Last modified: August 2023
 

These Terms of Service (this "Agreement") are a binding contract between you ("User," "you," or "your") and BeKynder, Inc. ("BeKynder," "we," or"us"). This Agreement governs your access to and use of the Content.

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "I ACCEPT" BUTTON BELOW OR BY ACCESSING OR USING THE CONTENT. BY CLICKING ON THE "I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE CONTENT YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE CONTENT AND PLEASE SELECT THE "I DECLINE" BUTTON BELOW.

I, USER, ACCEPT THESE BEKYNDER TERMS OF SERVICE AND AGREE THAT I AM LEGALLY BOUND BY ITS TERMS.

I, USER, DECLINE THESE BEKYNDER TERMS OF SERVICE AND AGREE THAT I MAY NOT ACCESS OR USE THE CONTENT.

• 1.

  Definitions.

  • (a)

    "App" means the BeKynder mobile application.

  • (b)

    "Content" means BeKynder's online platform service, the Website, the Services, the App, and associated webpages, portals, applications, features, and content.

  • (c)

    "BeKynder IP" means the Content and all intellectual property provided to User in connection with the foregoing. For the avoidance of doubt, BeKynder IP includes Aggregated Statistics and any information, data, or other content derived from BeKynder's monitoring of User's access to or use of the Content, but does not include User Data.

  • (d)

    "Services" means the services provided by BeKynder under this Agreement that are available through the Website, or that are available through the App.

  • (e)

    "Third-Party Services" means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Content.

  • (f)

    "User Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of User through the Content.

  • (g)

    "Website" means [www.bekynder.com] and any content, functionality, and services offered on or through [www.bekynder.com] or associated websites such as app.BeKynder.com, demo.BeKynder.com.

• 2.

  Access and Use.

  • (a)

    Provision of Access. Subject to the terms and conditions of this Agreement, BeKynder hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Content during the term of this Agreement in accordance with the terms and conditions herein.

  • (b)

    Use Restrictions. You shall not use the Content, any software component of the Content for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Content, any software component of the Content, in whole or in part, including by “framing,” “mirroring” or creating links to the Content; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Content except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Content, in whole or in part; (iv) remove any proprietary notices from the Content; or (v) use the Content in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule. Further, you may not access the Content if you are a direct competitor of BeKynder, except with BeKynder's prior written consent. In addition, you may not access the Content for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

  • (c)

    Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, BeKynder may monitor User's use of the Content and collect and compile data and information related to User's use of the Content to be used by BeKynder in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Content ("Aggregated Statistics"). As between BeKynder and User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by BeKynder. You acknowledge that BeKynder may compile Aggregated Statistics based on User Data input into the Content. You agree that BeKynder may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.

  • (d)

    Reservation of Rights. BeKynder reserves all rights not expressly granted to User in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to User or any third party, any intellectual property rights or other right, title, or interest in or to the BeKynder IP.

  • (e)

    Suspension. Notwithstanding anything to the contrary in this Agreement, BeKynder may suspend User's access to any portion or all of the Content if: (i) BeKynder reasonably determines that (A) there is a threat or attack on any of the BeKynder IP; (B) User's use of the BeKynder IP disrupts or poses a security risk to the BeKynder IP or to any other User or vendor of BeKynder; (C) BeKynder reasonably believes that User is using the BeKynder IP for fraudulent or illegal activities; (D) subject to applicable law, User has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) BeKynder's provision of the Content to User is prohibited by applicable law; (ii) any vendor of BeKynder has suspended or terminated 2 BeKynder's access to or use of any third-party services or products required to enable User to access the Content (any such suspension described in subclause (i) or (ii), a "Service Suspension"). BeKynder shall use commercially reasonable efforts to provide written notice of any Service Suspension to User and to provide updates regarding resumption of access to the Content following any Service Suspension. BeKynder shall use commercially reasonable efforts to resume providing access to the Content as soon as reasonably possible after the event giving rise to the Content Suspension is cured. BeKynder will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that User may incur as a result of a Service Suspension.

• 3.

  User Responsibilities.

  • (a)

    Acceptable Use Policy. The Content, Website, and/or App may not be used for unlawful, fraudulent, offensive, obscene, or otherwise prohibited activity, including:

    • (i)

      In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).

    • (ii)

      To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Content, Website, or App, or which could harm the Company or other users or expose them to liability.

    • (iii)

      In any manner that could interfere with any other party's use or the proper working of the Content, Website, or App.

    • (iv)

      Introducing any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

    • (v)

      Attempting to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Content, Website, or App, the server on which the Website is stored, or any server, computer, or database connected to the Website.

