Terms of Service

Posted: April 6, 2015

These Subscription Terms of Service (this “Agreement”) is entered into by and between BackOps, Inc., a Delaware corporation located at 33 New Montgomery Street, Suite 220, San Francisco, CA 94104 (d/b/a The Scalus Company) (“Scalus”) and the entity or person placing an order or accessing the Service (as defined below) (“Customer”).  The “Effective Date” of this Agreement is the date of Customer’s initial access to the Service(s) through any online provisioning, registration or order process or (b) the effective date of the first Order Form (if any) referencing this Agreement.

This Agreement permits the parties, should they so choose, to enter into Order Forms referencing this Agreement (which may, but is not required to, consist of an online registration or Order Form) (each, an “Order Form”) for Customer’s purchase of a subscription to services from Scalus, and this Agreement sets forth the terms and conditions under which those services will be delivered.  For clarity, if you receive free, trial or evaluation access to the Service(s), you are deemed a “Customer” under this Agreement except you are subject to the restrictions and limitations in Section 3 (Trial Subscriptions) below.  This Agreement governs Customer’s initial purchase as well as any future purchases made by Customer.  This Agreement includes any Exhibits, referenced policies and attachments and any and all Order Forms entered into by the parties.

From time to time, Scalus may modify this Agreement.  Unless otherwise specified by Scalus, changes become effective for existing subscription Customers upon renewal of the then-current Subscription Term (for example, if Customer is on a monthly Subscription Term, then the modified Agreement applies starting from the beginning of the next month after the modified Agreement is posted).  Scalus will use reasonable efforts to notify Customer of the changes through communications through the Scalus application, email or other means.  Customer may be required to click to accept the modified Agreement before using the Service(s) in a renewal Subscription Term, and in any event, continued use of the Service(s) during the renewal Subscription Term will constitute Customer’s acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.

Each party expressly agrees that this Agreement is legally binding upon it.

1. Definitions.   

1.1 “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means ownership of at least fifty percent (50%) of the outstanding voting securities or the ability to control the operations of the entity in question (but only as long as such person or entity meets these requirements).

1.2 “Agreement” means, collectively, the terms set forth below, and the attached exhibits hereto, as well as any SOW and Order Form agreed to by the parties, each of which are incorporated herein by this reference.

1.3 “Customer Data” means any Customer-specific data, materials, or content provided or submitted to or through the Hosted Service, or otherwise provided to Scalus and/or Scalus’ third party suppliers (including but not limited to the credit card processor and/or data hosting provider).

1.4 “Confidential Information” means this Agreement, the Scalus Technology, Scalus pricing information, and any other information disclosed by one party (“Discloser”) to the other (“Recipient”) hereunder.

1.5 “Documentation” means the online help Scalus provides for use with the Hosted Services.    

1.6 “Electronic Communications” means any transfer, transmission, and/or receipt of text, images, data, or other information of any nature to, from, or through the Service(s).

1.7 “Hosted Service” means the SaaS-based service provided by Scalus, which is either automatically provisioned, or provided pursuant to an Order Form.

1.8 “Intellectual Property Rights” means patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights.

1.9 “Order Form” means a document (which may be an online document) that details the Service(s) to be provided by Scalus, the associated fees, and other related details.  Each Order Form is intended to define a separate contract particular to that order, incorporating by reference this Agreement.  An Order Form may also contain other terms or conditions, mutually agreed upon by Scalus and Customer, which apply specifically to that particular order/contract.  Customer agrees that each Order Form will be signed (or electronically approved) by a representative having the authority to bind Customer, and that Scalus may presume that such representative has such authority.  A binding order is created when Scalus accepts the Order Form that is electronically approved (and/or signed, if applicable) by Customer.  For the avoidance of doubt, an Order Form is not required.

1.10 “Professional Services” means any implementation, configuration, training, consulting, or other similar services to be provided by Scalus to Customer pursuant to an SOW  (as defined below)and/or Order Form.

1.11 “Service(s)” means the Hosted Service, the Professional Services, or both, as the context specifies.

1.12 “Service Term” means the Scalus-specified period during which the Hosted Service will be made available.

1.13 “Scalus Technology” means Scalus’ proprietary software and other technology provided via the Service(s), including any enhancements, modifications, and derivative works to any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto.  

1.14 “Statement of Work”/“SOW” means a document that describes the Professional Services, if any, to be provided by Scalus, and other related terms and conditions.  Upon the parties’ execution of the SOW (or Order Form governing such SOW), such SOW will be incorporated herein by this reference.  

