This Subscription Agreement (this "Agreement") contains the terms under which BurnRate agrees to grant Customer access to and use of BurnRate’s online business operations platform and, if applicable, certain professional services. By indicating Customer’s acceptance of this Agreement, by executing a Sales Order that references this Agreement, or by using BurnRate’s services or software, Customer agrees to be bound by this Agreement. If you are entering into this Agreement on behalf of an entity, such as the company you work for, then you represent to BurnRate that you have the legal authority to bind the Customer to this Agreement. If you do not have that authority or if Customer does not agree with the terms of this Agreement, then you may not indicate acceptance of this Agreement, and neither you nor Customer may use or access any of BurnRate's service offerings or other services. The "Effective Date" of this Agreement is the date on which you first indicate your assent to the terms of this Agreement.
BurnRate provides business operations solutions, by providing its customers with access to BurnRate's online software platform and tools and, if applicable, provides related professional services. Customer wishes to acquire a subscription-based license to access and use the software platform and tools and, if applicable, to purchase professional services, all as specified in one or more "Sales Orders" under and subject to this Agreement. Therefore, for good and valuable consideration, the receipt and sufficiency of which they each acknowledge, BurnRate and Customer agree to be bound by this Agreement.
1.1. Definitions. For the purposes of this Agreement, the following initially capitalized words are ascribed the following meanings:
"Acceptable Use Policy" means the BurnRate policy described in Section 12.
"Administrative User" means any individual who is an employee or independent contractor of Customer, its Affiliates, or its or their Customer Service Providers, and who is authorized by Customer to use the administrative features and functions of the BurnRate Platform to administer access to and use of Customer Applications.
"Affiliate" means any person, partnership, joint venture, corporation or other form of venture or enterprise, domestic or foreign, including subsidiaries, which directly or indirectly Control, are Controlled by, or are under common Control with a party. "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of the entity in respect of which the determination is being made, through the ownership of more than fifty percent (50%) of its voting or equity securities, contract, voting trust or otherwise.
"BurnRate Platform" means the computer software applications, tools, application programming interfaces (APIs), connectors, programs, networks and equipment that BurnRate uses to make the Subscription Services available to its customers.
"Channel Partner" means an entity that BurnRate has authorized as a "reseller" of BurnRate's Services.
"Channel Partner Sale Agreement" means the order, agreement or other document between Customer and a Channel Partner for Customer's purchase of Services. Terms that apply to Customer's use of the Services when purchased from a Channel Partner are specified in Section 13.
"Confidential Information" has the meaning ascribed to it in Section 6.1.
"Customer" means the entity identified as such in the applicable Sales Order.
"Customer Application" means an application or web-based service developed or used by Customer (including its APIs), and which utilizes the BurnRate Platform to identify or authenticate users. Customer Applications are provided by Customer, and not by BurnRate; "Customer Application" does not include the BurnRate Platform.
"Customer Data" means any data that Customer or its Users input into the BurnRate Platform for processing as part of the Services.
"Customer Materials" means any software, documentation, Customer Application, Customer Data, hardware, tools, trademarks, service marks or brands, or any other materials, information or intellectual property owned, leased, licensed (as licensee) or used by Customer, and that Customer delivers to BurnRate or to which Customer provides BurnRate with access, or that Customer requires BurnRate to use, for purposes of the Services.
"Customer Service Provider" means a third party, to the extent the third party is providing services to Customer.
"Customer Third Party Application" means a compatible third party software application or web-based service that Customer uses to interoperate with the BurnRate Platform (for example, a social media platform whose user authentication credentials will be used by their End User to authenticate to Customer Applications using the BurnRate Platform). Customer Third Party Applications are selected by Customer and provided by third parties, but not by BurnRate.
"Documentation" means the software user and administrator manuals published by BurnRate at https://support.burnrate.io, regarding use of the BurnRate Platform, including additional, updated or revised documentation, if any.
"End User" means, subject to the Entitlements, any individual who has been authorized by Customer to use the end user features and functionality of the BurnRate Platform as part of its obtaining access to and use of Customer Applications.
"Entitlements" means the license metrics and other scope limitations applicable to Customer's license rights to access and use the Subscription Services, as specified in the applicable Sales Order.
"Free Trial" means use of the Subscription Services for trial purposes pursuant to a Sales Order that specifies that Customer's use is for a Free Trial.
"Intellectual Property Rights" means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
"Personal Information" means any personally identifiable information of an individual person that is required to be protected by applicable law (such as name, postal address, email address, telephone number, date of birth, Social Security number (or its equivalent), driver's license number, account number, personal identification number, or health or medical information).
"Professional Services" means the professional services (typically consulting and configuration) to be performed by BurnRate that are specified in the applicable Sales Order. Professional Services are not required for use of the Subscription Services. Terms governing Professional Services are specified in the ‘Additional Terms of Service – Professional Services Terms' referenced in Section 12.
"Renewal Term" has the meaning ascribed to it in Section 8.
"Sales Order" means any mutually agreed, written sales order, executed on behalf of BurnRate and Customer (or, in the case of a sale of Services under a Channel Partner Agreement, executed on behalf of BurnRate and the Channel Partner), including its exhibits and addenda, describing the Subscription Services, Support Program, Professional Services (if applicable), fees, and any special terms for using the Services that Customer has ordered. If Customer subscribes via BurnRate's online checkout, then the checkout form submitted by Customer and accepted by BurnRate constitutes the applicable Sales Order for purposes of this Agreement. Each Sales Order becomes effective when executed by both BurnRate and Customer (or, in the case of an online checkout form, on the date on which BurnRate enters the completed online checkout form into its system), and is made part of this Agreement as described in Section 1.2.
"Services" means the Subscription Services and the Professional Services.
"Subscription Services" means the BurnRate Platform service offerings to which Customer subscribes, together with the applicable Support Program, each as specified in the applicable Sales Order, and the Documentation.
"Subscription Start Date" means, with respect to each Sales Order, (a) the later to occur of the "Subscription Start Date" specified in the Sale Order, or the date on which the last of BurnRate and Customer (or, if applicable, a Channel Partner) executes the Sales Order, or (b) in the case of an online checkout form, the date on which BurnRate enters the completed online checkout form into its system.
"Subscription Term" has the meaning ascribed to it in Section 8.
