BACKENGINE TERMS OF SERVICE AGREEMENT

Effective: January 3rd, 2024

This BackEngine Terms of Service Agreement (this “Agreement”) governs the access and use of the BackEngine, a proprietary hosted email automation platform enabling the management and automation of your email inbox and email-related tasks (“BackEngine Service”).  This Agreement is a legally binding contract entered into between BackEngine, Inc., a Delaware corporation (“BackEngine”) andthe person or entity on whose behalf access to the BackEngine Service, whether that is you or your employer or another person or entity (”you” or the “Customer”).  Please note that BackEngine may modify the terms of this Agreement in accordance with Section 14.

ACCEPTANCE OF THIS AGREEMENT:  BY INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, ENTERING INTO OR ACCEPTING ANY BACKENGINE WRITTEN OR ELECTRONIC ORDER FORMS OR ONLINE SIGN-UP, REGISTRATION OR ODER FLOW THAT REFERENCES THIS AGREEMENT (EACH, AN “ORDER FORM”), DEPLOYING THE BACKENGINE SERVICE, OR OTHERWISE USING OR ACCESSING THE BACKENGINE SERVICE IN ANY MANNER: (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW); AND (2) YOU REPRESENT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) ON BEHALF OF THE CUSTOMER AND TO BIND THE CUSTOMER TO THE TERMS OF THIS AGREEMENT (WHICH MEANS THAT YOU ARE ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE BACKENGINE SERVICE ON BEHALF OF ANOTHER PERSON OR ENTITY, E.G., YOUR COMPANY, AND YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT, AND USE THE BACKENGINE SERVICE, ON BEHALF OF SUCH OTHER PERSON OR ENTITY).

IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR YOU DO NOT HAVE THE REQUISITE AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF THE CUSTOMER AS SET FORTH ABOVE, DO NOT ACCEPT THIS AGREEMENT OR OTHERWISE ACCESS OR USE THE BACKENGINE SERVICE (OR ANY PART THEREOF).  UPON YOUR ACCEPTANCE OF THIS AGREEMENT AS SET FORTH ABOVE, THIS AGREEMENT WILL BE BINDING UPON BOTH BACKENGINE AND CUSTOMER.

1.ELIGIBILITY; CUSTOMER ACCOUNTS & AUTHORIZED USERS

1.1.Accounts.  In order to use the BackEngine Service, Customer must register an account (“Account”), and may be required to register sub-Accounts for each individual (including employees, contractors or agents of Customer) who have been authorized by the Customer to access and use the BackEngine Service on behalf of Customer (each an “Authorized User”).  In registering an Account, Customer agrees to, and shall ensure that its Authorized Users, provide and maintain up to date account registration information, which may include, name, location, e-mail address or other contact information, and billing information, relating to Customer and any Authorized Users (“Account Data”), that is true, accurate, current, up to date, and complete.  Customer agrees that it will not, and will not permit any Authorized User or other third party to create an Account or sign up to access the BackEngine Service using a false identity or fictitious name or information.  Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting the passwords, license keys and/or other access credentials for the Account.  Customer is solely responsible for any activity originating from the Account, including, without limitation, any access of the Account by Authorized User and/or sub-accounts created by Authorized Users under the Account, regardless of whether such activity is authorized by Customer.  Customer agrees to notify BackEngine immediately of any unauthorized use of or access to Customer’s Account or the Accounts of any of its Authorized Users.

1.2.Administrators; Permissions.  Customer may designate an administrator or administrators (each, an “Administrator”) to administer and manage Customer’s Account, which includes, without limitation, the right to invite Authorized Users to access and use the BackEngine Service on behalf of Customer and to assign certain permissions and access rights to each Authorized User (“Permissions”).  Customer acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to access and use the BackEngine Service.  Customer acknowledges and agrees that Customer is solely responsible and liable for its Administrator(s) administration and management of the Account, including, but not limited to, the inviting and granting of access to the Account and BackEngine Service to Authorized Users and the assignment of Permissions to Authorized Users.  For the avoidance of doubt, the term “Authorized Users” as used in this Agreement, includes Administrators.  Customer shall be responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement, and any noncompliance of any Authorized User shall be deemed a breach of this Agreement by Customer. 

