Blue Ink Tech Terms of Service
Updated: September 17, 2018
This page describes our Terms of Service which is a legal agreement
between you ("you", "your") and Blue Ink Technology, Inc. ("Blue Ink Tech", "BIT",
"we", "our", or "us") and govern your use of Blue Ink Tech's services, including
mobile applications, websites, software, hardware, and other products and services
(collectively, the "Services"). If you are using the Services on behalf of a
business, that business accepts these terms. By using any of the Services you
agree to these Terms of Service and any policies referenced within ("Policies"),
including terms that limit our liability and require individual arbitration for
any potential legal dispute. You should read all of these terms carefully.
1. Privacy
You agree to Blue Ink Tech's
Privacy Policy, which explains how we collect, store,
use, disclose, and manage your data that you provide to us.
2. Account Registration
You must open an account with us (a "BIT Account") to use the
Services. During registration we will ask you for information, including your
name and other personal information. You must provide accurate and complete
information in response to our questions, and keep that information current. You
are fully responsible for all activity that occurs under your BIT Account,
including any actions taken by persons to whom you have granted access to the
BIT Account. We reserve the right to suspend or terminate the BIT Account of any
user who provides inaccurate, untrue, or incomplete information, or who fails to
comply with the account registration requirements.
3. Revisions and Notices
We may amend the Terms of Service or our Policies at any time by
posting the revise version on our website or communicating it to you through the
Services (each a "Revised Version"). The Revised Version will be effective as of
the time it is posted, but will not apply retroactively. Your continued use of
the Services after the posting of a Revised Version constitutes your acceptance
of such Revised Version. Any Dispute (defined below) that arose before the changes
will be governed by the Terms of Service or Policies in place when the Dispute
arose.
We may need to provide you with communications, notices, agreements,
billing statements, or disclosures ("Communications") regarding our Services. By
using the Services you confirm your ability and consent to receive
Communications electronically, rather than in paper form, and to the use of
electronic signatures in our relationship with you ("Consent").
Under this Consent, BIT may provide all Communications
electronically by email or by making them accessible via BIT websites or
applications. Communications include, but are not limited to, (1) agreements
and policies required to use the Services, (2) payment authorizations and
transactions receipts or confirmations, (3) account statements and history, (4)
and all federal and state tax statements and documents. We may also use
electronic signatures and obtain them from you.
Electronic disclosures and notices have the same meaning and
effect as if we had provided you with paper copies. Such disclosures and notices
are considered received by you within twenty-four hours of the time posted on
our website, or within twenty-four hours of the time emailed to you unless we
receive notice that the email was not delivered.
If you are not able to receive electronic communications you may
need to terminate your BIT Account.
4. Restrictions
You may not, nor may you permit any third party, directly or
indirectly, to:
a. export the Services, which may be subject to export restrictions
imposed by US law, including US Export Administration Regulations (15 C.F.R.
Chapter VII);
b. access or monitor any material or information on any BIT system
using any manual process or robot, spider, scraper, or other automated means;
c. export to the extent that any restriction is expressly
prohibited by law, violate the restrictions in any robot exclusion headers on any
Service, work around, bypass, or circumvent any of the technical limitation of the
Services, use any tool to enable features or functionalities that are otherwise
disabled in the Services, or decompile, decipher, disassemble, or otherwise reverse
engineer the Services;
d. perform or attempt to perform any actions that would interfere
with the proper working of the Services, prevent access to or use the Services by
our other customers, or impose an unreasonable or disproportionately large load
on our infrastructure;
e. copy, reproduce, alter, modify, create derivative works,
publicly display, republish, upload, post, transmit, resell, or distribute in any
way material, information or Services from BIT;
f. use and benefit from the Services via a rental, lease,
timesharing, service bureau, or other arrangement;
g. transfer any rights granted to you under these Terms of
Service;
h. use the Services in a way that distracts or prevents you from
obeying traffic or safety laws;
i. use the Services for any illegal activity or goods or in any way
that exposes you, other BIT users, our partners, or BIT to harm;
j. otherwise use the Services except as expressly allowed under
these Terms of Service;
k. use the Services if you do not accept these Terms of
Service;
l. access, tamper with, or use non-public areas of the Service,
computer systems or technical delivery systems of BIT's providers; or
m. attempt to probe, scan, or test the vulnerability of any
BIT system or network or breach any security or authentication measures.
If we reasonably suspect that your BIT Account has been used for
an unauthorized, illegal, or criminal purpose, you give us express authorization
to share information about you, your BIT Account, and your use of the Services
and your data with law enforcement.
5. Compatibility
We do not warrant that the Services will be compatible with your
mobile device or cellular carrier. Your use of the Services may be subject to the
terms of your agreements with your mobile device manufacturer or your carrier.
You may not use a modified device to use the Services if the modification is
contrary to the manufacturer's software or hardware guidelines, including
disabling hardware or software controls: referred to as "jail broken".
6. Your Content
The Services may include functionality for uploading or providing
images, logos, products, loyalty programs, promotions, advertisements, data,
records, location information, vehicle data, driver logs, inspection reports,
messages and other materials or information ("Content").
You grant us and our subsidiaries, affiliates, third party service
providers, and successors a
worldwide, non-exclusive, royalty-free, fully-paid, transferable, and
sub-licensable right to use, reproduce, modify, adapt, publish, prepare
derivative works of, distribute, publicly perform, and publicly display your
Content throughout the world in any media in order to provide and promote the
Services. You retain all rights in your Content, subject to the rights you granted
to us in these Terms of Service. You may modify or remove your Content via your
BIT Account or by terminating your BIT Account, but your Content may persist in
historical, archived, or cached copies and versions thereof available on or
through the Services.
You assume sole responsibility for your Content and for complying
with all federal and state regulations including the FMCSA's Hour of Service
rules for commercial drivers.
You will not upload or provide Content or otherwise post, transmit,
distribute, or disseminate through the Services any material that:
a. is false, misleading, unlawful, obscene, indecent, lewd,
pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or
inflammatory;
b. encourages conduct that would be considered a criminal offense
or gives rise to civil liability;
c. breaches any duty toward or rights of any person or entity,
including rights of publicity, privacy, or trademark;
d. contains corrupted data or any other harmful, disruptive, or
destructive files;
e. advertises products or services competitive with BIT's or its
partners' products and services, as determined by us in our sole discretion; or
f. in our sole judgment, is objectionable, restricts or inhibits
any person or entity from using or enjoying any portion of the Services, or
which may expose BIT, its affiliates or its customers to harm or liability of
any nature.
