Most Recent Update: January 1, 2021
TERMS OF SERVICE
IMPORTANT: THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN
YOU AND 86BORDERS APPLICABLE TO YOUR PURCHASE AND/OR USE OF 86BORDERS’ PRODUCTS
AND/OR THE 86BORDERS PLATFORM. BY CLICKING ON "I AGREE" OR OTHERWISE
REGISTERING OR SIGNING ON TO USE OUR SERVICES, YOU AGREE TO BE BOUND BY THE
TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS
AGREEMENT, CLICK ON THE "CANCEL" BUTTON AND YOU MAY NOT USE ANY
86BORDERS PRODUCT NOR ACCESS THE 86BORDERS PLATFORM.
These Terms of Service constitute an agreement (this “Agreement”)
by and between 86Borders LLC (“86Borders”) and the
corporation, LLC, partnership, sole proprietorship, or other business entity
executing this Agreement (“Customer”). This Agreement is effective as of
the date Customer clicks “Accepted and Agreed To” (the “Effective Date”).
Customer’s use of and 86Borders’ provision of the 86Borders Platform and other
86Borders Products (as defined below) are governed by this Agreement.
CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS
IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS
BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON
CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER
TO THESE TERMS AND CONDITIONS.
EACH USER, BY CLICKING ON “I AGREE” OR OTHERWISE REGISTERING OR
SIGNING ON TO USE OUR SERVICES, ACKNOWLEDGES AND AGREES TO COMPLY WITH THE
TERMS OF THIS AGREEMENT AND ALL OF CUSTOMER’S OBLIGATIONS UNDER THIS AGREEMENT.
1. DEFINITIONS. The
following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “Affiliate”
means, with respect to any Person, any other Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by or is under
common control with such Person, and the term “control” (including the terms
“controlled by” and “under common control with”) means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through ownership of voting securities, by
contract or otherwise.
1.2. “Aggregate
Data” refers to Customer Data with the following removed: personally identifiable information and the names and
addresses of Customer and any of its Users or customers.
1.3. “AUP”
means 86Borders’ acceptable use policy currently posted at www.86borders.com.
1.4. “Business
Associate Agreement” means a Business Associate Agreement between Customer
and 86Borders for purposes of complying with HIPAA.
1.5. “Customer
App” means software owned or controlled by Customer that has been designed
to work with the Platform and which software has been developed by 86Borders
(or one of its Affiliates) for Customer or approved by 86Borders for use on the
86Borders Platform.
1.6. “Customer
Data” means data in electronic
form input or collected through the Platform by or from Customer, including
without limitation by Customer’s Users.
1.7. “Documentation”
means materials and/or manuals and instructions provided by 86Borders which are
related to use of the Platform and/or 86Borders Products, as the same may be
amended, replaced and/or supplemented from time to time.
1.8. “Fee”
means the cost for access to any 86Borders Product and access to and use of the
Platform for the service and/or period paid for.
1.9. "HIPAA"
means the Health Insurance Portability and Accountability Act of 1996 as it may
be amended from time to time, and any regulations issued under it.
1.10. “Feedback” means any Customer
suggestion, comment or idea, in any medium, for
improving, correcting or otherwise modifying the Platform or any of 86Borders
Products.
1.11. “Intellectual Property Rights”
means any and all intellectual property and intellectual property rights,
whether registered or not, including any applications therefore, such as,
without limitation, (i) patents (all patents and applications
therefor throughout the world, including but not limited to, all reissues,
divisions, renewals, extensions, provisionals,
continuations and continuations-in-part thereof), (ii) copyrights, (iii)
copyrights in software, (iv) database rights, (v) design rights,
(vi) semiconductor products, (vii) topographies and mask works, (viii)
industrial designs, (ix) utility models, (x) trademarks, (xi) trade
secrets and know-how, and (xii) other similar or equivalent forms of
intellectual property rights protection, recognized now or in the future under
any applicable law in any country worldwide.
