Terms of Use

TAK SERVICES TERMS OF USE

PLEASE READ THESE TAK SERVICES TERMS OF USE (THESE “TERMS”), WHICH, TOGETHER WITH THE TERMS OF SALE, ANY ORDER, THE TAK SERVER SUBSCRIPTION SERVICES DESCRIPTION, AND THE PRIVACY POLICY (COLLECTIVELY, THE “AGREEMENT”), GOVERN SUBSCRIBER’S USE OF THE SERVICES. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN SUBSCRIBER AND RTX BBN TECHNOLOGIES CORPORATION (“BBN”) THAT AFFECTS SUBSCRIBER’S LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.

BY USING THE SERVICES, SUBSCRIBER AGREES TO BE BOUND BY THIS AGREEMENT (WHETHER OR NOT SUBSCRIBER CONFIRMS ITS AGREEMENT, SUCH AS BY CLICKING “I AGREE”). IF SUBSCRIBER DOES NOT AGREE TO THIS AGREEMENT, SUBSCRIBER IS NOT PERMITTED TO USE ANY OF THE SERVICES.

Last modified: November 19, 2021

Definitions. Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings set forth in this Section 1.

1.1 “Affiliates” means any entities that, now or in the future, control, are controlled by, or are under common control with a party, for so long as such control continues. An entity will be deemed to “control” another entity if it has the power to direct or cause the direction of the management or policies of such entity, whether ownership, voting securities, contract, or otherwise.
1.2 "BBN Personnel” means BBN’s officers, directors, employees, representatives, advisors, agents, and subcontractors.
1.3 “Civilian Subscriber” means a Subscriber that is not a member of or part of a branch of the United States government or military.
1.4 “Cloud Services” means one or more of BBN’s cloud-based service offerings purchased by Subscriber pursuant to an Order, including any associated installation, hosting and configuration services provided in connection therewith, and any content and updates related thereto that are made available to Subscriber.
1.5 “Documentation” means service descriptions, user guides, operating manuals, training materials, and other documentation that BBN makes available for the Services, including any subsequent revisions and additions thereto.
1.6 “Error” means a material failure of the TAK Software to conform to the Documentation, which is reported by Subscriber and replicable by BBN.
1.7 “Intellectual Property Rights” means all unpatented inventions, patents (including originals, divisionals, continuations, continuations-in-part, extensions, foreign applications, utility models, and re-issues), patent applications, design rights, copyrights (including all registrations and applications therefore), know-how, trade secrets, trademarks, trademark applications, service marks, tradenames, domain name rights and other proprietary and intellectual property rights, derivatives thereof, and forms of protection of a similar nature, anywhere in the world, including moral rights.
1.8 “Malware” means computer software or program code that is designed to damage or reduce the performance or security of a computer program or data.
1.9 “Military Subscriber” means a Subscriber that is a member or part of a branch of the United States government or military.
1.10 “Order” means BBN’s online ordering form completed by Subscriber through the Site and accepted by BBN through email or other written confirmation.
1.11 “Permitted Capacity” means the total number of permitted Users as set forth in the Order.
1.12 “Services” means the Cloud Services, TAK Services and Technical Support purchased by Subscriber pursuant to an Order.
1.13 “Site” means the website operated by BBN, including Shopify.
1.14 “Subscriber Data” means all content or information submitted by or on behalf of Subscriber through the Services, such as files, location data, and comments.
1.15 “Subscription Tier” means the level of Services purchased pursuant to an Order.
1.16 “TAK Product Center” means the online licensing platform pursuant to which Subscriber obtains a license to the TAK Software.
1.17 “TAK Services” means the one or more of BBN’s TAK Software-based service offerings purchased by Subscriber pursuant to an Order, including any associated installation, configuration and management services provided in connection therewith, and any content, Documentation and Updates related thereto.
1.18 “TAK Software” means the Tactical Assault Kit/Team Awareness Kit (“TAK”) software, including TAK, ATAK, WINTAK, WEBTAK, CIVTAK developed by the Air Force Research Laboratory and maintained by the TAK Product Center, and any related Updates and documentation.
1.19 “Technical Support” means the technical supports services provided by BBN at the support level purchased by Subscriber pursuant to an Order, including if and when available: (i) the provision of Updates; (ii) Error corrections or workarounds so that the TAK Software and Services operate in substantial conformance with the Documentation, and (iii) telephone and email support.
1.20 “Territory” means the territory set forth in the Order.
1.21 “Updates” means any new version or new release of the TAK Software that is made available to Subscribers, including but not limited to modifications and enhancements that improve performance, fix bugs, add additional capabilities, or otherwise improve the existing functionality of the TAK Software.
1.22 “User” means an individual who is authorized by Subscriber to use the Services under Subscriber’s account, and who has been supplied a user identification and password by Subscriber (or by BBN at Subscriber’s request).

