Terms and Conditions
Last updated: May 12, 2024
Chapter 1: General Provisions
In these Terms and Conditions, the following terms are used in the following meanings, both singular and plural:
Subscription: Agreement to provide Services periodically;
Customer: Any party entering into an Agreement with Back Engineering Labs Inc. for the use of the Software;
General Terms and Conditions: These general terms and conditions of Back Engineering Labs Inc.;
Content: Any electronic data, files, or information added to the software by Customer and stored in Customer’s Environment, excluding software developed by Back Engineering Labs Inc. including templates, electronic data, files and information added by Back Engineering Labs Inc.;
Services: All services offered by Back Engineering Labs Inc. with respect to the Software, which are subject to an Agreement or Services Request or other legal act between Back Engineering Labs Inc. and the Purchaser, including- but not limited to- implementation and migration of Content, for which additional costs may be charged in agreement with the Purchaser;
Fee-earner: A natural person, employed in the Purchaser’s organization, who is entitled under the Agreement of the General Terms and Conditions to access and use (parts of) the Software, for which the Purchaser pays an annual fee to Back Engineering Labs Inc.;
User: A natural person, including Fee-earners, working in the organization of the Customer, who is entitled under the Agreement or the General Terms and Conditions to access and use (parts of) Software;
IP Rights: All Intellectual Property rights and related rights, such as copyrights, trademark rights and database rights;
Implementation: Implementing the Software at the Customer’s location and/or remotely, which is part of the Agreement;
Effective Date: The date on which the License can be put into use by Customer, which is specified on the Agreement;
Login Information: The username and password provided by Back Engineering Labs Inc. that allows Users to access the Software;
Caerus: The trade name used by Back Engineering Labs Inc. for the software and is itself a binary translation framework;
Llvm-msvc: A compiler fork of clang which is open source for the public;
Blare: The trade name used by Back Engineering Labs Inc. for the software and it is a binary
License: Annual subscription to the Software that entitles the Customer to access and use thereof;
Environment: The environment of the Software tailored to Customer’s preferences;
Agreement: This Agreement for the use of the Software and associated Services;
Parties: Back Engineering Labs Inc. and Customer;
Recovery Time Objective (RTO): the intended length of time and level of service within which the Software must be restored after a failure or disruption to prevent unacceptable consequence with business continuity interruption;
Recovery Point Objective (RPO): the intended maximum number of hours of possible data loss in the event that the Software must be restored after failure due to a failure;
Servers: A collection of dedicated computers and related hardware managed by Back Engineering Labs Inc. on which web server software, support software or database software is installed to provide the Software over the Internet;
Support: Support offered to Users by Back Engineering Labs Inc. in handling a Support Ticket;
Support Ticket: A request by a User to Back Engineering Labs Inc. regarding a problem, use or implementation of the Software;
Service Request: A quote issued by Back Engineering Labs Inc. for additional Services requested by Customer, which will be deemed accepted by Customer by sending a copy to Back Engineering Labs Inc., to which the General Terms and Conditions of Caerus and Llvm- msvc apply;
Software: Refers to the Caerus and Llvm-msvc software applicated hosted by Back Engineering Labs Inc. or its suppliers under the Caerus and Llvm-msvc names, made available and accessible for the use of Customer, which is subject to the Agreement;
Confidential Information: Information that is proprietary or confidential and clearly designated as such and information that should reasonably be treated as confidential by Customer and Back Engineering Labs Inc., regardless of whether such information is designated as proprietary or confidential, including but not limited to the Agreement and Customer’s Content;
Back Engineering Labs: a Delaware Corporation organized under the laws of Delaware having its principal office at 2261 Market Street STE 5714, San Francisco, California 94114.
2. Agreement
2.1. The Agreement is established by written acceptance of the Agreement by the Customer. The Agreement takes effect on the Effective Date and is legally binding on both Parties. The person who accepts the Agreement on behalf of the Customer represents that he or she is authorized to legally represent and bind the Customer to the Agreement. The Agreement applies to each license purchased by the Customer from Back Engineering Labs Inc. and all Services provided by Back Engineering Labs Inc. to the Customer.
2.2. Back Engineering Labs Inc. will begin providing the Services as soon as possible after receipt of the signed Agreement or Service Request and/or payment.
2.3. The documents making up the Agreement have the following order of precedence:
2.3.1. Agreement; 2.3. 2. the General Conditions; 2.3. 3. The Processor Agreement; and 2.3.4. OTHER Attachments.
In case of conflict between these documents, the document with the highest priority takes precedence.
2.4. Back Engineering Labs Inc. is entitled to amend these General Terms and Conditions. Amendments shall be announced to the Customer in writing. The Purchaser will have 30 days after notification to object to the proposed amendment. If the Purchaser does not object, the General Terms and Conditions including amendments will form part of the Agreement(s) in effect other arrangements that follow thereunder between the Purchaser and Back Engineering Labs Inc..