1.12. “Order” means an order for
access to the Platform for purposes of using an 86Borders Product or Customer
App for the service and/or time period identified when the purchase
was made or access was requested. 86Borders reserves
the right to reject any Order at any time for any reason whatsoever.
1.13. “Person” means
an individual, corporation, partnership, association, limited liability
company, trust, joint venture, unincorporated organization, other legal entity or group (as defined in Section 13(d)(3) of the
Securities and Exchange Act of 1934, as amended).
1.14. “Personal Data” means any
information, including but not limited to PHI, relating to an identified or
identifiable individual that has been provided to 86Borders by Customer to
enable 86Borders to Process such information in connection with any Order or
Services Agreement.
1.15. “PHI” means protected health
information as defined by HIPAA.
1.16. “Platform” means the
86Borders’ integrated mobile and web-based platform for managing communications
among individual users and groups of users including video, chat, SMS, voice,
screen sharing, and location-based information, which platform is accessible on
multiple devices, and any user interfaces and related technology or materials
that 86Borders makes available to Customer during the term of this Agreement.
1.17. “Privacy Policy” means 86Borders’ privacy
policy, currently posted at www.86borders.com.
1.18. “Processing or Process” means
any operation or set of operations which is performed upon Personal Data,
including the collection, recording, organization, storage, adaptation or
alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination,
blocking, erasure, or destruction of Personal Data.
1.19. “Product” means any web application or other
application, product or service owned or controlled by 86Borders and made
available for use by Customer on the 86Borders Platform.
1.20. “Services” means the services
provided by 86Borders to Customer pursuant to an Order or Services Agreement
that allow Customer and its Users to access and use the Platform in accordance
with this Agreement.
1.21. “Services Agreement” means any
separate written agreement between 86Borders and Customer in respect of
Services for Customer’s access to and use of the Platform.
1.22. “Term” is defined in
Section 11.1 below.
1.23. “User” means any Person who
uses the Platform on Customer’s behalf or through Customer’s account or
passwords, whether authorized or not.
2. PLATFORM SERVICES.
2.1. Access and Use of the 86Borders
Platform. During
the Term, subject to the terms and conditions of this Agreement and any
applicable Order or Services Agreement, Customer may access and use the
Platform for purposes of utilizing 86Borders Products or Customer Apps, which
shall include: (i) the right to access and
use the Platform solely for purposes of utilizing 86Borders Products or
Customer Apps for the purposes for which intended; and (ii) the right to
access, use, process, transmit and display the output of the Platform and the
applicable 86Borders Product or Customer App for Customer’s and its authorized
Users’ lawful business purposes.
2.2. Customer
License Grant. Subject to the terms and conditions of this Agreement
and during the Term, Customer hereby grants to 86Borders a non-exclusive,
non-transferable, non-sublicensable, worldwide license during the Term to
access and use Customer Data and Customer Apps solely for purposes of
implementing, operating and maintaining the Platform in order to provide the
Services described in this Agreement, including but not limited to the
Processing of Customer Data and other information within Customer Apps or
86Borders Products purchased or used by Customer.
2.3. Restrictions on Use of the Platform. Except as expressly
provided for in this Agreement, nothing in this Agreement or any Order or
Services Agreement shall be construed as an implied grant to Customer of any
right to, and Customer shall not, and shall not permit any User or other third
party to: (i) access or use the Platform
except as expressly permitted under this Agreement, (ii) use or reproduce the
Platform or any part thereof in source code format; (iii) decompile,
disassemble, or otherwise reverse engineer the Platform or any part thereof;
(iv) repurpose, resell, distribute, disclose or allow use of any of the
Platform or any part thereof, in any format, through any timesharing service,
service bureau, network or by any other means, to or by, any third party
separate from the Customer Assets and Customer Products; or (v) remove any
proprietary notices, labels or marks embedded in or displayed with the
Platform.
