THIS AGREEMENT GOVERNS ANY FREE TRIAL PERIOD OF BC IN THE CLOUD SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
BC in the Cloud provides unique, customized services that are supported by protected Intellectual Property. Accordingly, any individual(s) or entity(ies) that compete with BC in the Cloud are strictly forbidden from accessing BC in the Cloud systems. You may not (i) permit any party or parties to access, or (ii) grant user rights to any party or parties that are in any way related to an organization, business, or individual that is a competitor of ours. You may not access the Services for purposes of monitoring availability, performance or functionality. You may not access our services for benchmarking or any other competitive purpose. Failure to comply with the above is a material breach of this Agreement.
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Agreement” means this Standard User Agreement.
1.3 “Beta Services” means Our services that are not generally available to customers.
1.4 “Content” means information obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.
1.5 “Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via bcinthecloud.com or login to the applicable Service.
1.6 “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, but not limited to, viruses, worms, time bombs and Trojan horses.
1.7 “Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including, but not limited to the Application Directory available at app.bcinthecloud.com.
1.8 “Non BC in the Cloud Applications” means a Web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as a BC in the Cloud Application or by a similar designation.
1.9 “Electronic Notice” means notice via electronic mail to previously designated system Administrators and banner notices on Your services dashboard for noticed relating to items including, but not limited to, system upgrades or maintenance.
1.10 “Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.11 “Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
1.12 “Services” means the products and services that are ordered by You . Services includes those offered (i) under a free trial or (ii) an Order Form and made available online by Us, including associated offline components, as described in the Documentation. “Services” exclude Content and Non BC in the Cloud Applications.
1.13 “User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users include, but are not necessarily limited to, Your employees, consultants, contractors and agents, and third parties with which You transact business.
1.14 “We,” “Us” or “Our” means the BC in the Cloud company described in Section 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
1.15 “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
1.16 “Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Non BC in the Cloud Applications.
II. FREE TRIAL
If You register for a Free Trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (i) the end of the Free Trial period for which you registered to use the applicable Service(s), or (ii) the start date of any Purchased Service subscriptions ordered by You for such Service(s). The terms of this Agreement apply to all Free Trial periods. Also, additional terms and conditions may apply to Your Free Trial. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
Any data you enter into the Services, and any customizations made to the services by or for you, during the free trial will be permanently lost unless, before the expiration of the Free Trial you (I) purchase a subscription to the same services as those covered by the free trial, (ii) purchase services that are an upgrade from those offered during the free trial, or (iii) export such data without the assistance of BC in the Cloud.
Notwithstanding Section 9 (Representation, Warranties, Exclusive Remedies and Disclaimer), During the Free Trial the Services are provided “As-Is” with no warranty whatsoever.
Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
III. OUR RESPONSIBILITIES
3.1 Provision of Purchased Services.
We will (i) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (ii) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (iii) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (for which We shall give at least forty-eight (48) hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Eastern Time), and (ii) any unavailability caused by a Force Majeure or other circumstances beyond Our reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non BC in the Cloud Application, or Denial of Service attack.
3.2 Service Performance Guarantees.
Subject to the exceptions contemplated by section 3.1, We guarantee 99.9% uptime of all services provide by Us.
3.3 Protection of Your Data.
We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation and in accordance with industry standard security protocol. This includes, but is not limited to, 256-bit SSL encryption. These safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
3.4 Our Personnel.
We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.5 Beta Services.
From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use. Beta Services, are not supported, and may be subject to additional terms. Although Beta Services are not considered “Services” under this Agreement, they are subject to the Non-Disclosure provisions of Section VIII, and the restriction on use by competitors as detailed above. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We have the right to discontinue Beta Services at any time in Our sole discretion and the right to not make them generally available at any time. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
IV. USE OF SERVICES AND CONTENT
Unless otherwise provided in the applicable Order Form, (i) Services and Content are purchased as subscriptions, (ii) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (iii) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Limits.
Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (i) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (ii) a User’s password may not be shared with any other individual, and (iii) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment).