"Supplemental Materials" means software development kits, sample code, and sample programs made available or supported by BurnRate or by third parties for use with the BurnRate Platform. Supplemental Materials are not required for use of the Subscription Services, and may be accessed and used by Customer in its sole discretion.
"Support Program" means the BurnRate support and maintenance services program specified in the applicable Sales Order. Terms governing the Support Program are specified in the ‘Additional Terms of Service – Support Program' referenced in Section 12.
"User" means any Administrative User or End User.
The following words will be interpreted as designated: (i) "or" connotes any combination of all or any of the items listed; (ii) where "including" is used to refer to an example or begins a list of items, such example or items will not be exclusive; (iii) "specified" requires that an express statement is contained in the relevant document; and (iv) "will" is, unless the context requires otherwise, an expression of command, not merely an expression of future intent or expectation.
1.2. Construction. This Agreement apply to the provision of all Services. The parties will enter into one or more Sales Orders that contain additional terms and conditions applicable to the provision of certain Services. Upon execution by the parties, each Sales Order will be incorporated into this Agreement.
2.1. Provision of Subscription Services. During the Subscription Term, Customer may access and use the BurnRate Platform in accordance with this Agreement. BurnRate will make the BurnRate Platform available to Customer, and provide the Support Program. BurnRate's service levels with respect to the BurnRate Platform and Support Program are specified in the 'Additional Terms of Service – Service Levels' document referenced in Section 12. (BurnRate's service levels do not apply to any Free Trial.) BurnRate makes Supplemental Materials available on or via the burnrate.io website.
2.2. Customer's Account. Customer will designate one or more of its employees to be the point of contact with BurnRate for the management and support of the Subscription Services, and who will be responsible for establishing and managing Customer's use of the Subscription Services ("Account"), including the creation of authentication credentials to access Customer's Account. Customer is solely responsible for maintaining the status of its financial models. Customer will safeguard all Administrative User authentication credentials in its possession or under its control. Customer is responsible for all activities that occur under the Account.
2.3. Customer's General Responsibilities. Customer and its Users are solely responsible for obtaining and maintaining their Internet access to the Subscription Services. Customer is solely responsible for the accuracy, quality and integrity of the Customer Data that Customer or its Users input into the BurnRate Platform. Customer must comply, and will ensure that its Users comply, with the Acceptable Use Policy referenced in Section 12 below. Customer is responsible for acts and omissions of its Users relating to this Agreement as though they were Customer's own.
2.4. Customer Application. Customer is solely responsible for the development, implementation, operation, support, maintenance and security of each Customer Application.
2.5. Customer Third Party Applications.
2.5.1. Access Rights. The BurnRate Platform includes connectors designed to enable interoperation between the BurnRate Platform and Customer Third Party Applications. Customer acknowledges and agrees that, in order to use the connectors effectively, Customer may be required to obtain rights to access such Customer Third Party Applications from their providers, and may be required to grant BurnRate access to Customer accounts on the Customer Third Party Applications. It is Customer's sole responsibility to obtain such rights and access.
2.5.2. Access Permissions. If Customer enables a Customer Third Party Application for use with the Subscription Services, then Customer hereby grants BurnRate permission to allow the Customer Third Party Application provider to access Customer Data to enable interoperability between the Customer Third Party Application and the Subscription Services. BurnRate is not responsible for any disclosure, modification or deletion of Customer Data that results from or arises out of access by any Customer Third Party Application or its provider to the Subscription Services, except to the extent that such disclosure, modification or deletion results from a non-conformance by the Subscription Services with their applicable Documentation.
2.5.3. Changes. If a Customer Third Party Application provider modifies a Customer Third Party Application so that it no longer interoperates with the BurnRate Platform, or imposes requirements on interoperability that BurnRate determines are unreasonable for BurnRate then, upon such notice to Customer as BurnRate determines reasonable in the circumstances, BurnRate may, without liability to Customer, cease or suspend its provision of interoperability between the BurnRate Platform and the affected Customer Third Party Application.
2.5.4. Acquisition and Operation. BurnRate has no responsibility for the acquisition, development implementation, operation, support, maintenance or security of any Customer Third Party Applications.
2.6. Customer Load Testing or Penetration Testing. Customer may conduct load testing or penetration testing on Customer infrastructure that interoperates with the BurnRate Platform as Customer determines necessary or advisable. To the extent any such testing affects or may reasonably be expected to affect the BurnRate Platform, Customer must comply with applicable testing policies located at burnrate.io/docs/policies. Customer may not conduct any penetration testing or load testing on the BurnRate Platform without BurnRate's prior written consent in each instance, and then only subject to such conditions as BurnRate reasonably requires. BurnRate may terminate any testing of the BurnRate Platform at any time, as BurnRate determines necessary or advisable to protect the BurnRate Platform's operation or integrity.
2.7. Backup and Restore. BurnRate will perform backups of Customer Data stored on the BurnRate Platform every twenty four hours. BurnRate will assist Customer in recovering and restoring Customer Data to the BurnRate Platform as specified in BurnRate's then-current recovery policies (published at burnrate.io/docs/policies); BurnRate may charge for recovery and restoration services that are required other than as a result of an BurnRate Platform non-conformance at BurnRate's then current applicable rates, or such other rates as may be agreed in writing with Customer. Recovery and restoration services are not available for Free Trial Customers.
2.8. Technology Improvement. BurnRate may modify the Subscription Services and BurnRate Supplemental Materials as it determines necessary to reflect to changes in technology and information security practices. BurnRate will notify Customer in advance of any material changes. BurnRate may require Customer to utilize BurnRate or third party software updates in order to continue using some or all of the Subscription Services.
3.1. License by BurnRate. Subject to the terms and conditions of this Agreement, BurnRate hereby grants to Customer a non-exclusive, non-transferable (except in accordance with Section 14.13 – Assignment), limited, royalty-free license, without right to sub-license, for the Subscription Term, to access and use, and to permit its Users to access and use, the BurnRate Platform, in accordance with the Documentation, solely for Customer's operations in its ordinary course of business, and subject to the Entitlements. BurnRate reserves all other rights not expressly granted in this Agreement.
3.2. License by Customer. Customer hereby grants to BurnRate a non-exclusive, non-transferable (except in accordance with Section 14.13 – Assignment), limited, royalty-free license, without right to sub-license (except to its sub-processors, as required for the provision of the Subscription Services), to use the Customer Materials, solely as necessary to perform the Services and as otherwise may be agreed in writing by Customer. Customer reserves all other rights not expressly granted in this Agreement.
