Framework as a Service Agreement
BOS Framework, Inc. is a Delaware Corporation with offices located at 1804 Williamson Ct., Suite 207, Brentwood, TN 37027, USA (“BOS Framework”). “You” or “Your” refers to the person using the BOSframework.com website and the services made available through that website. If you are using the Services (defined below) as part of your job, or on behalf of your employer, “You” or “Your” also refers to your employer. Any person who wants to access the Services must accept the terms and conditions of this Software as a Service agreement (this “Agreement”) without change.
BY REGISTERING FOR AND USING THE SERVICES, YOU ARE ACCEPTING THIS AGREEMENT AND ENTERING INTO A LEGAL CONTRACT BETWEEN YOU AND BOS FRAMEWORK, INC. IN WHICH YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS IN THIS AGREEMENT, ANY WEBSITE USAGE TERMS FOR THE WEBSITE BOSFRAMEWORK.COM AND THE BOS FRAMEWORK PRIVACY POLICY. IF YOU DO NOT AGREE TO ALL OF THOSE TERMS, YOU MAY NOT USE THE SERVICES.
1. Definitions.
In this Agreement:
a) “BOS Framework AUP” means the acceptable use policy available at https://www.BOSframework.com/AUP;
b) “BOS Framework Environment” means cloud infrastructure, DevOps enablement tools, software APIs, related enablement components and third-party wrappers made available by BOS Framework to Authorized Users;
c) “BOS Framework IP” means the BOS Framework Environment, the Services, the Documentation, and any and all intellectual property provided to or used by a User in connection with the foregoing. For the avoidance of doubt, BOS Framework IP includes the source code, Documentation, and data used to provide the Services, the Aggregated Statistics and any information, data, or other content derived from BOS Framework’s monitoring of User’s access to or use of the Services, but does not include User Data;
d) “BOS Framework Privacy Policy” means the privacy policy available at http://www.BOSFramework.com/PrivacyPolicy.
e) “BOS Framework Solution” means a solution or application created or built by a Developer User using the Services.
f) “Aggregated Statistics” means data and information related to a User’s use of the Services;
g) “Confidential Information” means non-public information about the BOS Framework Environment, the Services, and the BOS Framework IP, and any business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” communicated between the Parties in connection with this Agreement or Your use of the Services;
h) “Customer Data” means data provided to BOS Framework by an End User through a BOS Framework Solution;
i) “Developer IP” means the intellectual property of a Developer User that is incorporated into a BOS Framework Solution, and excludes Aggregated Statistics and any information, data, or other content derived from BOS Framework’s monitoring of User’s access to or use of the Services, and any independently developed intellectual property of BOS Framework;
j) “Developer User” means any person or entity that uses the BOS Framework Environment and/or the Services to create and build a BOS Framework Solution;
l) “End User” means any person or entity who uses or is authorized to use a BOS Framework Solution;
m) “Services” means the framework-as-a-service offered by BOS Framework and includes the tools and features used by Developer Users to create, test, operate, monitor and deploy BOS Framework Solutions, and by End Users to access and use BOS Framework Solutions;
n) “Suspension of Service” means the temporary or permanent suspension of User’s access to BOS Framework Environment or Services;
o) “Term” means any Initial Term and/or Renewal Term as defined in Section 10(a) of this Agreement;
p) “Third-Party Products” means any third-party products or services incorporated by BOS Framework in the BOS Framework Environment or the Services and made available for use by a User; and
q) “User” means Administrator User, Developer User or End User.
