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MEMBER AGREEMENT
(TERMS OF SERVICE)

 

Last Modified: May 26, 2021

NOTE: Service Autopilot is a DBA of BACKTELL LLC (“BACKTELL”). All references made to Service Autopilot or BACKTELL are interchangeable.

Thank you for being a Service Autopilot member and using BACKTELL’s Service Autopilot Platform (the “Service”).


These Terms of Service (“TOS”) contain the terms under which BACKTELL provides the Service to you and describe how the Service may be accessed and used.


BACKTELL provides a variety of different services, including the Service Autopilot Academy and the Certified Advisor Program, which are not covered by your Service Autopilot membership. To the extent that you also subscribe to or become involved with these additional services, additional service-specific terms and policies, including rules and guidelines (“Additional Terms”), may apply, and those Additional Terms become a part of your agreement with us. We refer to the combination of these Terms of Service and any applicable Additional Terms collectively as these “Terms“.


You indicate your agreement to these Terms by clicking or tapping on a button indicating your acceptance of these Terms, by executing a document that references them, or by using the Services.


If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organization.


1. Fees and Payments


1.1. Fees for Services. You agree to pay to BACKTELL any fees for the Service in accordance with the pricing presented to you when you registered, subject to the terms hereof and subject to any pricing changes made in accordance with these Terms of Service.


1.2. Subscription. The Service is billed on a subscription basis and your subscription to the Service is your “Membership”. You will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are monthly and begin on the day that you first signed up for Service Autopilot.


1.3. Credit and Debit Cards. BACKTELL accepts debit cards and the following credit cards as means of paying for the Service: American Express, Master Card, Discover and Visa. Should you opt at registration to pay by debit or credit card, you authorize BACKTELL to charge your credit card or bank account for all fees payable during each billing cycle. You further authorize us to use a third party to process payments, and consent to the disclosure to and storage of your payment information by such third party (BACKTELL does not store your credit card information on or within its servers or databases). If your credit card is declined, BACKTELL will instruct its third-party payment processor to attempt to charge the card on file for 10 days while at the same time attempting to notify you. It is your responsibility to provide BACKTELL with a current email address, phone number and credit or debit card number and expiration date.


1.4. Taxes. Unless otherwise stated, you are responsible for any taxes (other than any taxes based upon BACKTELL’s gross revenues or net income) or duties associated with the sale of the Service, including any related penalties or interest (collectively, “Taxes”). You will pay BACKTELL for the Service without any reduction for Taxes. If BACKTELL is obliged to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide BACKTELL with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged.


1.5. Price Changes.
Annual Subscription. For an Annual Subscription, the fees charged for the Service shall be consistent for the Initial Annual Term, unless otherwise agreed during the registration process. The price for each Additional Annual Term shall be at BACKTELL’s list price at the time of the renewal for such Additional Annual Term (as listed on BACKTELL’s website) and shall not include any discounts previously provided. To the extent that the pricing will differ from the list price, BACKTELL will provide you with written notice of the pricing for each Additional Annual Term at least ninety (90) days prior to the renewal date. Any Annual Subscription that is entered into as a package of bundled services will remain as bundled services for the entire Initial Annual Term or Additional Annual Term, as applicable, and you shall not be able to amend the package of services during such period.


Monthly Subscription. For a Monthly Subscription, BACKTELL may change the fees charged for the Service at any time, provided that the change will become effective only at the end of the Initial Monthly Term or Additional Monthly Term, as applicable. BACKTELL will provide you with at least thirty (30) days’ prior written notice of any change in fees before it becomes effective.


1.6. Disabled Account. All Memberships 10 days past due will be disabled until the full balance is paid. During this period all access will be suspended and all data will be unavailable. If a Membership remains delinquent for more than 45 days, it will be terminated and the associated account is closed.


1.7. Charge Backs. If you initiate a charge back, BACKTELL will suspend your Membership until the matter is resolved. Charge backs on your Membership that are made by you to avoid payment will result in a $75 fee to you.


1.8. Refunds. BACKTELL does not issue refunds unless the request for a refund is received during any designated money back guarantee period. BACKTELL does not monitor your use of the Service and will not issue refunds for non-use or limited use of the system.


1.9 Free Trials. If you register for a free trial, we will make the Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not earlier terminated) or (b) the start date of your paid subscription. Unless you purchase a subscription to the Service before the end of the free trial, all of your data in the Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those terms will apply as well.


