Please read these Terms of Service (these “Terms”) and our Privacy Notice (https://www.backplanes.com/legal/privacy) (“Privacy Notice”) carefully because they govern your, or the company or entity on whose behalf you entered into these Terms, (“Customer” or “you”) use of the products and services made available by Backplanes Inc. (“Backplanes”, “we”, “us” or “our”) through the website located at www.backplanes.com (the “Site”) (other than the Downloaded Software), unless you and Backplanes have entered into a separate written agreement that expressly supersedes these Terms. For convenience, our products and services (other than the Downloaded Software), including the Site, are collectively referred to in these Terms as the “Services”.
Please note that these Terms do not apply to any software that Backplanes makes available for download via the Site for use in connection with the Services (“Downloaded Software”), which Downloaded Software is subject to a separate end user license agreement. Backplanes and Customer may be referred to in these Terms collectively as the “Parties” or individually as a “Party”.
By using the Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to the terms and conditions of these Terms.
In addition to those capitalized words defined elsewhere in these Terms, the following capitalized words have the meaning given in this Section.
(a) “Account” means an online account registered by Customer or Administrator for the purpose of using the Services.
(b) “Administrator” means the Customer or a person that Customer has authorized to grant access to the Services to Authorized Users.
(c) “Authorized Users” means Customer’s employees, that have been authorized by Customer to use the Services.
(d) “Backplanes IP” means the Services, the underlying software provided in conjunction with the Services (other than Downloaded Software), algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services and Documentation and Aggregate Data (as defined below), all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
(e) “Documentation” means the documentation relating to the Services if and as provided by Backplanes to Customer (including any revised versions thereof), which may be updated from time to time upon notice.
(f) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
Please review our Privacy Notice, which also governs Customer’s use of the Services, and also how Backplanes collects, uses and shares Customer’s and Authorized Users’ information.
Subject to the terms and conditions of these Terms, Backplanes hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 17(b)) right to use (and permit Authorized Users to access and use) the Services in accordance with the Documentation and these Terms.
Customer will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly:
Customer, or Backplanes at Customer’s direction will provision an Administrator account. Administrators may authorize additional Authorized Users to access the Services through the same Account. Depending on the types of access rights the Administrator grants to Authorized Users, Authorized Users may be able to subscribe or unsubscribe for Services and delete, copy, or view Customer Materials and data accessible in the Account. Backplanes is not responsible for the internal management or administration of Customer’s use of the Services. If Customer or Administrator chooses to close or terminate Authorized Users’ access to the Service, Authorized Users will no longer be able to access the Services.
Customer may permit Authorized Users to use the Services in accordance with the Documentation and the terms of these Terms, provided that Customer is responsible for all acts or omissions by its Authorized Users in connection with their use of the Services and their compliance with the terms and conditions of these Terms, including, without limitation, with Customer’s obligations and the restrictions set forth in Section 4(b). Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify Backplanes if Customer knows or reasonably suspects that any user name and/or password has been compromised.
Certain features and functionalities within the Services may allow Customer and its Authorized Users to integrate with and depend upon, or otherwise interface or interact with, compatible third-party services, products, technology and content (collectively, “Third-Party Services”). Backplanes does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Services.
Backplanes may require payment of fees for use of the Services (or certain portions thereof) as set forth on the Site or otherwise agreed by the Parties in writing. If applicable, you agree to pay such fees.
We may update the Terms from time to time in our sole discretion. If we do, we’ll let users know by posting the updated Terms on the Site, notifying you by email or otherwise communicating via the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Backplanes reserves the right to at any time modify or update the Services (or any part or content thereof) without advance notice, which may include changing or discontinuing all or any part of the Services. Backplanes will not be liable to Customer or to any third-party for any modification, price change or suspension of the Services.
Subject to the limited rights expressly granted hereunder, Backplanes reserves and, as between the Parties will solely own, the Backplanes IP and all rights, title and interest in and to the Backplanes IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
From time to time Customer or its employees, contractors, representatives may provide Backplanes with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Customer hereby grants Backplanes a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Backplanes’ business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services. For clarity, Feedback is not considered Confidential Information of Customer (as defined below).
Certain features and functionalities within the Services can be configured to share session transcripts and session metadata from the Authorized Users’ use of Downloaded Software with Backplanes (collectively, “Transmitted Data”). Sharing Transmitted Data with Backplanes requires creating an account to use the Services and Transmitted Data is shared subject to and in accordance with these Terms.
Customer hereby grants Backplanes and its licensors a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform and modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Services and for the purpose of creating or developing Aggregate Data. As between Customer and Backplanes, Customer owns and retains all right, title and interest in and to all Customer Materials. “Customer Materials” means (i) Transmitted Data, and (ii) all other information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Services or to Backplanes in connection with Customer’s use of the Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Backplanes and made available through or in connection with the Services. “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ use of the Services, including, without limitation, any usage data or trends with respect to the Services.
“Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with these Terms, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Services and the Documentation will be deemed Confidential Information of Backplanes. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under these Terms; provided that Backplanes may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under these Terms and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in these Terms, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of these Terms by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.
Backplanes may suspend or terminate Customer’s or any Authorized User’s access to and use of the Services at Backplanes’ sole discretion, at any time and without notice to Customer or any Authorized User. Either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Customer may terminate these Terms at any time by deleting Customer’s and its Authorized Users’ accounts and ceasing to use the Services.
Upon expiration or termination of these Terms: (i) the rights granted pursuant to Section 4 will terminate, and (ii) Customer will return or destroy, at Backplanes’ sole option, all Backplanes Confidential Information in its possession or control, including permanent removal of such Backplanes Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control.
Upon any termination, the following Sections will survive: 2, 4(b), 4(e), 5, 7, 8, 9, 10, 11(b), this 11(c), 12, 13, 14, 16 and 17. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into these Terms; and (ii) the execution, delivery and performance of these Terms by it have been duly authorized by all necessary actions and do not violate its organizational documents.
Customer represents and warrants that Backplanes’ use of the Customer Materials in accordance with these Terms will not violate any applicable laws or regulations or infringe or violate any intellectual property or other rights of any third party or cause a breach of any agreement or obligations between Customer and any third-party.
THE SERVICES, BACKPLANES IP AND ALL CONTENT AND MATERIALS PROVIDED BY BACKPLANES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND TO CUSTOMER OR ANY OTHER PARTY. WITHOUT LIMITING THE FOREGOING, BACKPLANES EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Backplanes makes no warranty that the Services will meet Customer’s requirements or be available on an uninterrupted, secure, or error-free basis. Backplanes makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the Site.
Subject to Section 13(b), Backplanes will defend Customer against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that the Services infringe or misappropriate such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Backplanes (including reasonable attorneys’ fees) resulting from such Claim.
Backplanes’ obligations under Section 13(a) will not apply if the underlying Claim arises from or as a result of: (i) Customer’s breach of these Terms, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Services that have been provided by Backplanes; (iv) modifications to the Services by anyone other than Backplanes; or (v) combinations of the Services with software, data or materials not provided by Backplanes.
Customer will defend, indemnify and hold Backplanes and its officers, directors, employees and agents, harmless from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded against Backplanes, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising out of or in any way connected with a Claim against Backplanes that: (i) the Customer Materials or its use by Backplanes in accordance with these Terms infringes, misappropriates or violates a third-party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; (ii) is based on Customer’s or an Authorized User’s use of the Services or Documentation to the extent such use was not in accordance with these Terms; or (iii) is based on a breach of Section 4(b) by Customer.
EXCEPT FOR (I) ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BACKPLANES OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL BACKPLANES’ TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING OUT OF OR IN CONNECTION WITH ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO BACKPLANES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THESE TERMS, LESS ALL AMOUNTS PAID BY BACKPLANES TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THESE TERMS, PROVIDED THAT WHERE THE SERVICES ARE PROVIDED FREE OF CHARGE, BACKPLANES’ TOTAL LIABILITY WILL NOT EXCEED ONE HUNDRED DOLLARS ($100).
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BACKPLANES AND YOU.
Customer hereby grants Backplanes to a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos in Backplanes’ marketing materials, business development activities, press releases or other publicity-related matter for the purpose of marketing, publicizing or promoting the Services and Backplanes’ business.
These Terms and any action related thereto will be governed by the laws of the State of New York, without regard to its conflict of laws provisions. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. The Parties expressly consent to personal and exclusive jurisdiction in the state and federal courts located in New York County, New York, and you and Backplanes each waive any objection to jurisdiction and venue in such courts.
All notices required or permitted under these Terms will be in writing, will reference these Terms, and will be deemed to have been given when mailed by United States Postal Service Priority Mail, with delivery confirmation, or sent by email (to legal@backplanes.com in the case of Backplanes), with receipt confirmed. Backplanes may also post notices to the Site.
These Terms constitute the entire and exclusive understanding and agreement between Backplanes and you regarding the Services. You may not assign or transfer these Terms, by operation of law or otherwise, without Backplanes’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Backplanes may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Backplanes’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Backplanes. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If any provision of these Terms is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of these Terms will remain in full force and effect.
Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 10 or, in the case of Customer, Section 4(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate 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.
The Services were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Services by or on behalf of the U.S. government is subject to restrictions as set forth in these Terms as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue its use of the Services.
Customer will comply with all applicable export, sanctions and foreign corruption laws and regulations of the United States (“Trade Laws”) to ensure that the Services are not: (i) exported or re-exported directly or indirectly in violation of Trade Laws; or (ii) used for any purposes prohibited by the Trade Laws.