Terms of Subscription Agreement

Last Updated January 3, 2017

Thank You for signing up for a subscription with Blackfynn Inc. ("Blackfynn") for use of the Blackfynn Data Platform. 

This Terms of Subscription Agreement governs Your access to and use of the Blackfynn Data Platform and related services. This Agreement includes any Order Forms as well as any policies or exhibits linked to or referenced herein.
 
BY ACCEPTING THIS AGREEMENT, EITHER BY REGISTERING FOR AND/OR USING ANY OF THE SERVICES IN ANY MANNER OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE LEGALLY BINDING TERMS OF THIS AGREEMENT. 

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Please note that we may modify this Agreement as further described in the amendments section below, so you should make sure to check this page from time to time. 

1. DEFINITIONS.

a. "Affiliate" means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where "control" means either the power to direct the management or affairs of such entity or ownership of 50% or more of the voting securities of such entity.

b. "Agreement" means this Terms of Subscription Agreement.

c. "Blackfynn Data Platform" or "BD Platform" means the proprietary software-as-a-service product of Blackfynn specified in Your Order Form. "Blackfynn Data Platform" does not include any Included Content or Third Party Material.

d. "Blackfynn Technology" means the BD Platform, any and all related or underlying Documentation, technology, code, know-how, and anything delivered by Us to You as part of support or other services, and any updates, modifications or derivative works of any of the foregoing.

e. "Confidential Information" means code, inventions, know-how, product plans, inventions, technical, business and financial information exchanged under this Agreement that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.

f. "Data S&A Fees" means out-of-pocket costs incurred by Us with respect to the hosting, storage of and/or access to User Data, in excess of the amounts specified in the applicable Order Form.

g. "Documentation" means the end user technical documentation provided by Us for the BD Platform.

h. "Included Content" means information obtained by Us from Our content licensors or publicly available sources and made available to You for use with the BD Platform pursuant to an Order Form. 

i. "Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

j. "Operations Statistics" means anonymous learnings, logs and data regarding use of the Blackfynn Data Platform. 

k. "Order Form" means any Blackfynn ordering documentation or online sign-up that references this Agreement.

l. "Regulated Data" means any patient, medical and/or other regulated personal health information including, without limitation, data subject to regulation by HIPPA, HITECH, European Union and/or other supranational or national data privacy requirements.

m. "Scope of Use" means the usage limits for the Services included in the applicable Order Form. These may include any numerical limits on Users, sites, limits on use for specific projects or applications, data volume limits, limits on access to product feature levels and/or other limitations.

n. "Services" means the products and services that are ordered by You and made available by Us to You under this Agreement, as specified on the applicable Order Form. "Services" exclude any Third Party Material.

o. "Subscription Term" means the initial term for Your Services subscription, as specified on the applicable Order Form, and each subsequent renewal term (if any).

p. "Third Party Material" means any content, application(s), integration(s), software, code, online service(s), system(s) and other product(s) not developed by Us that You use with the Services. 

q. "User Data" means electronic data uploaded by or for You for use with the BD Platform, excluding any Third Party Material.

r. "User" means an individual who is authorized by You to use any Services on Your behalf and to whom You (or We at Your request) have supplied an identification code and a password. Each User must be one of Your employees, consultants or a contractor working on Your behalf.

s. "You" or "Your" means the company or other legal entity for which you are accepting this Agreement, 

t. "We," "Us" or "Our" means Blackfynn Inc.

Other terms are defined in other Sections of this Agreement.

2. SUBSCRIPTION ACCESS. 

a. Subscription Access. Access to the Services is provided as a subscription (which may be for a free trial period). 

b. Account Registration. You must register for a Blackfynn account in order to access the Services. Account information must be accurate, current and complete, and will be governed by Blackfynn's Privacy Policy (currently available at https://www.blackfynn.com/privacy/). You agree to keep Your account information up-to-date so that We may send You notices and other information. Your account is solely for Your use and must not be shared with any third party. You must notify Us immediately of any breach of security or unauthorized use of Your account.

c. Users. After an Order Form is submitted and the applicable fees for the subscription (if any) are paid, Your Users will be able to access the BD Platform at https://app.blackfynn.io/. Each User will be able to create a username and password. You must maintain the confidentiality of each User identification and password, and ensure that only the authorized User uses the associated identification and password and that these are not shared with or used by any unauthorized person. If any User stops working for You, You must immediately terminate that person's access to BD Platform. We shall have no liability for any loss or damage arising from Your failure to comply with these requirements.

d. Availability. The BD Platform will not be available during scheduled downtime and/or due to circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet failure or delay or denial of service attack.

