Terms & Conditions

• Definitions

  1. 1.1. "Administrators"

     has the meaning given to such term in Section 4.1.

  2. 1.2. "Authorized Users"

     means employees, contractors, or agents of Customer who are authorized by Customer to use the BackEngine Service in compliance with this Agreement, including, Administrators.

  3. 1.3. "BackEngine Service"

     means access to the Platform and Documentation, and any Support and/or Implementation Services purchased by Customer as specified on the applicable Order Form and to be made available by BackEngine to Customer pursuant to this Agreement.

  4. 1.4. "BackEngine Systems"

     means the information technology infrastructure used by or on behalf of BackEngine in hosting and providing the Platform, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by BackEngine or using third-party services.

  5. 1.5. "Customer Data"

     means all data (including, Personal Data) and other information, videos, text, images, materials, emails, support tickets, communications, and other content transmitted, uploaded and/or submitted by Customer and its Authorized Users through the Platform in connection with the use of the BackEngine Service.

  6. 1.6. "Documentation"

     means the applicable end user manuals and/or documentation for the Platform, and any modification, updates, and or improvements thereto, made available by BackEngine to Customer under this Agreement.

  7. 1.7. "Implementation Services"

     has the meaning given to such term in Section 2.7.

  8. 1.8. "Personal Data"

     has the meaning given to such term in Section 3.4.

  9. 1.9. "Platform"

     means BackEngine’s proprietary hosted software platform, made available by BackEngine on a remote online basis, that enables Customer to manage and analyze relationship interactions and touch points with its clients and customers, via automated analysis of Customer Data processed through the Platform and AI Features (as defined in Section 2.6).

  10. 1.10. "Subscription Term"

      means the term of Customer’s subscription license to access the BackEngine Service as specified in the applicable Order Form, and any renewal(s) thereof pursuant to Section 7.2.

  11. 1.11. "Support"

      has the meaning given to such term in Section 2.7.

  12. 1.12. "Usage Data"

      means technical logs, metrics, analytics, and performance data relating to the operation, delivery and use of the BackEngine Service and the processing of Customer Data, but excluding Customer Data.

  13. 1.13. "Usage Parameters"

      means the maximum number of permitted users and/or seats for the use of the BackEngine Service specified on the applicable Order Form(s), and any other parameters applicable to the subscription plan purchased by Customer, or otherwise specified in the Order Form or in writing by BackEngine regarding the scope of use of the BackEngine Service by Customer and/or its Authorized Users.

• 2. Provision of Backengine Service

  1. 2.1. Access to the BackEngine Service

     Subject to the terms and conditions of this Agreement, BackEngine grants to Customer a personal, non-exclusive, non-sublicensable, non-transferable limited right, during the Subscription Term, or if applicable, the Trial Period, to access and use, and permit its Authorized Users to access and use, the BackEngine Service, over the internet, solely for Customer’s own business purposes, in accordance with this Agreement and the Documentation, and subject to any applicable Usage Parameters.

  2. 2.2. Trials

     If Customer obtains access to the BackEngine Service on a trial basis, as set forth in the applicable Order Form, subject to the terms of this Agreement, BackEngine will make the BackEngine Service available to for the trial period specified in the Order Form (the “Trial Period”), subject to any applicable Usage Parameters or other trial terms and conditions specified in the Order Form. Unless otherwise set forth on the applicable Order Form, Customer acknowledges and agrees that if Customer has not purchased a paid subscription prior to the expiration of the Trial Period, this Agreement will automatically terminate (without the requirement of providing any termination notice) and Customer’s access to the BackEngine Service will be terminated

  3. 2.3. Beta Features

     BackEngine may from time-to-time, in its sole discretion, make certain beta versions, features and/or functionality of the BackEngine Service (collectively, “Beta Versions”) available to Customer to evaluate and try (at Customer’s option) at no additional cost. For the avoidance of doubt, any Beta Versions are included in the defined term “BackEngine Service” as used throughout this Agreement. If Customer elects to access Beta Versions, BackEngine grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Version solely for Customer’s internal evaluation and subject to any and all technical limitations implemented in the Beta Version and/or other usage parameters or restrictions specified by BackEngine. In addition to the restrictions set forth in Section 2.4 below, Customer shall not access and/or use the Beta Version without the express prior written approval of BackEngine if Customer is a direct competitor of BackEngine. In addition, Customer acknowledges and agrees that the Beta Version and any Feedback (as defined below in Section 5.25.3) regarding the Beta Versions are the confidential information of BackEngine and Customer shall not disclose any such Feedback or other confidential information to any third party. BETA VERSION AND FEATURES ARE PROVIDED AS-IS, ARE NOT SUPPORTED, AND MAY BE SUBJECT TO ADDITIONAL TERMS AS SPECIFIED BY BACKENGINE IN WRITING AND/OR IN THE APPLICABLE DOCUMENTATION FOR THE BETA VERSION. BackEngine reserves the right to terminate Customer’s access to any Beta Versions at any time, for any reason.