Access to and Use of the Services.

2.1 Provision of Services. BBN will use commercially reasonable efforts to (a) make the Services purchased under an Order available to Subscriber pursuant to this Agreement and (b) provide the Services in accordance with the applicable Documentation.
2.2 User Accounts. The primary contact for Subscriber’s account will be the contact individual identified on the Order, as such contact may be updated from time to time by written notice to BBN. The primary contact for Subscriber may use its credentials to request user accounts. Unless otherwise specified in an applicable Order, Services are purchased on a Subscription Tier basis and Permitted Usage is based on the applicable Subscription Tier. Subscriber will be responsible for all of its Users’ compliance with this Agreement.
2.3 Permitted Usage. User accounts and passwords cannot be shared or used by more than one User. Subscriber is responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under its accounts. In the event Subscriber becomes aware of any unauthorized use of its logins, passwords or accounts, Subscriber will promptly notify BBN and cooperate with BBN to terminate such unauthorized use. The Permitted Capacity provided in the Order sets forth the maximum number of Users for which Subscriber may authorize an account during the Term. If Subscriber’s use exceeds the Permitted Capacity, Subscriber must either (a) purchase a higher Subscription Tier of Services to cover the additional Users if such higher Subscription Tier allows for the required number of additional Users or (b) pay BBN for additional capacity sufficient for the balance of the then-current Subscription Term to cover the excess use. All Users must be employees or contractors of Subscriber or approved by BBN on the Order or in writing, and all usage must be for the benefit of Subscriber. If Subscriber is a Military Subscriber, all Users must be stationed at the location indicated in the Order. If a Military Subscriber authorizes Users at a location other than the location indicated in the Order, such Subscriber must purchase additional subscriptions to cover the number of additional locations.
2.4 Cloud Services.

2.4.1 For the Cloud Services, Subscriber is engaging BBN to provide both hosting services and Services related to the hosting services, utilizing BBN’s expertise and proprietary knowledge base. Subscriber acknowledges that the hosting services used in connection with the Cloud Services are provided by a third party (“Third Party Hosting Services”), and subject to the terms and conditions offered by such third party. Subscriber’s access and use of such Third Party Hosting Services is governed solely by the terms and conditions of such Third Party Hosting Services, and BBN does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Hosting Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data or any interaction between Subscriber and the provider of such Third Party Hosting Services.
2.4.2 If BBN determines that the security or proper function of Cloud Services may be compromised due to hacking, denial of service attacks or other activities originating from, directed at or affecting Subscriber’s network, or that the Cloud Services are being used to distribute Malware, BBN may immediately suspend Cloud Services until the problem is resolved. BBN will promptly notify and work with Subscriber to resolve the issues.

2.5 TAK Services.

2.4.1 The TAK Services are based upon TAK Software licensed by a third-party licensor through the TAK Product Center. The terms of such license to use the TAK Software govern Subscriber’s rights therein. Subscriber is solely responsible for procuring all necessary rights to the TAK Software. Subscriber acknowledges and agrees that third party licensors may make changes to the TAK Software at any time without notice.
2.4.2 BBN’s provision of TAK Services is limited to: (i) TAK Software that has not been altered or modified by anyone other than BBN or the TAK Product Center; (ii) the then-current version of the TAK Software; and (iii) Subscriber’s use of the TAK Software in accordance with the Documentation. BBN may require Subscriber to install Updates released by the TAK Product Center up to and including the latest release. BBN is not responsible for incompatibilities and Errors resulting from Updates to, or failures to update, the TAK Software.

