Blue Mountain RAM Cloud Subscription Agreement
BLUE MOUNTAIN QUALITY RESOURCES, LLC
BLUE MOUNTAIN REGULATORY ASSET MANAGER –
CLOUD HOSTED SOFTWARE AS A SERVICE SUBSCRIPTION AGREEMENT
Effective: August 18, 2023
PLEASE READ CAREFULLY: BY CREATING AN ACCOUNT, LOGGING ON TO THE SYSTEM, OR BY UTILIZING THE BMQR SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
This Software as a Service Subscription Agreement (the “Agreement”) governs your use of the System (as defined below) and any related services provided by Blue Mountain Quality Resources, LLC (“BMQR”), a Pennsylvania Limited Liability Company, having its principal place of business at 475 Rolling Ridge Drive #200, State College, Pennsylvania 16801.
Section 1. Definitions
“Commencement Date” is the date of commencement of the implementation and corresponds to the date of the kickoff meeting or no later than four (4) weeks after the Effective Date, whichever is sooner, unless a different date is specifically designated on the registration form.
“Customer” is the entity identified on Account Registration that accompanies this Agreement.
“Customer Data” means any of Customer’s information, documents, or electronic files that are provided to BMQR for uploading or storage in the System, either as part of the initial migration of data into the System or as part of the normal operation of the System subsequent to the initial startup. Customer Data may include personal information or personally identifiable information as defined by the European
General Data Protection Regulations (“GDPR”) or other governmental regulatory entities. In such case, Customer is the Data Owner and represents that all required consents have been obtained to transfer the Customer Data to BMQR, and BMQR is the Data Processor.
“Documentation” means the documentation and specifications regarding the System provided by BMQR.
“Effective Date” is the date on which the Customer’s subscription to the System starts. The Effective Date is the beginning of the contract term and is specified on Account Registration.
“Error” means any reproducible material failure of the System to function in accordance with its Documentation.
“Implementation Window” is the period of time beginning at the Commencement Date and ending sixteen (16) sequential weeks later on installations without the purchased data migration package and twenty-four (24) sequential weeks later with the purchase of either the basic data import package or standard data import package, unless a different length of time is specified on the registration form.
“Update” means any patch, bug fix, or hot fix applied to the System. “Update” also includes any platform updates (ex. Operating System, IIS, SQL Server, etc.), or a change to the BMRAM code base meant to improve performance and/or functionality.
“Maintenance Window” describes both the Start Time and the allotted time necessary to apply an Update to the System. Unless the Update is otherwise deemed an emergency by BMQR, Maintenance Windows shall be communicated to the Customer a minimum of 72 hours prior to the Start Time.
“Start Time” means both date and time.
“Account Registration” is the form executed by the Customer listing the specific System to which Customer agrees to subscribe, the term of the subscription, the price and payment terms for the subscription and other information about the System to which the Customer subscribes.
“Requester” means a named individual to whom Customer has granted limited access to use the System on Customer’s behalf. All Requesters must be registered within the System. The number of Requesters who may access the System is limited as set forth on Account Registration.
“Service Administrator” means the person(s) that Customer designate(s) to purchase on behalf of Customer usage of the System, authorize Users and Requesters under the Agreement, create accounts for additional Users and Requesters, and otherwise administer Customer’s use of the System.
“Support” means the ongoing services by BMQR to support Customer’s use of the System as defined in Section 4 below.
“System” means the hosted software platform and service for which Customer has paid, including any Updates. The System is specified in Account Registration.
“Production Environment” means the portion of the System used to host the primary instance of the System and Customer Data. The Production Environment is often referred to as the live environment.
“Non-Production Environment” means the portion of the System used to host a non-primary instance of the System and Customer Data. A Non-Production Environment may only be used for testing, training, development, or validation activities.