Although we have no obligation to monitor any Content, we have
absolute discretion to remove Content at any time and for any reason without
notice. You understand that by using the Services, you may be exposed to Content
that is offensive, indecent, or objectionable. We take no responsibility and
assume no liability for any Content, including any loss or damage to any of
your Content.
When you share your Content through our Services, you are granting
us the necessary rights and licenses to do so. This includes Content you may share
with government officials and/or motor carriers. When you share your Content with
a motor carrier it will be made available to all of the motor carrier's users
that have access to the Services. These users will be able to send you message
through the Services.
7. Infringement
We respect the copyright and trademark rights of others and ask
that you do the same. We respond to all valid notices of copyright and trademark
infringement, and our policy is to suspend or terminate the access privileges of
those who infringe the copyright and trademarks of others.
8. Security
We have implement technical and organizational measures designed
to secure your personal information from accidental loss and from
unauthorized access, use, alteration, or disclosure. However, we cannot
guarantee that unauthorized third parties will never be able to defeat those
measures or use your personal information for improper purposes. You provide
your personal information at your own risk.
You are responsible for safeguarding your password and for
restricting access to the Services from your compatible mobile devices and
computers. You will immediately notify us of any unauthorized use of your
password or BIT Account or any other breach of security. Notwithstanding Sections
20 and 21, in the event of any dispute between two or more parties as to account
ownership, we will be the sole arbiter of such dispute in our sole discretion.
Our decision (which may include termination or suspension of any BIT Account
subject to dispute) will be final and binding on all parties.
9. Communications
You consent to receive communications from us including email,
text messages, calls, and push notifications to the cellular telephone number
you provide us. These communications may be generated by automatic telephone
dialing systems which will deliver prerecorded messages, including for the
purposes of secondary authentication, receipts, reminders, and other notifications.
Standard message and data rates applied by your cell phone carrier may apply to
the text messages we send you.
10. Paid Services
BIT may offer Services to be paid for on a recurring basis
("Subscription Services") or on an as-used basis ("A La Carte Services", which
together with the Subscription Services are "Paid Services"). BIT has the
right to change, delete, discontinue, or impose conditions on Paid Services or
any feature or aspect of a Paid Service. Subscription Services may subject you
to recurring fees and/or terms. By signing up for a Subscription Service,
including after any free trial period, you agree to pay us the subscription fee
and any applicable taxes as set forth in your BIT Account settings or as
otherwise agreed in writing ("Subscription Fee"). A La Carte Services may
subject you to fees charged per usage and/or terms. By using an A La Carte Service,
you agree to pay the fees and any taxes incurred at the time of usage ("A La
Carte Fees", which together with Subscription Fees are "Paid Service Fees").
Paid Service Fees may be paid by debit card or credit card. If
you link a debit or credit card to your account, you authorize us to collect
Paid Service Fees by debit from your linked debit card or charge to your linked
credit card.
Unless otherwise provided in a Subscription Service's terms,
Subscription Fees will be charged on the 1st of every month until canceled.
You may cancel a Subscription Service at any time from your BIT Account settings.
If you cancel a Subscription Service, you will continue to have access to that
Subscription Service through the end of your then current billing period, but
you will not be entitled to a refund or credit for any Subscription Fee already
due or paid. We reserve the right to change our Subscription Fee. Your continued
use of Subscription Services after notice of a change to our Subscription Fee
will constitute your agreement to such changes.
11. Termination
We may terminate the Terms of Service or suspend or terminate
your BIT Account or your access to any Service at any time for any reason. We will
take reasonable steps to notify you of termination by email or at the next time
you attempt to access your BIT Account. You may also terminate the Terms of
Service applicable to your BIT Account by deactivating your BIT Account at any
time.
12. Effect of Termination
If these Terms of Service or your BIT Account is terminated or
suspended for any reason:
a. the license and any other rights granted under these Terms of
Service will end;
b. we may (but have no obligation to) delete your information
and account data stored on our servers; and
c. we will not be liable to your or any third party for
compensation, reimbursement, or damages for any termination or suspension
of the Services, or for deletion of your information or account data. In
addition to any payment obligations under the Payment Terms, the following
sections of these Terms of Service survive and remain in effect in accordance
with their terms upon termination: 6 (Your Data), 7 (Infringement),
12 (Effect of Termination), 14 (Ownership), 15 (Indemnity),
16 (Representations and Warranties), 17 (No Warranties), 18 (Limitation of
Liability and Damages), 19 (Third Party Products), 20 (Disputes), 21 (Binding
Individual Arbitration), 22 (Governing Law), 23 (Limitation on Time to Initiate
a Dispute), 24 (Assignment), 25 (Third Party Service and Links to Other Web Sites),
and 26 (Other Provisions).
13. Your License
We grant you a limited, non-exclusive, revocable, non-transferable,
non-sublicensable license to use the object code of the software that is part of
the Services, as authorized in these Terms of Service. We may make software
updates to the Services available to you, which you must install to continue using
the Services. Any such software updates may be subject to additional terms made
known to you at that time.
The Services contain proprietary and confidential information
that is protected by applicable laws. BIT reserves all rights in and to the
Services that are not expressly granted to you in these Terms of Service.
14. Ownership
We reserve all rights not expressly granted to you in these
Terms of Service. We own all rights, title, interest, copyright, and other
worldwide Intellectual Property Rights (defined below) in the Services and all
copies of the Services. These Terms of Service do not grant you any rights to
our trademarks or service marks.
For the purposes of these Terms of Service, "Intellectual
Property Rights" means all patent rights, copyright rights, mask work rights,
moral rights, rights of publicity, trademark, trade dress, and service mark
rights, goodwill, trade secret rights, and other intellectual property rights
that exist now or come into existence in the future, and all of their applications,
registrations, renewals, and extensions, under the laws of any state, country,
territory, or other jurisdiction.
You may submit comments or ideas about the Services ("Ideas").
