BY ACCEPTING THIS AGREEMENT OR USING THE SOFTWARE (AS DEFINED BELOW), YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THESE TERMS AND CONDITIONS AS AN INDIVIDUAL, THE TERM "END USER" REFERS TO YOU. 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 TERM "END USER" SHALL REFER TO SUCH ENTITY. 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 SOFTWARE.
End User and Bommer, Inc (“Bommer”) hereby agree as follows:
1. Scope. These Terms and Conditions shall apply to End User's use of the Bommer software product(s) designated in an ordering document executed by End User and Bommer or any online ordering form made available by Bommer through which End User purchases a subscription to such software ("Order Form", and such software, together with any related software-based services provided by Bommer, the “Software”). These Terms and Conditions and all Order Forms (collectively referred to as this "Agreement") represent the parties' entire understanding regarding the Software and shall control over any different or additional terms of any purchase order or other non-Bommer ordering document, and no terms included in any such purchase order or other non-Bommer ordering document shall apply to the Software. In the event of a conflict between these Terms and Conditions and an Order Form, the terms of the Order Form shall control. All capitalized terms not defined herein shall have the meanings attributed in the Order Form.
2. Free Trial. If End User registers for a free trial, Bommer will make the Software available to End User on a trial basis free of charge until the earlier of (a) the end of the free trial period for which End User registered to use the applicable Software, or (b) the start date of any purchased subscriptions ordered for such Software. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
3. License Grant. Subject to the terms and conditions of this Agreement, Bommer hereby grants to End User, during the Subscription Term (as defined in the Order Form), a non-exclusive, non-transferable, non-sublicenseable right and license to (a) install and use the downloadable components of the Software in object code and (b) if applicable, access and use the software-based service components of the Software, in each case ((a) and (b)) for internal business purposes only and subject to any usage limitations or other restrictions set forth in the Order Form.
4. License Restrictions.
4.1 Restrictions. End User will not (and will not permit any third party to): (i) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any commercial use of, outsource, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, or otherwise generate income from the Software; (ii) copy the Software onto any public or distributed network, except for an internal and secure cloud computing environment; (iii) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover or permit the discovery of any source code or other operational mechanisms of the Software; (iv) modify, adapt, translate or create derivative works, nor allow any of those actions to occur, based on all or any part of the Software; (v) modify any proprietary rights notices which appear in the Software or components thereof; (vi) use any non-public information made available by or on behalf of Bommer for any purpose other than End User’s authorized use of the Software, fail to use at least reasonable efforts to keep such information confidential or disclose any such information to any third party or (vii) use any Software in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section 3. End User shall not export or re-export any Software or technical data or any copy, portions or direct product thereof to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. End User shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.
4.2 Unauthorized Use. End User shall notify Bommer immediately of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Software. End User is responsible for use of the Software by any and all employees, contractors, or other users that it allows to access the Software.
5.1 Pricing and Audits. End User will be billed for those amounts and at those prices set forth in the applicable Order Form for the Subscription Term indicated therein. End User will maintain, and Bommer will be entitled to audit, any records relevant to End User’s use of the Software hereunder. Bommer may audit such records on reasonable notice at Bommer’s cost (or if the audits reveal material non-compliance with this Agreement, at End User’s cost).
5.2 Payments. End User shall pay those amounts set forth in invoices not disputed in good faith within thirty (30) days of the date of receipt thereof, unless a specific date for payment is set forth in the Order Form, in which case the payment will be due on the date specified. All payment obligations are non-cancelable and all amounts paid are non-refundable, except for amounts paid in error that are not actually due under this Agreement. The fees paid by End User are exclusive of all taxes, levies, or duties imposed by taxing authorities, if any, and End User shall be responsible for payment of all such taxes, levies, or duties, excluding taxes based on Bommer’s income. End User represents and warrants that the billing and contact information provided to Bommer is complete and accurate. End User shall pay interest on all payments not received by the due date at a rate of one and a half percent (1.5%) or the maximum amount allowed by law, whichever is lesser.
6. Proprietary Rights.
6.1 Ownership; FOSS. Bommer and its suppliers own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Software. End User acknowledges that the rights granted under this Agreement do not provide End User with title to or ownership of the Software. Certain “free” or “open source” based software (the “FOSS Software”) is shipped with the downloadable components of the Software but is not considered part of the Software hereunder. A list of the FOSS Software will be provided to End User upon End User’s written request. In addition, each Order Form may contain specific terms and conditions relating to End User’s use of any third party software delivered with the Software.
6.2 Feedback and Performance Metrics. End User may provide suggestions, feedback and other information to Bommer regarding possible improvements in the operation, functionality or use of the Software (“Feedback”) and Bommer shall have the right collect and analyze data and other information relating to the provision, use and performance of the Software (“Performance Metrics”). End User hereby grants to Bommer the perpetual, irrevocable right to use, copy, modify, create derivative works of and otherwise fully exercise and exploit such Feedback and Performance Metrics solely for the purpose of (i) improving the operation, functionality or use of Bommer’s existing and future product offerings and commercializing such offerings; and (ii) publishing aggregated and de-identified statistics about use or performance of the Software.
7. Term and Termination. This Agreement shall commence as of the date set forth in the first Order or the beginning of a free trial, if earlier, and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Order (or the end of the free trial if no purchased subscription is ordered). If a subscription is purchased, the Subscription Term will automatically renew for additional successive periods of time equal to the length of the original Subscription Term. End User may elect not to renew its Subscription Term by cancelling its subscription through its account management page on the Service (with such non-renewal being effective at the end of the then-current Subscription Term), and Bommer may elect not to renew such Subscription Term upon notice thereof to End User.. All sections of this Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability. In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. If Bommer terminates an Order Form for End User’s material breach, all fees set forth on such Order are immediately due and payable. Upon any termination or expiration of an Order, End User’s right to access and use the Software covered by that Order shall terminate.
8. Disclaimer of Warranties. THE SOFTWARE AND ALL RELATED SERVICES ARE PROVIDED “AS IS” AND BOMMER EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE OR ANY RELATED SERVICES. BOMMER EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE OR ANY RELATED SERVICES.
9. Limitation of Liability. IN NO EVENT SHALL BOMMER BE LIABLE (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY, OTHER TORTS OR OTHERWISE) FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF BOMMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY AGGREGATE DAMAGES IN EXCESS OF THE TOTAL FEES PAID TO BOMMER UNDER THE APPLICABLE ORDER FORM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. In addition, without limiting the foregoing, Bommer will not be liable for defaults or delays due to Acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, floods, accidents, or other unforeseeable causes beyond its control.
10. Notices. Bommer may give notices to End User by electronic mail to End User's e-mail address on record in Bommer'saccount information or by written communication sent by first class mail or pre-paid post to End User's address on record in Bommer's account information. If End User has a dispute with Bommer, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, End User shall promptly send written notice to Bommer at PO Box 77791, San Francisco, CA 94107.
11. General provisions. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving San Francisco, California. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties. Waivers and amendments to this Agreement shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this Agreement. The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement. This Agreement may not be assigned by End User without the prior written consent of Bommer. Bommer may assign this Agreement to an affiliate or a successor to all or substantially all of its business or assets to which this Agreement relates. Any purported assignment in violation of this section shall be void. End User agrees that Bommer may refer to End User by trade name and logo, and may briefly describe End User’s business, in Bommer’s marketing materials and web site. For purposes hereof, “including” means “including without limitation”.