2.5. Notwithstanding the provisions of Article 2.4, additions and amendments to the Agreement may only be agreed upon by Back Engineering Labs Inc. and the Customer in writing. Back Engineering Labs Inc. will be entitled at any time- where appliable- to change, reduce and/or remove the scope, content and/or functionalities of Content and/or Services. If Back Engineering Labs Inc. is of the opinion that there is a substantial change, it will inform the Purchaser of that change in advance. If Back Engineering Labs Inc. is of the opinion that
the change gives reason to do so, Back Engineering Labs Inc. will consult with the Purchaser about a possible reduction in the fee and agreed upon for the Content and/or Services.
3. License
3.1. Subject to the terms of conditions of the Agreement and the full and timely payment by the Customer of the fee applicable to the License, Back Engineering Labs Inc. grants to the Customer the non-exclusive, non-transferable and non-sublicensable right to grant its Users access to and use of the Software for the duration specified in the Agreement. The number of Fee-earners having access to the Software is determined in the Agreement. Customer will only grant access to the Software to (i) its employees, employees of affiliated companies (ii) affiliated and (iii) independent contractors as necessary to provide services to Customer.
3.2. Unless otherwise agreed, a right of use is granted for a period of twelve (12) months. At the end of this period, this period is tacitly renewed for a period of twelve (12) months, unless the Customer cancels the Agreement in writing at least two (2) months before the end of the current period. The right of use is always limited in time.
3.3. The Software may be used by the Customer exclusively for the purpose of its own business operations and only by the number of Fee-earners as agreed upon. The Purchaser shall only make the Software available to Users.
3.4. Customer is responsible and liable for the use of Software by Users and warrants that Users will comply with the terms of the Agreement.
3.5. Customer shall not modify, translate, reproduce, decompile, reverse engineer, merge with other works or create derivative works from the Software.
3.6. If the Software has been used by more or other persons or on more or other equipment and/or infrastructure than agreed, the Purchaser will be obliged to pay the fee charged by Back Engineering Labs Inc. for that additional use, without prejudice to the other rights of Back Engineering Labs Inc. under the law and the Agreement.
3.7. Back Engineering Labs Inc. will create an Environment for Customer or remove an Environment from the Software upon Customer’s written request. If the number of Fee-earners using the Software does not correspond to the number set forth in the Agreement, Back Engineering Labs Inc. will be authorized to charge additional costs in that regard. The Customer must timely notify Back Engineering Labs Inc. in writing of any additional Fee-earners.
3.8. Back Engineering Labs Inc. has the right to suspend the access of one or more Users to the Software or the access of all Users to the Content if the number of Fee-earners or the features used by a User do not comply with the Agreement. Back Engineering Labs Inc. has the right to suspend a User’s access to the Software if it has evidence that the Customer does not comply with the requirements of Article 3.
4. Prices and payment terms
4.1. The prices charged by Back Engineering Labs Inc. are exclusive of sales tax and other levies imposed by the government.
4.2. Prices charged by Back Engineering Labs Inc. will be calculated based on the number of Fee-earners who have access to the Software.
4.3. Back Engineering Labs Inc. will invoice the Customer annually for the use of the Services as of the Effective Date. Invoices will be sent electronically.
4.4. After completion of the Implementation, the Customer will have the opportunity to notify Back Engineering Labs Inc. of any additional changes within three weeks. These changes will be carried out free of charge if this falls within the terms of the Implementation and/or the Agreement.
4.5. Payment of an invoice must be made within fourteen (14) days of the invoice date, unless otherwise agreed in writing. Back Engineering Labs Inc. will be entitled to require advance payment, cash payment and/or security for payment from the Customer.
4.6. All payments made by the Customer to Back Engineering Labs Inc. shall be deducted from the Customer’s oldest outstanding invoices.
4.7. The payment terms shall be regarded as deadlines. In the event of late payment, the Customer shall, without a demand for payment or notice of default, automatically be in default and liable to interest of 1% per month or part thereof on the outstanding amount, expressly in addition to the extrajudicial costs, being 15% of the invoice amount with a minimum of 150 US dollars excluding VAT, to be calculated on the principal amount plus interest.
4.8. The Purchaser will not be entitled to suspend or set off payments on account of (alleged) shortcoming(s) by Back Engineering Labs Inc..
