END USER LICENSE AGREEMENT
End User License Agreement
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
This BMS Vault End User License Agreement (this “Agreement”) is entered into by and between Billing & Management Services, LLC (“BMS,” “us,” or “we”) and the entity licensing Products and/or receiving Services from Company pursuant to this Agreement (“Company” or “you”) and governs Company's use of and access to all such Products and Services to which Company has purchased pursuant to an Order Form under this Agreement. Unless otherwise agreed in writing, by using the Products and/or Services Company agrees to be bound by the terms and conditions set forth in this Agreement.
“Company Content” means all documents, information, materials, and/or content uploaded to the Product by Company or otherwise provided by Company to BMS.
“BMS Materials” means all documents, training materials, information, data, graphics, videos, and/or any other content provided by BMS to Company through the Product or otherwise.
“Non-BMS Applications” means a web-based or offline software application (including Citrix Sharefile Inc. (“Citrix”)) that is provided by a third party and interoperates with the Product.
"Order Form" means an ordering document governing purchases by Company of Product Subscriptions and/or related Services under this Agreement.
“Products” means the BMS software-as-a-service known as BMS Vault and/or any other BMS product identified on an Order Form.
“Subscriptions” means the right and license granted to Company by BMS to use the Products in accordance with the terms of this Agreement during the specified Subscription Term.
2. Products and Services.
a. Order Forms; Delivery. Each Order Form shall form a part of this Agreement and be subject to the terms and conditions set forth herein. BMS will provide access to the Products by electronic means at the start of the Subscription Term. Company agrees that Company’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by BMS regarding future functionality or features. BMS reserves the right, in its sole discretion, to add, disable or remove features and functionalities, increase or decrease limits and system resources related to the Product, and make any other changes, updates, or improvements to such Product; provided, that such changes do not materially degrade the essential functionality of such Product purchased by Company pursuant to the applicable Order Form.
b. Rights to Use of BMS Vault. Subject to the terms of this Agreement and the applicable Order, BMS grants Company a limited, non‐assignable, non-sublicensable, and non‐exclusive license to use the Product for Company’s internal business purposes during the Subscription Term to store, access, and transmit Company Content solely related to the Services provided by BMS. Company agrees that the Products will only be used in accordance with this Agreement and that Company will be responsible for all use of the Products on Company’s behalf by its employees and agents.
c. Restrictions. Company shall not, or permit anyone else to, (i) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Products and/or BMS Materials or any part thereof; (ii) remove, alter or obscure any proprietary notices, labels or marks on any component or portion of the Products and/or BMS Materials; (iii) market, sell, resell, rent, sublicense, distribute or lease the Products and/or BMS Materials; (iv) use the Products and/or BMS Materials for the benefit of any third party or any other purpose outside the limited license grant set forth in Section 2(b); (v) access the Products and/or BMS Materials in order to (A) build a competitive product or service, or (B) copy any features, functions or graphics of, or data or information in, the Products and/or BMS Materials.
d. Services. From time to time, BMS may perform certain professional services that are related to the Products (collectively, the “Services”) but only to the extent that any such Services are identified in an Order Form. All rights, title and interest in and to the documentation, training materials, work product, guides and presentations developed by BMS for use during the performance of the Services (excluding any Company Content embedded therein) shall be retained by BMS. Unless Company and BMS enter into a separate written agreement for such Services, the terms of this Agreement shall govern the provision of Services by BMS.