1.15 “Support Services” means Scalus’ standard maintenance and support services, as further described in Section 2.1.

1.16 “User” means Customer employees, contractors, or agents whom Customer authorizes to use the Hosted Service in connection with their performance of services for Customer.

2. Provision of Service and Scalus Technology.

2.1 Provision of Hosted Service; Access Right.  Subject to the terms and conditions of this Agreement, during the applicable Service Term, Scalus will provide Customer with the Hosted Service.  Scalus will host the Hosted Service (either directly or through a third party hosting services provider) and may update the content, functionality, and user interface of the Hosted Service from time to time, with or without notice.  Unless otherwise specified in the applicable Order Form, the Hosted Services are purchased on a subscription basis.  Customer has a non-exclusive, non-sublicenseable, nontransferable right to access and use the Hosted Service and display the Scalus Technology during the applicable Service Term, solely for Customer’s internal business purposes in connection with the use case(s) (if any) set forth in the Order Form.  Scalus reserves all rights not expressly granted hereunder.  Scalus may create and maintain administrative, support, system, and maintenance accounts within the Hosted Service, all with Customer Data access for Scalus and its assigned operators and/or other service providers, in order to deliver the Hosted Service.  Customer acknowledges that in order to use the Service(s), Customer understands that: (a) Customer must independently have or must independently obtain Internet access, either directly or through devices that access Web-based content, as well as browser software that supports protocols used by Scalus; (b) Customer must follow logon procedures for the services that support such protocols; and (c) Scalus assumes no responsibility for the foregoing.  Additional details regarding Scalus’ Support Services are set forth at Scalus’ Knowledge Base web page, located at http://help.scalus.com/support/home; alternatively, support may be requested at support@scalus.com.   

2.2 Access and License Restrictions.  Customer will not (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Service(s) or Scalus Technology; (ii) modify or create derivative works based on the Service(s) or Scalus Technology; (iii) create Internet “links” to the Hosted Services or “frame” or “mirror” any content provided in connection therewith; or (iv) reverse engineer or access the Service(s) or Scalus Technology in order to build a product using features, functions or graphics similar to the Hosted Service or Scalus Technology; (v) copy any features, functions or graphics of the Hosted Services or Scalus Technology; (vi) allow User subscriptions to be shared or used by more than one individual User (except that User subscriptions may be reassigned to new Users replacing individuals who have terminated employment or otherwise changed job status or function and no longer need to use the Hosted Service for the purposes described in Section 2.1);  (vii) use the Service(s) to: (a) send unsolicited or unlawful messages; (b) send or store infringing, obscene, threatening, harmful, libelous, or otherwise unlawful material, including material harmful to children or violative of privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (d) interfere with or disrupt the integrity or performance of the Service(s) or the data contained therein; or (e) attempt to gain unauthorized access to the Hosted Service or its related systems or networks; or (viii) provide or disclose to, or permit use of the Hosted Service or Scalus Technology by, persons other than Users.  Without limiting Scalus’ rights and remedies hereunder, Customer’s (or any User’s) failure to comply with the following restrictions may result in suspension of the Service(s) and/or termination of this Agreement, without further obligation to Customer.

2.3 Security/Data Integrity.  Scalus will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data.  Scalus will not: (a) disclose Customer Data except as compelled by law or as Customer expressly permits in writing, or (b) access Customer Data except to provide the Service(s) or prevent or address service or technical problems, or at Customer’s request in connection with support matters.  Customer acknowledges that it is not feasible for Scalus to accommodate conflicting data security requirements from multiple Scalus Customers; accordingly, Scalus will use good faith efforts to accommodate Customer’s request as and where feasible; however, failure to accommodate Customer’s request will not be deemed a breach of this Agreement.    

2.4 Professional Services.  Scalus will provide such resources and utilize such Scalus employees and/or consultants, using the methods and means, all as Scalus deems necessary to perform Professional Services.  Customer will provide Scalus any Customer materials needed for Scalus to perform the Professional Services, and hereby grants Scalus a royalty-free, non-exclusive, worldwide license to use the same to enable Scalus to perform the Professional Services.  Scalus will use commercially reasonable efforts to meet the schedules set forth in the SOW.  Customer will cooperate in good faith to allow Scalus to complete the Professional Services in a timely manner.  If achieving a milestone depends on Customer’s (or its agent’s) performance of tasks, the projected dates for accomplishing such milestones will be adjusted to reflect any necessary changes.  Scalus is not providing to Customer any Scalus Technology pursuant to this section; such Scalus Technology (and the associated hosted Service) is being provided, if at all, pursuant to the terms of Sections 2.1, 2.2, and 2.4.