4.9. Back Engineering Labs Inc. shall be entitled to increase its prices annually, with the policy of at least the same percentage as the consumer price index published by the Central Bureau of Statistics. In addition, Back Engineering Labs Inc. shall be entitled to increase its prices once a year by an additional percentage with a maximum of 5%. Such a price change will be rounded off in prices in whole Dollars and will not apply immediately, but will apply to the price for the following contract year. If the Purchaser does not agree with this increase, the Purchaser will be entitled to object in writing to Back Engineering Labs Inc. within 30 days after notification of the additional price change. If the Customer objects in a timely manner, the Parties will discuss a solution. If the Parties cannot reach a solution within 30 days after notification of the additional price increase, each party will have the
right to terminate the Agreement in which case the Agreement will not be renewed at the end of the contract period.
4.10. Back Engineering Labs Inc. will be entitled to suspend performance of its obligations under an Agreement in the event that the Purchaser fails to comply with its obligations in full and/or in a timely manner. Adverse consequences of suspension will be at the Customer’s expense and risk.
5. Retainer fee
5.1. Individuals seeking to contract our services will be required to pay a retainer fee, also referred to as goodwill money, upon entering into an agreement with us.
5.2. The purpose of the retainer fee is to ensure the commitment and seriousness of the individual in engaging our services.
5.3. The retainer fee is non-refundable and will be credited towards the total cost of the contracted services.
5.4. The amount of the retainer fee will be determined based on the scope and complexity of the project and will be communicated to the individual prior to the agreement.
5.5. However, companies seeking to contract our services are exempt from the retainer fee requirement. This exemption is based on the understanding that companies often exhibit a higher level of authority and sincerity in their business engagements.
5.6. The exemption from the retainer fee requirement for companies is solely at our discretion and may be subject to review on a case-by-case basis.
5.7. The decision to exempt a company from the retainer fee requirement does not absolve the company from their commitment and seriousness in engaging our services. We still expect companies to demonstrate professionalism and dedication to the agreed-upon project.
5.8. The exemption from the retainer fee requirement does not affect any other payment obligations or terms outlined in the contract or agreement between the parties.
5.9. The retainer fee or exemption from the requirement should be mutually agreed upon and clearly documented in the contract or agreement.
6. Secrecy
6 .1. Each party to the Agreement shall keep all Confidential Information confidential and use it only for the performance of the Agreement. Access to Confidential Information shall be limited to persons who need to know for the Performance of the Agreement. The parties warrant that these persons are contractually obligated to maintain the confidentiality of the
Confidential Information.
6 .2. Confidential Information of a Party shall not mean information that:
6.2.1. is or becomes publicly known, other than by any act or omission of the other Party; 6.2. 2. was in lawful possession of the other Party prior to disclosure; 6 .2.3. lawfully disclosed to the other Party by a third party without restriction on disclosure;
6 .3. Confidential Information may be disclosed pursuant to a court or public law order, provided that (if permitted by law or authorized by such order) the other Party is notified as soon as practicable after receipt of the order and has had an opportunity to seek legal redress against the disclosure in question.
6 .4. The Parties are permitted to share Confidential Information with their outside legal advisors or attorneys to the extent reasonably necessary, if such legal advisors or attorneys are also contractually bound to refrain from disclosing any Confidential Information to third parties.
7. Personal data
7 .1. Back Engineering Labs Inc. processes personal data of the Customer in the context of the performance of the Agreement. In this case, Back Engineering Labs Inc. will be considered a “processor” and the Customer will be considered a “controller” in accordance with Regulation (EU) 2016/679 (General Data Protection Regulation, hereinafter: the AVG) and the Delaware Personal Data Privacy Act. Both Back Engineering Labs Inc. and the Customer will comply with the obligations under the AVG. This Article, in conjunction with the attached Processor Agreement, shall constitute the Processor Agreement between the Parties.
7 .2. Back Engineering Labs Inc. will only process personal data that it obtains from the Customer for the purposes of performing the Agreement or providing the Services and in accordance with the Customer’s introductions to Back Engineering Labs Inc..
7 .3. Back Engineering Labs Inc. will adequately secure the personal data provided to it. Back Engineering Labs Inc. will implement appropriate technical and organizational measures to secure the personal data against loss and any form of unlawful processing. Such measures, taking into account the state of the art and the costs of implementation, will ensure an appropriate level of security, given the risks involved in the processing and the nature of the data to be protected.
7 .4. Back Engineering Labs Inc. is entitled to engage sub-processors for the purpose of providing the Services. If a new sub-processor is engaged, Back Engineering Labs Inc. will notify the Customer. The Customer has the right to object to the engagement of a new sub- processor within a period of 14 days after notification. If the Customer objects in time, the parties will consult on options whereby the relevant sub-processor does not have to be
used. If the Parties do not find a solution within a period of 60 days, the Customer may terminate (the part of the) License Agreement that relates to the provision of the Services that cannot be provided without the use of the relevant sub-processor.