3. BMS Vault Acceptable Use.
Company hereby agrees that neither Company nor any of its authorized users will:
Tamper with or otherwise interfere or attempt to interfere in any manner with the functionality or proper working of the Product;
Use the Product in any manner that violates applicable law;
Interfere with any third party’s use of the Products;
Attempt to gain access to BMS’s computer system or databases;
Remove, obscure, or alter any notice of any logo, trademark, or other intellectual property or proprietary right designation appearing on or contained within the Product;
Access (or attempt to access) any product or services offered via the Products by any means other than the interface that is provided by BMS;
Upload, post, transmit, or store any material that:
is unlawful, offensive, defamatory, fraudulent, deceptive, misleading, harmful, threatening, harassing, obscene, or objectionable;
breaches any of Company’s contractual or confidentiality obligations;
disrupts or interferes with the normal operations of the Product, such as posting or transmitting viruses, continuous posting of repetitive materials, or posting and/or uploading abnormally large files or other data; or
is an advertisement or other solicitation, including, but not limited to, any unauthorized advertising materials, unsolicited promotional materials, “junk mail,” “spam mail,” “chain letters,” “pyramid schemes,” franchises, distributorships, club memberships, sales arrangements, or similar materials;
Violate other’s privacy rights or personal rights by abusing the materials uploaded to the Product, including, but not limited to, harassing or “stalking” another person, sending unsolicited e‐mails, or collecting other’s personal information;
Breach or attempt to breach any security measures of the Products;
Access or attempt to access any account or login of any other user or third party listed on the Products;
Post or submit any inaccurate, false, or incomplete information;
Mispresent yourself, your affiliation with any third party, or your entity;
4. Access Details; Non-BMS Applications; Downtime.
a. Access Details. Company is responsible for maintaining control over, the security for and the confidentiality of, all User IDs, usernames, passwords, and other access credentials (“Access Details”) for each Product provided by BMS, including any such Access Details to the Non-BMS Applications. Company is solely responsible for (i) all use of the Products by those who have access to such Products through Company (directly or indirectly) and (ii) taking steps to maintain appropriate security, protection, and back-up of the Company Content and Access Details. In the event Company becomes aware of a suspected breach involving the Access Details or the Products, Company will notify BMS immediately and cooperate with BMS to remedy the security incident.
b. Non-BMS Applications. Company and its authorized users may be required to register, create an account, and/or login via various Non-BMS Applications in order to gain access to the Product. The manner in which Non-BMS Applications use, store and disclose Company and user information is governed solely by the policies of the third parties operating the Non-BMS Applications, and BMS will have no liability or responsibility for the privacy practices or other actions of any third-party site, offering or service that may be enabled within the Product. The Products may include hyperlinks to other web sites or content or resources that are not owned or controlled by BMS. BMS has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party web sites or resources which are provided by companies or persons other than BMS. Company is hereby notified that in connection with providing Company access to the Products and Services related thereto, BMS has entered into a License Agreement with Citrix Systems, Inc., (“Citrix”), a copy of which is located here: https://www.citrix.com/content/dam/citrix/en_us/documents/buy/enterprise-eula.pdf (“Citrix EULA”). Company hereby agrees that Company shall review the terms of the Citrix EULA, and that Company shall, and ensure all authorized users shall, comply with all terms and conditions set forth therein in connection with Company’s access and use of the Products provided under this Agreement.
c. Downtime and Service Suspensions. Company’s access to and use of the Products may be suspended as the result of any scheduled or unscheduled downtime, maintenance, system updates, malfunction, or other unavailability of any portion or all of the Products for any reason, including as a result of power outages, system failures or other interruptions (including those caused by Non-BMS Applications). BMS may also suspend access to any portion or all of the Products at any time: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any file or account as a whole; (b) in the event of a denial of service attack or other attack on the website or other event that BMS determines, in its sole discretion, may create a risk to the applicable account, to Company or to any of BMS’s other customers if the service were not suspended; or (c) in the event that BMS determines that Company and/or any of its users has violated the terms of this Agreement.
