The Terms of Service (this “Agreement”) is between Battr AI, Inc. (“Battr” or “we”) and the entity or person who accepts this Agreement either by clicking a box indicating acceptance of this Agreement, placing a Subscription Order for the Battr Platform or API, or using the Battr Platform (“Subscriber” or “you”). Users of the Battr Platform who are individual employees or personnel of the primary Subscriber are also bound by the terms and conditions of this Agreement, excluding Section 5 and other fee-related terms.
Battr may update this Agreement from time to time by posting a revised Agreement with notice to Subscriber of this revision by email or in-app notification. The revised version will become effective and binding the next business day after it is posted. If Subscriber does not agree with a modification to the Agreement, Subscriber must notify Battr in writing of any reasonable objections within thirty (30) days after Battr sends notice of the revision. If Subscriber provides such notice, then Subscriber’s subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until Subscriber’s next renewal date, after which the updated version will apply.
In consideration of the covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Battr and Subscriber hereby agree to the terms and conditions contained in this Agreement.
RECITALS:
A. Battr has developed certain real estate team management software that is available to access on Battr’s Website as a subscription service, together with other content and materials provided by Battr on the Website, accessible via API, or otherwise provided by Battr.
B. Subscriber desires to subscribe to access or license the Battr Platform, and Battr desires to provide such access and licenses to Subscriber, subject to the terms and conditions of this Agreement.
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Battr and Subscriber agree as follows:
AGREEMENTS:
1. Definitions.
(a) “Active User” means a User for whom access to the Battr Platform is enabled. Active Users are licensed to access the Battr Platform from an unlimited number of computers, cell phones, tablets or other appropriate personal electronic devices, and via an unrestricted number of sessions or connections, so long as the total number of Active Users specified in Customer’s Subscription Order(s) is not exceeded. A User may be set to “inactive” within the Battr Platform.
(b) “API” means Battr’s application programming interface for the Battr Platform, including any accompanying or related documentation, source code, executable applications and other materials made available by Battr regarding the API.
(c) “Confidential Information” means the Battr Platform, API, Subscriber Data, either party’s non-public business and technology information, trade secrets, Battr’s pricing, any written materials marked as confidential and any other information which is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party reasonably should understand to be confidential. Confidential Information excludes information that the receiving party can document: (i) is or becomes generally available to the public without fault of the receiving party; (ii) was rightfully in the receiving party’s possession prior to its disclosure by the other party; (iii) is independently developed without the use of any Confidential Information of the disclosing party; or (iv) is obtained without obligation of confidentiality from a third party who has the right to disclose it. The receiving party also may disclose Confidential Information to the extent required under a judicial or legislative order or proceeding or as necessary to comply with open records acts or other freedom of information laws or regulations; provided that it gives the disclosing party, if legally permissible, reasonable prior notice and an opportunity to respond or object to the disclosure.
(d) "Subscriber Data" means all electronic data or information input by Subscriber and Users into the Battr Platform, including Subscriber’s data contained in Battr Platform reports, financial data, and Personal Data. Subscriber Data does not include Usage Data, Feedback or template forms for reports provided to Subscriber through the Battr Platform.
(e) "Documentation" means Battr’s user instructions, help materials, and/or user manual (if applicable) for the Battr Platform, whether in electronic, printed or other form, as updated by Battr from time to time.
(f) “Feedback” means any suggestions, enhancement requests, complaints or other feedback from Subscriber or Users relating to the Battr Platform or Battr’s Services.
(g) “Mobile App” means the Battr mobile application that are used in connection with the primary Battr Platform service.
(h) “Personal Data” means information that identifies a particular individual, such as name, birthdate, address, telephone number, e-mail address, government-issued identification numbers; passwords, credit and debit card numbers, financial account numbers and security codes; biometric data, and personal health information. However, if applicable law in the jurisdiction where a person resides defines personal information or data, that definition shall apply.