7 .5. To the extent Back Engineering Labs Inc. engages sub-processors in the performance of the Agreement, such sub-processors will be bound by similar obligations as Back Engineering Labs Inc..
7 .6. Back Engineering Labs Inc. will provide appropriate cooperation with the Customer obligations, taking into account the nature of the processing and the information available from Back Engineering Labs Inc..
7 .7. If the License Agreement is terminated, the Customer is responsible for timely removal of the Content and termination of access to the Users. Fees may be charged for making the Content available after Back Engineering Labs Inc. terminates the Agreement.
7 .8. At the Customer’s request, Back Engineering Labs Inc. will provide all information necessary to demonstrate that Back Engineering Labs Inc. is acting accordance with its obligations under the Delaware Personal Data Privacy Act, including the opportunity to view audit reports on site. If the Customer wishes to conduct an audit after viewing the audit reports, the Customer may do so annually and at its own expense. In such case, Back Engineering Labs Inc. and the Customer will schedule a date and time by mutual agreement when this audit may be performed.
8. Intellectual property rights
8 .1. All IP rights vested in the Services rendered under the Agreement, including the functional and technical design, layout, database structure, templates, electronic data, files, information and functionalities and source codes of the Software and all related documents are vested exclusively in Back Engineering Labs Inc. and/or its licensors, unless expressly agreed otherwise in writing.
8 .2. Nothing in these Terms and Conditions implies an assignment of IP Rights.
8 .3. All rights of any kind with respect to the Content belong to Customer.
9. Liability
9 .1. The total liability of both parties shall be limited to direct damages and the amount paid by the Customer to Back Engineering Labs Inc. for use of the Services during the 12-month period prior to the cause causing the direct damages. In no event shall Back Engineering Labs Inc.’ total liability under the Agreement on any account exceed one million dollars (1,000,000,00 dollars) per occurrence, with total liability per year of two million dollars ( 2 ,000,000,00 dollars). The foregoing exclusions and limitations of liability for Back Engineering Labs Inc. shall also apply with respect to any warranties and indemnification
obligations of Back Engineering Labs Inc..
9 .2. Direct damages shall mean only:
9.2.1. reasonable costs incurred by the Purchaser to enable Back Engineering Labs Inc.’ performance of the Agreement; 9.2. 2 reasonable costs incurred to prevent or limit direct damage that could be expected as a result of the event on which the liability is based; and; 9.2.3. reasonable costs incurred in determining the cause of damage, liability, direct damage and method of repair.
9 .3. Any liability of Back Engineering Labs Inc. for damage other than direct damage, such as consequential damage, derivative damage and immaterial damage is entirely excluded. In this connection, consequential damage will in any event be understood to mean: loss of profits, missed savings, reduced goodwill, damage due to business stagnation, losses, costs incurred to prevent or determine consequential damage, loss confusion or damage to electronic data and/or damage due to a delay in the transport of data traffic and all damage other than that referred in Article 9 .2.
9 .4. The limitation of liability also applies to Parties’ affiliates, employees, agents and subcontractors.
9 .5. This Article is no way limits Back Engineering Labs Inc.’ liability for damages resulting from the Parties’ own intentional or deliberate recklessness.
9 .6. A condition for the creation of any right to compensation will always be that the Purchaser reports the damage in writing by registered mail, stating the reasons, as soon as possible after it occurs, and that Back Engineering Labs Inc. is offered a reasonable period of time to remedy it. Any right to compensation under this article will lapse in the event that the Purchaser has not reported the damage to Back Engineering Labs Inc. in writing and with substantiation within three (3) months after the time at which the damage first manifested itself noticeably.
9 .7. This Article shall survive termination of the Agreement.
10. Indemnification
10 .1. The Customer shall indemnify Back Engineering Labs Inc. against all liabilities, costs, expenses, damages and losses (including court costs and expenses) suffered by Back Engineering Labs Inc. as a result of or in connection with:
10 .1.1. Third party claims due to unauthorized or unlawful use or modification of the Services by Customer; 1 0.1.2. Third party claims based on an allegation that the information stored and/or exchanged by Customer or Users is unlawful.
10 .2. Back Engineering Labs Inc. shall indemnify the Customer against all liability and costs, damages or losses (including court costs and expenses), suffered or incurred by the Customer, arising out of, or in connection with, any dispute or claim against the Customer alleging that the Software or ay part thereof infringes the copyright, trademark, trade or patent rights, trade secrets or other intellectual property rights of third parties.
10 .3. Both parties shall promptly notify each other of any such claim, demand or proceeding and give each party the authority, information and assistance (at its own expense) for the defense thereof. Each party shall be responsible for paying its own damages and any incidental costs.
10 .4. This Article shall survive termination of the Agreement.
