Boardable Customer Terms of Service
Last Updated: October 1, 2023
These Boardable Customer Terms of Service (these “Customer Terms”) are a binding agreement between the legal entity accepting these Customer Terms (the “Customer”) and Board Management Software, Inc. DBA Boardable, an Indiana corporation (“Boardable”) and are effective as of the date of Customer’s acceptance of these Customer Terms (the “Effective Date”). CUSTOMER ACCEPTS THESE CUSTOMER TERMS BY: (1) CLICKING A BOX INDICATING ACCEPTANCE; (2) EXECUTING AN ORDER FORM (AS DEFINED BELOW) THAT REFERENCES THESE CUSTOMER TERMS; (3) SUBMITTING PAYMENT INFORMATION; OR (4) OTHERWISE ACCESSING THE SERVICES. IF CUSTOMER REGISTERS FOR A FREE TRIAL, THE APPLICABLE PROVISIONS OF THESE CUSTOMER TERMS WILL GOVERN THAT FREE TRIAL.
ANY INDIVIDUAL AGREEING TO BE BOUND BY THESE TERMS ON BEHALF OF A LEGAL ENTITY REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE CUSTOMER TERMS.
IF CUSTOMER AND BOARDABLE ARE PARTIES TO A SEPARATE WRITTEN AGREEMENT GOVERNING CUSTOMER’S ACCESS TO AND USE OF THE SERVICES (THE “SERVICES AGREEMENT”), THAT SERVICES AGREEMENT WILL APPLY IN PLACE OF THESE CUSTOMER TERMS AND THESE CUSTOMER TERMS WILL BE OF NO FORCE OR EFFECT, EXCEPT WITH RESPECT TO SECTION 2, WHICH WILL ALWAYS APPLY WITH RESPECT TO FREE SERVICES.
“Affiliate” means with respect to a party, any entity, whether incorporated or not, that directly or indirectly controls, is controlled by, or is under common control with such party or its corporate parent, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.
“Confidential Information” is defined in Section 7.
“Customer Data” means all electronic data, information, and other content input into the Services by or on behalf of the Customer or any of its Users to. Customer Data does not include Usage Data or Aggregated Data.
“Free Services” means Services that Boardable makes available to Customer and its Users free of charge.
“Malicious Code” means any and all software, hardware, other technology, devise, or means, including any virus, worm, malware, Trojan horses, time bombs, or other malicious computer code, files, scripts, agents, or programs, the purpose or effect of which is to (a) permit unauthorized access to the Services, or destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network, or (ii) any application or function of any of the previously mentioned items or the security, integrity, confidentiality, or use of the Services or any data or information included in, uploaded or submitted to, or transmitted through the Services, or (b) prevent any other customer of Boardable or authorized personnel of any other customer from accessing or using the Services. “Malicious Code” does not include any software, hardware, device, or other technology, means, or process used by Boardable or a designee of Boardable to disable Customer’s or any User’s access to or use of the Services either automatically or under the direction of Boardable.
“Minimum Requirements” means the minimum hardware, software, network, and internet requirements for computers, mobile devices, and any other equipment used to access and use the Services that are necessary for the proper functioning of the Services. The Minimum Requirements may be disclosed, updated, or added to by Boardable from time to time for any reason, including, without limitation, as new technologies are introduced, old technologies are no longer supported, and if the Services are updated. Please see this help center article for more details about our current minimum requirements: https://docs.boardable.com/en/articles/5718216-boardable-system-requirements.
“Order Form” means the ordering documents for the Customer’s purchases of the Services from Boardable that are agreed to between the parties from time to time. Order Forms shall be deemed incorporated herein and may include, without limitation, executed ordering documents, online order summary pages that identify the Customer and the pricing tiers selected by the Customer, executed sales proposals signed by the Customer, and online order summary pages for adding additional seats to the Customer’s account. Order Forms are governed by these Customer Terms.
“Services” means the online, internet-based application provided by Boardable via http://www.Boardable.com, a mobile application, or other designated websites, including associated offline components as described in the Order Form and any other Boardable-published documentation relating to the Services.
“Start Date” means the date on which Boardable makes the Services available to the Customer as outlined in an applicable Order Form, if an Order Form is signed manually by Customer, or on the date that the Customer accepts these Customer Terms and the terms of an online Order Form, as applicable.
“Subscription Term” means the subscription period set forth on an applicable Order Form, or, in the absence of an express term, a term of 12 months from the Start Date.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including, without limitation, sales, value-added, use, or withholding taxes.
“Term” is defined in Section 11(a).
“Usage Data” means any content, data, or information that is collected or produced by the Services in connection with use of the Services that does not identify Customer or its Users, and may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Services.“User” means an individual who is authorized by the Customer to use the Services on the Customer’s behalf, for whom the Customer has purchased a subscription (or in the case of any Free Services, for whom a Service has been provisioned), and to whom the Customer (or, when applicable, Boardable at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, the Customer’s executive director, board of directors, officers, employees, consultants, contractors and agents, and third parties with which the Customer transacts business.