  4. 2.4. Prohibited Uses

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

     • use or allow access to the BackEngine Service (or any part or component thereof) in a manner that circumvents contractual usage restrictions or that exceeds any applicable usage parameters or restrictions;
     • license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the BackEngine Service (or any part or component thereof) available for access by third parties except as otherwise expressly provided in this Agreement;
     • access or use the BackEngine Service (or any part or component thereof) for the purpose of developing competitive products or services or for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose;
     • reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets, or any underlying ideas, algorithms and/or technology from or about the BackEngine Service;
     • use the BackEngine Service (or any part thereof) in a way, including, without limitation, to store, transmit, or upload any material and/or content, that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity;
     • upload, distribute or disseminate any unlawful, defamatory, pornographic, harassing, abusive, fraudulent, obscene, or otherwise objectionable content through or in connection with the use of the BackEngine Service (or any part thereof);
     • remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of BackEngine or its licensors and/or suppliers on or within any part of the BackEngine Service;
     • interfere with or disrupt the integrity or performance of the BackEngine Service, or any related system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the BackEngine Service;
     • take any action that imposes an unreasonable or disproportionately large load on the BackEngine Service (or any part or component thereof), or its underlying infrastructure and systems;
     • attempt to gain unauthorized access to the BackEngine Service, or its related systems or networks or attempt to disable or circumvent any security mechanisms contained, or used and/or implemented by BackEngine, in the BackEngine Service;
     • frame or utilize framing techniques to enclose the BackEngine Service or any portion thereof;
     • use any meta tags, “hidden text”, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the BackEngine Service (or any part thereof), and/or the personal information of others without BackEngine’s prior written permission or authorization;
     • use the BackEngine Service to store or transmit any malicious or unsolicited code or software;
     • impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity or falsify age or date of birth or any other eligibility requirements;
     • use the BackEngine Service (or any part thereof), or transmit Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency, including, without limitation, export laws and regulations.

  5. 2.5. Usage Data

     BackEngine may collect Usage Data and use it to improve, test, and maintain the BackEngine Service and for other lawful business purposes; however, BackEngine will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify Customer, its Authorized Users or any other person and (b) aggregated with data across other customers.

  6. 2.6. AI Functionality

     The BackEngine Service utilizes certain generative artificial intelligence and other machine learning functionality (“AI Features”). Artificial intelligence and machine learning are rapidly evolving fields of study. Given the probabilistic nature of machine learning, use of the AI Features may in some situations result in incorrect output that does not accurately reflect real people, places, or facts or conform to Customer’s specifications. Customer is responsible for evaluating the accuracy of any output as appropriate for its use case, including by using human review of the output. Please note that BackEngine may utilize AI Features developed by third parties. For example, BackEngine utilizes AI Features developed by OpenAI, L.L.C (“OpenAI”) and/or Anthropic, PBC (“Anthropic”), which are integrated into the BackEngine Service using the OpenAI API. Please review the current terms and conditions and data usage policies with respect to: (a) OpenAI available at https://openai.com/policies, and https://openai.com/policies/api-data-usage-policies, and (b) Anthropic available at https://console.anthropic.com/legal/terms and https://console.anthropic.com/legal/privacy. Customer Data processed using the AI Features will not be used to train machine learning models, except as expressly described in the OpenAI and Anthropic terms and conditions.

  7. 2.7. Support & Implementation Services

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

  8. 2.8. Changes and Modifications

     BackEngine reserves the right, in its sole discretion, to make changes to the BackEngine Service (or any part thereof) at any time that BackEngine deems necessary or useful to (a) maintain or enhance: (i) the quality or delivery of services to our customers; (ii) the competitive strength of or market for our services; or (iii) the cost efficiency or performance of the BackEngine Service; or (b) to comply with applicable laws.