3.3. Ownership of Intellectual Property Rights.
3.3.1. Ownership and Use of Customer Materials. Customer retains all of its rights, title and interest and Intellectual Property Rights in and to the Customer Materials (including Customer Data) and Customer Confidential Information. No ownership interest in the Customer Materials or Customer Confidential Information is transferred or conveyed to BurnRate by virtue of this Agreement. BurnRate will use Customer Materials and Customer Confidential Information only for purposes of providing the Services, unless otherwise authorized in writing by Customer.
3.3.2. BurnRate's Intellectual Property and Ownership Rights. As between Customer and BurnRate, BurnRate and BurnRate's licensors retain and own all right, title and interest and all Intellectual Property Rights in and to the Subscription Services, BurnRate's Confidential Information, and BurnRate's Supplemental Materials, and all enhancements or improvements to, or derivative works of any of the foregoing created or developed by or on behalf of BurnRate (collectively, "BurnRate Intellectual Property"). Nothing in this Agreement transfers or conveys to Customer any ownership interest in or to the BurnRate Intellectual Property.
3.4. Restrictions. Customer will not: (i) except to the extent, if any, permitted by applicable law or required by BurnRate's licensors, reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from any of the BurnRate Platform; (ii) reproduce, modify, or prepare derivative works of any of the BurnRate Platform or Documentation; (iii) distribute or display any of the BurnRate Platform or Documentation other than to Customer's Users; or (iv) share, rent or lease the Subscription Services, or use the Subscription Services to operate any timesharing, service bureau or similar business.
4.1. Subscription Plans. Customer's subscription plan for the Subscription Services is specified in the applicable Sales Order. Customer may not reduce Customer's commitment under the subscription plan specified in the Sales Order during the Subscription Term. Customer is not entitled to any refund of fees paid or relief from fees due if the volume of Subscription Services Customer actually uses is less than the volume Customer ordered, and Customer may not carry over any of the unused volume to Customer's next Subscription Term.
4.2. Payment of Services Fees. Customer will pay BurnRate the fees for the Services as specified in the applicable Sales Order. Except as otherwise specified in the Sales Order, BurnRate invoices in advance for use of the Services. Unless specified otherwise in the applicable Sales Order, Customer will make all payments within thirty (30) days of receipt of BurnRate's invoice. Unless otherwise specified in the applicable Sales Order, all Fees are stated and payable in US dollars. Notwithstanding the foregoing, if Customer subscribes via BurnRate's online checkout, customer will pay the Subscription Fees by credit card.
4.3. Finance Charge. BurnRate may impose a finance charge of 1.0% per month on amounts unpaid by Customer on their due date.
4.4. Sales Taxes, Etc. Customer will be responsible for any applicable sales, value-added, use and similar taxes, together with all customs and import duties, and similar levies and impositions ("Taxes") payable with respect to its acquisition of Services, or otherwise arising out of or in connection with this Agreement, other than taxes based upon BurnRate's personal property ownership or net income. Unless expressly specified otherwise in any Sales Order, all Fees, rates and estimates exclude Taxes. If Customer has tax-exempt status, Customer will provide written evidence of such status with its purchase orders or upon request by BurnRate.
4.5. Withholding. If Customer is located outside the U.S.A., and is required to withhold taxes imposed upon BurnRate for any payment under this Agreement by virtue of the statutes, laws, codes or governmental regulations of a country in which any Subscription Services are delivered or obtained, then such payments will be made by Customer on behalf of BurnRate by deducting them from the payment then due BurnRate and remitting such taxes to the proper authorities on a timely basis, and the payments provided for under this Agreement will be adjusted upwards appropriately so that BurnRate actually receives the full amount of the fees set forth in the applicable Sales Order. Customer will provide BurnRate with official documentation or tax receipts on such withholdings supporting such taxes and such payments as may be required by BurnRate for its tax records as soon as reasonably possible following payment to the applicable tax authority, and in any event no later than when required by applicable law.
5.1. Warranties. BurnRate warrants to Customer that:
5.1.1. Performance Warranty. During the Subscription Term, the BurnRate Platform, in the form provided by BurnRate, will conform in all material respects to its applicable specifications set forth in the Documentation.
5.1.2. Viruses. BurnRate will use commercially reasonable efforts, using applicable current industry practices, to ensure that the BurnRate Platform, in the form provided by BurnRate to Customer under this Agreement, contains no computer virus, Trojan horse, worm or other similar malicious code.
5.1.3. Support Program. BurnRate will provide the Support Program in a good, professional and workmanlike manner, consistent with applicable industry standards.
5.1.4. Infringement. BurnRate's provision to Customer of the Subscription Services does not infringe any third party patent existing under the laws of the United States, Canada, any member state of the European Economic Area, the United Kingdom, Australia, New Zealand, Singapore, Brazil, South Korea, India or Japan, or infringe any third party copyright, trademark or service mark, or result from misappropriation by BurnRate of any third party's trade secrets (collectively, an "BurnRate Infringement").
5.1.5. Compliance with Law. The Services, in the form provided or made available by BurnRate, will comply with all laws applicable to BurnRate.
5.2. Performance Remedy. If the BurnRate Platform fails to conform to the warranty set forth in Section 5.1.1 and Customer provides written notice of the non-conformance to BurnRate within the applicable Subscription Term then, as Customer's exclusive remedy and BurnRate's sole obligation: BurnRate will either repair or, at its option, replace the non-conforming BurnRate Platform or, if BurnRate is unable to correct the non-conformance within 30 days of receipt of such written notice from Customer, Customer may terminate the applicable Subscription Services, and BurnRate will refund to Customer a pro-rata amount of any Subscription Services fees prepaid to BurnRate and applicable to the unutilized portion of the Subscription Term for the terminated Subscription Services.
5.3. Infringement Remedy. Customer's sole and exclusive remedy for any non-conformance with the warranty in Section 5.1.4 above will be Customer's defense and indemnification rights under Section 9.1 below, and Customer's termination rights under Section 8.2 below.
