds, six months following the date
of such withholding.
Termination
Either Provider or BHE-Bill may terminate this Agreement at any time on thirty
(30) day notice to the other party, unless Provider is in default under this
Agreement or past due on any amount due BHE-Bill, in which case Provider may
not terminate this Agreement without first curing the default, if possible,
or immediately paying all past-due amounts.
BHE-Bill may terminate this Agreement at any time and without notice to
Provider if BHE-Bill believes, in its sole discretion, that Provider is engaging
in any activities or omissions to act which are in violation of Provider's
representations and warranties as contained in this Agreement or which may be
detrimental to the reputation or operation of BHE-Bill or any of its
Representatives.
BHE-Bill shall have the right, in its sole discretion, to suspend processing
for Provider in lieu of termination. In the event of such suspension by
BHE-Bill, Provider may choose, in Provider's sole discretion, either to remedy
the cause of the suspension or terminate this Agreement. However, Provider's
decision to terminate this Agreement will not affect or eliminate any
outstanding amounts owed by either party to the other.
General Provisions
Relationship Between Parties. BHE-Bill and Provider both represent that
they are independent contractors for purposes of this Agreement, and
nothing in this Agreement shall be deemed to make them joint venturers or
partners in the legal sense, or to make one party the employee, agent, or representative of the
other party. BHE-Bill and Provider both agree not to make any
representation suggesting otherwise. Where this Agreement refers to the
terms "Partner" or "Partnership" they are intended only to denote that
both parties will share in the financial success of the Site(s).
Both parties agree and acknowledge that
BHE-Bill is not a content provider and that BHE-Bill will
have no responsibility for any content
or other material appearing on Provider's Site(s) or any required record-keeping
pertaining thereto.
Choice of Law. This Agreement shall be governed in accordance with the
laws of the State of Georgia, without reference to conflict of laws
principles.
Mandatory Binding Arbitration & Selection of Forum. Any dispute
between Provider and BHE-Bill under this Agreement shall be resolved by binding
arbitration held in Gwinnett County, Georgia, to be conducted by a single
arbitrator mutually acceptable to the parties, applying the Commercial
Arbitration Rules of the American Arbitration Association. For these
purposes, by entering into this Agreement and by accepting BHE-Bill's
Services, Provider agrees to submit to personal jurisdiction in Gwinnett
County, Georgia, and agrees not to contest the holding of all arbitration
hearings in that County. The parties agree and require that in such
proceedings, the arbitrator will award to the substantially prevailing party
its reasonable attorney's fees and expenses of arbitration and will cast the
entire administrative cost of such proceedings upon the losing party.
Entire Agreement. This Agreement contains the entire agreement between
Provider and BHE-Bill regarding the use of BHE-Bill's Services, supersedes all
prior written and oral understandings and writings.
Agreement to Survive Termination. Unless otherwise explicitly stated
within this Agreement, the provisions of this Agreement shall survive its
termination.
Severability.
Every provision of
this Agreement is to be deemed severable, such that if any provision of this
Agreement is deemed unenforceable for any reason, the remainder of the
Agreement will remain enforceable.
Modification. Provider's continued use of BHE-Bill's Services
constitutes an affirmative acknowledgment of this Agreement and its
modifications, and an agreement to abide and be bound by this Agreement and
its modifications. At any time, Provider may view the then-current version of
this Agreement at http://www.bhe-bill.com.
Authorization to Enter into Agreement on Provider's Behalf. By accepting
BHE-Bill's Service, Provider represents that its governing body or person(s)
has read and understands fully this Agreement, and has authorized Provider's
representatives, agents, or employees who are responsible for accepting the
Service in such manner to execute and deliver this Agreement on behalf of the
Provider, thereby binding the Provider to the terms and conditions contained in
this Agreement.
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