3. USE RIGHTS.

a. Services. Subject to all terms and conditions of this Agreement, We will provide You a worldwide, non-exclusive, non-transferable and non-sublicensable right, during the applicable Subscription Term, to access and use the Services solely for Your internal purposes, subject to the Scope of Use limitations on the applicable Order Form. 

b. Users. Your Users may access and use the Services in accordance with this Agreement. You are responsible for the compliance of Your Users with this Agreement and liable for their acts and omissions. Use by all Your Users in aggregate will count towards applicable Scope of Use restrictions.

c. General Obligations. You are responsible for (i) compliance with this Agreement by You and Your Users, (ii) the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, and (iii) obtaining and maintaining all computer hardware, software and communications equipment needed to access the Services, and for paying all third party access charges incurred while using the Services, except as expressly stated in an Order Form. You agree to (x) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, (y) use the Services only in accordance with applicable laws and government regulations, including, without limitation, all laws regarding the export of technical data, and (z) comply with the terms of service of any Third Party Material(s) with which You use any Services. 

d. General Restrictions. You and Your Users must not (and must not allow or assist any third party to):

i. use the BD Platform or Included Content in any manner inconsistent with the terms of this Agreement and the applicable Order Form;

ii. make the BD Platform or Included Content available to, or use the BD Platform or Included Content, for the benefit of anyone other than You and Your Users;

iii. sell, resell, license, sublicense, distribute, or otherwise provide access to any portion of the BD Platform or Included Content, except your Users;

iv. use the BD Platform to store or transmit material in violation of third-party privacy rights;

v. incorporate the BD Platform (or any portion thereof) into any product or service; 

vi. use the BD Platform to store or transmit Malicious Code; 

vii. upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the BD Platform;

viii. interfere with or disrupt the integrity or performance of the BD Platform; 

ix. make network connections to any user(s), host(s) or network(s) unless You have permission to communicate with them

x. conduct any monitoring, crawling or interference of any host or network, e.g., by any flooding or denial of service attack; 

xi. attempt to gain unauthorized access to the BD Platform or Included Content or its related systems or networks; 

xii. not to probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Services;

xiii. copy any Included Content, except as permitted in an Order Form or the Documentation; 

xiv. frame or mirror any part of the BD Platform or Included Content, other than framing on Your own intranets or otherwise for Your own internal business; 

xv. modify or create a derivative work of any portion of the BD Platform or any portion thereof; 

xvi. reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs of the BD Platform, except to the extent expressly permitted by applicable law; 

xvii. publicly disseminate any information regarding the performance of the BD Platform without our prior written consent; 

xviii. not take any action that would cause Us, the Blackfynn Data Platform or the Blackfynn Code to become subject to any third party terms (including open source license terms); and/or

xix. remove or obscure any proprietary or other notices contained in the BD Platform and/or Included Content, including in any reports or output obtained from the BD Platform. 

e. Removal of Included Content and Third Party Materials. If We are required by a licensor to remove Included Content, or receive information that Included Content made accessible to You may violate applicable law or third-party rights, We may notify You, and in such case You will promptly remove such Included Content from Your systems. If We receive information that any Third Party Material hosted by You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Third Party Material or modify the Third Party Material to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Included Content and/or Third Party Material until the potential violation is resolved.

f. Beta Releases and Free Access Subscriptions. Blackfynn may, at its sole election, provide You with access to the BD Platform for free or on a trial basis (a "Free Access Subscription") or with "alpha", "beta" or other early-stage features ("Beta Releases"). This Section will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Your Scope of Use allocations) and supersedes any contrary provision in this Agreement. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, You AGREE THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, YOU FURTHER ACKNOWLEDGE AND AGREE THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH BLACKFYNN WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT YOUR SOLE RISK. Blackfynn makes no promises that future versions of a Beta Release will be released or will be available under the same commercial or other terms. We may terminate Your right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in Our sole discretion, without liability. ANY USER DATA THAT YOU UPLOAD FOR USE WITH THE BD PLATFORM DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.

