THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
BY USING THE SERVICES PROVIDED, YOU AFFIRM THAT YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS. YOU MAY NOT USE THE SERVICES IF YOU (A) DO NOT AGREE TO THESE TERMS OR (B) ARE PROHIBITED FROM ACCESSING OR USING THE SERVICES BY APPLICABLE LAW.
These Terms and Conditions (these “Terms”) form the agreement between BoreDM LLC (referred to herein as “BoreDM,” “we” or “us”) and the user (referred to herein as “Customer” or “you”). BoreDM and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
Acceptance.
1.1. We own, or otherwise hold rights to, the software-as-a-service offering known as BoreDM (the “Services”) and provide access to the Services to our customers.
1.2. You desire to access the Services from us, and we desire to provide you with access to the Services via a license, subject to the terms and conditions of these Terms.
1.3. These Terms set forth the terms upon which we agree to grant a license to you to use the Services. These Terms are binding upon any use of the Services and shall apply to you commencing as soon as we provide you an account to access and use the Services (the “Effective Date”).
1.4. By accessing and/or using the Services, you:
1.4.1. represent and warrant to us that you have fully reviewed these Terms, including our Privacy Policy, and that you understand and accept them.
1.4.2. represent and warrant to us that you possess the legal capacity to enter into the Terms with us, and that the Terms represent a legally binding agreement between you and us.
1.4.3. agree to use the Services only in accordance with these Terms.
1.5. By using the Services, you acknowledge and agree that you have fully read and understood these Terms, that you accept these Terms, and if you are using the Services for someone else or on behalf of a company, partnership, corporation, or other entity, you have the authority to act on its or their behalf. In such a case, you agree that in using the Services, you are deemed to have agreed to these Terms on behalf of any such entity or person.
Definitions. Unless defined otherwise herein, in these Terms:
“Authorized User” means your employees, consultants, contractors, and agents (i) who are authorized by you to access and use the BoreDM System under the rights granted pursuant to these Terms and (ii) for whom access to the BoreDM System has been purchased.
“BoreDM IP” means the BoreDM System, the Services Documentation, and any and all intellectual property provided to you or any Authorized User in connection with the Services. For the avoidance of doubt, BoreDM IP includes Aggregated Statistics and any information, data, or other content derived from our monitoring of your access to or use of the Services or Software, but does not include Customer Data.
“BoreDM System” means the Services and the Software.
“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of you or an Authorized User through the BoreDM System.
“Software” means tools or other software provided as part of the Services or we otherwise make available specifically for purposes of facilitating access to, operation of, or use with the Services, and any updates we may make available to such software from time to time. For the avoidance of doubt, Software does not include Third-Party Products.
“Statistics” or “Aggregated Statistics” means data and information generated from and related to your use of the Services including, without limitation, operational data or project data, including equipment details (such as types, manufacturers, and quantities of equipment used), and other related metrics. The Aggregated Statistics may be utilized by us to enhance, maintain, and improve the Services, including, but not limited to, keeping dropdown lists up to date with commonly used options, optimizing visualization and reporting tools for the most common use cases, and refining our offerings to better align with user requirements and usage trends. Aggregated Statistics will not personally identify you, reveal specific details of your project or project locations, or reveal any raw data.
“Third-Party Products” means any third-party products provided with or incorporated into the BoreDM System, including any open source software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD Licenses, or any other licenses that is approved by the Open Source Initiative.
Access and Use.
3.1. Provision of Access. Subject to and conditioned upon your payment of Fees and compliance with the terms and conditions herein, we grant you a non-exclusive, non-transferable (except in compliance with Section 18.7) and revocable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is expressly limited to your internal use. We shall provide to you the necessary passwords and credentials, network links, and connections to allow you to access the Services.
3.2. Software and SaaS Documentation License. Subject to the terms and conditions contained herein, we hereby grant to you a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 18.7) and revocable license during the Term to: (i) use Software, in object code format, solely for your internal use in connection with your use of the Services and (ii) use and make a reasonable number of copies of the SaaS Documentation solely for your internal business purposes in connection with your use of the Services during the Term. You agree that your use of Software and SaaS Documentation shall, at all times, be in compliance with any applicable end user license agreement or additional terms and conditions provided to you. In the event of any inconsistency between such additional terms and conditions and this Agreement, such additional terms and conditions will apply only with respect to the applicable Software and/or SaaS Documentation that such terms and conditions reference and not the Services provided under this Agreement.
