Section 11.2 of these Standard Terms and Conditions for Platform as a Service (the “Terms and Conditions”
and collectively with the Order Form, the other Supplemental Terms, and any other schedules, exhibits or
appendices referenced in the Supplemental Terms, this “Agreement”) contains a mandatory arbitration of
disputes provision that requires the use of arbitration on an individual basis to resolve disputes,
rather than jury trials or class actions.
For purposes of this Agreement, the following terms shall have the following meanings:
1.1 “Customer Software” means software provided by Customer to BAO Systems or otherwise provided
to BAO Systems under an open source license, in each case for the purpose of BAO Systems hosting such
software under this Agreement.
1.2 “Hosting Service” mean BAO Systems’ proprietary software, in object code form, identified in
the Order Form as software licensed to Customer, and any Updates thereto.
1.6 “Supplemental Terms” means, collectively, these Terms and Conditions, the Maintenance and
Support Terms, and the Service Level Agreement.
1.7 “Updates” means the object code forms of any modifications, error corrections, bug fixes,
new releases, or other updates of or to the Licensed Software that may be provided or otherwise made
available hereunder by BAO Systems to Customer during the Term.
2. Grant of license; Restrictions
2.1 Access and Use of the Platform Services. Subject to the terms and conditions of this
Agreement, BAO Systems shall make the Platform Services available to Customer during the Term in
accordance with Service Level Agreement and solely for Customer’s internal business use.
2.2 Right to Access and Use the Licensed Software. Subject to the terms and conditions of this
Agreement, BAO Systems hereby grants to Customer a non-exclusive, non-transferable (except pursuant to
Section 11.1), non-sublicensable right and license, during the Term, to access and use the Licensed
Software as made available by BAO Systems through the Platform Services, solely in accordance with the
standard documentation for the Licensed Software, as generally provided by BAO Systems to its other,
similarly situated customers (the “Documentation”) and solely for Customer’s internal business use.
2.3 Grant of License in the Customer Software. Customer hereby grants to BAO Systems a
non-exclusive, non-transferable (except pursuant to Section 11.1), non-sublicensable (except to
subcontractors engaged by BAO Systems in connection with this Agreement) right and license, during the
Term, to (a) install the Customer Software on systems controlled or licensed by BAO Systems for the
purpose of hosting the Customer Software for the benefit of Customer, and (b) provide to Customer
access to and use of the Customer Software through the Platform Services. Customer represents and
warrants to BAO Systems that it has the right to grant the license in this Section 2.3.
2.4 Restrictions. Customer and its personnel shall use the Platform Services, the Licensed
Software, and the Customer Software solely in accordance with all applicable laws, rules, and
regulations. Customer shall not, and shall not permit any other person, to: (a) copy all or any
portion of the Licensed Software or the Platform Services; (b) decompile, disassemble, or otherwise
reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a
contractual obligation to the contrary) the Licensed Software or Platform Services, or any portion
thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques
used or embodied in the Licensed Software or Platform Services or any portion thereof; (c) modify,
translate, or create any derivative works based upon the Licensed Software or Platform Services; (d)
distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the
Licensed Software or the Platform Services, in whole or in part, to any third party; (e) remove or
alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing
on or in the Licensed Software or Platform Services; (f) perform, or release the results of, benchmark
tests or other comparisons of the Licensed Software or Platform Services with other software or
materials; (g) incorporate the Licensed Software or any portion thereof into any other materials,
products, or services; or (h) use the Licensed Software for any purpose other than in accordance with
the terms and conditions of this Agreement. In the event of any violation of this Section 2.4,
BAO Systems may immediately terminate this Agreement.
2.5 Customer Materials. Solely for the purpose of making the Licensed Software, Customer
Software, or Platform Services available to Customer in accordance with this Agreement, BAO Systems
may use, reproduce, and transmit the data, information, content, and other materials generated by
Customer through the use of, stored by Customer in connection with, or transmitted by Customer by or
through, the Licensed Software, Customer Software, and/or Platform Services
(the “Customer Materials”). Customer represents and warrants to BAO Systems that it has the
right to allow BAO Systems to use, reproduce, and transmit the Customer Materials in accordance with
the foregoing sentence.
3. Hosting & Support Services
3.1 Authorized User Credentials. BAO Systems shall provide, or shall permit Customer to provide
as part of the Platform Services, a unique username, password or other access credentials for each
authorized user designated by Customer that may be used to access and use the Platform Services in
accordance with this Agreement. Customer (a) hereby acknowledges that it bears sole responsibility for
protecting all access credentials granted in connection with this Agreement; (b) shall not provide any
such information to any third party; and (c) shall be solely responsible for any unauthorized use of
any such access credentials.