4. USER DATA.

a. Rights in User Data. As between You and Us, You retain all right, title and interest (including any intellectual property rights) in and to the User Data (excluding any Blackfynn Technology). Your Data shall be Your Confidential Information. You hereby grant to Us a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the User Data (i) to the extent necessary to provide the BD Platform and related Services to You, (ii) to debug the BD Platform, and (iii) to conduct research and development of BD Platform features, performance and improved functionalities.

b. Protection of User Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your User Data, as described in the Documentation. 

c.  Regulated Data. Unless otherwise expressly stated on an Order Form, any User Data that is uploaded for use with the BD Platform must be de-identified (in accordance with the Safe Harbor method of the HIPPA Privacy Rule) and not contain any Regulated Data. You agree to indemnify, defend and hold Us harmless from and against any third party claims against Us resulting from the Your disclosure to Us, and our access to, any Regulated Data, consistent with the terms of this Agreement.

d. Your Responsibilities. You are responsible for obtaining all necessary rights, releases and consents to allow use of Your User Data in the manner contemplated by this Agreement. You agree not submit, collect or use any Regulated Data to or with the Blackfynn Data Platform except where expressly permitted by the applicable Order Form. You will not attempt to re-identify any individual from any de-identified data that may be shared with You. You represent and warrant that the upload of Your User Data for use with the Services and its storage by a third party data hosting site, will not violate any third party rights, including intellectual property, privacy and publicity rights. If You receive any take down requests or infringement notices related to User Data, You must promptly stop using the subject data with the BD Platform and promptly notify Us providing written details.

e. Operations Statistics. You agree that We have the right to generate Operations Statistics. Notwithstanding anything to the contrary in this Agreement, the parties agree that Operations Statistics are Blackfynn Technology, which We may use for any business purpose during or after the term of this Agreement to develop and improve Our products and services, to create and distribute reports and other materials and otherwise use. We will not distribute Operations Statistics in a manner that personally identifies You. 

f. Storage. We do not provide any data storage, warehousing or archiving for User Data and rely on third party providers for these services. You acknowledge that You may responsible for Data S&H Fees for such services pursuant to the applicable Order Form. We expressly disclaim all other obligations with respect to data storage. Additional storage terms may be specified in the applicable Order Form.

5. SUPPORT. Technical support is only provided via email. For support questions email support@blackfynn.com.

6. Additional support services may be available to You upon payment of applicable fees, as specified in the applicable Order Form. All support Services are subject to this Agreement, the Documentation and Our support policies. Our ability to provide support will depend on Your reasonable and timely cooperation and the accuracy and completeness of any information from You that We need to provide such Services.

7. FEES AND PAYMENT. 

a. General. You will pay all fees specified in Order Forms in U.S. dollars Except as specifically stated an Order Form, (i) fees are based on access to the Blackfynn Data Platform, and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) Services purchased cannot be decreased during the relevant Subscription Term without our consent, provided You may elect to terminate this Agreement as provided in Section 7.e (Termination at Will). 

b. Credit Card payments. Some customers may have the option to pay by credit card. If You are paying by credit card, and elect to do so on the applicable Order Form, You hereby authorize Blackfynn to charge fees and other amounts automatically to Your credit card, without invoice, for the initial Subscription Term and any renewal subscription term(s). Such charges shall be made in advance, either annually , quarterly or in accordance with any different billing frequency stated in the applicable Order Form, however, Data S&H Fees (if any) may be charged in arrears.

c. Invoicing and Payment. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

d. Late Payments. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may also condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.c (Invoicing and Payment).

e. Suspension of Services and Acceleration. If any amount owing by You under this or any other agreement for Our Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 14.b (Notices), before suspending services to You.

f. Payment Disputes. We will not exercise Our rights under Section 6.c (Late Payments) or 6.e (Suspension of Services and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

g. Taxes. Our fees are exclusive of all Taxes. You must pay any applicable sales, use, VAT, GST, excise, withholding or similar taxes or levies, whether domestic or foreign (collectively, "Taxes) associated with Your purchases hereunder, other than taxes based on Our income. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 8.g, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. 

h. Future Functionality. You agree that Your payments to Us are not contingent on the delivery of any future functionality or features of the BD Platform or Included Content, or dependent on any oral or written public comments made by Us regarding future functionality or features.