Agreeing to these Terms.
a) If You create an account on the BOS Framework Environment, You agree to this Agreement by acknowledging the Agreement during the account creation process. If You do not create an account, but otherwise access the BOS Framework Environment or the Services, You agree to this Agreement by either accessing the BOS Framework Environment or Services, or by downloading any application or content provided through the BOS Framework Environment, or by using any portion of the BOS Framework Environment that is accessible without an account.
b) When You agree to this Agreement, You are also agreeing to the terms and conditions in the BOS Framework Privacy Policy and the BOS Framework AUP, each of which are hereby incorporated into this Agreement by reference.
c) If You are acting on behalf of an employer in connection with Your use of the BOS Framework Environment or Services or creation of an account on the BOS Framework Environment, the person using the BOS Framework Environment or creating the account warrants and represents that they have authority and permission to enter into this Agreement on behalf of that employer, in addition to entering into it on behalf of themselves. For avoidance of doubt, if a User is acting on behalf of an employer in connection with the User’s use of the BOS Framework Environment or Services or creation of an account on the BOS Framework Environment, the User is entering into a legal agreement on behalf of User personally, and on behalf of the User’s employer, and BOS Framework is relying on the above representation that the User is authorized to bind its employer to this Agreement.
d) By accepting this Agreement, You (and in the case of a User using the BOS Framework Environment or Services in connection with their employer, that employer) are entering into a binding legal agreement with BOS Framework. If You not understand this Agreement, the BOS Framework Privacy Policy and the BOS Framework AUP, or if You do not agree to all of the terms and conditions in the Agreement, the BOS Framework Privacy Policy and the BOS Framework AUP, then You may not use the BOS Framework Environment or the Services or create an account through the BOS Framework website. Use of the BOS Framework Environment and Services is conditioned on Your acceptance of all of the terms and conditions in this Agreement, the BOS Framework Privacy Policy and the BOS Framework AUP.
2. Access and Use.
a) Provision of Access.
Subject to and conditioned on User’s payment of Fees, if applicable, and compliance with all
other terms and conditions of this Agreement, BOS Framework hereby grants You a non-
exclusive, non-transferable (except in compliance with Section 11(h)) right to access and use
the Services during the Term, solely for use by You in accordance with the terms and conditions
herein. BOS Framework shall provide You with the necessary passwords and network links or
connections to allow You to access the Services. In the event that You are purchasing the
Services to be used by multiple users, each User to which You give access to the Services will be
an “Authorized User.” The total number of Authorized Users may not exceed the number set
forth in the plan You purchase. In such case, the foregoing grant of rights shall extend to the
permitted number of Authorized Users, but to no others.
b) Documentation License.
Subject to the terms and conditions contained in this Agreement, BOS Framework hereby
grants to You and your Authorized Users a non-exclusive, non-sublicenseable, non-transferable
(except in compliance with Section 11(h)) license to use the Documentation during the Term
solely for the User’s internal business purposes.
c) Use Restrictions. No User may use the Services for any purposes beyond the scope of the access granted in this Agreement. No User shall, at any time, directly or indirectly (i) copy, modify, or create derivative works of the BOS Framework Environment, Services or Documentation, in whole or in part, or allow any third party to do so; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the BOS Framework Environment or the Services, in whole or in part; (iii) remove any proprietary notices from the BOS Framework Environment or the Services or Documentation; or (iv) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
d) Reservation of Rights. BOS Framework reserves all rights not expressly granted in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to You, any User or any third party any intellectual property rights or other right, title, or interest in or to the BOS Framework IP.
e) Suspension. Notwithstanding anything to the contrary in this Agreement, BOS Framework may temporarily suspend any User’s access to any portion or all of the BOS Framework Environment or the Services if: (i) BOS Framework reasonably determines that (A) there is a threat or attack on any of the BOS Framework IP, (B) User’s use of the BOS Framework IP disrupts or poses a security risk to the BOS Framework IP, the Services, or to any other User or vendor of BOS Framework, (C) User, is using the BOS Framework IP for fraudulent or illegal activities, (D) subject to applicable law, User has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, (E) BOS Framework’s provision of the Services to User is prohibited by applicable law, or (F) User is not in compliance with this Agreement or the BOS Framework AUP; (ii) any vendor of BOS Framework has suspended or terminated BOS Framework’s access to or use of any third-party services or products required to enable User to access the Services; or (iii) otherwise in accordance with this Agreement. BOS Framework shall use commercially reasonable efforts to provide written notice of any Service Suspension to any affected Developer User and to provide updates regarding resumption of access to the Services following any Service Suspension once the conditions that gave rise to the Service Suspension have been addressed to the reasonable satisfaction of BOS Framework.
f) TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL BOS Framework BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, ALTERATION, INTERCEPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BOS Framework WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE RESULTING FROM ANY UNAVAILABILITY OR SUSPENSION OF THE SERVICES. IN NO EVENT WILL BOS Framework’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO BOS Framework UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100, WHICHEVER IS LESS.
g) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, BOS Framework may monitor User’s use of the Services and collect and compile Aggregated Statistics. As between BOS Framework and User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by BOS Framework. You Acknowledge that BOS Framework may compile Aggregated Statistics based on User Data input into the Services. You agree that BOS Framework may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
3. User Responsibilities.
a) General.
You are responsible and liable for all uses of the BOS Framework Environment, Services and
Documentation resulting from access provided by You and Your Authorized Users, and any third
party who gains access to the BOS Framework Environment or Services through You or Your
Authorized Users, directly or indirectly, whether such access or use is permitted by or in
violation of this Agreement. Each Developer User shall use reasonable efforts to make all End
Users aware of this Agreement’s provisions as applicable to each BOS Framework Solution, and
shall cause End Users to comply with such provisions. Developer Users understand and
acknowledge that they are responsible and liable for obtaining a license agreement from each
End User for such End User’s Data (in compliance with all applicable laws) prior to processing or
storing such End User Data through or in connection with a BOS Framework Solution.
b) License of Developer Solution.
Each Developer User will grant, and hereby does grant, BOS Framework an unlimited, royalty-
free, fully-paid-up, irrevocable, perpetual, non-exclusive, transferrable (as permitted under the
BOS Framework Privacy Policy) worldwide right and license for each BOS Framework Solution
and all End User Data collected or processed through that BOS Framework Solution, but only to
the extent necessary for BOS Framework to provide the Services. Each Developer User
understands and acknowledges that it is responsible and liable for obtaining all authorizations
necessary for the End User Data it obtains, processes or stores, and for complying with all laws
and regulations relating to such obtainment, processing and storage.
c) Acceptable Use Policy.
Use of the BOS Framework Environment is further conditioned on all Users’ compliance with all
terms and provisions of the BOS Framework AUP. Your failure, or the failure of any of Your
Authorized Users, to abide by the BOS Framework AUP will be deemed and treated as a
material breach of this Agreement.
d) Privacy Policy.
Use of the BOS Framework Environment is further conditioned on each User’s agreement to
and compliance with the BOS Framework Privacy Policy. Each Developer User understands and
acknowledges that it is responsible and liable for providing a Privacy Policy to End User and
providing and abiding by a legally enforceable privacy policy governing its collection,
processing, storage and use of all End User Data. For avoidance of doubt, it is understood and
agreed that all Authorized Users and End Users must agree to both the BOS Framework Privacy
Policy and the Developer User’s privacy policy as a condition for using a BOS Framework
Solution to collect, process or store personal identifiable information using the BOS Framework
Environment.
e) Data Breach. Electronic data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means, or stored on any equipment accessible through the Internet or any similar network or communication facility. BOS Framework is not, and will not be, responsible or liable for any unauthorized access, dissemination or use of any End User Data or User Confidential Information or Developer IP, or any inability to use, loss, interruption, delay or recovery of any data resulting from a breach of data or system security. Each Developer User understands and acknowledges that it is responsible and liable for securing all End User Data collected through its BOS Framework Solution, and for notifying BOS Framework and all affected End Users of any breach of data or system security of End User’s Data. BOS Framework will use commercially reasonable efforts to protect Developer IP and End User’s data entered into or stored in BOS Framework’s Environment, provided, however that (to the extent permitted by law) BOS Framework shall not be liable to any User or third party for any breach notification or beyond the liability limits set forth in this Agreement, and then only to the extent such breach is the result of BOS Framework’s recklessness or affirmative wrongdoing.