5.4. Bugs and Abatement; Scope. Without limiting the express warranties in this Section 5 or any express warranties specified in the Additional Terms of Service, BurnRate does not warrant that the BurnRate Platform or Services are completely free from all bugs, errors, or omissions, or will ensure complete security. The warranties in Sections 5.1.1 and 5.1.3 do not apply to any Free Trial, or to any BurnRate Supplemental Materials. Supplemental Materials developed, created or provided by third parties are made available AS IS, without warranty of any kind. The warranties in this Agreement will automatically abate to the extent that the BurnRate Platform has been modified by persons other than BurnRate's authorized employees or representatives, or other than at BurnRate's express direction. The warranties in this Agreement are for the sole benefit of Customer, and may not be extended to any other person or entity.
5.5. Disclaimer Of Implied Warranties. BurnRate makes no representation or warranty in connection with the Services, except as expressly warranted in this Agreement or the Additional Terms of Service. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS SPECIFICALLY WARRANTED IN THIS SECTION 5 OR THE ADDITIONAL TERMS OF SERVICE, EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF NONINFRINGEMENT OR IMPLIED OBLIGATION TO INDEMNIFY FOR INFRINGEMENT, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, AND ANY STATUTORY REMEDY.
6.1. Restrictions on use and Disclosure. Neither BurnRate nor Customer will disclose to any third party any information provided by the other party pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential (such information, "Confidential Information"), and will make no use of such Confidential Information, except under and in accordance with this Agreement. Each party may disclose Confidential Information to its Affiliates and service providers, and its Affiliates and service providers may use such information, in each case solely for purposes of this Agreement. Each party will be liable for any breach of its obligations under this Section 6 that is caused by an act, error or omission of any such Affiliate or service provider. Confidential Information includes information disclosed by the disclosing party with permission from a third party, and combinations of or with publicly known information where the nature of the combination is not publicly known. BurnRate's Confidential Information includes information regarding BurnRate Platform, BurnRate's processes, methods, techniques and know-how relating to business operations, algorithms, Documentation, roadmaps, pricing, marketing and business plans, financial information, information security information, BurnRate's SOC-2 statements and similar independent third party certifications, and Personal Information of BurnRate personnel. Customer's Confidential Information includes its proprietary workflows and processes, marketing and business plans, financial information, information security information, information pertaining to Customer's other suppliers, information pertaining to Customer's past, current and prospective customers, including Personal Information, and Customer Data.
6.2. Exclusions. Except with respect to Personal Information, Confidential Information does not include information that the receiving party can establish: (i) has entered the public domain without the receiving party's breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party; or (iv) has been independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.
6.3. Disclosure Required By Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party's Confidential Information or Personal Information (a "Disclosure Order") then, unless otherwise required by the Disclosure Order, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party's efforts to protect its Confidential Information or Personal Information. Following such notification, the receiving party will cooperate with the disclosing party, at the disclosing party's reasonable expense, in seeking and obtaining protection for the disclosing party's Confidential Information or Personal Information.
6.4. Independent Development. The terms of confidentiality under this Agreement will not limit either party's right to independently develop or acquire products, software or services without use of or reference to the other party's Confidential Information.
6.5. Data Processing Approvals. Except to the extent otherwise specified in the applicable Sales Order, Customer is solely responsible for obtaining, and represents and covenants that it has obtained or will obtain prior to processing by BurnRate, all necessary consents, licenses and approvals for the processing of any Customer Data (and any other Personal Information provided by Customer) as part of the Services.
7.1. Regulatory Issues.
7.1.1. Personal Information – Compliance with Applicable Law. Customer may select the Personal Information it elects to process using the BurnRate Platform in its sole discretion; BurnRate has no control over the nature, scope, or origin of, or the means by which Customer acquires, Personal Information processed by the Subscription Services. Subject to Section 6.5 above, BurnRate will comply, and will ensure that its employees and subcontractors comply (to the extent such subcontractors process Personal Information), with the requirements of state, federal and national privacy laws and regulations governing Customer Personal Information in BurnRate's possession or under its control and applicable to BurnRate's provision of Services. Customer may not use the BurnRate Platform to process Personal Information except in accordance with the BurnRate Platform's user interface and APIs (for example, Customer may not store Personal Information in custom fields or fields not intended to store Personal Information). Customer is solely responsible for (i) ensuring that it complies with any legal, regulatory or similar restrictions applicable to the types of data Customer elects to process with the BurnRate Platform, and (ii) Customer's decision not to adopt updates or best practices that BurnRate makes available to Customer.
7.1.2. ePHI. Customer may not use the BurnRate Platform to process "electronic Protected Health Information" unless the applicable Sales Order specifies that it intends to do so.
7.1.3. Data Export, Retention and Destruction. Customer may export Customer Data from the BurnRate Platform at any time during the Subscription Term, using the BurnRate Platform's then existing features and functionality. Customer is solely responsible for its data retention obligations with respect to Customer Data. On Customer's request or otherwise following termination of the Subscription Services, if and to the extent Customer cannot delete Customer Data stored on BurnRate's systems using the then existing features and functionality of the BurnRate Platform, BurnRate will destroy Customer Data in BurnRate's custody or control. BurnRate will regularly dispose of Personal Information that is maintained by BurnRate separate from the BurnRate Platform (such as Personal Information contained in trouble tickets submitted by Customer) ("Incidental Data"), but that is no longer necessary to provide the Subscription Services. BurnRate's obligations to destroy Customer Data and Incidental Data are subject to BurnRate's customary backup and archival processes; backup and archival copies of data will remain subject to this Agreement until they are destroyed. Customer will bear and pay for all costs and expenses, including compensation for provision of human resources at BurnRate's (and, if applicable, any affected sub-processors') then current professional services rates (collectively, “BurnRate Costs”) related to any destruction of Customer Data or Incidental Data that Customer requires BurnRate to perform that is outside the scope of BurnRate's customary destruction processes.
7.2. Security Program. BurnRate will implement and maintain, and will require its subcontractors to implement and maintain, commercially reasonable security measures designed to meet the following objectives: (i) ensure the security and confidentiality of Customer Data in the custody and under the control of BurnRate; (ii) protect against any anticipated threats or hazards to the security or integrity of such Customer Data; (iii) protect against unauthorized access to or use of such Customer Data; and (iv) ensure that BurnRate's return or disposal of such Customer Data is performed in a manner consistent with BurnRate's obligations under items (i)-(iv) above. Customer acknowledges and agrees that it is commercially reasonable for BurnRate to rely upon the security processes and measures utilized by BurnRate's cloud infrastructure providers.
