BDM Enterprises, Inc.
Terms of Service
Whereas, these Terms of Service (these “Terms” or this “Agreement”) are entered into by and between BDM Enterprises, Inc.
(“BDM”, or “Company”) and the person or entity who accepted these Terms by execution
of the “Order Form” to which these Terms are attached as Exhibit A (such person or entity, the “Client”, and such date of execution, the “Effective Date”). BDM and Client may be referred to individually as a
“Party” or collectively as the “Parties” to these Terms. Any reference to “these Terms” or
“this Agreement” includes the Order form and all exhibits
thereto.
Now, Therefore, the Parties agree as follows:
-
Services and Compensation.
-
Services. Company shall provide, during the Term of this Agreement, the
services selected by Client on the Order Form (the “Services”). Company shall begin provision of the Services as soon as
practicable following the Effective Date, but in no event longer than
ten (10) days thereafter.
-
Compensation. All Services are subject to the payment terms set forth in Exhibit B to the Order Form (the “Fees”), and Company’s provision of the Services is subject in
all respects at all times to Client’s payment of the Fees in the
timeframes specified in Exhibit B. Capitalized terms used by not defined in Exhibit B will have the meanings ascribed to them herein.
-
Service Support. During regular business hours (M-F 8-5 CST), Client may reach
Company for service support by telephone or SMS at 847-243-6921 or by email at support@bdmenterprises.com. Client may request support service by email or SMS at any time,
which shall be processed and responded to by Company as soon as
reasonably practicable.
-
Warranties and Limitation of Damages.
-
Company Warranties. Company warrants that the Services shall be provided by staff
possessing the required skills and experience and that the Services
shall be provided in a professional and workmanlike manner.
The foregoing is the only warranty Company has given to Client
regarding the Services. Such warranty is in lieu of all other
warranties, express or implied, including warranties of merchantability,
fitness for a particular use or purpose, or non-infringement. Except as
otherwise provided herein, all Services are provided to Client on an
“as is” basis. Without limiting the generality of the
foregoing, Client understands and acknowledges that the Services may be
subject to limitations, delays, service interruptions, and other
problems inherent in the use of the internet and electronic
communications. Company is not responsible for any delays, delivery
failures, or other damages resulting from such issues or problems.
-
Limitation of Damages & Claims. Notwithstanding anything herein to the contrary, the liability of
Company and/or its principals, agents, and affiliates to Client shall
in all cases be limited to the fees actually received by Company from
Client for Services performed in the twelve (12) month period
immediately preceding the day of the event giving rise to the claim
for liability.
In no event will either Party be liable to the other Party or to any
third party for any incidental or consequential damages (including but
not limited to damages to business reputation, lost business, postal
charges or lost profits), whether foreseeable or not and however caused,
even if the Party is advised of the possibility that such damages may
arise.
Any claim by Client arising from, or relating to, these Terms must be
brought within one (1) year from the date such claim arose.
-
Acknowledgement. Client expressly acknowledges and agrees that (i) the forgoing
provisions are an essential component of Company’s willingness
to enter into this Agreement; and (ii) Client has read and understood
the terms contained in this Section 2.
-
Intellectual Property.
-
Generally. Title to and ownership of the software, system, algorithms,
know-how, trade secrets, and/or technology used by Company to provide
the Services contemplated hereunder, and all related intellectual
property rights, rights to patents, copyrights, trademarks and trade
secrets, and rights to any and all ideas, designs, concepts,
techniques, discoveries, inventions, enhancements, improvements,
products, computer programs, procedures, specifications, data,
memoranda, and other materials, whether or not patentable, related to
the foregoing (collectively, the “Intellectual Property”) of Company shall remain with and shall be the property of
Company and/or the owner of third party content or software which is
incorporated into or provided with the Intellectual Property, as the
case may be. Nothing herein shall be construed as a transfer,
assignment, or license of any intellectual property rights of Company,
or any or its principals or affiliates, to Client, or any its
principals or affiliates (including by estoppel), except as
specifically provided in this Agreement. For clarification,
Intellectual Property belonging to Company will include any
suggestions, ideas, enhancement requests, feedback, recommendations or
other information that Client or its principals, agents, affiliates,
or end users may provide relating to the features, functionality or
operation of the Services.
-
License to Client. Subject in all respects to Client’s on-time payment of all
fees and other amounts owed to Company for the Services, Company
hereby grants to Client a perpetual, royalty-free, non-exclusive,
non-transferable right and license to access and use the Intellectual
Property of Company, solely to the extent contained in the Services
and solely to the extent necessary for Client or its end users (and
their respective successors and assigns) to access and use the
Services in the manner contemplated hereunder. Such license shall
immediately terminate upon the termination of this Agreement for any
reason, and in any such termination Client shall return, or destroy,
at Company’s election, any Intellectual Property held at that
time by Client as soon as commercially practicable, but in no event
more than five (5) business days following such termination.
