Terms and Conditions
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Definitions
Capitalized terms used in these Terms and Conditions but not defined herein shall have the meanings ascribed thereto on the Order Form.
“Authorized Users” means the number of Customer’s employees, agents and contractors designated on the Order Form who are directly involved in performing services for Customer, and who have a need to access the Services for Customer’s internal business purposes.
“Documentation” means the user manuals and/or help guides, if any, describing a Licensed Application in printed or electronic form.
“Licensed Application(s)” means licensed software application(s) identified on the applicable Order Form.
“Order Form(s)” means the document, substantially in the form of the cover page of these Terms or as otherwise executed by Backscatter, by which the Customer purchases Services from Backscatter. Each Order Form shall reference the Effective Date of this Agreement and forms a part of this Agreement. No Order Form shall be binding on Backscatter until accepted in writing by Backscatter.
“Services” means, individually or collectively, as applicable, any and all Licensed Applications and service(s) selected on an Order Form.
Subject to the terms and conditions of this Agreement, Backscatter shall provide Customer with the Services during the Term. Customer must cooperate with Backscatter as necessary for Backscatter to perform the Services, including without limitation, providing all reasonably requested information and materials, and making necessary personnel available to Backscatter. Backscatter shall have no responsibility or liability for its delay or failure in performing any of its obligations under this Agreement to the extent related to Customer’s failure to provide all requested information, assistance, and access to Customer’s personnel. Services other than the Services described on the Order Form, if any, shall be set forth in a separate written agreement between the parties; provided, that Backscatter shall have no obligation to perform any services or provide any materials other than the Services unless and until the parties execute such separate agreement.
3. Right to Use Licensed Applications; Restrictions
3.1 Right to Use
Subject to the terms and conditions of this Agreement, during the Term, Customer shall have a limited, non-exclusive, non-transferable, non-assignable, non-sublicenseable, revocable license to access and use the Licensed Applications pursuant to the Documentation, solely for the Authorized Users’ internal use in the normal course of Customer’s business.
3.2 Use Guidelines
Customer and Customer’s Authorized Users may access and use the Licensed Applications solely for Customer’s internal use in the normal course of Customer’s business, in accordance with the Documentation. As between Customer and Backscatter, Customer is solely responsible for its Authorized Users and for all activities that occur under its account. Customer shall: (i) have sole responsibility for the accuracy and quality of all data inputted into the Licensed Applications; (ii) prevent unauthorized access to, or use of, the Licensed Applications, and notify Backscatter promptly of any such unauthorized access or use; and (iii) comply with all applicable federal, state and local laws, rules and regulations in using the Licensed Applications. Customer shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make any Licensed Application available to any third party; (b) send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (c) interfere with or disrupt the integrity or performance of any Licensed Application; (d) attempt to gain unauthorized access to any Licensed Application or its related systems or networks; or (e) use any Licensed Application for unlawful purposes or for any purpose not expressly permitted by this Agreement. If Backscatter has reasonable grounds to believe that Customer is in violation of this Section 3.2, Backscatter may suspend or terminate Customer’s access to any and all Licensed Applications immediately upon notice to Customer. Customer agrees that it shall provide and maintain, at its sole cost and expense, all hardware, software, Internet access and other materials necessary to permit Customer’s and its Authorized Users’ access to and use of the Licensed Applications, as specified by Backscatter and its licensors from time to time.
3.3 Authorized Users; User IDs
Access to and use of each Licensed Application will be limited solely to Authorized Users. Backscatter will assign each Authorized User a unique account name and password for access to and use of the Licensed Applications (each, collectively, a “User ID”). Customer shall be responsible for ensuring the security and confidentiality of all User IDs. Customer acknowledges that it will be fully and solely responsible for all liability incurred through use of any User ID and that any use of the Licensed Applications under a User ID will be deemed to have been performed by Customer. Customer shall notify Backscatter immediately of any suspected theft, loss or fraudulent use of any User ID or password. Authorized User subscriptions are personal to designated Authorized Users and cannot be shared, transferred, reassigned, or used by more than one Authorized User. Customer shall not permit anyone other than Authorized Users to access the Licensed Applications. Customer shall immediately notify Backscatter immediately in the event any Authorized User is no longer employed by Customer or otherwise no longer requires access to the Licensed Applications.
Customer shall not and shall not permit any third party to: (i) translate, adapt, modify, copy, update, revise, enhance, or otherwise alter or create derivative works based on any Licensed Application; (ii) reverse engineer, disassemble, or decompile (or attempt to reverse engineer, disassemble, or decompile) any Licensed Application, or any portion thereof; (iii) enable any timesharing or service bureau use of any Licensed Application to any third party; or (iv) access any Licensed Application in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics thereof.