  9. 2.9. Suspension or Termination

     BackEngine may suspend, terminate, or otherwise deny Customer’s or any Authorized User’s access to or use of all or any part of the BackEngine Service, without incurring any resulting obligation or liability, if: (a) BackEngine receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires BackEngine to do so; or (b) BackEngine believes, in its good faith and reasonable discretion, that (i) Customer or any Authorized User has accessed or used the BackEngine Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement, or that such use ; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the BackEngine Service; (iii) that such access and use poses an imminent security risk or an imminent risk to BackEngine Property or will interfere materially with the proper continued operation of the BackEngine Service or BackEngine System; or (iv) this Agreement, or any applicable Subscription Term, expires or is terminated. This Section 2.9 does not limit any of BackEngine’s other rights or remedies, whether at law, in equity, or under this Agreement.

  10. 2.10. Additional Terms

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

• 3. customer data; security & data protection

  1. 3.1. Customer Data

     Customer shall retain all right, title and interest in and to the Customer Data. Customer hereby grants to BackEngine a worldwide, royalty-free, non-exclusive license to process and use (including through the use of subcontractors) Customer Data strictly to provide Customer the BackEngine Service and other services provided by BackEngine to Customer hereunder. Customer acknowledges and agrees that Customer is responsible for any and all Customer Data submitted, transmitted, contributed, provided, generated, and/or created by Customer and/or its Authorized Users in connection with the use of the BackEngine Service, including its legality, reliability, accuracy, and appropriateness. Customer represents and warrants that Customer has all necessary ownership, rights and/or authorizations to grant the licenses hereunder in and to the Customer Data.

  2. 3.2. Security

     BackEngine shall implement and maintain industry-standard technical and organizational security measures that are reasonably designed to prevent unauthorized access to and disclosure of Customer Data. BackEngine shall inform Customer without unreasonable delay (but in no event, less than 48 hours), as soon as it has become aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to unencrypted Customer Data (“Security Incident”). BackEngine shall provide all reasonable information in BackEngine’s possession concerning such Security Incident insofar as it affects Customer, including the following, to the extent then known: (a) the possible cause and consequences for any data subjects who’s Personal Data was involved in the Security Incident; (b) a summary of the Customer Data affected, and the categories of Personal Data involved, if applicable; (c) a summary of the unauthorized recipients of the Customer Data; and (d) the measures taken by BackEngine to mitigate any damage. BackEngine shall use reasonable efforts to provide Customer updates of further developments concerning a Security Incident.

  3. 3.3 Customer Responsibility

     Customer has and will retain sole responsibility for: (a) the security of Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (b) the security and use of Customer’s and its Authorized Users’ access credentials; (c) all access to and use of the BackEngine Service directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use; (d) implementing measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Data in a timely manner in the event of a physical or technical incident; and (e) taking any appropriate steps to securely encrypt or pseudonymize any Customer Data.

  4. 3.4 Personal Data

     To the extent any Customer Data includes, or Customer or any Authorized Users otherwise transmits, processes, and/or provides, any data or information that identifies, relates to, describes, or is capable of being associated with, directly or indirectly, a natural person, through or in connection with the use of the BackEngine Service (“Personal Data”), the parties acknowledge and agree that Customer is controller or business that controls, directs and otherwise determines the purposes for processing such Personal Data, and BackEngine is processor or service provider processing such Personal Data on behalf of Customer, under any applicable data and/or privacy laws, rules or regulations (collectively, “Applicable Data Laws”). Customer represents and warrants that Customer has obtained all permissions and/or approvals from each applicable data source as may be necessary or required to transmit such data through the BackEngine Service and/or provide or make available such data to BackEngine hereunder.

  5. 3.5 Compliance

     Each party shall comply with Applicable Data Laws, with respect to any Personal Data provided and/or processed by the parties in connection with the use and performance of the BackEngine Service pursuant to this Agreement. Personal Data shall only be used in accordance with this Agreement and as described in BackEngine’s Privacy Notice available at http://www.backengine.ai/privacy. In addition, each party agrees to work together in good faith to mutually agree upon and execute and/or enter into any documents, agreements, statements, or policies deemed necessary or appropriate by a party in its discretion to comply with any Applicable Data Laws with respect to any Personal Data exchanged pursuant to this Agreement.

