These General Terms and Conditions (the“GTC”or“Terms”) shall govern the provision Bamboo Rose LLC (formerly known as Backbone PLM, Inc.) (“Backbone”) to the Customer identified on the Order Form (“Customer”).
The Order Form, these Terms and the Service Level Agreement (“SLA”) (collectively, this“Agreement”), comprise the entire agreement between the parties and supersede all prior and contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. To the extent that there is any conflict between these Terms and the Order Form, the terms of the Order Form will govern.
1.Definitions. For purposes of these Terms, the following definitions apply:
1.1.“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
1.2.“Backbone Materials” means the Services, Documentation, and Backbone Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Backbone or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or Backbone Systems. For the avoidance of doubt, Backbone Materials include Resultant Data and any information, data, or other content derived from Backbone’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
1.3.“Backbone Systems” means the information technology infrastructure used by or on behalf of Backbone in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Backbone or through the use of third party services.
1.4.“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or a User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data, or any other information reflecting the access or use of the Services by or on behalf of Customer or any User.
1.5.“Customer Systems” means the information technology infrastructure used by or on behalf of Customer in accessing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third party services.
1.6.“Customer” means an individual or entity identified in the Order Form.
1.7.“Documentation” means the user materials and other documentation made available by Backbone to Customer for the Service and the Backbone System.
1.8.“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.9.“Order Form” means the subscription of services order form entered into by Customer and Backbone.
1.10.“Resultant Data” means data and information related to Customer’s use of the Services that is collected and used by Backbone in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.11.“Services” means the services listed in the Order Form.
1.12.“Term” means the subscription term for the Services as set forth in the Order Form
1.13.“Users” means Customer employees and contractors authorized by Customer to access the Services.
2. Services
2.1. Subject to and conditioned on Customer’s and its Users’ compliance with the terms and conditions of this Agreement, (a) Backbone shall perform the Services and provide Customer with access to the Backbone System as described in the applicable Order and (b) Backbone hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. The total number of Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.
2.2. Under the rights granted to Customer under this Agreement, Customer may permit Users to access and use the Backbone System in accordance with this Agreement; provided that Customer shall be liable for the acts and omissions of all Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement. Customer shall not, and shall not permit any User to use the Backbone System, Backbone Materials, or Documentation except as expressly permitted under this Agreement.
2.3. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems on or through which the Services are accessed or used; (b) provide Backbone with such access to Customer Systems as is necessary for Backbone to perform the Services in accordance with the Availability Requirement in the SLA; and (c) provide all cooperation and assistance as Backbone may reasonably request to enable Backbone to exercise its rights and perform its obligations under and in connection with this Agreement. Backbone is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
2.4. Backbone reserves the right, in its sole discretion, to make any changes to the Services and Backbone Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Backbone’s services to its customers; (ii) the competitive strength of or market for Backbone’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. No requested changes will be effective unless and until memorialized in a written change order signed by both parties. Customer will have access to all updates that Backbone generally makes available to its other customers at its current price during the applicable Term, subject to increase at the start of a Renewal Term.
2.5. Backbone may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, any User’s, or any other person’s access to or use of all or any part of the Services or Backbone Materials, without incurring any resulting obligation or liability, if: (a) Backbone receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Backbone to do so; or (b) Backbone believes, in its sole discretion, that: (i) Customer or any User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This paragraph does not limit any of Backbone’s other rights or remedies, whether at law, in equity, or under this Agreement
3. Pricing, Payment; Taxes
3.1. Price. The fees for Services will be agreed upon and set forth in the applicable Order Form (“Fees”) and Customer agrees to pay Backbone all such agreed upon Fees in accordance with the terms of this Agreement and the applicable Order Form. Prices for any Services requested by Customer that are not set forth in an Order shall be charged as mutually agreed to by the parties in a writing executed by representatives of each party.
3.2. Payment. Unless the applicable Order provides otherwise, Customer shall pay the first payment of Fees upon execution of the Order Form and subsequent Fees within 30 days after receipt of the applicable invoice from Backbone. All payments will be made in United States dollars. Unless otherwise agreed to by Backbone in writing, all fees paid are non-refundable.