2. Free Services
a. Free Services Generally
Boardable may make Free Services available to Customer and its Users. If Customer is accessing and using the Free Services, this Section 2 will apply and take precedence over any inconsistent or conflicting terms with respect to the Free Services. Subject to the terms and conditions of these Customer Terms, Boardable grants to Customer, a revocable, non-exclusive, non-transferable (except as otherwise provided in Section 12(f)), non-sublicensable right to access and use the Free Services solely for Customer’s internal business purpose of evaluating and testing the Services and validating the functionality of the Services to determine whether to purchase a full right to access and use the Services and subject to any limitations specified by Boardable. If the Customer registers on Boardable’s website for Free Services, including, but not limited to a trial subscription, Boardable will make one or more Free Services available to the Customer free of charge until the earlier of the following scenarios:
(a) the end of the Free Services period for which Customer registered to use the applicable Services;
(b) the Start Date of any purchased Service subscriptions ordered by the Customer; or
(c) termination of the Free Services by Boardable in its sole discretion.
b. Regarding Customer Data and Free Services
We understand that data is important, to both Boardable Customers and to Boardable. Therefore, please read this section carefully about Customer data generated during Free Services.
Any data the Customer or its User(s) enters into, submits to, uploads to, transfers into or through, or transmits via the Free Services, as well as any configurations made to the Free Service by or for the Customer or its User(s) will be permanently lost unless the Customer takes one or more of the following actions prior to the end of the Free Services:
- the Customer purchases a regular paid subscription to the same level of Services as those included in the Free Services;
- the Customer purchases applicable upgraded Services, which are Services in excess of the Free Services; or
- the Customer exports their Customer Data from the Free Services.
Additionally, it’s also important to note that the Customer may not transfer Customer Data entered or configurations made during Free Services to a Service tier that would be a downgrade from the features offered during the Free Services. Therefore, if the Customer purchases a subscription to a Service tier that would be a downgrade, the Customer must export their Customer Data before the end of the Free Services or the Customer Data will be permanently lost. Customer should carefully note the Free Service level provided as compared with the Service level provided in the Service tier purchased by the Customer for use after the end of the Free Services, as certain plans may be considered a downgrade from the Service level offered during the Free Services. Customer Data created during any Free Service is subject to treatment as outlined in Section 11(e) of these Customer Terms.
CUSTOMER ACKNOWLEDGES THAT THE FREE SERVICES MAY NOT INCLUDE OR ALLOW ACCESS TO ALL FEATURES AND FUNCTIONALITY AVAILABLE TO PAYING CUSTOMERS. CUSTOMER’S USE OF THE FREE SERVICE IS ENTIRELY AT CUSTOMER’S OWN RISK. BOARDABLE IS NOT OBLIGATED TO CORRECT ANY BUGS, DEFECTS, OR ERRORS IN THE FREE SERVICES OR SUPPORT OR MAINTAIN THE FREE SERVICES. NOTWITHSTANDING SECTION 8 AND SECTION 9 AND THE CAP ON DAMAGES IN SECTION 10, THE FREE SERVICES ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTIES OF ANY KIND, AND BOARDABLE WILL HAVE NO SUPPORT, SERVICE LEVEL, OR WARRANTY OBLIGATIONS, INDEMNIFICATION OR DEFENSE OBLIGATIONS, OR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE, IN NO EVENT WILL BOARDABLE’S LIABILITY WITH RESPECT TO THE FREE SERVICES EXCEED $100. EXCEPT AS ALTERED IN THIS SECTION 2, ALL OTHER TERMS OF THESE CUSTOMER TERMS APPLY AND GOVERN CUSTOMER’S AND ITS USERS’ USE OF THE FREE SERVICES. BOARDABLE MAY DISCONTINUE, SUSPEND, OR REMOVE FREE SERVICES (INCLUDING ANY CUSTOMER DATA STORED AS A PART OF THE FREE SERVICES) OR TERMINATE CUSTOMER’S ACCESS THERETO AT ANY TIME IN BOARDABLE’S SOLE DISCRETION AND WITHOUT NOTICE AND CUSTOMER ACKNOWLEDGES THAT BOARDABLE WILL NOT BE LIABLE FOR SUCH DISCONTINUATION, SUSPENSION, REMOVAL, OR TERMINATION.