3.5 Third-Party Content
4. Fees & Payment
Customer agrees to pay all fees for the Services as set forth in each Order Form. Except as provided herein, the first month’s fees shall be due and payable upon the Effective Date of this Agreement. Thereafter, Customer shall pay any and all fees specified in any Order Form in full within thirty (30) days after the invoice date. Any amount not received by Backscatter when due shall be subject to a late fee of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less. All fees under this Agreement and any Order Form are quoted in, and payable in, United States dollars. At any time after the first anniversary of the Effective Date of this Agreement, Backscatter may, in its sole discretion modify the fees upon sixty (60) days’ prior written notice to Customer. Except as expressly provided in this Agreement, all payments made by Customer to Backscatter hereunder are non-refundable.
Customer shall pay all taxes, duties or charges of any kind (including without limitation, withholding or value added taxes) imposed by any federal, state, or local governmental entity for the Services, excluding only taxes based solely on Backscatter’s net income. If Backscatter has the legal obligation to pay or collect taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer.
4.3 Suspension for Nonpayment
If Customer’s account is sixty (60) days or more overdue, in addition to any of its other rights or remedies, Backscatter reserves the right to suspend any and all Services provided to Customer, without liability to Customer, until such amounts are paid in full.
5. Proprietary Rights
5.1 Reservation of Rights
Except as expressly set forth in this Agreement, Backscatter and its licensors reserve all rights, title and interest in and to all property and materials of Backscatter and its licensors, respectively, including without limitation, all documentation, deliverables, developments, research data, designs, layouts, processes, formulae, mask works, documents, drawings, specifications, proprietary materials, and all derivative works and customizations thereof whether made for or at the direction of Customer, and including all intellectual property and proprietary rights therein. Customer acknowledges that no rights are granted to Customer hereunder other than as expressly set forth in this Agreement. To the extent that any right, title or interest in or to any property or materials of Backscatter or its licensors may not automatically vest in Backscatter or its licensors (as applicable) by operation of law, Customer irrevocably transfers, assigns and conveys all right, title, and interest to Backscatter or its licensors, as applicable. Customer will promptly take any action and execute any documents necessary to vest full title in Backscatter and/or its licensors.
5.2 Suggestions & Feedback
Backscatter shall have, and Customer hereby grants, a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual right and license to use, modify, create derivate works from, and/or incorporate into the Services (and any other applications, products and services of Backscatter) any ideas, suggestions, enhancements, recommendations or other feedback provided by or on behalf of Customer.
5.3 Customer Data
The parties agree that all proprietary information and data of Customer provided to Backscatter under this Agreement is and shall remain proprietary to and owned by Customer. The parties acknowledge and agree that Backscatter shall have the right to compile, extract, combine, modify, and aggregate any such data in order to create de-identified data that cannot be used to identify Customer or any individual (“Aggregate Data”), which may be used by Backscatter for (i) improving its products and services; and/or (ii) creating statistical and/or benchmarking data. For the avoidance of doubt, Aggregate Data will not be used in any way that would identify, or could be attributable specifically to, Customer or any individual. Backscatter shall own all right, title, and interest in and to such Aggregate Data.
6.1 Definition of Confidential Information
As used herein, “Confidential Information” means all confidential and proprietary information of either party (“Disclosing Party”) disclosed 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, including without limitation the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder, and all information of Backscatter’s licensors), the Services, business and marketing plans, software code, technology and technical information, product designs, and business processes. “Confidential Information” shall not include any information that the Receiving Party can demonstrate, via reliable documentation: (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) was independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality Obligations
Receiving Party shall not, and shall not permit any third party to, disclose any Confidential Information of Disclosing Party, or use any Confidential Information of Disclosing Party except as necessary for the performance of its obligations under this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information (but in no event using less than reasonable care).
6.3 Compelled Disclosure
If the Receiving Party is compelled by order of a court of competent jurisdiction to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with notice of such compelled disclosure sufficiently in advance so as to allow the Disclosing Party to object to disclosure and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.4 Remedies; Survival
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts. This Section 6 shall survive the expiration or earlier termination of this Agreement.
7. Proprietary Rights
Each party represents and warrants that (i) it has the legal power to enter into this Agreement; (ii) it is duly organized and in good standing under the laws of the state of its incorporation or formation; and (iii) this Agreement is duly authorized by the executing party. To the extent applicable to Customer, Backscatter shall pass through to Customer any and all warranties Backscatter receives from any third-party licensor.