(i) “Services” means technical support, Battr Platform maintenance, consulting, training, professional services, and other services offered by Battr to its subscribers as part of or in connection with the Battr Platform, including services for which Battr may charge a separate fee.
(j) “Battr Platform” means Battr’s real estate team management software provided as a web-hosted subscription service and any associated online or downloadable software or components, including the Mobile Apps, as specified in Customer’s Subscription Order(s), including Documentation and Updates. Except as otherwise provided in this Agreement, “Battr Platform” includes Third-Party Software provided by Battr as part of the Battr Platform. Where Subscriber has accessed the API, as described in Section 2(b), “Battr Platform” also includes the API.
(k) “Subscriber’s App” means any web-based or other software services or applications developed by Subscriber that utilize the API to interact with the Battr Platform.
(l) “Subscription Order(s)” means Subscriber’s orders for the Battr Platform, specifying the types and/or numbers of Battr Platform licenses or rights granted to Subscriber and related fees and terms. Subscription Orders are found within the Battr Platform in the Billings settings.
(m) “Term” has the meaning given in Section 6(a).
(n) “Third-Party Software” means any third-party applications and software, whether open source or proprietary, that are owned by entities or individuals other than Battr and that may be incorporated into or interoperate with the Battr Platform.
(o) “Updates” means updates, upgrades, patches, improvements, enhancements, bug fixes, additional features, and other modifications to the Battr Platform.
(p) "Users" means individual employees and personnel of Subscriber who are authorized to use the Battr Platform. [Subject to Battr’s prior written approval,] Users may also include consultants or contractors of Subscriber who are using the Battr Platform solely for Subscriber’s internal business purposes, but shall not include competitors of Battr. “Users” include Active Users and inactive Users.
(q) “Website” means the applicable Battr website or web portal for Subscriber, where the Battr Platform will be accessed by Subscriber and its Users via a Subscriber login, and/or other web pages designated by Battr where resources and Services related to the Battr Platform are provided by Battr (excluding third party websites).
2. Grant of Rights. Battr grants Subscriber a non-exclusive, non-transferable (i) right to access and use the Battr Platform during the Term, and solely for use by Subscriber’s authorized Active Users; and (ii) in the case of Mobile Apps, a license to download and use the Mobile Apps on the electronic devices of Subscriber’s Active Users. Battr will provide Subscriber and its Users with online access to the Battr Platform and any related products and Services offered by Battr that are made available online as part of the Battr Platform on the Website. The hosted Battr Platform will be hosted either on Battr’s servers or the servers of a third party that is in the business of hosting web- or cloud-based software applications. Use of the Battr Platform is subject to the following terms and limitations:
(a) Use of Battr Platform. Use of the Battr Platform is limited to Subscriber’s own internal business. Subscriber is granted the right to authorize Users to access and use the Battr Platform and related materials that Battr makes available as part of the Battr Platform and Website. Subscriber and Users are authorized to use the Battr Platform only as part of the Battr Platform, except as otherwise specifically set forth in this Agreement.
(b) API License. If Subscriber wishes to use the Battr’s API to enable Subscriber’s App(s) to integrate with the Battr Platform, Subscriber may access the API via Battr’s website. Each Subscriber’s App that implements the API must have Battr’s prior approval. If Subscriber elects use the API, Battr hereby grants to Subscriber a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term to: (1) use the API and related materials provided by Battr to enable Subscriber’s App to make calls to the API and connect with the Battr Platform; (2) use, reproduce, distribute, and transmit Battr Platform data through the API solely to the extent necessary to format and display it through Subscriber’s App; and (3) market, distribute and license Subscriber’s App that are enabled to access the Battr Platform via the API to Subscriber’s third-party end user customers. In addition to the other terms and conditions of this Agreement, the following terms apply:
i. Subscriber and Users are prohibited from in any way using the API to directly or indirectly compete with Battr or the Battr Platform, or assist a third party in so competing, including without limitation using the API as specified in Section 2(f). Subscriber’s Apps shall not replicate products or services offered by Battr, including without limitation functions or clients on platforms (such as iOS or Android) where Battr offers its own client or function. Subscriber will not allow integration with or access to the Battr Platform or its data without direct use of the API. Subscriber’s Apps may not use or access the API or the Battr Platform in order to monitor their availability, performance, or functionality or for any similar benchmarking purposes.