“Named User” means a named individual to whom Customer has granted access to use the System on
Customer’s behalf, regardless of whether or not the User actually accesses the System. Named Users have full access to the System provided they have been assigned a user log on account. Account Registration specifies whether the System to which Customer has subscribed is for Named Users or Concurrent Users.
“Concurrent User” means a User who is accessing the System at the same time as other User(s). The number of Concurrent Users who may access the System at the same time may not exceed the number of Concurrent User licenses Customer has purchased from BMQR as specified on Account Registration.
“User” may be either a Named User or a Concurrent User.
Section 2. Use Rights
2.1(a) Use Rights for Production Environment. During the term set forth on Account Registration and subject to the terms of this Agreement, BMQR grants to Customer a nonexclusive, royalty-free, worldwide, non-transferable, non-sublicensable right to permit Customer’s Users and Requesters to access and use the Production Environment of the System defined in Account Registration for Customer’s business purposes. The use right in the preceding sentence is limited to use: i) by the number of Named Users or Concurrent Users for which Customer has paid and for which user log-on accounts have been assigned, and ii) the One Hundred (100) Requester licenses provided on initial purchase. Customer may have multiple Named Users, Concurrent Users, and Requesters, but only the authorized number of Named Users or Concurrent Users may access the System concurrently at any time. Customer acknowledges that the number of Requesters accessing the System may not exceed One Hundred (100) without additional payment to BMQR as specified in Section 5.1, below. The use rights are non-transferable, except in the event of a voluntary transfer of substantially all assets by Customer to a transferee which executes BMQR’s form of agreement agreeing to be bound by all of the terms and conditions of this Agreement. All rights in and to the System not expressly granted herein are reserved to BMQR.
2.1(b) Use Rights for Non-Production Environment. If no Non-Production Environment is specified on Account Registration, Customer does not have access to any Non-Production Environment of the System. If a Non-Production Environment is specified on Account Registration, during the term set forth on Account Registration and subject to the terms of this Agreement, BMQR grants to Customer a nonexclusive, royalty-free, worldwide, non-transferable, non-sublicensable right to permit Customer’s Named Users, Concurrent Users, and Requesters to access and use the Non-Production Environment of
the System as specified on Account Registration for Customer’s business purposes. The use right in the preceding sentence is limited to use by the number of Named Users or Concurrent Users for which Customer has paid and for which appropriate licenses have been assigned. Customer acknowledges that the Non-Production Environment is not to be used for true data management and/or reporting purposes. Rather, the Non-Production Environment is to be used for testing configurations of the System before moving any configuration(s) to the Production Environment, testing Major Updates to the System before moving those Major Updates to the Production Environment, and for training purposes so that
Customer’s Users and Requesters may manipulate data without impacting the integrity of the data in the Production Environment. The use rights are non-transferable, except in the event of a voluntary transfer of substantially all assets by Customer to a transferee which executes BMQR’s form of agreement agreeing to be bound by all of the terms and conditions of this Agreement. All rights in and to the System not expressly granted herein are reserved to BMQR. Customer acknowledges that the database utilized by the Non-Production Environment may periodically be replaced by the database utilized in the Production Environment, but the database being utilized by the Non-Production Environment is not the true representation of the Customer Data.
2.2 Use Restrictions. Customer shall not, directly, indirectly, alone, or with another party, (i) copy,
disassemble, reverse engineer, or decompile the System; (ii) modify, create derivative works based upon, or translate the System; (iii) license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the System in any form to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder. Customer acknowledges and agrees that BMQR shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the System and any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any of Customer’s Users relating to the System. Customer agrees that Customer does not acquire any license to BMQR’s software programs in excess of the scope and/or duration of the term set forth in account Registration. Upon the end of the subscription term without renewal, Customer’s right to access or use the System shall terminate. Customer further agrees that Customer will not use or access the System in order to build or support, and/or assist any third party in building or supporting,products or services competitive with BMQR’s products or services.
