BDM Enterprises, Inc.

Terms of Service

Whereas, these Terms of Service (these “Terms” or this “Agreement”) are entered into by and between BDM Enterprises, Inc. (“BDM”, or “Company”) and the person or entity who accepted these Terms by execution of the “Order Form” to which these Terms are attached as Exhibit A (such person or entity, the “Client”, and such date of execution, the “Effective Date”). BDM and Client may be referred to individually as a “Party” or collectively as the “Parties” to these Terms. Any reference to “these Terms” or “this Agreement” includes the Order form and all exhibits thereto.

Now, Therefore, the Parties agree as follows:

  1. Services and Compensation.

  1. Services. Company shall provide, during the Term of this Agreement, the services selected by Client on the Order Form (the “Services”). Company shall begin provision of the Services as soon as practicable following the Effective Date, but in no event longer than ten (10) days thereafter.

  1. Compensation. All Services are subject to the payment terms set forth in Exhibit B to the Order Form (the “Fees”), and Company’s provision of the Services is subject in all respects at all times to Client’s payment of the Fees in the timeframes specified in Exhibit B. Capitalized terms used by not defined in Exhibit B will have the meanings ascribed to them herein.

  1. Service Support. During regular business hours (M-F 8-5 CST), Client may reach Company for service support by telephone or SMS at 847-243-6921 or by email at Client may request support service by email or SMS at any time, which shall be processed and responded to by Company as soon as reasonably practicable.

  1. Warranties and Limitation of Damages.

  1. Company Warranties. Company warrants that the Services shall be provided by staff possessing the required skills and experience and that the Services shall be provided in a professional and workmanlike manner.

The foregoing is the only warranty Company has given to Client regarding the Services. Such warranty is in lieu of all other warranties, express or implied, including warranties of merchantability, fitness for a particular use or purpose, or non-infringement. Except as otherwise provided herein, all Services are provided to Client on an “as is” basis. Without limiting the generality of the foregoing, Client understands and acknowledges that the Services may be subject to limitations, delays, service interruptions, and other problems inherent in the use of the internet and electronic communications. Company is not responsible for any delays, delivery failures, or other damages resulting from such issues or problems.

  1. Limitation of Damages & Claims. Notwithstanding anything herein to the contrary, the liability of Company and/or its principals, agents, and affiliates to Client shall in all cases be limited to the fees actually received by Company from Client for Services performed in the twelve (12) month period immediately preceding the day of the event giving rise to the claim for liability.

In no event will either Party be liable to the other Party or to any third party for any incidental or consequential damages (including but not limited to damages to business reputation, lost business, postal charges or lost profits), whether foreseeable or not and however caused, even if the Party is advised of the possibility that such damages may arise.

Any claim by Client arising from, or relating to, these Terms must be brought within one (1) year from the date such claim arose.

  1. Acknowledgement. Client expressly acknowledges and agrees that (i) the forgoing provisions are an essential component of Company’s willingness to enter into this Agreement; and (ii) Client has read and understood the terms contained in this Section 2.

  1. Intellectual Property.

  1. Generally. Title to and ownership of the software, system, algorithms, know-how, trade secrets, and/or technology used by Company to provide the Services contemplated hereunder, and all related intellectual property rights, rights to patents, copyrights, trademarks and trade secrets, and rights to any and all ideas, designs, concepts, techniques, discoveries, inventions, enhancements, improvements, products, computer programs, procedures, specifications, data, memoranda, and other materials, whether or not patentable, related to the foregoing (collectively, the “Intellectual Property”) of Company shall remain with and shall be the property of Company and/or the owner of third party content or software which is incorporated into or provided with the Intellectual Property, as the case may be. Nothing herein shall be construed as a transfer, assignment, or license of any intellectual property rights of Company, or any or its principals or affiliates, to Client, or any its principals or affiliates (including by estoppel), except as specifically provided in this Agreement. For clarification, Intellectual Property belonging to Company will include any suggestions, ideas, enhancement requests, feedback, recommendations or other information that Client or its principals, agents, affiliates, or end users may provide relating to the features, functionality or operation of the Services.