2.4. Modification
of 86Borders Platform and 86Borders Products. 86Borders reserves the right to
issue updates or to otherwise modify or change the 86Borders Platform or any
86Borders Product in any respect during the Term of this Agreement, so long as
the functionality of the 86Borders Platform or 86Borders Product is not less
than the functionality that exists as of the Effective Date.
2.5. Documentation:
Customer may reproduce and use the Documentation solely as necessary to support
Users’ use of the Platform or other 86Borders Products.
3. FEES. Customer shall pay 86Borders
the applicable Fee or Fees set forth in each Order or Services Agreement for
access to and use of the Platform and for each 86Borders Product used by
Customer. Payment of the applicable Fee or Fees shall entitle Customer to
access the Platform and the 86Borders Product ordered only for the use and/or time period identified at the time of the Order or as
provided in the applicable Services Agreement. Customer authorizes 86Borders to
charge any credit card or other payment account on file with 86Borders for any
Fees due and payable in respect of any Order or Services
Agreement. 86Borders will not be required to refund any Fee under
any circumstances.
4.1. Use of
Customer Data. Unless it receives Customer’s prior written consent, 86Borders:
(a) shall not access, process, or otherwise use Customer Data other than as
necessary to facilitate the Platform or perform a Customer Order or Services
Agreement; and (b) shall not intentionally grant any third-party access to
Customer Data, including without limitation 86Borders’ other customers, except
subcontractors that are subject to a reasonable nondisclosure agreement.
Notwithstanding the foregoing, 86Borders may disclose Customer Data as required
by applicable law or by proper legal or governmental authority. 86Borders shall
give Customer prompt notice of any such legal or governmental demand and
reasonably cooperate with Customer in any effort to seek a protective order or
otherwise to contest such required disclosure, at Customer’s expense.
4.2. Privacy.
Customer will obtain and maintain any required consents necessary to permit the
processing of Customer Data under this Agreement.
4.3. Privacy
Policy. By using our Services and our Platform, Customer and its
Users agree to the terms of our Privacy Policy. The Privacy Policy applies only to the Platform and does not apply to any third-party website
or service linked to the Platform or recommended or referred to through the
Platform or by 86Borders.
4.4. Risk of
Exposure. Customer recognizes and agrees that hosting data online involves
risks of unauthorized disclosure or exposure and that, in accessing and using
the Platform, Customer assumes such risks. 86Borders offers no representation,
warranty, or guarantee that Customer Data will not be exposed or disclosed
through errors or the actions of third parties.
4.5. Data
Accuracy. 86Borders will have no responsibility or liability for the
accuracy of data uploaded to the Platform by Customer, including without
limitation Customer Data and any other data uploaded by Users.
4.6. Data
Deletion. 86Borders may permanently erase Customer Data
if Customer’s account is delinquent, suspended,
or terminated and 86Borders shall have no obligation to maintain any Customer
Data except during the Term (as such obligation is otherwise limited in this
Agreement). Customer agrees and acknowledges that 86Borders has no obligation
to retain Customer Data and that Customer Data may be irretrievably deleted at
the end of the Term.
4.7. Excluded
Data. Customer represents and warrants that, other than PHI, Customer
Data does not and will not include, and Customer and its Users have not and
shall not upload or transmit to the Platform or its computers or other media,
any data (“Excluded Data”) regulated pursuant to any law, rule, order or regulation of any governmental entity having
jurisdiction over such data or information (the "Excluded Data Laws").
CUSTOMER RECOGNIZES AND AGREES THAT, OTHER THAN WITH RESPECT TO PHI: (a)
86BORDERS HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN
THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b)
86BORDERS’ PLATFORM IS NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED
DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED
DATA.
4.8. Aggregate
& Anonymized Data. Notwithstanding the provisions
above of this Article 4, but subject to any limitations under applicable law, 86Borders
may use, analyze, reproduce, sell, publicize, or otherwise exploit Aggregate
Data in any way, in its sole discretion. Further, 86Borders may share Aggregate
Data with its vendors, service providers, subcontractors
and business partners as it deems necessary or desirable including but not
limited to for purposes of providing the Platform and 86Borders Products to
Customer and other parties.