4.3 Your Responsibilities.
You will (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (iv) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (v) comply with terms of service of Non BC in the Cloud Applications with which You use Services or Content.
4.4 Usage Restrictions.
You will not (i) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, (ii) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (iii) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use a Service to store or transmit Malicious Code, (v) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (vi) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (vii) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (viii) copy a Service or any part, feature, function or user interface thereof, (ix) copy Content except as permitted herein or in an Order Form or the Documentation, (x) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (xi) access any Service or Content in order to build a competitive product or service, (xii) reverse engineer any Service (to the extent such restriction is permitted by law), (xiii) use a Service to store Social Security numbers, driver’s license numbers, credit card information, or financial account access information (such as PINs), or (xiv) permit any individual or individuals, or any entity or entities that compete with BC in the Cloud to access any part of the Services provided whatsoever.
4.5 External-Facing Services.
You retain all responsibility for the actions of third party unauthenticated users of the Service. We are not responsible in any way, without exception, for the actions of such third party unauthenticated users.
4.6 Third Party Access.
You may not allow third parties to access Our Services without our prior written authorization. We will provide you with a “Third Party Access Authorization Request” form for your use in seeking our authorization for such access. We will provide a written response to a request within thirty (30) days of receipt. However, We (i) retain exclusive discretion to approve or deny any such request and (ii) We are under no obligation to provide an explanation of our decision.
4.7 Removal of Content and Non BC in the Cloud Applications.
If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non BC in the Cloud Application hosted on a Service by You may violate Our External-Facing Services or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non BC in the Cloud Application or modify the Non BC in the Cloud Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non BC in the Cloud Application until the potential violation is resolved.
4.8 Ownership of Data.
All data is owned by You and is to be held as strictly confidential. We will delete and destroy all copies of data once the Agreement is terminated with or without default (subject to the provisions of section 6 below.
V. FEES AND PAYMENT FOR PURCHASED SERVICES
You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2 Invoicing and Payment.
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 6.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.3 Overdue Charges.
If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (i) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (ii) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4 Suspension of Service and Acceleration.
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending services to You.
5.5 Payment Disputes.
We will not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.7 Future Functionality.
You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
VI. TERM AND TERMINATION
6.1 Term of Agreement.
This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
6.2 Term of Purchased Subscriptions.
The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed 7% of the pricing for the applicable Purchased Service or Content in the immediately prior subscription term, unless the pricing in the prior term was designated in the relevant Order Form as promotional or one-time.
A party may terminate this Agreement for cause (i) upon 60 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.4 Refund or Payment upon Termination.
If this Agreement is terminated by You in accordance with Section 6.3(Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 6.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
6.5 Your Data Portability and Deletion.
Upon (i) Termination or Expiration and (ii) written request by You within 30 days of the effective date of Termination or Expiration, We will make your data available to you for export or download at Your expense. After the 30-day period We will purge all data belonging to You, unless legally prohibited, and we will not retain any backups whatsoever, unless legally required.
6.6 Surviving Provisions.
The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Portability and Deletion of Your Data,” “Who You Are Contracting With, Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration if this Agreement.
VII. PROPRIETARY RIGHTS AND LICENSES
7.1 Reservation of Rights.
Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2 License by Us to Use Content.
We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
7.3 License by You to Host Your Data and Applications.
You grant Us and Our Affiliates a worldwide, limited- term license to host, copy, transmit and display Your Data, and any Non BC in the Cloud Applications and program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non BC in the Cloud Application or program code.
7.4 License by You to Use Feedback.
You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
7.5 Federal Government End Use Provisions.
We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
8.1 Definition of Confidential Information.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2 Protection of Confidential Information.
During the term of this Agreement and for a period three (3) years thereafter, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Further You will (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
IX. REPRESENTATIONS, WARRANTIES,
EXCLUSIVE REMEDIES AND DISCLAIMERS
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2 Our Warranties.
