This Agreement sets forth the terms and conditions pursuant to which Licensee may use Backtrace’s proprietary software solution (as described in an Order) (the “Software”), hosted Platform services, and online tools and services (“Web Services,” and collectively with the Software, the “Service” or “Services”). Customer and Backtrace may be referred to herein together as the “Parties”, and each may be referred to herein as a “Party”.

DEFINITIONS: In this Agreement, unless the context requires otherwise, the following expressions shall have the following meanings:

Agreement: has the meaning set out in the MSA to which these Terms of Use are attached;
Customer: including the terms “Licensee”, “you” or “your”, means the party identified as Bactrace’s customer in the Order;
Fees: has the meaning set out in the Order;
Backtrace: including the terms “we,” “our” and “us,” means Backtrace Technologies, Inc., a Delaware corporation;
License: means either an On-Premise License or Platform License as specified in the Order;
Order: means an ordering document setting out the principal commercial, license and usage terms of the Services to be provided by Backtrace to the Customer that is signed by Customer or submitted to Backtrace, whether in writing or by means of an online ordering method, and is accepted by Backtrace, which may include, without limitation, an order, statement of work, schedule, attachment, or purchase order, as amended from time to time;
Platform: has the meaning given in the Order;
Services: has the meaning set out in the preamble to this Schedule 1, as more particularly described in and provided on the terms and requirements set out in the Order;
Term: has the meaning given in Section 7
UPDATED: May 28, 2020

1 License.
Grant. Subject to the terms and conditions of this Agreement, Backtrace grants Licensee a limited, nonexclusive, nontransferable license, without the right to sublicense, to (a) download, install, store, and use the Software to monitor, analyze and report on software errors up to the limits set forth in Exhibit A (the “Limits”) for the term set forth on Exhibit A (the “Software Order Form”) and (b) access and use the Web Services.
Restrictions. Licensee acknowledges that the Service contains and constitutes valuable trade secrets of Backtrace. Accordingly, Licensee will not: (i) use the Service for any purpose, except as expressly permitted in this Agreement; (ii) transfer, assign, sublicense, copy, distribute, modify, or create derivative works of the Service, in whole or in part; or (iii) decompile, reverse assemble or otherwise reverse engineer or attempt to derive the source code from the Service. Licensee will not remove or alter any of the copyright notices or other proprietary markings on the Service.

2 Support Services. If the Licensee chooses to subscribe to support services, the software and services will be subject to additional Support terms specified at https://backtrace.io/support-license-terms.

3 IP Ownership and Platform Use.
The Service and all intellectual property rights therein are the exclusive property of Backtrace. No implied licenses or rights are granted under this Agreement. Any data or other output Licensee generates using the Service will be the exclusive property of Licensee (“Licensee Outputs”). All pre-existing intellectual property of each Party remains the intellectual property of that Party.
The Customer shall not use the Platform to, or introduce into the Platform any content, links, scripts or codes that, perform, promote or reference any illegal activity, software piracy and/or activities generally understood as Internet abuse, including the sending of unsolicited bulk messages or the distribution or use of spyware, Malware (as defined below), worms, Trojan horses, time bombs, cancelbots, bots or other code that generate fraudulent or invalid advertising traffic, corrupted files or similar software. “Malware” means software or applications, or websites associated with software or applications, that (i) may be used to disrupt, damage, take control of, misuse, or otherwise use or disable a computer or computer system or operation; (ii) impermissibly views or collects information; or (iii) access computer systems to display or distribute unwanted or illicit advertising, content or software.
If the Order includes Customer access to the Platform, then Backtrace hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-transferable (except as expressly provided in this Agreement), limited right for Customer to access and use the Platform in accordance with this Agreement solely during the Term and for the sole purpose of using the Services for its internal business purposes. Except as expressly permitted by this Agreement, Customer may not, directly or indirectly or by itself or through any other person or entity, use, rent, lease, sell, transfer (by sublicense, assignment, operation of law, change in control or otherwise), time share, modify, reproduce, copy, make derivative works from, distribute, publish, use to provide service bureau services, or publicly display the Platform.
For access to the Platform, Backtrace will provide Customer with one or more logins and passwords for access to Customer’s account and corresponding administrative controls (“Customer’s Account”) by authorized personnel of Customer (individually a “Subscriber” and collectively, “Subscribers”). In order to use the Platform, Customer will, and will procure that each Subscriber will, represent, warrant and covenant that they will provide Backtrace with accurate, truthful and complete registration information and agree to the terms of this Agreement and any other additional terms and conditions for use of the Platform that Backtrace may otherwise reasonably require. Upon acceptance of any application made by Customer, each Subscriber will be assigned with a user name and password that will allow access to the Platform, and will become a registered user. Customer will ensure that each Subscriber that is provided registered user access to the Platform keeps his or her registration information accurate and up-to-date and does not share its password or registered user name with any third party except as otherwise set forth in this Agreement, and Customer agrees that any failure by any Subscriber to do so will constitute a breach of this Agreement by Customer, which may result in immediate termination of Customer’s Account. Customer will immediately notify Backtrace in writing of any change in authorization, any unauthorized use of any Customer’s Account or any other account-related security breach of which it becomes aware. Upon termination of this Agreement for any reason, Backtrace will have the right to disable and delete each Subscriber’s access to Customer’s Account immediately and to delete all Customer data (including Licensee Output) thirty (30) days after termination or expiration of this Agreement. Backtrace will use commercially reasonable efforts to make the Platform accessible to Customer during business hours, subject to any downtime for maintenance, updating and repair. Notwithstanding the foregoing, Customer acknowledges and agrees that Backtrace will have no responsibility for Customer’s inability to use the Services or access the Platform due to Internet or other network interruption, communications failure, server downtime or other force major event.

