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Boardable Terms of Service
Last Updated: September 22, 2022
Thanks for using Boardable!
Please read these Boardable Terms of Service (the “Customer Terms”) carefully. These Customer Terms are a binding agreement that governs your access to and use of the Services and describes your rights, responsibilities, and obligations when using Boardable’s Services. These Customer Terms also govern any trials or trial accounts for the Services.
You may also be interested in learning more about our Security practices, in which case we recommend you visit our Security page for details: https://boardable.com/security/
We’re so grateful you’re here!
First, The Basics
These Customer Terms are a binding agreement between the Customer and Board Management Software, Inc. DBA Boardable (“Boardable”), an Indiana corporation. By accepting these Customer Terms, either by clicking a box that indicates acceptance, or by executing an Order Form that references this Agreement, the individual accepting these Customer Terms or executing the Order Form, as applicable, has read these Customer Terms, represents and warrants to Boardable that the individual has the legal authority to bind the Customer and its Affiliates to these Customer Terms, and is accepting these Customer Terms on the Customer’s behalf. If the individual doesn’t have this authority, or if the Customer doesn’t agree with these Customer Terms, the Customer should not click the box indicating acceptance of these Customer Terms and may not access or use the Services.
These Customer Terms are effective as of the date the individual accepting these Customer Terms on behalf of the Customer indicates acceptance of these Customer Terms either by clicking a box that indicates acceptance or by executing an Order Form.
If you are a User that has been invited to use the Services by the Customer, you agree that your access to and use of the Services is governed by these Customer Terms, including, without limitation, responsibilities of Users with respect to proper use of the Services under Section 4(b) and (c), Section 6(b), and granting Boardable the right to incorporate your feedback under Section 6(d).
- Let’s Start With Some Definitions
“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” means the legal entity or organization listed during the initial account creation process in the “Organization’s Name” field that is accepting these Customer Terms in order to access the Services, and Affiliates of that entity or organization which have accepted these Customer Terms either by checking a box indicating acceptance or signing Order Forms.
“Customer Data” means all electronic data, information, and other content submitted, uploaded, transmitted, or provided by or on behalf of the Customer or any of its Users to, by, or through the Services, but Customer Data shall not include data and information related to the Customer’s, its Affiliates, or Users’ use of the Services collected in an aggregated and anonymized manner by Boardable.
“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 executed hereunder by the parties from time to time. Order Forms shall be deemed incorporated herein and may include, without limitation, 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).
“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 Services provided by Boardable without charge, 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.
- About Trials
If the Customer registers on Boardable’s website for a trial subscription, Boardable will make one or more Services available to the Customer on a trial basis until the earlier of the following scenarios:
(a) the end of the trial 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 trial period by Boardable in its sole discretion.
Please note that additional terms and conditions applicable to the trial period may appear on the trial registration web page. These additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
Regarding Customer Data and Trials:
We understand that data is important, to both Boardable Customers and to Boardable. Therefore, please read this section carefully about Customer data generated during a trial subscription.
Any data the Customer or its User(s) enters into, submits to, uploads to, transfers into or through, or transmits via the Service, as well as any customizations made to the Service by or for the Customer or its User(s) during the Customer’s trial period will be permanently lost unless the Customer takes one or more of the following actions prior to the end of the trial period:
- the Customer purchases a regular paid subscription to the same level of Services as those included in the trial;
- the Customer purchases applicable upgraded Services, which are Services in excess of the Services provided during the trial period; or
- the Customer exports their Customer Data from the Services.
Additionally, it’s also important to note that the Customer may not transfer Customer Data entered or customizations made during the trial period to a Service tier that would be a downgrade from the features offered during the trial period. 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 trial period or the Customer Data will be permanently lost. Customer should carefully note the Service level provided during a trial period as compared with the Service level provided in the Service tier purchased by the Customer for use after the end of the trial period, as certain plans–such as free offerings or Grassroots plans–may be considered a downgrade from the Service level offered during the trial period. Customer Data created during any trial period is subject to treatment as outlined in Section 11(e) of these Customer Terms.
FINALLY, NOTWITHSTANDING SECTION 8 (REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS), DURING THE TRIAL PERIOD, THE SERVICES ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTY.