3.2 Security. BAO Systems employs commercially reasonable security measures in providing the
Platform Services. Nevertheless, BAO Systems makes no representation or warranty that such security
measures will be effective, and BAO Systems shall not be responsible for any breach of security
measures, any viruses or other harmful programming or codes, or the integrity of the Platform Services,
unless caused by BAO Systems’ gross negligence or willful misconduct.
3.3 Updates, Maintenance, and Technical Support. During the Term, BAO Systems shall make
available Updates to the Licensed Software as they are made generally available by BAO Systems to its
other similarly situated customers, as well as maintenance and technical support, in accordance with
the terms and conditions set forth in the Maintenance and Technical Support Terms. Any Update provided
or made available by BAO Systems hereunder shall be deemed part of the Licensed Software and shall be
subject to the terms and conditions of this Agreement.
3.4 Support Services. BAO Systems will perform the Support Services described in the Order Form
executed by the parties (for example, services relating to setup of a hosted Customer Software instance
or other implementation services beyond those contemplated by the Maintenance and Technical Support),
which will be provided at the rates set forth in the Order Form (“Support Services”).
Customer’s timely provision of Customer’s facilities, equipment, materials, personnel, assistance,
and cooperation in connection with the Support Services is essential to the performance of the
Support Services, and BAO Systems shall not be liable for any deficiency in performing the Support
Services if such deficiency results, in whole or in part, from Customer’s failure to provide such
3.5 Domain Purchasing Services. If provided for in an Order Form executed by the parties, BAO
Systems will purchase a web domain on Customer’s behalf in connection with the Platform Services
(the “Customer Domain”) for the Fee listed the Order Form. BAO Systems may allow Customer to
select the domain name of the Customer Domain, in which case Customer: (i) represents and warrants to
BAO Systems that it has the right to use the domain name selected in connection with the Customer
Domain; (ii) represents and warrants that the use of such name in connection with the Customer Domain
will not violate or infringe the proprietary or intellectual property rights of any third party; and
(iii) grants to BAO Systems a non-exclusive, non-transferable (except pursuant to Section 11.1),
non-sublicensable (except to subcontractors engaged by BAO Systems in connection with this Agreement)
right and license, during the Term, to use the domain name selected by Customer in connection with the
Customer Domain. Although BAO Systems will be initially listed as the registrant in the registry entry
associated with the Customer Domain, upon written request by Customer at any time during the Term or
within seven (7) days following expiration or termination of this Agreement, BAO Systems will transfer
the Customer Domain to Customer at BAO System’s then-current rates for such transition services.
4. Fees and Payment
4.1 Fees. Customer shall pay to BAO Systems all fees payable in connection with this Agreement
in the amounts and according to the terms and conditions set forth in this Agreement and the applicable
Order Form (“Fees”). All Fees are nonrefundable. All Fees shall be in U.S. Dollars, unless otherwise
specified in the Order Form. Except as otherwise specified in an Order Form, Customer shall pay all
Fees via check (payable to BAO Systems, LLC), credit card through BAO Systems’ website, ACH, or wire
transfer. For any wire transfers, Customer shall be solely responsible for all wire fees incurred in
connection with such payments, including those from intermediary banks on foreign wire transfers.
In event that any Fees remain overdue for thirty (30) days or longer (a) such Fees shall be subject to
interest equal to the lesser of one and one-half percent (1.5%) per month and the maximum amount
permitted by law, calculated on a daily basis, and (b) BAO Systems may, in its sole discretion, either
suspend the Platform Services until all overdue Fees are paid, or terminate this Agreement immediately
upon notice of such termination to Customer.
4.2 Taxes. All prices set forth in this Agreement are in U.S. Dollars and are exclusive of any
applicable taxes. Customer shall pay, indemnify, and hold BAO Systems harmless from all import and
export duties, customs fees, levies, or imposts, and all sales, use, value added, or other fees,
governmental charges, or taxes of any nature (other than U.S. taxes on BAO Systems’ income), including
penalties and interest, and all government permit or license fees assessed upon or with respect to any
products sold, leased, or licensed to Customer and any services rendered to Customer.