3. Boardable’s Services
a. Provision of Access to Purchased Services
Subject to these Customer Terms, during the Subscription Term Boardable grants to Customer a non-exclusive, non-transferable (except as otherwise provided in Section 12(f)), non-sublicensable right to access and use the Services by Customer’s Users for its internal business purposes in accordance with these Customer Terms and any Order Forms. Boardable will make the Services available as described in the Service Level Agreement attached to these Customer Terms as Schedule A (the “Service Level Agreement”). Advance notice of planned downtime will be provided as detailed in the Service Level Agreement, or in the instance of a force majeure event, as described in Section 11(h) of these Customer Terms. All rights that are not expressly granted to the Customer in these Customer Terms are reserved by Boardable.
b. Customer Affiliates and Users
c. Electronic Signature Features
Boardable may, from time to time and at its discretion, offer to Customers within certain pricing tiers the ability to sign documents electronically either utilizing a signature platform that is a part of the Services or via a third party service provider. If the electronic signatures are obtained via a third party service provider, the electronic signature service provider may be chosen or changed from time to time by Boardable in our sole discretion. In the event that Boardable offers such electronic signature feature, and the Customer chooses to use this feature, the Customer is responsible for ensuring the use of electronic signatures complies with the Customer’s internal governance documents including, but not limited to, all documents listed in Section 4(b) of these Customer Terms, and any laws and regulations applicable to the Customer regarding the use of electronic signatures in the jurisdictions in which the Customer operates.
d. Video Conferencing and Recording
If the service tier that the Customer is subscribed to includes Boardable Spotlight or access to another video conferencing feature or tool provided by a third party, certain individuals who have been authorized in the applicable video conferencing tool can choose to record the video conference. Customer is responsible for complying with all applicable recording laws for its video conferences, including, without limitation, informing participants in the video conference that the video conference will be recorded. Depending on the video conferencing feature or tool being used, participants may see an on-screen notification (for example, in the form of a recording icon at the top of the screen) indicating recording is in progress or a pop up notification informing the participant that a recording is being made. If participants do not want to consent to the recording, participants can leave the video conference or the recording can be cancelled by the person who initiated the recording. By using the video conferencing feature or tool, as applicable, Customer and all of Customer’s Users and invitees to meetings are granting consent to Boardable to store such video recordings in which Customer, Customer’s Users, and invitees participated, in Boardable’s system, if applicable.
e. System Requirements
Proper functioning and availability of the Services, and all features of the Services, require the Customer to use certain hardware and software that satisfies the Minimum Requirements. The Customer is solely responsible for ensuring all of its devices, and all parts of its infrastructure (including, without limitation, internet speeds), satisfy the Minimum Requirements. Boardable may update the Minimum Requirements from time to time in its sole discretion to account for new technologies, new features of the Services, or for any other reason related to the proper functioning of the Services. Boardable agrees to use commercially reasonable efforts to notify the Customer of material updates to the Minimum Requirements, and material updates to Minimum Requirements for new features of the Services.
f. Third Party Offerings
Boardable may make access to or use of third-party software services, applications, or functionality that link to, interoperate with, or are incorporated into the Services available to Customer (collectively, “Third-Party Offerings”). Customer acknowledges that Boardable does not own or control such Third-Party Offerings, they are made available as a convenience only, and are not part of the Services or subject to any of the warranties, service commitments, or other obligations with respect to Services under these Customer Terms and that such Third-Party Offerings are subject to their own terms and conditions. Any acquisition by Customer of Third-Party Offerings, and any exchange of data between Customer and its Users and any Third Party Offering is solely between Customer and its Users and the applicable Third-Party Offering provider. Access to and use of any Third-Party Offering is at Customer’s own risk and is solely determined by the relevant third-party provider and is subject to such additional terms and conditions applicable to such Third-Party Offering. Boardable may disable or restrict access to any Third-Party Offerings on the Service at any time without notice. Boardable is not liable for Third-Party Offerings or any Customer Data provided to a third party via a Third-Party Offering.
g. Prohibited Data
Customer shall not upload or provide to the Services any of the following information (“Prohibited Data”) absent prior written notice to and authorization by Boardable: (i) government-issued identification number (e.g., social security number, driver’s license number, passport number, or state-issued identification number); (ii) financial account number, including financial institution or bank account number or a credit or debit card number, credit report information or information subject to the GLBA (15 U.S.C. §§ 6801–6809); (iii) any security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (iv) biometric data or records or genetic code; (v) information regarding an individual’s health or medical condition, including protected health information as defined in HIPAA (45 C.F.R. § 160.103); or (vi) race, religion, ethnicity, sex life or practices, gender identity, political or philosophical beliefs, political party or trade union membership, background check information, judicial data such as criminal records or information on other judicial or administrative proceedings. Notwithstanding anything to the contrary in these Customer Terms, Customer acknowledges that Boardable will not be responsible under these Customer Terms for liabilities that arise due to Customer’s upload or provision of Prohibited Data to the Services in violation of this Section 3(g).
