BCG Terms & Conditions
Terms and Conditions
IMPORTANT: PLEASE SEE THE ARBITRATION AGREEMENT BELOW IN SECTION 13(g) WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN THE PARTIES TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION: (1) CLIENT WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST BCG ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) CLIENT IS WAIVING CLIENT’S RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON CLIENT’S CLAIMS. IF YOU DO NOT AGREE TO THIS PROVISION, THEN YOU SHOULD NOT ENTER INTO THIS AGREEMENT AND BCG WILL NOT PROVIDE THE SERVICES, WORK PRODUCT, OR DELIVERABLES UNDER THIS AGREEMENT.
These General Terms and Conditions (“Terms and Conditions” or “Ts&Cs”) are made a part of that certain Master Services Agreement (“MSA”) by and between BASILEIA CONSULTING GROUP, LLC, an Alaska limited liability company (“BCG”) and Client identified in the Basic Terms of the MSA. All undefined capitalized terms herein shall have the meanings ascribed to such terms as set forth in the Agreement. These Ts&Cs, along with the MSA, including the Basic Terms, one or more Statement(s) of Work mutually agreed upon by BCG and Client from time to time together constitute the “Agreement” pursuant to which BCG will provide, and Client will purchase, the Services and Deliverables specified in each Statement of Work.
“Application” means a computer software package that performs a specific function directly for an end user or, in some cases, for another application. An application can be self-contained or a group of programs.
“Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
“BCG Materials” means the Services, the Documentation, the Deliverables, and any and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, BCG Materials includes any information, data, or other content derived from BCG’s monitoring of Client’s access to or use of the Services, but does not include Client Data.
“Client Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services.
“Deliverables” means all of the itemized components which BCG delivers to Client as described in the applicable SOW which may include HTML files, Java files, graphics files, animation files, data files, technology, scripts and programs, both in object code and source code form, all documentation and any other Deliverable prepared for Client by BCG in accordance with the terms of this Agreement.
“Documentation” means BCG’s user manuals, handbooks, and guides relating to the Services which may be provided by BCG to Client either electronically or in hard copy form/end user documentation relating to the Services.
“Open Source Components” means any software components that are subject to any open source copyright license agreement, including but not limited to any GNU General Public License or GNU Library or Lesser Public License, or other license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative.
“Services” means the software-as-a-service offering described in one or more Statements of Work.
“Statement of Work” or “SOW” means one or more Statements of Work which may be entered into at the Effective Date of this Agreement or subsequently. Each SOW shall describe the Services, shall be dated, sequentially numbered, and reference the MSA, the Parties to the Agreement, the SOW Effective Date, the term of the SOW, the Fees and any other pertinent information with respect to such SOW. A SOW may also consist of, or include, a quote provided by BCG and signed by BCG and Client. Each SOW is subject to the terms and provisions of these Ts&Cs, and shall constitute a part of, and is incorporated into, this Agreement.
“Third-Party Products” means any third-party products described in the Statement of Work, or provided with or incorporated into the Services, including any Open Source Components.
- Access and Use.
(a) Provision of Access. Subject to and conditioned on Client’s payment of Fees and compliance with all the terms and conditions of this Agreement, BCG hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 12(h)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal use. BCG shall provide to Client the necessary passwords and network links or connections to allow Client to access the Services. The total number of Authorized Users will not exceed the number set forth in the SOW, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder. Client is responsible for keeping its passwords and access credentials associated with the Services confidential. Client will not sell or transfer them to any other person or entity. Client will promptly notify us about any unauthorized access to Client’s passwords or access credentials.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, BCG hereby grants to Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(h)) license to use the Documentation during the Term solely for Client’s internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. BCG reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third-party any intellectual property rights or other right, title, or interest in or to the BCG Materials.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, BCG may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if: (i) BCG reasonably determines that (A) there is a threat or attack on any of the BCG Materials or Services; (B) Client’s or any Authorized User’s use of the BCG Materials or Services disrupts or poses a security risk to the BCG Materials or Services or to any other customer or vendor of BCG; (C) Client, or any Authorized User, is using the BCG Materials or Services for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) BCG’s provision of the Services to Client or any Authorized User is prohibited by applicable law; (ii) any vendor of BCG has suspended or terminated BCG’s access to or use of any third-party services or Third-Party Products required to enable Client to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). BCG shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. BCG shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. BCG will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension. Notwithstanding any Service Suspension, Client shall continue to be obligated to pay the Fees.