1.3.Consent to Electronic Notices.  Customer consents to receiving electronic communications from BackEngine via email, through the user-interface of the BackEngine Service or through BackEngine’s authorized support communication channels, which may include notices about transactional information and other information concerning or related to Customer’s use of the BackEngine Service.  These electronic communications are part of Customer’s relationship with BackEngine and Customer receives them as part of Customer’s access and use of the BackEngine Service. Customer agrees that any notices, agreements, disclosures or other communications that BackEngine sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing, to the extent permitted by applicable law.

2.CUSTOMER DATA

2.1.Customer Data.  To the extent Customer or any Authorized User transmits, processes, and/or otherwise provides any information or data (including, Account Data and Personal Data), through, or in connection with the use of, the BackEngine Service (collectively, “Customer Data”), Customer hereby grants to BackEngine a worldwide, royalty-free, non-exclusive license to process and use (including through the use of subcontractors) Customer Data solely to the extent necessary to provide Customer the BackEngine Service and other services provided by BackEngine to Customer hereunder or as otherwise expressly permitted in this Agreement. As between the parties, subject to BackEngine’s rights in and to Usage Data (as defined below), Customer shall retain all right, title and interest in and to the Customer Data.  Customer acknowledges and agrees that Customer, not BackEngine, is solely responsible for any and all Customer Data submitted, transmitted, contributed, provided, generated, and/or created by Customer and/or its Authorized Users in connection with the use of the BackEngine Service, including its legality, reliability, security, accuracy, and appropriateness.  Customer represents and warrants that Customer has all necessary ownership, rights and/or authorizations to grant the licenses hereunder in and to the Customer Data.

2.2.Personal Data.  To the extent any Customer Data includes, or Customer or any Authorized Users otherwise transmits, processes, and/or provides, any personally identifiable information through or in connection with the use of the BackEngine Service (“Personal Data”), which is subject to any applicable data protection laws and/or regulations (“Applicable Data Laws”), Customer represents and warrants that: (a) Customer is in compliance with all Applicable Data Laws, and (b) Customer has obtained all permissions and/or approvals from each applicable data source as may be necessary or required to transmit such data through the BackEngine Service and/or provide or make available such data to BackEngine hereunder.  Account Data and Personal Data shall only be used in accordance with this Agreement and as described in BackEngine’s Privacy Notice available at http://www.backengine.ai/privacy.  In addition, each party agrees to work together in good faith to mutually agree upon and execute and/or enter into any documents, agreements, statements, or policies deemed necessary or appropriate by a party in its discretion to comply with any Applicable Data Laws with respect to any Personal Data exchanged pursuant to this Agreement.

2.3.Sensitive Data.  If Customer transmits, or intends to use the BackEngine Service in connection with, any Customer Data that is or contains information that is considered or defined to be “sensitive,” “special,” or otherwise subject to specific protections or security standards under Applicable Data Laws exceeding any requirements that apply to Personal Data generally (collectively, “Sensitive Data”), Customer acknowledges and agrees that it is responsible for evaluating, and shall evaluate, prior to transmitting any Sensitive Data, whether the technical and organizational measures described in the Documentation (as defined below) are sufficient to protect Sensitive Data.  Customer represents and warrants that it shall not transmit any Sensitive Data through the BackEngine Service if Customer determines that such technical and organizational measures are insufficient to protect Sensitive Data in accordance with Applicable Data Laws.

2.4.Usage Data.  Customer acknowledges and agrees that BackEngine has the right to (a) aggregate, collect, and analyze information, metrics, analytics, and data relating to the use of the BackEngine Service (collectively, “Usage Data”), (b) use such Usage Data for its internal business purposes, including, but not limited to, improving, testing, and maintaining the BackEngine Service, improving, developing, and enhancing BackEngine’s own algorithms and machine learning models, and to develop additional products and services, and (c) disclose or publish Usage Data solely in an aggregated and de-identified format that does not identify Customer or any individual.  Subject to Customer’s rights in and to Customer Data, BackEngine shall retain all right, title, and interest in and to Usage Data.