4. Using Boardable’s Services
a. The Customer’s Responsibilities
The Customer is responsible for all activities that occur in the Customer’s Boardable account(s) including the conduct of the Customer’s Users. The Customer will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of the Boardable Service, and notify Boardable promptly of any unauthorized access or use; (c) comply with all applicable local, state, federal, and foreign laws in using the Services; (d) ensure that the Customer’s use of all functions of the Service complies with the Customer’s own governing documents, which may include, but may not be limited to, the Customer’s bylaws, policies, articles or certificate of incorporation, articles or certificate of organization, employee handbook, operating agreement, and any other documents or agreements relating to the Customer’s governance and ability to take actions as an entity; and (e) ensure that Customer’s Users use the Services in compliance with these Customer Terms.
b. Restrictions on Use
The Customer will use the Services solely for its internal business purposes and will not, and will not permit its Users to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share, or otherwise commercially exploit or make the Services available to any third party, except as expressly authorized by these Customer Terms; (b) send via, upload to, or store within the Services any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including, without limitation, material that is harmful to children or violates third party privacy rights; (c) send via, upload to, or store within the Services any Malicious Code; (d) interfere with, damage, destroy, disrupt, disrupt, impair, impede, or otherwise harm the integrity or performance of the Services or the data contained therein; (e) attempt to gain unauthorized access to the Service or its related systems or networks; (f) decompile, disassemble, decode, reproduce, redesign, or reverse engineer the Services or its component parts or otherwise decrypt encrypted information provided pursuant to the provision of Services; (g) modify, copy, or create derivative works of or based on the Services; (h) frame or mirror any content forming part of the Services, other than on the Customer’s own intranets, or otherwise for the Customer’s own internal business purposes; (i) access the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Services.
c. Data Protection
To the extent that any Services involves Boardable processing any data or information that is subject to data protection laws or regulations, the Data Processing Addendum is incorporated by reference into these Customer Terms and sets out the status and responsibilities of the parties in relation to such personal data.
5. Fees & Payment
The Customer will pay all fees specified in all Order Forms pursuant to the terms of these Customer Terms. Unless otherwise specified in an Order Form, fees are based on the Services purchased, and not based on actual usage. Payment obligations are non-cancelable; fees paid are non-refundable (except as otherwise expressly provided in these Customer Terms); and the Service purchased cannot be decreased or cancelled during the relevant Subscription Term. Boardable may update fees from time to time in its sole discretion by giving prior written notice to Customer before the end of the current Subscription Term, with such updated fees being effective at the beginning the immediately following Subscription Term.
If Boardable offered a discount or special when the Customer subscribed to the Services, the discount or special is good only for the stated period of time described in the discount or special and does not apply to any renewal Subscription Term unless otherwise agreed by Boardable.
b. Invoicing and Payment
The Customer will provide Boardable’s third party payment processor with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Boardable. If the Customer provides credit card information to Boardable’s third party payment processor, the Customer authorizes Boardable’s third party payment processor to charge this credit card for all purchased Services under these Customer Terms. These charges will be made in advance, either annually, or in accordance with a different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Boardable will invoice the Customer in advance and pursuant to the terms and conditions of these Customer Terms and any terms and conditions included in the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due within 30 days after the invoice date. The Customer is responsible for providing complete and accurate billing and contact information to Boardable or Boardable’s third party payment processor, as applicable, and for notifying Boardable or its third party payment processor of any changes to this information.
c. Overdue Payments
Any failure by the Customer to pay the fees or any other charges due in connection with the provision of the Services in the manner that has been detailed in these Customer Terms or in any Order Form will constitute a material breach of these Customer Terms. If the Customer’s account is 30 days or more overdue (except with respect to those portions of charges under reasonable and good faith dispute), Boardable may, in addition to any of its other rights or remedies, suspend the Customer’s and its Users’ access to the Services, without liability to the Customer or its Users, until all unpaid and overdue amounts are paid in full. If failure to pay has not been resolved within 30 days after the due date, then Boardable may terminate these Customers Terms and any or all outstanding Order Forms by written notice to Customer, and Boardable may exercise any of its rights with respect to Customer Data as provided in Section 11(e). Any payments received by Boardable more than 30 days after a due date (except with respect to those portions of charges under reasonable and good faith dispute) will be subject to a service charge on the unpaid amount of 1.5% per month, which service charge will be immediately due and payable. Boardable will be entitled to all costs and expenses, including reasonable attorneys’ fees, incurred in connection with the collection of any overdue amounts owed by the Customer under these Customer Terms and any Order Form.
Unless otherwise stated, Boardable’s fees do not include Taxes. The Customer is responsible for paying all Taxes associated with its purchases pursuant to these Customer Terms and any Order Form, excluding taxes based on Boardable’s net income or property. If Boardable has the legal obligation to pay or collect Taxes for which the Customer is responsible under this Section, the appropriate amount will be invoiced to, and paid by the Customer, unless the Customer provides Boardable with a valid tax exemption certificate authorized by the appropriate taxing authority.
e. Future Functionality Disclaimer
The Customer agrees that its purchases of and subscription to the Services are not contingent on the delivery of any future functionality or features and are not dependent on any oral or written public comments made by Boardable regarding future functionality or features.