- Client Responsibilities.
(a) General. Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Client shall at all times comply with all applicable Laws, including Accessibility Laws. Client, and not BCG, shall be responsible for compliance with all applicable Privacy Laws. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. Part of the Services may include Third-Party Products. Such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions. If Client does not agree to abide by the applicable terms for any such Third-Party Products, then Client should not install or use such Third-Party Products, however such failure to use or install such Third-Party Products shall not require BCG to refund any Fees paid hereunder, and Client shall be obligated to pay for such Fees specified in this Agreement, including Section.
(c) Client Credentials. Client shall provide such Client usernames, passwords and other credentials with respect to each SOW that may be necessary for BCG to perform the Services and provide the Deliverables under a particular SOW.
- Support. Unless otherwise stated in a SOW, this Agreement does not entitle Client to any support for the Services.
- Fees and Payment.
(a) Fees. Client shall pay BCG the fees (“Fees”) as set forth in the SOW without offset or deduction. Client shall make all payments hereunder in US dollars on or before the due date set forth in the SOW. Recurring Fees are automatically billed against Client’s credit card on either the first or fifteenth of the month, depending upon when Client executed this Agreement. If not set forth in the particular SOW, then payments are due upon receipt of BCG’s invoice. If Client fails to make any payment when due, without limiting BCG’s other rights and remedies: (i) BCG may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Client shall reimburse BCG for all costs incurred by BCG in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) subject to Section 5(c) below, if such failure continues for thirty (30) days or more, BCG may suspend Client’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on BCG’s income.
(c) Client Credit Card. For each SOW, Client shall maintain a valid credit card on file with BCG for the charging of Fees and Expenses. Client authorizes BCG to charge any and all Fees for BCG’s Services and Expenses on that credit card. Notwithstanding anything to the contrary, should Client’s credit card fail to be valid or if it is declined, Client shall be in default and BCG may suspend providing Services until Client has provided a valid credit card, provided the ongoing Fees and Expenses shall continue to accrue and be due and payable to BCG notwithstanding such suspension.
(d) Third-Party Products. Client acknowledges and agrees that Fees for Third-Party Products often must be paid in advance and are non-cancellable for the period specified in the SOW, which may be one or multiple years. Accordingly, if this Agreement or any SOW pursuant to which such Third-Party Product are provided is terminated for any reason, Client shall not be entitled to any refund for such Fees if paid in advance, or if not paid in advance, Client agrees that it is obligated to pay to BCG the Fees for the remaining term of the license for such Third-Party Product as set forth in the SOW within ten (10) days after BCG’s invoice therefor. Client hereby consents to BCG billing such amount against Client’s credit card previously provided by Client to BCG for payment of Fees.
(e) Expenses. Client shall reimburse BCG for any pre-approved expenses in connection with provision of the Services (“Expenses”). BCG shall provide Client with a detailed invoice for such Expenses, including receipts evidencing payment thereof. BCG may charge Client’s credit card for such Expenses and if no valid credit card is on file with BCG, Client shall pay such Expenses within fifteen (15) days after receipt of such invoice.
(f) Monthly Billing. In the event Fees are specified in a SOW to be billed on a monthly basis (v. in advance on an annual basis), then if Client is expressly permitted pursuant to such SOW to terminate such SOW prior to the expiration of the SOW Term, then Client must give BCG at least thirty (30) days’ prior written notice of such termination and Client shall pay BCG the Early Termination Fee. “Early Termination Fee” means one (1) month’s recurring Fees and if not billed on a recurring basis, a sum equal to the previous month’s Fees billed to Client immediately prior to such termination. The Early Termination Fee shall be charged by BCG against Client’s credit card, provided that if no valid Client credit card is on file with BCG, then Client shall pay such Early Termination Fee on or before the date of such termination.
- Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third-party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- Intellectual Property Ownership; Feedback.
(a) BCG Materials. Client acknowledges that, as between Client and BCG, BCG owns all right, title, and interest, including all intellectual property rights, in and to the BCG Materials and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Client Data. BCG acknowledges that, as between BCG and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to BCG a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for BCG to provide the Services to Client.
(c) Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to BCG by mail, email, telephone, or otherwise, suggesting or recommending changes to the BCG Materials, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), BCG is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to BCG on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and BCG is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although BCG is not required to use any Feedback.
