TermsofService,LastUpdated:Aug4,2021,WelcometotheBack4App,Inc.(“Back4App”)websitelocatedatwww.back4app.com(the“Site”).Please,read these Terms of Service (the “Terms”) and our Privacy Policycarefully because they govern your use of,our Site and the application hosting services and platform available through the Site.
Tomake these Terms,easiertoread,theSite,theservices,theplatformandanysoftwareprovidedtoyoubyBack4Appin,connectionwith theforegoing are collectivelycalled the“Services.”,1.AgreementtoTerms,By using our Services, you agree to be bound bythese Terms.
If you don’t agree to be bound by these Terms,,do not use the Services.
If you are accessing and using the Services on behalf of a company (such as your,employer) or other legal entity, you represent and warrant that you have the authority tobind that company,or other legal entity to these Terms.
In that case, “you” and “your” will refer to that company or other legal,entity.,ARBITRATION NOTICE: YOU ACKNOWLEDGE AND AGREE THAT ALL DISPUTES BETWEEN YOU AND,BACK4APP WILL BE RESOLVED BY BINDING,INDIVIDUAL ARBITRATION AND YOU ARE WAIVING,YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY,PURPORTED CLASS ACTION ORREPRESENTATIVE PROCEEDING UNLESS:(I) YOU ARE ACCESSING,OR USING THE SERVICES ON BEHALF OF A COMPANYOR OTHER LEGAL ENTITY.
(II) YOU ARE NOT,ACCESSING OR USING THE SERVICES ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY AND,YOU OPTOUTOF ARBITRATIONWITHIN 30DAYS OFTHEDATEYOU FIRSTAGREETOTHESE,TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN SECTION 20.3.
OR (III) A DISPUTE,BETWEEN YOUAND BACK4APP ISA LITIGABLE ACTION(ASDEFINEDINTHESECTION20.3).,2.PrivacyPolicy,Please refer to our Privacy Policyfor information on how we collect, use and disclose information from our,users.Youacknowledge andagreethatyouruseoftheServicesis subjecttoourPrivacyPolicy.,3.ChangestoTermsorServices,We may modify the Terms at any time, in our sole discretion.
If we do so, we’ll let you know either by posting,the modified Terms on the Site or through other communications.
It’s important that you review the Terms,whenever we modify them because if you continue to use the Services after we have posted modified Terms,on the Site, you are indicatingto us that you agree to be bound by the modified Terms.
If you don’t agree to,be boundbythemodifiedTerms, then youmaynotusetheServices anymore.,Because our Services are evolving over time we may change or discontinue all or any part of the Services, at,any time and without notice, at our sole discretion.
For example, we may remove a feature that users don’t,use veryoften.,4.WhoMayUsethe Services,YoumayusetheServicesonlyifyouare18yearsorolderandcapableofformingabindingcontractwith,Back4Appandarenot barredfromusingthe Servicesunder applicable law.,5.Registration,If you want to use certain features of the Services you’ll have to create an account (“Account”) and become a,registered user (“User”), which you can do through the Site.
It’s important that you provide us with accurate,,completeandup-to-dateinformationforyourAccountandyouagreetoupdatesuchinformation,as,needed, to keep it accurate, complete and up-to-date.
If you don’t, we might have to suspend or terminate,yourAccount.Youagreethatyouwon’tdiscloseyourAccountpasswordtoanyoneandyou’llnotifyus,2,immediately of any unauthorized use of your Account.
You’re responsible for all activities that occur under,your Account,whetherornotyouknowabout them.,6.DescriptionofServices,You can use the Services to develop, test, host and run a web or mobile device application (“Application”).,You can optionallydesignatean Application as publicon through the Services.Pleasebeaware, however,,that other Userswill beabletoaccess,copy, anddownload a public Application.,WhendevelopinganApplicationthroughtheServices,youmayalsobeableaddanotherUserasa,collaborator(“Collaborator”).Collaboratorswillbeabletoaccess,copy,modifyanddownloadyour,ApplicationthroughtheirAccount forthepurposesofcollaboratingonthe developmentof suchApplication.,7.EndUserPrivacy,You agree that you will protect the privacy and legal rights of the end users of your Applications (the “End,Users”).