8. Proprietary Rights
8.1 By Customer
Subject to this Agreement, Customer shall defend, indemnify, and hold Backscatter and its licensors harmless from and against any and all third-party losses, damages and costs (including reasonable attorneys’ fees) incurred in connection with any claim, action, suit, or proceeding made or brought against Backscatter and/or its licensors arising out of or related to (i) Customer’s use of the Services (including without limitation, any data transmitted to, by, or through the Services) or the results obtained therefrom; (ii) Customer’s violation of applicable law; and/or (iii) Backscatter’s breach of any agreement with a third party (including without limitation, any of Backscatter’s licensors), to the extent due to the acts or omissions of Customer.
8.2 By Backscatter
Subject to this Agreement, Backscatter shall defend, indemnify, and hold Customer harmless from and against any and all third-party losses, damages and costs (including reasonable attorneys’ fees) incurred in connection with any third-party claim, action, suit, or proceeding made or brought against Customer arising out of or related to any claim that any Licensed Application, when used in accordance with this Agreement and Documentation, infringes any valid U.S. patent issued as of the Effective Date, copyright, or trademark of a third party; provided, that Customer (A) promptly gives written notice of the claim to Backscatter; (B) gives Backscatter sole control of the defense and settlement of the claim; and (C) provides to Backscatter all available information and reasonable assistance (at Backscatter’s expense). Backscatter shall have no indemnification obligation whatsoever that arises out of or is related to any claims arising from the combination or use of the Services or any Licensed Application with any other software, products, hardware, materials, and/or processes not provided by Backscatter; and/or Customer’s failure to adhere to and comply with all Documentation and other specifications and instructions; and/or Customer’s modification of the Services or Licensed Applications, or any other unauthorized or unapproved use of the Services or Licensed Applications. Should any Licensed Application become the subject of an intellectual property right infringement suit or proceeding, Backscatter may, at its sole option: (1) obtain a license that would permit Customer to continue to use the Licensed Application; (2) modify the Licensed Application to render it non-infringing; (3) provide a non-infringing product that possesses the full functionality of the Licensed Application at no additional cost to Customer; or (4) terminate this Agreement with respect to such Licensed Application. THIS SECTION 8.2 SETS FORTH Backscatter’S SOLE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR INTELLECTUAL PROPERTY INFRINGEMENT.
9. Term & Termination
The Term of this Agreement is as set forth in the Order Form.
9.2 Termination for Cause
Either party may terminate this Agreement for cause: (i) upon written notice to the other party in the event of a material breach of this Agreement by the other party which remains uncured thirty (30) days after receipt of written notice thereof; 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 and such petition or other proceeding is not dismissed within ninety (90) days of the filing thereof.
9.3 Termination for Loss of Rights
In addition to all other applicable termination rights of each party, in the event that any licensor of any Licensed Application terminates Backscatter’s or Customer’s rights with respect to such Licensed Application, this Agreement shall automatically and immediately terminate.
9.4 Effect of Termination
Upon any termination of this Agreement, each party shall (i) immediately discontinue all use of the other party’s Confidential Information; (ii) delete the other party’s Confidential Information from its computer storage or any other media; (iii) return to the other party or, at the other party’s option, destroy, all copies of such party’s Confidential Information then in its possession; and (iv) promptly pay all amounts due and owing hereunder. To the extent Customer is subject to any minimum payment obligations, termination of this Agreement shall not affect Customer’s obligation to make such payments, and upon any termination of this Agreement, Customer shall promptly (but in any event, within thirty (30) days after such termination) remit to Backscatter an amount equal to all such remaining minimum payments. Notwithstanding the above, subject to Section 6 hereof, Backscatter may retain one copy of Customer’s Confidential Information for archive purposes only. In addition, upon any expiration or earlier termination of this Agreement, all rights granted to Customer with respect to the Licensed Applications shall immediately cease, and Customer and its Authorized Users shall discontinue all use of the Licensed Applications immediately. Customer shall certify compliance with this Section 9.4 in writing to Backscatter within five (5) business days after the effective date of such expiration or earlier termination.
The provisions of Sections 3.4, 4, 5, 6, 7.2, 8, 9.4, 9.5 and 10 shall survive expiration or termination of this Agreement for any reason.