3.3. Use Restrictions. You shall not use BoreDM IP for any purposes beyond the scope granted in these Terms. You shall not, at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the BoreDM IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make BoreDM IP available; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the BoreDM IP, in whole or in part; (iv) remove any proprietary notices from the BoreDM IP; or (v) use the BoreDM IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other right of any person, or that violates any applicable law.
Suspension. Notwithstanding anything to the contrary in these Terms, we may temporarily or permanently suspend your (and any Authorized User’s) access to all or any portion of the Services if: (i) we reasonably determine that (A) there is a threat or attack on any of the BoreDM IP; (B) your (or any Authorized User’s) use of BoreDM IP disrupts or provides a security risk to the BoreDM IP or to any of our other customers or vendors; (C) you, or any Authorized User, use the BoreDM IP for fraudulent or illegal activities; (D) subject to applicable law, you cease to continue business in the ordinary course, make an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) our provision of the Services to you or any Authorized User is prohibited by applicable law; (ii) any of our vendors has suspended or terminated our access to or use of any third-party services or products required to enable you to access the Services; or (iii) in accordance with Section 3.3 (any such suspension described in subclause (i), (ii) or (iii), a “Service Suspension”). We shall use commercially reasonable efforts to provide written notice of any Service Suspension to you and to provide updates regarding resumption of access to the Services following any Service Suspension. We shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. We will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you or any Authorized User may incur as a result of a Service Suspension.
Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, you agree that we may monitor your use of the Services and collect, compile, and distribute reports during and after the Term that contain Aggregated Statistics. As between us and you, all right, title, and interest in the Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us.
Your Responsibilities. You are responsible and liable for all uses of the BoreDM IP resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by you will be deemed a breach of these Terms by you. You shall use reasonable efforts to make all Authorized Users aware of these Terms, as applicable to such Authorized Users’ use of the BoreDM IP and shall cause Authorized Users to comply with such provisions.
Third-Party Products. We may, from time to time, make Third-Party Products available to you. For purposes of these Terms, such Third-Party Products are subject to their own terms and conditions. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you shall not install or use such Third-Party Products.
Support. These Terms do not entitle you to any support levels for the Services, and we do not guarantee any minimum support levels through your use of the Services. Any support for the Services, including without limitation any service levels, support hours, services provided by us to support the Services, and rights and obligations for any of the foregoing shall be either provided to you at our discretion and without any obligation on our part or shall otherwise be governed by any applicable service agreement, Service Level Agreement, or other agreement entered into between you and us (if applicable, your “Service Agreement”).
Fees and Payment. You agree to promptly pay us the fees set forth in your Service Agreement or as quoted in the Enterprise Software Licensing Proposal that BoreDM provided to you, subject to changes from time to time (”Fees”), without offset or deduction. You agree to make all payments in US dollars on or before the due date set forth in the Service Agreement; or, if there is no Service Agreement, then on either a monthly or yearly basis, as determined by you at the time of enrollment, which is subject to modification at a later date. If you fail to make any payment when due, without limiting our other rights and remedies: (i) we may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly, or, if lower, the highest rate permitted under applicable law; (ii) you shall reimburse us for all costs incurred in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) we may suspend your (and your Authorized Users’) access to any portion or all of the Services until such amounts are paid in full. In the event of any conflict between the terms of this Section 9 and the terms of your Service Agreement, the terms of your Service Agreement shall govern.
Taxes. All Fees and other amounts payable by you under these Terms are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information that does not include Customer Data, which is governed by other provisions of these Terms, whether orally or in written, electronic, or other form or media, whether or not marked designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure, is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of these Terms or your Service Agreement, the termination of which will also result in the termination of the Service Agreement or Terms, respectively, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to the Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party (or, if less, for the survival period set forth in your Service Agreement); provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms and your Service Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership; Feedback.
12.1. BoreDM IP. You acknowledge that, as between you and us, we own all right, title, and interest, including all intellectual property rights, in and to the BoreDM IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
12.2. Customer Data. We acknowledge that, as between you and us, you own all right, title, and interest, including all intellectual property rights, in and to the Customer Data. You hereby grant to us a non-exclusive, royalty-free and worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for us to provide the Services to you or as set forth herein. BoreDM shall have the right to share the Customer Data that you have elected to make public.