You must obtain any consentsrequired byapplicable dataprotectionlawsandprovidelegally,adequate privacy notice, access and protections for End Users.If End Users provide you with user names,,passwords or other login information or other personal information (“End User Information”), you agree to,notify such End Users that the End User Information will be available to your Application and to Back4App for,thepurposesof providingyoutheServices.,8.Subscriptions,8.1.General,SubjecttotheTerms,the Servicesareprovided to you forfreeup to certain limits, asdescribed on our,Pricingpage.Usageovertheselimitsrequiresyourpurchaseofaprepaidsubscription(“Prepaid,Subscription”) or a postpaid subscription (“Postpaid Subscription”) in order to access additional resources or,services.,8.2.PrepaidSubscription.,If you purchase a Prepaid Subscription, you will be able to access the Services up to the limits described on,the Pricing page or otherwise provided to you at the time of purchase.Once you reach such limits, your,Application’s ability to access and use the Services will be stopped.If you purchase a Prepaid Subscription,,youwillbechargedthethen-applicablePrepaidSubscriptionfee(“SubscriptionFee”)atthebeginningof,your Prepaid Subscription and each month, quarter or yearthereafter, depending on the term of your,Prepaid Subscription, at the then-current rate.
The applicable Subscription Fees are outlined on our Pricing,page orwillotherwisebeprovidedtoyouatthetimeof your purchase.,If you purchase a Prepaid Subscription, we (or our third party payment processor) will automatically charge,you in accordance with term of your Subscription (e.g., each month, quarter or year), on the calendar day,corresponding to the commencement of your Prepaid Subscription, in accordance with Section 8.4.
In the,event your Subscription began on a day not contained in a given month, your payment method will be,charged on a day in the applicable month or such other day as we deem appropriate.
For example, if you,started a monthly Subscription on January 31st, your next payment date is likely to be February 28th, and,yourpaymentmethodwouldbe billedonthat date.,8.3.PostpaidSubscription.,If you purchase a Postpaid Subscription, you will have unlimited access to the Services,subject to payment of,a fee that is based on your usage of the Services (“Usage Fees”).The applicable Usage Fees are outlined on,our Pricing page or will otherwise be provided to you at the time of your purchase.The Usage Fees will be,chargedat theinterval indicatedtoyouatthe timeofpurchase(e.g.,eachmonthor quarter).,3,If you purchase a Postpaid Subscription, we (or our third party payment processor) will automatically charge,you the applicable Usage Fee based on your usage of the Services, as determined by Back4App in its sole,discretion, after the end of the interval over which the Usage Fee was incurred (e.g., each month or quarter).,To the fullest extent permitted by law, you waive all claims relating to the amount of Usage Fee charged,unlessyouprovide uswritten noticeof a dispute withinsixty(60)daysof the charge.,8.4.Payments,If you purchase a Prepaid Subscription or Postpaid Subscription (each, a “Subscription”), we may ask you to,supply additional information relevant to your transaction, including, without limitation, your credit-card,number, the expiration date of your credit card, and your address(es) for billing (such information, “Payment,Information”).Yourepresentandwarrantthatyouhavethelegalrighttouseallpaymentmethod(s),represented by any such Payment Information.
When you purchase a Subscription, you authorize us to,provide your Payment Information to our third party payment processors so we can complete your purchase,and to charge your payment method for the Subscription Fee or Usage Fee (each, a “Fee”) associated with,your Subscription, and any associated taxes.You may, in some cases, need to provide additional information,to verify your identity before completing your transaction (such information is included within the definition,ofPaymentInformation).,By agreeing to these Terms and purchasing a Subscription, you acknowledge that your Subscription has,recurring payment features, as described above, and you accept responsibility for all recurring payment,obligationspriortocancellationofyourSubscriptionbyyouorBack4App.Wemayalsoperiodically,authorize your payment method in anticipation of applicable fees or related charges.
Your Subscription,continuesuntil cancelled by you or we terminate your access to or use of the Services or the Subscription in,accordance with these Terms.,8.5.Taxes,Unless otherwise stated, the Fees do not include any taxes.
You are responsible for paying all taxes,associated with your purchases hereunder.
If Back4App has the legal obligation to pay or collect taxes for,whichyouareresponsibleunderthis paragraph,theappropriateamount willbechargedtoandpaidbyyou.,8.6.LatePayments,If Back4App does not received payment on the applicable payment date, interest will accrue on past due,amounts at the rate of 1.5% per month (or the highest rate permitted by law, if less).