ii. Subscriber is required to use the phrase “powered by Battr” on an appropriate screen within Subscriber’s App, and to otherwise and display Battr’s Marks (pursuant to the trademark license granted in Section 2(c) below) to inform its customers that the Battr Platform data appearing or accessible within Subscriber’s App originates from the Battr Platform and that Subscriber’s App uses an API licensed from Battr.
iii. In order to use and access the API, Subscriber must obtain API credentials (a “Token”) from Battr. Subscriber may not share its Token with any third party, shall keep such Token and all login information secure, and shall use the Token as Subscriber’s sole means of accessing the API.
iv. Subscriber will use the API in accordance with any additional instructions, policies or guidelines that Battr may provide to Subscriber in writing from time to time. Subscriber shall not use or access (nor facilitate or enable any third party to use or access) the API or related materials in any way not expressly permitted under this Agreement.
v. Either party may terminate the API license granted in this Section 2(b) at any time upon fifteen (15) days’ prior written notice to the other party, with or without cause. Upon such termination, Subscriber will promptly cease using the API and either return to Battr or destroy (including removing from all computers, hard drives, networks, and other storage media), all copies of the API materials licensed pursuant to this Section 2(b).
(c) Trademark License. In connection with this Agreement, including, where applicable, the marketing of Subscriber’s App(s) for use in connection with the Battr Platform, each party grants to the other party, as licensee, a limited, nonexclusive license to use its name, logos and applicable trademarks and service marks (the “Marks”) during the Term to promote their relationship and their respective products and services, including using the Marks in such party’s partner or customer lists and on its websites. This trademark license is subject to the following terms and conditions: (i) the licensee of the Marks shall comply with the licensor’s guidelines and instructions for use of its Marks, as provided to the licensee in written or electronic form; (ii) the licensor retains full ownership and rights to its Marks and all associated goodwill, and the licensee does not acquire any rights, title or interest in such Marks beyond those set forth herein; and (iii) the licensee’s use of logo Marks must preserve the original appearance of the logos. The licensor of a Mark may terminate this license for any Marks, or instruct the licensee to change to a new or replacement Mark, upon thirty (30) days’ prior written notice.
(d) Updates. Subscriber acknowledges and agrees that the Battr Platform (including the API), the Website, and other materials made available by Battr may be modified and changed from time to time with Updates, in Battr’s sole and reasonable discretion. If Subscriber is using the API for Subscriber’s Apps under Section 2(b) and Battr updates the API, Battr will provide notice and a pre-release copy of the updated API to Subscriber as soon as is reasonably practicable.
(e) Users. Users are required to accept this Agreement prior to accessing the Battr Platform and are bound by the terms apply to Subscriber, except that Section 5 and other fee-related terms do not apply to individual Users who are employees or personnel of the primary Subscriber. Subscriber is responsible for ensuring that its Users comply with the applicable terms and limitations in this Agreement.
(f) Restrictions. Subscriber and each User agree to the following terms and restrictions:
• You will not reverse engineer, disassemble, decompile or otherwise attempt to derive source code, trade secrets, algorithms, programming methods or Confidential Information from the Battr Platform.
• You will not modify or create derivative works of the Battr Platform (including the API) or use it in order to build a competitive product or service, or copy any features, functions or graphics of the Battr Platform or Website.
• You will not through API or otherwise use or assist a third party in such a way to circumvent the requirement for an Active User to access the Battr Platform.
• You will use the Battr Platform only as permitted by applicable laws and regulations.
• You will not share your password or access to your Software account with any other person or entity, including without limitation any competitor of Battr. You are responsible for any misuse of the Battr Platform under your account or password.