-
Additional Restrictions. Client shall not, either during the Term of this Agreement or
thereafter, decompile, decode, reverse engineer in whole or in part
the Services or any other Intellectual Property of Company, including
without limitation in order to (i) build a competitive product or
service, (ii) build a product using similar ideas, features, functions
or graphics of such Intellectual Property, or (iii) copy any ideas,
features, functions, or graphics or Company or its Intellectual
Property.
-
Term; Termination.
-
Term. The term of this Agreement (the “Term”) shall begin on the Effective Date and continue for a period
of one (1) calendar month, renewing automatically for successive terms (each of which constitute the “Term” of this Agreement), unless earlier terminated in accordance with the
provisions of this Section 4. Upon termination, Client shall be responsible for all Fees incurred
through the date of termination, payable in accordance with the terms
of Exhibit B.
-
Termination. The Parties may terminate this Agreement as follows:
-
Either Party may terminate this Agreement for convenience upon thirty
(30) days’ notice to the other Party.
-
Either Party may terminate this Agreement immediately upon the other
Party’s breach of this Agreement, provided that, other than in
the event of Client’s breach of Section 4, the breaching Party is notified of such breach fails to remedy the
same within thirty (30) days of such notice.
-
Remedies; Arbitration.
-
Arbitration. 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
subject to final and binding arbitration governed by the Federal
Arbitration Act (9 U.S.C. §1 Et Seq.). The arbitration shall be
conducted before a single arbitrator in accordance with the commercial
dispute resolution procedures and the supplementary procedures for
consumer related disputes of the American Arbitration Association (the
“AAA”) then in effect, as modified by this Agreement, and will be
administered by the AAA. Judgment on the award may be entered by any
court having jurisdiction, subject to the terms of this Agreement.
This clause shall not preclude either Party from seeking temporary or
preliminary injunctive relief in connection with an arbitrable
controversy, but only upon the ground that the award to which the
Party may be entitled may be rendered ineffectual without such
provisional relief.
-
Certain Breaches. Notwithstanding the foregoing, Client acknowledges and agrees that its breach of Section 4 of this
Agreement may cause immediate and permanent harm to Company, and that
Company is entitled to, without limiting any other remedy available to
it by law or in equity, seek injunctive relief from any court with
competent jurisdiction in the event of such breach.
-
Indemnification.
Client agrees to indemnify and hold harmless the Company and (if
applicable) its parent, subsidiaries, affiliates, and their respective
officers, directors, attorneys, agents, employees, licensors and
suppliers (the “Company Indemnitees”) against any claim or demand and all liabilities, costs and
expenses (including reasonable attorneys' fees) incurred by Company
and (if applicable) any Company Indemnitee resulting from or arising out
of Client’s breach of these Terms, Client’s improper use of
the Services, and/or your violation of any law or the rights of a third
party.
-
Miscellaneous.
-
Waiver. A waiver by a Party of its rights or of the performance by any
other Party of any of its obligations under this Agreement shall be
without prejudice to such Parties other rights under this Agreement
and shall not constitute a waiver of any other of such rights or of
the performance by the other Party of any other of its or their
obligations under this Agreement.
-
Force Majeure. In the event that either Party is unable to perform any of its
obligations under this Agreement, or to enjoy any of its benefits
because of (or if loss of the Services is caused by) natural disaster,
actions or decrees of governmental bodies or agencies, war, civil
disturbances, terrorism or communication line failure, or other cause
not the fault of the affected Party (a “Force Majeure Event”), the Party who has been so affected shall immediately give
notice to the other Party and shall do everything possible to resume
performance. Upon receipt of such notice, all obligations under this
Agreement shall be immediately suspended. If the period of
nonperformance exceeds thirty (30) days from the receipt of notice of
the Force Majeure Event, the Party whose ability has not been so
affected, may, by giving written notice, terminate this Agreement, or
cancel, without cancellation charge, any unfilled commitment to
purchase or provide the Services.
-
Governing Law. This Agreement, and all claims or causes of action (whether in
contract, tort, or statute) that may be based upon, arise out of, or
relate to this Agreement (including any claim or cause of action based
upon, arising out of, or relating in any way to any representation or
warranty made in or in connection with this Agreement or as an
inducement to enter into this Agreement), shall be governed by, and
enforced in accordance with, the internal laws of the State of
Delaware, including its statutes of limitations, without regard to any
borrowing statute that would result in the application of the statute
of limitations of any other jurisdiction.