2. Content and IP Rights


2.1. Your Content. In the course of using the Service, you may submit content to BACKTELL (including your personal data and the personal data of others) or third parties may submit content to you through the Service (your “Content”). You retain ownership of all of your intellectual property rights in your Content. BACKTELL does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Service, and as otherwise described in these Terms.


2.2. Limited License to Your Content. You grant BACKTELL a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise utilize your Content, but only for the limited purposes of providing the Service to you and as otherwise permitted by BACKTELL’s privacy policies. This license for such limited purposes continues even after you stop using our Service, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of BACKTELL’s business. This license also extends to any trusted third parties we work with to the extent necessary to provide the Service to you. If you provide BACKTELL with feedback about the Service, we may use your feedback without any obligation to you.


2.3. BACKTELL IP. This is an Agreement for access to and use of the Service, and you are not granted a license to any software by this Agreement. The Service is protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Service or any content provided by BACKTELL, in whole or in part, by any means, except as expressly authorized in writing by us. You may not use any of our trademarks without our prior written permission.


2.4. User Content. The Service displays content provided by others that is not owned by BACKTELL. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Service. BACKTELL is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Service unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.


2.5. Content Review. You acknowledge that, in order to ensure compliance with legal obligations, BACKTELL may be required to review certain content submitted to the Service to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. However, BACKTELL has no obligation to monitor or review any content submitted to the Service.


2.6. Third Party Resources. BACKTELL may publish links in its Service to internet websites maintained by third parties. BACKTELL does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Service are the property of their respective owners.


2.7. Marketing and Advertising. BACKTELL may identify you, by name and logo, as a Service Autopilot customer on Service Autopilot’s website and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit. If you do not wish for your name and logo to be a part of these marketing efforts, you must notify us in writing and allow BACKTELL up to thirty days to remove this information.


2.8. Copyright Claims (DCMA Notices). BACKTELL responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify a BACKTELL representative.


2.9. Other IP Claims. BACKTELL respects the intellectual property rights of others, and we expect our users to do the same. If you believe a BACKTELL user is infringing upon your intellectual property rights, you may report it through our online form. Claims of copyright infringement should follow the DMCA process outlined in these Terms, or any equivalent process available under local law.


3. Customer Data


3.1 Our Use of Customer Data. Various aspects of the Service will allow you to manage information related to your customers (hereafter “Customer Data”). We will not use, or allow anyone else to use, your Customer Data to contact any individual or company except as you otherwise direct or permit. We will use your Customer Data only in order to provide the Service to you and only as permitted by applicable law, this Agreement, and our Privacy Policy.


3.2 Certified Advisors. If you have partnered with a Certified Advisor that participates in our Service Autopilot Certified Advisor Program, we may monitor that advisor’s activity within your Membership and make information related to your Membership available to the advisor based on your express authorization.


3.3 Aggregated and Anonymous Data. We may monitor use of the Service by all of our customers and use any data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not specifically identify you or any of your customers.


3.4 Security. We will maintain commercially reasonable and appropriate administrative, physical, and technical safeguards to protect Customer Data. For purposes of complying with any relevant privacy, cybersecurity or breach notification laws, you agree that the processing of Customer Data by BACKTELL will all be deemed to have occurred in the state of Texas.


3.5 Data Storage. Subject to Section 6.3 below concerning the cancellation or termination of your Membership, we agree that most of your Customer Data will remain on our servers and be accessible to you while your Membership remains active and in good standing. However, certain types or categories of data are only maintained on our servers for a finite period of time. GPS waypoints used to plot breadcrumb trails are stored for six months. Waypoints used to identify location at the time of clock in time / clock out time are stored indefinitely.


3.6. Data Loss. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (a) transmissions over the Internet to various networks or devices; and (b) changes to conform and adapt to technical requirements of connecting to the Internet or to various networks or devices. BACKTELL is not responsible for the restoration of any Content or Customer Data lost as a result of these Internet transfers, your actions or your use of any and all “delete” functions within the system, nor through deletion of any data by you within any systems which integrate and transfer data to our system, including, without limitation, QuickBooks. BACKTELL, at its sole discretion, may assist in retrieving and restoring deleted information and may choose to charge and bill you for the associated services, including time and materials involved.


4. Account Management


4.1. Keep Your Password Secure. If you have been issued an account by BACKTELL in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not BACKTELL, are responsible for any activity occurring in your account (other than activity that BACKTELL is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify BACKTELL immediately. Accounts may not be shared and may only be used by one individual per account.