4.9. Protected
Health Information. Customer and 86Borders
agree to the following with regard to the use and disclosure of PHI: (i) no Personal Data of Customer stored within the Platform
will be stored outside of the United States of America; (ii) 86Borders and
Customer shall each establish and maintain generally-accepted healthcare
industry “best practices” systems security measures to guard against the
destruction, loss, or alteration of Customer Data in the possession of such
party that are compliant with HIPAA, and that are no less rigorous than those
maintained by such party for its own information of a similar nature, including
procedures for the reconstruction of lost Customer Data; (iii) Customer will at
all times use reasonable efforts to ensure that its Users using the Platform
comply with any applicable HIPAA requirements, including but not limited to
with respect to Customer Data; and (iv) Customer will at all times use
reasonable efforts to ensure that all disclosures of PHI by Customer and its
Users using the Platform comply with HIPAA and other applicable privacy laws.
4.10. Location-Based Services. Customer
and each User acknowledges and agrees that the Services provided by 86Borders
may include certain location-based services and that by using our Services you
agree that 86Borders may Process information about your actual location.
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer and all Users shall comply
with the AUP. Customer is solely responsible for its Customer Data and its use
of Customer Apps and any 86Borders Products and for making sure its Customer
Data and all uses of Customer Apps and 86Borders Products comply with the AUP.
Neither Customer nor any User shall: (a) use the Platform for service
bureau or time-sharing purposes or in any other way allow third parties to
exploit the Platform; (b) provide Platform passwords or other log-in
information to any third party; (c) share non-public Platform features or
content with any third party; or (d) access the Platform in order to build a competitive product or
service, to build a product using
similar ideas, features, functions or graphics of the Platform, or to copy any
ideas, features, functions or
graphics of the Platform. In the event that it
suspects any breach of the requirements of this Section 5.1, including
without limitation by Users, 86Borders may suspend Customer’s access to the
Platform without advanced notice, in addition to such other remedies as
86Borders may have. Neither this Agreement nor the AUP requires that 86Borders take any action against Customer or
any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but
86Borders is free to take any such
action it sees fit.
5.2. Unauthorized
Access. Customer shall take reasonable steps to prevent unauthorized
access to the Platform, including without limitation by protecting its
passwords and other log-in information. Customer shall notify 86Borders
immediately of any known or suspected unauthorized use of the Platform or breach of its
security and shall
use best efforts to stop said breach.
5.3. Compliance
with Laws. In its use of the Platform, Customer shall comply with all
applicable laws, including without limitation laws governing the protection of
personally identifiable information and other laws applicable to the protection
of Customer Data.
5.4. Users
& System Access. Customer is responsible and liable
for: (a) Users’ use of the Platform, including without limitation unauthorized
User conduct and any User conduct that would violate the AUP or the
requirements of this Agreement applicable to Customer; and (b) any use of the
Platform through Customer’s account, whether authorized or unauthorized.
6. INTELLECTUAL PROPERTY
RIGHTS.
6.1. Ownership and Intellectual Property
Rights. This
Agreement does not grant Customer any intellectual property license or rights
in or to the Platform or any of the components thereof, or any other 86Borders
Product. 86Borders or its licensors are the sole and exclusive
owners of all right, title and interest, including all Intellectual Property
Rights, in and to the Platform and all other 86Borders
Products. 86Borders reserves all rights in and to the Platform and
all 86Borders Products not expressly granted to Customer in this Agreement and
no other rights or licenses are granted herein by implication, estoppel or
otherwise. Customer acknowledges and agrees that it would be a
material breach of this Agreement to use the Platform, any other 86Borders
Product, or 86Borders’ confidential or proprietary information for any use that
is not authorized herein.
For the
avoidance of doubt, 86Borders retains all right, title, and interest in and to
the Platform, including without limitation all software used to provide the Platform
and all graphics, user interfaces, logos, and trademarks reproduced through the
Platform. This Agreement does not grant Customer any intellectual
property license or rights in or to the Platform or any of its components.