You will reimburse,Back4App for the reasonable costs of collection in connection with any late payment, including reasonable,feesandexpensesof attorneys.,8.7.CancellingSubscriptions,You may cancel your Subscription at any time.
PLEASE NOTE, HOWEVER, THAT ALL SALES ARE FINAL.
IF YOU,CANCELAPREPAIDSUBSCRIPTION,YOUWILLNOTRECEIVEAREFUNDOFANYPORTIONOFTHE,SUBSCRIPTIONFEEPAIDFORTHETHENCURRENTSUBSCRIPTIONPERIODATTHETIMEOFCANCELLATION.,To cancel, you can either (i) email us at community@back4app.comand follow any instructions we provide,to you in response to your cancellation request, or (ii) initiate a cancellation through your Account settings,within the Services.
You will be responsible for all Fees (plus any applicable taxes and other charges) incurred,for the then current Subscription period.If you cancel a Prepaid Subscription, we will allow you to access any,resources or services associated with such Subscription until the most recently paid-up Subscription period,ends.
If you cancel your Postpaid Subscription, your access to any additional resources or services made,under such subscription will immediately terminate and any accrued Usage Fees will be immediately due.,Cancelling your Subscription won’t cancel your Account.
See Section 16 (Termination) below for information,onterminatingyourAccount.,4,8.8.ChangestoSubscription,Pleasenotethat our Subscription Fees, UsageFees, and anyusagelimitsassociated with our Subscriptions,are subject to change, although we will notify you before any changes to your Subscription.You agree that,your purchase of a Subscription is neither contingent on the delivery of any future functionality or features,nordependentonanyoralorwrittencommentsmadebyBack4Appregardingfuturefunctionalityor,features.,8.9.Restrictions,You may not develop multiple Applications to simulate or act as a single Application, or otherwise access the,Servicesin amannerintended to avoidincurringSubscriptionFees.,9.ProprietaryRights,9.1.Definitions.,Forpurposesof theseTerms: (i) “Content” meanstext,graphics, images, music,software,audio,video,,works of authorship of any kind, and information or other materials that are posted, generated, provided or,otherwise made available through the Services, including any Applications that any User creates using the,Services and any source code related thereto.
and (ii) “User Content” means any Content that any User,(including you) provide to be made available through the Services.
Content includes without limitation User,Content.,9.2.OwnershipRights.,Back4App does not claim any ownership rights in your User Content and nothing in these Terms will be,deemed to restrict any rights that you may have to use and exploit your User Content.
Subject to the,foregoing, Back4App or its licensors (including other Users) exclusively own all right, title and interest in and,totheServicesandContent(excludingyourUserContent),includingallassociatedintellectualproperty,rights.
You acknowledge that the Services and Content are protected by copyright, trademark, and other laws,oftheUnitedStatesandforeigncountries.Youagreenottoremove,alterorobscureanycopyright,,trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or,Content.,9.3.Rights GrantedbyBack4App,Subject to your compliance with these Terms, Back4App grants you a limited, revocable, non-exclusive, non-,transferable,non-sublicensablelicenseto(i)accessandusetheServicessolelyforthepurposesof,developing, testing, and running the Applications.
(ii) access and view the Content solely in connection with,yourpermitted useof theServices.,Notwithstanding the foregoing, components of the Services released under an open source license are,subject to the applicable open source license under which such components were released (the “Open,Source License”).To the limited extent that an Open Source License expressly supersedes these Terms, such,Open Source License governs your access to and use of the applicable component provided under such Open,SourceLicense.,9.4.Rights inUserContentGrantedbyYou,By making any User Content available through Services you hereby grant to Back4App a non-exclusive,,transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works,based upon, publicly display, publicly perform and distribute your User Content (including your Applications),solely as necessary to: (i) operate and provide the Services and Content to you, (ii) to make your Application,available to the End Users, and (iii) to provide other Users, including Collaborators, with access to your User,Contenttotheextent permitted byyouthroughtheServices.,5,You are solely responsible for (and Back4App has no responsibility to you or to any third party for) your User,Content.
You represent and warrant that you own all your User Content or you have all rights that are,necessary to grant us the license rights in your User Content under these Terms.
You also represent and,warrant that neither your User Content, nor your use and provision ofyour User Content to be made,available through the Services, nor any use of your User Content by Back4App on or through the Services—,including,withoutlimitation,the hosting andoperation of yourApplication byBack4App—willinfringe,,misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result,in the violation of any applicable law or regulation.