7.3. Breach Notification. BurnRate will notify Customer of unauthorized access to, or unauthorized use, loss or disclosure of Customer Data within BurnRate's custody and control (a "Security Breach") within 72 hours of BurnRate's confirmation of the nature and extent of the same or when required by applicable law, whichever is earlier. Each party will reasonably cooperate with the other with respect to the investigation and resolution of any Security Breach. Upon confirmation of any vulnerability or breach of BurnRate's security affecting Customer Data in BurnRate's custody and control, BurnRate will modify its processes and security program as necessary to mitigate the effects of the vulnerability or breach upon such Customer Data. Insofar as the Security Breach relates to Customer, and except to the extent required otherwise by applicable law, Customer will have approval rights on notifying its Users and any third party regulatory authority of the Security Breach. Customer will notify BurnRate of any security compromise affecting its Users' authentication credentials used to access the BurnRate Platform, any Customer systems or networks that interoperate with or transmit data to the BurnRate Platform, including Customer Applications and any Customer Third Party Applications within 72 hours of confirmation of the same. All security breach or security compromise notifications will be via the BurnRate Platform dashboard or account center, and via email to the persons designated by Customer to receive notices in the BurnRate Platform dashboard or account center.
7.4. BurnRate's Processing of Customer Data. Unless otherwise specified in the applicable Sales Order, BurnRate may process Customer Data within the Microsoft Azure regions designated in the Sales Order, and at BurnRate's facilities in any member state of the European Union. Dashboard data and log data may be processed in the United States. BurnRate personnel may access Customer Data from any location for purposes of providing Support Services. BurnRate will not permit its personnel to access Customer Data unless they have passed a criminal and employment background check.
8.1. General. This Agreement will commence on the Effective Date and will continue in effect until terminated in accordance with Section 8.2 or 8.3 below.
8.2. Termination On Breach. In the event of a material breach of the Agreement by either party, the nonbreaching party may terminate the Agreement or any Sales Order affected by the breach by giving the breaching party written notice of the breach and the non-breaching party's intention to terminate. If the breach has not been cured within the period ending 30 days after such notice, and if the non-breaching party provides written notice of termination to the breaching party ("Termination Notice"), then this Agreement or any such Sales Order will terminate within the time period specified in the Termination Notice. Notwithstanding the foregoing, Customer's failure to pay any overdue fees and expenses within 30 days of BurnRate notifying Customer of the overdue payment will constitute a material breach of this Agreement. If Customer has not cured a material breach within the applicable cure period, then BurnRate may, on not less than 5 business days' prior written notice to Customer, in its sole discretion, and without prejudice to its other rights following material breach and failure to cure, until such breach has been cured in full, suspend performance of some or all of BurnRate's obligations to provide Services under this Agreement.
8.3. Termination for Convenience. The parties acknowledge and agree that each Subscription Term is priced as a minimum term, and may not be terminated for convenience. Customer may terminate any Professional Services for convenience at any time, upon not less than 30 days' prior notice to BurnRate. Either party may terminate a Free Trial at any time, for any reason, effective upon delivery of notice to that effect. Subject to the foregoing, BurnRate may not terminate any Services for convenience.
8.4. Subscription Term and Renewal.
8.4.1. Term. Each subscription term for Subscription Services will commence on the Subscription Start Date, and will continue for the period specified in the Sales Order or, if not so specified, one year (an "Initial Term"). Upon expiration of the Initial Term the parties may renew the Subscription Services term for successive periods of at least one year each (each, a "Renewal Term") at such rates as may be mutually agreed in writing between them. BurnRate will provide Subscriber with notice of its proposed fees for renewal at least two months prior to the expiration of the then-current term. The Initial Term and each Renewal Term are individually referred to in these Terms as the "Subscription Term".
8.4.2. Subscription to Upgraded or Additional Services. If Customer upgrades any of Customer's Subscription Service subscriptions during a Subscription Term, then the Subscription Term for the upgraded Subscription Service will be coterminous with the current Subscription Term and BurnRate will invoice Customer an amount equal to the difference between the original Subscription Service fee and the upgraded Subscription Service fee. If Customer subscribes to an additional Subscription Service, the Subscription Term for that Subscription Service will begin on the Subscription Start Date for that Subscription Service and Customer will be separately invoiced for the applicable activation and Subscription Service fee for the additional Subscription Service.
8.5. Refund of Prepaid Subscription Fees if Customer Terminates for Breach. If Customer terminates this Agreement or any Sales Order for breach in accordance with Section 8.2 above, then BurnRate will refund to Customer a pro-rata amount of any affected Subscription Services fees prepaid to BurnRate and applicable to the unutilized portion of the Subscription Term for terminated Subscription Services, and any affected unutilized Professional Services fees prepaid to BurnRate.
8.6. Fulfillment of Obligations on Termination. Except as otherwise specified in this Agreement or any Additional Terms of Service, termination of the Agreement or of any Services will not entitle Customer to any refund of or relief from payment of any Services fees paid or payable under this Agreement.
8.7. Post Termination Obligations. Following any termination of the Agreement or any Sales Order, each party will, within 30 days of such termination, (i) immediately cease use of any Confidential Information of the other communicated for the purposes of this Agreement or such Sales Order, and (ii) return or destroy (and certify destruction of) all copies of any Confidential Information of the other party disclosed under the Agreement or such Sales Order within 30 days of such termination, subject to Section 7.1.4 and each party's customary backup and archival processes.
8.8. Suspension. BurnRate may suspend Customer's or any User's right to access or use any portion of the Subscription Services, or to connect the BurnRate Platform to Customer Third Party Applications, if BurnRate determines that Customer's or Users' use of the Subscription Services, or Customer Third Party Applications, (i) pose a security risk to the Subscription Services or any third party, (ii) may adversely impact the Subscription Services, or the networks or data of any other BurnRate customer, business partner or service provider, (iii) do not comply with the AUP or applicable law, or (iv) may subject BurnRate or any third party to liability. BurnRate will endeavor to provide as much notice as is reasonably practicable in the circumstances, and to reinstate the Subscription Services as soon as reasonably practicable following correction of the issue.
8.9. Survival. The provisions of Sections 1, 3.3-3.4, 4.3-4.4, 4.6, 6, 7, 8.5-8.9, 9-11 and 14 of this Agreement will survive any termination or expiration of this Agreement.