2.5.AI Functionality.  The BackEngine Service utilizes certain generative artificial intelligence and other machine learning functionality (“AI Features”).  Artificial intelligence and machine learning are rapidly evolving fields of study.  Given the probabilistic nature of machine learning, use of the AI Features may in some situations result in incorrect output that does not accurately reflect real people, places, or facts or conform to your specifications.  You are responsible for evaluating the accuracy of any output as appropriate for your use case, including by using human review of the output. Please note that we may utilize AI Features developed by third parties.  For example, BackEngine utilizes AI Features developed by OpenAI, L.L.C (“OpenAI”), which are integrated into the BackEngine Service using the OpenAI API.  Please review OpenAI’s data usage policies with respect to the OpenAI available at https://openai.com/policies/api-data-usage-policies.  You agree to use the AI Features in accordance with this Agreement and the then-current terms and conditions and other policies, including any privacy policies, governing the use of the applicable of any third party AI Features.  You can review OpenAI’s current terms and policies here: https://openai.com/policies.

2.6.Security.  BackEngine shall implement and maintain industry-standard technical and organizational security measures that are reasonably designed to prevent unauthorized access to and disclosure of unencrypted Customer Data.  Without prejudice to BackEngine’s foregoing obligations, Customer is responsible for its secure use of the BackEngine Service, including, without limitation: (a) protecting account authentication credentials; (b) implementing measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and (c) taking any appropriate steps to securely encrypt or pseudonymize any Customer Data.

3.RIGHTS AND CONDITIONS TO USE BACKENGINE SERVICE

3.1.Access to the BackEngine Service.  Subject to the terms and conditions of this Agreement, BackEngine grants to Customer a personal, non-exclusive, non-sublicensable, non-transferable limited right to access and use, and permit its Authorized Users to access and use, the BackEngine Service, over the internet, solely for Customer’s own business purposes, in accordance with this Agreement and the then-current technical and user documentation made available by BackEngine for the BackEngine Service (“Documentation”), and subject to any applicable usage parameters or restrictions specified in the Documentation or by BackEngine in writing regarding the scope of use of the BackEngine Service.

3.2.Beta Features.  BackEngine may from time-to-time, in its sole discretion, make certain beta versions, features and/or functionality of the BackEngine Service (collectively, “Beta Versions”) available to Customer to evaluate and try (at Customer’s option) at no additional cost.  For the avoidance of doubt, any Beta Versions are included in the defined term “BackEngine Service” as used throughout this Agreement. If Customer elects to access Beta Versions, BackEngine grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Version solely for Customer’s internal evaluation and subject to any and all technical limitations implemented in the Beta Version and/or other usage parameters or restrictions specified by BackEngine. In addition to the restrictions set forth in Section 3.3 below, Customer shall not access and/or use the Beta Version without the express prior written approval of BackEngine if Customer is a direct competitor of BackEngine. In addition, Customer acknowledges and agrees that the Beta Version and any Feedback (as defined below in Section 3.5) regarding the Beta Versions are the confidential information of BackEngine and Customer shall not disclose any such Feedback or other confidential information to any third party. BETA VERSION AND FEATURES ARE PROVIDED AS-IS, ARE NOT SUPPORTED, AND MAY BE SUBJECT TO ADDITIONAL TERMS AS SPECIFIED BY BACKENGINE IN WRITING AND/OR IN THE APPLICABLE DOCUMENTATION FOR THE BETA VERSION. BackEngine reserves the right to terminate Customer’s access to any Beta Versions at any time, for any reason.

3.3.Prohibited Uses.  Customer acknowledges that the BackEngine Service embodies, contains, and constitutes valuable trade secrets of BackEngine and its licensors and suppliers.  Accordingly, Customer agrees that it will not, and it will not permit any third party (including, without limitation, any Authorized User) to:

(a)use or allow access to the BackEngine Service (or any part or component thereof) in a manner that circumvents contractual usage restrictions or that exceeds any applicable usage parameters or restrictions;

(b)license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the BackEngine Service (or any part or component thereof) available for access by third parties except as otherwise expressly provided in this Agreement;

(c)access or use the BackEngine Service (or any part or component thereof) for the purpose of developing competitive products or services or for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose;

(d)reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets, or any underlying ideas, algorithms and/or technology from or about the BackEngine Service;

(e)use the BackEngine Service (or any part thereof) in a way, including, without limitation, to store, transmit, or upload any material and/or content, that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity;

(f)upload, distribute or disseminate any unlawful, defamatory, pornographic, harassing, abusive, fraudulent, obscene, or otherwise objectionable content through or in connection with the use of the BackEngine Service (or any part thereof);

(g)remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of BackEngine or its licensors and/or suppliers on or within any part of the BackEngine Service;

