Merchant Services Agreement
Revised January 17, 2022
This Merchant Services Agreement, including all Order Forms, addenda, exhibits and schedules hereto which by reference are incorporated herein (collectively, this “Agreement”), is between Backyard Capital, Inc., with offices located at 134 7th St, Suite #8, Seal Beach, CA 90740 (“Backyard”) and the customer (“Customer”) whose name appears on the Order Form regarding the Services, and is effective as of the Effective Date set forth on the Order Form. Backyard and Customer are each referred to individually as a “party,” and collectively as the “parties.”
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SERVICE.
You represent and warrant that you: (a) are of legal age to form a binding contract; (b) you have read, agree with and accept all terms and conditions contained or expressly referenced in this Agreement; (c) have the right, authority, and capacity to agree to and abide by this Agreement; and (d) are not a person barred from using the Services under the laws of any applicable jurisdiction.
The parties agree as follows:
1. DEFINITIONS.
“Backyard Cash” means digital rewards which Clients purchase directly from Backyard, or earn via the Services by making purchases from Customer, which can be redeemed at any business in the Backyard network.
“Data” means the raw data Customer and/or its Clients uploads or submits to Backyard and the resulting data from the processing of such raw data using the Services.
“Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to Backyard related to the Services.
“Internal Purposes” means internal business use within Customer’s systems, networks, and devices (“Customer Environment”), to manage Customer’s products and/or services business, as well as testing and evaluation of the Services in order to provide Feedback to Backyard. Such purposes also include use of Services as part of services Customer provides to its third party customers and/or suppliers (“Clients”) who purchase products and/or services from Customer.
“Malicious Code” means without limitation code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses.
“Payment Transaction” means the direct payment to Customer, outside of the Services, for Customer’s products and services by Clients.
“Backyard Cash Transaction” means the acceptance of Backyard Cash one-for-one (1 Backyard Cash will be accepted as 1 U.S. Dollar) by Customer in exchange for Customer’s products and services offered to Clients.
“Order Form” means each mutually agreed upon order on Backyard’s Order Form template that specifies the Services, including the type or quantity of items, including the number of seats or users (if applicable), the fees for such items and any additional terms applicable to the use of such items.
“SaaS Platform” means everything at https://discoverbackyard.com/ and https://backyard.herokuapp.com, and related services located in such domain and subdomains, including software, code, algorithms, hosted services, and web interfaces.
“Services” means any and all of the services, software and other offerings, including without limitation digital rewards management features that Backyard offers to Customers, provided by Backyard pursuant to this Agreement, including the SaaS Platform, the offerings provided through https://discoverbackyard.com/ and https://backyard.herokuapp.com, any mobile applications, APIs, provided by Backyard, and all such services and software labeled as alpha, beta, pre-release, trial, preview or otherwise. Services may include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any documentation, add-ons, templates, sample data sets, and hardware devices as provided by Backyard.
2. SERVICES; LICENSE GRANT.
a. Customer’s use of the Services is subject to and governed by the terms and conditions in this Agreement, including those in the applicable Order Form. In the event of a conflict between the terms in an Order Form and this Agreement, the terms in the Order Form shall control with respect the Services provided under such Order Form. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement and those in the applicable Order Form, Backyard grants Customer a non-exclusive, non-sublicensable, non-transferable, revocable, limited license during the Term to use the Services only for the Internal Purposes.
b. Backyard facilitates a Client’s award and redemption of Backyard Cash in connection with eligible Payment Transactions. Backyard is not a bank and does not offer banking services. You hereby agree to (i) charge additional fees and amounts in connection with the Services, including but not limited to, the amounts required to fund Clients’ Backyard Cash rewards accumulated as a result of Payment Transactions and/or Backyard Cash Transactions (“Client Rewards”), Backyard’s fees in connection with the processing of Backyard Cash for Backyard Cash Transactions (“Backyard Cash Transaction Fees”), and monthly membership fees (collectively, the “Platform Fees”), and (ii) withdraw funds from Customer’s account equivalent to any fees charged pursuant to subsection (i) above and the amount of Backyard Cash Customer awards to Clients.
c. Backyard may, in its sole and absolute discretion, determine the availability of Backyard Cash in connection with Customer’s account and limit the amount of Backyard Cash that may be obtained in connection with Customer’s account for any reason or for no reason whatsoever. Customer acknowledges and agrees that Backyard Cash is digital material with no cash value, that no interest is paid or earned with the respect to Backyard Cash, and that Backyard Cash is not personal property. Furthermore, you acknowledge and agree that additional restrictions related to Backyard Cash, as determined in the sole and absolute discretion of Backyard, may be applied. Backyard may restrict the award or use of Backyard Cash based on any factors it deems applicable.