6. Proprietary Rights
a. Reservation of Rights
Except for the limited rights to access and use the Services in accordance with the terms and conditions and as expressly granted to Customer pursuant to these Customer Terms, nothing in these Customer Terms or in any Order Form grants to Customer or its Users, whether expressly, by implication, estoppel, or otherwise, any right, title, or interest in or to the Services or any intellectual property of Boardable or any third party service provider providing additional services to Boardable or Customer in connection with the Services. Boardable reserves all rights, title, and interest in and to the Services, including, without limitation, all related intellectual property rights, and all such rights, title, and interest are and will remain with Boardable.
b. Customer Data; Aggregated Data; Usage Data
As between the parties, Customer owns all right, title, and interest in Customer Data, including all intellectual property rights therein. Customer hereby grants to Boardable and its authorized representatives and contractors, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 12(f)) license to use the Customer Data solely for the limited purpose of performing the Services for Customer and fulfilling its other obligations and exercising its rights under these Customer Terms.
Notwithstanding anything in these Customer Terms to the contrary, Boardable may analyze Customer Data to create a de-identified and aggregated data set that does not identify Customer or its Users (collectively, “Aggregated Data”). Boardable retains ownership of all right, title, and interest in and to Aggregated Data. Boardable may use Aggregated Data for any lawful purpose, including, but not limited to, to improve, market, and provide the Services.
Boardable retains ownership of all right, title, and interest in and to the Usage Data. Boardable may use Usage Data in connection with its performance of its obligations in these Customer Terms and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve Boardable’s services, systems, and algorithms.
Boardable owns all rights, title, and interest in and to any improvements to the Services and all intellectual property rights in and to the foregoing. Additionally, Boardable owns any new programs, upgrades, modifications, or enhancements in and to the Services, developed by Boardable or the Customer in connection with rendering the Services to the Customer and all intellectual property rights in and to the foregoing, even when refinements and improvements result from a request made by the Customer. If Customer or any of Customer’s Users, employees, agents, or contractors sends, transmits, or communicates any materials, feedback, or suggestions of any kind to Boardable by mail, email, telephone, live chat, or otherwise proposing or recommending any changes or improvements to the Services, including, without limitation, any new features or functionality, or any comments, questions, or suggestions (collectively “Feedback”), Boardable has the right to use the Feedback without any limitation, attribution, or obligations to Customer, Customer’s Users, employees, agents, or contractors, and without the requirement to pay any compensation to any parties. Customer hereby assigns and will cause its Users, employees, agents, or contractors to assign all right, title, and interest to the Feedback to Boardable. The Customer will take any and all actions reasonably requested by Boardable in order to effectively transfer and assign this ownership to Boardable, or to confirm ownership to a third party.
d. Publicity & Trademarks
Neither Boardable nor the Customer may issue press releases, or any other public announcement of any kind relating to these Customer Terms or any Order Form without the other party’s prior written consent. Despite anything to the contrary in these Customer Terms, during the Term either party may include the name and logo of the other party in lists (including on its website) of customers or vendors in accordance with the other party’s standard logo and/or trademark usage guidelines. Except as stated in these Customer Terms, neither party may use the trademarks and trade names of the other party without the prior written consent of the other party.
a. Definition of Confidential Information
As used within these Customer Terms, “Confidential Information” means all confidential and proprietary information, in any medium or form, whether oral, written, electronic, or other format, of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, the pricing and other terms reflected in all Order Forms, and Customer Data. Confidential Information also includes all business and marketing plans or strategies, technology and technical information, product designs, business processes, know-how relating to the Services, trade secrets, and customer lists. Despite anything to the contrary in these Customer Terms, each party may disclose the existence and terms of these Customer Terms and any Order Form, in confidence, to a potential purchaser of or successor to any material portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a material portion of all of the assets of any business, division, or group of such party, or to an investment group evaluating an investment into such party as part of customary due diligence ordinarily conducted by reasonable investors in similar transactions. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed, as established by reasonable documentary evidence, by the Receiving Party without reference to the Disclosing Party’s Confidential Information or breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
b. Confidentiality Obligations
The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Customer Terms and will not disclose such Confidential Information to any third party except those of its employees and contractors who need to know such information for the purposes of these Customer Terms, and who are subject to confidentiality obligations at least as protective as those in these Customer Terms. The Receiving Party will use at least the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event will it use less than a reasonable degree of care.
c. Compelled Disclosure
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will promptly provide the Disclosing Party with written notice in advance of the compelled disclosure (to the extent legally permitted), and reasonable assistance, at the Disclosing Party’s cost, in opposing the compelled disclosure or seeking a protective order or other limitations on disclosure. If disclosure of Confidential Information is compelled in spite of such opposition or requesting protective orders or other limitations, the Receiving Party will disclose only that portion of the Confidential Information that is legally required to be disclosed.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality obligations of the Receiving Party under these Customer Terms, the Disclosing Party has the right, in addition to any other remedies available at law or in equity, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
Notwithstanding the expiration or termination of these Customer Terms or any Order Form for any reason, the obligations of confidentiality and non-use described in this Section will extend for a period of two (2) years after such expiration or termination, except that the confidentiality obligations with respect to any Confidential Information that constitutes a trade secret under applicable law shall continue indefinitely so long as such Confidential Information continues to qualify as a trade secret.