  6. 3.6 Sensitive Data

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

• 4. additional customer responsibilities

  1. 4.1. Accounts

     In order to use the BackEngine Service, Customer must register an account (“Account”), and may be required to register sub-Accounts for each individual (including employees, contractors or agents of Customer) who have been authorized by the Customer to access and use the BackEngine Service on behalf of Customer (each an “Authorized User”). In registering an Account, Customer agrees to, and shall ensure that its Authorized Users, provide and maintain up to date account registration information, which may include, name, location, e-mail address or other contact information, and billing information, relating to Customer and any Authorized Users, that is true, accurate, current, up to date, and complete. Customer agrees that it will not, and will not permit any Authorized User or other third party to create an Account or sign up to access the BackEngine Service using a false identity or fictitious name or information.

  2. 4.2. Account Security

     Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting the passwords, license keys and/or other access credentials for the Account. Customer is solely responsible for any activity originating from the Account, including, without limitation, any access of the Account by Authorized User and/or sub-accounts created by Authorized Users under the Account, regardless of whether such activity is authorized by Customer. Customer agrees to notify BackEngine immediately of any unauthorized use of or access to Customer’s Account or the Accounts of any of its Authorized Users.

  3. 4.3. Administrators; Permissions

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

  4. 4.4. Third Party Services

     The BackEngine Service may contain links to, or otherwise allow Customer to connect to and/or use certain third party products, data, services, websites, applications, software, scripts and/or APIs (all of the foregoing, collectively “Third Party Services”). Third Party Services are not owned, controlled, or operated by BackEngine and are subject to separate terms and conditions of the applicable third party provider. If Customer decides to access and use any Third Party Services, such use is and shall be governed solely by the terms and conditions for such Third Party Services. BackEngine does not endorse, is not responsible for, and makes no representations as to such Third Party Services, their content or the manner in which they handle, secure, protect or use Customer’s data. BackEngine is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s access or use of any such Third Party Services, or Customer’s reliance on the privacy practices or other policies of such Third Party Services.

• 5. proprietary rights

  1. 5.1. Customer Proprietary Rights

     Customer shall retain all right, title and interest in and to the Customer Data.

  2. 5.2. BackEngine Proprietary Rights

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

  3. 5.3. Feedback

     If Customer and/or any Authorized User provides any suggestions and feedback to BackEngine regarding the functioning, features, and other characteristics of any BackEngine Property (as defined below), or other materials or services provided or made available by BackEngine hereunder (“Feedback”), BackEngine may use such Feedback without restriction or obligation. Any such Feedback is provided “AS IS,” and BackEngine will not publicly identify Customer or any Authorized User as the source of feedback without Customer’s permission.

• 6. fees & payment terms

  1. 6.1. Subscription Fees

     Customer shall pay the applicable subscription fees, if any, for access to and use of the BackEngine Service set forth on the applicable Order Form in accordance with the terms therein and in this Section (the “Subscription Fees”). Except as otherwise set forth in the Order Form, the Subscription Fees payable by Customer will remain fixed during the Subscription Term unless Customer (i) exceeds any Usage Parameters specified in the Order Form, or (b) subscribes to any additional features, functionality, or products which are subject to additional fees. Upon any increase in Subscription Fees as described above, Customer shall pay the Subscription Fees for such increase on pro-rated basis for the remainder of Customer’s then-current Subscription Term, and all applicable Subscription Fees shall renew in full at the start of any subsequent renewal term.

  2. 6.2. Implementation Services

     Unless otherwise set forth in the applicable Order Form, the fees for Implementations Services (the “Implementation Services Fees”; collectively with Subscription Fees, “Fees”) payable to BackEngine shall be based on a time and materials basis at BackEngine’s then-current rates for such Implementation Services.