3. LICENSE RESTRICTIONS.
a. Restrictions. Except as expressly authorized in this Agreement or by Backyard, Customer will not, and will not permit any third party to: (i) access or use the Services for any other purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the Services (except as required to run the Services and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of the Services; (iv) rent, lease, loan, resell, transfer, sublicense, display or distribute the Services to any third party; (v) use or offer any functionality of the Services on a service provider, service bureau, hosted, software as a service, or time sharing basis, provide or permit other individuals or entities to create Internet “links” to the Services, or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device; (vi) decompile, disassemble, translate or reverse-engineer the Services or otherwise attempt to derive the Services source code, algorithms, methods or techniques used or embodied in the Services; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Services, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Services; (ix) interfere with or disrupt servers or networks connected to any website through which the Services are provided; (x) use the Services to collect or store personal data about any person or entity; (xi) use the Services to build a similar or competitive product or service; (xii) use the Services to transmit Malicious Code or (xiii) use the Services for any illegal, unauthorized or otherwise improper purposes.
b. Payment Transactions and Backyard Cash Transactions. Customer represents, warrants and covenants that (a) any Payment Transactions and Backyard Cash Transactions will represent bona fide sales of goods or services by Customer to a Client; (b) any Payment Transactions and Backyard Cash Transactions inputted by Customer will accurately describe the goods and/or services sold and delivered to a Client and will include such Client’s phone number and any other identifying information requested by Backyard, provided that Customer shall ensure that it is authorized to provide such Client information to Backyard; (c) Customer will fulfill all of its obligations to each Client for which Customer submits a Payment Transaction or Backyard Cash Transaction and will resolve any Client dispute or complaint directly with such Client; (d) all Payment Transactions and Backyard Cash Transactions initiated by Customer will comply with all applicable laws, regulations and rules; (e) Customer’s use of the Services shall be in compliance with this Agreement; and (f) Customer has implemented security policies, controls and measures which are appropriate and in compliance with industry standards to protect and safeguard personal information as well as any other data associated with the Services and Customer’s obligations under this Agreement. Customer acknowledges that the Services may be subject to export restrictions imposed by applicable laws, regulations and rules, including U.S. Export Administration Regulations.
c. Client Communications. Customer shall comply with the following requirements in connection with its use of the Services: (a) any communications provided to Clients as a part of the Services or in connection with the Services who desire to receive marketing material or otherwise receive communications from Customer, must have provided their contact information as a part of the Services and have consented to these communications as required by applicable law; (b) Customer and/or its employees or service providers are not permitted to add or modify a Client’s consent indication on his or her behalf unless specifically requested by the Client in writing; and (c) Customer shall not send any communications, including transactional or commercial messages, to Clients in violation of applicable law, regulations and rules, including without limitation, the Telephone Consumer Protection Act of 1991 and the CAN-SPAM Act (2003); (d)
d. Other Parties. Any employee, consultant, contractor or agent hired to perform services for Customer may operate the Services on Customer’s behalf solely under these terms and conditions, provided that: (i) Customer is responsible for ensuring that any such party agrees in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement on the same basis as applicable to Customer; (ii) such use is only in connection with Customer’s Internal Purposes; (iii) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (iv) Customer remains fully responsible and liable for any and all acts or omissions by such third parties related to this Agreement.
e. Immediate Termination. Any violation of this Section 3 by Customer shall be a material breach of this Agreement and Backyard may immediately terminate this Agreement without notice.