9.1. BurnRate's Infringement Indemnification.
9.1.1. Defense and Indemnity. If any third party makes any claim against Customer that, if true, would constitute an BurnRate Infringement (defined in Section 5.1.4) then, upon notification of such claim, BurnRate will, at its sole cost and expense, defend Customer against such claim and any related proceeding brought by such third party against Customer, and indemnify Customer from and against all damages, fines and penalties finally awarded against Customer or agreed to be paid by Customer in a written settlement approved in writing by BurnRate, and resulting from the BurnRate Infringement. BurnRate's obligations under this Section 9.1.1 are subject to Customer's compliance with the "Indemnification Conditions" (defined below).
"Indemnification Conditions" means the following conditions with which a party must comply in order to be entitled to defense or indemnification under the Agreement by the other party: (i) the indemnified party notifies the indemnifying party in writing of any claim that might be the subject of indemnification promptly after any executive officer of the indemnified party or member of the indemnified party's legal department first knows of the claim, provided, however, that no failure to so notify an indemnifying party will relieve the indemnifying party of its obligations under this Agreement except to the extent that such failure materially prejudices defense of the claim, and except to the extent of damages incurred by the indemnifying party as a result of the delay; (ii) the indemnifying party is given primary control over the defense and settlement of the claim (subject to the foregoing, the indemnified party may nonetheless participate in the defense at its sole cost and expense); (iii) the indemnified party makes no admission of liability (except as required by applicable law) nor enters into any settlement without the indemnifying party's prior written agreement (not to be unreasonably withheld); (iv) the indemnified party provides such assistance in defense of the proceeding as the indemnifying party may reasonably request, at the indemnifying party's reasonable expense; (v) the indemnified party complies with any court order or reasonable settlement made in connection with the proceeding; and (vi) the indemnified party uses all commercially reasonable efforts to mitigate its losses.
9.1.2. BurnRate's Mitigation Rights. If any Subscription Services become (or in BurnRate's opinion are likely to become) the subject of any infringement or misappropriation claim, BurnRate may, and if Customer's use of the Subscription Services is enjoined, BurnRate must, at its sole expense, either: (i) procure for Customer the right to continue using the relevant Subscription Services; (ii) replace or modify the relevant Subscription Services in a functionally equivalent manner so that they no longer infringe; or (iii) terminate the applicable Sales Order or Customer's rights to use affected Subscription Services, and refund to Customer a pro-rata amount of any subscription fees prepaid to BurnRate and applicable to the unutilized portion of the Subscription Term for the terminated Subscription Services.
9.1.3. Exclusions. Notwithstanding the foregoing, BurnRate will have no obligation with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the Subscription Services not in accordance with their applicable license rights, (ii) the combination of the Subscription Services with other products, equipment, software, services or data not supplied by BurnRate where the infringement would not have occurred but for such combination, (iii) BurnRate's compliance with Customer's specifications, configuration requirements, or other instructions (except to the extent that BurnRate knew that such compliance would infringe a third party's Intellectual Property Rights), (iv) any use of any version of any BurnRate Platform or Supplemental Materials other than the most current version made available to Customer after notice from BurnRate that Customer must upgrade to such release to avoid an infringement or misappropriation claim and Customer has had a reasonable time in which to implement such upgrade, (v) any modification of the Subscription Services not made by BurnRate or its subcontractors, or at its or their express direction, or (vi) any Customer Materials.
9.2. Customer's Infringement Indemnification.
9.2.1. Defense and Indemnity. If any third party makes any claim against BurnRate that BurnRate's use of any Customer Materials infringes any third party patent existing under the laws of the United States, Canada, any member state of the European Economic Area, the United Kingdom, Australia, New Zealand, Singapore, Brazil, South Korea, India or Japan, or infringes or violates any third party copyright, trademark, service mark, privacy right or data protection right, or results from any misappropriation by Customer of such third party's trade secrets or privacy rights (collectively, a "Customer Infringement") then, upon notification of such claim, Customer will, at its sole cost and expense, defend BurnRate against such claim and any related proceeding brought by such third party against Customer, and Customer will indemnify BurnRate from and against all damages, fines and penalties finally awarded against BurnRate or agreed to be paid by BurnRate in a written settlement approved in writing by Customer, and resulting from the Customer Infringement. Customer's obligations under this Section 9.2.1 are subject to BurnRate's compliance with the Indemnification Conditions.
9.2.2. Mitigation Rights. If provision of Customer Materials is, or in Customer's reasonable opinion is likely to become, the subject of a claim of infringement or misappropriation of any intellectual property right of any third party, then Customer will have the right to: (i) procure the rights necessary for Customer to continue to provide Customer's Materials; (ii) replace or modify the Customer Materials in a functionally equivalent manner so that they no longer infringe; or, if the options described in (i) and (ii) above are not available to Customer on commercially reasonable terms, (iii) terminate BurnRate's rights to use the Customer Materials (in which case BurnRate's obligations to perform the Services will be reduced to the extent that BurnRate required the Customer Materials to perform, and any such termination will be treated as a termination for convenience by Customer).
9.2.3. Exclusions. Notwithstanding the foregoing, Customer will have no obligation under this Section 9.2 or otherwise with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the Customer Materials not in accordance with this Agreement and their applicable license rights notified by Customer to BurnRate, (ii) combination of the Customer Materials with other products, equipment, software, services or data not supplied by Customer where the infringement would not have occurred but for such combination, but excluding combination with any BurnRate Platform, (iii) Customer's compliance with BurnRate's specifications or instructions, (iv) any use of any version of any Customer Materials other than the most current version made available to BurnRate after notice from Customer that BurnRate must upgrade to such release to avoid an infringement or misappropriation claim and BurnRate has had a reasonable time in which to implement such upgrade, (v) any modification of the Customer Materials not made by Customer or at its express direction, or (vi) any data processed by the Customer Materials that Customer or its Users have not provided, made available, or required BurnRate to use or access.
9.3. Improper Use of BurnRate Platform. Customer will indemnify and hold BurnRate harmless from any claims, damages, losses, judgments, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or in connection with any non-compliance by Customer or its Users with the Acceptable Use Policy.
10.1. Exclusion of Certain Claims. SUBJECT TO SECTION 10.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING ANY DAMAGES FOR LOSS OF DATA, GOODWILL, REVENUE OR PROFITS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR ANY RELATED AGREEMENT, OR ANY SOFTWARE, PRODUCTS OR SERVICES PROVIDED HEREUNDER, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THIS AGREEMENT, ANY RELATED AGREEMENT OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.