By submitting any Idea, you agree that your disclosure is gratuitous,
unsolicited, and without restriction, that it will not place us under any
fiduciary, confidentiality or other obligation, and that we are free to use the
Idea without any additional compensation to you, and/or to disclose the Idea on a
non-confidential basis or otherwise to anyone.
15. Indemnity
You will indemnify, defend, and hold us, our processors,
respective employees, directors, agents, affiliates, and representatives
harmless from and against any and all claims, costs, losses, damages, judgments,
tax assessments, penalties, interest, and expenses (including without limitation
reasonable attorneys' fees) arising out of any claim, action, audit,
investigation, inquiry, or other proceeding instituted by a person or entity
that arises out of or relates to:
a. any actual or alleged breach of your representations,
warranties, or obligations set forth in these Terms of Service;
b. your wrongful or improper use of the Services;
c. your violation of any third party right, including without
limitation any right of privacy, publicity rights, or Intellectual Property
Rights;
d. your violation of any law, rule, or regulation of the United
States, Canada, Mexico, or any other country; and
e. any other party's access and/or use of the Service with your
unique name, password, or other appropriate security code.
16. Representations and Warranties
You represent and warrant to us that:
a. you are at lease eighteen years of age;
b. you are eligible to register and use the Services and have
the right, power, and ability to enter into and perform under these Terms of
Service;
c. any information you provide in connection with the Services,
including your business name, accurately and truthfully represents your
business or personal identity under which you sell goods and services;
d. you and all transactions initiated by you will comply with
all federal, state, and local laws, rules, and regulations applicable to you
and/or your business
e. you will not use the Services, directly or indirectly, for
any fraudulent undertaking or in any manner so as to interfere with the operations
of the Services;
f. your use of the Services will be in compliance with these Terms
of Service; and
g. you own all of your Content or that you have all rights
necessary to grant us the license rights in your Content
17. No Warranties
THE SERVICES ARE PROVIDED "AS IS" WITHOUT REPRESENTATION OR
WARRANTY, WHETHER IT IS EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE
FOREGOING, BIT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
BIT DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE,
RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE
SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED,
ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE
CORRECTED; OR THAT THE SERVICES ARE FREE OF HARMFUL COMPONENTS.
BIT does not warrant, endorse, guarantee, or assume responsibility
for any product or services advertised or offered by a third party. BIT is
not responsible for the accuracy, appropriateness, or legality of your Content
or any other information you may be able to access using the Services.
18. Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
WILL BIT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTS, SPECIAL,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR
LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES THAT RESULT
FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL
CASES, BIT WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLE
FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL BIT BE RESPONSIBLE FOR ANY DAMAGE,
LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS
OR USE OF THE SERVICES OR YOUR BIT ACCOUNT, OR THE INFORMATION CONTAINED
THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL
LIABILITY OF BIT IS LIMITED TO THE GREATER OF:
A. THE PURCHASE PRICE OF GOODS ORDERED FROM BIT PLUS THE AMOUNT OF
FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE
MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVEN RISE TO THE CLAIM FOR
LIABILITY
B. USD$500
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED
LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER
BASIS, EVEN IF BIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE
FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED
BY LAW IN THE APPLICABLE JURISDICTION.
19. Third Party Products
All third party hardware and other products included or sold
with the Services are provided solely according to the warranty and other terms
specified by the manufacturer, who is solely responsible for the service and
support for its product. For service, support, or warranty assistance, you should
contact the manufacturer directly. BIT MAKES NOT REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY
DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR
FITNESS FOR A PARTICULAR PURPOSE.
20. Disputes
"Disputes" are defined as any claim, controversy, or dispute
between you and BIT, its processors, suppliers, licensors, respective
affiliates, agents, directors, or employees. This includes any claims relating
in any way to these Terms of Service, or the Services, or any other aspect of
our relationship.
21. Binding Individual Arbitration
You and BIT agree to arbitrate any and all Disputes by a neutral
arbitrator who has the power to award the same damages and relief that a court
can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL
BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS,
REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT
PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU
WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST BIT. If any provision
of this arbitration agreement is found unenforceable, the unenforceable provision
will be severed, and the remaining arbitration terms will be enforced (but in no
case will there be a class or representative arbitration). All Disputes will be
resolved finally and exclusively by binding individual arbitration with a
single arbitrator administered by the American Arbitration Association according
to this Section and the applicable arbitration rules for that forum. Consumer
claimants may elect to pursue their claims in their local small-claims court
rather than through arbitration so long as their matter remains in small claims
court and proceeds only on an individual (non-class or non-representative) basis.
The Federal Arbitration Act, 9 U.S.C. §§ 1-16 fully applies. Any
arbitration hearing will occur in Huntington, West Virginia, or another mutually
agreeable location. The arbitrator's award will be binding on the parties and my be
entered as a judgment in any court of competent jurisdiction. For the purposes of
this arbitration provision, references to you and BIT also include respective
subsidiaries, affiliates, agents, employees, predecessors, successors, and
assigns as well as authorized users or beneficiaries of the Services. Subject
to and without waiver of the arbitration provision above, you agree that any
judicial proceedings (other than small claims actions in consumer cases) will
be brought in and you hereby consent to the exclusive jurisdiction and venue in
the state courts in Huntington, West Virginia, or federal court for the Southern
District of West Virginia.
22. Governing Law
These Terms of Service and any Dispute will be governed by West
Virginia law and/or applicable federal law (including the Federal Arbitration
Act) as applied to agreement entered into and to be performed entirely within
West Virginia, without regard to is choice of law or conflicts of law principles.
23. Limitation on Time to Initiate a Dispute
Any action or proceeding by you relating to any Dispute must
commence within one year after the cause of action accrues.
24. Assignment
These Terms of Service, and any rights and licenses granted
hereunder, may not be transferred or assigned by you and any attempted transfer
or assignment will be null and void.
25. Third Party Services and Links to Other Web Sites
You may be offered services, products, and promotions by third
parties and not by BIT ("Third Party Services"). If you decide to use Third
Party Services you will be responsible for reviewing and understanding the terms
and conditions for these services. We are not responsible for the performance of
any Third Party Services. The Services may contain links to third party websites.