Customer recognizes that the 86Borders Platform and its components are
protected by copyright and other laws.
7.1. Confidential Information. Each Party (“Receiving Party”)
agrees to treat (i) the other Party’s software,
technology, data, content, and (ii) all other materials, documentation and
information provided or disclosed by the other Party (“Disclosing Party”)
under this Agreement (collectively, “Confidential Information”) as
valuable trade secrets and proprietary information of the other Party and its
licensors. Each Party shall limit access to such Confidential
Information of the other Party solely to its employees, agents and consultants
with a “need to know” who are required to have the information for purposes
authorized under this Agreement, and have entered into
a confidentiality agreement with the Receiving Party, which contains terms that
are at least as protective to Disclosing Party as are the terms set forth in
the relevant sections of this Agreement. Each Party will not use any
Confidential Information of the other Party for any purpose other than as
expressly authorized under this Agreement. Without limiting the
foregoing, Receiving Party will use at least the same degree of care, which it
uses to prevent the disclosure of its own confidential information of like
importance, but in no event less than reasonable care, to prevent the
disclosure of the Disclosing Party’s Confidential Information. Each
Party agrees that a breach of its obligations under this section shall
constitute a material breach of this Agreement. The Parties agree
that all Customer Data shall be the Confidential Information of Customer.
7.2. Exemptions. Notwithstanding
the provisions of Section 7.1, Confidential Information shall not include
information that, in each case as demonstrated by written
documentation: (i) was properly in
Receiving Party’s possession or properly known by it, without restriction,
prior to receipt from the Disclosing Party; (ii) was rightfully disclosed to
Receiving Party by a third party without restriction; (iii) is or becomes
generally available to the public or otherwise publicly available other than
through any act or omission of the Receiving Party (or any subsidiary, agent or
employee of the Receiving Party) in breach of this Agreement; (iv) was
independently developed by the Receiving Party without reference to or use of
any Confidential Information disclosed by the Disclosing Party; or (v) is
approved in writing by the Disclosing Party for release.
7.3. Permitted
Disclosures. Nothing in this Agreement will prevent the Receiving
Party from disclosing Confidential Information of the Disclosing Party to the
extent the Receiving Party is legally compelled to do so by any governmental
investigative or judicial agency pursuant to proceedings over which such agency
has jurisdiction; provided, however, that prior to any such disclosure, the
Receiving Party shall, to the extent allowed by law: (i) assert the confidential nature of the Confidential
Information to the agency; (ii) where permitted immediately notify the
Disclosing Party in writing of the agency’s release or request to disclose;
(iii) cooperate fully with the Disclosing Party in protecting against any such
disclosure and/or obtaining a protective release narrowing the scope of the
compelled disclosure and protecting its confidentiality; and (iv) in any event
only disclose the exact Confidential Information, or portion thereof,
specifically requested by the agency.
7.4. Injunctive
Relief. Each Party agrees that its obligations hereunder are
necessary and reasonable in order to protect the other
Party and its business, and each Party expressly agrees that monetary damages
may be inadequate to compensate the other Party for any breach by the first
Party of its covenants and agreements set forth herein. Accordingly,
each Party agrees that any such violation or threatened violation may cause
irreparable injury to the other Party and that, in addition to any other
remedies that may be available, in law, in equity or otherwise, the Party shall
be entitled to seek injunctive relief against the threatened breach of this
Agreement or the continuation of any such breach by the other Party, without
proving actual damage or posting a bond or other security.
7.5. Feedback. 86Borders
has not agreed to and does not agree to treat as confidential any Feedback
Customer or Users provide to 86Borders, and nothing in this Agreement or in the
parties’ dealings arising out of or related to this Agreement will restrict
86Borders’ right to use, profit from, disclose, publish, keep secret, or
otherwise exploit Feedback, without compensating or crediting Customer or the
User in question. Notwithstanding the provisions of this
Article 7, Feedback will not be considered Confidential Information,
provided information Customer transmits with Feedback or related to Feedback
may be considered Confidential Information.
