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Welcome to www.kerrybodine.com (the “Website”). The Website is owned and operated by Bodine Enterprises, Inc. (“Bodine Enterprises”, “us”, “we” or “our”).
All content contained on the Website (collectively, “Content”), such as text, graphics, logos, icons, images, audio and video clips, digital downloads, and data compilations are our property or the property of our licensors or licensees, and the compilation of the Content on the Website is our exclusive property. Any trademarks, service marks, graphics, logos, page headers, icons, scripts and trade names (each, a “Mark”) contained on the Website are proprietary to us or our licensors or licensees. Unless otherwise stated, Bodine Enterprises and/or its licensors own the intellectual property rights in the Website, the Content and the Marks. Subject to the license below, all of the aforementioned intellectual property rights are reserved.
You must not: (a) use this Website in any way that causes, or may cause, damage to the Website or impairment of the availability or accessibility of the Website; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; (b) you must not use this Website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software; (c) you must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to this Website without our express written consent; (d) you must not use this Website to transmit or send unsolicited commercial communications; and (e) you must not use this Website for any purposes related to marketing without our express written consent.
In these Terms and Conditions, “your user content” means material (including without limitation text, images, audio material, video material and audio-visual material) that you submit to this Website, for whatever purpose. You grant to Bodine Enterprises a worldwide, irrevocable, non-exclusive, royalty-free license to use, reproduce, adapt, publish, translate and distribute your user content in any existing or future media. You also grant to Bodine Enterprises the right to sub-license these rights, and the right to bring an action for infringement of these rights. Your user content must not be illegal or unlawful, must not infringe any third party’s legal rights, and must not be capable of giving rise to legal action whether against you or Bodine Enterprises or a third party (in each case under any applicable law). You must not submit any user content to the Website that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint. We reserve the right to edit or remove any material submitted to this Website, or stored on our servers, or hosted or published upon this Website.
This Website is provided “as is” without any representations or warranties, express or implied. We make no representations or warranties in relation to this Website or the information and materials provided on this Website. Without prejudice to the generality of the foregoing paragraph, we do not warrant that: (a) this Website will be constantly available, or available at all; or (b) the information on this Website is complete, true, accurate or non-misleading. Nothing on this Website constitutes, or is meant to constitute, advice of any kind.
You hereby indemnify, and undertake to keep us indemnified, Bodine Enterprises, and our licensors, licensees, successors, distributors, agents, representatives and other authorized users, and each of their respective officers, directors, owners, managers, members, employees, agents, representatives and assigns (collectively, the “Indemnified Parties“), against any losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by any Indemnified Party to a third party in settlement of a claim or dispute on the advice of our legal advisers) incurred or suffered by any of the Indemnified Parties arising out of any breach by you of any provision of these Terms and Conditions, or arising out of any claim that you have breached any provision of these Terms and Conditions.
Without prejudice to our other rights under these Terms and Conditions, if you breach these Terms and Conditions in any way, Bodine Enterprises may take such action as we deem appropriate to deal with the breach, including suspending your access to the Website, prohibiting you from accessing the Website, blocking computers using your IP address from accessing the Website, contacting your internet service provider to request that they block your access to the Website and/or bringing court proceedings against you.
Bodine Enterprises, Inc
201 Spear Street, Suite 1100
San Francisco, CA 94105
(a) Fees. You shall pay Bodine Enterprises the licensing fee as advertised on the Website upon the date of purchase (“Subscription Fee”) for each license purchased during each Subscription Period, as defined in Section 3 of these Terms and Conditions. Bodine Enterprises reserves the right to change the Subscription Fee from time to time at its sole discretion. Bodine Enterprises shall notify all subscribers in writing regarding an increase in the Subscription Fee before renewal as provided for in Section 3 of these Terms and Conditions.
(b) Licenses. A separate license shall be purchased for each individual user of the Software Service at Your company or organization. Licenses are nontransferable and the sharing of licenses is strictly prohibited as pursuant to Section 7 of these Terms and Conditions. All payments submitted on the Website are processed by third party vendor Woo Commerce. For alternative payment options, please contact our team at email@example.com, and someone will be in contact with you to assist you in completing your purchase offline.