f) Third-Party Products. BOS Framework may from time to time make Third-Party Products available to Users. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If a User does not agree to abide by the applicable terms for any such Third-Party Products, then the User may not install or use such Third-Party Products. You acknowledge and agree that regardless of the manner in which such Third Party Products may be offered to you (bundled or integrated within certain Services, offered separately by BOS Framework or persons certified or authorized by BOS Framework, or otherwise offered anywhere on the BOS Framework Environment), BOS Framework merely acts as an intermediary platform between you and such Third Party Products, and does not in any way endorse any such Third Party Products, or shall be in any way responsible or liable with respect thereto. BOS Framework will not be a party to, or in any way be responsible for monitoring, any interaction or transaction between you and any Third-Party Products. Any and all use of such Third-Party Products shall be done solely at your own risk and responsibility, and may be subject to such legal and financial terms which govern such Third Party Products, which you are encouraged to review before engaging with them. BOS Framework MAY, AT ANY TIME AND IN ITS SOLE DISCRETION, SUSPEND, DISABLE ACCESS TO OR REMOVE FROM THE BOS FRAMEWORK IP, BOS FRAMEWORK SOLUTION, AND/OR THE SERVICES, ANY THIRD PARTY PRODUCTS – WHETHER OR NOT INCORPORATED WITH OR MADE PART OF THE BOS FRAMEWORK SOLUTION, THE BOS FRAMEWORK IP, OR THE SERVICES AT SUCH TIME – WITHOUT ANY LIABILITY TO YOU, YOUR AUTHORIZED USERS, OR TO ANY END USERS.
4. Fees, Pricing and Payment.
a) Fees.
Users who select a fee-based subscription shall pay BOS Framework the fees (“Fees”) as set
forth at www.BOSFramework.com/price (the “Price Sheet”), which may be updated from time
to time. Pricing in effect at the time the fee is earned will be charged to the User or applied to
User’s account. All Fees are non-refundable. In the event User objects to BOS Framework’s
Fees or pricing for any reason, User’s recourse is to cease use of the Services and cancel User’s
account with BOS Framework, after which no further Fees will be charged. BOS Framework will
use commercially reasonable efforts to notify User of upcoming Fee changes, but BOS
Framework is not obligated to do so.
Users who select a fee-based subscription shall pay BOS Framework the fees (“Fees”) as set forth at www.BOSFramework.com/price (the “Price Sheet”), which may be updated from time to time. Pricing in effect at the time the fee is earned will be charged to the User or applied to User’s account. All Fees are non-refundable. In the event User objects to BOS Framework’s Fees or pricing for any reason, User’s recourse is to cease use of the Services and cancel User’s account with BOS Framework, after which no further Fees will be charged. BOS Framework will use commercially reasonable efforts to notify User of upcoming Fee changes, but BOS Framework is not obligated to do so.
b) Payment.
To the extent not set forth herein, Payment terms and amounts shall be as set forth in the Price
Sheet. All payments hereunder shall be made in US dollars or some other form of payment
deemed acceptably by BOS Framework in its sole discretion, on a monthly basis or such other
periodic basis as set forth in the Price Sheet. BOS Framework will process payment when due
using the payment method selected by the User. If the User fails to make any payment when
due (or the User’s selected payment method fails for any reason), without limiting BOS
Framework’s other rights and remedies: (i) BOS Framework may immediately suspend services
to that User and all of its Authorized Users until payment is made (ii) if such failure continues
for thirty (30) days or more, BOS Framework may terminate the User’s and all of its Authorized
Users’ access to any portion or all of the Services and delete Developer’s BOS Framework
Solution, Developer’s IP and any End User Data stored in connection with the BOS Framework
Solution. To the extent permitted by law, BOS Framework will have no liability for any damage,
liabilities, losses (including any loss of data or profits), or any other consequences that User may
incur as a result of a cancellation of Services in accordance with this Section.
c) Taxes.
All Fees and other amounts payable under this Agreement are exclusive of taxes and similar
assessments. Each User is responsible for all sales, use, and excise taxes, and any other similar
taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or
regulatory authority on any amounts payable by User hereunder, other than any taxes imposed
on BOS Framework’s income.