4. CONFIDENTIALITY.
a. Definition. “Confidential Information” means information that either: (i) is designated as confidential by the Discloser at the time of disclosure; or (ii) would reasonably be understood by the Recipient, given the nature of the information or the circumstances surrounding its disclosure, to be confidential, including without limitation, Discloser’s product and/or service designs, product and/or service plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions and know-how disclosed by Discloser to Recipient, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date. Confidential Information of Backyard also includes the Services and the existence and terms and conditions of this Agreement.
b. Use of Confidential Information. A party which receives Confidential Information under this Agreement (“Recipient”) may not use the Confidential Information from the party which discloses Confidential Information under this Agreement (“Discloser”) in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement.
c. Disclosure of Confidential Information. Recipient will: (i) hold Confidential Information in strict confidence and take reasonable precautions to protect and secure such Confidential Information (such precautions to include, at a minimum, all precautions Recipient employs with respect to its own Confidential Information); and (ii) not divulge any Confidential Information to any third party (other than to employees or contractors as set forth below). Any employee or contractor given access to any Confidential Information must have a legitimate “need to know” such Confidential Information for use specified in Section 4.b. and Recipient will remain responsible and liable for each such person’s compliance with this Agreement.
d. Confidentiality Period. Irrespective of any termination of this Agreement, Recipient’s obligations with respect to Confidential Information under this Agreement expire 5 years from the date of receipt of the Confidential Information (except with respect to any trade secrets and Data where such obligations will be perpetual).
e. Exclusions. This Agreement imposes no obligations with respect to information which: (i) was in Recipient’s possession before receipt from Discloser; (ii) is or becomes a matter of public knowledge through no fault of Recipient; (iii) was rightfully disclosed to Recipient by a third party, who has no restriction on disclosure; or (iv) has been or is developed or acquired by or for Recipient without use of the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by law or court order, provided Recipient makes reasonable efforts to provide Discloser with notice of such disclosure as promptly as possible and uses diligent efforts to limit such disclosure and obtain confidential treatment or a protective order, and has allowed Discloser to participate in the proceeding.
f. Return or Destruction of Confidential Information. Upon termination of this Agreement or written request by Discloser, the Recipient will: (i) cease using the Confidential Information; and (ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within seven (7) business days of such request or termination.
5. TERM AND TERMINATION.
a. Term. This Agreement will be effective from the earlier of (i) the date provided above, and (ii) the date on which Customer first used or accessed the Services, and shall continue until terminated, as set forth below (the “Term”).
b. Termination. This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination.
c. Effect of Termination. Immediately upon termination, (i) all Order Forms and licenses granted under this Agreement will immediately terminate and Customer will immediately cease all use of the Services; (ii) Customer will destroy the Services in its possession, or upon request by Backyard, return to Backyard the Confidential Information that is in its possession or control; and (iii) any and all of Customer’s payment obligations under each Order Form will immediately become due. Upon Backyard’s request, Customer will certify in writing that Customer has returned or destroyed all copies of Backyard’s Confidential Information. Sections 1, 3 - 12, and 14 - 16, will survive termination of this Agreement. Neither party shall be under any obligation to enter into an agreement after termination or expiration of this Agreement.
d. Suspension. Backyard reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Backyard shall not be liable to Customer or any third party for any such modification, suspension or discontinuance.
6. OWNERSHIP.
The Services are licensed, not sold, and Backyard, its suppliers or its licensors, retains and reserves all rights not expressly granted in this Agreement. Backyard, its suppliers or its licensors own all worldwide right, title and interest in and to the Services, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing (collectively, “Intellectual Property Rights”). Except as expressly stated in this Agreement, Backyard does not grant Customer any Intellectual Property Rights in the Services. If Backyard provides any third party and open source software (“OSS”), it will be aggregated and provided as object code in a separate library, but shall not be considered part of the Services. Use of such open source software is subject to the applicable open source license provided with the OSS. Customer agrees to comply with all open source software licenses. Customer will not distribute the Services or combine it with any other software which would result in an obligation to license the aggregate software in any manner. The Services is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions.
7. PLATFORM FEES.
a. Backyard Cash Transaction Fees and Client Rewards. Customer shall pay all Platform Fees, including Backyard Cash Transaction Fees and Client Rewards, for Payment Transactions and Backyard Cash Transactions as set forth in the applicable Order Form or as otherwise set forth in the Services or communicated to Customer by Backyard and in accordance with terms set forth in such Order Form.