2.3 System Administrator. User Access. Customer shall designate one or more System Administrators. System Administrators shall be responsible for managing User access and Requester
access, including adding and subtracting Users and Requesters. Customer’s System Administrator shall be responsible to prevent the number of Users from exceeding the authorized number of Users as set forth on Account Registration. Customer shall keep BMQR informed of the identity of each System Administrator through procedures established by BMQR for this purpose. The System Administrator shall ensure that multiple Users do not share a password or user name. Customer acknowledges and agrees that it is prohibited from sharing passwords and/or user names with unauthorized users.
2.4 Security. Customer is solely responsible for maintaining the confidentiality and security of all user names and passwords granted to it, for the security of its information systems used to access the System, and for its Users’ compliance with the terms of this Agreement. BMQR will act as though any electronic communications it receives under Customer’s user names have been sent by Customer. Customer will immediately notify BMQR if it becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords or user names. BMQR has the right at any time to terminate or suspend access to any User or to Customer if BMQR believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the System or BMQR’s network.
2.5 Access. BMQR reserves the right to provide the System from locations, and through the use of subcontractors, worldwide. BMQR further reserves the right to disable Customer’s access to the System if, in BMQR’s sole discretion, such action is necessary in order to protect the integrity and operation of the System or any third party’s rights to access and use the System.
Section 3. Intellectual Property
3.1 BMQR Programs. BMQR retains all ownership and intellectual property rights to the System, its services, and any BMQR programs or software made available to Customer in the System. Except as expressly provided in this Agreement, Customer may not copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, including but not limited to, electronic, mechanical, photocopying or recording, the System or any portion thereof.
3.2 Customer Data. Customer owns all right, title and interest in the Customer Data. Customer hereby grants to BMQR, a non-exclusive, non-transferable (unless subject to legal process as set forth in Section 7.4, below), non–sublicensable right and license to use, copy, transmit, modify and display the Customer Data solely for purposes of Customer’s use of the System. BMQR shall not use the Customer Data except to improve the System and as necessary to perform BMQR’s obligations hereunder. To the extent applicable under governing laws, Customer is the Data Owner and BMQR is the Data Processor.
3.3 No Sensitive Data; Customer Responsibilities. Customer acknowledges that the System is not intended for use with protected health information under HIPAA, credit card numbers, financial account numbers, or other similarly- sensitive personal information, and that Customer assumes all risk arising from use of any such sensitive information with the System, including the risk of any inadvertent disclosure or unauthorized access thereto. Customer is responsible for ensuring that Customer and
Customer’s Users’ use of the System is in compliance with all applicable laws and governmental regulations and Customer acknowledges that Customer assumes all risk arising from any such use that is not compliant with applicable laws and regulations. To the extent any Customer Data includes personal information or personally identifiable information, Customer represents that all required consents to include such information in Customer Data have been obtained, and in relation to BMQR, the Customer is the Data Owner and BMQR is the Data Processor. In providing the System to Customer, BMQR will comply with BMQR’s confidentiality obligations as set forth in this Agreement.
Section 4. Support
4.1 Support Services Generally. Subject to the terms of this Agreement, BMQR shall use commercially reasonable efforts to make the System available to Customer.
4.2 Updates. BMQR retains the right to make Updates to the Customer’s System. An emergency Update may be applied to the Customer’s System without advanced notification. BMQR shall solely be responsible for determining if an Update is an emergency Update. The Customer shall be notified in advance for non-emergency Updates. For non-emergency Updates, BMQR will notify the Customer of the Start Time of the Maintenance Window at least 72 hours in advance of applying the Update. The Customer never has the right to refuse the Update.
4.3 Support Options and Procedures. BMQR shall provide general support to the Customer as set forth in Customer support documentation made available by BMQR.
4.4 Error Correction. BMQR shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during BMQR’s normal business hours. Customer shall provide such access, information, and support as BMQR may reasonably require in the process of resolving any Error. This paragraph is Customer’s sole and exclusive remedy for Errors.