2.5 Trial Subscriptions.  If Customer receives free access or a trial or evaluation subscription to the Hosted Service (a “Trial Subscription”), Customer may use the Hosted Service in accordance with the terms and conditions of this Agreement (including Section 2.2) for the period designated in the Order Form or otherwise by Scalus (and if not designated, then for thirty (30) days) (“Trial Period”).  Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a full subscription to the Service(s).  Customer may not use a Trial Subscription for any other purposes, including for competitive analysis.  At the end of the Trial Period, the Trial Subscription will expire, all Customer Data will be permanently deleted, unless Customer purchases a paid subscription to the Hosted Service (provided that the paid subscription is for the same Scalus product).  If Customer purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Hosted Service.  Each party has the right to terminate a Trial Subscription at any time.  NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SCALUS WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS (WHICH ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”).  

3. Customer Responsibilities.  

3.1 Compliance with Laws.  Customer will abide by all applicable laws, treaties and regulations regarding use of the Service(s).

3.2 Users.  Customer will be responsible and liable for the acts and omissions of all Users in connection with this Agreement, as well as any and all access to and use of the Service(s) by any User or any other person logging in under a User ID registered under Customer’s account or providing and/or receiving Customer Data or other information through the Service(s). Customer acknowledges that Customer’s access information, including User IDs and passwords of its Users, will be Customer’s “key” to the Hosted Service; accordingly, Customer will be responsible for maintaining the confidentiality of such access information. Customer will: (i) notify Scalus promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Scalus promptly and use reasonable efforts to stop immediately any copying or distribution of Scalus Technology that is known or suspected by Customer or Customer’s Users; and (iii) not impersonate another Scalus user or provide false identity information to gain access to or use the Hosted Service.  Scalus will not be responsible for any unauthorized use until Customer notifies Scalus of the same, in writing.

3.3 Customer Data.  Customer understands, acknowledges, represents, warrants and covenants that:

(a) Customer Data has been obtained lawfully, and does not and will not violate any applicable laws or a third party’s proprietary or intellectual property rights;

(b) Customer Data is free of all viruses, Trojan horses, and other elements which could interrupt or harm the systems or software used by Scalus and/or any third party;

(c) Customer Data has and will be collected by Customer in accordance with a privacy policy that permits Customer to share, collect, use and disclose such data as contemplated under this Agreement, and if required by applicable law, pursuant to consents obtained by Customer to do each of the foregoing;

(d) Scalus and/or Scalus’ third party suppliers (including the credit card processor and/or data hosting provider) may exercise the rights to Customer Data granted under this Agreement without liability or cost to any third party; and

(e) Scalus and/or Scalus’ third party suppliers (including the credit card processor and/or data hosting provider) take no responsibility and assume no liability for any Customer Data, and Contractor will be solely responsible for such data and the consequences of sharing it as described or contemplated above.

(f) Scalus and/or Scalus’ third party suppliers (including the credit card processor and/or data hosting provider) reserve the right, but not the obligation, to monitor and review the Customer Data and any and all Contractor agreements to ensure compliance with the foregoing.

3.4 License to Scalus to Host Customer Data.  Customer grants Scalus and its Affiliates a worldwide, limited- term license to host, copy, transmit and display Customer Data, as necessary for Scalus to provide the Service(s) in accordance with this Agreement.  Subject to the limited licenses granted herein, Scalus acquires no right, title, or interest from Customer or Customer’s licensors under this Agreement in or to the Customer Data.

4. Intellectual Property Ownership.  As between Scalus and Customer, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Customer Data.  As between Scalus and Customer, Scalus (or its licensors and suppliers) owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Service(s) and the Scalus Technology.  The foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning.  No jointly owned intellectual property is created under or in connection with this Agreement.  Customer acknowledges that the Scalus name, the Scalus logo, and the product names associated with the Service(s) are trademarks of Scalus or third parties, and no license to such marks is granted herein.  