5. Proprietary rights
As between BAO Systems and Customer, BAO Systems and its licensors own and shall retain all right, title and
interest, including, without limitation, all intellectual property rights, in and to the Licensed Software and
the Platform Services and any portions thereof, including, without limitation, any copy or Derivative Work of
the Licensed Software or Platform Services (or any portion thereof) and any Updates thereto. Customer shall
have only those rights in and to the Licensed Software and Platform Services and any Derivative Work or Update
thereto as are expressly granted to it under this Agreement. To the extent that Customer provides to BAO
Systems any suggestions, requests, recommendations and other feedback concerning the functionality and use of
the Platform Services, the Licensed Software, or any other product or service of BAO Systems
(collectively, “Feedback”), Customer hereby assigns all right, title, and interest to such Feedback to
6. Confidential information
6.1 Confidential Information. Customer acknowledges that, in the course of using the Licensed
Software and Platform Services and exercising its rights under this Agreement, it may obtain
confidential information relating to the Licensed Software, the Platform Services, or BAO Systems and
its vendors or other licensors (“Confidential Information”). Such Confidential Information shall,
as between Customer and BAO Systems, belong solely to BAO Systems and shall include, without
limitation, the Licensed Software (including all Updates). Customer agrees: (a) to protect the
Confidential Information from unauthorized dissemination and use; (b) to use the Confidential
Information only in connection with the exercise of Customer’s rights hereunder; and (c) not to
disclose any Confidential Information, or any part or parts thereof, to any of its employees, agents,
or contractors other than those employees who are using the Licensed Software and the Platform Services
and are aware of the confidentiality obligations imposed by this Section 6.
6.2 Exclusions. The foregoing restrictions pertaining to the Confidential Information shall not
apply with respect to any Confidential Information that: (a) was or becomes publicly known through no
fault of Customer; (b) was known by Customer before receipt from BAO Systems, as evidenced by
Customer’s written records; (c) becomes known to Customer without confidential or proprietary
restriction from a source other than BAO Systems that does not owe a duty of confidentiality to BAO
Systems with respect to such Confidential Information; or (d) is independently developed by Customer
without the use of the Confidential Information.
7. Representations and warranties
7.1 Mutual Representations. Each party represents and warrants to the other party that the
execution, delivery and performance of this Agreement (a) is within its corporate powers, (b) has been
duly authorized by all necessary corporate action on such party’s part, and (c) does not and shall not
contravene or constitute a default under, and is not and shall not be inconsistent with, any judgment
decree or order, or any contract, agreement, or other undertaking, applicable to such party.
7.2 Limited Warranty. Subject to the limitations set forth in this Agreement, BAO Systems
represents and warrants to Customer that (a) the Licensed Software, when used in accordance with the
Documentation, shall throughout the Term substantially conform to the functional specifications in such
Documentation as delivered to Customer, and (b) BAO Systems will perform the Support Services in a
professional manner consistent with industry standards. If Customer finds what it reasonably believes
to be a failure of the Licensed Software to substantially conform to the functional specifications in
the Documentation, and provides BAO Systems with a written report that describes such failure in
sufficient detail to enable BAO Systems to reproduce such failure, BAO Systems shall use commercially
reasonable efforts to correct or provide a workaround for such failure at no additional charge to
Customer. If BAO Systems breaches the warranty set out in Section 7.2(b) during the Term, BAO Systems
will re-perform the applicable Support Services at no additional cost to Customer.
THIS SECTION 7.2 STATES THE ENTIRE LIABILITY OF BAO SYSTEMS AND THE SOLE AND EXCLUSIVE REMEDY OF
CUSTOMER WITH RESPECT TO ANY EXPRESS OR IMPLIED WARRANTIES HEREUNDER OR OTHERWISE IN CONNECTION WITH
7.3 Exclusive Warranty. THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.2 CONSTITUTE THE ONLY
WARRANTIES MADE BY BAO SYSTEMS WITH RESPECT TO THE LICENSED SOFTWARE, THE PLATFORM SERVICES, THE
SUPPORT SERVICES, AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. BAO SYSTEMS MAKES NO OTHER, AND
HEREBY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS,
IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE LICENSED SOFTWARE,
THE PLATFORM SERVICES, THE SUPPORT SERVICES, OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. BAO SYSTEMS
EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE,
OR USAGE OF TRADE. BAO SYSTEMS DOES NOT WARRANT THAT ANY USE OF OR ACCESS TO THE LICENSED SOFTWARE OR
THE PLATFORM SERVICES SHALL BE ERROR-FREE OR SECURE, OR THAT OPERATION OF THE LICENSED SOFTWARE OR THE
PLATFORM SERVICES SHALL BE UNINTERRUPTED, AND HEREBY DISCLAIMS ALL LIABILITY IN CONNECTION THEREWITH.
