Licensing Agreement
This Cloud Services Agreement (“Agreement”) is between BC APPMAKER, INC. (“BC APPMAKER, INC. ”) having an office at 3401 Mallory Lane, Suite 100, Franklin, TN 37027 and you the user of certain Subscription Services provided by BC APPMAKER, INC. (“Customer”). Under the terms of this Agreement, BC APPMAKER, INC. is providing Subscription Services (as defined below) to Customer.
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BY ACCESSING THE SUBSCRIPTION SERVICES, CUSTOMER IS CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK “DO NOT ACCEPT BUTTON” AND YOU WILL NOT HAVE ACCESS TO THE BC APPMAKER, INC. SUBSCRIPTION SERVICES.
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A. The BC APPMAKER, INC. Subscription Services consists of software services, provided by BC APPMAKER, INC. for Customer’s use, including technical documentation/user guides, updates, upgrades, patches or fixes (“BC APPMAKER, INC. Subscription Services”). BC APPMAKER, INC. Subscription Services does not include the BC APPMAKER, INC. platform or any other BC APPMAKER, INC. Subscription Services not paid for, or services supplied by a third party (including Microsoft Corporation) to Customer.
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B. The BC APPMAKER, INC. Subscription Services are accessed by way of the Microsoft Dynamics 365 Business Central or the Microsoft AppSource.
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1. TERMS:
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1.1 BC APPMAKER, INC. will provide the BC APPMAKER, INC. Subscription Services to Customer under the terms of this Agreement and in accordance with BC APPMAKER, INC. -supplied documentation. Customer may use the BC APPMAKER, INC. Subscription Services for the number and types of users (“Users”) specified in any order, price quote, or other communication between Customer and BC APPMAKER, INC. that was initiated or has been acknowledged by BC APPMAKER, INC. with respect to price and payment for the BC APPMAKER, INC. Subscription Services (“Order”) and, if applicable, for the length of time specified in that Order (“Term”). The following additional terms apply:
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(a) Customer may use the BC APPMAKER, INC. Subscription Services only for Customer’s internal business purposes; to process Customer’s data or data of its Affiliates. An “Affiliate” is an entity which operates under the same BC APPMAKER, INC. site license.
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(b) Customer will pay all subscription fees for use of the BC APPMAKER, INC. Subscription Services up front. The subscription fee is non-refundable. Customer will not be permitted access to the Subscription Services until the subscription fee is paid in full.
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(c) Customer may not transfer, assign, relocate, rent or sub-license the BC APPMAKER, INC. Subscription Services without prior written consent of BC APPMAKER, INC. . Customer may not reverse engineer, decompile, disassemble or use other technology or method to gain access to source code and trade secrets of the BC APPMAKER, INC. Subscription Services. Customer may not modify or alter the BC APPMAKER, INC. Subscription Services.
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(d) The BC APPMAKER, INC. Subscription Services may have authentication and security keys (“Security Features”). Customer may not remove, disable, or otherwise create or implement any workaround to, any security features.
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(e) Customer may not use BC APPMAKER, INC. Subscription Services in violation of any applicable law or regulation or for the purpose of developing a product or service competitive to the BC APPMAKER, INC. Subscription Services or any other purpose in a manner that is to BC APPMAKER, INC. ’s commercial disadvantage.
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(f) BC APPMAKER, INC. will implement reasonable measures to help you secure any Customer Content (as further described in section 1.2) against accidental or unlawful loss, access, or disclosure.
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(g) As the BC APPMAKER, INC. Subscription Services is hosted and deployed as a cloud instance on Customer’s MS Platform, the following applies to the security, service levels and privacy of information processed using the BC APPMAKER, INC. Subscription Services:
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(i) The BC APPMAKER, INC. Technology[FG1] will be provided at service levels set out in Customer’s contract with Microsoft for the MS Platform;
(ii) To the limited extent that any personally-identifiable information (collectively “PII”) is provided by you as Content (as defined below) to be used with the BC APPMAKER, INC. Subscription Services, such PII will be treated as Customer’s Confidential Information and used by BC APPMAKER, INC. only to process Customer’s data and subject to the privacy policy applicable to MS Platform; and
(iii) Security levels applicable to the BC APPMAKER, INC. Subscription Services are as described in Customer’s contract with Microsoft for MS Platform hosting.
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1.2 Customer is responsible for the following:
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(a) The existence of a valid license from Microsoft to Customer for Customer’s use of BC APPMAKER, INC. is a pre-requisite for the Customer having this right to obtain the BC APPMAKER, INC. Subscription Services. Customer is responsible for obtaining and administering a BC APPMAKER, INC. license with Microsoft.
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(b) Customer is responsible for the accuracy, quality, integrity rights to use and legality of data processed using the BC APPMAKER, INC. Subscription Services. Customer is responsible for ensuring it has the right to use any data, text, business data, financial data, information concerning Customer’s employees, contractors, customers, personnel, and all other content (“Customer Content” or “Content”) Customer inputs into the BC APPMAKER, INC. Subscription Services.