4.2. Keep Your Details Accurate. BACKTELL occasionally sends notices to the email address registered with your account. You agree that you must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.


4.3. Remember to Backup. You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, BACKTELL will not be liable for any failure to store, or for loss or corruption of, your Content.


5. User Requirements and Acceptable Uses; Confidentiality


5.1. Legal Status. If you are an individual, you may only use the Service if you are old enough to have the power to form a contract with BACKTELL. The Service is not intended for use by individuals less than 13 years old. If you are under 13 years old or you are not old enough to have the power to form a contract with BACKTELL, you may not use the Service. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into these Terms, and that you have duly authorized your agent to bind you to these Terms. You represent and warrant that you will comply with all laws and regulations applicable to your use of the Service.


5.2. Legal Compliance. You must use the Service in compliance with, and only as permitted by, applicable law.


5.3. Your Responsibilities. You are responsible for your conduct, Content, and communications with others while using the Service. You must comply with the following requirements when using the Service:


(a) You may not purchase, use, or access the Service for the purpose of building a competitive product or service or for any other competitive purposes.
(b) You may not misuse our Service by interfering with its normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
(c) You may not circumvent or attempt to circumvent any limitations that BACKTELL imposes on your account.
(d) Unless authorized by BACKTELL in writing, you may not probe, scan, or test the vulnerability of any BACKTELL system or network.
(e) Unless authorized by BACKTELL in writing, you may not use any automated system or software to extract or scrape data from the websites or other interfaces through which we make our Service available.
(f) Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Service, or attempt to do so.
(g) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Service.
(h) You may not engage in abusive or excessive usage of the Service, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Service for other users. BACKTELL will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to BACKTELL.
(i) You may not use the Service to infringe the intellectual property rights of others, or to commit an unlawful activity.
(j) Unless authorized by BACKTELL in writing, you may not resell or lease the Services.
(k) If your use of the Service requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless BACKTELL has agreed with you otherwise. You may not use the Service in a way that would subject BACKTELL to those industry-specific regulations without obtaining BACKTELL’s prior written agreement. For example, you may not use the Service to collect, protect, or otherwise handle “protected health information” (as defined in the Health Insurance Portability and Accountability Act of 1996, 45 C.F.R. §160.103) without entering into a separate business associate agreement with BACKTELL that permits you to do so.

(l) To the extent that you use the Service to process credit card payments from your customers, you agree not to keep credit card information in plain text or unencrypted form in the body of notes fields, custom fields, to dos, calls, etc. within the Service. All credit card data must be stored within secure credit card forms. It is your responsibility to comply with all credit card security standards, including but not limited to the Payment Card Industry Data Security Standards (“PCI-DSS”).
(m) YOU MAY NOT USE YOUR MEMBERSHIP TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. BACKTELL WILL NOT INCUR ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
(n) You have the ability to send text or email messages through the Service (the “Communication Services”). To the extent that you use the Communication Services, you agree to comply with the United States CAN-SPAM Act. You further acknowledge that we do not control the content, messages or information found in your communications and that we will not incur any liability with regards to your use of Communication Services or any actions resulting therefrom.


5.4. Confidential Information.


(a) During the term of your subscription, each party may disclose to the other certain nonpublic or proprietary information or materials relating to a party’s products, technology, business or marketing, which it wishes the other party to treat as confidential (“Confidential Information”). Confidential Information includes all such information marked as “Confidential” or “Proprietary” at the time of disclosure, or if disclosed orally, its confidential nature is confirmed in writing within thirty (30) calendar days of disclosure. Customer agrees that notwithstanding any failure to so specify, the Service and related information provided by BACKTELL and the terms and conditions (but not the existence) of these TOS will be deemed Confidential Information of BACKTELL. Notwithstanding the foregoing, Confidential Information does not include, and nothing in the TOS will prohibit or limit either party’s use of, information (including but not limited to ideas, concepts, know-how, techniques, and methodologies) that: (a) is or becomes publicly available through no breach by the receiving party of these TOS; (b) was previously known to the receiving party prior to disclosure, as evidenced by contemporaneous written records; or (c) was acquired from a third party with no breach of any obligation of confidentiality. Notwithstanding the foregoing, the receiving party shall not violate this agreement regarding a disclosure in response to a valid order by a court or other governmental body or subpoena or required by applicable law or governmental regulations, provided that the receiving party provides to the disclosing party prior written notice of such disclosure, unless prohibited by applicable law.