- Limited Warranty and Warranty Disclaimer.
(a) BCG warrants that the Services will conform in all material respects to the service levels set forth in Exhibit B when accessed and used in accordance with the Documentation. BCG does not make any representations or guarantees regarding uptime or availability of the Services. The remedies set forth in this Agreement are Client’s sole remedies and BCG’s sole liability under the limited warranty set forth in this Section 8(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND BCG STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a),THE BCG MATERIALS ARE PROVIDED “AS IS” AND BCG HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BCG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), BCG MAKES NO WARRANTY OF ANY KIND THAT THE BCG MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, OR BCG DELIVERABLES, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, COMPLY WITH DATA PROTECTION AND PRIVACY LAWS OF ANY STATE OR FOREIGN COUNTRY (“PRIVACY LAWS”), OR THE AMERICANS WITH DISABILITIES ACT OR ANY SIMILAR STATE, FEDERAL OR INTERNATIONAL LAWS WITH RESPECT TO ACCESSIBILITY OF THE SERVICES OR DELIVERABLES BY DISABLED OR PHYSICALLY DISADVANTAGED USERS (“ACCESSIBILITY LAWS”), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. BCG STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. BCG ASSUMES NO OBLIGATIONS OR LIABILITIES FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. CLIENT UNDERSTANDS AND AGREES THAT TEMPORARY INTERRUPTIONS OF THE SERVICES MAY OCCUR AS NORMAL EVENTS. CLIENT FURTHER UNDERSTANDS AND AGREES THAT BCG HAS NO CONTROL OVER THIRD-PARTY PRODUCTS, OPEN SOURCE COMPONENTS, OR THIRD-PARTY NETWORKS THAT CLIENT MAY ACCESS IN THE COURSE OF THE PROVISION OF THE SERVICES AND DELIVERABLES OR THE USE OF CLIENT’S WEBSITE, AND THEREFORE, DELAYS AND DISRUPTION OF OTHER NETWORK TRANSMISSIONS ARE COMPLETELY BEYOND BCG’S CONTROL. CLIENT ACKNOWLEDGES AND AGREES THAT WITHOUT THIS WARRANTY DISCLAIMER SET FORTH IN THIS SECTION, BCG WOULD NOT ENTER INTO THIS AGREEMENT WITH CLIENT.
(a) BCG Indemnification.
(i) BCG shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third-party’s US patents, copyrights, or trade secrets, provided that Client promptly notifies BCG in writing of such Third-Party Claim, cooperates with BCG, and allows BCG sole authority to control the defense and settlement of such Third-Party Claim.
(ii) If a Third-Party Claim is made or appears possible, Client agrees to permit BCG, at BCG’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If BCG determines that neither alternative is reasonably available, BCG may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client and shall refund to Client any prepaid Fees for the terminated components that have not been provided.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) Client’s use of the Services in combination with data, software, hardware, equipment, or technology not provided by BCG or authorized by BCG in writing; (B) modifications to the Services not made by BCG; (C) Client Data; (D) material breach of this Agreement by Client that resulted in such Third-Party Claim; or (E) Third-Party Products.
(b) Client Indemnification. Client shall indemnify, hold harmless, and, at BCG’s option, defend BCG from and against any Losses resulting from any Third-Party Claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third-party’s intellectual property rights and any Third-Party Claims based on Client’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by BCG or authorized by BCG in writing; (iv) violation of applicable law, including Accessibility Laws or Privacy Laws; or (v) modifications to the Services not made by BCG, provided that Client may not settle any Third-Party Claim against BCG unless BCG consents to such settlement, and further provided that BCG will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 9 SETS FORTH CLIENT’S SOLE REMEDIES AND BCG’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS, INCLUDING IF THE SERVICES OR DELIVERABLES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL BCG’S LIABILITY UNDER THIS SECTION 9 EXCEED ONE MONTH’S RECURRING FEES THAT WERE PAID OR PAYABLE BY CLIENT TO BCG FOR THE MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Limitations of Liability. IN NO EVENT WILL BCG BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), IN EACH CASE REGARDLESS OF WHETHER BCG WAS ADVISED OF THE POSSIBILITY OF SUCH EXCLUDED DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT SHALL BCG BE LIABLE IN CONTRACT, TORT, THIRD-PARTY LIABILITY, BREACH OF STATUTORY DUTY OR OTHERWISE, IN RESPECT OF ANY DIRECT, OR EXCLUDED DAMAGES, WHETHER OR NOT FORESEEABLE, IF DUE TO CYBER TERRORISM OR IF THE CLIENT’S SYSTEM AND/OR DATA IS COMPROMISED AND/OR BREACHED BECAUSE OF THE DISTRIBUTION OF UNSOLICITED EMAIL, DIRECT MAIL, FACSIMILES, TELEMARKETING OR BECAUSE OF THE COLLECTION OF INFORMATION BY MEANS OF ELECTRONIC “SPIDERS”, “SPYBOTS”, “SPYWARE”, WIRE-TAPPING, BUGGING, VIDEO CAMERAS OR IDENTIFICATION TAGS.