(h)interfere with or disrupt the integrity or performance of the BackEngine Service, or any related system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the BackEngine Service;

(i)take any action that imposes an unreasonable or disproportionately large load on the BackEngine Service (or any part or component thereof), or its underlying infrastructure and systems;

(j)attempt to gain unauthorized access to the BackEngine Service, or its related systems or networks or attempt to disable or circumvent any security mechanisms contained, or used and/or implemented by BackEngine, in the BackEngine Service;

(k)frame or utilize framing techniques to enclose the BackEngine Service or any portion thereof;

(l)use any meta tags, “hidden text”, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the BackEngine Service (or any part thereof), and/or the personal information of others without BackEngine’s prior written permission or authorization;

(m)use the BackEngine Service to store or transmit any malicious or unsolicited code or software;

(n)impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity or falsify age or date of birth or any other eligibility requirements; or

(o)use the BackEngine Service (or any part thereof), or transmit Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency, including, without limitation, export laws and regulations.

3.4.Support.  BackEngine will use commercially reasonable efforts to provide Customer remote technical support by email and/or phone for Customer’s use of the BackEngine Service during BackEngine’s normal business hours (“Support”).  To submit a request for Support please contact BackEngine here: support@backengine.ai. BackEngine may also provide Customer with certain implementation, integration and/or other professional services (the “Implementation Services”). The scope, timeline and tasks of the parties with respect to such Implementation Services shall be as specified in an Order Form or as otherwise mutually agreed upon by the parties in writing.

3.5.Feedback.  To the extent Customer and/or any Authorized User provides any suggestions and feedback to BackEngine regarding the functioning, features, and other characteristics of any BackEngine Property (as defined below), or any part or component thereof, or other materials or services provided or made available by BackEngine hereunder (“Feedback”), Customer hereby grants BackEngine a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under Customer’s and its licensors’ intellectual property rights to use and exploit such Feedback in any manner and for any purpose.

3.6.Changes and Modifications.  BackEngine reserves the rights to either temporarily or permanently modify, suspend or discontinue the BackEngine Service (or any part thereof).  BackEngine shall have no liability to Customer or any other person or entity for any modification, suspension or discontinuation of the BackEngine Service.

3.7.Additional Terms.  When using particular services, features, and/or materials through or in connection with the BackEngine Service, additional terms and conditions or other operating rules, policies and procedures may be applicable to, and govern, the use of such services, features, and/or materials, in addition to those in this Agreement (collectively, the “Additional Terms”).  Customer agrees to comply with all such Additional Terms applicable to its use of the BackEngine Service.  All such Additional Terms are hereby incorporated into and made a part of this Agreement by reference.  In the event the provisions of any Additional Terms conflict with this Agreement, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.

3.8.BackEngine Proprietary Rights.  Subject to your rights in and to Customer Data, BackEngine or its licensors retain all right, title and interest in and to the BackEngine Service, including, all materials, graphics, user and visual interfaces, images, code (including source code or object code), products, applications, and text, embodied in, or comprising the BackEngine Service, as well as the design, structure, selection, coordination, expression, “look and feel” and arrangement of the BackEngine Service, the Usage Data, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the BackEngine Service, and any and all modifications, updates, enhancements and improvements thereto, and all intellectual property and proprietary rights, embodied in, or otherwise applicable to any of the foregoing (collectively, “BackEngine Property”).  There are no implied rights or licenses in this Agreement and all rights and licenses not expressly granted in this Agreement are expressly reserved by BackEngine.

4.THIRD PARTY PRODUCT AND SERVICES. The BackEngine Service may contain links to, or otherwise allow Customer to connect to and/or use certain third party products, data, services, websites, applications, software, scripts and/or APIs (all of the foregoing, collectively “Third Party Products and Services”). Third Party Products and Services are not owned, controlled, or operated by BackEngine and are subject to separate terms and conditions of the applicable third party provider. If Customer decides to access and use any Third Party Product and Services, such use is and shall be governed solely by the terms and conditions for such Third Party Products and Services.  BackEngine does not endorse, is not responsible for, and makes no representations as to such Third Party Product and Services, their content or the manner in which they handle, secure, protect or use Customer’s data. BackEngine is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s access or use of any such Third Party Products and Services, or Customer’s reliance on the privacy practices or other policies of such Third Party Products and Services.  BACKENGINE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS AND SERVICES, AND BACKENGINE WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND THE THIRD PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS AND SERVICES.