8. Warranties & Disclaimers
a. Mutual Warranties
Each party represents and warrants that it has the legal power to enter into these Customer Terms; that the individual that is signing or accepting these Customer Terms on behalf of the respective party has the authority to bind the applicable organization; and when executed and delivered these Customer Terms will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.
b. Boardable Warranties
Boardable warrants that the Services will perform materially in accordance with the applicable documentation and these Customer Terms. Boardable does not warrant that the Services will be completely error-free or uninterrupted. If Customer notifies Boardable of a reproducible error in the Services that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, Boardable shall, at its own expense and as its sole obligation and Customer’s exclusive remedy (except for downtime credits that Customer may be entitled to receive due to Service unavailability under the Service Level Agreement: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) Boardable is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate these Customer Terms upon notice to Boardable and, Boardable shall refund the amounts paid by Customer for access to the Services for the period during which the Services were not usable by Customer. The warranties set forth in this Section 8(b) do not apply to any Third-Party Offerings or cover any Error caused by: (i) Customer or its Users; (ii) use of the Services in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Services, or (iv) any equipment, software, or other material utilized by Customer in connection with the Services contrary to the provider’s instructions.
c. Customer Warranties.
Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by these Customer Terms; and (b) grant Boardable the license in Section 6(b).
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION 8, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
a. By Boardable
Boardable shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Services infringe any intellectual property rights of such third party (a “Customer Claim”), and Boardable shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. In the event that the use of the Services is enjoined, Boardable shall, at its option and at its own expense either: (a) procure for Customer the right to continue using the Services; (b) replace the Services with a non-infringing but functionally equivalent product; (c) modify the Services so it becomes non-infringing; or (iv) terminate these Customer Terms and refund the amounts Customer paid for access to the Services that relate to the period during which Customer was not able to use the Services. Notwithstanding the foregoing, Boardable will have no obligation under this Section 9(a) with respect to any infringement claim based upon: (i) any use of the Services not in accordance with these Customer Terms; (ii) any use of the Services in combination with products, equipment, software, or data that Boardable did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software or data; (iii) any modification of the Services by any person other than Boardable or its authorized agents or subcontractors; or (iv) any Third-Party Offering. This Section 9(a) states Boardable’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.
b. By Customer
Customer shall defend, indemnify, and hold Boardable harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with: (a) a Claim resulting from Customer’s use of the Service other than in compliance with the terms of these Customer Terms; (b) Customer Data provided to Boardable, infringe the intellectual property rights of a third party; (c) Customer’s use, in connection with its provision of the Service, of any Customer Data has otherwise harmed a third party; or (d) actions or omissions that arise from Customer’s negligence or willful misconduct.
As an express condition to the indemnifying party’s obligation under this Section 9, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; (b) give the indemnifying party sole control of the defense thereof and any related settlement negotiations; and (c) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim. The indemnifying party may select counsel for defense of the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
a. Limitation of Liability
UNDER NO CIRCUMSTANCES WILL BOARDABLE’S AGGREGATE LIABILITY ARISING OUT OF, OR RELATED TO THESE CUSTOMER TERMS OR ANY ORDER FORM, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY THE CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE CUSTOMER TERMS, UNDER NO CIRCUMSTANCES WILL BOARDABLE HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THE CUSTOMER’S USE OF HARDWARE OR SOFTWARE THAT FAILS TO MEET THE MINIMUM REQUIREMENTS FOR THE SERVICES AND ALL FEATURES OF THE SERVICES, AS ESTABLISHED AND PERIODICALLY UPDATED BY BOARDABLE FROM TIME TO TIME. THE LIMITATIONS CONTAINED IN THIS SECTION 10.A. WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
b. Exclusion of Consequential and Other Damages
UNDER NO CIRCUMSTANCES WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THESE CUSTOMER TERMS OR ANY ORDER FORM UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, DIMINUTION IN VALUE, OR FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
c. Time to File a Claim
NO CLAIM MAY BE BROUGHT BY THE CUSTOMER UNDER THESE CUSTOMER TERMS OR ANY ORDER FORMS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CLAIM.