  1. License to Client. Subject in all respects to Client’s on-time payment of all fees and other amounts owed to Company for the Services, Company hereby grants to Client a perpetual, royalty-free, non-exclusive, non-transferable right and license to access and use the Intellectual Property of Company, solely to the extent contained in the Services and solely to the extent necessary for Client or its end users (and their respective successors and assigns) to access and use the Services in the manner contemplated hereunder. Such license shall immediately terminate upon the termination of this Agreement for any reason, and in any such termination Client shall return, or destroy, at Company’s election, any Intellectual Property held at that time by Client as soon as commercially practicable, but in no event more than five (5) business days following such termination.

  1. Additional Restrictions. Client shall not, either during the Term of this Agreement or thereafter, decompile, decode, reverse engineer in whole or in part the Services or any other Intellectual Property of Company, including without limitation in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of such Intellectual Property, or (iii) copy any ideas, features, functions, or graphics or Company or its Intellectual Property.

  1. Term; Termination.

  1. Term. The term of this Agreement (the “Term”) shall begin on the Effective Date and continue for a period of one (1) calendar month, renewing automatically for successive terms (each of which constitute the “Term” of this Agreement), unless earlier terminated in accordance with the provisions of this Section 4. Upon termination, Client shall be responsible for all Fees incurred through the date of termination, payable in accordance with the terms of Exhibit B.

  1. Termination. The Parties may terminate this Agreement as follows:
  1. Either Party may terminate this Agreement for convenience upon thirty (30) days’ notice to the other Party.
  2. Either Party may terminate this Agreement immediately upon the other Party’s breach of this Agreement, provided that, other than in the event of Client’s breach of Section 4, the breaching Party is notified of such breach fails to remedy the same within thirty (30) days of such notice.

  1. Remedies; Arbitration.

  1. Arbitration. Any dispute, claim, or controversy arising out of or relating to this agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to Arbitrate, shall be subject to final and binding arbitration governed by the Federal Arbitration Act (9 U.S.C. §1 Et Seq.). The arbitration shall be conducted before a single arbitrator in accordance with the commercial dispute resolution procedures and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”) then in effect, as modified by this Agreement, and will be administered by the AAA. Judgment on the award may be entered by any court having jurisdiction, subject to the terms of this Agreement. This clause shall not preclude either Party from seeking temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which the Party may be entitled may be rendered ineffectual without such provisional relief.

  1. Certain Breaches. Notwithstanding the foregoing, Client acknowledges and agrees that its breach of Section 4 of this Agreement may cause immediate and permanent harm to Company, and that Company is entitled to, without limiting any other remedy available to it by law or in equity, seek injunctive relief from any court with competent jurisdiction in the event of such breach.

  1. Indemnification.

Client agrees to indemnify and hold harmless the Company and (if applicable) its parent, subsidiaries, affiliates, and their respective officers, directors, attorneys, agents, employees, licensors and suppliers (the “Company Indemnitees”) against any claim or demand and all liabilities, costs and expenses (including reasonable attorneys' fees) incurred by Company and (if applicable) any Company Indemnitee resulting from or arising out of Client’s breach of these Terms, Client’s improper use of the Services, and/or your violation of any law or the rights of a third party.

  1. Miscellaneous.

  1. Waiver. A waiver by a Party of its rights or of the performance by any other Party of any of its obligations under this Agreement shall be without prejudice to such Parties other rights under this Agreement and shall not constitute a waiver of any other of such rights or of the performance by the other Party of any other of its or their obligations under this Agreement.

  1. Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement, or to enjoy any of its benefits because of (or if loss of the Services is caused by) natural disaster, actions or decrees of governmental bodies or agencies, war, civil disturbances, terrorism or communication line failure, or other cause not the fault of the affected Party (a “Force Majeure Event”), the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the Party whose ability has not been so affected, may, by giving written notice, terminate this Agreement, or cancel, without cancellation charge, any unfilled commitment to purchase or provide the Services.

  1. Governing Law. This Agreement, and all claims or causes of action (whether in contract, tort, or statute) that may be based upon, arise out of, or relate to this Agreement (including any claim or cause of action based upon, arising out of, or relating in any way to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of the State of Delaware, including its statutes of limitations, without regard to any borrowing statute that would result in the application of the statute of limitations of any other jurisdiction.