IN NO EVENT WILL BCG’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED ONE MONTH’S RECURRING FEES THAT WERE PAID OR PAYABLE BY CLIENT TO BCG FOR THE MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
“Cyber Terrorism” means an act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed toward the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat there from.
- Term and Termination.
(a) Term. The Term of this Agreement is specified in the Basic Terms. The term of a particular SOW is specified in that SOW (the “SOW Term”). Notwithstanding anything to the contrary, if the SOW Term extends beyond Term of this Agreement, then the Term of this Agreement shall be automatically extended commensurately with the longest SOW Term.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) BCG may terminate this Agreement, effective on written notice to Client, if Client : (A) subject to Section 5(c), fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after BCG’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
(ii) other than with respect to a payment breach which is covered by Section 11(b)(i) above, either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the Services and the BCG Materials and, without limiting Client’s obligations under Section 6, Client shall delete, destroy, or return all copies of the Services and the BCG Materials and certify in writing to BCG that the Services and BCG Materials have been deleted or destroyed. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund. Client shall be responsible to comply with Sections 5(c) and 5(d).
- Managed Services. If the Services as specified in a SOW include managed services provided by BCG, then the following shall apply:
- Appointment of Representative. Each Party shall appoint a designated representative and liaison to serve as the primary contact person between the Parties (each, a “Representative”). The Client Representative shall deliver to BCG Client’s licensed software applications (“Client Applications”), answer any questions that arise concerning the Client Applications, the installation and configuration media for the Client Applications (“Client Owned Media”) and all available documentation for the installation, configuration and support of the client applications (“Client Documentation”), provide feedback to the BCG’ Representative during the set-up period, serve as the final authority to approve the set-up and otherwise serve as the contact person for any other issues that may arise. Either party may change its Representative by notifying the other party of the change in writing.
- Client Equipment. Client shall be responsible for obtaining and maintaining all on premise equipment throughout the Term of this Agreement, all computer hardware, software, communication lines, ports, interface equipment, terminals, internet access, bandwidth, network routing equipment, switches, Application licenses, third-party hardware and/or software maintenance agreements, and other materials necessary for each Authorized User to access and use the Services at Client’s facilities (“Client Equipment”). Client shall be responsible for all costs and expenses, if any, associated with procuring, providing, installing, configuring, deploying, upgrading, modifying Client Equipment or any component thereof, including any on-site consulting services provided by BCG at its then current rates.
- Client Changes. Client shall notify BCG in writing prior to implementation of any changes to the Client’s equipment not made or requested by BCG including, but not limited to, changes to any network configuration, hardware, or client-side software, and any upgrades or modifications thereto (“Client Changes”). Client acknowledges and agrees that Client Changes may limit, interfere and/or disable access, use, performance and functionality of Services and that disruption may occur as a result of any such Client Changes. Any materials or Services which BCG is requested to provide as a result of any such Client Changes shall be considered additional services outside the scope of this Agreement and will be subject to additional service fees and charges at BCG’s then current rates if Client wishes to engage BCG to perform such additional services.
- Change Orders. From time to time, BCG and Client may agree upon making modifications to the SOW and the same shall be documented by the Parties in a written change order that is accepted by both Parties, such acceptance may be evidenced by an amendment to the SOW that is executed by both Parties, or by an exchange of emails whereby BCG describes the changes, including any changes in pricing, time frame, etc. and Client provides its consent by approving or accepting such change by responsive email (“Change Order”). The Change Order shall be a part of, and shall be deemed to modify the SOW to the extent provided in the Change Order.