The inclusion of any website link does not imply an approval, endorsement, or
recommendation by BIT. Such third party websites are not governed by these Terms
of Service. You access any such website at your own risk. We expressly disclaim
any liability for these websites. When you use a link to go from the Services to
a third party website, our Privacy Policy is no longer in effect. Your
browsing and interaction on a third party website, including those that have a
link in the Services is subject to that website's own terms, rules, and
policies.
26. Other Provisions
These Terms of Service and Policies are a complete statement
of the agreement between you and BIT regarding the Services. In the event of
a conflict between these Terms of Service and any other BIT agreement or
Policy, these Terms of Service will prevail and control the subject matter of
such conflict. If any provision of these Terms of Service is invalid or
unenforceable under applicable law, then it will be changed and interpreted to
accomplish the objectives of such provision to the greatest extent possible under
applicable law, and the remaining provisions will continue in full force and
effect. These Terms of Service do not limit any rights that we may have under
trade secret, copyright, patent, or other laws. No waiver of any term of
these Terms of Service will be deemed a further or continuing waiver of such
term or any other term.
Blue Ink Tech Terms of Service for Paid Premium Services
Updated: August 18, 2023
NOTICE: THESE TERMS OF SERVICE ARE SUBJECT TO BINDING ARBITRATION AND INCLUDE A WAIVER OF JURY TRIALS AND OF CLASS ACTION RIGHTS. PLEASE READ THESE TERMS OF SERVICE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.
These Terms of Service contain the terms under which Blue Ink Technology, Inc., a West Virginia corporation, and its affiliates provide certain paid premium services ("Premium Services") to subscription customers.
You agree that by downloading, accessing, using or accepting any of the benefits of our Premium Services, you are indicating that you have read, understand, and agree to be bound by these Terms of Service. If you do not agree to these Terms of Service, then you are prohibited from downloading, accessing or using the Premium Services.
Your agreement with us comprises several parts. It includes these Terms of Service as well as any other terms and conditions applying to any other goods or services that we offer, the terms of the particular service plan you purchase, our Privacy Policy and our business policies, practices and procedures ("Policies") which are set forth, from time to time, on our website. You agree to all of the foregoing when you use our services. Our Policies are subject to change at any time with or without notice.
These Terms of Service apply to you only if you have subscribed to Premium Services from us.
1. DEFINITIONS.
1.1 "Account" means the account created by you with us as described in Section2.
1.2 "Application(s)" means the Blue Ink Tech app (mobile application for IOS and Android).
1.3 "Data" means data collected by the driver’s phone, tablet or other device for use by the Premium Services and any personal or other information that you submit to us.
1.4 "Hardware" means the BIT ELD adapter (electronic logging device hardware), the BIT Tire Pressure Monitoring Sensor, the BIT Air Scale, or the BIT Dashcam.
1.5 "Order Form" means the subscription purchase page on blueinktech.com or an invoice from Blue Ink Technology, Inc.
1.6 "Payment Method" means credit card, debit card, or bank account used at checkout.
1.7 "Premium Service(s)" means our services that enable a commercial motor vehicle driver to connect directly with a motor carrier allowing drivers to send messages and to automatically share their driving logs, documents, location information and other data with the carrier. This data is available to the carrier’s employees and other third parties who are also connected to the carrier’s Account. Our role is solely to provide the technology and platform that enables these services. You are responsible for selecting the parties with whom you choose to connect and what you choose to share.
1.8 "Service Term" means the length of the use of the Premium Services elected by the subscriber and includes the Initial Service Term (see Section 6 of these Terms of Service) and any renewal or extension term.
1.9 "Software" means the Blue Ink Tech web portal at blueinktech.com
1.10 "us," "we," or "our" means Blue Ink Technology, Inc., a West Virginia corporation, and its affiliates.
1.11 "you," "your," or "subscriber" means the subscriber to and user of our Premium Services. If you are subscribing to these services on behalf of an organization, you agree to these Terms and Services on behalf of that organization and you represent to us that you have the authority to do so.
2. ACCOUNT.
2.1 You may use the Premium Services only if you are 18 years or older and capable of forming a binding legal contract with us.
2.2 If you want to access and use the Premium Services, you will need to create an account (your "Account"). You will create a password which will be required to access your Account. You are responsible for maintaining the confidentiality of your password. You are responsible for any harm or damage that results from disclosing your password, allowing another person to use your password, or failure to develop a reasonably secure password. It's important that you provide us with accurate, complete and up-to-date information for your Account. You are responsible for updating your information to keep it accurate, complete and up-to-date. If you do not keep your information properly and timely updated, we may have to suspend or terminate your Account. You agree that you will not disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you know about them.
2.3 Our service plan options will be described on our website and may be modified from time to time in our sole discretion.
2.4 You agree that we may use your email address to send notices to you.
2.5 We may terminate your Account and delete any of your Data associated with your account if there has been no account activity for 12 months or more.
3. PAYMENT OF FEES AND CHARGES.
3.1 You agree to pay all fees and charges when due in accordance with the terms set forth on your Order Form and these Terms of Service. We reserve the right to change our fees and charges and to institute new fees and charges effective at the end of the Initial Service Term or the then current renewal term.
3.2 The terms of your payment will be based on your Payment Method as agreed to by us. We use a third-party payment processor ("Payment Processor") to bill you for use of the Premium Services. Payment processing will be subject to the terms, conditions and privacy policies of the Payment Processor as well as our Policies. We are not responsible for errors by the Payment Processor. Services and Hardware must be paid for with a Payment Method that we expressly approve. When you give us a debit or credit card number, or a bank account number, you are irrevocably authorizing us to charge it for the Premium Services and any Hardware you order and all amounts due under these Terms of Service, the Order Form, and any other agreement you have with us without further notice to you. We will bill your Payment Method during the Service Term in advance on a periodic basis in accordance with those terms. Your pricing for Premium Services will be governed by the terms in your Order Form and these Terms of Service.
3.3 If your debit or credit card provider refuses a charge, or if your bank returns any payment from the bank account as unpaid, the Premium Services can be suspended or terminated without notice. If you wish to change the Payment Method, you must contact us prior to the next billing date to do so by contacting us at the following email address: billing@blueinktech.com.
3.4 By choosing to use our Premium Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of the Premium Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to bill your Payment Method. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes made by the Payment Processor even if it has already requested or received payment.