You assume all risks associated with your User Content,,includinganyone’srelianceonitsaccuracy,completenessor usefulness.,9.5.Removalof Content,You can remove certain User Content through the Services.
However, some of your User Content (including,,without limitation, posts or comments that have been made on our community pages or any User Content,that you designate as public or share with Collaborators through the functionality of the Services) may not be,completely removed and copies of your User Content may continue to exist on the Services in archive or,backupform.,You agreetoimmediately takedown anyUser Contentthat violates Section12(General Prohibitions),,including, without limitation, if you receive a takedown request from Back4App.In the event you fail to,comply with such a request, Back4App reserves the right to take down your User Content and/or disable your,Application(s).,Notwithstanding the foregoing, Back4App reserves the right (but will have no obligation) to remove any or all,Content from the Services at any time.
We may remove or delete your User Content within a reasonable,periodoftimeaftertheterminationorcancellationofyourAccountinaccordancewithSection16,(Termination).
We are not responsible or liable for the removal or deletion of (or the failure to remove or,delete)anyofyourUserContent.
Youaresolelyresponsible forsecuringandbackingupyourUserContent.,9.6.Feedback,We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”).
You can,submit Feedback by emailing us at community@back4app.com.
You grant to us a non-exclusive, worldwide,,perpetual,irrevocable,fully-paid,royalty-free,sublicensableandtransferablelicenseunderanyandall,intellectual property rights that you own or control to use, copy, modify, create derivative works based upon,andotherwiseexploit theFeedback for any purpose.,10.NoEndorsements,Back4App has not reviewed, and cannot review, all User Content submitted by Users, and cannot therefore,be responsible for the User Content.
By operating the Services, Back4App does not represent or imply that it,endorsestheUserContent,orthatitbelievesittobeaccurate,usefulornon-harmful.Youareresponsible,for taking precautions as necessary to protect yourself and your computer systems from viruses, worms,,Trojanhorses,andotherharmfulordestructivecontent.UserContentmaybeoffensive,indecent,or,otherwise objectionable, as well as may contain technical inaccuracies, typographical mistakes, and other,errors.
User Content may also contain material that violates the privacy or publicity rights, or infringes the,intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of,which is subject to additional terms and conditions, stated or unstated.
Back4App disclaims any responsibility,foranyharmresultingfromanyUserContent.,11.Publicity,YouagreethatBack4Appmayidentifyyouoryourcompanyanduseyourcompany’stradenames,,trademarks,servicemarks,logosdomainnamesandotherdistinctivebrandfeaturesontheSite,in,marketingmaterials,incustomerlistsandinfinancialreportstoidentifyyouoryourcompanyasauserof,6,theServices, and you hereby grant us a non-exclusive, royalty-free license to do so in any media now or later,developedinconnectionwithanymarketing, promotionoradvertisingofBack4App or theServices.,12.GeneralProhibitions,Youagree notto do anyofthefollowing:,Post, upload, publish, submit, transmit or otherwise use the Services to develop, host or distribute any,UserContentthat:(i) infringes,misappropriatesorviolatesathirdparty’spatent,copyright,,trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or,privacy.
(ii) violates, or encourages any conduct that would violate, any applicable law or regulation or,would give rise to civil liability.
(iii) is fraudulent, false, misleading or deceptive.
(iv) is defamatory,,obscene,pornographic,vulgaroroffensive;(v) promotesdiscrimination,bigotry,racism,hatred,,harassment or harm against any individual or group.
(vi) is violent or threatening or promotes violence,or actions that are threateningto any person or entity.