7.6. Exception & Immunity. Pursuant to the Defend Trade
Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges
that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An
individual shall not be held criminally or civilly liable under any Federal or
State trade secret law for the disclosure of a trade secret that- (A) is made-
(i) in confidence to a Federal, State, or local
government official, either directly or indirectly, or to an attorney; and (ii)
solely for the purpose of reporting or investigating a suspected violation of
law; or (B) is made in a complaint or other document filed in a lawsuit or
other proceeding, if such filing is made under seal.
(b) Use of
Trade Secret Information in Anti-Retaliation Lawsuit. An
individual who files a lawsuit for retaliation by an employer for reporting a
suspected violation of law may disclose the trade secret to the attorney of the
individual and use the trade secret information in the court proceeding, if the
individual- (A) files any document containing the trade secret under seal; and
(B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS
& WARRANTIES.
8.1. From 86Borders. 86Borders represents and
warrants that it is the owner of the Platform and of each and
every component thereof, or the recipient of a valid license thereto,
and that it has and will maintain the full power and authority to grant the
rights granted in this Agreement without the further consent of any third
party. 86Borders’ representations and warranties in the preceding sentence do
not apply to use of the Platform in combination with hardware or software not
provided by 86Borders. In the event of a breach of the warranty in this
Section 8.1, 86Borders, at its own expense, will promptly take the
following actions: (a) secure for Customer the right to continue using the
Platform; (b) replace or modify the Platform to make it noninfringing; or (c) terminate the infringing features of
the Platform or this Agreement. In conjunction with Customer’s right to
terminate for breach where applicable, the preceding sentence states 86Borders’
sole obligation and liability, and Customer’s sole remedy, for breach of the
warranty in this Section 8.1 and for potential or actual intellectual
property infringement by the Platform.
8.2. From
Customer and Users. Customer represents and
warrants that: (a) it has the full right and authority to enter into, execute,
and perform its obligations under this Agreement and that no pending or
threatened claim or litigation known to it would have a material adverse impact
on its ability to perform as required by this Agreement; and (b) it has
accurately identified itself and it has not provided any inaccurate
information about itself to or through the Platform; and (c) it is a
corporation, the sole proprietorship of an individual 18 years or older, or
another entity authorized to do
business pursuant to applicable law. Each User represents and warrants that it
has been authorized by Customer to access the Platform in accordance with the
terms of this Agreement, it has accurately identified itself and it has not
provided any inaccurate information about itself to or through the Platform.
8.3. Warranty Disclaimers. Except to the extent set forth in
Section 8.1 above or in a separate Services Agreement or BAA with
Customer, CUSTOMER AND EACH USER ACCEPTS THE PLATFORM “AS IS” AND AS AVAILABLE,
WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY
IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF
PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING: (a) 86BORDERS HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR
USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b)
86BORDERS DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL PERFORM WITHOUT
INTERRUPTION OR ERROR; AND (c) 86BORDERS DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR
OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR
SECURE.
86BORDERS
DOES NOT GUARANTEE THAT 86BORDERS’ PRODUCTS WILL BE PROVIDED ERROR-FREE OR
UNINTERRUPTED, OR THAT 86BORDERS WILL CORRECT ALL ERRORS. CUSTOMER ACKNOWLEDGES
THAT 86BORDERS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS
FACILITIES, INCLUDING THE INTERNET, AND THAT THE PLATFORM MAY BE SUBJECT TO
LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS
FACILITIES. 86BORDERS IS NOT RESPONSIBLE FOR ANY DELAYS OR DELIVERY FAILURES,
OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS WHETHER OR NOT FORESEEABLE.