5. Confidential Information.
From time to time during the Term, either You or BOS Framework may disclose or make available to the other certain Confidential Information. Confidential Information does not include information that, at the time of disclosure (a) is or becomes publicly available with no wrongdoing of any person or entity; (b) is rightfully obtained by the receiving party on a non- confidential basis from a third party; or (c) is independently developed by the receiving party without reference to or use of the BOS Framework Environment.
a) BOS Framework Obligations.
BOS Framework shall use commercially reasonable measures to avoid disclosing User’s
Confidential Information to any person or entity other than to the extent necessary to provide
the Services. Notwithstanding the foregoing, BOS Framework may disclose Confidential
Information to the limited extent required (i) in order to comply with the order of a court or
other governmental body, or as otherwise necessary to comply with applicable law, provided
that BOS Framework is making the disclosure pursuant to the order shall first have given
written notice to Developer User; or (ii) to establish a party’s rights under this Agreement,
including to make required court filings. BOS Framework’s obligations of non-disclosure with
regard to Confidential Information are effective as of the Effective Date and will expire when
the User that provided the Confidential Information terminates its account and ceases use of
the BOS Framework Environment, and BOS Framework has deleted all BOS Framework
Solutions and End User Data associated with that User.
b) User Obligations.
User shall not use BOS Framework’s Confidential Information for any purpose other than using
the Services as permitted under this Agreement. User also shall not disclose BOS Framework’s
Confidential Information to any person or entity, except to those Authorized Users who have a
need to know the Confidential Information for User to exercise its rights or perform its
obligations hereunder. Notwithstanding the foregoing, User may disclose Confidential
Information to the limited extent required in order to comply with the order of a court or other
governmental body, or as otherwise necessary to comply with applicable law, provided that
User is making the disclosure pursuant to the order shall first have given written notice to BOS
Framework and made a reasonable effort to obtain a protective order. On the expiration or
termination of the Agreement, the User shall securely delete all copies, whether in written,
electronic, or other form or media, of BOS Framework’s Confidential Information and, upon
written request of BOS Framework (even if such request is made after this Agreement expires
or terminates for any reason), shall certify in writing that that such Confidential Information has
been destroyed and there are no remaining copies in the possession of control of User or any
third party that may have received the Confidential Information from such User. User’s
obligations of non-disclosure with regard to Confidential Information are effective as of the
date User received such Confidential Information and will expire five years from the date first
disclosed to that User; provided, however, with respect to any Confidential Information that
constitutes a trade secret (as determined under applicable law) of BOS Framework, such
obligations of non-disclosure will survive the termination or expiration of this Agreement for as
long as such Confidential Information remains subject to trade secret protection.
6. Intellectual Property Ownership; Feedback.
a) BOS Framework IP.
You, on behalf of Yourself and all Your Authorized Users, acknowledge and agree that BOS
Framework and its licensors own all right, title, and interest, including all intellectual property
rights, in and to the BOS Framework IP You and each Authorized User receives only a limited
right to use the BOS Framework IP during the Term, to the extent necessary to use the Services
and BOS Framework Environment, all other uses being forbidden.
b) Developer IP.
BOS Framework acknowledges and agrees that, as between BOS Framework and such User,
Developer Users own all right, title, and interest, including all intellectual property rights, in and
to the Developer IP, and BOS Framework has only a limited right to use the Developer IP during
the Term to provide and improve the Services and the BOS Framework Environment.
c) End User Data.
BOS Framework acknowledges that, as between BOS Framework and User, User owns all right,
title, and interest, including all intellectual property rights, in and to the User’s End User Data.
User hereby grants to BOS Framework a non-exclusive, royalty-free, worldwide license to
reproduce, distribute, and otherwise use and display the User Data and perform all acts with
respect to the User Data as may be necessary for BOS Framework to provide the Services, and a
non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute,
modify, and otherwise use and display User Data incorporated within the Aggregated Statistics.
d) Feedback.