• You will not use the Battr Platform in any manner which could damage, disable, overburden, or impair the Battr Platform or interfere with any other party's use and enjoyment of the Battr Platform.
• You will not obtain or attempt to obtain any materials or information on or through the Battr Platform through circumventing any access or use restrictions or by any other unauthorized methods, such as hacking or password mining.
• You may not use any bots, spiders, page-scraping or other automated or manual processes or methods to copy or monitor the Battr Platform or any of its contents.
• You will not upload to the Battr Platform any libelous or unlawful content or any materials or instructions that may cause harm or injury, or that violate any person’s right of privacy or any copyright, trademark, or other intellectual property rights.
• You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any other way use or exploit any of the content of the Battr Platform or other Battr Materials other than for their authorized purposes.
• You will not delete or alter any proprietary rights or attribution notices in any content or Battr Materials obtained through the Battr Platform.
• You agree that you do not acquire any ownership rights in any content posted by Battr, its licensors, or other third parties, or in any other materials provided by Battr (“Battr Materials”). We do not grant you any licenses, express or implied, to any Battr Materials except as expressly provided in this Agreement, in connection with such content or materials, or as contained in a binding contract between you or your organization and Battr.
• If you decide to access or use any third party websites linked to the Battr Platform, you do this entirely at your own risk.
• If any affiliates of Subscriber are using the Battr Platform pursuant to this Agreement, Subscriber is responsible for ensuring their compliance with the terms of this Agreement.
• Financial information displayed by or through the Battr Platform or any Services is for general informational purposes only and is not intended to be relied upon as investment advice.
• Battr Platform accounts operate on shared resources. Excessive use or abuse of these shared network resources by one customer may have a negative impact on all other customers. Misuse of network resources in a manner that impairs network performance is prohibited and may result in termination of this Agreement or suspension of Subscriber’s account(s).
(g) Third-Party Software and Sites. Any open source components of the Battr Platform are subject to the applicable third-party license or subscription terms; Battr will use reasonable efforts to provide a list of such open source components and license terms to Subscriber upon request. Other Third-Party Software that is embedded in the Battr Platform, or is provided by Battr as an integrated part of the Battr Platform, is provided by Battr to Subscriber pursuant to the applicable terms of this Agreement, unless a separate third-party license or subscription agreement for such Third-Party Software is provided to Subscriber in advance. Third-Party Software is authorized only for use in connection with the Battr Platform, unless otherwise permitted under an open source license. If you access any third-party websites or services through the Battr Platform, you are responsible for complying with the terms of use that apply to such sites or services. Battr is not responsible or liable for any offensive, illegal, inaccurate, or otherwise objectionable content found on any third-party websites or otherwise posted by any third party, even if accessed through the Battr Platform.
(h) Evaluation Software. If a free evaluation or trial of the Battr Platform is specified in the Subscription Order (“Evaluation Software”), Battr WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, CONSEQUENTIAL, OR OTHERWISE, ARISING OUT OF USE OF THE EVALUATION SOFTWARE. If Subscriber purchases a subscription or license to the Battr Platform at the end of the trial period, the standard terms of this Agreement will apply thereafter. ANY DATA THAT SUBSCRIBER OR ITS USERS ENTER INTO EVALUATION SOFTWARE DURING THE FREE TRIAL PERIOD MAY BE TEMPORARY ONLY. If Subscriber does not purchase a paid subscription or license to the Evaluation Software upon completion of the trial period, Battr may purge and delete the data entered into the Evaluation Software any time after expiration of the trial period. Battr may use Subscriber’s trial period data for the purposes specified in Sections 4(b) and 4(c). Battr will make Evaluation Software available to Subscriber on a trial basis, free of charge, until the earlier of (a) the end of the agreed free trial period, or (b) the start date of any purchased subscription or license to such Software by Subscriber. Subscriber may not transfer Evaluation Software to or share it with anyone else.