10.1 Independent Contractors
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.2 Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
10.3 Force Majeure
Except as otherwise expressly provided in this Agreement, neither party shall be liable for any failure to perform its obligations under this Agreement if such failure arises, directly or indirectly, out of any acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Backscatter’s possession or reasonable control, denial of service attacks, incompatibility of Customer’s equipment or software with the Services, acts or omissions of vendors or suppliers, transportation and telecommunications difficulties.
10.4 Government Users
All Licensed Applications and associated user manuals, services and deliverables, constitute “Commercial Computer Software” and “Commercial Computer Software Documentation.” Therefore, in accordance with Section 12.212 of the Federal Acquisition Regulation (FAR) and Sections 227.7202-1 through 227.7202-4 of the Defense Federal Acquisition Regulation Supplement (DFARS), any use, duplication or disclosure of any Licensed Applications and associated user manuals, services or deliverables by the U.S. Government or any of its agencies will be governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this Agreement. Use of any or all Licensed Applications and associated user manuals, services and deliverables constitutes agreement by the Government that any Licensed Applications and associated user manuals, services and deliverables are "commercial computer software" and "commercial computer software documentation," and constitutes acceptance of the rights and restrictions set forth in the Agreement. If for any reason any Licensed Applications and associated user manuals, services and deliverables are not considered commercial or the terms of this Agreement are otherwise deemed not applicable, such Licensed Applications and associated user manuals, services and deliverables shall be deemed to have been provided with “Restricted Rights” as defined in FAR 52.227-14(a) and FAR 52.227-14(g)(4) (Alt III), or DFARS 252.227-7014(a)(15) and DFARS 252.227-7014(b)(3), as applicable.
10.5 Compliance with Laws; Export
Customer must comply with U.S., foreign, and international laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, other anti-corruption laws, U.S. Export Administration and Treasury Department's Office of Foreign Assets Control regulations, and other anti-boycott and import regulations. Customer agrees: (i) that the export, re-export, transfer, re-transfer, sale, supply, access to, or use of any products or services (including without limitation, any Licensed Application) to or in a third country or to, by, or for a different end user or end use may require a U.S. or other government license or other authorization; and (ii) not to, directly or indirectly, export, re-export, transfer, re-transfer, sell, supply, or allow access to or use of any products or services to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end uses under U.S. or other applicable law (collectively, “Prohibited Uses”). Customer is responsible for screening for Prohibited Uses and obtaining any required licenses or other authorizations and shall indemnify Backscatter and its licensors for any violation by Customer of any applicable export controls and/or economic sanctions laws and regulations. Backscatter may terminate the Agreement immediately if Backscatter and/or any of its licensors determines, in its sole discretion, that Customer has breached, intends to breach, or insists upon breaching any of the provisions in this clause.
All notices under this Agreement will be in writing and sent by certified mail to the address and contact person of the other party as set forth on the Order Form hereto (as it may be modified by the recipient by written notice to the other), and copies thereof may be sent by email or facsimile. All such notices will be effective upon delivery, but email and facsimile notices will be effective only upon confirmation of receipt.
10.7 Waiver & Cumulative Remedies
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Except as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be amended to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect.
10.9 No Assignment
Neither party shall assign its rights or delegate its obligations under this Agreement without the other party’s prior written consent, and absent such consent, any attempted or purported assignment by such party shall be null, void and of no effect. Notwithstanding the foregoing (i) Backscatter may assign this Agreement without consent upon written notice to Customer in the event of a change of control, merger, divestiture, or sale of all or substantially all of its assets; and (ii) Backscatter may subcontract or delegate its obligations hereunder to certain third-party service providers or subcontractors; provided, that any such service providers and subcontractors agree to be fully responsible to Customer for the obligations of Backscatter hereunder.
In no event may either party use the name, trademarks and logos of the other party without the prior written consent, in each instance, of such party; provided, that Customer hereby permits Backscatter to use and publish Customer’s name, trademarks and logos in (i) new customer announcements published on Backscatter’s website; (ii) compiled customer list published on the Backscatter’s website and used in marketing presentations; and (iii) quarterly press release announcing new customers.
10.11 Governing Law
This Agreement shall be governed exclusively by the internal laws of the State of Tennessee, without regard to its conflicts of laws rules. Any action arising out of this Agreement shall be brought solely and exclusively in the applicable state and federal courts located in Memphis, Tennessee.
10.12 Entire Agreement
This Agreement, including all Order Forms, constitutes the entire agreement between the parties, 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 shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any addendum hereto or any Order Form, the terms of this Agreement shall prevail.
10.13 Attorneys’ Fees
In any action brought by one party against the other party hereto, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.