If User or any of its employees or contractors sends or transmits any communications or
materials to BOS Framework by mail, email, telephone, or otherwise, suggesting or
recommending changes to the BOS Framework IP, including without limitation, new features or
functionality relating thereto, or any comments, questions, suggestions, or the like
(“Feedback”), such transmission constitutes express and irrevocable permission for BOS
Framework to use such Feedback for any purpose irrespective of any other obligation or
limitation between the Parties. User hereby assigns to BOS Framework on User’s behalf, and on
behalf of its employees, contractors and/or agents, all right, title, and interest in and to such
Feedback, and hereby warrants and represents that base is free to use, without any attribution
or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual
property rights contained in the Feedback, for any purpose whatsoever. Notwithstanding the
foregoing or anything else in this Agreement, BOS Framework is not required to use any
Feedback and shall decide in its sole and unfettered discretion what features and capabilities to
provide through the Services and BOS Framework Environment.
7.Limited Warranty and Warranty Disclaimer.
a) BOS Framework warrants that it will make commercially reasonable efforts to make the Services available to Authorized Users at all times during the Term other than for periodic maintenance periods, scheduled downtimes and other downtimes caused by reasons outside the reasonable control of BOS Framework. TO THE EXTENT PERMITTED BY LAW, THE FOREGOING WARRANTY DOES NOT APPLY, AND BOS FRAMEWORK STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS ALL OF WHICH ARE PROVIDED “AS IS” WITH NO WARRANTIES, EXPRESS OR IMPLIED, WHATSOEVER.
b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), THE BOS FRAMEWORK ENVIRONMENT AND THE SERVICES ARE PROVIDED “AS IS” AND BOS FRAMEWORK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BOS FRAMEWORK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a), BOS FRAMEWORK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR BOS FRAMEWORK ENVIRONMENT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Indemnification.
User shall indemnify, hold harmless, and, at BOS Framework’s option, defend BOS Framework from and against any losses (including without limitation reasonable attorneys’ fees and litigation costs) resulting from any claim or allegation that (i) the Developer IP, Developer’s BOS Framework Solution, or any use of the Consumer Data in accordance with this Agreement, violates, infringes or misappropriates such third party’s rights, including but not limited to privacy rights and intellectual property rights, (ii) User engaged in negligent or reckless acts (or omissions) or willful misconduct; (iii) any use of the BOS Framework Environment, Third Party Products, or Services in a manner not expressly authorized by this Agreement or the applicable third party agreement; (iv) User’s (any of their Authorized Users’) use of the BOS Framework Environment or Services or (v) any violation of law or breach of this Agreement by User or any of its Authorized Users. User may not settle any claim against BOS Framework unless BOS Framework consents to such settlement, and further provided that BOS Framework will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
9. Limitations of Liability.
a) TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL BOS Framework BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCT OR SERVICE PROVIDED IN CONNECTION WITH IT, UNDER ANY LEGAL OR EQUITABLE THEORY INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (1) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (2) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (3) LOSS OF GOODWILL OR REPUTATION; (4) USE, INABILITY TO USE, LOSS, INTERRUPTION, ALTERATION, INTERCEPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (5) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BOS FRAMEWORK WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
b) TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL BOS FRAMEWORK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY USER TO BOS Framework UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100, WHICHEVER IS LESS.
c) Exclusions.
The limitations of liability set forth in Section 9 shall not apply with respect to damages to
persons for personal injury or wrongful death, or damages occasioned by the fraud, willful
misconduct or gross negligence of a party.
10. Term and Termination.
a) Term.
The initial term of this Agreement begins when it is accepted by You as set forth above and,
unless terminated earlier pursuant to this Agreement’s express provisions, will continue in
effect for the initial period set forth in the Price Sheet for the plan you Selected (the “Initial
Term”) and any renewal terms set forth therein (each a “Renewal Term”). The Initial Term,
together with each subsequent Renewal Term shall be referred to as the “Term.”
b) Termination.