11. Term & Termination; Suspension
These Customer Terms are effective beginning on the Effective Date and continuing until all subscriptions to the Services provided for under these Customer Terms or any Order Form have expired or have been terminated (such time period being the “Term”).
b. Term of Subscriptions
Subscriptions to the Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise stated in an Order Form, a subscription to the Services will automatically renew for an additional Subscription Term equal in time to the most recently expired Subscription Term unless Customer provides written notice of its intent to terminate its subscription to the Services at least 30 days before the expiration of the current Subscription Term, which such termination will be effective at the end of the current Subscription Term. Unless otherwise stated to the contrary in these Customer Terms or in any Order Form, Customer will not be entitled to any refund of fees paid or pro-ration of fees payable for the remainder of the current Subscription Term as a result of any termination of Customer’s subscription to the Services before the end of the current Subscription Term.
c. Suspension by Boardable
Notwithstanding anything to the contrary in these Customer Terms, Boardable may suspend Customer’s and any User’s access to the Services if Boardable determines that: (a) there is an attack on the Services; (b) Customer’s or any of its Users’ use of the Services poses a reasonable risk of harm or liability to Boardable and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer has breached Sections 4(b) or 7; (d) Customer’s or its Users’ use of the Services violates applicable law; or (e) Customer has failed to pay any undisputed amounts owed under these Customer Terms when due and has failed to cure such late payment within 15 days after Boardable has provided Customer with written notice of such late payment. Boardable shall use commercially reasonable efforts to provide Customer with notice of such suspension. Boardable may suspend Customer’s and its Users’ access to the Services until the situation giving rise to the suspension has been remedied to Boardable’s reasonable satisfaction. Boardable’s suspension of Customer’s and its Users’ access to the Services will not relieve Customer of its payment obligations under these Customer Terms and Customer will not be eligible for any credits due to Service unavailability under Schedule A.
d. Termination for Cause
A party may terminate these Customer Terms for cause upon notice to the other party: (a) if the other party martially breaches these Customer Terms and, if capable of being cured, fails to cure such breach within 30 days after receiving notice of the breach; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors and is not dismissed within 60 days. Upon any termination for cause pursuant to this Section 11(d) by the Customer, Boardable will refund the Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by the Customer will not relieve the Customer of the obligation to pay any fees accrued or payable to Boardable prior to the effective date of termination. Upon any termination for cause by Boardable, the Customer will remain obligated to pay all fees owed for the remainder of the Subscription Term, all of which fees will become immediately due and payable in full.
e. Customer Data upon Termination
Upon the expiration or termination of these Customer Terms, Boardable will (a) convert the Customer’s account to an inactive status, and (b) have no obligation to save Customer Data. Customer will not have access to the Services to download or retrieve any Customer Data they wish to retain. It is Customer’s obligation to download any Customer Data that Customer wishes to retain or have access to prior to the expiration of a Subscription Term or Free Services. Further, upon expiration or termination of these Customer Terms, Boardable reserves the right to delete Customer Data, in Boardable’s sole discretion. Customer may also request deletion of Customer Data by written request to Boardable, and Boardable shall use commercially reasonable methods to delete Customer Data within a reasonable time after receiving the Customer request. Regardless of anything to the contrary in these Customer Terms or any Order Form, Boardable may retain Customer Data (i) to the extent and for so long as may be required by applicable law, and (ii) in Boardable’s or Boardable’s third-party cloud-hosting service provider’s backups, archives, and disaster recovery systems until the Customer Data is deleted from those backups, archives, and disaster recovery systems in the ordinary course.
f. Surviving Provisions
Section 2, Customer’s payment obligations for fees, service charges, and taxes as described in Section 5, and Sections 6 through 11 will survive any termination or expiration of these Customer Terms.
12. General Provisions
a. Relationship of the Parties
The parties are independent contractors. These Customer Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
b. No Third-Party Beneficiaries
There are no third-party beneficiaries to these Customer Terms.
All notices under these Customer Terms will be in writing, and will be deemed to have been given upon: (a) personal delivery; (b) the second (2nd) business day after mailing; or (c) the second (2nd) business day after sending by email. Notices to Boardable will be addressed to Boardable and sent to Board Management Software, Inc., 880 Monon Green Blvd., Ste. 101, Carmel, Indiana 46032 or by email to firstname.lastname@example.org. Notices to the Customer will be addressed to the Customer’s signatory to these Customer Terms, unless otherwise indicated on an Order Form, and may be sent to the billing address for the Customer or to the email address of the Customer’s signatory that was provided during the sign-up process.
d. Waiver and Cumulative Remedies
No failure or delay by either party in exercising any right under these Customer Terms will constitute a waiver of that right. Other than as expressly stated within these Customer Terms, the remedies provided in these Customer Terms are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of these Customer Terms is unenforceable, the other provisions of these Customer Terms will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).