4.5 Support Exclusions. BMQR is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by: (i) the acts, omissions,
negligence or willful misconduct of Customer or Customer’s Users, including any unauthorized modifications of the System or its operating environment; (ii) any failure or defect of Customer’s or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other
causes outside of BMQR’s firewall); (iii) Customer’s use of the System other than in accordance with the System’s Documentation or intended purpose; or (iv) a Force Majeure Event.
4.6 Support Fees. Should Customer desire to receive support from BMQR in excess of BMQR’s normal level of support for the System, including but not limited to implementation services, configuration changes, report modification, validation and training, Customer and BMQR may enter into a separate support agreement specifying the nature of support, time frames for responses to support requests, and charges and fees to be paid by Customer for such additional support.
4.7 Limitation of Remedies. Correction of Errors and subscription extension as described in Section
9.1 of this Agreement are Customer’s sole remedies for any Errors in the System.
4.8 Implementation Services. Initial implementation includes implementation services of instance deployment, setup, training, report services and, if purchased, data migration services. These implementation services shall be used within the Implementation Window. Any additional implementation services performed beyond the earlier of: 1) completion of the Implementation Window or 2) the expected services listed and outlined in a Statement of Work will be billed to the client on a time and materials basis at then current rates.
Section 5. Financial Terms
5.1 Fees. In return for the services and use rights provided by BMQR to Customer hereunder, Customer shall pay to BMQR the subscription fees and other fees in the amount set forth on Account Registration that accompanies this Agreement. Customer also agrees to pay BMQR for any additional Requesters that access the System over the One Hundred (100) included with initial purchase. BMQR will invoice Customer for such additional Requesters in block(s) of one-hundred (100) Requesters at the then current rate annually per block as overage occurs for the total number of Requesters. Such amount shall be pro-rated on a monthly basis to Customer’s Effective or Renewal Date. Even if the number of Requesters is reduced after BMQR charges Customer for the additional block, the annual payment per block of 100 Requesters shall be an ongoing charge for access to the System for the duration of the Agreement term.
5.2 Payment Terms. BMQR shall invoice Customer yearly in advance for all recurring charges in accordance with Account Registration. Additional Site and User blocks purchased mid year will be prorated at the beginning of the current month. Customer shall pay all BMQR invoices within 30 days of the date of Customer’s receipt of the invoice. If Customer is delinquent in payment of any portion of an invoice, BMQR may, in addition to any other remedies it may have, including termination, suspend access to the System and/or provision of all services to Customer.
5.3 Taxes. Customer shall pay or shall reimburse BMQR for all sales taxes and other taxes, however characterized by the taxing authority, based upon the subscription fees or other charges under this Agreement or otherwise incurred on account of Customer’s use of the System, except for any taxes based upon BMQR’s net income or gross receipts or for any franchise or excise taxes owed by BMQR. If Customer is a tax-exempt organization, then, upon BMQR’s receipt of proof of such status, BMQR shall not charge Customer for any taxes from which Customer is exempt.
5.4 Yearly Price Revisions. Except as otherwise specified in an Order Form or SOW, the fees for subsequent annual subscription periods will be revised by a maximum of seven percent (7.0%) increase over the annual fees charged during the previous annual subscription period, for the applicable Services.
Section 6. Term and Termination
6.1 Term. The term of this Agreement commences on the Effective Date hereof and shall extend for the term specified in Account Registration. If Customer has selected an annual pricing plan, then the term will continue until the one year anniversary of the Effective Date, and will automatically renew for additional terms of one year each at the current list price unless either party gives the other party written notice of its intention not to renew at least sixty (60) days in advance of expiration of the then current term. If Customer has elected a multi-year pricing plan, this Agreement will continue until the end of the multi-year subscription as specified on Account Registration. In the event no other action is taken in order to renew or terminate the subscription, the term of a multi-year subscription shall automatically renew for additional terms of one year each at the current list price unless either party gives the other party written notice of its intention not to renew at least sixty (60) days in advance of expiration of the then current term.