(i) Monitoring/Audits. Battr may monitor use of the Battr Platform for compliance with the terms of this Agreement. Battr or its designated auditor may also inspect Subscriber’s offices, use of the Software, and its books and records, upon reasonable prior notice to Subscriber, during Subscriber’s normal business hours and subject to Subscriber's facility and security regulations. Battr is responsible for the payment of all expenses and costs of such audits. Any information obtained by Battr and the auditor will be kept in strict confidence and used solely for the purpose of verifying Subscriber's compliance with the terms of this Agreement.
3. Technical Support and Maintenance. Battr will provide Subscriber with email-, telephone- and/or web-based technical support and maintenance Services to assist Subscriber in utilizing the Battr Platform. Support Services will be available during Battr’s regular business hours. Battr technicians will use reasonable, good faith efforts to resolve Subscriber’s problems. Battr will respond to support requests based on: (a) the order that such requests are received; and (b) the relative importance of such requests as reasonably determined by Battr. Battr may update its support and maintenance policies from time to time, upon notice to Subscriber.
4. Ownership.
(a) Battr Ownership. Battr owns and retains all right, title and interest in and to the Battr Platform, including the Battr Platform and Documentation, text, graphics, logos and images, Battr’s trademarks and service marks, the Website and its contents, any custom developments, Updates, training and other written or electronic documents and materials produced by Battr that relate to the Battr Platform, and all intellectual property rights in the foregoing. The Battr Platform and all other materials made available to Subscriber by Battr may be used by Subscriber and Users only for the purposes described in this Agreement. Any rights not expressly granted herein are reserved to Battr. Neither this Agreement nor any other agreement between the parties changes ownership of any pre-existing software or other materials.
(b) Subscriber Data. As between the parties, Subscriber owns and shall retain all right, title and interest in and to all Subscriber Data, as well as the contents of any reports or forms generated by the Battr Platform that are specific to Subscriber. Battr has the right to use, process and disclose Subscriber Data as necessary to provide the Services to Subscriber, to comply with legal obligations and exercise its legal rights, and to improve the Battr Platform and Services. Battr will have no right to sell Subscriber Data to any third party. Subscriber represents and warrants Subscriber Data will not violate any person’s right of privacy or copyright, trademark, or other intellectual property rights, and Subscriber and its Users will not transmit any such materials to Battr. Subscriber warrants that it has all necessary rights and consents required to upload all Subscriber Data, including Personal Data, into the Battr Platform or otherwise provide such Subscriber Data to Battr for its use and processing as set forth in this Agreement. In particular, if you are providing any Personal Data to Battr (through the Battr Platform or otherwise) that is not your own data, you represent that you have the authority and any necessary consents to do so.
(c) Usage Data. The Battr Platform tracks metadata and other statistical and usage data related to Subscriber’s and Users’ use of the Battr Platform (“Usage Data”) and provides such data to Battr. Battr shall own such Usage Data, provided that any Subscriber Data used in creating the Usage Data is in aggregated and/or anonymized form so that it is not identifiable as to Subscriber or any individual person. Battr may collect, aggregate and use such Usage Data for any legal purpose, including without limitation for the purposes of providing services and improving the Battr Platform and Battr’s products and services generally.
(d) Feedback. Battr shall have a royalty-free, worldwide, irrevocable, perpetual license to use Feedback and incorporate it into Battr’s software, products and services. Battr shall exclusively own all right, title and interest in and to any software and intellectual property developed or delivered to Subscriber in the performance of this Agreement, regardless of whether it is based on or incorporates any Feedback, subject to the rights granted herein to Subscriber.
5. Fees.
(a) Fees. Subscriber’s fees for access to the Battr Platform and for other services are set forth in the Subscription Order(s) (the “Fees”). Subscription Fees will remain fixed during the initial subscription Term unless Subscriber: (i) requests an increase in Active User licenses or rights (including increasing the number of Users within the Battr Platform), or (iii) subscribes to additional features, services or products. If Subscriber decreases the number of Active Users Subscriber will not receive a refund; however, Subscriber will receive a credit that can be used for future subscription Fees. Battr may adjust Fees effective at the beginning of any renewal term.
