Backdraft Vendor Terms of Use

Last Updated October 29, 2019

This Software as a Service Agreement (this “Agreement”) is by and between Backdraft Inc., (”Provider”) and a business entity (”Vendor”). Provider and Vendor may be referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS, Provider provides access to the Services to its Vendors; and

WHEREAS, Vendor desires to access the Services, and Provider desires to provide Vendor access to the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1.  Definitions.

 

    (a)  ”Aggregated Statistics” means data and information related to Vendor’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

 

    (b)  ”Authorized User” means Vendor’s employees, consultants, contractors, and agents (i) who are authorized by Vendor to access and use the Services under the rights granted to Vendor pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.

 

    (c)  ”Vendor Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Vendor or an Authorized User through the Services.

 

    (d)  ”Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Vendor either electronically or in hard copy form/end user documentation relating to the Services.

 

    (e)  ”Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Vendor or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Vendor’s access to or use of the Services, but does not include Vendor Data.

 

    (f)  ”Services” means the software-as-a-service offering described in Exhibit A.

 

    (g)  ”Third-Party Products” means any third-party products described in Exhibit A, if any, provided with or incorporated into the Services.

 

2.  Access and Use. 

 

    (a)  Provision of Access. Subject to and conditioned on Vendor’s payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Vendor a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Vendor’s internal use. Provider shall provide to Vendor the necessary passwords and network links or connections to allow Vendor to access the Services.

 

    (b)  Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Vendor a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Vendor’s internal business purposes in connection with its use of the Services.

 

    (c)  Use Restrictions. Vendor shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Vendor shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

 

    (d)  Reservation of Rights. Provider reserves all rights not expressly granted to Vendor in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Vendor or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.

 

    (e)  Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Vendor’s and any Authorized End User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Vendor’s or any Authorized End User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other Vendor or vendor of Provider; (C) Vendor, or any Authorized End User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Vendor has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Vendor or any Authorized End User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Vendor to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Vendor and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Vendor or any Authorized User may incur as a result of a Service Suspension.

 

    (f)  Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Vendor’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Vendor, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Vendor acknowledges that Provider may compile Aggregated Statistics based on Vendor Data input into the Services. Vendor agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Vendor or Vendor’s Confidential Information.

 

3.  Vendor Responsibilities.

 

    (a)  General. Vendor is responsible and liable for all uses of the Services and Documentation resulting from access provided by Vendor, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Vendor is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Vendor will be deemed a breach of this Agreement by Vendor. Vendor shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.

 

    (b)  Third-Party Products. Provider may from time to time make Third-Party Products available to Vendor. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions referred to in Exhibit A. If Vendor does not agree to abide by the applicable terms for any such Third-Party Products, then Vendor should not install or use such Third-Party Products.

 

4.  Service Levels and Support.

 

    (a)  Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit B.

 

    (b)  Support. The access rights granted hereunder entitles Vendor to the support services described on Exhibit B for [TERM - determined between Parties] following the Effective Date under this Agreement and thereafter, solely if Vendor purchases additional support services.

 

5.  Fees and Payment.

 

    (a)  Fees. Vendor shall pay Provider the fees (”Fees”) as set forth in Exhibit A without offset or deduction. Vendor shall make all payments hereunder in US dollars on or before the due date set forth in Exhibit A. If Vendor fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Vendor shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Provider may suspend Vendor’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

 

    (b)  Taxes. All Fees and other amounts payable by Vendor under this Agreement are exclusive of taxes and similar assessments. Vendor is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Vendor hereunder, other than any taxes imposed on Provider’s income.

 

    (c)  Auditing Rights and Required Records. Vendor agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Vendor’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Vendor has underpaid Provider with respect to any amounts due and payable during the Term, Vendor shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Vendor shall pay for the costs of the audit if the audit determines that Vendor’s underpayment equals or exceeds 5.0% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two years after the termination or expiration of this Agreement.

 

6.  Confidential Information.

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

 

7.  Intellectual Property Ownership; Feedback.

 

    (a)  Provider IP. Vendor acknowledges that, as between Vendor and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.

 

    (b)  Vendor Data. Provider acknowledges that, as between Provider and Vendor, Vendor owns all right, title, and interest, including all intellectual property rights, in and to the Vendor Data. Vendor hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Vendor Data and perform all acts with respect to the Vendor Data as may be necessary for Provider to provide the Services to Vendor, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Vendor Data incorporated within the Aggregated Statistics.

 

    (c)  Feedback. If Vendor or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Vendor hereby assigns to Provider on Vendor’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

 

8.  Limited Warranty and Warranty Disclaimer.

 

    (a)  Provider warrants that the Services will conform in all material respects to the service levels set forth in Exhibit B when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit B. The remedies set forth in Exhibit B are Vendor’s sole remedies and Provider’s sole liability under the limited warranty set forth in this Section 8(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. [D2] 

 

    (b)  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a),THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET VENDOR’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

 

9.  Indemnification.

 

    (a)  Provider Indemnification.

 

(i)  Provider shall indemnify, defend, and hold harmless Vendor from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Vendor resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Vendor promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.

 

(ii)  If such a claim is made or appears possible, Vendor agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Vendor to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Vendor.

 

(iii)  This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Vendor Data ; or (D) Third-Party Products.

 

    (b)  Vendor Indemnification. Vendor shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Vendor Data, or any use of the Vendor Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Vendor’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Vendor may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

 

    (c)  Sole Remedy. THIS SECTION 9 SETS FORTH VENDOR’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 9 EXCEED THE AMOUNT PAID BY VENDOR TO PROVIDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.