In addition to any other express termination right set forth in this Agreement:
(i) BOS Framework may terminate this Agreement, effective immediately, for User’s failure to comply with the terms of this Agreement including, without limitation, the Acceptable Use Policy or the Privacy Policy;
(ii) without limiting the foregoing, BOS Framework may terminate this Agreement, effective on written notice to User, if User: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after BOS Framework’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 5(b);
(iii) either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching Party with written notice of such breach; or
(iv) BOS Framework may terminate this Agreement, effective immediately and automatically if You: (A) become insolvent or generally unable to pay, or fail to pay, Your debts as they become due; (B) file or have filed against You, a petition for voluntary or involuntary bankruptcy or You otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) make or seek to make a general assignment for the benefit of Your creditors; or (D) apply for or have appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
c) Effect of Expiration or Termination.
Upon expiration or earlier termination of this Agreement, User shall immediately discontinue
use of the BOS Framework Environment and, without limiting User’s obligations under 5, User
shall delete, destroy, or return all copies of the BOS Framework IP and certify in writing to BOS
Framework that the BOS Framework IP has been deleted or destroyed. No expiration or
termination will affect User’s obligation to pay all Fees that may have become due before such
expiration or termination or entitle User to any refund.
d) Survival.
All provisions of this Agreement that, by their nature should survive its termination or
expiration shall so survive, including this Section 10 and Sections 1, 4, 5, 6, 7(b), 8, 9, and 11.
11. Miscellaneous.
a) Entire Agreement.
This Agreement, together with any other documents incorporated herein by reference
constitutes the sole and entire Agreement of the Parties with respect to the subject matter of
this Agreement and supersedes all prior and contemporaneous understandings, Agreement,
and representations and warranties, both written and oral, with respect to such subject matter.
Notwithstanding the foregoing, if the parties have previously entered into, or in the future
enter into, any confidentiality or non-disclosure agreement, such agreement and this
Agreement shall be construed together to provide the maximum permitted protection to BOS
Framework’s Confidential Information. To the extent the parties have entered into, or enter
into, a corporate license, services or similar agreement that is signed by authorized
representatives of both parties, then any term or condition of that Agreement that is
inconsistent with the terms of this Agreement shall control and prevail.
b) Notices.
All notices, requests, consents, claims, demands, waivers, and other communications
hereunder (each, a “Notice”) must be in writing and (with respect to BOS Framework) delivered
by email to the address legal@BOSFramework.com, or to You at the email address provided by
You to BOS Framework, as updated from time to time. Notice to BOS Framework will be
effective only after BOS Framework confirms receipt. Notice to You will be effective on the
earlier of the date You confirm receipt, or seventy two (72) hours after the email has been sent,
whichever is sooner. Notice may also be given to either party via registered U.S. mail (i) in the
case of any corporation or entity at the address of such entity recorded with the division of
corporations or similar authority through which such corporation or entity is formed, or (ii) in
the case of an individual User, addressed to the address provided by such User to BOS
Framework.
c) Force Majeure.
To the extent permitted by law, in no event shall BOS Framework be liable, or be deemed to
have breached this Agreement, for any failure or delay in performing its obligations under this
Agreement, if and to the extent such failure or delay is caused by any circumstances beyond
BOS Framework’s reasonable control, including but not limited to acts of God, flood, fire,
earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor
stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken
by a governmental or public authority, including imposing an embargo.
d) Amendment and Modification; Waiver.
BOS Framework may amend and modify these terms from time-to-time, each such amendment
or modification to be effective as of the date the User next uses the Services. While BOS
Framework may notify you of any such Amendment, it is not required to do so. You are
responsible for periodically monitoring this Agreement for amendments, which can be
determined by reviewing the Effective Date set forth below. No amendment to or modification
of this Agreement by user shall be effective unless it is in writing and signed by an authorized
representative of each party. In the event You have a good faith belief that any amendment to
this Agreement by BOS Framework has a material detrimental effect on You, You may
terminate this Agreement upon thirty (30) days’ notice to BOS Framework, provided such effect
is not cured within such 30 day period. No waiver by any party of any of the provisions hereof
will be effective unless explicitly set forth in writing and signed by the party so waiving. Except
as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any
rights, remedy, power, or privilege arising from this Agreement will operate or be construed as
a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege
hereunder will preclude any other or further exercise thereof or the exercise of any other right,
remedy, power, or privilege.
e) Severability.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such
invalidity, illegality, or unenforceability will not affect any other term or provision of this
Agreement or invalidate or render unenforceable such term or provision in any other
jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or
unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect
their original intent as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to the greatest
extent possible.
f) Arbitration.