  3. 6.3. Payment Terms

     Unless otherwise set forth on the applicable Order Form: (a) all Subscription Fees are due and payable at the time Customer submits the applicable Order Form and upon the first date of any Renewal Term, and will be automatically billed to the credit card, or other payment method designated by Customer in the Subscription Order or otherwise specified in the Customer’s Account (the “Payment Method”), and (b) Implementation Services Fees will be invoiced to Customer and payable by Customer within thirty (30) days of the invoice date. Customer represents and warrants that it has the legal right and authority to use the Payment Method provided by Customer hereunder. Customer hereby authorizes BackEngine and its third party payment processors to bill and charge the Payment Method for the applicable fees due and payable by Customer hereunder and any applicable taxes and any other charges that Customer may incur in connection with the use of the BackEngine Service, in accordance with the billing terms in effect at the time a fee or charge is due and payable. To the extent that any amounts owed by Customer cannot be collected from or through the Payment Method(s), Customer is solely responsible for paying such amounts by other means. All fees are listed and payable in United States Dollars (USD). Customer agrees that its purchase of access to the BackEngine Service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by BackEngine regarding future functionality or features. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, ALL FEES ARE NON-REFUNDABLE, NON-RETURNABLE AND NON-CANCELLABLE.

  4. 6.4. Delinquency

     Customer agrees to pay interest at the rate of 1.5% per month (or the maximum rate allowed by applicable law, whichever is lower) on amounts more than thirty (30) days past due, and to pay all reasonable costs, including attorneys’ fees and costs, associated with BackEngine’s collection of past due amounts. In addition, if payment is not received or cannot be charged to Customer for any reason in advance, BackEngine reserves the right to suspend or terminate Customer’s and all Authorized Users’ access to the BackEngine Service and/or terminate this Agreement.

  5. 6.5. Taxes

     The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Customer is and shall be responsible for payment of all such taxes (other than taxes based on BackEngine’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of BackEngine Service, or performance of any services by BackEngine hereunder.

  6. 6.6. Changes

     BackEngine reserves the right, at any time, to increase the Subscription Fees payable hereunder, and/or change, update, or modify the BackEngine Service’s pricing and/or payment terms; provided that, any increase in fees applicable to Customer shall not take effect until the start of the next Subscription Term.

• 7. Sharing Personal information

  1. 7.1. Term

     Unless earlier terminated in accordance with the terms of this Agreement, this Agreement commences on the date Customer first accepts it and continues until all Subscription Terms hereunder have expired or have been terminated.

  2. 7.2. Subscription Terms

     Each Subscription Term shall: (a) commence on the start date and continue for the duration of the Subscription Term, each as set forth in the Order Form, and (b) unless otherwise set forth in the Order Form, automatically renew for successive terms equal to the initial Subscription Term, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term.

  3. 7.3. Termination

     • Customer may terminate this Agreement for convenience, at any time upon thirty (30) days prior written notice to BackEngine, provided that; all remaining and unpaid Subscription Fees shall become immediately due and payable, and any prepaid fees for the Subscription Fees will not be refunded.
     • Either party may terminate this Agreement immediately upon written notice if the other party (i) materially breaches its obligations under this Agreement (including, payment obligations), and does not remedy such material breach within thirty (30) days of the date on which the breaching party receives written notice of such breach from the non- breaching party; or (ii) becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within forty-five (45) days of its commencement, or makes an assignment for the benefit of creditors.

  4. 7.4. Effect of Termination

     Upon termination of this Agreement for any reason:
     • Customer’s and its Authorized Users’ right to access and use the BackEngine Service will automatically terminate, and Customer will cease and ensure all Authorized Users cease all access and use of the BackEngine Service and related Documentation.
     • BackEngine’s obligations to perform the Implementation Services hereunder shall immediately terminate.
     • Except in the event of termination by Customer in accordance with Section 7.3(b)(i) above, all outstanding fees immediately becoming due and payable, including, without limitation, any Subscription Fees payable for the remainder of the then-current Subscription Term. For the avoidance of doubt, in no event will termination (whatever the reason) relieve Customer of its obligations to pay any fees payable to BackEngine for the period prior to the effective date of termination.
     • The receiving party of Confidential Information will promptly return or destroy Confidential Information in its possession or control, except that, with respect to Customer Data, which shall be returned in accordance with clause (e) below, and notwithstanding the foregoing, the receiving party may retain Confidential Information in accordance with its standard backup or record retention policies or as required by law, subject to continued compliance with Sections 3 and 8.
     • BackEngine will securely delete all Customer Data in its possession or control in accordance with its then-current data retention policies, but in any event, within sixty (60) days following the effective date of termination. If Customer has purchased access to the BackEngine Service, Customer shall have fourteen (14) days following the effective date of termination.