10.  Limitations of Liability.

IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

 

11.  Term and Termination.

 

    (a)  Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term”). This Agreement will automatically renew unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).

 

    (b)  Termination. In addition to any other express termination right set forth in this Agreement:

 

(i)  Provider may terminate this Agreement, effective on written notice to Vendor, if Vendor: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;

 

(ii)  either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or

 

(iii)  either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

 

    (c)  Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Vendor shall immediately discontinue use of the Provider IP and, without limiting Vendor’s obligations under Section 6, Vendor shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Vendor’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Vendor to any refund.

 

    (d)  Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

 

12.  Miscellaneous.

 

    (a)  Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.

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    (b)  Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. 

 

    (c)  Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

 

    (d)  Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

    (e)  Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

    (f)  Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in the city of Cleveland and County of Cuyahoga, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

 

    (g)  Assignment. Vendor may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

 

    (h)  Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Vendor shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Vendor shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.

 

    (j)  Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Vendor, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

 

    (k)  Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

EXHIBIT A

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.

  1. DESCRIPTION OF SERVICES: [DESCRIPTION]

Backdraft, Inc. is a SaaS platform that provides Vendors the support of an entire marketing team within one application. The primary feature of the platform is a user rewards tool replacing traditional punch cards and separate memberships. The user is eligible to participate in the rewards program by linking their preferred debit or credit card to their Backdraft account.

The vendor can run specialized marketing campaigns to encourage additional shop visits and offer the users cashback on their purchases. The current reward types available are by total purchase price and by card swipes. The vendor can pick which style of campaign they would like to run and set the parameters of the campaign (such as start/end date, amount to give back, amount to fund, etc.). The vendor able to access all of this information via the vendor portal which they will be granted access to upon completion of this agreement.

The vendor will also have access to analytics which are pulled from the Backdraft system to provide insights on patterns and demographics to better communicate with their user. 

2. FEES: [FEES AND CORRESPONDING SUBSCRIPTION PERIOD LENGTH, PAYMENT REQUIREMENTS, INCLUDING INVOICING AND ANY RENEWAL FEE NOTIFICATION PROCESS OR RENEWAL FEE INCREASE LIMITATIONS.]

This will vary from client to client. 

- Invoicing will be automatically occur via the vendor portal on the first of every month.

- Renewal fees will happen automatically on a yearly basis unless written notice is received 30 days prior to renewal date.

- Adjustments in renewal fees must be submitted to the vendor and negotiated at least 30 days before renewal.

C. [THIRD-PARTY PRODUCTS: [DESCRIPTION, FLOW THROUGH PROVISIONS, URL LINKS TO LICENSES.]] [D3] 

Backdraft, Inc. works with the following third part providers which includes but is not limited to:

-        PaymentCloud: https://paymentcloudinc.com/about/

-        Plaid: https://plaid.com/legal/

-        Azure: https://azure.microsoft.com/en-us/support/legal/

 

EXHIBIT B

SERVICE LEVELS AND SUPPORT

 

This Service Level Agreement applies to and is incorporated by reference into the SaaS Agreement  (the “Agreement”) made by and between the Service Provider (as identified on the Agreement) and the Vendor (as identified on the Agreement). Service Provider may modify this Service Level Agreement from time to time by posting such amended Service Level Agreement to Service Provider’s site, but will provide sixty (60) days advance notice to Vendor before materially reducing the benefits offered to Vendor under this Service Level Agreement.

 

During the term of the applicable Agreement, Service Provider will use reasonable efforts to achieve a Yearly Uptime Percentage of at least 99%. If Service Provider does not meet the Service Provider SLA, and so long as Vendor’s account is current, Vendor will be eligible to receive the credits described below. These credits are Vendor’s exclusive remedy for any failure by Service Provider to meet the Service Provider SLA. Service Provider and Vendor hereby agree as follows:

1. Definitions. The following definitions apply to this Addendum.

- “Downtime” means the time in which any service listed above is not capable of being accessed or used by the Vendor, as monitored by Service Provider. “Yearly Uptime Percentage” means the total number of minutes in a calendar year minus the number of minutes of Downtime suffered in a calendar year, divided by the total number of minutes in a calendar year. “Exclusion from Downtime” The following are not counted as Downtime for the purpose of calculating Monthly Uptime Percentage:

 

-        Service unavailability caused by scheduled maintenance of the platform used to provide the applicable service (Service Provider will endeavor to provide seven days’ advance notice of service-affecting scheduled maintenance); or

 

-        Service unavailability caused by events outside of the direct control of Service Provider or its subcontractor(s), including any force majeure event, the failure or unavailability of Vendor’s systems, the Internet, and the failure of any other technology or equipment used to connect to or access the service. 

2. Service Credits.

Credits are issued if Service Provider does not meet the Service Provider SLA for a particular year of the ordered term. Upon approval of a claim we will provide the applicable remedy set forth below:

 

Monthly Uptime Percentage                   Service Credit

Less than 95% but >= 90%                     5% of the monthly fee

Less than 90% but >= 50%                     10% of the monthly fee

 

3. Claim Procedure.

To receive a service credit for a calendar year, Vendor must submit a claim by email to the support team within 30 days of the end of the year during which the Service did not meet the Service Provider SLA, and include the following information:

Vendor name and account number; the name of the service to which the claim relates; the name, email address, and telephone number of the Vendor’s designated contact; and information supporting each claim of Downtime, including date, time, and a description of the incident and affected service, all of which must fall within the calendar month for which you are submitting a claim.

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