or (vii) promotes illegal or harmful activities or,substances;,Use, display, mirror or frame the Services or any individual element within the Services, Back4App’s,name, any Back4App trademark, logo or other proprietary information, or the layout and design of any,page or formcontainedona page,withoutBack4App’sexpress writtenconsent;,Access,tamperwith,orusenon-publicareasoftheServices,Back4App’scomputersystems,orthe,technicaldeliverysystemsofBack4App’sproviders;,Attempt to probe, scan or test the vulnerability of any Back4App system or network or breach any,securityorauthenticationmeasures;,Avoid,bypass,remove,deactivate,impair,descrambleorotherwisecircumventanytechnological,measure implementedby Back4App or any of Back4App’s providers or any other third party (including,anotheruser)toprotecttheServicesorUserContent;,Attempt to access or search the Services or Content or download Content from the Services through,the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers,,data mining tools or the like) other than the software and/or search agents provided by Back4App or,othergenerallyavailable third-party web browsers;,Send any advertising, promotional materials, email, junk mail, spam, chain letters or other form of,solicitationinviolationofany applicable lawor regulation;,Use the Services or Content, or any portion thereof, for the benefit of any third party or in any manner,notpermittedbytheseTerms;,Forge any TCP/IP packet header or any part of the header information in any email or newsgroup,posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying,information;,Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide,theServicesorContent;,Sell,resell, rentorleasethe Servicesto anythirdparties;,UsetheServicetostoreortransmitviruses,worms,timebombs,Trojanhorsesandotherharmfulor,maliciouscode,files,scripts, agentsor programs;,InterferewithordisrupttheintegrityorperformanceoftheServicesorthird-partydatacontained,therein;,CollectorstoreanypersonallyidentifiableinformationfromtheServicesfromotherusersofthe,Serviceswithouttheirexpresspermission;,Impersonateormisrepresent your affiliationwith anypersonorentity;,AccesstheServicesforthepurposeofbringinganintellectualpropertyinfringementclaimagainst,Back4Appor forthepurpose ofcreatinga productorservice competitivewiththeServices;,Violateany applicablelawor regulation;or,Encourageorenableanyother individualtodoanyoftheforegoing.,7,IntheeventyoubecomeawareofanyviolationoftheforegoingprohibitionsbyanEndUserofan,Application,youwillimmediatelyterminatesuchEndUser’saccount onyourApplication.,13.Back4App’sEnforcementRights,Although we’re not obligated to monitor access to or use of the Services or User Content or to review or edit,any User Content, we have the right to do so for the purpose of operating the Services, to ensure compliance,withtheseTerms, andtocomply with applicable laworother legalrequirements.,We reserve the right, but are not obligated, toremove or disable access to any User Content, including,,without limitation, any Application, at any time and without notice, including, but not limited to, if we, at our,sole discretion, consider any User Content to be objectionable or in violation of these Terms.
We have the,right to investigate violations of these Terms or conduct that affects the Services.
We may also consult and,cooperate with lawenforcement authoritiesto prosecute users whoviolatethelaw.,14.DMCA/CopyrightPolicy,Back4App respects copyright law and expects its users to do the same.
It is Back4App’s policy to terminate in,appropriate circumstances Users who repeatedly infringe or are believed to be repeatedly infringing the,rights ofcopyright holders.Please seeBack4App’sCopyright Policy,for furtherinformation.,15.LinkstoThirdParty WebsitesorResources,TheServicesmaycontainlinkstothird-partywebsitesorresources.Weprovidetheselinksonlyasa,convenienceandarenotresponsibleforthecontent,productsorservicesonoravailablefromthose,websites or resources or links displayed on such websites.
You acknowledge sole responsibility for and,assumeall riskarisingfrom, your useof anythird-party websitesorresources.,16.Termination,You may cancel your Account at any time by sending an email to us at community@back4app.com.
We may,terminateyouraccesstoanduseoftheServices,atoursolediscretion,atanytimeandwithoutnoticeto,you.