The Subscription Period will begin as of the date the Subscription Fee is paid to Bodine Enterprises by You (“Purchase”), and shall extend for a period of one (1) year until the first anniversary date of the Purchase (“Subscription Period”). The Subscription Period shall automatically renew annually upon the date marking the expiration of the one (1) year Subscription Period (“Renewal Date”). You shall receive written notice via email alerting Subscriber to the upcoming automatic renewal transaction prior to the end of the Subscription Period. Such written notice shall include the Subscription Fee for the current renewal period (“Renewal Fee”). Subscriber may opt-out of the automatic renewal by contacting Bodine Enterprises at firstname.lastname@example.org no later than thirty (30) days prior to the Subscriber’s Renewal Date. Clicking on the “Subscription Information” checkbox prior to providing payment authorizes Bodine Enterprises to automatically charge the Renewal Fee to the credit card Bodine Enterprises has on file for the Subscriber.
Upon completion of Your Purchase, You shall receive from Bodine Enterprises an email with an activation link for the Your Software Service license (“Activation Email”). If You have purchased multiple licenses, You may input account information for each license holder using the Activation Email or send a CSV file containing the account information for each license holder to Bodine Enterprises per the instructions in the Activation Email. If the You elect to send a CSV file with license holders’ contact information to Bodine Enterprises, an Activation Email will be sent to each license holder.
A subscription for the Software Services may be terminated by submitting a written request to Bodine Enterprises at email@example.com thirty (30) days prior to the date You wish to terminate Your license(s). Subscribers terminating the Service shall not receive any type of refund or reimbursement of the Subscription Fee. An automatically renewing Subscriber who wishes to terminate his, her, or its automatic renewal shall submit a written request of termination to Bodine Enterprises at firstname.lastname@example.org at least thirty (30) days prior to the Subscriber’s Renewal Date. Service licenses shall be terminated within thirty (30) days of receipt of a request for termination.
(a) Sharing Licenses. A separate license must be purchased for each individual who will be using the Software Services. Sharing licenses or account information is strictly prohibited. Account information and licenses shall not be shared among individuals, organizations, or individual members of the same organization.
(b) Vendors and Consulting Agencies. The Software Services are intended for internal use by professionals and companies interested in improving their customer experience. The Software Services are not meant for use by vendors or agencies to consult with third-party clients. Use of the Software Services by vendors and agencies to provide customer experience consulting services to third-party clients is strictly prohibited.
(c) Unauthorized Sharing of Resources. Use of the Software Services is only authorized by individuals who hold a valid license. Sharing of any of the Software Services through sharing of account information, download and transfer of digital files, or taking photos or screen grabs of information is strictly prohibited.
Engaging in any of the Prohibited Uses outlined in this Section 7 may lead to a suspension or termination of Your license(s) or legal action taken by Bodine Enterprises against You. In addition to any judgment for damages entered against You, You shall pay Bodine Enterprises’ legal fees accrued as a result of the action taken against You.
(a) As -Is Condition. YOU ACCEPT THE SERVICE “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND SUBSCRIBER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
(b) Ownership Rights. Bodine Enterprises represents and warrants that it is the owner of the Software Services and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the intellectual property rights to the Software Services set forth in this Agreement without the further consent of any third party.
(a) Protection of Intellectual Property. The Software Services in their entirety, the domain name, the contents, and any information or material on it are protected under the relevant copyright, trademark, patent, and other intellectual property laws, unless otherwise specified herein. The content of the Software Services includes, but is not limited to, logos, trade names, word marks, design marks, trademarks, designs, text, images, graphics, pictures, information, data, charts, graphs, videos, software, applications, sound files, other files, and the arrangement thereof (“Intellectual Property”) all of which is the property of Bodine Enterprises, or our licensors or suppliers.
(b) Prior Written Consent. You may not use any name (including a product or service name) logo, slogan, image, trademark, or any other Intellectual Property on the Subscription Services for a purpose other than an Internal Business Purpose without express written consent of Bodine Enterprises.
(c) Prohibited. You shall not appropriate, copy, publicly display, reproduce, modify, republish, upload, post, transmit, scrape, collect, distribute, reverse engineer, or use the Intellectual Property from the Subscription Services on any other site or network computer environment for any other purpose other than an Internal Business Purpose. Any such unauthorized use may violate copyright, patent, trademark, and any other applicable laws and could result in criminal or civil penalties. In addition, the look and feel of our Subscription Services, including all page headers, custom graphics, button icons, and scripts, is the service mark, trademark and/or trade dress of Bodine Enterprises and may not be copied, imitated or used, in whole or in part, without prior written consent.