(b) Protection of Confidential Information. Except as provided, the receiving party will not use or disclose any Confidential Information without the disclosing party’s prior written consent, except to the receiving party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information at least as restrictive as the receiving party’s obligations under this Section 5.4. Besides the foregoing nondisclosure obligations, the receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party’s own confidential and proprietary information and trade secrets, and in no event less than reasonable care. The receiving party will return all Confidential Information promptly upon the request of the disclosing party or upon termination of this agreement.


(c) Equitable Remedy. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party will not have an adequate remedy in money or damages if any unauthorized use occurs or disclosure of its Confidential Information. Besides any other remedies that may be available in law, in equity or otherwise, the disclosing party may seek injunctive relief to prevent such unauthorized use or disclosure.


(d) Term of Nondisclosure Obligations. The parties’ obligations in this Section 5.4 will survive termination of these TOS, and will bind the receiving party’s representatives, successors and permitted assigns, if any.


6. Term, Suspension and Termination of Services


6.1. Term. At the time of registration, you elected and agreed to either a twelve (12) month subscription (“Annual Subscription”) or a one (1) month subscription (“Monthly Subscription”).


Annual Subscription. An Annual Subscription is effective on the day that you first signed up for Service Autopilot and shall be effective for twelve (12) months (the “Initial Annual Term”). For an Annual Subscription, your subscription will automatically renew at the end of the Initial Annual Term for another twelve (12) month period (each, an “Additional Annual Term”), unless a party gives not less than sixty (60) days written notice prior to the expiration of the Initial Annual Term or an Additional Annual Term, as applicable.


Monthly Subscription. A Monthly Subscription is effective on the day that you first signed up for Service Autopilot and shall be effective for one (1) month (the “Initial Monthly Term”) For a Monthly Subscription, your subscription will automatically renew at the end of the Initial Monthly Term for another one (1) month period (each, an “Additional Monthly Term”) at the end of each billing cycle unless a party gives not less than thirty (30) days written notice prior to the expiration of the Initial Monthly Term or an Additional Monthly Term, as applicable.


6.2. Termination By You; Termination in the Middle of a Term. If you terminate a Membership in the middle of a term, you will not receive a refund for any period of time you did not use in that term unless you are terminating these Terms for Cause. “Cause” is defined as follows: (a) because we have materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing, or (b) a refund is required by law. For security reasons, including without limitation, fraudulent cancellations, we cannot accept a request for termination via email. All requests for termination must be initiated verbally by contacting a BACKTELL customer service representative. The representative will then email you a short online cancellation form. Once you complete the form, your Membership will be terminated and your account will be immediately closed. Cancelling a credit card does not constitute a cancellation.

6.3. Early Termination. An Annual Subscription is a firm obligation for its entire term. If you to terminate the Annual Subscription before the then-current Initial Annual Term or Additional Annual Term is over (and not in accordance with the termination provision set forth in Section 6.1 above), you must provide written notice to BACKTELL in accordance with Section 6.2 above and you will owe a termination fee equal to all of the remaining payments due with respect to the current term (either the Initial Annual Term or Additional Annual Term, as applicable) (the “Early Termination Fee”). Payment is due in full within 30 days of delivery of the written notice of termination to BACKTELL.


6.4 Termination By BACKTELL. BACKTELL may terminate your Membership at the end of the then-current Initial Annual Term, Additional Annual Term, Initial Monthly Term, or Additional Monthly Term by providing you with thirty (30) days’ notice prior to the end of such applicable term.. BACKTELL may suspend performance or terminate your Membership (a) in accordance with Section 1.6 above, (b) because you have materially breached these Terms and failed to cure that breach within 30 days after BACKTELL has so notified you in writing, (c) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days, (d) you inflict verbal, written or other abuse (including threats) on any BACKTELL employee or representative or any other Service Autopilot member., or (e) you breach your confidentiality obligations set forth in Section 5.4. Additionally, BACKTELL may limit or suspend the Service to you if you fail to comply with these Terms, or if you use the Service in a way that causes legal liability to us or disrupts others’ use of the Service. BACKTELL may also suspend providing the Service to you if we are investigating suspected misconduct by you. If we limit, suspend, or terminate your use of the Service, we will endeavor to give you advance notice and an opportunity to export a copy of your Content from the Service. However, there may be time sensitive situations where BACKTELL may decide that we need to take immediate action without notice. BACKTELL will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. Any of your Content that is stored in a canceled or terminated account will be deleted after 60 days from the cancellation date. After that time, BACKTELL has no obligation to retain your Content.


