Agreement between User and ezPBJ
ezPBJ provides various Services at our website www.ezPBJ.com together with other websites and communications services. The Services available include, but are not limited to, converting staff and shift data to government specified reporting formats, shift scheduling, and open shift management of staff, contractors and or vendors.
ezPBJ reserves the sole right to either modify or discontinue the Services, including any of the features, at any time with or without notice to you. ezPBJ will not be liable to you or any third party should we exercise such right.
To access the Services, you may be required to use a user name and password to log in to your account. User logins are for designated Users and cannot be shared or used by more than one User. You are responsible for the confidentiality and use of your user name and password and responsible for all charges resulting from the use of your Account, including unauthorized use prior to your notifying us of such unauthorized use. You shall promptly notify us of any unauthorized access or use of the Services and any loss or theft or unauthorized use of any user’s password and/or user name.
You are responsible for providing, at your own expense, all equipment and third-party services (e.g. Internet access, email service, SMS texting service) necessary to access the Services.
You are responsible for maintaining any security of your user identification, and other confidential information relating to your ezPBJ account.
Certain Services made available by ezPBJ are delivered by third-party websites and organizations. By using any product, service or functionality originating from the www.ezPBJ.com domain, you hereby acknowledge and consent that we may share such information and data with any third party with whom we have a contractual relationship to provide the Services on behalf of our Users and customers.
Unlawful or Prohibited Use and Intellectual Property
All content included as part of the Services, such as text, graphics, logos, images, communications, as well as the compilation thereof, and any software used to provide the Services, are the property of ezPBJ or our suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
Any rights not expressly granted herein to use the Services are reserved by ezPBJ in full. ezPBJ reserves the right, in its sole and absolute discretion, to terminate your access to the Services, at any time, for any reason or for no reason at all, without any notice, prior or otherwise.
Use of Communication Services
The Services may include comment areas, bulletin board services, forums, calendars, texting and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group. You agree to use these communication facilities only to post, send and receive messages and material that are proper and related to the Services.
You understand that the technical processing and transmission of Electronic Communications is fundamentally necessary to use of the Services. You expressly consent to ezPBJ’s interception and storage of Electronic Communications and/or User data, and acknowledge and understand that Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by ezPBJ. You further acknowledge and understand that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. ezPBJ is not responsible for any Electronic Communications and/or data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by ezPBJ, including, but not limited to, the Internet and your local network.
Disclaimer of Warranties
THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ezPBJ, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICES PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, ezPBJ PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR FREE, THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, OR COMPLY WITH THE LAW OF YOUR JURISDICTION. YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF ezPBJ, IN EVALUATING THE SERVICES OR SOFTWARE.
SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ezPBJ OR ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS, AND ASSIGNS, OR ANY OF ITS OR THEIR REPRESENTATIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR MISUSE OF, USE OF, DOWNLOAD OF, INSTALLATION OF, OR INABILITY TO USE THE SERVICES OR THE CONTENT FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE, OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT TAKEN TOGETHER EXCEED THE TOTAL AMOUNT YOU ACTUALLY PAID FOR THE SERVICES, OR, IF AND ONLY IF SUCH LIMITATION IS UNENFORCEABLE UNDER APPLICABLE LAW, THE GREATEST OF (I) THE TOTAL AMOUNT YOU ACTUALLY PAID TO ezPBJ, (II) US $10.00, OR (III) THE LOWEST LIMIT TO DIRECT DAMAGES ALLOWABLE UNDER APPLICABLE LAW.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR ezPBJ WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MANY NOT APPLY TO YOU. ezPBJ’S LIABILITY TO YOU IS NOT LIMITED BEYOND WHAT IS PERMITTED BY APPLICABLE LAW.
You agree to indemnity, defend and hold harmless ezPBJ and its offices, managers, members, employees, agents, representatives, affiliates, subsidiaries, parents, successors, and assigns from and against any and all losses, damages, liability, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including, without limitation, reasonable attorneys’ fees, arising from or relating to your use or misuse of the Services, your breach of this Agreement, your negligence, your misconduct, your violation of any rights of any third party, including, without limitation, other users of the Services, or your violation of any applicable law. Furthermore, you agree that ezPBJ assumes no responsibility for the content you submit or make available through the Services or your compliance with applicable law. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which you will fully cooperate with us in asserting any available defenses.
ezPBJ Service Level, Security and Support
As part of the Services, ezPBJ will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Services. Customer acknowledges that ezPBJ has extensive experience helping Customers improve utilization and realization of benefits of the Services, and that not following the advice of ezPBJ and/or not engaging ezPBJ or other ezPBJ authorized implementation partners in the provision of professional services may substantially limit Customer’s ability to successfully utilize the Service or to enjoy the power and potential of the Service.
ezPBJ shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data. ezPBJ shall maintain PCI DSS compliance for the portions of the ezPBJ Service that store and process credit card data, if any.
The ezPBJ Services will meet the service level specified in the “Service Level Commitment” listed on the ezPBJ website or such other URL or document as specified by ezPBJ, which is hereby incorporated by reference. If the applicable Service fails to achieve the service level, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the applicable Service in accordance with the terms set forth in the Service Level Commitment. The respective Service’s system logs and other records shall be used for calculating any service level events.
Termination / Access Restriction
Upon termination or suspension, regardless of the reasons therefore, your right to use the Services will cease and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.
Governing Law and Jurisdiction
This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause another jurisdiction’s law to apply. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services shall be instituted in the federal courts of the United States or the courts of the State of New York in each case with situs in Monroe County, New York. YOU AGREE THAT YOU WILL ONLY SUBMIT ANY CLAIM AGAINST ezPBJ RELATING TO THE SERVICES INDIVIDUALLY AND NOT THROUGH ANY CLASS ACTION.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Waiver and Severability
No failure to exercise and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any other terms, the terms of this Agreement shall govern.
Notices given by ezPBJ to you will be given by email, by a general posting on the ezPBJ website or by conventional mail. Notices given by you to ezPBJ must be given by email or by conventional mail. Notices to ezPBJ by conventional mail must be sent to: ezPBJ, LLC, 150 Lucius Gordon Drive, Suite 100, West Henrietta, NY 14586.
In any matter requiring ezPBJ’s prior consent, such consent will be considered given only if made in writing by an authorized representative of ezPBJ.