12.3. Sharing of Select Logs in Connection with Using Data Structuring Tools. BoreDM is offering an opt-in tool to extract data from PDFs and plain text and structure it so that it is consistent with BoreDM’s database format (“Data Structuring Tools”). This service is powered by YMTM Inc. dba Structify (“Structify”). As a condition to using the Data Structuring Tools, you agree that certain Customer Data that you input in connection with the Data Structuring Tools may be submitted to or received by Structify (hereafter, the “Submitted Logs”). Structify shall not have access to any information or data other than from what you submit to Structify by uploading Submitted Logs to the Data Structuring Tools. Structify will then have the right to use your Submitted Logs to train, bolster, and or/debug Structify’s model, which extracts data from unstructured PDFs and plain text (Structify’s model is not being trained to make subsurface predictions or gain intelligence about soil/rock). Structify has agreed to not copy, duplicate, reproduce or replicate any Submitted Logs, if any, that it receives from you, except for the purpose of generating “Labeled Data,” meaning data that has been assigned a specific label, or labels, by a human. Structify has agreed to destroy the Submitted Logs, if any, that it receives within one (1) week of a request; provided, however, Structify shall have the right to keep all Labeled Data for the limited purposes of training, bolstering, and or/debugging Structify’s model, which extracts data from unstructured PDFs. Should there be any dispute regarding Structify and its services, you agree to seek recourse through Structify only and hold BoreDM harmless from any of Structify’s acts or actions.
12.4 Feedback. If you or any of your employees, contractors, or Authorized Users transmits any materials or communications to use by mail, email, telephone, or otherwise, suggesting or recommending changes to the BoreDM IP, including without limitation new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, the “Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. You hereby assign to us, and on behalf of your employees, contractors and/or agents, all right, title, and interest in, and we are free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
13. Limited Warranty and Warranty Disclaimer. Except for any warranties contained in your Service Agreement, these Terms contain no warranty, and we strictly disclaim any and all warranties not contained in your Service Agreement and all warranties with respect to any Third-Party Products. For the avoidance of doubt, you acknowledge that the Services include certain geotechnical calculations and quality checks with regard to geotechnical and other subsurface data, and that we disclaim any and all warranties in connection therewith, including without limitation the accuracy of such information or predictability in connection with any use of such information. You acknowledge and agree that you are fully responsible for confirming the accuracy of any calculations and quality checks, and that you are fully responsible for any use of such data. EXCEPT AS MAY BE SET FORTH IN YOUR SERVICE AGREEMENT, WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE MAKE NO WARRANTY OF ANY KIND THAT THE BOREDM IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
14. Indemnification.
14.1. Our Indemnification. We have the right, but not an obligation, to indemnify, defend, and hold you harmless from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by you resulting from any third-party claim, suit, action, or proceeding (each a “Third-Party Claim”) that alleges that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third party’s US intellectual property rights. You shall notify us in writing of any Third-Party Claim within ten (10) days of you learning of any potential Third-Party Claim. Should we indemnify or defend you in connection with any Third-Party Claim, you shall cooperate with us and allow us sole authority to control the defense and settlement of such Third-Party Claim. If a Third-Party Claim is made or appears possible, you agree to permit us, at our sole discretion, to (i) modify or replace the BoreDM System, or component or part thereof, to make it non-infringing, or (ii) obtain the right for you to continue use. If we determine that neither alternative is reasonably available, we may terminate your Service Agreement and use of the Services in their entirety without respect to the affected component or part, effective immediately upon written notice to you. Our indemnification will not apply to the extent that the alleged infringement arises from: (A) use of the BoreDM System in combination with data, software, hardware, equipment or technology not provided by us or authorized by us in writing; (B) modifications to the BoreDM System not made by us; (C) Customer Data; or (D) Third-Party Products.
14.2. Your Indemnification. You shall indemnify, hold harmless, and at our option, defend us from and against any and all Losses resulting from any Third-Party Claim that the Customer Data, or any use of the customer Data in accordance with these Terms, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on your or any Authorized User’s (i) use of any geotechnical calculations or quality checks, including without limitation in construction projects; (ii) negligence or willful misconduct; (iii) use of the BoreDM IP in a manner not authorized by these Terms; (iv) use of the BoreDM IP in combination with data, software, hardware, equipment, or technology not provided by us or authorized by us in writing; or (v) modifications to the BoreDM IP not made by us, provided that you may not settle any Third-Party Claim against us unless we consent to such settlement, and further provided that we will have the right, at our option, to defend ourselves against any such Third-Party Claim or to participate in the defense thereof by counsel of our own choice.