2.6 Technical Support.

2.6.1 Technical Support for the TAK Services is provided in accordance with the then-current TAK Server Subscription Services Description, available here: https://bbn-tak.myshopify.com/collections/tak-server-subscriptions, as updated from time to time. Technical Support services will only extend to the then-current version of the TAK Software.
2.6.2 BBN will provide Technical Support to only to a mutually agreed number of Users identified as technical contacts.

2.7 Updates and Changes to Services. Subscriber acknowledges that BBN is continually upgrading and modifying the Services and retains the right to continue to make changes to the Services throughout the term of the Agreement. In the event BBN elects to discontinue offering any Service, it may do so upon thirty (30) days’ prior written notice and shall provide a pro-rated refund of any Fees paid in advance for the discontinued Services for periods occurring after such service discontinuation.
2.8 Additional Services. Subscriber acknowledges that no custom software development is being provided in connection with the Services. In the event Subscriber desires to receive and BBN agrees to provide any such services, the parties shall enter into a separate agreement, setting forth the applicable terms and conditions for such services, the scope of such services, the fees therefor, and nay additional requirements applicable to such services.
2.9 Usage Audit. Upon BBN’s request, Subscriber will provide a written certification confirming its compliance with this Agreement. During the Subscription Term and one year thereafter, BBN or BBN’s independent auditor may review Subscriber’s records related to Subscriber’s use of the Services to verify Subscriber’s compliance with this Agreement. Subscriber will provide reasonable assistance, access to personnel and systems, as well as information necessary to facilitate BBN’s compliance verification. The audit will be performed during regular business hours and in a manner designed not to interfere unreasonably with Subscriber’s business activities. The cost of the audit will be borne by BBN unless a discrepancy indicating that Subscriber exceeded its Permitted Usage, in which case the reasonable cost of the audit will be borne by Subscriber. Subscriber will promptly cure any noncompliance and will pay any fees due as a result of such noncompliance. BBN may also at any time during the Term without notice access Subscriber’s system, subject to applicable law, to determine whether Subscriber and its Users are complying with the terms of this Agreement. Subscriber acknowledges that the Services may include a license manager component to track usage of the Services and Subscriber will not impede, disable, or otherwise undermine such license manager’s operation.

BBN Responsibilities.

3.1 Safeguards. BBN shall maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security of the Services and Subscriber Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion, and disclosure of Subscriber Data by BBN Personnel. Before providing access to Subscriber Data to a third-party service provider, BBN will use commercially reasonable efforts to confirm that the third-party maintains reasonable data practices for maintaining the confidentiality and security of the Subscriber Data and preventing unauthorized access to or use of the Subscriber Data. However, Subscriber bears sole responsibility for adequate security, protection, and backup of Subscriber Data when in Subscriber’s or its representatives or agents’ possession or control.
3.2 Incident Reporting. BBN shall: (a) notify the Subscriber without undue delay of any unauthorized copying, distribution, disclosure, processing of or access to any Subscriber Data (each a “Data Security Incident”) upon becoming aware of such Data Security Incident; (b) report to Subscriber with reasonable detail regarding the scope of such Data Security Incident; and (c) use reasonable efforts to stop any unauthorized copying, distribution, disclosure, or processing of Subscriber Data.
3.3 BBN Personnel. BBN will be responsible for the performance of BBN’s personnel (including BBN’s employees and independent contractors) and their compliance with BBN’s obligations under this Agreement, except as otherwise specified herein.

Subscriber Responsibilities.