  • (b)

    Account Use. You are responsible and liable for all uses of the Content resulting from access by you or provided by you, directly or indirectly, whether or not such access or use is permitted by or in violation of this Agreement.

  • (c)

    User Data. You hereby grant to BeKynder a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the User Data and perform all acts with respect to the User Data as may be necessary for BeKynder to provide the Content to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display User Data incorporated within the Aggregated Statistics. You will ensure that User Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law.

  • (d)

    Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Content confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.

  • (e)

    Third-Party Services. The Content may permit access to Third-Party Services. For purposes of this Agreement, such Third-Party Services are subject to their own terms and conditions presented to you for acceptance within the Content by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Services, then you should not install, access, or use such Third-Party Services. BeKynder is not liable for any acts or omissions, or effects on the Content, related to Third-Party Services.

• 4.

  Fees and payment.

  • (a)

    BeKynder Fees. BeKynder is currently a free service. However, BeKynder reserves the right to begin to charge a fee for use of the Services, upon at least 30 days prior notice to you, which notice may be provided by e-mail.

  • (b)

    Payment Processing Terms and Fees. BeKynder utilizes a Third-Party Service to process any payments made in the use of the Services. The Third-Party Service User may charge a payment processing fee and/or other fees in accordance with its terms. BeKynder bears no liability of any kind related to the Third-Party Service.

  • (c)

    Taxes. User is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts paid or received by User as a result of using the Content.

• 5.

  Term and Termination.

  • (a)

    Term and Termination. This Agreement will remain in effect during any time that you use or intend to use the Services or Content. However, BeKynder may terminate this Agreement for any reason upon written notice to you, including in the event of User's breach of this Agreement, the Privacy Policy, or the Security Statement.

  • (b)

    Effect of Termination. Upon termination of this Agreement, User shall immediately discontinue use of the BeKynder IP.

  • (c)

    Survival. Sections 4, 5, 6, 7, 8, 9, 11, 12, 16, 17, 19, and 20, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

• 6.

  Personal Information. BeKynder will not use or disclose User Data other than as contemplated in the provision of the Services and User's use of the Content. It is expressly acknowledged and understood that information User provides for the purpose of the Services may be disclosed to other users of the Services. However, BeKynder may disclose information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; (d) independently developed by the receiving party; or (e) otherwise disclosed in the course of providing the Services.

• 7.

  Privacy Policy; Security Statement.

  • (a)

    BeKynder complies with its privacy policy, available at [www.beKynder.com] (the "Privacy Policy"), in providing the Content. The Privacy Policy is hereby incorporated into and made a part of this Agreement. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Content, you acknowledge that 4 you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.

  • (b)

    BeKynder's complies with its Security Statement, available at [BeKynder.com] (the "Security Statement"), in providing the Content. The Security Statement is hereby incorporated into and made a part of this Agreement. The Security Statement is subject to change as described therein. By accessing, using, and providing information to or through the Content, you acknowledge that you have reviewed and accepted our Security Statement, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Security Statement.

• 8.

  Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Content and (b) you own all right, title, and interest, including all intellectual property rights, in and to User Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Content, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.

• 9.

  Use of Descriptions of Content for Promotional Purposes. User grants BeKynder the right to use descriptive text, testimonials, performance metrics, and other images, photos and/or graphics that may identify User and describe the Content for promotional purposes. Within 10 days of User's written request, BeKynder shall remove or modify any promotional materials associated with or referencing User.

• 10.

  Limited Warranty and Warranty Disclaimer.

  • (a)

    BeKynder warrants that it provides Content using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND BEKYNDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY SERVICES. BeKynder shall not be liable for a breach of the foregoing warranty unless User gives written notice of the defective Content, reasonably described, to BeKynder within 30 days of the time when User discovers or ought to have discovered that the Content were defective. Upon receiving written notice, BeKynder shall, in its sole discretion, either (i) repair or re-perform such Content (or the defective part) or (ii) credit or refund the price of such Content at the pro rata contract rate. The parties agree that the foregoing is User's sole remedy and BeKynder's entire liability for breach of the warranty provided herein. BeKynder has no liability arising from User's failure to meet its obligations and responsibilities hereunder.

  • (b)

    EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE CONTENT IS PROVIDED "AS IS" AND BEKYNDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BEKYNDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- 5 INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BEKYNDER MAKES NO WARRANTY OF ANY KIND THAT THE CONTENT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

  • (c)

    BY USING THE CONTENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE CONTENT AND THE SERVICES DO NOT PROVIDE TAX, ACCOUNTING, OR LEGAL ADVICE, AND SHALL NOT BE RELIED UPON FOR SUCH PURPOSES. YOU ARE RESPONSIBLE FOR OBTAINING YOUR OWN TAX, ACCOUNTING, AND LEGAL ADVICE.

