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.
1.0 DEFINITIONS. The following capitalized terms willhave 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.
1.18. “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.
2.0 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.
3.0 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.
4.0 CUSTOMER DATA & PRIVACY.
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.
4.4. 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.
5.0 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.
6.0 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.
7.0 CONFIDENTIAL INFORMATION.
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.
8.0 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.
9.0 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.)
10.0 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.
11.0 Term& Termination.
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.
12.1. 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.
12.9. 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.