4.1 Cooperation with BBN. Subscriber will cooperate with BBN Personnel providing the Services and provide reasonable assistance, including: (a) gathering relevant supporting documentation; (b) ensuring appropriate Subscriber personnel are assigned to the project undertaken by the Services and are able to devote sufficient time to facilitate the project; (c) granting access to information, systems, and licenses related to the scope of the project; and (d) to the extent applicable, providing network access for each of the BBN Personnel, logon IDs and security access to all required systems, and any reasonable and appropriate data required by BBN to perform the Services.
4.2 Third Party Tools. In the event BBN requires access to Subscriber’s account for third-party software, application, or services in order to perform the Services, Subscriber will provide such access and hereby represents and warrants that Subscriber has the authority to provide Subscriber’s log-in credentials and such access to BBN for the purpose of BBN providing the Services to Subscriber.
4.3 Usage Restrictions. Subscriber shall use the Services only in accordance with this Agreement and the Documentation and Subscriber shall not, and shall not permit or authorize Users or other third parties to: (a) violate the terms of its TAK Software license; (b) license, sublicense, sell, resell, distribute, or otherwise commercially exploit or make any part of the Services available to any non-User third party; (c) modify or make derivative works based upon any part of the Services; (d) “frame” or “mirror” any part of the Services on any server or wireless or Internet-based device; (e) knowingly interfere with or disrupt the integrity or performance of the Services or any data contained therein; (f) attempt to gain unauthorized access to the Services or its related software, systems or networks; (g) reverse engineer, decompile, disassemble, or otherwise attempt to derive or discover the underlying source or object code, algorithms, structure or ideas of the Services or any part of thereof; (h) access or use the Services in order to design or build a competitive product or service; (i) use the Services for any unlawful purpose or other than in accordance with this Agreement; or (j) relocate the Services for use on a different server at any time during the Subscription Term (collectively, the “Usage Restrictions”). BBN reserves the right to immediately suspend any User account or Subscriber’s right to use and access the Service for breach of the Usage Restrictions contained herein.
4.4 Subscriber Data. Subscriber is solely responsible for Subscriber Data. Subscriber represents that it has all necessary rights to Subscriber Data and that Subscriber’s and BBN’s use of Subscriber Data does not and will not infringe, misappropriate or otherwise violate any third-party rights. Subscriber shall not, and shall not permit or authorize Users or other third parties to, upload, download, post, submit, provide, transmit, distribute, or otherwise make available to or through the Services any Subscriber Data, information, materials or other content: (a) that is unlawful, infringing, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, or that otherwise violates any other right of any third party, including any intellectual property, proprietary, or privacy rights, or is otherwise inappropriate; (b) that contains any Malware, viruses, code, files, or programs designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or that is or can be otherwise malicious or disruptive; or (c) in violation of any of the export controls or trade sanctions laws referenced in Section 4.5 of these Terms.
4.5 Export Controls and Trade Sanctions. The Services may be subject to the export control laws of the United States, including the U.S. Export Administration Regulations (“EAR”) or the International Traffic in Arms Regulations (“ITAR”), and the export control laws of other countries. Subscriber will not use the Services except in compliance with the export laws of the United States and any other country that may lawfully regulate the use of such Services. Subscriber will immediately notify BBN of any violation of any export law, rule, or regulation, which may affect BBN or relate to the activities contemplated by this Agreement. Notwithstanding any other provision of this Agreement, Subscriber shall not export, reexport, or transfer the Services to, nor cause the Services to be exported, reexported, or transferred to, nor permit the Services to be used in or by, whether remotely or locally, Cuba, Iran, Syria, Sudan, North Korea, or the Crimea Region of Ukraine, any other country or jurisdiction subject to applicable export controls or trade sanctions, any person ordinarily resident in any of the foregoing countries or jurisdictions, or any person listed on any of the lists of prohibited or restricted persons maintained by the U.S. Treasury Department, Office of Foreign Assets Control (“OFAC”), U.S. Commerce Department, U.S. State Department, or any other U.S. or non-U.S. governmental entity with jurisdiction over Subscriber, unless such export, reexport, transfer, and/or use is authorized under U.S. and any other applicable law, including without limitation the sanctions laws and regulations implemented by OFAC and the export control laws of the United States.