(d) Ownership. License to use the Subscription Services under no circumstances shall be construed as the acquisition by a Subscriber of ownership, title, right, or interest of any kind in or to the Subscription Services, its Contents, and any information on it.
(e) Authorized Use. You are authorized use of the Intellectual Property on the Subscription Services as long as You hold a valid license during the Subscription Period. Upon the expiration of a Subscription Period, or the termination of a license to the Software Services, You are no longer authorized to use the Intellectual Property found on the Subscription Service. Use of any Intellectual Property found on the Subscription Service after the expiration or termination of a Subscription Period shall be considered a violation of these Terms and Conditions.
(a) Indemnification by Subscriber. You shall defend and indemnify Bodine Enterprises and its directors, officers, employees, contractors, agents, assigns, and successors against any third party claim, suit, or proceeding arising out of or related to Your alleged or actual use of, misuse of, or failure to use the Subscription Services, including without limitation claims by Your users, subscribers, and employees, as well as by Your own customers. Indemnified Claims include, without limitation, claims arising out of or related to Bodine Enterprises’ negligence. Indemnitor’s obligations in the preceding sentence include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments.
(b) Mutual Indemnification. Each party (“Indemnitor”) shall defend and indemnify the other party (“Indemnified Party”) and its directors, officers, employees, contractors, agents, assigns, and successors against any third party claim, suit, or proceeding arising out of, related to, or alleging any of the following (any “Indemnified Claim”): (i) unauthorized disclosure or exposure of personally identifiable information resulting from Indemnitor’s acts or omissions or from those of its contractors; (ii) injury to or death of any individual, or any loss of or damage to real or tangible personal property, resulting from Indemnitor’s acts or omissions or from those of its contractors; or (iii) intellectual property infringement by software or content Indemnitor contributed to the Software Service. Indemnitor’s obligations in the preceding sentence include retention and payment of attorneys and payment of court costs, as well as settlement at Indemnitor’s expense and payment of judgments.
(c) Litigation. Indemnitor’s obligations set forth in Subsections (a) and (b) above will be excused to the extent that Indemnified Party’s or any director, officer, employee, contractor, agent, assign, or successor of the Indemnified Party’s failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or an Indemnified Associate admit wrongdoing or liability or subjects one of them to any ongoing affirmative obligations.
(a) Limitations of Bodine Enterprises Liability. BODINE ENTERPRISES’ LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE ANNUAL SUBSCRIPTION FEE. IN NO EVENT WILL BODINE ENTERPRISES BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. THE LIABILITIES LIMITED BY THIS SECTION 11 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, INTELLECTUAL PROPERTY INFRINGEMENT, OR OTHERWISE; (iii) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 11, Bodine Enterprises’ liability will be limited to the maximum extent permissible.
(b) Exceptions. The limitations of liability in Section 11(a) do not apply to: (i) Your obligation to pay fees pursuant to Section 2 (Fees and Licenses); (ii) any claims against Subscriber for infringement of Bodine Enterprises’ intellectual property, including without limitation copyrights in the Software Service; or (iii) claims pursuant to Section 10 (Indemnifications).
(a) Severability. To the extent permitted by applicable law, You and Bodine Enterprises hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
(c) Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither You nor Bodine Enterprises has relied upon any such prior or contemporaneous communications.
(d) Amendment. Vendor may amend this Agreement from time to time by posting an amended version at the Website and sending You written notice thereof. Such amendment will become effective 30 days after such notice (unless You first terminate the license(s) pursuant to Section 6, Termination). Your continued use of the Service after such 30-day notice period will confirm Your consent to such amendment. This Agreement may not be amended in any other way except through a written agreement by Authorized Representatives of each party.
(e) Waiver. Neither You nor Bodine Enterprises will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
(f) Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
(g) Governing Law. This Agreement will be governed solely by the internal laws of the State of California, without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction to either Your or Bodine Enterprises’ rights or duties. You and Bodine Enterprises consent to the personal and exclusive jurisdiction of the federal and state courts of San Francisco, California.