3.3. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: Backbone may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; Customer shall reimburse Backbone for all costs incurred by Backbone in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. Furthermore, if Customer fails to make a payment when due Backbone may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer by reason of such suspension.
3.4. No Deductions or Set-Offs. All amounts payable to Backbone under this Agreement shall be paid by Customer to Backbone in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than Service Credits pursuant to the SLA, if any, or any deduction or withholding of tax as may be required by applicable Law).
3.5. Taxes. Fees do not include, and as between Backbone and Customer, Customer is responsible for payment of all taxes, fees, duties, and other governmental charges arising from the payment of any fees or any amounts owed to Backbone under this Agreement (excluding any taxes arising from Backbone’s income or any employment taxes).
4. Third Party Materials
4.1. The Services may include (a) third party plugins, (b) applications that third parties have licensed to Backbone for use by Backbone’s Users, and (c) a platform that third parties may use to develop applications and software that complement Customer’s use of the Services (each, a“Third Party Material”). Backbone also maintains a directory where some Third Party Materials are available for installation. THESE ARE NOT OUR SERVICES, SO WE DO NOT WARRANT OR SUPPORT NON-BACKBONE PRODUCTS, AND, ULTIMATELY, CUSTOMER (AND NOT US) WILL DECIDE WHETHER OR NOT TO ENABLE THEM. ANY USE OF A THIRD PARTY MATERIAL IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD PARTY PROVIDER.
4.2. If a Third Party Materials are enabled for Customer’s workspace, please be mindful of any Customer Data that will be shared with the third party provider and the purposes for which the provider requires access. Backbone will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Third Party Material.
5. Proprietary Rights
5.1. The Services, the Backbone Materials and the Backbone System are owned by Backbone or its licensors. Customer shall not copy, modify, reproduce, republish, post, transmit, sell, offer for sale, or redistribute in any way the Services, the Backbone Materials and the Backbone System without Backbone’s prior written permission and the prior written permission of Backbone’s applicable licensors.
5.2. Customer must abide by all copyright notices, information, or restrictions contained in or attached to any of the Services, the Backbone Materials and the Backbone System and Customer may not remove or alter any such notice, information or restriction. Customer’s use of the Services, the Backbone Materials and the Backbone System must at all times comply with this Agreement. Nothing in these Terms grants Customer any right to receive delivery of a copy of the Backbone Materials or to obtain access to the Backbone Materials or the Backbone System except as generally and ordinarily permitted through the Services according to this Agreement.
5.3. As between Backbone and Customer, Customer will own all Customer Data. Subject to the terms and conditions of the Order Form and these Terms, Customer (for itself and all of its Users) grants Backbone a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Users and any third parties as may be necessary to grant this license.
5.4. The Services also provide Customer with features like photo thumbnails, document previews, email organization, easy sorting, editing, sharing and searching. These and other features may require Backbone’s systems to access, store and scan Customer Data. Customer give Backbone permission to do those things, and this permission extends to trusted third parties Backbone work with who may act on Backbone’s behalf.
5.5. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. BACKBONE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
6. Prohibited Uses
6.1. Customer shall not, and shall not permit any other person to, access or use the Services or Backbone Materials except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the Services or Backbone Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Backbone Materials to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Backbone Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Backbone Materials or access or use the Services or Backbone Materials other than by a User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit, or otherwise provide to or through the Services or Backbone Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Backbone Systems, or Backbone’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other Intellectual Property Rights notices from any Services or Backbone Materials, including any copy thereof;
(h) access or use the Services or Backbone Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Backbone customer), or that violates any applicable law;
(i) access or use the Services or Backbone Materials for purposes of competitive analysis of the Services or Backbone Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Backbone’s detriment or commercial disadvantage; or
(j) otherwise access or use the Services or Backbone Materials beyond the scope of the authorization granted under this Agreement
6.2. Customer becomes aware of any actual or threatened activity prohibited by this Agreement, Customer shall, and shall cause its Users to, immediately: (a) take those measures reasonably necessary and lawful within their respective control to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Backbone Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Backbone of any such actual or threatened activity.