Proprietary Rights

5.1 License. BBN hereby grants to Subscriber a limited non-exclusive, non-transferable, non‑sublicensable license during the applicable Subscription Term to access and use the Services and related Documentation, solely in the Territory and solely for Subscriber’s own internal business purposes and in accordance with this Agreement. All rights not expressly granted to Subscriber herein are reserved by BBN and its licensors. Subscriber is solely responsible for determining if the Services meet Subscriber’s needs with regard to the Subscriber Data and information Subscriber intends to submit for use in connection with the Services. Unless otherwise specified in the Order, all Services are provided on a server-as-a-service, platform-as-a-service, or similar basis, and are hosted, operated, and maintained by BBN or its designee, using computer systems owned or operated by or for BBN.
5.2 Proprietary Rights of BBN. Subscriber acknowledges and understands that, as between the parties, BBN is the sole and exclusive owner of all rights, title, and interest in and to the Services and any configurations, modifications or copies of any components thereof, and all Intellectual Property Rights therein, and Subscriber shall have no rights, title or interest therein or thereto other than the limited right to access and use the Services other than as expressly set forth herein. Subscriber understands and agrees that the Services are offered online and that all materials developed by BBN that are related to or comprise the Services, including all software modifications, configurations, developments, specifications, updates, and derivative works based on the Services are created by BBN for BBN to benefit its Subscribers and shall be and remain the property of BBN, and Subscriber shall not obtain any rights or interest therein. Subscriber understands that the Services constitute and contain valuable trade secrets of BBN. The BBN name, the BBN logo, and the service and product names associated with the Services are trademarks of BBN or third parties, and no right or license is granted to use them.
5.3 Rights in Subscriber Data. BBN acknowledges and understands that, as between the parties, all Subscriber Data is owned exclusively by Subscriber, including all Intellectual Property Rights therein, provided that Subscriber hereby grants BBN a limited license to access, use, copy, and store Subscriber Data in connection with the performance of the Services and obligations herein and exercise of its rights herein, to respond to Subscriber questions and otherwise provide support to Subscriber, and to comply with any applicable law. Subscriber is solely responsible for the accuracy, quality, and legality of Subscriber Data.
5.4 Suggestions. At their discretion, Subscriber or its Users may choose to submit suggestions, enhancement requests, recommendations, new software ideas, comments or other feedback related to the Services, TAK Software or other products or services, including about how to improve the Services or otherwise regarding any existing or potential functionality thereto (“Suggestions”). All such Suggestions are non-confidential, and Subscriber hereby grants to BBN a fully-paid, royalty-free, worldwide, non-exclusive, transferable, sub-licensable, irrevocable, perpetual right and license to use, disclose, and incorporate Suggestions into any Services or other products or services without restriction, attribution, or payment to Subscriber or any User.
5.5 System Data. BBN and its third-party hosting or other service providers may collect or store information and/or data relating to account activity by Subscriber and its Users (e.g., web analytics) in the course of providing the Services. BBN and its third-party service providers may use such information in order to improve the Services or other products or services, to verify Subscriber’s compliance with the terms of this Agreement and to comply with applicable law. Subscriber further consents to BBN’s and its third-party service providers’ use and disclosure of such information in an anonymous and aggregated form at its discretion and without compensation to Subscriber or any User.

Term and Termination.