4 Confidentiality.
“Confidential Information” is all technical and non-technical information being disclosed by one Party to the other Party (including but not limited to the Service, product information, plans and pricing, financials, marketing plans, business strategies, Licensee and user information, Licensee Outputs, data, research and development, software, APIs, specifications, designs, formulae, algorithms, and know-how); either designated as, or which would reasonably understood to be confidential or proprietary. In addition, the existence and terms of this Agreement and the fact that discussions are taking place between the Parties in connection with this Agreement is deemed to be the Confidential Information of both Parties.
The receiving Party will: (i) hold the disclosing Party’s Confidential Information in confidence; (ii) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who have previously agreed (e.g. as a condition to their employment or agency) to be bound by terms substantially similar to those of this Agreement; (iii) use such Confidential Information only for the purposes for which it was disclosed; and (iv) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information unless otherwise specified in writing by the disclosing Party.
The restrictions set forth herein will not apply to Confidential Information to the extent it (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure without breach of this Agreement by the receiving Party; (iii) was lawfully received by the receiving Party from a third party without such restrictions; (iv) was known to the receiving Party without such restrictions prior to its receipt from the disclosing party; (v) was independently developed by the receiving Party without reference to such Confidential Information; (vi) was generally made available to third parties by the disclosing Party without such restriction; or (vii) is required to be disclosed by the receiving Party pursuant to judicial order or other compulsion of law, provided that the receiving Party will provide to the disclosing Party prompt notice of such order and comply with any protective order imposed on such disclosure.
Upon written request of the disclosing Party or upon termination of this Agreement, all copies of the disclosing Party’s Confidential Information will be returned to the disclosing Party or promptly destroyed.

5 Compensation.
Licensee will pay Backtrace the fees set forth in the Order Form (the “Fees”). If the Order Form does not specify any invoicing terms, all Fees will be invoiced annually in advance. Backtrace reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term (as set forth on the Order Form) or then current renewal term, upon sixty (60) days’ prior notice to Licensee (which may be sent by email). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of this Agreement. All fees are non-cancelable and non-refundable.
Licensee shall be responsible for all applicable taxes, however designated, incurred in connection with this Agreement, including but not limited to federal, state, or local sales or use taxes, value-added taxes, excises, and other taxes or duties which may now or hereafter be levied on the services provided hereunder or on payments made under this Agreement.