We warrant that (i) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (ii) We will not materially decrease the overall security of the Purchased Services during a subscription term, (iii) the Purchased Services will perform materially in accordance with the applicable Documentation. We will not materially decrease the functionality of the Purchased Services during a subscription term, and (v) the Purchased Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 16.3 (Termination) and 6.4 (Refund or Payment upon Termination).
Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each Party specifically disclaims all implied warranted including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. Content and beta services are provided “as is”, exclusive of any warranty whatsoever. Each Party disclaims all liability and indemnification obligations for any harm or damages caused by any third party hosting providers.
X. MUTUAL INDEMNIFICATION
10.1 Indemnification by Us.
We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement (i) infringes or misappropriates such third party’s intellectual property rights or (ii) introduces a Malicious Code into the system of a third party (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (i) promptly give Us written notice of the Claim Against You, (ii) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (iii) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 9.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non BC in the Cloud Application or Your breach of this Agreement.
10.2 Indemnification by You.
You will defend, indemnify, and hold harmless BC in the Cloud, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (i) your use of the Our Services, or any portion thereof (including any activities under your account and use by your employees and personnel); (ii) breach of this Agreement or violation of applicable law by you; or (iii) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content. If We or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse Us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at BC in the Cloud’s then-current hourly rates.
10.3 Exclusive Remedy.
This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
XI. LIMITATION OF LIABILITY
11.1 Limitation of Liability.
NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2 Exclusion of Consequential and Related Damages.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
XII. WHO YOU ARE CONTRACTING WITH,
NOTICES, GOVERNING LAW AND JURISDICTION
12.1 Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon:
- Personal delivery on the second business day after mailing;
- Confirmed Facsimile on the second business day after sending; or
- Electronic Mail on the first business day after sending (provided email shall not be sufficient for notices of termination or an indemnifiable claim).
Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
12.2 Delivery of Notice.
The Parties shall deliver notice, permissions, approval, and other written materials to each other at the following:
BC in the Cloud LLC
3238 W. Germantown Pike
Eagleville, PA 19403 (Physical Address)
(267) 343-9171 (Facsimile)
firstname.lastname@example.org (Electronic Mail)
12.3 Agreement to Governing Law and Jurisdiction.
The Parties agree that this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the Courts of the Commonwealth of Pennsylvania.
XIII. GENERAL PROVISIONS
13.1 Export Compliance.
The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at Queue in the Cloud LLC, Attn: Legal Department, 630 Freedom Business Center Drive, Third Floor, King of Prussia, PA 19406.
13.3 Entire Agreement and Order of Precedence.
This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (i) the applicable Order Form, (ii) this Agreement, and (iii) the Documentation.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.5 Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.6 Third-Party Beneficiaries.
Our Content licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and each of which together shall constitute one single instrument.
13.10 Choice of Law.
This Agreement shall be governed and construed under the laws of the Commonwealth of Pennsylvania.
The captions and section titles are for convenience and reference only, and are have no material effect on the terms of this Agreement.
Claims Regarding Copyright, Content, and Intellectual Property Violations
If you believe in good faith that your copyright has been infringed or that content posted on our website infringes your intellectual property rights, you may provide a written communication which contains:
- A description specifying the location on our website of the material that you claim is infringing;
- Your telephone number and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf;
- If applicable, an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- If applicable, a description of the copyrighted work that you claim has been infringed.
Please submit your notice to utilizing one of the methods of contact under the “Contact Us” section below. Any assertions made by you in submitting a complaint are under penalty of perjury.
Changes to Terms
BC in the Cloud reserves the right, in its sole discretion, to change the Terms under which BCintheCloud.com is offered. The most current version of the Terms will supersede all previous versions. BC in the Cloud encourages you to periodically review the Terms to stay informed of our updates.
BC in the Cloud welcomes your questions or comments regarding the Terms:
BC in the Cloud
3238 W. Germantown Pike
Eagleville, PA, 19403, USA
Email Address: info@BCintheCloud.com
Telephone number: (267) 341-9610
Last revised December 1, 2015.