Subject to the immediately following sentence of this Section 12(f), neither party can assign any of its rights or obligations under these Customer Terms or any Order Form, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary in these Customer Terms or any Order Form, either party may assign these Customer Terms in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under these Customer Terms in breach of this Section will be void and of no effect. Subject to the preceding, these Customer Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
g. Governing Law
These Customer Terms and any Order Forms are governed exclusively by the internal laws of the State of Indiana, without regard to its conflicts of laws rules. The state and federal courts located in Marion County (Indianapolis), Indiana have exclusive jurisdiction to adjudicate any dispute arising out of, or relating to, these Customer Terms and any Order Forms. Each party consents to the exclusive jurisdiction of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Customer Terms.
h. Force Majeure
Except for payment obligations, neither party will be liable for any breach of these Customer Terms, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control.
i. Entire Agreement
These Customer Terms, including all Order Forms, constitute the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No waiver of any provision of these Customer Terms will be effective unless in writing and signed by the party waiving the provision. Boardable may modify these Customer Terms at any time, upon written notice to Customer. Any such modification will become effective with respect to the applicable Order Form upon the commencement of the Renewal Subscription Term for such Order Form following the date of such notice, except that, if Customer is using Free Services, Boardable is not obligated to notify Customer of such modification and such modification will become effective upon Customer’s first access to or use of the Services after “Last Updated” date at the top of these Customer terms. If Customer does not agree to the modified Customer Terms, Customer may choose to not renew the then-current Subscription Term. Except as otherwise set forth in this Section, these Customer Terms may not otherwise be modified except by a written amendment signed by an authorized representative of each party To the extent of any conflict or inconsistency between the provisions in the body of these Customer Terms and any Order Form, the provisions of these Customer Terms will prevail unless expressly stated otherwise in the applicable Order Form. Despite any language to the contrary in any Order Form, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of these Customer Terms, and all such terms or conditions will be null and void. The language used in these Customer Terms will be deemed to be language chosen by both parties to express their mutual intent, and no rule of strict construction against either party will apply to rights granted in these Customer Terms, or to any term of condition of these Customer Terms.
Boardable may utilize subcontractors, subprocessors, and other third-party service providers (collectively, “Subcontractors”) in the performance of its obligations, provided that Boardable will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by Boardable, would constitute a breach of, or otherwise give rise to liability to Boardable under, these Customer Terms when they are performing for or on behalf of Boardable.
(Service Level Agreement)
Capitalized terms used but not otherwise defined in this Service Level Agreement (“SLA”) shall have the meaning ascribed to them in the Customer Terms.
1. Availability and Maintenance
a. End User Functions:
The Service will be available for use pursuant to the Customer Terms 99.5% of the time over the course of each calendar month, exclusive of any unavailability as a result of any of the exceptions noted in Section 1(b) of this SLA.
b. Exceptions to Availability:
The Services may not be available for use under the following circumstances, which are exceptions that are excluded from the calculation of the availability of the Services under Section 1(a) above: (i) Planned Maintenance and Emergency Maintenance as described in Sections 1(c) and 1(d) below; (ii) the negligent or willful acts or omissions of the Customer, its employees, contractors or agents, (iii) the failure or malfunction of equipment, applications or systems not controlled by Boardable; (iv) any third party or public network or systems unavailability; (v) circumstances or causes beyond the control of Boardable, including instances of force majeure; or (vi) breach of the Customer Terms by the Customer or its Users that results in a suspension or termination of the Services under the Customer Terms.
c. Planned Maintenance:
Planned Maintenance means performing preventive maintenance or hardware and software upgrades to the components of the Service to add features or repair errors that are not immediately affecting the Customer’s use of the Service. Boardable will use commercially reasonable efforts to conduct Planned Maintenance between the hours of 5PM Friday through 6PM Sunday EST.
d. Emergency maintenance:
Emergency Maintenance means performing maintenance on the software or hardware components of the Service to repair errors that are immediately affecting Customers’ use of the Service. During Emergency Maintenance the Service may be unavailable. Boardable may undertake Emergency Maintenance at any time deemed necessary. The Service may be down for Emergency Maintenance a total of 2 hours per month.
Boardable will use commercially reasonable efforts to provide a minimum of 48 hours prior notice for Planned Maintenance and 2 hours prior notice for any required Emergency Maintenance by posting a notification on Boardable’s website.
2. Downtime and Credits
Boardable will grant a credit allowance to the Customer if the Customer experiences Unavailability of the Service in any calendar month. Such credit allowance shall be equal to the pro-rated charges of one day of fees owed Boardable under an affected Order Form for each 12-hour period of Unavailability or fraction thereof. For purposes of this SLA, the term “Unavailability” shall mean the number of minutes that the Service is unavailable to Customer during a given calendar month in excess of what is allowed under Section 1(a) above but shall not include any downtime which is the result of any of the exceptions noted in Section 1(b) above. Upon the Customer’s written request to Boardable, Boardable will provide the Customer with a written report detailing all instances of Unavailability during the previous month, including, without limitation, the start time and duration of each outage. Any credit allowances accrued by the Customer may be offset against any and all payments owed to Boardable pursuant to the Customer Terms, provided that a maximum of 1 month of credit may be accrued per month.
3. Sole and Exclusive Remedies
Notwithstanding anything to the contrary, the foregoing credits will be Boardable’s sole liability and Customer’s sole and exclusive remedy with respect to any Unavailability.