11. Termination
11 .1. The Customer cannot terminate or dissolve the Agreement other than pursuant to Article 3.2. of these General Terms and Conditions and the following paragraphs.
11 .2. Either Party may, without the need for written notice of default or court intervention and without being liable for any damages or compensation, terminate the Agreement in writing in whole or in part with immediate effect in the event that:
11.2.1. the other Party commits a material breach of any of the terms of the Agreement (if the breach is can be remedied) fails to remedy such breach within 30 days after that Party is notified in writing of the breach; 11.2.2. the other Party commits continuing breaches of the Agreement (after such breaches have been reported); 11.2.3. the other Party applies for suspension of payments or is declared bankrupt, or a substantial part of the other Party’s assets are seized; 11.2.4. the other Party had debts under a similar or analogous action in a foreign jurisdiction; or 11.2.5. the other Party should no longer be considered capable of fulfilling its obligations. 11.2.6. If either party shall be required to cease and desist from the performance or other obligations set forth in this Agreement by reason of any provision of law, order of any court or other public authority.
- Back Engineering Labs Inc. will be entitled to terminate the Agreement, in whole or in part, if and from the moment that the Service, the delivery of which is the subject of the Agreement, can no longer be supplied, is withdrawn from circulation or will otherwise no longer be available (permanently). A written notice period of at least six (6) months shall apply.
11 .4. In the event that at the time of the termination referred to in this Article the Purchaser has already received performances in connection with the performance of the Agreement,
those performances and the related payment obligations will not be subject to cancellation unless Back Engineering Labs Inc. is in default with respect to those performances. Amounts that Back Engineering Labs Inc. has invoiced before the termination in connection with what Back Engineering Labs Inc. has already performed or delivered in performance of the Agreement will continue to be due and will become immediately payable at the time of termination.
11 .5. In the event Customer wishes to terminate the Agreement, Customer is responsible for timely removal of the Content and termination of access to the Users. Fees may charged for making the Content available after termination of the Agreement.
11 .6. The Customer shall be obligated to notify Back Engineering Labs Inc. in writing within 30 days after the Termination Date as to what is to be done with the Content in the Software. In the event the Customer fails to provide timely instructions to Back Engineering Labs Inc. regarding the removal or export of the Content prior to the Termination Date, Back Engineering Labs Inc. shall be authorized to remove the Content from the Software after 120 days from the Termination Date.
11 .7. At the Customer’s request, Back Engineering Labs Inc. will cooperate in an export of Content to a third party. Back Engineering Labs Inc. does not guarantee that such transfer will be possible within Buyer’s expectations and bears no liability herein.
- Articles which by their nature are intended to continue to apply after the end of the Agreement shall remain in full force and effect upon termination of the Agreement.
12. Force majeure
12 .1. There shall be no failure by Back Engineering Labs Inc. to perform the Agreement, not shall Back Engineering Labs Inc. be held liable for any failure or delay in the performance of its obligations under the Agreement arising out of or attributable to force majeure. Force majeure includes, in any case, a failure of a supplier of Back Engineering Labs Inc., governmental measures and/or instructions, strikes, power failures, Internet and/or telephone failures and other measures beyond Back Engineering Labs Inc.’ reasonable control.
12 .2. If any delaying event referred to in Clause 1 2 .1 continues for a period of 60 days or more, then either Party may terminate the Agreement by giving the other Party written notice of its intention to terminate the Agreement with 14 days’ notice (to be counted from the date of said letter), unless the delaying event has ended in the meantime.
Chapter 2: Use of the Software
13. Access and use of the Software
13 .1. The Software is offered from central location San Francisco in the state of California in the United States as a shared and generic solution. The Software is not maintained specifically for Customer.
13 .2. Back Engineering Labs Inc. has the right to modify the functionality offered in the Software from time to time to improve or change the functionality and to correct errors. Back Engineering Labs Inc. will use its best efforts to fix errors in the Software but does not guarantee that all errors will be fixed. If a modification results in a change in functionality, Back Engineering Labs Inc. will provide notice. No changes will be made or omitted for the Customer.
13 .3. Users determine what Content is uploaded to the Environment. Back Engineering Labs Inc. has no knowledge of this information. Customer is responsible for ensuring that the Content uploaded by Users is lawful and does not violate the rights of third parties. Back Engineering Labs Inc. can in no way be held liable for the Content processed in the Environment.
13 .4. Back Engineering Labs Inc. is not responsible for the accuracy of the Content or Users’ compliance with regulations. Back Engineering Labs Inc. will make every effort to ensure that transactions entered by Users are correctly recorded and validated by the Software. However, Content incorrectly uploaded by a User may not be recognized as such by the Software and thus will be improperly stored and saved.