3.5 If you have an objection to any fees or charges, you must detail your objection in writing within 60 days after the fee or charge is incurred. If you fail to object within the 60 day period, any objection you may have shall be deemed to have been waived by you. Billing inquiries, complaints, or objections must be sent to: billing@blueinktech.com.
3.6 Late payments are subject to an interest charge of 1.5% per month on any outstanding balance, or the maximum rate of interest permitted by law if less, plus all expenses incurred by us in collection, including legal fees and expenses. Late payment may result in immediate suspension or termination of Premium Service without notice.
Any free trial or other promotion that provides access to our Premium Services must be used within the specified time of the trial. You must stop using our Premium Services before the end of the trial period in order to avoid being charged for Premium Services. If you cancel prior to the end of the trial period and are inadvertently charged for a Premium Service, please contact us at billing@blueinktech.com or at 304-381-1512.
5. TAXES.
You will be responsible for all governmental taxes that we may be required to collect or pay due to providing the Premium Services or the Hardware to you other than taxes based on our net income. This includes any applicable federal, provincial, state, or local taxes, such as sales and use taxes, value added taxes, goods and services taxes, harmonized sales taxes, excise taxes and duties.
6. SERVICE TERM.
You will subscribe to the Premium Services for the duration specified in the Order Form ("Initial Service Term"). Your subscription will be automatically renewed for periods of the same duration as the Initial Service Term, unless either you or we give notice of termination of the Premium Services at least thirty (30) days prior to the end of the then current Service Term. Your notice of termination must be given by calling the following telephone number: 304-381-1512. Renewals will be at the standard, non-promotional monthly rates in effect on the renewal date. When the Premium Service is terminated, the subscriber will have thirty (30) days to access or download the user’s Data from our website at blueinktech.com. After thirty (30) days, the subscriber will no longer be able to access historical Data.
7. YOUR RESPONSIBILITIES.
You agree to comply with the following when using the Premium Services and our Hardware:
7.1 You are responsible for installing and maintaining our Hardware, Applications, and Software in proper working order and for determining that your particular vehicle is compatible with our Hardware.
7.2 You may not misuse the Premium Services by attempting to access them using a method other than through our Application and instructions that we provide.
7.3 You may not circumvent or attempt to circumvent any limitations that we impose on your Account.
7.4 You may not reverse engineer or attempt to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how or algorithms relevant to any of our Premium Services, Applications, Hardware, or Software.
7.5 You may not use the Premium Services to violate any applicable law or regulation. If we reasonably suspect that your BIT Account has been used for an unauthorized, illegal, or criminal purpose, you expressly authorize us to share information about you, your BIT Account, and your use of the Premium Services with governmental authorities.
7.6 In using the Premium Services, you expressly assume the sole responsibility for complying with all applicable laws and regulations. These include but are not limited to federal and state weight regulations and the FMCSA’s Hour of Service rules for commercial drivers.
7.7 You are responsible for obtaining, installing, and maintaining all additional goods and services necessary to connect to, access, and otherwise use the Premium Services, including but not limited to the BIT ELD adapter, BIT Tire Pressure Monitoring Sensor, BIT Air Scale, BIT Dashcam, Blue Ink Tech app, and access to the web portal at blueinktech.com and necessary communication devices.
7.8 You may not resell the Premium Services. They are for your reasonable use as the end user consistent with your usage plan.
7.9 You are responsible to become familiar with the Premium Services, our Hardware, and our Applications and Software and to follow all instructions for their proper usage.
8. TERMINATION OF SERVICE.
8.1 You may terminate your subscription by contacting us at 304-381-1512. Cancellations may only be made by calling that telephone number and are effective at the end of the then current billing cycle. Early terminations may be subject to an early termination fee. You are responsible for all charges billed or incurred prior to deactivation. If Services are terminated before the end of your billing cycle, we will not prorate charges to the date of termination and you will not receive a credit or refund for any unused Premium Service.
8.2 If at any time we believe that you have violated these Terms of Service or the terms of any of our Policies or any related agreement with us, or that you are using the Premium Services, Hardware, Applications, or Software improperly or illegally, we may suspend or terminate your Account immediately. We will inform you by text message or email to the contact information you have given us for your Account if we take or intend to take such action.
8.3 We reserve the right to suspend or terminate Service in the following events:
8.3.1 If any payment is not made when due.
8.3.2 If you behave in an abusive, derogatory, threatening, or similarly unreasonable manner with any of our representatives.
8.3.3 If you modify our Hardware, Software or Applications in anyway.
8.4 We offer various service plans. Discounts may be given for commitments of one year or more. If your subscription has a Term Commitment ("Term Commitment") you will be charged an early termination fee for each subscription that you terminate before the end of the Term Commitment or that we terminate early due to your failure to pay. The Early Termination Fee will equal the lesser of (1) the balance of the monthly fees owing by you for the remainder of the Term Commitment, or (2) the difference between the monthly charge that you paid on your subscription prior to Early Termination and our then standard monthly charge for Service without a Term Commitment. You are not responsible for paying an Early Termination Fee when terminating a service (a) which is provided on a month-to-month basis, or (b) consistent with any trial period that may be offered by us to you.
9. DATA AND PRIVACY.
9.1 Our Privacy Policy sets out how we treat any Data that you submit to us. You agree that we may use and share your Data in accordance with our Privacy Policy. We will treat your Data as confidential information and only use and disclose it in accordance with these Terms of Service and our applicable Privacy Policy. Your Data is not considered to be confidential information if that Data (1) is or becomes public other than due to a breach by us of these Terms of Service, (2) was lawfully known to us before receiving it from you, (3) is received by us from a third party without knowledge of any obligation owed to you, (4) was independently developed by us without reference to your Data, or (5) constitutes aggregated or de-identified information that cannot be linked to you. You retain ownership of all intellectual property rights in your Data. Though you retain ownership of your Data, we have exclusive ownership of and rights to any analysis we conduct of your Data. These Terms of Service do not provide us any rights to your Data except for those rights necessary for us to provide the Premium Services and as otherwise described in these Terms of Service and our applicable Privacy Policy. You do grant us a worldwide, non-exclusive, transferable, royalty-free, non-terminable license to use, reproduce, distribute, modify, adapt, create derivative works, and otherwise exploit your Data, but only for the limited purposes of providing the Premium Services to you, improving our services, and for the purposes described in our Privacy Policy. This limited license continues even after you cease using the Premium Services. This license extends to our trusted third parties with whom we work as necessary to provide the Premium Services to you.