  5. 7.5. Survival

     Each party is responsible for any obligations to the other party that arose prior to any termination or expiration of this Agreement. In addition, except as otherwise set forth in this Agreement , the parties’ rights and obligations under the following Sections shall survive: 1, 2.4, 2.5, 5, 6, 7.3, 7.4, 8, 9, 10, 11, 13, 15 and 16.

• 8. confidentiality

  1. 8.1. Definition. “Confidential Information”

     means: (a) with respect to BackEngine: the Documentation, Feedback, the Fees payable by Customer under this Agreement, and any non-public technical and business information regarding any BackEngine Property, or any of BackEngine’s other products and/or services, and all materials and information disclosed under this Agreement that are marked “confidential” by BackEngine or that Customer knows or should have known, under the circumstances, are considered confidential by BackEngine; and (b) with respect to Customer: the non-public aspects of the Customer Data, and all materials and information disclosed under this Agreement that are marked “confidential” by Customer.

  2. 8.2. Use and Protection

     The receiving party will (a) use Confidential Information only to fulfill its obligations and exercise its rights in this Agreement, (b) not disclose Confidential Information to third parties without the disclosing party’s prior approval, except as permitted in this Agreement, and (c) protect Confidential Information using at least the same precautions the receiving party uses for its own similar information and no less than a reasonable standard of care. The receiving party may disclose Confidential Information of the disclosing party to its employees, agents, contractors and other representatives (collectively, “Representatives”) having a legitimate need to know, provided that, the receiving party remains responsible for its Representatives’ compliance with this Section 8, and such Representatives are bound to confidentiality obligations no less protective than this Section 8.

  3. 8.3. Exclusions

     These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the disclosing party; (c) it rightfully received from a third party without confidentiality restrictions; or (d) it independently developed by the receiving party without using or referencing disclosing party’s Confidential Information. The receiving party may disclose Confidential Information of the disclosing party without violating this Section to the extent that such Confidential Information is required to be disclosed by law or court order; provided, however, that the receiving party shall first give the disclosing party prompt notice of such order so that the disclosing party may take appropriate actions to protect its rights, including seeking a protective order or other appropriate remedy.

• 9. indemnification

  1. 9.1. Indemnification by BackEngine

     BackEngine shall defend and/or settle any third party claim, action or suit brought against Customer alleging that Customer’s use of the BackEngine Service as authorized herein infringes or misappropriates the intellectual property rights of any third party, and hold Customer harmless from any amounts finally awarded by or agreed to (and reasonably approved by BackEngine) in settlement of such claim. If Customer’s use, or BackEngine reasonably believes Customer’s use, of the BackEngine Service (or any part thereof) is or may be enjoined, or if otherwise required by settlement or injunction, BackEngine may elect at its option to: (a) obtain a license for the affected portion of the BackEngine Service; (b) modify or replace the affected portion of the BackEngine Service, so as to avoid infringement, without materially degrading the functionality of the BackEngine Service; or (c) terminate or discontinue the BackEngine Service (or affected portion thereof). Notwithstanding the foregoing, BackEngine will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim: (i) based upon any modification of the BackEngine Service (or any part thereof) by any person other than BackEngine or its authorized representatives, (ii) based upon the use, operation, or combination of the BackEngine Service (or any part thereof) with software programs, data, equipment, materials or business processes not provided by BackEngine (including, but not limited to, Third Party Services), if such claim would not have arisen but for such use, operation or combination, and/or (iii) any Beta Version, or any free, trial or promotional use of the BackEngine Service. THIS SECTION 9.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BACKENGINE’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT AND/OR MISAPPROPRIATION.

  2. 9.2. Indemnification by Customer

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

  3. 9.3. Procedure

     The party to be indemnified party shall (a) promptly notify the indemnifying party in writing of any claim asserted against the indemnified party (provided that, a delay in providing notice does not excuse the indemnifying party’s obligations unless the indemnifying party is prejudiced by such delay), (b) give the indemnifying party sole control of the defense thereof, and, (c) at the indemnifying party’s reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall the indemnifying party enter into any settlement that involves an admission of liability, negligence or other culpability of the indemnified party or requires the indemnified party to contribute to the settlement without the indemnified party’s prior written consent. The indemnified party may participate and retain its own counsel at its own expense.