13 .5. If it becomes apparent to Back Engineering Labs Inc. that Content uploaded to the Environment is unlawful, Back Engineering Labs Inc. will block access to such Content and notify the Customer to resolve the situation, unless Back Engineering Labs Inc. is required by law to delete the relevant Content. In no event will Back Engineering Labs Inc. be liable for the storage of the Content or any damage resulting therefrom.
13 .6. The Customer shall ensure that Users will carefully follow Back Engineering Labs Inc.’ instructions and directions and are bound to comply with the applicable provisions of normal use of the Software. If the actions of the Customer or any User jeopardize the proper operation of the Software and related Software, Back Engineering Labs Inc. will be entitled to block access to the Software for that User or all Users, without prior notice.
13 .7. Back Engineering Labs Inc. has no limit on the quantity of data that Customer or Users may process when using the Software. However, this does not mean that Back Engineering Labs Inc. will permit unlimited processing of such data for any purpose. If the Customer uses the Software for purposes other than those stated in the Agreement, Back Engineering Labs
Inc. will inform the Customer in accordance with its fair use policy. The parties will then mutually coordinate the consequences thereof.
13 .8. Back Engineering Labs Inc. shall not be permitted to use the data from Customer’s Environment or Customer’s Content other than to provide Services to Customer. However, Back Engineering Labs Inc. shall be permitted, solely for the following purpose, to use such data in an anonymous form for statistical purposes if such statistical information will be used for continuous maintenance and improvement of the Software. Back Engineering Labs Inc. is additionally permitted, solely for the specific purpose of providing these services, to use a copy of the Environment, which will not be fully anonymized, in the test environment to monitor proper functioning of the Environment or to update the Software.
14. Implementation, new versions and maintenance
14 .1. The Customer shall grant and provide Back Engineering Labs with all access, assistance, data and materials necessary for Back Engineering Labs Inc. to properly provide the Customer with access to the Software.
14 .2. Unless otherwise agreed, Back Engineering Labs Inc. may temporarily suspend the Software or one or more parts thereof and/or restrict the use thereof and/or restrict the use thereof in the event that Back Engineering Labs Inc. deems it necessary to do so, for instance for the purposes of preventive maintenance or making corrections or adjustments. Back Engineering Labs Inc. will notify the Customer as soon as possible of the temporary unavailability or limited use of the Software if it will reasonably have a substantial impact on the Customer’s business operations. In cases of emergency as a result of which the Software must be interrupted with immediate effect or the use of the Software must be restricted, Back Engineering Labs Inc. shall notify the Customer as soon as reasonably possible.
14 .3. The Purchaser will follow Back Engineering Labs Inc.’ instructions and directions with respect to the Software, including the installation of any patches and updates for the Software.
14 .4 Back Engineering Labs Inc. reserves the right to implement technical protection measures in the Software. The Customer is not permitted to circumvent these technical protection measures.
15. Guarantees
15 .1 Back Engineering Labs Inc. makes every effort to ensure that the Software is free of defects and will operate without interruption.
15 .2. Customer is responsible for the acquisition, management, maintenance and/or proper functioning of Customer’s or third parties’ infrastructure. The Customer is liable for damage or costs caused by errors in transmission, failure or defective functioning or unavailability of computer, data or telecommunication facilities, including the Internet.
15 .3. Back Engineering Labs Inc. will inform the Customer upon request of the minimum requirements necessary to use of the Software. The Customer shall be responsible for complying with any technical and functional requirements provided by Back Engineering Labs Inc. that are necessary to use the Software. Back Engineering Labs Inc. may modify the requirements if developments of a technical and software nature make it necessary. In the event the Customer does not accept or is unable to comply with any requirements, the Customer shall be liable therefor.
15 .4 Customer acknowledges and agrees that the Software is provided on an “as is” basis.
15 .5 Back Engineering Labs Inc. shall make every effort to remedy any defects within three (3) months after delivery or acceptance of the Software in the event that Software does not meet the written specifications, provided that such defects have been reported to Back Engineering Labs Inc. in writing and in detail within such period. This effort does not include:
15.5.1. resolving all reasonably unforeseeable defects in the Software; 15.5.2. the error-free operation of the Software with other equipment and/or software not originating from Back Engineering Labs Inc.; 15.5.3. troubleshooting Software failures that are not reproducible; 15.5.4. resolving failures in the Software in the event that they are attributable to the Customer, for example, because the failures are due to the Customer’s computer system; and/or 15.5.5. restoration of any mutilated or lost data.
15 .6. A repair as referred to in Article 1 5 .5 will be carried out free of charge unless it is due to user errors, improper use or unauthorized use by the Purchaser or other causes not attributable to Back Engineering Labs Inc..
15 .7. The obligation of effort will lapse in the event the Customer, or third parties make changes to the Software without Back Engineering Labs Inc.’ written consent.