6.1 Term of Agreement. This Agreement will commence on the date of BBN’s acceptance of an Order and will continue in full force and effect until terminated by either party pursuant to the termination rights set forth in this Agreement.
6.2 Subscription Term. Commencing upon placement of an Order and for the period specified for such Service in the Order (the “Subscription Term”), BBN will use commercially reasonable efforts to make the Services available to Subscriber for use pursuant to the license granted herein. Unless otherwise set forth in an Order, (a) all subscriptions shall automatically renew (without the need to execute a renewal order) at the same Subscription Tier for additional periods of thirty (30) days unless either Party provides notice of termination at least fifteen (15) days prior to the expiration of the then-current term; and (b) the Subscription Tier pricing during any automatic renewal term will be BBN’s then-current commercial list price for the applicable Subscription Tier.
6.3 Termination for Cause. Each party may terminate this Agreement or any Order immediately upon written notice to the other party if: (a) the other party fails to pay any delinquent amounts owed to the other party hereunder within ten (10) business days of written notice specifying the amounts owed; (b) the other party breaches a material provision of this Agreement or such Order, and fails to cure or remedy such breach within thirty (30) calendar days of receiving written notice from the non-breaching party specifying in reasonable detail the nature of such breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); (c) upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement; (d) a court of competent jurisdiction (or other administrative body empowered to issue such orders) issues a final order or judgment holding that this Agreement or the Services offered hereunder are in violation of or are prohibited by law, regulation, regulatory authority; or (e) such party’s performance under this Agreement or such Order is substantially impaired by law or by a governmental authority, including, but not limited to, any regulatory authority directing such party to terminate the Agreement.
6.4 Effect Of Termination. Termination of one Order will not affect the parties’ rights and obligations under any other Order(s) executed by the parties prior to such termination or expiration, and all such other Order(s) will remain in full force and effect unless and until terminated in accordance with their terms. Expiration or termination of a Subscription Term will not terminate this Agreement; however, termination of this Agreement will terminate the Subscription Term and any Orders in effect at the time of termination.
6.5 Survival. Those provisions of this Agreement that, by their nature, are intended to survive the termination or expiration of this Agreement, will remain in full force and effect following the termination or expiration of this Agreement, including the definitions in Section 1 and Sections 5 (Proprietary Rights), 6.5 (Survival), 7.4 (Disclaimers), 8 (Confidential Information), 9 (Indemnification), 10 (Limitation of Liability) and 11 (Miscellaneous).

Representations, Warranties and Additional Covenants

7.1 Authority. Each party represents, warrants, and covenants that it has the legal power and authority to enter into this Agreement and to perform its obligations hereunder.
7.2 Subscriber Representation and Warranties. Subscriber represents, warrants, and covenants to BBN that (a) Subscriber shall only use the Services in accordance with this Agreement, the applicable Order, and all applicable laws, and (b) Subscriber shall only use the Services and TAK Software for legitimate business purposes.
7.3 BBN Representations and Warranties. BBN represents, warrants and covenants to Subscriber that (a) BBN has the right to provide the Services in accordance with this Agreement; (b) the Services will be provided in a professional manner and in accordance with reasonable industry standards; and (c) in providing the Services, BBN shall comply with all laws applicable to BBN in its provisioning of the Services to its subscribers generally (i.e. without regard to the nature of the Subscriber Data and/or Subscriber’s particular use or configuration of the Services).
7.4 Disclaimers.

7.4.1 Subscriber acknowledges that the performance of, and information available through, the Services and TAK Software is based on Subscriber Data and other third-party data, which may be incomplete, inaccurate, or misinterpreted, and is subject to change at any time. BBN makes no representation or warranty regarding the accuracy or completeness of the information available through the Services and Subscriber is solely responsible for decisions Subscriber makes based on its use of the Services.
7.4.2 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.3, BBN MAKES NO REPRESENTATION, WARRANTY OR GUARANTY AND DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, BBN MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. BBN IS NOT RESPONSIBLE FOR ANY ISSUES ARISING OUT OF OR RELATING TO THE OPERATION OF OR ACCESS TO SUBSCRIBER’S OR ANY CLOUD HOSTING PROVIDER’S OR OTHER THIRD PARTY’S SYSTEM OR NETWORK OR OTHER FACTORS OUTSIDE OF BBN’S REASONABLE CONTROL, INCLUDING ANY INTERNET OUTAGES OR SLOWDOWNS.
7.4.3 SUBSCRIBER ASSUMES ALL RESPONSIBILITIES AND RISKS, FOR ITSELF AND ALL USERS, REGARDING THE ACCURACY AND USE OF ANY RESULTS OBTAINED THROUGH USE OF THE SERVICES, AND ANY DECISIONS OR ADVICE MADE OR GIVEN TO ANY PARTY BASED ON THE USE OF THE SERVICES. BBN IS NOT ENGAGED IN RENDERING FINANCIAL, LEGAL OR OTHER PROFESSIONAL OR EXPERT ADVICE.