5. Intellectual Property.
a. BMS Intellectual Property. Subject to the limited rights expressly granted herein, BMS, for itself and on behalf of its licensors, reserves, and Company acknowledges and agrees that BMS owns, all rights, title, and interest in and to the Products and BMS Materials that are not expressly granted to Company in this Agreement. All rights, title and interest in and to any and all improvements, modifications, derivative works and innovations of, to and/or involving the Products and BMS Materials will be retained in full and owned by BMS, even if such improvements, modifications, derivative works or innovations result from suggestions, enhancement requests, recommendations or other feedback provided to BMS by or on behalf of Company.
b. Company Content. BMS acknowledges that, as between BMS and Company, Company owns all right, title, and interest in and to the Company Content (including all intellectual property rights therein). Company hereby grants to BMS a non-exclusive, limited-term, royalty-free license to use, review, modify, host, transmit and display the Company Content as reasonably necessary for BMS to provide the Products and Services to Company under this Agreement. Company represents and warrants to BMS that Company has sufficient rights in and to the Company Content to grant the rights granted to BMS under this Agreement and that the rights granted to BMS for the Company Content do not infringe the rights of any third party. BMS reserves the right to log, review, and otherwise examine all access and use of the Products by Company and its personnel and any Company Content stored in or transmitted using the Products.
6. Fees and Payment.
a. Fees. Company will pay all fees specified in each Order Form. Except as otherwise specified herein or in an Order Form, (i) fees are based on Product Subscriptions purchased and not actual usage, and (ii) all fees owed hereunder are non-cancelable, non-refundable, and shall be paid without recoupment or set-off.
b. Payment. BMS will submit an invoice for all Products and Services purchased by Company pursuant to an Order Form, and Company shall pay all amounts set forth in each invoice in accordance with the instructions set forth therein no later than thirty (30) days from the date of the invoice.
c. Overdue Charges; Suspension of Service. If any fees are not received from Company when due, then at BMS’s discretion, such unpaid fees may accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any amount owing by Company pursuant to this Agreement is thirty (30) or more days overdue, BMS may, without limiting BMS’s other rights and remedies, suspend Company’s access to the Products and/or provision of the Services until such amounts are paid in full.
d. Taxes. Unless otherwise stated, BMS’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Except for Taxes assessable against BMS based on BMS’s income, Company is responsible for paying all Taxes associated with BMS’s purchases hereunder. If BMS has the legal obligation to pay or collect Taxes for which Company is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Company in accordance with Section 6(b) above, unless Company provides BMS with a valid tax exemption certificate authorized by the appropriate taxing authority.
a. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, research, development, services, customers, customer lists, designs, drawings, technology and technical information, products, product plans, software, inventions, processes, formulas and finances of such Party; and BMS’s Confidential Information shall include the Products and the BMS Materials; and Company’s Confidential Information shall include the Company Content. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information.
b. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party or as otherwise set out in this Agreement, the Receiving Party shall (i) use the same degree of care that it uses to protect its own confidential information of like kind (but in no event less than reasonable care) not to disclose any Confidential Information of the Disclosing Party or use it for any purpose beyond the scope of this Agreement, and (ii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement, who have signed confidentiality agreements with the Receiving Party containing terms that are no less protective of the Confidential Information than those herein, and for whom the Receiving Party remains fully liable.
c. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent not legally prohibited) and, in the event that the Disclosing Party wishes to contest the disclosure, reasonable assistance, at the Disclosing Party's cost.
d. Injunctive Relief. Each Party acknowledges that the extent of damages in the event of any threatened or actual breach of this Section 7 would be difficult or impossible to ascertain and that there would be available no adequate remedy at law in the event of any such breach. Each Party therefore agrees that, in the event it breaches this Section 7, the other Party will be entitled to specific performance and injunctive or other equitable relief, in addition to any other relief to which it may be entitled at law or in equity. Any such relief shall be in addition to and not in lieu of any relief in the form of monetary damages.
8. Warranties. Each Party represents and warrants that (i) it has the full right, power and authority to enter into this Agreement and perform its obligations hereunder; (ii) its execution, delivery and performance of this Agreement will not conflict with or result in a breach or other violation of any agreement or other third party obligation by which it is bound; (iii) when executed and delivered, this Agreement will constitute a legal, valid and binding obligation enforceable against it in accordance with its terms; and (iv) it will comply with all applicable laws in its performance of this Agreement. Further BMS warrants that all Services will be performed by BMS in a professional and workmanlike manner; provided that Company’s exclusive remedy in the event of a breach of this warranty will be re-performance of the Services by BMS.
9. Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, BMS MAKES NO AND HEREBY DISCLAIMS, AND COMPANY HEREBY WAIVES, ANY AND ALL, REPRESENTATIONS AND WARRANTIES REGARDING THIS AGREEMENT OR THE PRODUCTS, BMS MATERIALS AND/OR SERVICES, CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ERROR-FREE OR UNINTERRUPTED SERVICESON. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED VIA THE PRODUCT IS DONE SO AT COMPANY’S OWN DISCRETION AND RISK, AND COMPANY IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPANY’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT. COMPANY UNDERSTANDS AND AGREES THAT THE PRODUCTS, BMS MATERIALS, AND ITS CONTENT ARE NOT A SUBSTITUTE FOR PROFESSIONAL ADVICE. COMPANY UNDERSTANDS AND AGREES THAT SOME LAWS, REGULATIONS, GUIDELINES AND OTHER MATTERS ADDRESSED IN THE PRODUCT, BMS MATERIALS AND ITS CONTENT ARE SUBJECT TO INTERPRETATION AND THAT COMPANY SHALL BE SOLELY RESPONSIBLE FOR, AND WAIVE ANY CLAIM AGAINST BMS, ITS OFFICERS, AGENTS, AND EMPLOYEES FOR ANY LOSS, DAMAGE AND EXPENSE OR CLAIM THEREOF RESULTING FROM COMPANY’S USE OF THE PRODUCTS, BMS MATERIALS AND ITS CONTENT, EXCEPT TO THE EXTENT CAUSED BY BMS’S BREACH OF THE TERMS OF THIS AGREEMENT. COMPANY AGREES THAT THE AVAILABILITY OF THE PRODUCTS, BMS MATERIALLS AND ITS CONTENT AND THE PROVISION OF THE SERVICES SHALL NOT BE CONSTRUED AS THE RENDERING OF ANY TAX, LEGAL, ACCOUNTING, AUDITING OR OTHER PROFESSIONAL, SERVICES OR ADVICE.
10. Liability and Limitations of Liability. BMS WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO COMPANY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFIT, BUSINESS OR DATA) ARISING OUT OF THIS AGREEMENT. THE AGGREGATE LIABILITY OF BMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT PAID AND PAYABLE BY COMPANY TO BMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH A CLAIM ARISES.
11. Indemnity. Company hereby agrees to indemnify, defend, and hold BMS, its affiliates, officers, directors, agents, or employees, harmless from any claims or demands of any third party, obligations, losses, liabilities, cost or debt and expenses, including, but not limited to, attorneys’ fees and legal fees, resulting from or arising out of Company’s use of the Products, Company Content (including BMS’s use of Company Content as contemplated herein), and/or Company’s violation of any terms and conditions of this Agreement.
12. Term; Termination.
a. Term. This Agreement commences on the Effective Date and shall govern all Order Forms that are agreed by the Parties until this Agreement is terminated pursuant to this Section 12.
b. Subscription Term. Each Subscription purchased by Company commences on the start date specified in the applicable Ordering Document and continues for the Subscription Term specified therein (the “Initial Term”). Except as otherwise specified in an Order Form, each Subscription Term shall commence upon Delivery. Except as otherwise specified in an Ordering Document or as terminated pursuant to this Agreement, all Subscriptions shall automatically renew for additional periods equal to twelve (12) months for the same quantity as of the end of the prior Subscription (each a “Renewal Term” and, together with the Initial Term, collectively referred to as the “Subscription Term”), unless either Party gives the other written notice of non-renewal at least 60 days prior to the end of the Subscription Term. The fees charged by BMS to Company for any Renewal Term shall be BMS’s then-current fees for the Products licensed as part of the Subscription.