(b) Past Due Amounts. If any amounts owed by Subscriber are thirty (30) or more days overdue, Battr may, without limiting its other rights and remedies: (i) charge interest at the rate of 1.5% per month or the highest rate permitted by law, whichever is less, on the past due amounts; (ii) terminate this Agreement under Section 6(c) and accelerate Subscriber’s unpaid fee obligations so that all such obligations become immediately due and payable, and/or (iii) suspend Subscriber’s and its Users’ access to the Battr Platform until such amounts are paid in full, as set forth in Section 6(e). Subscriber shall also be liable for all costs of collection, including reasonable attorney's fees, whether or not a suit is instituted.
(c) Disputed Amounts. Subscriber will not withhold any undisputed portion of any amounts payable hereunder but may withhold disputed amounts upon written notice of a dispute. Unless Subscriber provides Battr such notice, including the basis for such dispute, regarding the amounts due hereunder within sixty (60) days after the date of the invoice on which such amounts appear, the invoice will be deemed approved by Subscriber and the right to dispute any such amounts invoiced will be deemed waived.
(d) Taxes. Subscriber is responsible for any applicable sales, use or other taxes or duties associated with this Agreement, other than taxes on Battr’s net income. If Subscriber is a tax-exempt entity, Subscriber must provide a tax-exemption certificate to Battr.
(e) Other. Subscriber will provide a valid credit card number or bank account to Battr for automatic charging and agrees to so pay all fees, charges and any applicable taxes for the Battr Platform and Services. Subscriber certifies to Battr that (if Subscriber is an individual) he or she is at least 18 years old, and that Subscriber is the cardholder of the applicable credit card or is expressly authorized by the cardholder to use it for these charges. Subscriber acknowledges that its obligation to pay Battr all fees, charges, and any applicable taxes is not based on actual usage of the Battr Platform and that Subscriber remains obligated to pay the applicable Fees for the Battr Platform regardless of whether you use it or not. All amounts paid under this Agreement are payable in U.S. dollars. All payments are non-refundable, other than as expressly set forth in this Agreement.
6. Term and Termination; Suspension.
(a) Term. This Agreement will commence on the Effective Date and will continue for the subscription terms (quarterly or annual) as specified in the Subscription Order(s) (the “Term”), subject to prior termination as set forth below. The Term automatically renews at the end of each quarterly or annual period until terminated as set forth below.
(b) Termination for Convenience. Either party may terminate or elect not to renew this Agreement at any time, effective upon ninety (90) days’ prior written notice to the other party. Battr will not provide refunds of prepaid Fees if Subscriber terminates for convenience; however, Subscriber will still have access to the Battr Platform during the remainder of the paid subscription term.
(c) Termination for Cause. Either party will have the right to terminate this Agreement for cause at any time, upon written notice, in the event of (i) any material breach of this Agreement by the other party, subject to thirty (30) days prior written notice and opportunity to cure such breach; or (ii) the other party’s dissolution, distribution of a substantial portion of its assets, or cessation of all or substantially all of its normal business affairs. Subscriber will not be entitled to a refund of pre-paid Fees for the period after termination if Battr terminates this Agreement for cause.
(d) Effect of Termination. Upon termination of this Agreement, Subscriber will no longer have access to the Battr Platform. Subscriber will promptly pay all outstanding amounts owed to Battr. Each party will promptly return to the other party all Confidential Information of the other party and delete any copies of such information or materials from its systems and files. Notwithstanding the foregoing, the receiving party may retain Confidential Information on its back-up servers that are not generally accessible, in the ordinary course of business, as well as one copy in a secure location for archival purposes, provided that such Confidential Information shall remain subject to the provisions of this Agreement. Sections 2(f), 2(i), 4, 5, 6(d), 7, 8, 9, 10, and 12 will survive termination of this Agreement, together with such other sections or terms as by their sense or meaning should survive such termination.