5. Billing and Payment.  

5.1 Fees; Payment.  Customer will pay all fees or charges to Customer’s account. To the extent any portion of the Service(s) is made available for a fee, Customer will be required to select a payment plan and provide Scalus (or its third party credit card processing service provider) accurate information regarding Customer’s credit card or other payment instrument. Customer agrees to pay Scalus the amount that is specified in the applicable payment plan in accordance with the terms of this Agreement.  If Customer provides credit card information to Scalus, Customer authorizes Scalus to charge such credit card for all Services for the applicable Service Term.  Such charges may be made in advance, either monthly, annually, or in accordance with any billing frequency agreed to by Scalus.  If Scalus agrees that payment will be by a method other than a credit card, Scalus will invoice Customer in advance, and unless otherwise agreed to by Scalus in writing, invoiced charges are due net thirty (30) days from the invoice date.  If Customer disputes any charges, Customer must notify Scalus within thirty (30) days following the date on which the charge was processed (or otherwise, within sixty (60) days after the date on which Scalus invoices Customer, if applicable). All amounts paid are non-refundable.  Scalus reserves the right to change Scalus’ prices from time to time.  If Scalus changes prices, Scalus will provide notice of the change in email to Customer at least 30 days before the change is to take effect.  Customer’s continued use of the applicable Service after the price change goes into effect constitutes Customer’s agreement to pay the changed amount.   Customer is responsible for providing complete and accurate billing and contact information to Scalus, and notifying Scalus of any changes to such information.

5.2 Taxes.  All fees are exclusive of all taxes, levies, or duties, and Customer will be responsible for payment of all such taxes, levies, or duties, excluding United States (federal or state) taxes based solely on Scalus’ income.  Customer will pay all fees to free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of fees will be Customer’s responsibility, and Customer will provide receipts issued by the appropriate taxing authority to establish that such taxes have been paid.  

5.3 Effect of Nonpayment.  Without limiting Scalus’ other rights and remedies, this Agreement and the Service(s) may be suspended or terminated if Customer’s account under this Agreement (or other agreement between Scalus and Customer) falls into arrears. In such event, Scalus may, without limiting Scalus’ other rights and remedies, also accelerate Customer’s unpaid fee obligations under this Agreement (or such other agreements) so that all such obligations will become immediately due and payable.  Unpaid amounts are subject to interest at the lesser of 1.5% per month or the maximum permitted by law plus all collection costs. Customer will continue to be charged for Services during any suspension.

5.4 Excess Usage.  Scalus may monitor Customer’s use of the Service(s) to determine whether Customer’s usage exceeds the purchased quantity(ies).  Customer will pay for any such excess usage at rates consistent with Scalus’ then-current pricing (unless otherwise agreed by the parties).  In addition, Customer may increase its purchased quantity(ies) during a Service Term at Scalus’ then-current pricing (unless otherwise agreed by the parties), as documented in a mutually agreed Order Form or amended Order Form.  All invoices for excess usage or additional quantities purchased will be payable pursuant to Section 5.1 (Fees; Payment).  Customer may not reduce committed quantities during a Service Term.  

6. Term; Termination.

6.1 Term; Termination.  This Agreement begins on the Effective Date and, unless earlier terminated as set forth below, will continue on a monthly (or annual) basis, as mutually agreed.  With regard to each recurring Service, if this Agreement has not terminated early, at least thirty (30) days prior to the expiration of a Service Term, Customer will, subject to this section, either: (a) renew the Service Term for a renewal Service Term equal in duration to the then-current Service Term, at Scalus’ then-current fees or such other fees as the parties may mutually agree (provided that Scalus continues to make the applicable Service modules available); or (b) allow the Service Term to expire.   If Customer fails to elect either (a) or (b), then (a) will apply.  Either party may terminate this Agreement (or any SOW or Order Form) upon the other party’s material breach that remains uncured for thirty (30) days following notice of such breach, except that in the event of a breach of Section 2.2 or 11, the cure period is five (5) days.  Without limiting the generality of the foregoing, either party may terminate this Agreement and the applicable services for convenience upon written notice to the other party, provided, however, that Customer may not terminate for convenience if Customer owes any amounts to Scalus.  If either party terminates for convenience, Customer will have the right to use the subscribed service through the balance of the Service Term.   Should Customer terminate for convenience, Customer acknowledges that Scalus may retain any and all prepaid fees.  Scalus reserves the right to modify, or discontinue offering, any Service module effective as of the conclusion of Customer’s then-current Service Term.