b. Payment Terms. Platform Fees shall be automatically calculated via the Services on a daily basis and payment of such fees shall be processed by Backyard’s third-party payment processor. Customer shall provide Backyard and/or its third-party payment processor with complete and accurate billing contact information, including a valid email address, as well as billing information for one or more payment methods acceptable to Backyard such as a credit card or bank account (“Payment Method”). Customer may provide more than one Payment Method and designate a default Payment Method. Backyard or its third-party payment processor may charge Customer’s Payment Method for all payments owed under this Agreement and any applicable Order Form. Customer must ensure that sufficient funds are always available for at least one Payment Method to complete all payments authorized under this Agreement. All payments to Backyard are non-refundable except as otherwise expressly provided in the applicable Order Form. All payments will be made in United States dollars via electric funds transfer, as per the instructions of Backyard. Any discounts, interests and taxes invoiced to an Order Form shall be allocated equally to each Service and licenses provided under such Order Form.
c. Late Payments. If Customer fails to pay any past due invoice or Platform Fees, Backyard may revoke or suspend the Services until such time as Customer brings its account completely current. Backyard may charge interest on all past due invoices and Platform Fees at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. If Customer is delinquent in its payments for two (2) consecutive months, Backyard may, upon written notice to Customer, modify the payment terms to require full pre-payment of any or all Order Forms (both currently contracted and in the future), or require other assurances to secure Customer’s payment obligations hereunder.
d. Taxes. All Platform Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on Backyard’s net income, and Customer shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts. If Customer is legally required to withhold any amounts to be paid to Backyard, Customer will deduct such taxes from the amount otherwise owed, pay the tax to the appropriate taxing authority, and provide to Backyard on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority, sufficient to permit Backyard to establish Backyard’s right to a credit for such taxes against Backyard’s income tax liability. Customer shall provide Backyard with such assistance as Backyard shall reasonably request in connection with any application by Backyard to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable income tax treaty.
8. CREDITS FOR ACCEPTANCE OF BACKYARD CASH.
a. Calculation of Credits. Backyard shall credit Customer for each Backyard Cash accepted by Customer as a part of each Backyard Cash Transaction or as otherwise set forth in an Order Form (“Credits”). Credits shall be calculated as follows: 1 Backyard Cash shall be credited as 1 USD less any applicable Platform Fees (the “Settlement Value”).
b. Transfer of Settlement Value. Depending on whether the Settlement Value is positive or negative (i.e. whether the Credits exceed the Platform Fees or whether the Platform Fees exceed the Credits), the Settlement Value will either (i) be automatically deposited into the Customer Account (as defined below) via the Transfer Services (as defined below) or (ii) be automatically withdrawn from the Customer Account via the Transfer Services.
c. Timing of Transfers. Transfers of Settlement Value described in Section 8(b) will generally be initiated on the calendar day after Platform Fees and Credits have been incurred but in any case, Backyard will use commercially reasonable efforts to initiate such transfers no later than seven (7) days after the Platform Fees and Credits have been incurred.
9. ACH AND RTP TRANSFER SERVICES.
By utilizing a feature in the Services that allows Customer to send and receive ACH (Automated Clearing House) transfers and RTP (Real Time Payments) in connection with the Platform Fees and Credits through the Services (the “Transfer Services”), Customer expressly authorizes Backyard and the Services to access Customer's bank account and associated information (“Customer Account”), on Customer's behalf and as Customer's limited agent, in order to provide the Transfer Services. Customer is exclusively and solely responsible for all payments generated, authorized, electronically transferred as part of the Transfer Services. Backyard shall not be liable or responsible in any way for the accuracy or validity of the Customer Account or banking information, including Customer's account and routing numbers and/or who is authorized to access this information. Backyard is not liable to Customer or any third-party, banking institution, or vendor for any unauthorized or incorrect payments generated, authorized, printed, or mailed as part of the Transfer Services, nor any fees assessed to Customer, any vendors, or any bank due to unauthorized, incorrect, or returned payments. Backyard is not liable or responsible for verifying addresses or Customer Account information inputted as part of the Transfer Services. Customer shall verify all addresses and banking account information submitted to Backyard. Customer further authorizes Backyard to share Customer's identity and Customer Account data with Backyard’s third-party payment processor for purposes of providing the Transfer Services and Customer is responsible for the accuracy and completeness of such data. Furthermore, Customer authorizes Backyard’s third-party payment processor to share the Customer Account number and routing number with Backyard for the purpose of Backyard’s provision of Services to Customer, subject to Backyard’s Privacy Policy. Customer is solely responsible for complying with any terms set by Customer's bank or credit union with respect to the Customer Account, including any fee terms, such as non-sufficient fund or overdraft fee terms. Customer agrees to maintain a balance or available credit limit in the specified Customer Account that is sufficient to fund all payments initiated through the Transfer Services. Customer certifies that the Customer Account is in its own name and that Customer is authorized to use it. Customer further represents and warrants that it has the right to authorize Backyard and/or its third-party payment processor, as applicable, to use the Transfer Services to charge the Customer Account in connection with Platform Fees. Customer shall indemnify and hold Backyard harmless from any claims in connection with Customer’s lack of authority, funds or credit.