Confidential Information.

8.1 Confidential Information. In connection with the performance of this Agreement, a party (as “Recipient”) may have access to or may be provided Confidential Information by the other party (as “Disclosing Party”). "Confidential Information" means all information and materials of a confidential or proprietary nature that are marked as “confidential” or “proprietary” or the like or that should reasonably be understood as such, that are disclosed to the Recipient by or on behalf of the Disclosing Party, whether such information is owned by the Disclosing Party or by a third party, and regardless of the manner in which the Recipient hears, access, observes or otherwise receives the information. Confidential Information includes all nonpublic business or technical information and know-how, software, trade secrets, ideas, algorithms, data, methods, processes, specifications, formulas, evaluation standards, analysis results, protocols, inventions (whether or not patentable), and techniques. However, Confidential Information shall not include any information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
8.2 Restrictions on Disclosure and Use of Confidential Information. The Receiving Party shall (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement.
8.3 Compelled Disclosure. Notwithstanding any other terms of this Agreement, Recipient shall be permitted to release Confidential Information to the extent required by law, provided that Recipient: (a) to the extent legally permitted, shall promptly provide notice to the Disclosing Party so Disclosing Party may have a reasonable opportunity to contest such disclosure; (b) shall only release that portion of such Confidential Information required to be disclosed by such requirement; and (c) shall seek to obtain a protective order (or equivalent, if any).

Indemnification.

9.1 BBN Indemnification. BBN shall defend, indemnify and hold harmless Subscriber, its Affiliates, and its and their officers, directors, employees and agents, from and against any and all third party claims, demands, causes of action, suits, or proceedings (“Claims”), and all resulting damages, liabilities, costs, or expenses, including reasonable attorneys’ and experts’ fees and costs (“Losses”) resulting from or arising out of third party allegations that, if true as alleged, would constitute: (i) BBN’s gross negligence, willful misconduct or violation of any applicable law; or (ii) infringement or violation of a third party’s intellectual property or proprietary rights as a result of Subscriber’s use of the Services (excluding any Claims arising from use of the TAK Software or Subscriber Data) in accordance with this Agreement.
9.2 Subscriber Indemnification. Subscriber shall defend, indemnify and hold harmless BBN, its Affiliates, and its and their officers, directors, employees and agents, from and against all Claims, and all resulting Losses resulting from or arising out of third party allegations that, if true as alleged, would constitute: (i) Subscriber’s or its Users’ gross negligence, willful misconduct or violation of any applicable law, including all applicable export laws, rules, and regulations; (ii) Subscriber’s or its Users’ breach of the Usage Restrictions or this Agreement; or (iii) infringement or violation of a third party’s intellectual property or proprietary rights as a result of the use of the Subscriber Data in accordance with this Agreement.
9.3 Procedures. The obligations of the indemnifying party under this Section 9 to defend, indemnify and hold the indemnified parties harmless shall be subject to the following: (i) the indemnified parties shall provide the indemnifying party with prompt written notice of the claim giving rise to such obligation; (ii) the indemnifying party shall have sole control of the defense and of all negotiations for settlement of such claim or suit, provided, however that that the indemnifying party shall not settle any claims without the consent of the indemnified parties unless such settlement provides for a complete release of the indemnified parties; and (iii) the indemnified parties shall cooperate with the indemnifying party in the defense or settlement of any such claim or suit, provided, however, that the indemnified parties shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by the indemnifying party. Subject to clause (ii) above, the indemnified party may participate in the defense of any such claim or suit at its own expense.
9.4 Exclusive Remedy. This Section 9 states the indemnifying party's sole liability to the other party for any type of claim described in this Section.

Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BBN BE LIABLE OR RESPONSIBLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY SERVICES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, REVENUES, USE OR DATA), WHETHER ARISING IN CONTRACT, TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR FOR ANY CLAIM MADE AGAINST SUBSCRIBER BY ANY OTHER PARTY, EVEN IF BBN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM. IN NO EVENT SHALL BBN'S LIABILITY IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER CAUSED BY FAILURE TO DELIVER, NONPERFORMANCE, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AMOUNT OF FEES RECEIVED BY BBN UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
Miscellaneous

11.1 Notices. All notices pursuant to this Agreement will be deemed sufficiently given in writing if personally delivered, e-mailed with confirmed receipt, or mailed by certified or first class mail or a nationally recognized courier to a party. Notices sent to BBN must be sent to the attention of the General Counsel, RTX BBN Technologies Corp., at 10 Moulton St., Cambridge, MA 01720. Notices sent to Subscriber will be sent to Subscriber’s address as set forth on the most recent Order.
11.2 Independent Contractor. BBN is an independent contractor of Subscriber, and this Agreement will not be construed as creating a relationship of employment, agency, partnership, joint venture, or any other form of legal association. Neither party has any power to bind the other party or to assume or to create any obligation or responsibility on behalf of the other party or in the other party’s name.
11.3 Assignment. Subscriber may not assign or otherwise transfer (including by operation of law) any of its rights or interests under this Agreement and/or any Order without the prior written consent of BBN. Any assignment in violation of this Section shall be deemed null, void and wholly invalid.
11.4 Publicity. Neither party will disclose the existence of this Agreement or the business relationship between Subscriber and BBN to any outside third party, without prior written approval of the other party, provided however, that BBN shall be entitled to identify Subscriber by name and logo as a Subscriber in BBN’s published Subscriber lists.
11.5 Force Majeure. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, disturbances to the Internet, and inability to secure materials or transportation facilities.
11.6 Governing Law. Any dispute arising out of or relating to this Agreement will be governed by the federal laws of the United States and the laws of the State of Delaware, USA, for all claims arising in or related to the United States, Canada, Japan, or Mexico, and Dublin, Ireland for all other claims, without regard to or application of choice of laws, rules, or principles. BBN may seek injunctive relief in any court of competent jurisdiction to protect its Confidential Information or intellectual property. The remedies specified in this Agreement are cumulative and in addition to any remedies available at law or in equity. Both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue.
11.7 No Third Party Beneficiaries. Except as otherwise specifically set forth in an Order, nothing in this Agreement will confer any right, remedy, or obligation upon anyone other than Subscriber and BBN.
11.8 Non-Exclusive. The parties acknowledge and agree that the procurement of Services under this Agreement or any applicable Order, and the provision of Services, will be on a non-exclusive basis. BBN may perform similar services for others during the term of this Agreement and Subscriber may purchase similar services from third parties.
11.9 Interpretation. The headings of sections of this Agreement are for convenience of reference only and will not affect the meaning or interpretation of this Agreement in any way. This Agreement will not be presumptively construed for or against either party. Section titles are for convenience only. As used in this Agreement, “will” means the same thing as “shall,” and the words “include,” “includes,” and “including,” shall always be construed as if followed by the words “without limitation.”
11.10 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions will in no way be affected or impaired thereby.
11.11 Modification. BBN may modify these Terms and the other components of the Agreement (except any Orders) at any time without prior consent of Subscriber. Subscriber can review the most current version of these Terms at any time by visiting https://bbn-tak.myshopify.com/pages/terms-of-use and by visiting the most current versions of the other pages that are referenced in the Agreement. The revised Agreement will become effective on the date posted. If Subscriber (or any User) accesses or uses the Services after such effective date, that use will constitute Subscriber’s acceptance of any revised terms and conditions.
11.12 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
Entire Agreement. These Terms, together with the Terms of Sale, all Orders, the TAK Server Subscription Services Description, the Privacy Policy and the Information Security Policy constitute the exclusive and entire agreement between the parties with respect to its subject matter and supersede all prior or contemporaneous agreements, negotiations, representations, and proposals, whether written or oral, relating to their subject matter. In the event of a conflict between these Terms, the Terms of Sale, any Order, the TAK Server Subscription Services Description, the Privacy Policy and the Information Security Policy, the Order shall control, followed by these Terms, followed by the Terms of Sale, followed by the Privacy Policy, followed by the Information Security Policy, and then followed by the TAK Server Subscription Services Description.