If we terminate your access to and use of the Services due to your breach of these Terms or you cancel,yourAccount,youwillnotreceivearefundfor any pre-paidSubscriptionFees.,You are solely responsible for exporting yourUser Content from the Services prior to termination of your,Account for any reason, provided that if we terminate your Account, we will provide you a reasonable,opportunitytoretrieveyour UserContent.,Upon any termination, discontinuation or cancellation of Services or your Account, the following provisions,will survive:Section 9.1 (Definitions), Section 9.2 (Ownership Rights), Section 9.6 (Feedback), Section 12,(General Prohibitions), Section 14 (DMCA/Copyright Policy), Section 15 (Links to Third Party Websites or,Resources), Section 16 (Termination), Section 17 (Warranty Disclaimers), Section 18 (Indemnity), Section 19,(LimitationofLiability),Section20(DisputeResolution),andSection21(GeneralTerms).,17.WarrantyDisclaimers,THESERVICESAREPROVIDED“ASIS,”WITHOUTWARRANTYOFANYKIND,EXPRESS,STATUTORYOR,IMPLIED.WITHOUTLIMITINGTHEFOREGOING,WEEXPLICITLYDISCLAIMANYWARRANTIESOF,MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,QUIETENJOYMENTORNON-INFRINGEMENT,,ANDANYWARRANTIESARISINGOUTOFCOURSEOFDEALINGORUSAGEOFTRADE.Wemakenowarranty,that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis.,We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of,anyContent.,8,18.Indemnity,Youwillindemnify,defendandholdharmlessBack4Appanditsofficers,directors,employeeandagents,,fromandagainstanyclaims,disputes,demands,liabilities,damages,losses,andcostsandexpenses,,including,withoutlimitation,reasonablelegal and accounting feesarising out of or in any wayconnected,with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these,Terms.,19.LimitationofLiability,NEITHER BACK4APP NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE,SERVICESWILLBELIABLEFORANYINCIDENTAL,SPECIAL,EXEMPLARYORCONSEQUENTIALDAMAGES,,INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR,SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE,TERMSORFROMTHEUSEOFORINABILITYTOUSETHESERVICES,WHETHERBASEDONWARRANTY,,CONTRACT,TORT(INCLUDINGNEGLIGENCE),PRODUCTLIABILITYORANYOTHERLEGALTHEORY,AND,WHETHER OR NOT BACK4APP HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A,LIMITEDREMEDYSETFORTHHEREINISFOUNDTOHAVEFAILEDOFITSESSENTIALPURPOSE.SOME,JURISDICTIONS DO NOTALLOWTHE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR,INCIDENTALDAMAGES, SOTHE ABOVELIMITATIONMAY NOT APPLYTOYOU.,IN NO EVENT WILLBACK4APP’S TOTALLIABILITYARISING OUTOF OR IN CONNECTION WITH THESE TERMS,OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO,BACK4APP FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY,PAYMENTOBLIGATIONSTOBACK4APP, ASAPPLICABLE.,THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE,BASISOF THE BARGAINBETWEENBACK4APPANDYOU.,20.DisputeResolution,20.1.GoverningLaw,These Terms and any action related thereto will be governed by the laws of the State of California without,regardtoitsconflictof laws provisions.,20.2.DisputeResolutionforCommercialEntities,If you are accessing and using the Services on behalf of a company or other legal entity, you and Back4App,agree that the exclusive jurisdiction and venue of any legal action or proceeding related to any dispute, claim,,orcontroversyarisingoutoforrelatingtotheseTermsorthebreach,termination,enforcement,,interpretation, or validity thereof or the use of the Services or Content (collectively, "Disputes") will be the,state and federal courts located in the Northern District of California and each of the parties hereto waives,anyobjectiontojurisdictionandvenueinsuchcourts.,20.3.DisputeResolutionforConsumers,20.3.1Agreementto Arbitrate,If you are accessing and using the Services on your own behalf or otherwise not on behalf of a company or,other legal entity, you and Back4App agree that any Disputes (as defined above) will be settled by binding,arbitration,exceptthateachpartyretainstheright:(i)tobringanindividualactioninsmallclaimscourtand,(ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or,threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets,,patentsorotherintellectualpropertyrights(theactiondescribedintheforegoingclause(ii),an“IP,ProtectionAction”).(Theactionsdescribedinclauses(i)and(ii)arethe“LitigableActions.”).Without,9,limitingthe preceding sentence, you will also have the right to litigate any other Dispute if you provide,Back4App with written notice of your desire to do so by email at community@back4app.com or regular mail,at 440 N Wolfe Road, Sunnyvale, CA, USA, 94085within thirty (30) days following the date youfirst agree to ,these Terms (such notice, an “Arbitration Opt-out Notice”).
If you don’t provide Back4App withan ,Arbitration Opt-out Notice within the thirty (30) dayperiod, you will be deemed to have knowingly and,intentionally waived your right to litigate any Dispute except for Litigable Actions.
The exclusive jurisdiction,andvenueofanyIPProtectionAction,oranyotherDisputeifyoutimelyprovideBack4Appwithan,Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California,and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Unless you,timely provide Back4App with anArbitration Opt-out Notice, you acknowledge and agree that you and,Back4App are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any,purported class action or representative proceeding.
Further, unless both youand Back4App otherwise,agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise,presideoveranyformofanyclassorrepresentativeproceeding.Ifthisspecificparagraphisheld,unenforceable,thentheentiretyofthisSection20.3willbedeemedvoid.Exceptasprovidedinthe,precedingsentence,this Section20.3willsurviveany terminationof theseTerms.,20.3.2ArbitrationRules,The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the,Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 20.3.