16. Use of the Software
16 .1 In order to use the Software, Customer requires login Credentials.
16 .2. The Customer is responsible for keeping the Login Information Confidential. As soon as the Customer knows or has reason to suspect that its login information has fallen into the hands of unauthorized persons, the Customer must inform Back Engineering Labs Inc. promptly, without prejudice to the Customer’s own responsibility to take immediate and effective action, for example by changing its Login Data. The Customer is at all times responsible and liable for the use of Content and the Software by third parties using the Customer’s Login Information. The Customer shall indemnify Back Engineering Labs Inc. for all damage and costs arising from and/or related to the use of Content and/ or the Software by third parties through the Customer’s Login Information.
16 .3. If Back Engineering Labs Inc. determines that the Content stored in the Software or processed through the Software is unlawful, Back Engineering Labs Inc. will block access to that data and give the Customer an opportunity to remedy the situation, unless Back Engineering Labs Inc. is required by law to remove the data in question. Under no circumstances will Back Engineering Labs Inc. be liable for the storage of the data or any damage resulting therefrom.
17. Additional Services
17 .1. The parties may separately and in writing agree that the Customer will purchase additional Services from Back Engineering Labs Inc.. These Services may provided for a specific fee. Upon the Customer’s request, Back Engineering Labs Inc. will send the Customer a Service Request which must be accepted by the Customer in writing. Without receipt of a Service Request signed by the Customer, Back Engineering Labs Inc. cannot provide the Services. Back Engineering Labs Inc. will diligently perform such Services in accordance with the accepted Service Request. In providing Services, Back Engineering Labs Inc. cannot guarantee that it will achieve any specific result. Consultants will not be liable for the accuracy and/or completeness of any response.
17 .2. If it has been agreed that Services will be provided in phases, Back Engineering Labs Inc. will be authorized to delay the commencement of the Services that are part of a phase until the Customer has approved the result of the preceding phase in writing.
17 .3. Back Engineering Labs Inc. will only be obliged to follow instructions from the Purchaser regarding the performance of Services if this has been explicitly agreed upon in writing, does not require additional work and insofar as the instructions are reasonable and provided in a timely manner.
17 .4. If a Service Request is entered into with the request to have it performed by a specific person, Back Engineering Labs Inc. nevertheless remains authorized at all times, after the Customer has been informed thereof, to have such person replaced by another person.
Chapter 3: Service Level
18. Support
18 .1. Customer is entitled to Support for the use of the Software regarding the functionality of the Software. Support is available Monday through Friday from 9:00 to 17:30 Pacific Time. Back Engineering Labs Inc. can only provide Support if the Customer uses the operational systems supported by the manufacturer of the operational systems. Support consists of general assistance with respect to the Software, including explanation of the documentation, help enabling Customer to operate the Software correctly, and verification and analysis of the accuracy of the data entered and processed. Support does not relate to
the Services purchased by Customer.
18 .2. Users may submit a Support Ticket to Back Engineering Labs Inc. by email. Users may use the website for further information.
18 .3. Back Engineering Labs Inc. and third parties engaged by Back Engineering Labs Inc. may access the Environment and Content in order to provide Support and may take appropriate action they deem necessary to resolve a problem as stated in a Support Ticket.
18 .4. Support will be offered remotely from a Back Engineering Labs Inc. service center. If assistance at the Customer’s location is required, a separate agreement will have to be made at the then applicable rate.
18 .5. Back Engineering Labs Inc. is not liable for any incorrect, incomplete or delayed transmission and/or receipt of a Support Ticket submitted by a User caused by the incomplete functioning of third-party telecom services or hardware and/or Customer.
18 .6. Back Engineering Labs Inc. may charge the Purchaser for providing a Service or a Service Request. In that case, Back Engineering Labs Inc. will inform the Customer in advance and the requested Service will not be provided until after the Customer’s approval.
19. Accessibility Software
19 .1. Back Engineering Labs Inc. will provide a minimum level of accessibility (uptime) of the Software of 99.9% per month, except for the limitations set forth in this Article. Pre- announced update and maintenance work will be excluded from the calculation of this percentage.
19 .2. Accessibility means that the Software is accessible via the URL provided to Customer.
19 .3. Accessibility cannot be understood to mean the existence of a working point-to-point connection between the Customer’s systems and Back Engineering Labs Inc. suppliers maintaining the Servers.
19 .4. Back Engineering Labs Inc. is not responsible for the Customer’s systems or any connection to other third-party systems.