7. TERM AND TERMINATION.

a. Term. This Agreement is effective until the Subscription Term for the applicable Order Form has expired or is terminated as expressly permitted herein.

b. Subscription Term and Renewals. By placing an Order Form for access to the BD Platform, You agree to pay applicable fees for the entire Subscription Term. You may cancel or terminate a Subscription Term as permitted by Section 7.d (Termination for Cause) or 7.e (Termination at Will) but all pre-paid fees are non-refundable. Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. If no subscription start date is specified on the applicable Order Form, the subscription starts when You first obtain access to the Services. Pricing for any Subscription Term renewal, new Order Form or Order Form change will be at Our then-applicable rates.

c. Suspension of Service. We may suspend Your access to the Services if: (i) Your account is overdue or (ii) You have exceeded any Scope of Use limits. We may also suspend Your access to the Services, remove User Data or disable Third Party Materials if We determine that: (a) You have breached Section 3 (Use Rights), or (b) suspension is necessary to prevent harm or liability to other customers or third parties or to preserve the security, stability, availability or integrity of the BD Platform. We will have no liability for taking action as permitted above. For avoidance of doubt, You will remain responsible for payment of fees during any suspension period. However, unless this Agreement has been terminated, We will cooperate with You to restore access to the Services once We verify that You have resolved the condition requiring suspension.

d. Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). Blackfynn may also terminate this Agreement or any related Order Forms immediately if You breach Section 3 (Use Rights) or for repeated violations of this Agreement.

e. Termination at Will. You may terminate this Agreement any your access to the Services at any time with 30 days prior written notice to Us, but all pre-paid fees are non-refundable.

f. Effect of Termination. Upon any expiration or termination of this Agreement or an Order Form
Form: (i) Your license rights shall terminate and You must immediately cease use of the Services (including the BD Platform and any related Blackfynn Technology), and delete (or, at Blackfynn's request, return) any Blackfynn Confidential Information in Your possession, custody or control, and (ii) Your right to access any User Data in the applicable Blackfynn Data Platform will cease, provided You shall have 30 days from the effective date of termination to delete or transfer Your User Data. Thereafter, We have no responsibility for retaining such User Data and may have it deleted. If We terminate this Agreement for cause as provided in Section 7.d (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by You. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

g. Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 3.d (General Restrictions); 3.f (Beta Releases and Free Access Subscriptions); 4.a (Rights in User Data); 4.c (Regulated Data); 4.e (Operations Statistics); 6 (Fees and Payment); 7 (Term and Termination); 8 (Confidential Information); 9 (Blackfynn Technology); 10 (Indemnification); 11 (Disclaimers); 12 (Limitations of Liability); 13 (Third-Party Products and Integrations); and 14 (General).

8. CONFIDENTIAL INFORMATION.

a. Obligation of Confidentiality. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party's Confidential Information to third parties except as permitted by this Agreement; and (ii) use the other party's Confidential Information only to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party's Confidential Information with its employees, agents or contractors having a legitimate need to know (which, for Blackfynn, includes the subcontractors referenced in Section 16.d), provided that such party remains responsible for any recipient's compliance with the terms of this Section 10 and these recipients are bound to confidentiality obligations no less protective than this Section.

b. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party prior to receipt of the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party's Confidential Information. A party may also disclose the other party's Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.

c. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

9. BLACKFYNN TECHNOLOGY.

a. Ownership. This Agreement provides subscription access for use of the Services. You acknowledge that You are obtaining only a limited right to use the BD Platform and other Services, and that irrespective of any use of the words "purchase", "sale" or similar terms, no ownership or license rights are transferred to You under this Agreement. You agree that We retain all rights, title and interest (including all intellectual property rights) in and to all Blackfynn Technology (which is deemed Our Confidential Information) and reserves all rights not specifically granted herein.

b. No License. Access to the BD Platform is offered as an on-line, hosted product only. Accordingly, You acknowledge and agree that You and Your Users have no right to obtain a copy of the software or any code behind the BD Platform.

c. Enhancements. We may, at our option, make updates, upgrades, bug fixes, modifications or improvements (each, an "Enhancement") to the BD Platform, and modify, add or remove Included Content from time-to-time. We solely own all Enhancements to the BD Platform, including without limitation, any made with any use of User Data.

d. Feedback. If You or any User elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Blackfynn (collectively, "Feedback"), You hereby grant Blackfynn a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Blackfynn's right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.

10.  INDEMNIFICATION. You will indemnify and hold Us harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney's fees) arising from or pertaining to any User Data, or breach or alleged breach of Section 6 (Your Obligations). You also agree to defend Us against these claims at Our request, but We may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. You must not settle any claim without Our prior written consent if the settlement does not fully release Us from all liability or would require Us to admit fault, pay any amounts or take or refrain from taking any action.