• 11.

  Limitations of Liability. IN NO EVENT WILL BEKYNDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BEKYNDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. BEKYNDER CANNOT AND DOES NOT GUARANTEE OR OTHERWISE INSURE AGAINST, AND EXPRESSLY DISCLAIMS LIABILITY FOR ANY ACTS OR OMISSIONS OF THIRD-PARTY VENDORS AND ANY THIRD-PARTY HARDWARE OR SOFTWARE USED IN CONNECTION WITH THE SERVICES AND THE CONTENT, INCLUDING DUE TO A THIRD-PARTY ERROR OR UNAVAILABILITY OF A THIRD-PARTY SOLUTION (INCLUDING ERRORS OR UNAVAILABILITY WITH RESPECT TO ANY IAAS PLATFORM OR HOSTING SERVICE, ANY THIRD-PARTY SOFTWARE, HARDWARE OR APIS, OR ANY INTERNET SERVICE PROVIDER). IN NO EVENT WILL BEKYNDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED US$10.

  CERTAIN JURISDICTIONS AND LAWS MAY NOT PERMIT SOME OR ALL OF THE DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION. IN THE EVENT THAT SUCH A JURISDICTION OR LAW APPLIES TO THE SUBJECT MATTER OF THIS AGREEMENT, THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

• 12.

  Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications or posts on [www.BeKynder.com], or by a direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Content after the effective date of the modifications will be deemed acceptance of the modified terms. BeKynder will provide at least 10 days' advance notice of changes to any service level that BeKynder reasonably anticipates may result in a material reduction in quality or services.

• 13.

  Export Regulation. The Content utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Content or the software or technology included in the Content to, or make the Content or the software or technology included in the Content accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Content or the software or technology included in the Content available outside the US.

• 14.

  Security and Compliance. BeKynder reserves the right to view, monitor, and record your activity on the Content without notice or permission from you. BeKynder's provision of the Content is subject to existing laws and legal process, and nothing contained herein shall restrict or reduce BeKynder's ability to comply with governmental, court, and law enforcement requests or requirements involving Your use of the Content or information provided to or gathered by BeKynder with respect to such use.

• 15.

  Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the [Collier County], and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

• 16.

  Arbitration. In the event the parties hereto are not able to resolve any dispute between them arising out of or concerning this Agreement or any provisions hereof, whether arising in contract, tort, or any other legal theory, then such dispute shall be resolved exclusively through final, binding, and confidential arbitration pursuant to the Federal Arbitration Act, conducted by a single neutral arbitrator and administered under the Commercial Arbitration Rules of the American Arbitration Association. The exclusive site of such arbitration shall be [Naples, Florida]. The arbitrator's award shall be final, and judgment may be entered upon it in any court having jurisdiction. The prevailing party shall be entitled to recover its costs and reasonable attorneys' fees. The entire dispute, including the scope and enforceability of this arbitration provision, shall be determined by the arbitrator. This arbitration provision shall survive the termination of this Agreement for any reason.

  Notwithstanding the foregoing, BeKynder may: (i) bring a claim for injunctive relief or other equitable relief against your violation of this Agreement in any court of competent jurisdiction; or (ii) bring a suit or other legal proceeding to enforce this Agreement in a small claims court of the State of Florida having jurisdiction over the applicable claim(s); in either case without being required to observe the arbitration procedures of this Section.

• 17.

  Force Majeure. In no event shall BeKynder be liable to User, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond BeKynder's reasonable control, including but not limited to a lack of employment candidate, government order, law, or actions, telecommunication or internet breakdowns, power outages or shortage, or national or regional emerge.

• 18.

  Class Action Waiver. BY USING THIS SITE AND AGREEING TO THESE TERMS, YOU HEREBY WILLINGLY, EXPRESSLY, AND KNOWINGLY WAIVE ALL RIGHT TO BRING OR PARTICIPATE IN ANY CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR PRIVATE ATTORNEY-GENERAL ACTION BROUGHT UNDER OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE CONTENT. YOU MAY NOT BRING ANY CLAIM, SUIT, OR OTHER PROCEEDING TO ENFORCE THIS AGREEMENT AS THE MEMBER OF ANY CLASS OR AS PART OF ANY SIMILAR COLLECTIVE OR CONSOLIDATED ACTION.

• 19.

  Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address available at [www.BeKynder.com] and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Content. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.