20. Operation of the Software
20 .1. Back Engineering Labs Inc. warrants that it will make every effort to ensure that the Software will operate properly and without any defect and that the speed will be sufficient for continuous use during the day. Notwithstanding the foregoing, Back Engineering Labs Inc. shall:
20.1.1. does not guarantee that Customer’s use of the Software will be uninterrupted or error-free, nor that the performance of the Software will meet Customer’s requirements; and 20.1.2. not be responsible for any delays, transmission failures, or any other loss or damage arising from the transmission of data over communications networks and facilities, including the Internet. Customer is aware that the Software may be subject to limitations, delays and other problems inherent in the use of Software.
20 .2. Back Engineering Labs Inc. guarantees availability as described in Section 1 9 .1 only if and to the extent that, Customer meets the minimum system requirements specified by Back Engineering Labs Inc., including Internet support, Firefox and other browsers running on Windows, Apple Macintosh and Linux or other platforms. In additional, Customer and Back Engineering Labs Inc. must have adequate bandwidth. In this regard, it is assumed that at least 128 Kbit’sec (both download and upload) is available at all times to the workstation from where the Software is used, such to be measured by an independent website such as http://www.speedtest.nl. However, it is not necessary for each individual workstation to have this bandwidth.
20 .3. Back Engineering Labs Inc. is authorized to make changes to these minimum system requirements at any time. If so, the Customer will be informed in advance. If the Customer does not comply with these new requirements, the above warranty regarding performance will lapse.
21. Backup and other services
21 .1. Once Back Engineering Labs Inc. determines or is aware of a defect in the Software, Back Engineering Labs Inc. will use all reasonable available resources to expedite resolution of such defect. Back Engineering Labs Inc. will use its best efforts to meet a Recovery Time Objective (RTO) of 24 hours and a Recovery Point Objective (RPO) of 3 hours during business days and will adopt the following backup policy: a) Creating daily backups of Customer’s Content and deleting them after 30 days: b) Creating monthly backups of Customer’s Content and deleting them after one year; c) backing up Customer’s Content one in a 3-month period and deleting it after 3 years.
21 .2. After termination of the Agreement and if a request to that effect has been made in accordance with Articles 1 1 .6 and 1 1 .7, Back Engineering Labs Inc. will make the Customer’s Content available in a generally accessible file and standard file format at the Purchaser’s expense and If the Parties have agreed on the conditions in that regard. Back Engineering Labs Inc. will not be obliged to convert the Content made available or otherwise make it suitable for use by the Purchaser, unless the Parties have agreed on this.
21 .3. The Customer may request to restore the Content by using the Backups in accordance with Article 2 1 .1. In such a case, Back Engineering Labs Inc. shall not be obliged to restore or otherwise make suitable for use by the Customer any Content added later than the time the backup was made.
22. Exceptions
22 .1. The service level set forth in Articles 1 9 through 2 1 does not apply in the following situations:
22.1.1. during regular maintenance times. These will not be scheduled more than 4 times per month and will not start before 7:00 pm Pacific time. Back Engineering Labs Inc. will inform the Customer in writing of such maintenance moment at least 3 business days in advance; 22.1.2. in case of incidents due to or attributable to force majeure; 22.1.3. in case of any problem, interruption or malfunction caused by any act of Customer; 22.1.4. in case of unavailability of the Software at Customer’s request and/or unavailability of the Software during work at Customer’s request; 22 .1.5. if Back Engineering Labs Inc. requires assistance from Customer to determine or isolate the problem, interruption or malfunction, and Customer does not provide such assistance; 22.1.6. if Customer fails to meet the minimum system requirements as stated in Article 20 .2.; 22.1.7. if the incident was caused by a defect in the Customer’s system or infrastructure.
Chapter 4: Miscellaneous
23. Miscellaneous
23 .1. This Agreement and all use of Services is governed by the laws of the state of Delaware and the federal laws of the United States of America
23 .2. Disputes between Back Engineering Labs Inc. and the Purchaser shall be submitted exclusively to the competent Delaware’s Court of Chancery
23 .3. In the event that any provision of these General Terms and Conditions is declared void or is nullified, the other provisions will remain in full force and effect. Back Engineering Labs Inc. will then adopt a new provision to replace the void/annulled provision, taking into account as much as possible the purport of the void/annulled provision.
23 .4. Back Engineering Labs Inc. is entitled to engage third parties for the performance of the Agreement.
23 .5. The Customer cannot (sub)license or transfer the rights and obligations under the Agreement to a third party unless Back Engineering Labs Inc. expressly consents thereto in writing. Back Engineering Labs Inc. will not withhold such consent on unreasonable grounds.
23 .6. Back Engineering Labs Inc. may (sub)license and/or transfer the rights and obligations under the Agreement to a third party without the Customer’s consent.
23 .7. The failure of Back Engineering Labs Inc. at any time to invoke any right or power vested in it under the Agreement, or the law shall not constitute a waiver of such right or power.