c. Termination. A Party may terminate any Order Form and/or this Agreement for cause: (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
d. Effect of Termination. Termination or expiration of this Agreement (for purposes of this Section, “Termination”) shall not release the Parties from any liability that, at the time of Termination, has already accrued or that thereafter may accrue with respect to any act or omission before Termination, or from any obligation that is expressly stated in this Agreement to survive Termination. Upon any Termination of this Agreement, each Party shall (i) immediately discontinue all access to and use of the other Party’s Confidential Information, including, for purposes of Company, all access to and use of the Products; (ii) delete the other Party’s Confidential Information from its computer storage or any other media, including online and off-line libraries; (iii) return to the other Party or, at the other Party’s option, destroy, all copies of such other Party’s Confidential Information then in its possession; and (iv) promptly pay all amounts due and remaining payable hereunder. BMS shall provide Company a thirty (30) day period to retrieve any Company Content stored within the Products. After such time, BMS shall have no obligation to maintain or provide any Company Content and shall, unless legally prohibited, be entitled to delete all Company Content in its systems or otherwise in its possession or under its control. Termination of this Agreement, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby.
e. Surviving Provisions. Any provision which by its very nature is intended to survive shall survive any termination or expiration of this Agreement.
13. Notices; Governing Law.
a. Notices. Notices required or permitted by this Agreement shall be in writing and delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; or (c) by certified or registered mail, return receipt requested, upon verification of receipt. Notices shall be sent as follows: (i) by BMS to Company’s last known address on file with BMS; and (ii) by Company to: Billing & Management Services, LLC, 3420 Morningwood Drive, Olney, MD 20832, Attention: BMS Vault. Either Party may designate a different address by providing written notice to the other Party.
b. Governing Law; Jurisdiction; Jury Trial. The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to any conflicts of laws or choice of law rules, and each Party agrees to submit to the exclusive jurisdiction of the State courts located in Montgomery County, Maryland and Federal courts located in the State of Maryland. The Parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act or the United Nations Convention on Contracts for the International Sale of Goods. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
a. Relationship of the Parties. The Parties will perform hereunder as independent contractors. Nothing contained in this Agreement shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent between the Parties.
b. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, and the Parties acknowledge that this Agreement is intended solely for the benefit of the Parties, their successors and permitted assigns, and nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their permitted successors and assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
c. Force Majeure. BMS shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law or government order, acts of God, pandemic, epidemic, disease, fire, strike, embargo, terrorist attack, war, insurrection or riot, national or regional emergency, internet service provider failure or delay, denial of service or other causes beyond the reasonable control of BMS. Any delay resulting from any such cause shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
d. Waiver and Cumulative Remedies; Severability. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
e. Assignment. Neither Party will have the right to assign this Agreement without the written consent of the other Party; provided, however, that BMS will have the right to assign this Agreement to an Affiliate of BMS or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets of the business to which this Agreement relates. Any assignment in violation of the foregoing provision shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
f. Headings; Contract Interpretation. The captions to the Sections of this Agreement are not a part of this Agreement but are merely guides or labels to assist in locating and reading the Sections hereof. The terms “this Agreement,” “herein,” “hereof,” “hereunder” and similar expressions refer to this Agreement and not to any particular section or other portion hereof. Except as expressly provided otherwise, references herein to “days” are to calendar days. Any use of the term “including” in this Agreement shall be construed as if followed by the phrase “without limitation.”
g. Entire Agreement; Counterparts. This Agreement, including all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals and representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by an authorized representative of each Party; provided that BMS reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Products and Services at any time, effective upon posting of an updated version of this Agreement at the same url. Company is responsible for regularly reviewing this Agreement, and continued use of the Products and/or Services after any such changes shall constitute Company’s consent to such changes. Notwithstanding any language to the contrary therein, no terms or conditions stated in Company’s purchase order or other order documentation (excluding Ordering Documents) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.