If Customer is entering into or in a trial period, Customer should take time to review this documentation, and to become familiar with the features and functions of the Services before the end of the trial period or making a purchase of a different Service tier.
3. Boardable’s Services
a. Provision of Access to Purchased Services: our service obligations
Subject to these Customer Terms, during the Subscription Term Boardable (a) grants to Customer a non-exclusive, non-transferable right to access and use the Services by Customer’s Users in accordance with these Customer Terms and any Order Forms, and (b) will use commercially reasonable efforts to 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: how these Customer Terms apply to Affiliates
The Customer’s Affiliates may purchase and use subscriptions to the Services, subject to these Customer Terms, by entering into an Order Form with Boardable. These Customer Terms will apply to and govern the Customer Affiliates, and the Customer Affiliates will be deemed a “Customer” as detailed within these Customer Terms.
c. Electronic Signature Features: important for those who e-sign
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: ensuring you have what it takes
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.
4. Using Boardable’s Services
a. Boardable’s Responsibilities: what you can expect of us
b. The Customer’s Responsibilities: what we expect of you
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.
c. Guidelines for Use: what not to do
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; or (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.
5. Fees & Payment
a. Service Fees: what you’re paying for
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; 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: how you’re paying for it
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 listed in the Order Form for the initial Subscription Term, any renewal Subscription Term(s) as detailed in Section 11(b), and any upgraded or additional Service tiers purchased by Customer during a Subscription Term. 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: what happens if you’re late
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 thirty (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 thirty (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 thirty (30) days after a due date (except with respect to those portions of charges under reasonable and good faith dispute) may be subject to a service charge on the unpaid amount of one and one-half percent (1.5%) per month, which service charge will be immediately due and payable. Boardable will be entitled to all costs and expenses, including reasonable attorney’s fees, incurred in connection with the collection of any overdue amounts owed by the Customer under these Customer Terms and any Order Form.
d. Taxes: understand when and how they are collected
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: how this affects your purchase
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: the rights reserved by Boardable
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. Restrictions: prohibited actions
The Customer will not and will not permit its Users to (a) modify, copy, or create derivative works of or based on the Services; (b) 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; (c) reverse engineer the Services; or (d) 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. Customer Data: about rights to and use of your data
Following Subscription Term or trial period termination, the 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 trial period. After the expiration or termination of a Subscription Term or trial period, Customer will not have access to the Services, including for purposes of downloading Customer Data, unless Customer purchases an additional subscription to the Services.
d. Improvements: who owns rights to improvements of the Services
Boardable owns all rights, title, and interest in and to any improvements to the Services, including, without limitation, all intellectual property rights to the Services and any improvements. 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, 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 assigns and will cause its Users, employees, agents, or contractors to assign all right, title, and interest to the Feedback to Boardable. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Boardable by virtue of this Agreement or otherwise, the Customer hereby transfers and assigns (and, if applicable, shall cause its Affiliates and Users to transfer and assign) to Boardable all rights, title, and interest which the Customer or its Affiliates may have to such refinements and improvements. 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.
e. Publicity & Trademarks: usage of logos and 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 this Agreement, “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 terms and conditions of these Customer Terms (including pricing and other terms reflected in all Order Forms as provided for under the terms of this document), 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: maintaining confidential information
The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Customer Terms, except with the Disclosing Party’s prior written permission. Despite anything to the contrary in these Customer Terms, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for the purposes of performing the Services, and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to 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: rights and responsibilities
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.
d. Remedies: in the event confidential information is 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.
e. Survival: length of confidentiality obligations
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: assurance of legal power to enter these Customer Terms
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: our obligations to you
Boardable represents and warrants that: (a) the functionality of the Services will not be materially decreased during a Subscription Term; (b) Boardable will use commercially reasonable efforts to utilize software and other security means to prevent the Service from containing or transmitting Malicious Code; and (c) it owns or otherwise has sufficient rights in the Services to grant to the Customer the rights to use the Services granted in these Customer Terms.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THESE CUSTOMER TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, BOARDABLE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SERVICES NOT CONTAINED IN THIS AGREEMENT WILL BE DEEMED TO BE A WARRANTY BY BOARDABLE.
a. By Boardable
Boardable will defend, indemnify, and hold the Customer harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against the Customer by a third party alleging that the Customer’s use of the Services within the scope of these Customer Terms infringes the intellectual property rights of the third party, except that Boardable has no such indemnification obligation to the extent such infringement: (a) relates to use of the Service or deliverables in combination with other software, data products, processes, or materials not provided by Boardable and the infringement would not have occurred but for the combination; (b) arises from or relates to modifications to the Service not made or authorized by Boardable; or (c) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by Boardable.