- No Representation or Warranty. BCG does not verify or in any way guarantee the completeness and/or the integrity of Client data input into the system. Client is responsible for the ongoing verification of such data. Client must supply proof of all required licenses for the Client Applications including, but not limited to, all necessary Client access licenses and serial numbers needed to install and support the Client Applications and copies of the Client’s license certificates and agreements for the same, including any licensing codes and/or unlocking codes. Client acknowledges that it will remain in compliance with all software licenses for the Client Applications. Client assumes responsibility for any and all changes to its local systems for the purposes of maintaining its Client Applications license compliance specifically including, but not limited to, costs for removing copies of Third-Party Applications which must be removed from Client owned systems in order to maintain compliance with Client’s software license agreements.
- Support Agreements. All support or maintenance fees Client pays to third-party software vendors will remain between the Client and the Client’s vendor, and Client shall maintain active support agreements for all “Third-Party Applications”, defined as all Applications other than that which is included in the Third-Party Products subscriptions as Services provided through BCG as specified in a SOW. BCG shall not be liable for troubleshooting issues regarding such Third-Party Applications without support agreements. The cost of any software, licensing or software renewal or upgrade fees of any kind is not covered under this Agreement. Additionally, the cost of any third-party vendor or manufacturer support or incident fees of any kind is not covered hereunder.
- Compliance with Law. Client is responsible for compliance with any and all laws and regulations that may be applicable to the use and maintenance of the Client Applications and Client data, information, communications, records and operation of Client’s business, including Accessibility Laws and Privacy Laws, as well as the expense of compliance with such laws and regulations.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission and receipt by the recipient), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California.
(g) Dispute Resolution.
- PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES CLIENT TO ARBITRATE CERTAIN DISPUTES WITH BCG AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. This Section 13(g) shall survive the expiration or termination of this Agreement.
(1) The Parties intend to address Client’s concerns without resorting to a formal legal case. Before filing a formal legal claim against BCG, please contact BCG at the address set forth in this Agreement, Attn: Bill Durham, and BCG will attempt to resolve the dispute and address Client’s concerns. If a dispute is not resolved within fifteen (15) days after submission, BCG or Client may bring a formal proceeding as set forth in this Section 13(g).
(2) Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be conducted confidentially and determined by arbitration in Orange County, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction; provided, however, that neither Client nor BCG are required to arbitrate any dispute in which either Party seeks equitable or injunctive relief for the alleged unlawful use of the other Party’s Intellectual Property Rights, or Confidential Information.
(3) Client and BCG agree that arbitration will occur exclusively in Orange County, California, and that arbitration will be conducted confidentially by a single arbitrator.
(4) If for any reason this agreement to arbitrate does not apply to the dispute, the Parties agree that any judicial proceeding, including any appeal of an arbitration award, will be brought exclusively in the federal or state courts located in Orange County, State of California. Each Party consents to exclusive venue and personal jurisdiction in Orange County, State of California, and each Party agrees to waive its right to a jury trial.
(5) WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, CLIENT HEREBY WAIVES ANY RIGHT TO COMMENCE A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
(ii) Choice of Forum. Subject to Section 13(g)(i), each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Central District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Orange County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in United States District Court for the Central District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Orange County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(iii) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(h) Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of BCG, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(i) Export Regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Client Data outside the US.
(j) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Client is an agency of the US Government or any contractor therefor, Client only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(k) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Client, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(l) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
(m) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
(n) No Third-Party Beneficiaries. Except as specified in any indemnification provision herein, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(o) Interpretation. This Agreement shall be interpreted and enforced only in U.S. English language. The term “including” shall mean, “including, without limitation.” Headings and titles shall not be used to interpret this Agreement, but are only for convenience. The Parties to this Agreement have had the opportunity to obtain counsel of their choice in the review, negotiation and documentation of this Agreement, accordingly, this Agreement shall not be interpreted against one or the other Party as the drafter of this Agreement. Any conflicting or different terms in the SOW shall prevail over these Ts&Cs, but only with respect to that particular SOW.
(p) Non-Exclusivity. This Agreement shall not limit or preclude BCG from providing similar or identical Services to other clients and shall not limit or preclude Client from contracting with or obtaining similar or identical services and/or products from other service providers. However, Client represents and warrants that any such services provided to Client by other service providers while this Agreement is in effect shall not obstruct or interfere in any manner with BCG ability to provide the Services which are the subject of this Agreement.