5.FEES.  BackEngine does not currently charge any fees for the access and/or use of the BackEngine Service; provided that, BackEngine reserves the right, upon prior notice to you and subject to a new Order Form setting forth the applicable fees, to charge fees for the BackEngine Service and/or to change, update, or modify BackEngine’s pricing.

6.TERMINATION

6.1.Termination

(a)Customer may terminate this Agreement and its Account, at any time, by submitting its request to BackEngine by contacting us at: support@backengine.ai.

(b)If BackEngine, in good faith, believes that Customer and/or any Authorized User has used the BackEngine Service (or any part thereof) in violation of this Agreement, BackEngine may, in its discretion, (i) suspend or terminate Customer’s and/or any Authorized User’s right to access or use the BackEngine Service (or any part thereof), with or without notice, and/or (ii) terminate this Agreement with respect to Customer immediately upon written notice.

6.2.Effect of Termination.  Upon termination of this Agreement for any reason Customer’s and its Authorized Users’ right to access and use the BackEngine Service will automatically terminate, and Customer will cease and ensure all Authorized Users cease all access and use of the BackEngine Service and related Documentation.  Any provision that by its nature or express terms should survive will survive the termination or expiration of this Agreement.

7.CONFIDENTIALITY. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain proprietary and non-public information regarding the Disclosing Party’s products, services, and business (collectively, “Confidential Information”). Without limiting the foregoing, Confidential Information shall include: (a) with respect to BackEngine: the Documentation, Feedback, and any non-public technical and business information regarding the BackEngine Service, non-public aspects of the BackEngine Service (or any part thereof), and all materials and information disclosed under this Agreement that are marked “confidential” by BackEngine or that Customer knows or should have known, under the circumstances, are considered confidential by BackEngine; and (b) with respect to Customer: the Customer Data, and all materials and information disclosed under this Agreement that are marked “confidential” by Customer or that BackEngine knows or should have known, under the circumstances, are considered confidential by Customer. The Receiving Party agrees that it will not disclose to any third party or cause to be disclosed any of the Disclosing Party’s Confidential Information unless authorized in writing by the Disclosing Party, and shall refrain from using the Disclosing Party’s Confidential Information except to the extent necessary to perform its obligations or exercise its rights under this Agreement. Confidential Information does not include information that is: (i) publicly available through no fault of the Receiving Party; (ii) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party; (iii) disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or (iv) independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party without violating this Section to the extent that such Confidential Information is required to be disclosed by law or court order; provided, however, that the Receiving Party shall first give the Disclosing Party prompt notice of such order so that the Disclosing Party may take appropriate actions to protect its rights, including seeking a protective order or other appropriate remedy. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors, in each case under a duty of confidentiality except (x) as required by law, or (y) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality). Upon expiration or termination of this Agreement, the Receiving Party shall promptly return or destroy Confidential Information in its possession or control and, except as otherwise expressly provided in this Agreement or BackEngine’s Privacy Notice, will not make or retain any copies of such information, except that the Receiving Party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement or any applicable laws, rules or regulations. .

8.INDEMNIFICATION

8.1.Indemnification by BackEngine.  BackEngine shall defend and/or settle any third party claim, action or suit brought against Customer alleging that Customer’s use of the BackEngine Service as authorized herein infringes or misappropriates the intellectual property rights of any third party, and hold Customer harmless from any amounts finally awarded by or agreed to (and reasonably approved by BackEngine) in settlement of such claim.  If Customer’s use, or BackEngine reasonably believes Customer’s use, of the BackEngine Service (or any part thereof) is or may be enjoined, or if otherwise required by settlement or injunction, BackEngine may elect at its option to: (a) obtain a license for the affected portion of the BackEngine Service; (b)modify or replace the affected portion of the BackEngine Service, so as to avoid infringement, without materially degrading the functionality of the BackEngine Service; or (c)terminate or discontinue the BackEngine Service (or affected portion thereof).  Notwithstanding the foregoing, BackEngine will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim: (i) based upon any modification of the BackEngine Service (or any part thereof) by any person other than BackEngine or its authorized representatives, (ii) based upon the use, operation, or combination of the BackEngine Service (or any part thereof) with software programs, data, equipment, materials or business processes not provided by BackEngine (including, but not limited to, Third Party Products and Services), if such claim would not have arisen but for such use, operation or combination, and/or (iii) any Beta Version, or any free, trial or promotional use of the BackEngine Service.  THIS SECTION 8.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BACKENGINE’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT AND/OR MISAPPROPRIATION.