6.2 Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party: (i) if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within ten (10) days of written notice by the other party specifying the amounts owed; (ii) immediately upon any breach of any confidentiality obligations owed to such party by the other party;
(iii) if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the non–breaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within thirty (30) days, has failed to begin and continue to work diligently and in good faith to cure such breach); or (iv) upon the institution of bankruptcy or any insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement.
6.3 Obligations Upon Termination. Upon termination of this Agreement: (i) provided that Customer has paid all amounts owed to BMQR hereunder, BMQR shall, upon Customer’s request, and for a period of up to sixty (60) days following termination of this Agreement and the applicable subscription term, make available a back up copy of the Customer database for electronic download. The form and format of such data shall be in accordance with the Documentation on the BMQR website. Customer acknowledges and agrees that BMQR has no obligation to retain Customer Data and that Customer Data may be
irretrievably deleted ninety (90) days after the end of the subscription period; (ii) BMQR shall immediately terminate Customer’s ability to upload any Customer Data into the System; and (iii) except in the event of Customer’s termination pursuant to Section 6.2, Customer shall immediately pay BMQR any amounts payable to BMQR, including any deferred payments or payments originally to be made over time.
Section 7. Confidentiality
7.1 Confidential Information means any and all tangible and intangible information (whether written or otherwise recorded or oral) of a party that: (A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; or (B) the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation: (i) nonpublic
information relating to a party’s technology, customers, business plans, promotional and marketing
activities, finances and other business affairs; (ii) third- party information that Customer or BMQR is obligated to keep confidential; (iii) the material terms and conditions of this Agreement; and (iv) any nonpublic information relating to any activities conducted hereunder.
7.2 Exclusions. Notwithstanding the above, the term “Confidential Information” does not include any information that is either: readily discernible from publicly available products or literature; or approved for disclosure by prior written permission of an executive officer of the disclosing party.
7.3 Use of Confidential Information. Each party shall only use Confidential Information furnished to it hereunder in furtherance of the activities contemplated by this Agreement, and, except as authorized in this Agreement, it shall not disclose the Confidential Information to any other persons without the disclosing party’s express written authorization.
7.4 Required Disclosures. A receiving party may disclose Confidential Information of the disclosing party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) and uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.
7.5 Return of Information. Except as set forth otherwise in the specific provisions concerning Customer Data set forth in Section 7.4, above, if a disclosing party so requests at any time, the receiving party shall return promptly all copies, extracts, or other reproductions in whole or in part of the Confidential Information in its possession.
7.6 Survival. The parties hereto covenant and agree that this Section 7 will survive the expiration, termination, or cancellation of this Agreement for a period of five (5) years.
Section 8. Indemnification
8.1 Indemnification by BMQR. BMQR shall defend, indemnify and hold harmless Customer from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third- party claim, suit or proceeding that arises from Customer and/or the Customer’s Users’ use of the System in accordance with this Agreement that, to BMQR’s knowledge, infringes or misappropriates any patent, trade secret, trademark, or copyright rights of any third parties. BMQR will have no indemnity obligation to Customer if the alleged infringement or misappropriation is based on (i) any combination, operation, or use of the System with products, services, information, materials, technologies, business methods or processes not furnished by BMQR to the extent the infringement or misappropriation is based on such combination, operations or use; (ii) any modification (other than by BMQR) to the System to the extent the infringement or misappropriation is based on such modification; or (iii) the Customer’s failure to promptly begin to use any Update to the System that is provided by BMQR that would have eliminated the actual or alleged infringement or misappropriation.
8.2 Indemnification by Customer. Customer shall defend, indemnify and hold harmless BMQR from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third -party claim, suit or proceeding that arises from the Customer and/or the Customer’s Users’ use of the System (other than to the extent indemnified by BMQR for infringement as provided above).