(i) The parties to this agreement agree that any claim, dispute, or controversy, including all
statutory claims and any state or federal claims, that may arise out of or relating to the this
Agreement shall be resolved by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. Arbitration shall be by a panel of one (1)
qualified arbitrators experienced in the matters at issue. Location of Arbitration Proceedings.
All arbitration proceedings shall be held in Davidson County, Tennessee, U.S.A., in a location to
be specified by the arbitrators or any other place agreed to collectively by the parties and the
arbitrator. By agreeing to arbitration, the parties understand and agree that they are waiving
their rights to maintain other available resolution processes, such as a court action or
administrative proceeding, to settle their disputes.
(ii) Class Action Waiver.
The parties to this Agreement agree that (a) no arbitration proceeding hereunder whether a
consumer dispute or a business dispute shall be certified as a class action, or on a basis
involving claims brought in a purported representative capacity on behalf of the general public,
other customers or potential customers or Persons similarly situated, and (b) no arbitration
proceeding hereunder shall be consolidated with, or joined in any way with, any other
arbitration proceeding. THE PARTIES TO THIS AGREEMENT AGREE TO ARBITRATE A CONSUMER
DISPUTE OR BUSINESS DISPUTE ON AN INDIVIDUAL BASIS AND EACH PARTY WAIVES THE RIGHT
TO PARTICIPATE IN A CLASS ACTION.
g) Governing Law; Submission to Jurisdiction.
This Agreement will be governed and construed according to the laws of the State of
Tennessee, without giving effect to any choice or conflict of law provision or rule that would
require or permit the application of the laws of any jurisdiction other than those of the State of
Tennessee. Without limiting the application of Section 11(f), BOS Framework reserves the right
to seek injunctive relief from any court of competent jurisdiction if (i) the Acceptable Use Policy
is violated; (ii) to protect the BOS Framework IP; or (iii) for any action that is not resolved
through arbitration. Any legal suit, action, or proceeding arising out of or related to the actions
delineated in this subsection of the Agreement will be instituted exclusively in the federal
courts of the United States or the courts of the State of Tennessee in each case located in the
city of Nashville and County of Davidson County, and each party irrevocably submits to the
exclusive jurisdiction of such courts in any such suit, action, or proceeding.
h) Assignment.
(i) BOS Framework may assign any of its rights or delegate any of its obligations hereunder, in
each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior
written consent of User. This Agreement is binding upon and inures to the benefit of the
Parties and their respective permitted successors and assigns.
(ii) User may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of BOS Framework, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
i) Export Regulation.
To the extent Developer User makes BOS Framework Solutions available to End Users outside
of the US, Developer User understands and acknowledges the it is responsible and liable for
complying with US export control laws, including the U.S. Export Administration Act and its
associated regulations. Developer User shall not, directly or indirectly, export, re-export, or
release the Services or the underlying software or technology to, or make the Services or the
underlying software or technology accessible from, any jurisdiction or country to which export,
re-export, or release is prohibited by law, rule, or regulation. User shall comply with all
applicable federal laws, regulations, and rules, and complete all required undertakings
(including obtaining any necessary export license or other governmental approval), prior to
exporting, re-exporting, releasing, or otherwise making the Services or the underlying software
or technology available outside the US.
j) US Government Rights.
Each of the Documentation and the software components that constitute the Services is a
“commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial
computer software” and “commercial computer software documentation” as such terms are
used in 48 C.F.R. § 12.212. Accordingly, if User is an agency of the US Government or any
contractor therefor, User only receives those rights with respect to the Services and
Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. §
227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their
contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their
contractors.
Effective Date: May 1, 2020