BAO SYSTEMS MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO THE CUSTOMER SOFTWARE.
Customer shall indemnify, defend, and hold harmless BAO Systems from and against any and all claims, damages,
costs, expenses (including attorney’s fees and court costs), and liabilities (including settlements) brought or
asserted by any third party against BAO Systems related to, resulting from, or arising out of: (a) BAO Systems’
hosting of the Customer Software or Customer Materials; (b) any violation by Customer of any applicable laws
(including national, international, federal, provincial, state or common laws) or regulations concerning
publicity, data security, or privacy; or (c) the purchase or naming of any web domain by BAO Systems on
9. Limitation of liability
9.1 Limited Remedy. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL BAO SYSTEMS OR
ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION
OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND OR
OTHER ECONOMIC LOSS ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, EVEN IF
BAO SYSTEMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED.
9.2 Maximum Liability. Notwithstanding anything in this Agreement to the contrary or the failure
of essential purpose of any limited remedy or limitation of liability, BAO Systems’ entire liability
arising from or relating to this Agreement or the subject matter hereof, under any legal theory
(whether in contract, tort, indemnity, or otherwise), shall not exceed the amounts actually received by
BAO Systems from Customer hereunder.
10. Term and termination
10.1 Term. Unless earlier terminated in accordance with this Agreement, the term of this
Agreement (the “Term”) shall continue while Customer has an active subscription for the
provision of the Platform Services, including any renewals. Unless otherwise stated in an Order Form,
each Order Form shall automatically renew on and the same durational terms set forth in the Order Form
and at BAO Systems’ then-current pricing, unless either party provides written notice of its intent
not to renew at least seven (7) days prior to the expiration of the Term, if the Order Form term is
month-to-month, or thirty (30) days prior to the expiration of the Term, if the Order Form term is
annual or otherwise.
10.2 Termination for Default. If either party materially defaults in any of its obligations
under this Agreement, the non-defaulting party, at its option, shall have the right to terminate the
Order Form(s) or this Agreement by written notice to the other party unless, within thirty (30)
calendar days after receiving written notice of such default, the defaulting party remedies the default.
Notwithstanding anything herein to the contrary, in the event Customer breaches Sections 2 or 6,
BAO Systems may immediately terminate this Agreement upon notice to Customer.
10.3 Termination for Bankruptcy. Either party may terminate this Agreement if the other party
(a) becomes insolvent; (b) fails to pay its debts or perform its obligations in the ordinary course of
business as they mature; (c) is declared insolvent or admits its insolvency or inability to pay its
debts or perform its obligations as they mature; or (d) becomes the subject of any voluntary or
involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment, or
composition, or makes a general assignment for the benefit of creditors; provided that, in the case of
an involuntary proceeding, the proceeding is not dismissed with prejudice within sixty (60) days after
the institution thereof.
10.4 Effect of Termination. Upon the expiration or termination of this Agreement, all Order
Forms, as well as all rights and licenses granted to Customer hereunder, shall immediately terminate.
Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement
and shall not act as a release of either party from any liability for breach of such party’s
obligations under this Agreement. Neither party shall be liable to the other for damages of any kind
solely as a result of terminating this Agreement in accordance with its terms. Either party’s
termination of this Agreement shall be without prejudice to any other right or remedy that it may have
at law or in equity, and shall not relieve either party of breaches occurring prior to the effective
date of such termination. The provisions of Sections 2.4, 2.5, 3.4, 3.5, 4, 5, 6, 7.3, 8, 9, 10.4, 10.5,
10.6, and 11 shall survive the expiration or any termination of this Agreement.
10.5 Post-Termination Customer Materials Access. BAO Systems shall use commercially reasonable
efforts to continue to host and make available Customer Materials to Customer for one (1) year
following any expiration or termination date of this Agreement. Following such one (1) year period,
BAO Systems has no responsibility to retain Customer Materials and Customer may no longer have access
to Customer Materials. Upon Customer’s written request, BAO Systems will destroy all copies of any
Customer Materials in its possession or control at any time during the Term or within one (1) year
10.6 Transition Assistance. Upon written request by Customer during the Term or within sixty
(60) days prior to the end of the one (1) year period following termination or expiration of the
applicable Order Form, BAO Systems may use commercially reasonable efforts to (a) rebuild Customer’s
instance of the Customer Software, (b) create an additional instance of the Customer Software, or (c)
migrate Customer Materials to Customer or a successor third-party provider, at BAO Systems’
11.1 Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by
operation of law, or otherwise, by Customer without the prior written consent of BAO Systems. Subject
to the preceding sentence, the rights and liabilities of the parties hereto are binding on, and shall
inure to the benefit of, the parties and their respective successors and permitted assigns. Any
attempted assignment other than in accordance with this Section 11.1 shall be null and void.