8.2.Indemnification by Customer.  Customer shall indemnify, defend, and hold BackEngine and its parent, affiliates, and subsidiaries, and its and their respective, officers, directors, employees, contractors, representatives, licensors, and agents harmless from and against any and all liability, losses, claims, actions, suits, damages, demands, and expenses (including reasonable attorneys’ fees) of any kind, arising out of or related to Customer’s or its Authorized Users’: (a) breach of this Agreement or any representation, warranty, or agreements referenced herein; (b) violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; (c) breach or violation of any terms and conditions, policies, orders, or other agreements and/or guidelines applicable to any third party AI Features or any Third Party Products and Services; or (d) violation of any applicable law, rule or regulation (including, any Applicable Data Laws).

8.3.Procedure.  The party to be indemnified party shall (a) promptly notify the indemnifying party in writing of any claim asserted against the indemnified party, (b) give the indemnifying party sole control of the defense thereof, and, (c) at the indemnifying party’s reasonable request and expense, cooperate and assist in such defense.  Under no circumstances shall the indemnifying party enter into any settlement that involves an admission of liability, negligence or other culpability of the indemnified party or requires the indemnified party to contribute to the settlement without the indemnified party’s prior written consent.  The indemnified party may participate and retain its own counsel at its own expense.

9.DISCLAIMERS.  THE BACKENGINE SERVICE, AI FEATURES, SUPPORT, IMPLEMENTATION SERVICES, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY BACKENGINE HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND.  BACKENGINE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.  BACKENGINE DOES NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE BACKENGINE SERVICE (OR ANY PART THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY AI FEATURES), SUPPORT, IMPLEMENTATION SERVICES, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY BACKENGINE: (A) WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH CUSTOMER’S OR ANY AUTHORIZED USER’S NETWORK, COMPUTER, OR ANY THIRD PARTY PRODUCTS AND SERVICES; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE.

10.LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACH OF SECTION 2.6 (SECURITY) OR SECTION 7 (CONFIDENTIALITY), OR YOUR OBLIGATIONS UNDER SECTION 3.3 (PROHIBITED USES), OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (COLLECTIVELY, “EXCLUDED CLAIMS”), IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION: (A) IN THE AGGREGATE, FOR ANY AMOUNTS GREATER THAN THE FEES PAID OR PAYABLE BY CUSTOMER TO BACKENGINE UNDER THE APPLICABLE ORDER FORM FOR THE BACKENGINE SERVICE GIVING RISE TO THE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE CAUSE OF ACTION, OR, WITH RESPECT TO ANY FREE, TRIAL, PROMOTIONAL, OR BETA VERSION, $100.00 (THE “STANDARD CAP”); (B) WITH RESPECT TO ANY BREACH OF SECTION 2.6 (SECURITY) OR SECTION 7 (CONFIDENTIALITY) AS IT RELATES TO CUSTOMER DATA OR BACKENGINE’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN THE AGGREGATE, FOR ANY AMOUNTS GREATER THAN 2X THE STANDARD CAP; (C) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (D) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; OR (E) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.  THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  THE PARTIES AGREE THAT THIS SECTION 10 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT BACKENGINE WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.  THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  BACKENGINE DISCLAIMS ALL LIABILITY OF ANY KIND WITH RESPECT TO BACKENGINE’S LICENSORS AND SUPPLIERS.  THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF BACKENGINE’S SUPPLIERS.

11.JURISDICTIONAL ISSUES.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES WITH RESPECT TO CONSUMERS (I.E., A PERSON ACQUIRING GOODS OTHER THAN IN THE COURSE OF A BUSINESS, IN SUCH STATES OR JURISDICTIONS, THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTIONS 9 AND 10 SHALL APPLY TO A CONSUMER ONLY TO THE EXTENT SUCH LIMITATIONS OR EXCLUSIONS AND REMEDIES ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE SUCH CONSUMER IS LOCATED.