9.2 You agree that we shall have the right to collect and analyze Data and other information relating to or arising from our providing Premium Services to you and your use of the Premium Services. This will include your Data and information derived from your Data. You also agree that we may use all such information and data to improve our services and for other development, diagnostic, and corrective purposes relative to the services now or hereafter offered by us.
9.3 While we have implemented technical and organizational measures designed to secure your Data and personal information from accidental loss and unauthorized access, use, alteration, or disclosure, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or access your Data or personal information. You provide us with your Data and personal information at your own risk.
10. OUR INTELLECTUAL PROPERTY.
10.1 Your use of the Premium Services does not grant to you any ownership or claim to the content you access via the Premium Services. We shall own and retain all right, title and interest in and to (1) the Premium Services and all Software, Applications, Hardware, inventions, ideas, and technology developed in connection with or with respect to the services we offer, and all improvements, enhancements, and modifications to any of the foregoing, and (2) all intellectual property rights related to any of the foregoing.
10.2 The Premium Services and all graphics, trade names, trademarks, service marks, logos, images, software, and intellectual property related to the Premium Services are owned and provided by us, our affiliates, or our vendors and may not be reproduced, copied, distributed, republished, transmitted, downloaded, photocopied, or otherwise transferred or duplicated without our express written permission. Using the Premium Services does not give you any right to use any of our trade names, trademarks, service marks, logos, or other branding except as necessary for your personal use of the Premium Services in accordance with these Terms of Service.
10.3 You may submit comments or ideas to us about the Premium Services, our Hardware, Applications, or Software ("Ideas"). By submitting any Ideas, you agree that the disclosure to us is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality, non-use, or other obligation, and that we may freely use, apply, and disclose the Ideas without any compensation to you.
11. SOFTWARE LICENSE.
Any Software provided to you in connection with the Premium Services is being provided for use only and with respect only to the Premium Services. All Software is licensed to you solely for use with the Premium Services. You agree to use the Software only with our Premium Services and not through any other means. We hereby grant to you a non-exclusive, non-transferable, and non-sublicensable license to use our Software and our Application during the Service Term and only in connection with the Premium Service to which you subscribe.
12. MODIFICATIONS AND AMENDMENTS.
12.1 We reserve the right to make changes to these Terms of Service and our other Policies at any time and for any reason. Any changes will be posted on our web page blueinktech.com. We may also elect to provide notice of change by email. Changes will be effective when we post them on our web page. If you do not want to agree to any changes made to the Terms of Service or our other Policies, you should stop using the Premium Services. By continuing to use the Premium Services after a change has been posted, you will be indicating your agreement to be bound by the updated Terms of Service or Policies.
12.2 We may, from time to time, make new applications or features available as part of the Premium Services. Your use of those new applications or features may be contingent upon you agreeing to additional terms.
13. WARRANTY.
13.1 We will use commercially reasonable efforts consistent with applicable industry standards to maintain the Premium Services and shall perform the Premium Services in a professional and workmanlike manner. Premium Services may be interrupted for scheduled or emergency maintenance or due to other causes beyond our reasonable control.
13.2 TO THE MAXIMUM EXTENT ALLOWED BYLAW, WE DO NOT WARRANT ANY PERFORMANCE OF THE PREMIUM SERVICES, APPLICATIONS, HARDWARE, OR SOFTWARE, THAT THE PREMIUM SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY PARTICULAR RESULTS WILL BE OBTAINED BY USING THE PREMIUM SERVICES. YOU ARE RESPONSIBLE FOR ASSESSING YOUR DEVICES, VEHICLE, AND COMMUNICATION NEEDS. YOU EXPRESSLY AGREE THE USE OF OUR PREMIUM SERVICE IS AT YOUR SOLE RISK. THE PREMIUM SERVICES, SOFTWARE, HARDWARE, AND APPLICATIONS ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. EXCEPT TO THE EXTENT SUCH WARRANTIES ARE LEGALLY NOT ABLE TO BE EXCLUDED, WE MAKE NO WARRANTIES OF QUALITY, ACCURACY, SUITABILITY, TIMELINESS, OR COMPLETENESS, AND WE DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGMENT OF THIRD PARTY RIGHTS, AND THOSE ARISING FROM A COURSE OF DEALINGS OR USAGE OF TRADE. TO THE MAXIMUM EXTENT ALLOWED BY LAW, YOU AGREE THAT WE AND OUR AFFILIATES, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, VENDORS, AND LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGES SUFFERED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PERSONAL INJURY INCLUDING DEATH, PROPERTY DAMAGE, OR EMOTIONAL DISTRESS, RESULTING FROM DELAYS, ERRORS, SYSTEM DOWNTIME, OR SERVICE INTERRUPTIONS CAUSED BY US, OUR VENDORS OR SUBCONTRACTORS, OR BY YOU OR YOUR ERRORS AND/OR OMISSIONS, ARISING OUT OF, RESULTING FROM, OR RELATING TO YOUR DOWNLOADING OF, USE OF, OR ACCESS TO THE PREMIUM SERVICES, SOFTWARE, APPLICATIONS, OR YOUR INSTALLATION OR USE OF OUR HARDWARE.
14. WAIVER OF JURY TRIAL.
To the fullest extent of the law, we each waive any right to trial by jury in any lawsuit, arbitration or other proceeding.