• 10. disclaimers

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

• 11. limitation of liability

  1. 11.1. Consequential Damages

     TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION, FOR ANY (A) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (B) INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; OR (C) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.

  2. 11.2. Damages Cap

     TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL A PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER OR RELATING TO THIS AGREEMENT EXCEED, IN THE AGGREGATE, ANY AMOUNTS GREATER THAN THE FEES PAID OR PAYABLE BY CUSTOMER TO BACKENGINE FOR THE BACKENGINE SERVICE GIVING RISE TO THE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE CAUSE OF ACTION, OR, WITH RESPECT TO ANY FREE, TRIAL, PROMOTIONAL, OR BETA VERSION, $100.00 (THE “STANDARD CAP”).

  3. 11.3. Excluded Claims

     THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO ANY BREACH OF SECTION 3.2 (SECURITY) OR SECTION 8 (CONFIDENTIALITY), OR CUSTOMER’S OBLIGATIONS UNDER SECTION 2.4 (PROHIBITED USES) OR 3.3 (CUSTOMER RESPONSIBILITY), OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT (COLLECTIVELY, “EXCLUDED CLAIMS”); PROVIDED THAT, WITH RESPECT TO ANY BREACH OF SECTION 3.2 (SECURITY) OR SECTION 8 (CONFIDENTIALITY) AS IT RELATES TO CUSTOMER DATA OR BACKENGINE’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL BACKENGINE’S TOTAL AGGREGATE LIABILITY EXCEED 2X THE STANDARD CAP.

  4. 11.4. Basis of the Bargain

     HE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES AGREE THAT THIS SECTION 11 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT BACKENGINE WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION. THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. BACKENGINE DISCLAIMS ALL LIABILITY OF ANY KIND WITH RESPECT TO BACKENGINE’S LICENSORS AND SUPPLIERS. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF BACKENGINE’S SUPPLIERS.

  5. 11.5. Jurisdictional Issues

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

• 12. availability of the service

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

• 13. government rights

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

• 14. modifications to this agreement

  BackEngine reserves the right to change, modify or update this Agreement at any time, subject to this Section. Except as otherwise stated in this Section, all updates and modifications to this Agreement will be effective from the day they are posted at https://​www.backengine.com/​terms-and-conditions. or through the user interface of the Platform, as indicated by the “Last Updated” date set forth above. BackEngine will provide Customer reasonable prior notice of any material changes to this Agreement (“Material Changes”) by email. If Customer does not agree to any such Material Changes, then, prior to the effective date of such Material Changes (as specified in the email notice to Customer):
  • if Customer has obtained access to the BackEngine Service on a free or trial basis, Customer must terminate its Account as set forth in Section 7.3(a) above and cease all use and access of the BackEngine Service, or
  • If Customer has paid for access to the BackEngine Service, Customer may either:

    • object to such Material Changes by notifying BackEngine of the specific objections via email at [email protected], in which case, unless otherwise mutually agreed upon by the parties in writing, the version of this Agreement prior to such Material Changes (subject to any non-material updates, which shall take effect as set forth herein and are not subject to any right of objection or termination remedies herein) shall remain in effect until the earlier to occur of (1) Customer’s acceptance of subsequent Material Changes, or (2) the end of Customer’s then-current Subscription Term (not including any renewal), after which time the then-current version of the Agreement posted at https://​www.backengine.com/​terms-and-conditions at the time of renewal will go into effect, unless Customer cancels renewal of its subscription to the BackEngine Service in accordance with Section 7.2; or
    • elect to terminate this Agreement by providing written notice to BackEngine by email at [email protected], provided that, all fees shall become immediately due and payable for the remainder of Customer’s then-current Subscription Term.
    The foregoing states Customer’s sole and exclusive remedy for any changes or modifications to this Agreement that Customer does not agree with. Customer and/or its Authorized Users may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the BackEngine Service, and in any event (unless Customer has notified BackEngine of its objection to the modified Agreement or terminated this Agreement as set forth above) Customer’s or any of its Authorized User’s continued use of the BackEngine Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

• 15. governing law; venue

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

• 16. General

  1. 16.1. Severability; Waiver

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

  2. 16.2. Notices

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

  3. 16.3. Consent to Electronic Notices

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

  4. 16.4. Assignment

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

  5. 16.5. Third Party Rights

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

  6. 16.6. Entire Agreement; Construction

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