12.AVAILABILITY OF THE SERVICE.  Information describing the BackEngine Service is accessible worldwide but this does not mean is, or certain portions thereof, and/or BackEngine Property, are or will be available in Customer’s country. BackEngine may restrict access to the BackEngine Service, or portions thereof, and/or any BackEngine Property, in certain countries in its sole discretion. It is Customer’s responsibility to make sure the use of the BackEngine Service is legal in Customer’s country of residence.

13.GOVERNMENT RIGHTS.  The BackEngine Service provided under this Agreement is a commercial computer software program developed solely at private expense.  As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to Customer), any software underlying the BackEngine Service is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.”  Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to Customer), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement.

14.MODIFICATIONS TO THIS AGREEMENT.  BackEngine reserves the right to update or modify this Agreement at any time.  The revised Agreement will be posted at http://backengine.ai/support.  Except as stated below with respect to material changes, all updates and modifications to this Agreement will be effective from the day they are posted, as indicated by the “Last Updated” date set forth above.  If BackEngine makes any material changes to this Agreement, BackEngine will provide reasonable prior notice to Customer of these changes by sending a notification to the email address BackEngine has on file for Customer, or, if BackEngine does not have an email address on file, by posting a prominent notice on BackEngine’s website and/or through the user interface of the BackEngine Service.  Material changes to this Agreement will become effective on the date set forth in the notice.  It is Customer’s responsibility to regularly visit and review this Agreement for updates, changes and modification.  If Customer does not agree to any updates or modifications to this Agreement, Customer must terminate its Account as set forth in Section 6.1(a) above and cease all use and access of the BackEngine Service.  Customer’s and/or any of its Authorized Users’ continued access or use of the BackEngine Service (or any part thereof) after the applicable effective date of the revised Agreement will constitute Customer’s acceptance of the revised Agreement.

15.GOVERNING LAW; VENUE.  This Agreement shall be governed by, construed and enforced in accordance with, the laws of the State of California, without reference to its choice of law rules to the contrary.  This Agreement (including without limitation, the BackEngine Service and any services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. Customer and BackEngine agree that any judicial proceeding arising out of or relating to this Agreement will be brought exclusively in the federal or state courts located in Los Angeles County, California, United States of America, and the parties hereby consent to the personal jurisdiction and exclusive venue in such courts. Notwithstanding anything in this Agreement to the contrary, in the event of any actual or alleged violation of BackEngine’s intellectual property or confidentiality rights, BackEngine may seek injunctive or other appropriate relief in any court with competent jurisdiction in any country

16.GENERAL

16.1.Severability; Waiver.  If any provision of this Agreement is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, will not be deemed to be a waiver of the future enforcement of such provision or right, and no waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right herein. 

16.2.Notices.  All notices permitted or required to be sent to BackEngine under this Agreement shall be in writing and sent by personal delivery, email (where permitted), or by certified or registered mail, return receipt requested, and shall be deemed delivered (a) upon personal delivery, (b) with respect to certified or registered mail, the later to occur of receipt or refusal of delivery, or five (5) business days after being deposited in the mail as required above, and (c) upon confirmation of transmission if sent by email.  Notices shall be sent to BackEngine via email to support@backengine.ai.  Except as otherwise set forth herein, all notices to Customer hereunder shall be sent via email to Customer’s email address specified in the Account.

16.3.Assignment.  Customer may not assign its rights or obligations under this Agreement without BackEngine’s prior written consent. Any attempted assignment or transfer of this Agreement by Customer in contravention of the foregoing shall be null and void.  BackEngine may freely assign or transfer this Agreement (including, but any of its rights or obligations under this Agreement) and may delegate the performance of any services hereunder to its affiliates, employees, contractors, and subcontractors, without Customer’s consent.  This Agreement shall be binding on the parties and their respective successors and permitted assigns.

16.4.Third Party Rights.  This Agreement is not intended to grant rights to anyone except Customer and BackEngine, and in no event shall this Agreement create any third party beneficiary rights, nor be interpreted or construed to confer any rights or remedies on or to any third parties.

16.5.Entire Agreement; Construction.  This Agreement, together with any and all Order Forms entered into hereunder, Additional Terms, and any other policies or terms and condition referenced herein, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, agreements, communications, or purchase orders between the parties, whether written or oral, relating to the subject matter hereof.  Section headings are provided solely for reference purposes and in no way define, limit, interpret, or describe the scope or extent of such section or in any way affect this Agreement.  When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.

QUESTIONS.  Please feel free to contact BackEngine at support@backengine.ai if you have any questions about this Agreement.