8.3 Indemnification Process. The indemnified party shall promptly notify the indemnifying party in writing of any third party claim, stating the nature and basis of the third party claim, to the extent known. The indemnifying party shall have sole control over the defense and settlement of any third-party claim, provided that, within fifteen (15) days after receipt of the above-described notice, the indemnifying party notifies the indemnified party of its election to so assume full control. The foregoing notwithstanding, the indemnified party shall be entitled to participate in the defense of such third party claim and to employ counsel at its own expense to assist in the handling of such claim, except that the indemnified party’s legal expenses in exercising this right shall be deemed legal expenses subject to indemnification hereunder to the extent that (x) the indemnifying party fails or refuses to assume control over the defense of the third party claim within the time period set forth above; (y) the indemnified party deems it reasonably necessary to file an answer or take similar action to prevent the entry of a default judgment, temporary restraining order, or preliminary injunction against it; or (z) representation of both parties by the same counsel would, in the opinion of that counsel, constitute a conflict of interest. The indemnifying party shall not settle any such third party claim without the written consent of the indemnified party, except for a complete settlement requiring only the payment of money damages to be paid by the indemnifying party.
8.4 Sole Remedy. Indemnification pursuant to this Section is the parties’ sole remedy for any third party claim against the other party.
Section 9. Service Level Commitments, Disclaimers and Limitations
9.1 Service Level Commitments; Credits. BMQR warrants that the System will be accessible to the Customer’s authorized Users and Requesters 99.5% of the time in any given calendar year, excluding
Maintenance Windows. Notwithstanding the foregoing, BMQR does not guarantee internet connectivity or network availability between Customer and the BMQR hosting servers, as such availability can involve numerous third parties and is beyond the control of BMQR. BMQR will not be liable for nor provide any service credits hereunder for any downtime caused in whole or part by a third party data
center provider nor for any downtime that Customer experiences as a result of Customer or Customer’s Users’ own network connectivity failure, problems, or issues. If Customer experiences a System outage and is unable to access the System outside of a Maintenance Window, Customer must immediately
contact BMQR’s help desk, providing any/all necessary information that may assist BMQR in determining the cause of the outage. BMQR will determine in good faith whether the outage was within BMQR’s reasonable control. If BMQR determines that a timely reported outage was attributable to BMQR, then BMQR will credit Customer equitably in the form of a subscription extension for the
amount of downtime Customer experienced. In no event shall BMQR’s liability under this Agreement, for any reason, exceed: (i) 10% of all subscription fees paid to BMQR by Customer for access to the System during the twelve months immediately preceding the event giving rise to Customer’s claim, or (ii)
$10,000, whichever is the lesser amount. This, as well as Customer’s right to terminate the Agreement pursuant to Section 6.2, shall be Customer’s sole remedy, and BMQR’s sole liability, for BMQR’s failure to provide the guaranteed availability set forth in this Section.
9.2 Disclaimer of Warranties. EXCEPT FOR THE LIMITED SERVICE LEVEL COMMITMENTS SET FORTH IN THIS AGREEMENT, BMQR MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM, THE SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SYSTEM. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH REGARDING THE LIMITED SERVICE LEVEL COMMITMENTS, BMQR DISCLAIMS ANY WARRANTY THAT THE SYSTEM, THE SERVICES PROVIDED BY BMQR, OR THE OPERATION OF THE SYSTEM ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. BMQR MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, BMQR DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS REGARDING INTERPRETATION OF OR COMPLIANCE WITH GOVERNMENTAL REGULATIONS, INCLUDING BUT NOT LIMITED TO REGULATIONS IMPOSED BY THE UNITED STATE FOOD AND DRUG ADMINISTRATION, AND FURTHER DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS REGARDING GOOD MANUFACTURING PRACTICES, AND INTERNATIONAL REGULATORY COMPLIANCE. NEITHER BMQR NOR THE SYSTEM IS DESIGNED OR INTENDED TO PROVIDE ADVICE REGARDING COMPLIANCE WITH REGULATORY REQUIREMENTS OF ANY GOVERNMENTAL JURISDICTION OR ENTITY, AND SUCH IS DISCLAIMED BY BMQR.