11.2 Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia, without reference to its conflicts of law provisions.
Any controversy or claim arising out of or relating to this Agreement shall be settled exclusively
by arbitration before a single arbitrator in Washington, D.C. in accordance with the then-prevailing
Commercial Arbitration Rules of the American Arbitration Association (as amended herein), and applying
the laws of the Commonwealth of Virginia (without reference to its conflicts of laws provisions). Such
arbitration shall be conducted on an expedited basis and in confidence. The arbitrator shall be well
acquainted with the Internet and software industries, and shall not have the power to impose or award
indirect, consequential, exemplary, or punitive damages. Judgment upon the award rendered by such
arbitration may be entered in any court having jurisdiction. Nothing in this Section shall preclude any
party from seeking interim or provisional relief concerning any controversy or claim arising out of or
relating to this Agreement, including a temporary restraining order, a preliminary injunction or an
order of attachment.
11.3 Attorneys’ Fees. If any legal action, including, without limitation, an action for
arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the
prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event
of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses,
including all court costs, arbitration fees and actual attorney fees paid or incurred in good faith.
11.4 Waiver. The waiver by either party of a breach of or a default under any provision of this
Agreement shall be in writing and shall not be construed as a waiver of any subsequent breach of or
default under the same or any other provision of this Agreement. No delay or omission on the part of
either party to exercise or avail itself of any right or remedy that it has or may have hereunder shall
operate as a waiver of any right or remedy.
11.5 Severability. If the application of any provision of this Agreement to any particular facts
or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of
competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any
other particular facts or circumstances and the validity of other provisions of this Agreement shall
not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum
extent possible so as to effect the intent of the parties and reformed without further action by the
parties to the extent necessary to make such provision valid and enforceable.
11.6 Relationship of the Parties. Nothing contained in this Agreement shall be deemed or
construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship
between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind
the other party in any respect whatsoever, and the relationship of the parties is, and at all times
shall continue to be, that of independent contractors.
11.7 Force Majeure. Except for the payment of monies due hereunder, neither party shall be
responsible or have any liability for any delay or failure to perform to the extent due to unforeseen
circumstances or causes beyond its reasonable control, including, without limitation, acts of God,
earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, error in the coding of
electronic files, Internet or other network “brownouts” or failures, power failures, novelty of product
manufacture or other unanticipated product development problems, and acts of civil and military
authorities; provided that such party gives the other party prompt written notice of the failure to
perform and the reason therefor and uses commercially reasonable efforts to limit the resulting delay
in its performance.
11.8 U.S. Government Rights. If Customer is, or is entering into this Agreement on behalf of,
any agency or instrumentality of the United States Government, the Licensed Software and the
Documentation are “commercial computer software” and “commercial computer software documentation”, and
pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and
disclosure of the Licensed Software and the Documentation are governed by the terms of this Agreement.
11.9 Export Controls. Customer shall abide, and contractually require all of its employees to
abide, by all applicable export laws and regulations in its use of the Licensed Software and the
Platform Services. Except as expressly authorized by BAO Systems in writing, none of the Licensed
Software, and no part of the Platform Services, may be downloaded or otherwise exported or re-exported
(a) into any country for which the United States has a trade embargo, or (b) to anyone on the U.S.
Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of
11.10 Entire Agreement; Modification; Subsequent Terms; Counterparts. This Agreement, including
the Schedule(s) attached hereto, constitutes the entire agreement between the parties concerning the
subject matter hereof, and supersedes (a) all prior or contemporaneous representations, discussions,
proposals, negotiations, conditions, agreements, and communications, whether oral or written, between
the parties relating to the subject matter of this Agreement, and (b) all past courses of dealing and
industry custom. No amendment or modification of any provision of this Agreement shall be effective
unless in writing and signed by a duly authorized signatory of BAO Systems and Customer. The parties
may execute this Agreement in counterparts, each of which is deemed an original, but all of which
together constitute one and the same agreement. This Agreement may be delivered electronically or by
facsimile transmission, and the parties hereby agree that any electronic or facsimile signatures hereto
are legal, valid and enforceable as originals.