7. Security
7.1. Backbone will employ security measures in accordance with applicable industry practice. Our Service providers also employ security measures that Backbone’s Service is subject to and Backbone will use reasonable efforts to select service providers that employ security measures that meet or exceed industry practices.
7.2. Customer may not remove or export from the United States or allow the export or re-export of the services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
7.3. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s and its Users’ Access Credentials; and (e) all access to and use of the Services and Backbone Materials directly or indirectly by or through the Customer Systems or its or its Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
7.4. Users shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
8. Confidentiality
8.1. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing: all Backbone Materials are the Confidential Information of Backbone and the financial terms of this Agreement are the Confidential Information of Backbone. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its employees’ and contractors’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.2. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall not (a) access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; except as may be permitted by and subject to its compliance with this Agreement, (b) disclose or permit access to Confidential Information to any third party other than to its employees and contractors who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this paragraph; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Agreement; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and ensure its employee’ and contractors’ compliance with, and be responsible and liable for any of its employees’ and contractors’ non-compliance with, the terms of this Agreement. Receiving Party’s obligations under this Section 7 shall survive termination or expiration of this Agreement for 3 years, provided that with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its employees and contractors.
8.3. Compelled Disclosures. If the Receiving Party or any of its employees and contractors is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Agreement; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
9. Representations and Warranties
9.1. Performance Warranty. During the Term, Backbone warrants that the Backbone System will perform in accordance with the Order Form and the Documentation. Backbone does not warrant that the Backbone System will be completely error-free or uninterrupted. However, in the event of Backbone System unavailability, Customer may be entitled to Service Credits, as described more fully in the SLA. In addition to any Service Credits available to Customer, Backbone will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct or provide a workaround for any reproducible error in the Backbone System reported to Backbone by Customer in writing within 30 days after the provision of the applicable Services (“Error”). The warranties set forth in this Section 8.1 do not cover or apply to (a) any Error caused by Customer or other parties within Customer’s control, or (b) any Error or unavailability of the Backbone System caused by use of the Backbone System in any manner or in any environment inconsistent with its intended purpose.
9.2. Customer Warranties. Customer represents, warrants, and covenants to Backbone that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Backbone and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.
9.3. Mutual Warranties. Each party represents and warrants that: (a) it has the full right, power and authority to enter into, execute, and perform its obligations under this Agreement; (b) it will not transmit to the other party any Malicious Code. “Malicious Code” means software viruses, worms, Trojan horses, time bombs, cancelbots or other harmful computer code, files, scripts, agents, programs or programming routines, and that (c) its shall comply with those laws and regulations applicable to such party.
9.4. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL SERVICES AND BACKBONE MATERIALS ARE PROVIDED “AS IS.” BACKBONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, BACKBONE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR BACKBONE MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
10. Indemnification
10.1. Backbone will defend, at its own expense, any claim, suit or action against Customer brought by a third party to the extent that such claim, suit or action is based upon (a) an allegation that the Backbone Materials and the Backbone System (excluding Customer Data and any Third Party Materials) infringes any intellectual property rights of such third party (each, “Customer Claim”), and Backbone shall indemnify and hold Customer harmless from and against those losses, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) that are attributable to such Customer Claim or those costs and damages agreed to in a monetary settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Backbone in writing of such Customer Claim; (b) giving Backbone sole control of the defense thereof and any related settlement negotiations; and (c) reasonably cooperating and, at Backbone’s request and expense, assisting in such defense. In the event that the use of the Backbone System is enjoined, Backbone shall, at its option and at its own expense either (a) procure for Customer the right to continue using the Backbone System, (b) replace the applicable Backbone Materials with a non-infringing but functionally equivalent Services, (c) modify the Backbone Materials so they become non-infringing or (d) terminate this Agreement and refund the amounts pre-paid by Customer for the Services that were to be provided for the remainder of the Term. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(a) Third Party Materials or Customer Data;
(b) access to or use of the Backbone Materials in combination with any hardware, system, software, network, or other materials or service not provided by Backbone or specified for Customer’s use in the Documentation;
(c) modification of the Backbone Materials other than: (i) by or on behalf of Backbone; or (ii) with Backbone’s written approval in accordance with Backbone’s written specification;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Backbone; or
(e) act, omission, or other matter described in any of the foregoing, whether or not the same results in any Action against or Losses by any Backbone Indemnitee.