(The,AAARulesareavailableathttp://www.adr.org/orbycallingtheAAAat1-800-778-7879.)TheFederal,ArbitrationAct willgovernthe interpretation andenforcementof thissection.,20.3.3ArbitrationProcess,ApartywhodesirestoinitiatearbitrationmustprovidetheotherpartywithawrittenDemandfor,Arbitration as specified inthe AAA Rules.
The arbitrator will be either a retired judge or an attorney licensed,to practice law and will be selected by the parties from the AAA’s roster of arbitrators.
If the parties are,unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the,AAAwillappointthearbitrator inaccordancewith theAAA Rules.,20.3.4ArbitrationLocation and Procedure,Unless you and Back4App otherwise agree, the arbitration will be conducted in the county where you reside.,If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the,documents that you and Back4App submit to the arbitrator, unless you request a hearing or the arbitrator,determinesthatahearingisnecessary.Ifyourclaimexceeds$10,000,yourrighttoahearingwillbe,determined by the AAA Rules.
Subject to the AAA Rules, the arbitrator will have the discretion to direct a,reasonableexchangeofinformationbythe parties, consistentwith the expeditednatureof thearbitration.,20.3.5Arbitrator’sDecision,Thearbitrator willrender anaward withinthe timeframespecifiedintheAAARules.The arbitrator’s,decision will include the essential findings and conclusions upon which the arbitrator based the award.,Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
The arbitrator’s,award of damages must be consistent with the terms of Section 19 (Limitation of Liability) above as to the,types and amounts of damages for which a party maybe held liable.
The arbitrator may award declaratory or,injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by,the claimant’s individual claim.
If you prevail in arbitration you will be entitled to an award of attorneys’ fees,and expenses, to the extent provided under applicable law.
Back4App will not seek, and hereby waives all,rights itmayhaveunderapplicablelawtorecover,attorneys’feesandexpensesif itprevailsinarbitration.,10,20.3.6Fees,Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the,AAA Rules.
However, if your claim for damages does not exceed $75,000, Back4App will pay all such fees,unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for,Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in,FederalRuleofCivilProcedure 11(b)).,20.3.7Changes,Notwithstanding the provisions of Section 3 (Changes to Terms or Services) above, if Back4App changes this,Section 20.3 after the date you first accepted these Terms (or accepted any subsequent changes to these,Terms),youmayrejectanysuchchangebysendinguswrittennotice(includingbyemailto,community@back4app.com ) within 30 days of the date such change became effective, as indicated in the,“Last Updated” date above or in the date of Back4App’s email to you notifying you of such change.
By,rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Back4App in,accordance with the provisions of this Section 20.3 as of the date you first accepted these Terms (or accepted,anysubsequentchangestotheseTerms).,21.GeneralTerms,These Terms constitute the entire and exclusive understanding and agreement between Back4App and you,regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written,understandingsoragreementsbetweenBack4AppandyouregardingtheServicesandContent.Ifany,provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the,terms of Section 20.3 above or by court ofcompetent jurisdiction, if you are accessing and using the Services,on behalf of a company or other legal entity or timely opt out of arbitration by sending us an Arbitration Opt-,out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum,extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not,assign or transfer these Terms, by operation of law or otherwise, without Back4App’s prior written consent.,Anyattemptby you toassign or transfer these Terms,without such consent, will benull.Back4App may,freely assign or transfer these Terms without restriction.
Subject to the foregoing, these Terms will bind and,inuretothebenefitoftheparties, their successors andpermittedassigns.,Any notices or other communications provided by Back4App under these Terms, including those regarding,modificationstotheseTerms,willbegiven:(i)viaemail;or(ii)bypostingtotheServices.Fornoticesmade,bye-mail, thedateofreceipt will bedeemedthe dateonwhichsuchnoticeis transmitted.,Back4App’s failure to enforce any right or provision of these Terms will not be considered a waiver of such,right or provision.
The waiver of any such right or provision will beeffective only if in writing and signed by a,duly authorized representative of Back4App.
Except as expressly set forth in these Terms, the exercise by,either party of any of its remedies under these Terms will be without prejudice to its other remedies under,theseTermsorotherwise.,22.ContactInformation,IfyouhaveanyquestionsabouttheseTermsortheServices,pleasecontactBack4Appat,community@back4app.com.