10. FEEDBACK.
Customer agrees to provide Backyard with Feedback. Backyard, in its sole discretion, may or may not respond to Customer’s Feedback or promise to address all of Customer’s Feedback in the development of future features or functionalities of the Services or any related or subsequent versions of such Services. Customer assigns, at no charge, all rights, title and interests in Feedback to Backyard, and agrees that Backyard is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer. Customer warrants that the Feedback does not infringe any copyright or trade secret of any third party, and that Customer has no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Customer). Customer further warrants that its Feedback is not subject to any license terms that would purport to require Backyard to comply with any additional obligations with respect to any Services that incorporates Customer’s Feedback.
11. DATA.
a. Data Processing. Backyard shall process and use any personal data that Customer provides in accordance with the Backyard Privacy Policy located at https://discoverbackyard.com/privacy. Backyard will maintain a security program materially in accordance with industry standards that are designed to protect the security, confidentiality and integrity of the Data. Customer hereby grants Backyard a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Data solely for the purpose of providing and improving the Services, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data. Backyard may use, publish, share, distribute, or disclose such Data on an aggregate basis or in a de-identified manner that does not allow personal data about Customer to be separated from the aggregate data and identified as originating from Customer.
b. Data Warranty and Obligations. Customer represents, warrants and agrees that Customer has all rights to provide the Data and other materials that Customer provides or makes available to Backyard. Customer acknowledges and agrees that it is solely responsible for all Data and for its conduct while using the Services. Customer acknowledges and agrees that: (i) it will evaluate and bear all risks associated with its use and distribution of all Data; (ii) it is responsible for protecting and backing up the Data; (iii) it is responsible for protecting the confidentiality of all Data in its possession and control; and (iv) under no circumstances will Backyard be liable in any way for the content of any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of Customer’s use, deletion, modification, or correction of any Data. Customer has full discretion and control on how to store, protect, remove or delete any Data on the Services and Backyard shall have no liability for any damages caused by such deletion or removal of or failure to store or protect Data.
12. WARRANTY.
a. Mutual Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound.
b. Disclaimer. EXCEPT AS SET FORTH IN SECTION 10.a., BACKYARD DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR BY STATUTE OR IN LAW. BACKYARD SPECIFICALLY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THE OPERATION OR OUTPUT OF THE SERVICES WILL BE ERROR-FREE, VIRUS-FREE, SECURE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CUSTOMER PROVIDES THE DATA ON AN “AS IS” BASIS AND PROVIDES NO GUARANTEE OF THE ACCURACY OF THE DATA PROVIDED TO BACKYARD. Backyard is not obligated to support, update or upgrade the Services.
c. Beta Disclaimer. ALL SERVICES LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW, PILOT OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS, AND CUSTOMER’S USE OF SUCH BETA SERVICES IS AT ITS SOLE RISK. Backyard has no obligations in connection with or in the course of providing the Beta Services. Any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. Backyard does not assume any obligation to update any Beta Services. In addition, any information about Backyard’s roadmap outlines Backyard’s general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. Backyard undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the Services. Customer expressly acknowledges that the Beta Services have not been fully tested, and may contain defects or deficiencies which may not be corrected by Backyard. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version.