(e) Suspension of Battr Platform Access. Battr may suspend Subscriber’s and its Users’ access to the Battr Platform if Subscriber is in material breach of this Agreement, including any non-payment of fees, subject to fifteen (15) days’ prior written notice and opportunity to cure such breach. Battr may also immediately suspend Subscriber’s or a User’s access to the Battr Platform, without prior notice, if continued use creates a substantial risk to the security or integrity of the Battr Platform system or may result in material harm to the Battr Platform, Battr, or other subscribers of Battr. Battr will promptly notify Subscriber of the suspension. Battr will limit the suspension in time and scope as reasonably necessary under the circumstances.
7. Confidential Information. The receiving party of Confidential Information (i) shall not disclose Confidential Information or any information derived therefrom to any person, other than employees and independent contractors with a need to know such information and who are obligated to keep such information confidential; or (ii) use the Confidential Information for any purpose, except as expressly permitted by this Agreement. The receiving party shall give Confidential Information at least the same level of protection as it gives its own information of similar sensitivity, but not less than a reasonable level of protection. Confidentiality obligations shall survive any termination of this Agreement.
8. Personal Data and Account Security. Each party will collect and maintain all Personal Data of individuals contained in the Subscriber Data in compliance with applicable data privacy and protection laws, statutes, and regulations. Battr agrees to maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Data, including Personal Data. Subscriber will also maintain commercially reasonable administrative, physical, and technical safeguards and standards for its Users’ use of the Battr Platform and the security of the Battr Platform and Users’ passwords. Each party will collect and maintain all Personal Data of individuals contained in the Subscriber Data in compliance with applicable data privacy and protection laws, statutes, and regulations. Please refer to Battr’s privacy policy, which informs users of Battr’s policies and practices related to collection, storage, processing, destruction, and other use of Personal Data.
9. Disclaimer of Warranties. The Battr Platform, Documentation, Website, Third-Party Software, and all Services are provided “AS IS”. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE Battr PLATFORM IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH YOU. Battr MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, whether arising by law, by reason of custom or usage of trade, or by course of dealing. Battr does not warrant that the Battr Platform or its Services are error-free. Battr is not responsible or liable for any problems or interruptions in the Battr Platform due to issues with third-party hosting services or Internet service providers.
10. Limitations of Liability. IN NO EVENT SHALL Battr BE LIABLE FOR LOST PROFITS, LOSS OF DATA (EXCEPT AS PROVIDED IN THE BAA), INTERRUPTIONS OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR USE OF THE Battr PLATFORM, INCLUDING WHERE SUCH TYPES OF DAMAGES RELATE TO THE ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO PERSONAL DATA TRANSMITTED, STORED OR OTHERWISE PROCESSED, REGARDLESS OF WHETHER SUCH PARTY HAS NOTICE OF THE POTENTIAL FOR SUCH LOSS OR DAMAGE, AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE AND STRICT LIABILITY). Battr'S TOTAL AGGREGATE LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO Battr DURING THE THREE (3) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. The fees for the Battr Platform reflect this allocation of risk and limitations of liability. These limitations form an essential basis of the bargain between the parties, and shall apply notwithstanding the failure of the essential purpose of any limited remedy. These limitations and all disclaimers apply to licensors of Third-Party Software. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.
11. Assignment. Subscriber may not assign or transfer this Agreement or any of its rights or duties hereunder to any third party without prior written consent of Battr. Battr may assign this Agreement or subcontract its obligations under this Agreement, provided that Battr shall remain primarily liable for the performance of all of its subcontracted obligations.
12. General.
(a) Entire Agreement; Amendment. This Agreement, including all related Subscription Orders agreed to by the parties, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or oral agreements or understandings with respect thereto. Any preprinted terms in a purchase order submitted by Subscriber to Battr are expressly agreed to be of no force or effect. This Agreement may not be amended except by a writing signed by authorized representatives of both parties.