6 Marketing. Backtrace may use Licensee’s name and logo on Standard Promotional Materials (“Materials”) for the sole purpose of marketing the Service. Materials include:
Backtrace website found at https://backtrace.io
Printed and digital materials, including collateral, emails, banners
Sales presentations
Any use of Licensee’s name and logo shall terminate upon the expiration or termination of this Agreement

7 Term and Termination. This Agreement starts on the date that the parties sign an Order Form and continues until either party terminates this Agreement in accordance with this Agreement. If all Order Forms under this Agreement have expired or been terminated, either party may terminate this Agreement for convenience by providing 30 days’ prior written notice. Neither party may terminate an Order Form for convenience. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice for a material breach of the other Party that is not cured within such period. Sections 3, 4, 8, 10, 11, 12 and 13, and the last sentence of this Section 7 will survive any termination or expiration of this Agreement. Upon termination of this Agreement, Licensee must remove the Software from its systems. During the Term of this Agreement and one year following termination, Backtrace may inspect your records relating to your use of the Services for the purposes of verifying compliance with this Agreement.

8 INDEMNIFICATION. Backtrace will hold Licensee harmless from any final court judgment awarded or settlement entered into arising from any third party claim alleging that Licensee’s use of the Service infringes such third party’s patent or copyright rights or misappropriates that third party’s trade secrets, provided that Licensee promptly notifies Backtrace of any claim and reasonably assists Backtrace in defending such claim. Backtrace will have sole control over the defense and settlement of any claim eligible for indemnification under this Section 8, provided that Backtrace may not agree to a settlement that imposes any liability or obligation on Licensee without Licensee’ written consent. The foregoing obligations do not apply to third party claims arising out of Licensee’s use of the Service where the Service was (a) modified by Licensee or any third party not authorised by Backtrace, (b) combined with other products, processes or materials where the alleged infringement relates to such combination, (c) used by Licensee in the allegedly infringing form after Backtrace made available modifications that would have avoided the alleged infringement, (d) Backtrace’s compliance with any materials, designs, specifications or instructions provided by Licensee, or (e) not used in accordance with this Agreement, (collectively “Excluded Claims”). If the Service is held by a court of competent jurisdiction to be or is believed by Backtrace to be infringing, Backtrace may, at its option and expense (i) replace or modify the Service to be non-infringing (without materially impairing the Service features and functions), (ii) obtain for Licensee a license to continue using the Service, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and refund Licensee any prepaid, unused Fees for the Service. This Section 9 sets forth Backtrace’s entire and exclusive liability and obligation, and Licensee’s entire and exclusive rights and remedies, with respect to alleged or actual infringement of third party intellectual property rights by the Services.

9 WARRANTY DISCLAIMER. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. BACKTRACE AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF A THIRD PARTY’S RIGHTS.

10 LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 8, OR BODILY INJURY OF A PERSON, BACKTRACE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR ANY MATTER BEYOND BACKTRACE’S REASONABLE CONTROL; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY LICENSEE TO BACKTRACE UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT BACKTRACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11 Governing Law; Dispute Resolution. This Agreement and all the rights and obligations of the parties hereunder will be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. Each Party consents to the exclusive jurisdiction and venue of the state and federal courts located in New York County, New York, and agrees not to contest such jurisdiction or venue.

12 Assignment. Licensee may not assign, transfer or delegate any rights or duties under this Agreement without Backtrace’s prior written consent, except in conjunction with a change in ownership, merger, acquisition, or the sale or transfer of all or substantially all of Licensee’s assets either voluntarily, by operation of law, or otherwise. Backtrace may freely assign this Agreement. Any attempted assignment or delegation without such consent will be null and void.

13 General. All waivers must be in writing and signed by an authorized representative of the Party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement may be modified by Backtrace as set forth in the preamble, provided that no such changes will affect any Order Form in effect prior to such modification. If any provision of this Agreement is determined to be invalid, unlawful, void, or unenforceable to any extent, the remainder of this Agreement will remain valid and enforceable to the fullest extent permitted by law. This Agreement sets forth the entire agreement and final understanding of the Parties relating to the subject matter hereof and supersedes and terminates all prior or contemporaneous agreements and understandings between the Parties relating to the subject matter hereof including for the avoidance of doubt any Evaluation Agreement entered into by the parties.