15. LIMITATION OF LIABILITY.
WE AND OUR AFFILIATES, VENDORS, MEMBERS, MANAGERS, EMPLOYEES, OFFICERS, REPRESENTATIVES, CONTRACTORS, AND AGENTS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE OR ANY AGREEMENT TO WHICH THEY RELATE, THE PREMIUM SERVICES, OR ANY HARDWARE, SOFTWARE, OR APPLICATIONS UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY FOR (1) ERROR OR INTERRUPTION OF SERVICE, (2) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (3) LOSS OF BUSINESS, REVENUES, OR PROFITS. THIS SECTION LIMITS OUR LIABILITY TO YOU FOR DAMAGES SUFFERED BY YOU. WE AND OUR AFFILIATES, SUPPLIERS, MEMBERS, MANAGERS, EMPLOYEES, OFFICERS, REPRESENTATIVES, CONTRACTORS, AND AGENTS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING FROM THE PREMIUM SERVICES OR OUR HARDWARE, SOFTWARE, OR APPLICATIONS. OUR ENTIRE AND COMPLETE LIABILITY TO YOU AND YOUR EXCLUSIVE REMEDY FOR ANY BREACH OF ANY NONWAIVABLE IMPLIED OR EXPRESSED WARRANTY, OR FOR BREACH OF THESE TERMS OF SERVICE, THE ORDER FORM, OR OUR OTHER POLICIES OR AGREEMENTS WITH RESPECT TO THE PREMIUM SERVICES, OUR SOFTWARE OR OUR APPLICATIONS WILL NOT EXCEED IN THE AGGREGATE THE AMOUNT YOU ACTUALLY PAID FOR THE PREMIUM SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF YOUR CLAIM. IF APPLICABLE LAW PROHIBITS THE FOREGOING EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, THEN IN SUCH STATES OR COUNTRIES OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE OR LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PREMIUM SERVICES, OUR WEB PAGE, SOFTWARE OR APPLICATIONS, OR YOUR BIT ACCOUNT OR THE INFORMATION CONTAINED IN YOUR BIT ACCOUNT.
16. INDEMNIFICATION.
You agree to defend, indemnify and hold harmless us and our affiliates, officers, employees, subcontractors, and agents from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and expenses and court costs) arising or resulting from or relating to your use or misuse of the Premium Services or our Hardware, Software or Applications, any act or omission on your part, or a breach by you of these Terms of Service, the Order Form, our Policies, or any related agreement between us.
17. CLASS ACTION WAIVER.
You and we agree that you and we will resolve any disputes, claims, or controversies on an individual basis, and that any claims brought under these Terms of Service, the Order Form, our other Policies, or any agreement between us, or otherwise in connection with the Premium Services or our Hardware, Software, or Applications will be brought in an individual capacity and not on behalf of, or as part of, any purported class, consolidated or representative proceeding. You and we agree that you and we shall not participate in any consolidated, class, or representative proceeding brought by any third party arising under these Terms of Service, the Order Form, our other Policies, or any agreement between us, or in connection with the Premium Services or our Hardware, Applications, or Software. If any court of proper jurisdiction or arbitrator decides that this class action waiver is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in the West Virginia Courts.
18.1 The provisions of this Section 18 apply to Hardware acquired from us.
18.2 Please refer to your Order Form and further communications with us regarding the estimated time of delivery of the Hardware. We are not liable for any delayed or late delivery of the Hardware.
18.3 You are solely responsible for installing the Hardware in accordance with our written instructions. You acknowledge that you are aware that in order to install the Hardware you may choose to make modifications to your vehicle, for example by drilling holes to mount the hardware or cutting an air line, and you agree that we are not liable for any cost, expense or damages arising from the installation of the Hardware.
18.4 If any Hardware delivered to you is lost or stolen we will send you replacement Hardware at its then applicable selling price and you are still responsible for any subscription Premium Services associated with such lost or stolen Hardware.
18.5 In the event the Hardware does not operate, please contact us by emailing us at support@blueinktech.com or by calling us at 304-381-1512.
18.6 The Hardware connects to the battery of your vehicle and consumes a small drain on your vehicle's battery, which may adversely affect your vehicle while not in operation. We are not liable for any consequences of the battery drain associated with use of the Hardware or the Services.
19. ASSIGNMENT
The Premium Services are not transferable by you. If you intend to transfer ownership of a vehicle in which our Hardware is installed, you agree that you will have the device uninstalled from the vehicle and the associated Premium Services terminated by us. For purposes of this paragraph, an assignment includes, without limitation, a merger, other reorganization, sale of assets or business, or other transfer of control by operation of law or otherwise. We may assign the rights to any agreements we have with you to a third party without your consent.
20. DISPUTE RESOLUTION
20.1 You and we agree to first attempt in good faith to resolve any dispute, claim or controversy (collectively "Dispute") by amicable negotiation. You agree to give us written notice of any Dispute by written notice containing a brief explanation of the Dispute together with your name, address, telephone number and email address. Your written notice must be sent to: billing@blueinktech.com. We and you will attempt in good faith to resolve the Dispute. If the Dispute has not been resolved within thirty (30) days of the date of your written notice to us either of us may resort to Arbitration as set forth below.
20.2 You and we agree that, subject to the provisions of Section 20.06 allowing certain relief from a court of competent jurisdiction, any dispute or controversy arising out of, relating to, or concerning your downloading of, use of, or access to our Premium Services, Applications or software, your use of our Hardware, or any matter or issue arising under or pursuant to these Terms of Service, our Policies, your Order Form, or any other agreements between us including the interpretation, construction, performance or breach of the foregoing, and including whether an issue or matter is subject to arbitration hereunder, shall be settled by arbitration to be held in Huntington, West Virginia, in accordance with the commercial arbitration rules then in effect of the American Arbitration Association. The Arbitrator may grant injunctions or other equitable relief in such dispute or controversy. The decision of the Arbitrator shall be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the Arbitrator's decision in any court having jurisdiction. It is intended by the parties that all disputes arising from or related to the relationship reflected in this Agreement be subject to mandatory arbitration. All awards made pursuant to any arbitration proceeding conducted hereunder shall be in US$.
20.3 Each party's promise to resolve claims of arbitration is consideration for the other party's like promise. We shall each pay our respective costs and expenses of arbitration. Each party shall bear their own attorneys’ fees and expenses.
20.4 In rendering an award, the arbitral tribunal shall be required to follow the laws of the State of West Virginia without reference to its conflicts of law principles. The arbitral tribunal is not empowered to award damages in excess of compensatory damages or as otherwise limited in these Terms of Service, and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any dispute. The award shall be in writing and shall briefly state the findings of fact and conclusions of law on which it is based.