11. DISCLAIMERS. ALL BLACKFYNN TECHNOLOGY AND SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. NEITHER BLACKFYNN NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. BLACKFYNN MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT BLACKFYNN TECHNOLOGY WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT YOUR USER DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT BLACKFYNN TECHNOLOGY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE. BLACKFYNN DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. BLACKFYNN WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY You PROPERTIES, THIRD PARTY MATERIALS, OR NON-BLACKFYNN SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM You IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF YOU DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY. YOU BASED UPON BLACKFYNN TECHNOLOGY OR BLACKFYNN'S RELATED SERVICES. YOU ACKNOWLEDGE THAT THE BD PLATFORM IS NOT CURRENTLY HIPAA COMPLIANT. THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. You MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

12. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL BLACKFYNN OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCFIDAMAGES. IN NO EVENT WILL BLACKFYNN'S OR ITS SUPPLIERS' TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY You TO BLACKFYNN FOR THE APPLICABLE BLACKFYNN SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, BLACKFYNN'S TOTAL LIABILITY SHALL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY'S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY'S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 12 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY BLACKFYNN TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

13. THIRD PARTY MATERIALS. We do not warrant or support Third Party Materials and disclaims all responsibility and liability for any use of these with the BD Platform, including without limitation, if they result in any modification, deletion, disclosure or collection of User Data. 

14. GENERAL.

a. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that We may assign this Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.a will be null and void.

b. Notices. Any notice or communication under this Agreement must be in writing. You must send any notices under this Agreement (including breach notices) to Us at the following address, legal@Blackfynn.com, and include "Attn. Legal Department" in the subject line. We may send notices to the e-mail addresses on Your account or, at Our option, to Your last-known postal address. We may also provide operational notices regarding the BD Platform or other business-related notices through conspicuous posting of such notice on Our website or the BD Platform. Each party hereby consents to receipt of electronic notices. We are not responsible for any automatic filtering You or Your network provider may apply to email notifications.

c. Publicity. Unless otherwise specified in the applicable Order Form, We may use Your name, logo and marks (including marks on User Properties) to identify You as a customer on Our website and other marketing materials.

d. Subcontractors. We may use subcontractors and permit them to exercise the rights granted to Us in order to provide the Services. These subcontractors may include, for example, Blackfynn's hosted service and/or CDN providers. However, We will remain responsible for: (i) compliance of Our subcontractors with the terms of this Agreement; and (ii) the overall performance of the BD Platform as required under this Agreement.

e. Subpoenas. Nothing in this Agreement prevents Us from disclosing User Data to the extent required by law, subpoenas, or court orders, but We will use commercially reasonable efforts to notify You where permitted to do so.

f. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.

g. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, government act.

h. Export. You are responsible for obtaining any required export or import authorizations for use of the BD Platform. You represents and warrants that it, its affiliates, and its Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country. You must not access or use the BD Platform in violation of any U.S. export embargo, prohibition or restriction.

i. Amendments; Waivers. We may update or modify this Agreement (including any Service-Specific Terms, referenced policies and other documents) from time to time. If We modify the Agreement during Your Subscription Term, the modified version will take effect upon Your next Subscription Term renewal, except that: (i) changes to the policies referenced herein (such as the Acceptable Use Policy) will take effect thirty (30) days from the date of posting; (ii) if We launch new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Your acceptance; and (iii) any updated or modified Agreement will take effect immediately for Free Access Subscriptions or if You accepts new Order Forms or Order Form changes following the modification. You may be required to click through the updated Agreement to show acceptance; in any event, continued use of Free Access Subscriptions or any renewal of a Subscription Term following the update shall constitute acceptance of the updated Agreement. If You do not agree to the updated Agreement after it takes effect, You will no longer have the right to use the Services. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.

j. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.

k. No Third Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. You acknowledge that each Order Form only permits use by and for the legal entity or entities identified in the Order Form and not any affiliated entities.

l. Attorneys' Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys' fees and costs for the action.

m. Entire Agreement. This Agreement represents the parties' complete and exclusive understanding relating to the Agreement's subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Blackfynn Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted. Any terms provided by You (including as part of any purchase order or other business form used by You) are for administrative purposes only, and have no legal effect.

n. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Pennsylvania and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state courts located in Philadelphia, Pennsylvania or the United States District Court for the Eastern District of Pennsylvania, and You consent to the personal jurisdiction of these courts.

o. U.S. Government Use. The BD Platform is commercial computer software. If the user or licensee of the BD Platform is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Blackfynn Data Platform, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. Certain elements of the BD Platform were developed with funds provided by the Defense Advanced Research Projects Agency (DARPA).