10.2. Limitation of Liability. Subject to Section 10.3, neither party's maximum aggregate liability arising out of this Agreement or any related agreement will in any event exceed the fees paid to BurnRate under the Sales Order giving rise to the claim during the 12 month period immediately preceding the aggrieved party's first assertion of any claim against the other, regardless of whether any action or claim is based in contract, misrepresentation, warranty, indemnity, negligence, strict liability or other tort or otherwise.
10.3. Exceptions. Sections 10.1 and 10.2 do not apply to either party's (i) willful misconduct or gross negligence, (ii) infringement or misappropriation of any of the other's Intellectual Property Rights, or (iii) liability or loss which may not be limited by applicable law. Any amounts payable by an indemnified party to a third party pursuant to a judgment or to a settlement agreement approved in writing by an indemnifying party, liability for which falls within the indemnifying party's indemnification obligations under this Agreement, and all fees payable by Customer under this Agreement, will be deemed direct damages for purposes of this Section 10. Section 10.2 does not apply to (i) each party's defense and indemnification obligations, (ii) Customer's obligations to pay fees and expenses when due and payable under this Agreement, nor (iii) either party's obligations under Section 6 (Confidential Information) or Section 7 (Data Protection), provided, however, that except to the extent of willful misconduct or gross negligence of BurnRate, BurnRate's maximum aggregate liability under Section 7 will not exceed two times (2X) the fees paid by Customer to BurnRate under the affected Sales Order in the 12 month period immediately preceding Customer's first assertion of its claim.
10.4. Free Trial. With respect to any Free Trial, BurnRate's aggregate liability will in no event exceed one hundred US dollars, regardless of any theory of liability, and notwithstanding any provision of this Agreement to the contrary, including Sections 10.1-10.3.
10.5. General. Customer agrees that these exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of Customer or its Affiliates, or fail of their essential purpose and that without these limitations the fees for the Services would be significantly higher. Neither party may commence any action or proceeding under this Agreement more than two years after the occurrence of the applicable cause of action.
11.1. Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of Delaware and, where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each case without regard to (i) conflicts of laws principles, and (ii) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods.
11.2. Venue and Jurisdiction. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the parties will submit to the exclusive jurisdiction of and venue in the State courts of Delaware located in Wilmington, or the Federal District Court for the District of Delaware, and appeal courts therefrom. Each party hereby waives all defenses of lack of personal jurisdiction and forum nonconveniens. Process may be served on either party in the manner authorized by applicable law or court rule.
11.3. Legal Expenses. If any proceeding is brought by either party to enforce or interpret any term or provision of this Agreement, the substantially prevailing party in such proceeding will be entitled to recover, in addition to all other relief arising out of this Agreement, such party's reasonable attorneys' and other experts' (including without limitation accountants) fees and expenses.
The following additional terms and conditions ("Additional Terms of Service") apply to Customer's use of the Services, and are incorporated into this Agreement by this reference. The Additional Terms of Service are published at https://burnrate.io/legal:
• Support Program (does not apply to Free Trials)
• Service Levels (do not apply to Free Trials)
• Acceptable Use Policy
• Professional Services Terms (apply only if the Sales Order specifies that BurnRate is to provide Professional Services)
• Modification Policy (unless otherwise specified in the Sales Order)
13.1. Applicability. This section 13 only applies to Customers purchasing Services through a Channel Partner. If Customer is uncertain as to the applicability of this section to its purchase of Services, Customer should contact BurnRate for further information.
13.2. Channel Partners. If Customer acquired the Services from a Channel Partner, then this Agreement is not exclusive of any rights Customer obtains under the Channel Partner Sale Agreement; however, if there is any conflict between the provisions of this Agreement and the Channel Partner Sale Agreement, then the provisions of this Agreement prevail. If a Channel Partner has granted Customer any rights that BurnRate does not also directly grant to Customer in this Agreement, or that conflict with this Agreement, then Customer's sole recourse with respect to such rights is against the Channel Partner.
13.3. Term and Renewal. If Customer ordered the Services through a Channel Partner, then Section 8.4 is inapplicable, and the Subscription Term will begin on the Subscription Start Date and, subject to the remainder of Section 8, it will expire, renew and terminate in accordance with the terms of the Channel Partner Sale Agreement.
13.4. Fees and Payment. If Customer ordered the Services through a Channel Partner, then the provisions of Section 4.1-4.5 do not apply to Customer, and Customer's billing and payment rights and obligations are governed by the Channel Partner Sale Agreement. However, if the Channel Partner from whom Customer purchased the Services fails to pay BurnRate any amounts due in connection with Customer's use of the Services, then BurnRate may suspend Customer's rights to use the Services without liability, upon notice to Customer. Customer agrees that Customer's remedy in the event of such suspension is solely against the Channel Partner.
14.1. Affiliates. This Agreement set forth the general terms and conditions under which BurnRate will provide Services to Customer and its Affiliates. Sales Orders may be entered into under this Agreement by either the entity designated above as "Customer" or any of Customer's Affiliates. The entity that executes a Sales Order in the position of services recipient will be considered the "Customer" for all purposes of the Sales Order; and the Sales Order will be considered a two party agreement between BurnRate and such "Customer" under this Agreement.
14.2. Publicity; References. Unless otherwise specified in the applicable Sales Order, BurnRate may refer to Customer as one of BurnRate's customers and use Customer's logo as part of such reference, provided that BurnRate complies with any trademark usage requirements notified to it by Customer. With Customer's prior written approval, including if so specified in the applicable Sales Order, (i) BurnRate may either (a) issue a press release announcing the relationship between BurnRate and Customer, or (b) submit a joint press release to Customer for Customer's approval, such approval not to be unreasonably withheld or delayed; and (ii) Customer will be a reference account for BurnRate, provided, however, that BurnRate will provide Customer with reasonable notice and obtain Customer's consent before scheduling any reference calls or site visits.
14.3. Compliance With Laws. Each party will comply with all laws and regulations applicable to it, including U.S. export control laws. Neither party will have any liability to the other for any non-performance of their obligations under this Agreement to the extent that the non-performance is mandated by applicable law. Each party represents and warrants to the other that neither it nor its Affiliates, nor any of its or their users, officers or directors, are persons, entities or organizations with whom the other party is prohibited from dealing (including provision of software, products or services) by virtue of any applicable law, regulation, or executive order, including US export control laws, and names appearing on the U.S. Department of the Treasury's Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List. BurnRate may access, modify and disclose Customer Data as and when required by applicable law; BurnRate will provide notice to Customer of modification or disclosure of Customer Data as soon as reasonably practicable in the circumstances, unless prohibited by applicable law.