10.2. Customer will defend, at its own expense, any claim, suit or action against Backbone brought by a third party to the extent that such claim, suit or action is based upon Customer Data, including any processing of Customer Data by or on behalf of Backbone in accordance with this Agreement and any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any User, including Backbone’s compliance with any specifications or directions provided by or on behalf of Customer or any User to the extent prepared without any contribution by Backbone (each, a “Backbone Claim”) and Customer shall indemnify and hold Backbone harmless from and against those losses, liabilities, costs and expenses (including reasonable attorneys’ fees and costs) attributable to such Backbone Claim or those costs and damages agreed to in a monetary settlement of such Backbone Claim. The foregoing obligations are conditioned on Backbone: (a) promptly notifying Customer in writing of such Backbone Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense.
10.3. THIS PROVISION SETS FORTH CUSTOMER’S SOLE REMEDIES AND BACKBONE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND BACKBONE MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. Limitations of Liability.
11.1. IN NO EVENT WILL BACKBONE OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO THE SLA; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF BACKBONE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE GREATER OF (1) THE TOTAL AMOUNTS PAID TO BACKBONE UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (2) $10,000. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Termination.
12.1. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Backbone may terminate this Agreement, effective on written notice to Customer, if:
(i) Customer fails to pay any amount when due hereunder, and such failure continues more than 15 days after Backbone’s delivery of written notice thereof; provided that Customer shall not be relieved of its payment obligation as a result of such termination; or
(ii) Customer (1) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (2) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (3) makes or seeks to make a general assignment for the benefit of its creditors; or (4) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) Other than set forth above, this Agreement may not be terminated during a Term and all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Backbone’s invoice therefor.
12.2. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Backbone shall promptly cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Backbone directly or indirectly controls, provided that, for clarity, Backbone’s obligations under this paragraph do not apply to any Resultant Data;
(c) Customer shall promptly cease all use of any Services or Backbone Materials and (i) promptly return to Backbone, or at Backbone’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Backbone Materials or Backbone’s Confidential Information; and (ii) permanently erase all Backbone Materials and Backbone’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Backbone in a signed written instrument that it has complied with the requirements of this paragraph;
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control Backbone may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course and such information and materials will remain subject to all confidentiality, security, and other applicable requirements of this Agreement. Upon any termination, and conditioned upon full payment by Customer, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data; and
(e) Backbone may disable all Customer and User access to the Backbone Materials.
12.3. Surviving Terms. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
13. Miscellaneous.
13.1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
13.2. Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party at the address listed on the Order Form (or to such other address or such other individual that such party may designate from time to time). Notices sent in accordance with this paragraph will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
13.3. Assignment. Neither party may assign or transfer this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that a party may assign this Agreement by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and shall not confer any rights or remedies upon any person or entity not a party hereto.
13.4. Force Majeure. In no event will Backbone be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Backbone’s reasonable control, including, but not limited to, acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation (a “Force Majeure Event”). Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more. In the event of any failure or delay caused by a Force Majeure Event, Backbone shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
13.5. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.6. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.7. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.8. Equitable Relief. A breach or threatened breach by of any of obligations of confidentiality and with respect to Intellectual Property Rights would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the non-breaching party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
13.9. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
13.10. Governing law and Jurisdiction. All matters relating to the Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction). Any legal suit, action or proceeding arising out of, or related to, these Terms, the Services shall be instituted exclusively in the federal courts of the United States located in Denver, Colorado or the courts of the State of Colorado located in Boulder, Colorado. Customer waive any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
13.11. Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.