(b) No Waiver. Any waiver by either party of a default or obligation under this Agreement will be effective only if in writing. Such a waiver does not constitute a waiver of any subsequent breach or default. No failure to exercise any right or power under this Agreement or to insist on strict compliance by the other party will constitute a waiver of the right in the future to exercise such right or power or to insist on strict compliance.
(c) Choice of Law and Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of Utah, excluding conflicts of laws provisions. If any dispute arises concerning this Agreement and/or Battr’s products or services, venue shall be laid in Salt Lake County, Utah. Utah state and federal courts shall have exclusive jurisdiction over any such dispute, and the parties hereby consent to the jurisdiction and venue of such courts.
(d) Attorneys’ Fees. In the event of any breach with respect to this Agreement, the breaching party, in addition to all other obligations and liabilities hereunder, shall pay all attorneys’ fees, expert witness fees, court costs, investigation expenses, and all other costs and expenses incurred by the non-defaulting party in connection with such breach and enforcement of this Agreement.
(e) Legal Claims. Any claim arising out of or relating to this Agreement must be brought within one (1) year of the first event or occurrence giving rise to the claim.
(f) Severability. If any provision of this Agreement is deemed invalid or unenforceable by a court or governmental authority, that provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remainder of this Agreement shall remain in full force and effect.
(g) Export Compliance. Subscriber may not use, export or re-export any of the Battr Platform’s data, software code, content or materials in any form in connection with this Agreement in violation of U.S. export laws and regulations, or without first obtaining the appropriate United States and foreign government authorizations.
(h) U.S. GOVERNMENT RESTRICTED RIGHTS. The Battr Platform and related documentation are “Commercial Items”, 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 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
(i) Notices. All notices required under this Agreement will be in writing and will be delivered personally, mailed by registered or certified mail with a return receipt requested, sent by commercial overnight delivery service with provisions for a receipt, or sent by e-mail, to the address of the receiving party set forth in the applicable Subscription Order or such other address a party may specify by written notice. Notices shall be presumed to have been received by the other party (i) upon receipt if sent by hand delivery, registered or certified mail, or delivery service; or (ii) if sent by email, upon confirmation of receipt by non-automated means.
(j) Independent Contractors. The parties are independent contractors. Subscriber is not an agent of Battr and will not represent to any third party that it is an employee or agent of Battr. Subscriber shall have no authority to enter into any contract on behalf of Battr.
(k) Injunctive Relief. Each party acknowledges that the other party's intellectual property and Confidential Information is highly valuable to the other party, that any breach of such party’s obligations with respect to confidentiality, Subscriber’s agreement not to use the API or Battr Platform to compete with Battr, and/or use of the other party’s intellectual property, including any breach by Subscriber of any restrictions on use of the Battr Platform (including the API) or the scope of the rights granted by Battr herein, may severely damage the other party, the extent of which damage would be difficult to ascertain and, therefore, that the other party is entitled to seek, among other remedies, temporary and permanent injunctive relief and other equitable relief for any such breach, without the necessity of posting bond or other security, to the extent permitted by law.
(l) Force Majeure. A party shall be excused from delays or failure to perform its duties (other than payment obligations) to the extent such delays or failures result from acts of nature, riots, war, acts of public enemies, fires, epidemics, labor disputes, or any other causes beyond its reasonable control. The parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a substantial delay in the performance of this Agreement. The affected party shall resume performance as soon as is reasonably feasible.
(m) Electronic Signatures and Delivery; Signature Authority. The Subscription Orders, this Agreement and any other documents to be delivered in connection herewith may be electronically signed and delivered. Any electronic signatures are deemed the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. The person accepting this Agreement and any related purchase orders on behalf of Subscriber represents that he or she has the authority to bind Subscriber to this Agreement.
(n) Contact Information. If you have any questions, complaints or claims relating to the Battr Platform or this Agreement, please send an email to success@battr.ai