13. INDEMNIFICATION.
a. Claims Against Customer. Backyard will defend, at its own expense, and hold Customer harmless against any claim, suit or action brought against Customer by a third party to the extent that such claim, suit or action arises from an allegation that the Services, when used as expressly permitted by this Agreement, infringes the intellectual property rights of such third party (“Customer Claim”), and Backyard will indemnify Customer from liability incurred by Customer to the extent arising from such Customer Claim. If Backyard receives prompt notice of a Customer Claim that, in Backyard’s reasonable opinion, is likely to result in an adverse ruling, then Backyard may (i) obtain a right for Customer to continue using the Services at issue; (ii) modify such Services to make it non-infringing; (iii) replace such Services with a non-infringing version; or (iv) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Services.
b. Backyard Indemnity Limits. Notwithstanding the foregoing, Backyard will have no obligation under Section 11.a. or otherwise with respect to any infringement claim based upon: (i) any use of the Services not expressly permitted under this Agreement; (ii) any use of the Services in combination with products, equipment, software, or data not made available by Backyard if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (iii) any modification of the Services by any person other than Backyard or its authorized agents or subcontractors (collectively, “Excluded Claims”). Backyard will have no obligation under Section 11.a. or otherwise with respect to any claim based upon the use by Customer of any Data uploaded or accessed through the Services to the extent such claim is not based on the Services itself. Section 11.a. states Backyard’s sole liability and Customer’s exclusive remedy for all third party claims.
c. Claims Against Backyard. Customer will defend, at its own expense, and hold Backyard harmless against any claim, suit or action against Backyard brought by a third party to the extent that such claim, suit or action arises from (i) Customer’s failure to comply with or violation of any applicable law or regulation, (ii) Customer’s infringement of any third party’s Intellectual Property Right, (iii) Customer’s use of any Data, (iv) Customer’s products or services, (v) Payment Transactions, or (vi) Excluded Claims (each, a “Backyard Claim”), and Customer will indemnify Backyard harmless from liability incurred by Backyard that is specifically attributable to such Backyard Claim or those costs and damages agreed to in a monetary settlement of such Backyard Claim.
d. Procedure. The foregoing obligations are conditioned on the party seeking indemnification: (i) promptly notifying the other party in writing of such claim; (ii) giving the other party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at other party’s request and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense or settlement without the other party’s prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim.
14. LIMITATION OF LIABILITY.
a. IN NO EVENT WILL BACKYARD BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF USE, DATA, GOODWILL OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, BACKYARD WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE SERVICES, ITS FUNCTIONS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE SERVICES. BACKYARD’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL ORDER FORMS, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO BACKYARD UNDER THIS AGREEMENT FOR THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
b. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
15. COMPLIANCE WITH LAWS.
Customer will comply fully with all applicable laws, including all applicable laws relating to bribery or corruption, and export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses any of the Services. Customer represents and warrants that it is not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer further represents and warrants that it shall not export, re-export, ship, or transfer the Services to any restricted countries or restricted end users or use the Services in any restricted countries or for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. Customer understands that the requirements and restrictions of the Export Laws may vary depending on the specific Services and may change over time, and that, to determine the precise controls applicable to the Services, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.
Customer further agrees to comply with all federal, state, provincial, local and foreign laws, rules and regulations applicable to Customer’s business in relation to Customer’s use of the Services, including any applicable privacy and consumer protection laws, tax laws and regulations, the Americans with Disabilities Act of 1990, the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org and the by-laws, and any and all other rules, policies and procedures of VISA, MasterCard, Discover and/or other card networks as in effect from time to time.
16. CHOICE OF LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction. The parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.
17. BINDING ARBITRATION AND CLASS ACTION WAIVER.
a. ALL CLAIMS BETWEEN THE PARTIES SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CUSTOMER MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS AGREEMENT AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CUSTOMER’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
b. The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Customer agrees that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
c. WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. CUSTOMER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
d. Notwithstanding anything to the contrary, each party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Confidential Information or Intellectual Property Rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 15.
e. If Backyard implements any material change to this Section 15, such change shall not apply to any claim for which Customer provided written notice to Backyard before the implementation of the change. The prevailing party shall recover its reasonable attorneys’ fees, expert fees, costs including arbitration costs and fees.
18. GENERAL.
Backyard may include the name, logo of and success stories of Customer in Backyard’s website, press releases, promotional and sales literature, and lists of customers, in each case in accordance with Customer’s standard trademark usage guidelines. All notices required or permitted under this Agreement hereto will be in writing and delivered in person, by email to the address designated in the applicable Order Form, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. Customer may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Customer acknowledges that Backyard may assign, subcontract or delegate any of its rights or obligations under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the Services, including Confidential Information, and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. This Agreement is limited to the use of Services, Data and Confidential Information and as such, this Agreement is separate from and shall have no effect on any other agreement Customer may have with Backyard. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. For the purposes of this Agreement, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” Any prevention of or delay in performance by Backyard hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.