14.4. U.S. Government Rights In The Services. BurnRate provides the Services for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.72023 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with BurnRate to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
14.5. Equitable Relief. Each of Customer and BurnRate acknowledges that damages will be an inadequate remedy if the other violates the terms of this Agreement pertaining to protection of a party's Intellectual Property Rights, Confidential Information or Personal Information. Accordingly, each of them will have the right, in addition to any other rights each of them may have, to seek in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of the obligations in this Agreement.
14.6. Business Continuity / Disaster Recovery. During any period in which Customer is subscribed to the Subscription Services, BurnRate will comply with its then current applicable Business Continuity and Disaster Recovery Plans. BurnRate will test such plans at least once a year. BurnRate will provide Customer with summaries of such plans and test results upon written request. BurnRate may not modify such plans to provide materially less protection to Customer without Customer's prior written consent, which may not be unreasonably conditioned or withheld.
14.7. Force Majeure. If the performance of this Agreement is adversely restricted or if either party is unable to conform to any warranty or obligation by reason of any Force Majeure Event then, except with respect to obligations to pay any fees or expenses and to obligations under Section 14.6 above (Business Continuity / Disaster Recovery), the party affected, upon giving prompt written notice to the other party, will be excused from such performance on a day-to-day basis to the extent of such restriction (and the other party will likewise be excused from performance of its obligations on a day-to-day basis to the extent such party's obligations relate to the performance so restricted); provided, however, that the party so affected will use all commercially reasonable efforts to avoid or remove such causes of non-performance and both parties will proceed whenever such causes are removed or cease. "Force Majeure Event" means any failure or delay caused by or the result of causes beyond the reasonable control of a party or its service providers that could not have been avoided or corrected through the exercise of reasonable diligence, including acts of God, fire, flood, hurricane or other natural catastrophe, internet access or related problems beyond the demarcation point of the party's or its applicable infrastructure provider's facilities, denial of service attacks, state-sponsored malware or state-sponsored cyber-attacks, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, or other similar occurrence. If a party fails to perform its obligations as a result of such restriction for a period of more than 30 days, then the other party may terminate the affected Services without liability.
14.8. Service Enhancement Analysis. Unless otherwise specified in the applicable Sales Order, BurnRate may use Customer's and its Users' Subscription Services usage history and statistics (collectively, "Enhancement Data") for BurnRate's internal analytical purposes related to its provision of Services, including to improve and enhance the Subscription Services and the BurnRate Platform. BurnRate may make information derived from its analysis of Enhancement Data publicly available, provided that the publicized information does not include any Enhancement Data that has not been aggregated and anonymized. For the purposes of this Agreement, aggregated and anonymized Enhancement Data means Enhancement Data that (i) has been aggregated with other data, and (ii) does not contain information that identifies Customer or its Users. For the sake of clarity, aggregated and anonymized data is not Confidential Information of Customer.
14.9. Captions and Headings. The captions and headings are inserted in this Agreement for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of this Agreement.
14.10. Severability; Invalidity. If any provision of this Agreement is held to be invalid, such invalidity will not render invalid the remainder of this Agreement or the remainder of which such invalid provision is a part. If any provision of this Agreement is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable.
14.11. Waiver. No waiver of or with respect to any provision of this Agreement, nor consent by a party to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against such party unless it be in writing and signed by such party, and then such waiver will be effective only in the specific instance and for the purpose for which given.
14.12. Third Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party. Notwithstanding the foregoing, BurnRate's suppliers of products and services delivered hereunder will enjoy the same disclaimers of warranty, limitations on liability and similar exculpatory provisions with respect to such products and services as does BurnRate.
14.13. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, which will not be unreasonably withheld, provided, however that, subject to any restrictions specified in any applicable Sales Order, either party may assign all, but not some of its rights and obligations under this Agreement to any of its Affiliates, or to any entity into or with which it is merged, or that acquires all or substantially all of its assets, upon notice to the other party, but without requiring consent. Subject to the foregoing restriction on assignment, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
14.14. Notices. BurnRate will provide Customer with notices that affect BurnRate's customers generally (e.g., notices that relate to modifications or updates to, or the availability or interoperability of the BurnRate Platform) via e-mail or the BurnRate Platform dashboard or account center. BurnRate will provide Customer with any legal notices by pre-paid first class mail, air courier or e-mail to the mailing or e-mail address Customer provided BurnRate on the applicable Sales Order, or during Customer's registration for the Services, or to a substitute, updated mailing or e-mail address that Customer has provided to BurnRate for these purposes. Customer is responsible for keeping its mailing and e-mail address current with BurnRate. Except as otherwise specified in this Agreement, all notices to be given to BurnRate under this Agreement must be in writing and sent to BurnRate's USA headquarters by prepaid first class mail or air courier at the address specified on the first page of this Agreement (or, if none, at https://burnrate.io/), marked "Attention: Legal Department". Notices sent electronically will be deemed received within 1 business day of dispatch. Notices sent by prepaid first class mail will be deemed received within 5 business days of dispatch (however, notices sent by mail to addressees in a different country from that of the sender will be deemed received upon delivery). Notices sent by air courier, or personally delivered, will be deemed received upon delivery.
14.15. Entire Agreement; Amendments. This Agreement constitutes and embodies the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. This Agreement may not be modified or amended except by a written instrument executed by both parties (subject to, if applicable, modifications made in accordance with the BurnRate Modification Policy Additional Terms of Service referenced in Section 12 above). With the exception of the Additional Terms of Service, any additional, supplementary or conflicting terms supplied by either party (whether in hard copy or electronic form), including those contained on or within any invoice, purchase order, or standard terms of purchase, or any click through license agreement, are specifically and expressly rejected by each party. In the event of any conflict or overlap between the provisions of Section 6 and Section 7, the provisions of Section 7 will prevail. In the event of any conflict between the provisions of this Agreement and any Sales Order, the provisions of this Agreement will prevail.
14.16. Counterparts. Sales Orders, this Agreement, and any amendments to this Agreement may be executed in one or more counterparts, which taken together will constitute a single agreement between the parties.