6.5. Further Measures. If BACKTELL stops providing the Service to you because you have repeatedly or egregiously breached these Terms, BACKTELL may take measures to prevent the further use of the Service by you, including blocking your IP address.


7. Changes and Updates


7.1. Changes to Terms. BACKTELL in its sole discretion may change these Terms at any time, including but not limited to the need to reflect changes in applicable law or updates to the Service, and to account for new services or functionality. The most current version will always be posted on the Service Autopilot website. If an amendment is material, as determined in BACKTELL’s sole discretion, BACKTELL will notify you by email. Notice of amendments may also be posted to BACKTELL’s blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. If you do not want to agree to any changes made to the terms for the Service, you should stop using the Service, because by continuing to use the Service you indicate your agreement to be bound by the updated terms.


7.2. Changes to Services. BACKTELL is constantly working to change and improve the Service. In that regard, BACKTELL may add, alter, or remove functionality from the Service at any time without prior notice. BACKTELL may also limit, suspend, or discontinue the Service at its discretion. If BACKTELL discontinues the Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from the Service. BACKTELL may remove content from the Service at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.


7.3. Beta Services. From time to time, we may provide beta access to new features associated with the Service or completely new subscription based services (the “Beta Services”) to you. With respect to these services, (a) the Beta Services are provided “as is” and without warranty of any kind, (b) we may suspend, limit, or terminate the Beta Services for any reason at any time without notice, and (c) we will not be liable to you for damages of any kind related to your use of the Beta Services. If we inform you of additional terms and conditions that apply to your use of the Beta Services, those will apply as well. We may require your participation to be confidential, and we may also require you to provide feedback to us about your use of the Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.


8. Disclaimers, Limitations of Liability and Indemnification


8.1. Disclaimers. While it is in BACKTELL’s interest to provide you with a great experience when using the Service, there are certain things we do not promise about them. We try to keep our online Service up and running, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND BACKTELL DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.


8.2. Exclusion of Certain Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BACKTELL, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICE AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF BACKTELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.


8.3. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF BACKTELL, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO BACKTELL FOR USE OF THE SERVICE AT ISSUE DURING THE 3 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US $2000.00.


8.4. Consumers. We acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in these Terms limits any of those consumer rights.


8.5. Indemnification. You will indemnify and hold harmless BACKTELL and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding or in connection with (a) the unauthorized or illegal use of the Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of third-party products, or (d) the unauthorized use of the Service by any other person using your account information.


8.6 Cooperation by BACKTELL. With respect to claim described in 8.5 above, we will (a) notify you in writing within 30 days of our becoming aware of any such claim; (b) give you sole control of the defense or settlement of such a claim; and (c) provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim.


8.7. Settlement. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.


9. Other Terms


9.1. Assignment. You may not assign these Terms without BACKTELL’s prior written consent, which may be withheld in BACKTELL’s sole discretion. BACKTELL may assign these Terms at any time without notice to you.


9.2. Entire Agreement. These Terms (including any applicable Additional Terms) constitute the entire agreement between you and BACKTELL, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral, concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Service, do not override or form a part of these Terms, and are void.


9.3. Applicable Law and Forum/Venue. You are contracting with BACKTELL LLC and this Agreement is governed by the laws of the State of Texas, U.S.A. without reference to conflicts of law principles. Both parties consent to the exclusive jurisdiction and venue of the state and federal courts in Dallas, Texas, U.S.A. for all disputes arising out of or relating to the use of the Service or this Agreement.


9.3. Independent Contractors. The relationship between you and BACKTELL is that of independent contractors, and not legal partners, employees, or agents of each other.


9.4. Interpretation. The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.


9.5. No Waiver. A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.


9.6. Precedence. To the extent any conflict exists, any relevant Additional Terms will prevail over these TOS with respect to the services to which the Additional Terms apply.


9.7. Severability. If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of the terms will remain in full effect.


9.8. Third Party Beneficiaries. There are no third party beneficiaries to these Terms.


9.9. Survival. The following sections will survive the termination of these Terms: 1, 2.2, 6, 8, and 9.

 

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