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1.3 BC APPMAKER, INC. may, in BC APPMAKER, INC. ’s sole discretion, audit Customer’s use of BC APPMAKER, INC. Subscription Services under this Agreement at any time during the Term and for one (1) year following the expiration of the Term in order to ensure that Customer’s use of the BC APPMAKER, INC. Subscription Services is in accordance with and aligned with the number of Customer Users for which Customer has paid subscription payments. BC APPMAKER, INC. shall conduct such audits no more frequently than once annually and in a manner so as to not disrupt Customer’s normal business operations. Customer shall fully cooperate with such audit and provide access to all records and information relevant to use of the BC APPMAKER, INC. Subscription Services. There will be no charge to Customer for the audit. If the audit determines that Customer’s usage of the BC APPMAKER, INC. Subscription Services violates the terms of this Agreement, BC APPMAKER, INC. shall have the right to, at its option, (i) immediately terminate this Agreement; and/or (ii) demand and receive subscription payments for the additional amounts due to BC APPMAKER, INC. if Customer had not violated the terms of this Agreement.
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1.4 BC APPMAKER, INC. processes (personal) data inputted by Customer into the BC APPMAKER, INC. Subscription Services as Customer Content. Customer acknowledges this and grants BC APPMAKER, INC. the right to process this data.
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1.5 Any technical support or service levels for the BC APPMAKER, INC. Subscription Services will be provided by BC APPMAKER, INC. to Customer under BC APPMAKER, INC. ’s standard terms.
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2. INTELLECTUAL PROPERTY RIGHTS.
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2.1 All proprietary and intellectual property rights including copyright, patent, trademark, and trade secrets in the BC APPMAKER, INC. Subscription Services are and remain solely and exclusively with BC APPMAKER, INC. . As between BC APPMAKER, INC. and Customer, Customer exclusively owns all rights, title, and interest in and to all of Customer’s Content.
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3. NO WARRANTY; LIMITATION OF LIABILITY.
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3.1 There is no warranty for the BC APPMAKER, INC. platform, or for any third-party product or service including any Microsoft product or service. ADDITIONALLY, THE BC APPMAKER, INC. SUBSCRIPTION SERVICES ARE PROVIDED “AS IS WHERE IS” AND WITHOUT ANY WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND INCLUDING THOSE REGARDING NONINFRINGEMENT OF THIRD PARTY RIGHTS, DURABILITY, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
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3.2 IF FOR ANY REASON EITHER PARTY BECOMES LIABLE TO THE OTHER FOR DIRECT (or any other) DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (in contract, tort or otherwise) INCURRED IN CONNECTION WITH THIS AGREEMENT, OR BC APPMAKER, INC. SUBSCRIPTION SERVICES, THEN THE AGGREGATE LIABILITY OF A PARTY FOR ALL DAMAGES, INJURY AND LIABILITY INCURRED BY THE OTHER PARTY IN CONNECTION WITH THE BC APPMAKER, INC. SERVICES OR THIS AGREEMENT (AND ANY AND ALL RECOVERABLE LEGAL COSTS) SHALL BE LIMITED TO THE FEES PAID IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO DAMAGES.
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3.3 In no event will either party be liable to the other for any consequential, incidental, or special damages, including any lost profits or lost savings.
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3.4 BC APPMAKER, INC. shall not be liable under any cause of action, whether arising out of or related to any contract, negligence, strict liability, or any other legal or equitable theory, due to loss of customer data due to use of the Subscription Services.
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4. TERM, TERMINATION.
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4.1 The Term of this Agreement commences when accepted by Customer. Subject to Customer’s strict compliance with the terms of this Agreement it shall remain in effect for an initial period of 1 year (“Initial Term”) (unless otherwise agreed in an Order). After the Initial Term, this Agreement will automatically renew for successive one-year periods (each a “Renewal Term”), unless one party gives the other notice to not renew 90 days before expiration of the then current term.
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4.2. This Agreement may be terminated on written notice:
(a) at the option of either party if the other party materially defaults in the performance or observance of any of its obligations hereunder and fails to remedy the default within 30 days after receiving written notice/demand; or
(b) at the option of either party if the other party becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or if a receiver or trustee in bankruptcy is appointed for the other party, or if any proceeding in bankruptcy, receivership, or liquidation is instituted against the other party and is not dismissed within 30 days following commencement thereof; or
(c) if Customer has not paid BC APPMAKER, INC. sums owed for the BC APPMAKER, INC. Subscription Services, or for other services rendered.
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4.3 On the termination of this Agreement, for any reason, BC APPMAKER, INC. shall terminate Customer’s ability to use the BC APPMAKER, INC. Subscription Services.
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5. GENERAL
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5.1 Except as described below, this Agreement is the only agreement between Customer and BC APPMAKER, INC. pertaining to the BC APPMAKER, INC. Subscription Services and BC APPMAKER, INC. IS NOT BOUND BY ANY PROVISION OF ANY PURCHASE ORDER, RFP, RFQ, CORRESPONDENCE, EMAIL, OR OTHERWISE UNLESS BC APPMAKER, INC. SPECIFICALLY AGREES TO THE SAME IN WRITING.
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5.2 This Agreement is governed by the laws of the State of Tennessee. All disputes and/or litigation arising out of or in connection with this Agreement or Customer’s use of the Subscription Services shall be brought in the Chancery Court of Williamson County, Tennessee. Customer consents to jurisdiction in this Court In the event litigation is necessary to enforce the terms of this Agreement, BC APPMAKER, INC. shall be entitled to collect from Customer any judgment or settlement sums due plus reasonable attorney’s fees, court costs, and other expenses incurred if it prevails.
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5.3 Dates or times by which either party is required to perform under this Agreement, excepting the payment of any fees or charges due hereunder, may be postponed to the extent that any party is prevented from meeting them by causes beyond its reasonable control.
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5.4 This Agreement is not assignable by the Customer, and any attempted or alleged assignment by Customer is void.
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