14.3. Sole Remedy. THIS SECTION 14 SETS FORTH YOUR SOLE REMEDY AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS IN RELATION TO YOUR USE OF THE SERVICES. IN NO EVENT WILL OUR LIABILITY UNDER THIS SECTION 14.3 EXCEED THE FEES PAID BY YOU IN THE NINE (9) MONTHS PRECEDING SUCH CLAIM.
15. Limitation of Liability. IN NO EVENT WILL WE BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. FURTHERMORE, IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGE TO PROPERTY IN CONNECTION WITH YOUR USE OF THE CALCULATIONS, QUALITY CHECKS, AND OTHER INFORMATION CONTAINED IN THE SERVICES. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL FEES PAID BY YOU IN THE 9-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
16. Term. These Terms begin on the Effective Date and, unless terminated earlier in accordance with these Terms and/or your Service Agreement, will continue in effect until one (1) year from such date (the “Initial Term”). This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to these Terms and/or your Service Agreement’s express provisions, including without limitation written notice of non-renewal of your Service Agreement in accordance with its terms (each a “Renewal Term” and together with the Initial Term, the “Term”).
17. Termination. In addition to any express termination rights set forth in these Terms or your Service Agreement:
17.1. We may terminate these Terms, effective on written notice to you, if you: (i) fail to pay any Fees when due; or (B) breach any of your obligations under these Terms or your Service Agreement.
17.2. Either Party may terminate these Terms and your Service Agreement, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
17.3. Either Party may terminate these Terms and your Service Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
17.4. Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, you shall immediately discontinue use of the BoreDM IP and, without limiting your obligations hereunder, you shall cease using and delete, destroy, or return all copies of the BoreDM IP and certify in writing to us within ten (10) days after the expiration or an earlier termination of these Terms that the BoreDM IP has been deleted or destroyed. No expiration or termination will affect your obligation to pay all Fees through the date of the expiration or termination of these Terms. The expiration or termination of these Terms shall not entitle you to any refund.
17.5. Survival. All terms herein which expressly contemplate surviving termination or expiration of these Terms, including but not limited to Sections 3, 5, 11, 12, 14, and 15, shall survive indefinitely or as set forth therein. No other provisions of these Terms survive the expiration or earlier termination of these Terms.
18. Miscellaneous.
18.1. Entire Agreement. These Terms, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. Except as otherwise set forth in Section 3.2, in the event of any inconsistency between the statements made in the body of these Terms and any other document incorporated herein by reference, the following order of precedence governs: (i) first, your Service Agreement, including any of its exhibits; (ii) second, these Terms as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
18.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses designated by each respective Party from time to time in accordance with these Terms. All Notices must be delivered by personal delivery, nationally recognized or overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). The email address for you shall be considered the email address associated with either the formation of your account or the billing associated with your account. Notice to you shall be considered effective on the day on which the Notice is sent, if sent by e-mail, or the earlier of actual delivery or three business days after being sent by U.S. Mail. Notice to us is effective upon actual receipt by us.
18.3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payment of Fees), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including without limitation acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
18.4. Amendment and Modification; Waiver. No amendment or modification to these Terms is effective unless it is in writing and signed by an authorized representative of each Party. An amendment or modification to these Terms will be considered effective if presented as an update to the Terms and you accept the amendment or modification. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
18.5. Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms as between them so as to render the transactions contemplated hereby to be consummated as originally contemplated to the greatest extent possible.
18.6. Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Arizona, United States without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona, in each case located in the city of Phoenix and the County of Maricopa, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. You agree to not seek to have any potential dispute against BoreDM brought, heard, litigated, or certified as a class action. You agree that you shall not: (1) bring a class action proceeding against BoreDM, (2) join any class action proceeding against BoreDM, or (3) seek to join, consolidate, or have heard together any potential claims that you have or may have against that BoreDM with anyone else.
18.7. Assignment. You shall not assign any of your rights or delegate any of your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without our prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of these Terms will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms are binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
18.8. Export Regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval) that prohibit or restrict the export or re-export of the BoreDM IP or any Customer Data outside the United States.
18.9. US Government Rights. Each of the SaaS Documentation, the Software, and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you only receive those rights with respect to the Services, Software, and SaaS Documentation as are granted to all other end users, in accordance with (A) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (B) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
18.10. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations with respect to Confidential Information, or in your case, with respect to Section 3 of these Terms, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.