6.2 Treatment of Customer Data Following Expiration or Termination.  Following termination of Customer’s account and/or use of the Service(s), Scalus may immediately deactivate Customer’s account.  Following a reasonable period (not more than thirty (30) days), Scalus will be entitled to delete Customer’s account from Scalus’ “live” site. During this period and upon Customer’s request, Scalus will grant Customer limited access to the Hosted Service to retrieve Customer Data.  Scalus will not be liable to Customer nor to any third party for any termination of access to the Hosted Service or deletion of Customer Data, provided that Scalus is in compliance with the terms of this section.

6.3 Effect of Termination; Survival.  Upon expiration or termination of this Agreement: (a) any amounts (including expenses) owed to Scalus for ordered Services, as well as fees applicable to the duration of the terminated subscription, and other unpaid amounts, will be immediately due and payable; (b) all subscriptions granted under this Agreement and Scalus’ obligation to provide (and Customer’s right to access and use) the Service(s) and Scalus Technology, will terminate; (c) Customer Data will be returned or deleted pursuant to Section 6.2; and (d) Sections 1, 2.2, 3, 4, 5, 6.2, 6.3, and 7 through 11 will survive.  

7. Representations and Warranties.

7.1 By Scalus.  Scalus warrants that the Service(s), when used in accordance with the instructions in the Documentation and this Agreement, does not and will not infringe or misappropriate any third party’s Intellectual Property Rights.  As Scalus’ sole and exclusive obligation and Customer’s sole and exclusive remedy for breach of the foregoing warranty, Scalus will indemnify Customer as set forth in Section 8.

7.2 By Customer.  Customer warrants that the Customer Data are accurate and complete, and do not and will not violate the terms or conditions of this Agreement, applicable law, or infringe or misappropriate any third party’s Intellectual Property Rights.  As Customer’s sole and exclusive obligation and Scalus’ sole and exclusive remedy for breach of the foregoing warranty, Customer will indemnify Scalus as set forth in Section 8.  

7.3 WARRANTY DISCLAIMERS.  EXCEPT AS WARRANTED HEREIN, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE DISCLAIMED.  SCALUS’ SERVICES MAY BE SUBJECT TO, AND SCALUS IS NOT RESPONSIBLE FOR, LIMITATIONS, RISKS, AND OTHER PROBLEMS INHERENT IN ELECTRONIC COMMUNICATIONS, AND SCALUS DOES NOT WARRANT THAT USE OF THE SERVICE(S) IS RISK-FREE.  SCALUS DOES NOT PROVIDE REPRESENTATIONS, WARRANTIES, OR ASSURANCES AGAINST INTERCEPTION OR ACCESS.  SCALUS IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED ACTS RESULTING IN LOSS OF OR DAMAGE TO CUSTOMER DATA OR OTHER PROPERTY IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE(S).  CUSTOMER ACKNOWLEDGES AND AGREES THAT PURCHASES HEREUNDER ARE NEITHER CONTINGENT NOR DEPENDENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR STATEMENTS RELATING THERETO.  SCALUS MAY, IN PERFORMING ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, BE DEPENDENT UPON OR USE DATA, MATERIAL, AND OTHER INFORMATION FURNISHED BY CUSTOMER WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION THEREOF, AND SCALUS MAY ASSUME THAT SUCH INFORMATION IS ACCURATE, COMPLETE, AND LEGALLY SUFFICIENT.  IN PERFORMING THE SERVICE(S), SCALUS MAY BE MAKING RECOMMENDATIONS AND PROVIDING ADVICE, BUT ALL DECISIONS AS TO IMPLEMENTING SUCH ADVICE AND RECOMMENDATIONS WILL BE MADE BY AND WILL BE THE SOLE RESPONSIBILITY OF CUSTOMER; SCALUS WILL NOT BE LIABLE TO CUSTOMER FOR ANY RESULT OBTAINED OR NOT OBTAINED AS A CONSEQUENCE OF CUSTOMER’S IMPLEMENTATION OF SUCH ADVICE OR RECOMMENDATIONS.

8. Indemnification.  

8.1 By Scalus.  Scalus will defend Customer from and against any and all third party lawsuits to the extent: (a) alleging that the Hosted Service infringes or misappropriates any Intellectual Property Rights; (b) arising out of or relating to a breach of this Agreement by Scalus, and will indemnify and hold Customer harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim.  Scalus will have no obligation for infringement or misappropriation claims to the extent arising from: (i) Customer’s or any User’s use of the Service(s) other than as permitted under this Agreement; (ii) the combination of the Service(s) with any Customer Data or any Customer or third party products, services, hardware, data, content, or business process(s); or (iii) from the modification of the Service(s) or any Scalus Technology by any party other than Scalus or Scalus’ agents.  THE FOREGOING IS SCALUS’ SOLE AND EXCLUSIVE OBLIGATION FOR THE THIRD PARTY CLAIMS DESCRIBED IN THIS SECTION.