20.5 Any arbitration proceedings, decision or award rendered hereunder and the validity, effect and interpretation of this arbitration agreement shall be governed by the Federal Arbitration Act, 9 U.S.C. §1 et seq. The award shall be the sole and exclusive remedy between the parties regarding any claims, counterclaims, issues or accounting presented to the arbitrators. Judgment upon the award may be entered in any court having jurisdiction. Any costs or fees (including attorneys' fees and expenses) incident to enforcing the arbitral award shall be charged against the party resisting such enforcement.
20.6 By agreeing to arbitration, the parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction or other equitable relief, pre-arbitral attachment, or other order to compel arbitration or in aid of arbitration proceedings and the enforcement of any award, but such shall not be sought as a means to avoid or stay arbitration. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal's orders to that effect.
20.7 You and we agree that any claim or Dispute, and any related legal action, arbitration, or proceeding, must be commenced within one (1) year after the claim or Dispute first accrues or arises, otherwise it will be deemed to be time barred.
21. NOTICES
Wherever we or you are required or permitted to give notice to the other party under these Terms of Service, such notice shall be deemed given when actually delivered by email, overnight courier, or when mailed by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:
In the Case of Blue Ink Technology, Inc.:
Blue Ink Technology, Inc.
ATTN: Terms of Service
1102 3rdAvenue
Suite 401
Huntington, WV 25701
In the case of the Subscriber:
The address reflected in the subscriber’s BIT account.
The time of the giving of any notice will be the time of receipt by the addressee or any agent of the addressee, except that in the event the addressee or such agent of the addressee will refuse to receive any notice given by registered mail, certified mail, or by recognized overnight courier, the time of the giving of such notice will be the time of such refusal. Blue Ink Technology, Inc. may from time to time change its address for notification purposes by modifying these Terms of Service and posting them on its web page. The subscriber may from time to time change its address for notification purposes by adjusting it in the subscriber’s BIT account.
22. SEVERABILITY
The invalidity or unenforceability of any term or provision of these Terms of Service and any agreement related to these Terms of Service shall not affect the validity or enforceability of any of the remaining terms or provisions thereof. It is intended that the provisions of these Terms of Service and any such agreements shall be enforced to the fullest extent possible under the laws and public policy of each jurisdiction in which such enforcement is sought, and that the unenforceability or modification to conform with such laws or public policies of any provision of these Terms of Service and any related agreements shall not render unenforceable or impair the remainder of these Terms of Service or such agreements. Accordingly, in the event any provision of these Terms of Service or any such agreement shall be determined by an arbitrator or court of competent jurisdiction to be invalid or unenforceable, in whole or in part, these Terms of Service and any such agreement shall be deemed amended to delete or modify (as and to the extent determined necessary by the said arbitrator or court) the invalid and unenforceable provisions, or portions thereof, or to alter the balance of these Terms of Service and any such agreement in order to render them valid and enforceable to the maximum extent possible.
23. WAIVER
A waiver by us of any covenants, conditions or agreements to be performed by you or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained.
24. GOVERNING LAW, JURISDICTION AND VENUE
24.1 These Terms of Service and any related agreement shall have West Virginia as its situs and shall be governed by and construed in accordance with the laws of West Virginia, without reference to its conflicts of law principles.
We and you agree as follows:
(A) We and you irrevocably and exclusively consent and submit to the jurisdiction and venue of the federal and state courts having jurisdiction over Huntington, West Virginia (the "West Virginia Courts"), for the purpose of an order to compel arbitration, for preliminary relief in aid of arbitration or for a preliminary injunction to maintain the status quo or prevent irreparable harm prior to the appointment of the arbitrators, and to the non-exclusive jurisdiction of the West Virginia Courts for the enforcement of any award issued hereunder;
(B) We and you waive, to the extent not prohibited by applicable law, and agree not to assert, by way of motion, as a defense or otherwise, in any such action, any claim that it is not subject personally to the jurisdiction of any such West Virginia Court, that any such action brought in any such West Virginia Court should be dismissed on grounds of forum non conveniens, should be transferred to any court other than any such West Virginia Court, or should be stayed by reason of the pendency of some other proceeding in any other court other than any such West Virginia Court, or that this Agreement or the subject matter hereof may not be enforced in or by any such West Virginia Court; and
(C) We and you agree not to commence any such action other than before any such West Virginia Court nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action to any court other than any such West Virginia Court whether on the grounds of forum non conveniens or otherwise.
25. INTERPRETATION.
The paragraph and section headings in these Terms of Service are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms of Service. There will be no presumption against either you or us on the grounds we were responsible for preparing or drafting these Terms of Service. The words "include", "includes", and "including" when used herein shall be deemed in each case to be followed by the words "without limitation." The word "herein" and similar references mean, except where a specific paragraph or section reference is expressly indicated, the entire Terms of Service rather than any specific paragraph or section. Throughout these Terms of Service, any reference to the masculine gender shall include the feminine and neuter, and any reference to the female gender shall include the masculine and the neuter, and any reference to the singular shall include the plural, and vice versa. A reference to "day," "month," "quarter," or "year" shall mean the calendar day, month, quarter or year unless expressly provided otherwise. In computing any period of time prescribed or allowed by this Agreement, the day of the notice, act or other event from which the period of time begins to run is not included, and the last day is included, unless it is a Saturday, Sunday, or a legal holiday for national banks in the United States, in which event the period runs until the close of business on the next day which is not one of such days. Otherwise, Saturdays, Sundays and legal holidays are included even though the period of time prescribed or allowed is less than seven days.
26. SURVIVABILITY
The terms and provisions of these Terms of Service and any related agreement which are intended to survive, and all provisions related to the interpretation and enforcement thereof, shall survive the termination of any agreement and your subscription as necessary to give full force and effect thereto.
27. FORCE MAJEURE
Any delays in or failure of performance by us shall not constitute a default by us or give rise to any claims for damages, if and to the extent such delays or failures of performance are caused by acts of war, acts or failures to act of government, revolution, civil commotion, strike, lockout, blockage, embargo, terrorism, or sabotage, fires, earthquakes, floods, explosions, or other events whether similar or dissimilar which are not within our reasonable control, and which by exercise of reasonable diligence we are unable to prevent. In the event of an occurrence of Force Majeure, the time for our performance affected thereby shall be extended for a period of time as reasonably required under the circumstances. If the duration of a Force Majeure event exceeds twenty (20) days, you may terminate your agreement with us upon prior written notice to us.