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.
c. Procedure: the “must-dos” when seeking indemnification
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; and (b) 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 TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY. 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 Related 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 OTHERWISE 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
a. Term: start and length of this contract
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: start, length, and auto-renewal 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. Termination by Boardable: when Boardable ends an Agreement
Boardable may, whether directly or indirectly through suspension or termination of Customer’s or any or all Users access to the Services, immediately terminate these Customer Terms and any Order Forms without incurring any resulting obligation or liability under these Customer Terms or any Order Forms if (i) Boardable receives a judicial or other governmental demand, order, subpoena, or law enforcement request that expressly or by reasonable implication requires Boardable to do so, or (ii) Boardable believes, in good faith and in its reasonable discretion, that Customer or any User is using the Services in material violation of this Agreement, in violation of applicable laws, or is, has been, or is likely to be engaged in fraudulent or misleading activities relating to the Services.
d. Termination for Cause: when either party ends the Agreement
A party may terminate this Agreement for cause: (a) upon thirty (30) days’ written notice of a material breach to the other party, if the breach remains uncured at the expiration of this period; 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 sixty (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: how it’s treated after the Agreement ends
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. 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: Customer Terms that stand post-termination
Section 1, 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 this Agreement.
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: the self-explanatory section
There are no third-party beneficiaries to these Customer Terms.
c. Notices: how both parties are to receive or address notices
All notices under this Agreement 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., 6219 Guilford Avenue, Indianapolis, 46220 or by email to email@example.com. 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: all parties rights to these
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.
e. Severability: if a portion of this document is unenforceable
If any provision of these Customer Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Customer Terms or invalidate or render unenforceable that term or provision in any other jurisdiction, and that term or provision shall be deemed fully severable from these Customer Terms without affecting any other portion of these Customer Terms.
f. Assignment: about assigning rights or obligations to others
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: jurisdiction governing these Customer Terms
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 this Agreement.
h. Force Majeure: in the event of unforeseen circumstances
If either party is rendered unable, wholly or in part, by force majeure (defined below) to carry out its obligations (other than obligations to make payments) under these Customer Terms, that party will give to the other party prompt notice of the force majeure, with reasonably full details concerning it. Immediately upon the giving of notice, the obligations (other than obligations to make payments) of the party giving notice, so far as they are affected by the force majeure, will be suspended during, but no longer than, the continuance of the force majeure. The affected party will use all reasonable diligence to remove the force majeure as quickly as possible. The term “force majeure” shall without limitation mean an act of God, strike, industrial disturbance, act of the public enemy, war, blockage, public riot, lightning, fire, storm, flood, earthquake, other disasters, public health emergencies, epidemics, pandemics, failure of utilities, failure of internet collocation facilities or other Internet failure, any unauthorized server or computer violation or other security violation, explosion, governmental restraint, or any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of the party claiming suspension.
i. Entire Agreement: what this document represents
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. Amendments or modifications to these Customer Terms will be effective on the earlier of when posted on Boardable’s website or when Customer or its Users click a box indicating acceptance of the updated Customer Terms. 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 this Agreement.
Headings have been inserted into these Customer Terms for reference only and to aid the reader and do not affect nor will be construed in the interpretation of these Customer Terms.
SCHEDULE A (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 two (2) hours per month.
Boardable will use commercially reasonable efforts to provide a minimum of forty-eight (48) hours prior notice for Planned Maintenance and two (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 twelve-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 one (1) month of credit may be accrued per month.
3. Periodic Modification
The parties recognize that over time, technology and market conditions may affect the service levels that are feasible and that become necessary in order to maintain the Service on a competitive level in the marketplace. As a result, this SLA may be updated from time to time by Boardable during the Term of the Agreement to incorporate all such updates.