8.2 By Customer.  Customer will defend Scalus from and against any and all third party lawsuits to the extent: (a) alleging that the Customer Data directly infringe or misappropriate any Intellectual Property Rights; (b) arising out of or relating to a breach of this Agreement by Customer or any Users, and will indemnify and hold Scalus harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim.  

8.3 Indemnity Process.  Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim.  The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).

9. Limitation of Liability.  EXCEPT FOR A BREACH OF SECTION 2.2, 10, OR 11.7, AND EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND EXCEPT FOR DIRECT DAMAGES TO THE EXTENT ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD, NEITHER SCALUS’ NOR ITS SUPPLIERS’ OR LICENSORS’, NOR CUSTOMER’S AGGREGATE LIABILITY WILL EXCEED THE SUMS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER UNDER THE APPLICABLE ORDER FORM(S) OR SOW(S). EXCEPT FOR A BREACH OF SECTION 2.2 OR SECTION 10 OR SECTION 11.7, AND EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER SCALUS NOR ITS SUPPLIERS OR LICENSORS, NOR CUSTOMER, WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICE(S), ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF SCALUS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  CUSTOMER ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.   

10. Confidentiality.  Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder.  Recipient may not knowingly disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees and/or contractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and will not use less than a reasonable degree of care.  The foregoing will not apply to any information that: (i) is in the public domain through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly, and with authority, disclosed by a third party to Recipient, without restriction; (iv) Recipient independently develops without use of Discloser’s Confidential Information; (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement; or (iv) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that Recipient provides to Discloser prior notice of the intended disclosure and an opportunity to respond or object thereto.

11. General.

11.1 Notices.  Notices will be sent by first-class mail or overnight courier and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt. Notices to Customer may also be delivered via email, to the email address most recently provided by Customer to Scalus.  Notices to Scalus will be sent to the attention of Scalus’ CFO or CEO.

11.2 Assignment.  Customer may not assign this Agreement, by operation of law or otherwise, without Scalus’ prior written approval.  Any attempted assignment in violation of the foregoing will be null and void.  

11.3 Governing Law; Venue.  This Agreement will be governed by California law, without regard to conflicts of law provisions.  Neither the U.N. Convention of Contracts for the International Sale of Goods nor UCITA will apply.

11.4 Remedies.  Except as provided in Sections 7 and 8, the parties’ rights and remedies hereunder are cumulative.  Customer acknowledges that the Service(s) and Scalus Technology contain Scalus’ valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to Scalus for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy.  

11.5 Independent Contractors.  The parties are independent contractors.  No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Service(s).  

11.6 U.S. Government End Users.  If Customer is a U.S. government agency, the following applies.  Scalus provides the Service(s), including related software and technology, in accordance with the following: government technical data and software rights related to the Service(s) include only those rights customarily provided to the public as defined in this Agreement. This customary access right and 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 227.7202-3 (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 Scalus 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.  

11.7 Export Compliance.  Customer acknowledges that the Service(s) may be subject to U.S. and foreign export and import restrictions.  Customer will not and will not allow any export or re-export of any part of the Service(s), or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations.  Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.  The Service(s) is/are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.

11.8 Waiver; Severability.  A party’s failure enforce any provision in this Agreement will not constitute a waiver unless in writing.  No modification hereof will be effective unless in writing and signed by both parties.  If any provision of this Agreement is unenforceable, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions will continue in full force and effect.  However, Section 9 will remain in effect notwithstanding the unenforceability of any provision in Section 7.   Neither party will be liable for any failure to perform hereunder due to causes beyond its reasonable control.

11.9 Entire Agreement.  This Agreement forms the entire agreement between Customer and Scalus.  It supersedes all prior or contemporaneous negotiations or agreements between the parties regarding its subject matter.  Any conflict between the above terms and the terms of any SOW, any Order Form, or other exhibit hereto, will be resolved in the following order: (a) any Order Form; (b) any SOW; and (c) this Agreement.  Any preprinted terms on any Customer purchase order will have no effect on the terms of this Agreement and are hereby rejected. Headings are for reference purposes.  “Including” means “including but not limited to.”