9. INDEMNIFICATION. Customer shall defend,
indemnify, and hold harmless 86Borders and the 86Borders Associates (as defined
below) against any “Indemnified Claim,” meaning any third party claim,
suit, or proceeding arising out of or related to Customer's and its Users’
alleged or actual use of, misuse of, or failure to use the Platform, including
without limitation: (a) claims by Users or by Customer's employees, as well as
by Customer’s own customers or clients; (b) claims related to unauthorized
disclosure or exposure of personally identifiable information or other private
information, including Customer Data; (c) claims related to infringement or
violation of a copyright, trademark, trade secret, or privacy or
confidentiality right by written material, images, logos or other content
uploaded to the Platform through Customer’s account, including without
limitation by Customer Data; (d) claims that use of the Platform through
Customer’s account harasses, defames, or defrauds a third party or violates the
CAN-Spam Act of 2003 or any other law or restriction on electronic advertising,
and (e) claims arising from violations of the AUP. Indemnified Claims include,
without limitation, claims arising out of or related to 86Borders’ negligence.
Customer’s obligations set forth in this Article 9 include retention
and payment of attorneys and payment of court costs, as well as settlement at
Customer’s expense and payment of judgments. 86Borders will have the right, not
to be exercised unreasonably, to reject any settlement or compromise that
requires that it admit wrongdoing or liability or subjects it to any ongoing
affirmative obligations. (The “86Borders Associates” are 86Borders’
officers, directors, members, shareholders, parents, subsidiaries, agents,
successors, attorneys, and assigns.)
10. LIMITATION
OF LIABILITY.
10.1. Limitation on Amount.
86BORDERS’ LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT
EXCEED THE AMOUNT PAID BY CUSTOMER TO 86BORDERS DURING THE TWELVE MONTHS PRIOR
TO THE EVENT GIVING RISE TO LIABILITY.
10.2. Exclusion of Consequential Damages. IN NO
EVENT WILL 86BORDERS BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT,
SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS
AGREEMENT.
10.3. Clarifications & Disclaimers. THE
LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR
NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT,
STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF 86BORDERS IS ADVISED IN
ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES
WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL
PURPOSE. If applicable law limits the application of the provisions of this
Article 10, 86Borders’ liability will be limited to the maximum extent
permissible. For the avoidance of doubt, 86Borders’ liability limits and other
rights set forth in this Article 10 apply likewise to
86Borders’ affiliates, licensors, suppliers, advertisers, agents,
sponsors, directors, officers,
employees, consultants, attorneys, and other representatives.
11.1. Term. The term of this Agreement (the “Term”) will commence on
the Effective Date and continue for the period set forth in the applicable
Order or Services Agreement, or, if none, for a period of one (1) year from the
Effective Date. Thereafter, the Term will renew for successive one (1) year
periods, unless either party refuses such renewal by written notice 30 or more
days before the renewal date.
11.2. Termination for Cause. Either
party may terminate this Agreement for the other’s material breach by written
notice specifying in detail the nature of the breach, effective in 30 days
unless the other party first cures such breach, or effective immediately if the
breach is not subject to cure.
11.3. Effects of Termination. Upon termination of this
Agreement, Customer shall cease all use of the Platform and delete, destroy, or
return all copies of the Documentation in its possession or control. The
following provisions will survive termination or expiration of this Agreement:
(a) any obligation of Customer to pay fees incurred before termination; (b)
Articles and Sections 6 (IP & Feedback), 7 (Confidential
Information), 8.3 (Warranty Disclaimers), 9 (Indemnification),
and 10 (Limitation of Liability); and (c) any other provision
of this Agreement that must survive to fulfill its essential purpose.
12.MISCELLANEOUS.
12.1. Independent Contractors. The
parties are independent contractors and shall so represent themselves in all
regards. Neither party is the agent of the other, and neither may make
commitments on the other’s behalf.
12.2. Notices. 86Borders
may send notices pursuant to
this Agreement to Customer’s email contact points provided by
Customer, and such notices will be deemed received 24 hours after they are
sent. Customer may send notices pursuant to this Agreement to notice@86Borders.com, and
such notices will be deemed received
72 hours after they are sent.