9.3 Disclaimer of Consequential Damages. BMQR HAS NO LIABILITY WITH RESPECT TO THE SYSTEM, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF BMQR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.4 Limitations of Remedies and Liability. BMQR’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO A TOTAL AGGREGATE AMOUNT OF $10,000 OR, IN THE ALTERNATIVE, 10% OF ALL FEES PAID TO BMQR BY THE CUSTOMER IN RESPECT OF USER ACCESS FOR THE SYSTEM DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY, WHICHEVER IS THE LESSER AMOUNT.
9.5 TO THE EXTENT NOT PROHIBITED BY LAW, THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, DATA LOSS, DATA RETENTION, NETWORKS OR ENVIRONMENTS. CUSTOMER ACKNOWLEDGES THAT BMQR DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS
FACILITIES, INCLUDING THE INTERNET. BMQR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM PROBLEMS WITH COMMUNICATION FACILITIES.
Section 10. Export
10.1 Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the System. Customer agrees that such export control laws govern Customer’s use of the System (including technical data) and Customer agrees to comply with all such export control laws. Customer agrees that the System will not be used by Customer in order to export, directly or indirectly, any data, information, software programs, and/or materials in violation of any export control laws, or will be used for any purposes prohibited by such laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of weapons technology.
Section 11. General
11.1 Notices. Notices regarding this Agreement to BMQR shall be in writing and sent by first class mail or overnight courier at the address provided at that time on BMQR’s website. BMQR may give notice by means of posting notice on the System, by electronic mail to Customer’s e-mail address on record with BMQR, or by written communication sent by first class mail or overnight courier to
Customer’s address on record in BMQR’s account information. All notices shall be deemed to have been given three days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or 12 hours after either sending by e-mail or posting on the System.
11.2 Force Majeure. “Force Majeure Event” means any act or event that (a) prevents a party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other party’s (the “Performing Party”) obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially
reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any
conditions precedent to the other party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event and for as long as the Force Majeure Event continues. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party shall immediately resume performance under this
Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
11.3 Assignment. BMQR may assign any of its rights or obligations under this Agreement at any time; provided, however, that (A) any assignee of BMQR agrees to abide by all terms and conditions of this Agreement, and (B) BMQR shall not assign the rights granted to Customer Data in Section 3.2 except in connection with the sale (whether by merger, asset sale, equity sale or otherwise) of BMQR. In the event of a sale of substantially all of Customer’s assets by merger, asset sale, equity sale, or other change of
control transaction, Customer may assign this Agreement to Customer’s new owner provided the new owner agrees to abide by all obligations of this Agreement and the new owner is not a competitor of BMQR. Otherwise, Customer shall not assign any of its rights or obligations under this Agreement except with the prior written approval of BMQR, which shall not be unreasonably withheld. Any purported assignment of rights in violation of this Section is void, and will constitute grounds for termination of this Agreement pursuant to Section 6.2
11.4 Governing Law; Venue. The laws of the State of Delaware (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction within Delaware, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court having jurisdiction in Delaware; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
11.5 Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the unsuccessful party shall pay to the
successful party its reasonable attorneys’ fees and other costs incurred in that action or proceeding, as determined by the tribunal, in addition to any other relief to which the successful party may be entitled.
11.6 Entire Agreement. This Agreement and Account Registration accompanying this Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than any that are expressly stated in this Agreement.
11.7 Amendments. The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
11.8 Survival of Certain Provisions. Each party hereto covenants and agrees that the provisions in this Agreement related to limitation of liability, confidentiality, infringement indemnity, and payment, in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.