12.3. Force Majeure. No
delay, failure, or default, other than a failure to pay fees when due, will
constitute a breach of this Agreement to the extent caused by acts of war,
terrorism, hurricanes, earthquakes, other acts of God or of nature, equipment or telecommunications failure, strikes or other
labor disputes, riots or other acts of civil disorder, embargoes, or other
causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Customer may not assign this
Agreement or any of its rights or obligations hereunder without 86Borders’ express
written consent, and any attempted assignment without 86Borders’ consent is
null and void. Except to the extent forbidden in this Section 12.4, this
Agreement will be binding upon and inure to the benefit of the parties’
respective successors and assigns.
12.5. Severability. To
the extent permitted by applicable law, the parties hereby waive any provision
of law that would render any clause of this Agreement invalid or otherwise
unenforceable in any respect. In the event that a
provision of this Agreement is held to be invalid or otherwise unenforceable,
such provision will be interpreted to fulfill its intended purpose to the
maximum extent permitted by applicable law, and the remaining provisions of
this Agreement will continue in full force and effect.
12.6. No Waiver.
Neither party will be deemed to have waived any of its rights under this
Agreement by lapse of time or by any statement or representation other than by
an authorized representative in an explicit written waiver. No waiver of a
breach of this Agreement will constitute a waiver of any other breach of this
Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement and all claims
arising out of or related to this Agreement will be governed solely by the
internal laws of the State of Georgia, including without limitation applicable
federal law, without reference to: (a) any conflicts of law principle that
would apply the substantive laws of another jurisdiction to the parties’ rights
or duties; (b) the 1980 United Nations Convention on Contracts for the
International Sale of Goods; or (c) other international laws. The parties
consent to the personal and exclusive jurisdiction of the federal and state
courts of Atlanta, Georgia. This Section 12.7 governs all claims
arising out of or related to this Agreement, including without limitation tort
claims.
12.8. Conflicts. In
the event of any conflict between this Agreement and any 86Borders policy posted online, including without limitation the AUP or Privacy Policy, the terms of this Agreement will govern. In the event
of any conflict between this Agreement and any Services Agreement with
Customer, the terms of the Services Agreement will govern.
12.9. Business Associate Agreement. In
the event of any conflict between the terms of any Business Associate Agreement
and any other terms in this Agreement, the terms and conditions that are more
protective of PHI shall govern to the extent of that
conflict. Notwithstanding any provision to the contrary, the
Business Associate Agreement shall have legal superiority and control over any
conflicting or limiting provision of any contract or agreement between
86Borders and Customer, whether entered into before,
simultaneous, or after the Business Associate Agreement.
12.10. Technology
Export. Customer shall not: (a) permit any third party to access or use
the Platform in violation of any U.S. law or regulation; or (b) export any
software provided by 86Borders or otherwise remove it from the United States
except in compliance with all applicable U.S. laws and regulations. Without
limiting the generality of the foregoing, Customer shall not permit any third
party to access or use the Platform in, or export such software to, a country
subject to a United States embargo (as of the Effective Date, Cuba, Iran, North
Korea, Sudan, and Syria).
12.11. Entire Agreement. This Agreement sets forth the
entire agreement of the parties and supersedes all prior or contemporaneous
writings, negotiations, and discussions with respect to its subject matter.
Neither party has relied upon any such prior or contemporaneous communications.
12.12. No
Third-Party Beneficiaries. This Agreement does not confer any
benefits on any third party unless it expressly states that it does.
12.13. Amendment. 86Borders may amend this
Agreement from time to time by posting an amended version at its Website.
Customer’s continued use of the Platform following the effective date of an
amendment will confirm Customer’s consent thereto. This Agreement may not be
amended in any other way except through a written agreement by authorized
representatives of each party. Notwithstanding the foregoing provisions of this
Section 12.13, 86Borders may revise the Privacy Policy and AUP at any time
by posting a new version of either at the Website, and such new version will
become effective on the date it is posted.