Last Modified: May 24, 2021
Master Subscription and Services Agreement
This Master Subscription and Services Agreement is effective as of the date last executed below (the “Effective Date”) by and between BuyerAssist.io, Inc. (“BuyerAssist”) and _________________ (“Customer”), each a “Party” and, collectively, the “Parties.” The Parties hereby agree as follows:
1. Scope; Procurement and Provisioning by Affiliates; Subscription Services Users; Service Level Agreement.
1.1 Scope. This Master Subscription and Services Agreement applies to Customer’s use of the (i) online subscription services and related online training and packaged professional services offered by BuyerAssist (collectively, the “Subscription Services”) that are listed in one or more BuyerAssist subscription-based ordering documents signed by the Parties (each, an “Service Order”); and (ii) consulting services identified in one or more statements of work (“Consulting Services”) signed by the Parties, including any attachments thereto. Subscription Services and Consulting Services are collectively referred to as the “BuyerAssist Services” and Service Orders and SOWs are collectively referred to as “Provisioning Documents.” This Master Subscription and Services Agreement and all executed Provisioning Documents, including any addenda and exhibits, constitute the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Provisioning Documents.
1.2 Procurement and Provisioning by Affiliates. Customer may procure BuyerAssist Services under this Agreement for its own account and on behalf of one or more Customer Affiliates (defined below). Customer is responsible for the acts and omissions of Customer Affiliates under any Provisioning Document pursuant to which the Customer Affiliate receives the benefit of the BuyerAssist Services but is not a signatory. Additionally, Customer Affiliates may procure BuyerAssist Services directly under this Agreement pursuant to a Provisioning Document executed by such Customer Affiliate and either BuyerAssist or a BuyerAssist Affiliate. Customer Affiliates who sign a Provisioning Document will be deemed to be the Customer hereunder and solely responsible for its performance or non-performance thereunder. The BuyerAssist Affiliate who signs a Provisioning Document will be deemed to be BuyerAssist hereunder and solely responsible for its performance or nonperformance thereunder. “Affiliate” means any legal entity directly or indirectly controlling, controlled by or under common control with a Party, where control means the ownership of a majority share of the stock, equity or voting interests of such entity.
1.3 Subscription Services Users. During the Subscription Term set forth in each Service Order, BuyerAssist will make the Subscription Services available to Customer and its authorized Affiliates, employees, agents or contractors and such other parties as Customer invites to access Customer’s instance of the Subscription Services (“Users”), for access and use by such Users solely for Customer’s internal business purposes in accordance with the terms of this Agreement. Customer is responsible for use of the Subscription Services by Users and any party who accesses the Subscription Services with Customer’s or a User’s account credentials.
1.4 Provision of the Subscription Services. Subject to the terms of this Agreement and the applicable Service Order, BuyerAssist will make the Subscription Services available to Customer, and hereby grants Customer a non-exclusive right to access and use the Subscription Services and Documentation during the term of the Service Order. BuyerAssist will provide the Subscription Services in accordance with the Service Level Agreement located at https://buyerassist.io/sla (“SLA”) and the Security Standards located at https://buyerassist.io/data-security-standards (“Security Standards”) each of which is hereby incorporated by reference into this Agreement. The Subscription Services may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance or other causes beyond BuyerAssist's reasonable control. BuyerAssist will use reasonable efforts to provide advance notice of any scheduled unavailability of the Subscription Services. BuyerAssist may update or modify the Service Level Agreement and the Security Standards from time to time during the term of the Service Order (collectively “Policy Updates”). Provided that such Policy Updates do not materially diminish Customer’s rights or create material additional obligations during the term of the Service Order term, such Policy Updates will take effect within thirty (30) days from the date such Policy Updates are published by BuyerAssist. To the extent any Policy Updates do materially diminish Customer’s rights or create material additional Customer obligations, such updates shall not take effect until the next Service Order term.
2. Subscription Services – Restrictions; BuyerAssist Use Policies; Usage Rights; Suspension.
2.1 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly (i) make the Subscription Services available to anyone other than Users or use the Subscription Services for the benefit of any unrelated third party; (ii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the Subscription Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (iv) upload or otherwise transmit through the Subscription Services any material which violates or infringes in any way upon the rights of others, which is unlawful, which encourages conduct that would constitute a criminal offense, gives rise to civil or otherwise violates any law; (v) modify, translate or create derivative works based on the Subscription Services or remove any proprietary notices or labels from the Subscription Services; (vi) use or access the Subscription Services to build or support, and/or assist a third party in building or supporting products or services competitive to the Subscription Services; or (vi) include the Subscription Services in a service bureau or outsourcing offering.
2.2 BuyerAssist Use Policies. Customer will access and use the Subscription Services in accordance with the terms of the Agreement. Customer will not knowingly or willfully use the Subscription Services in any manner that could damage or interfere with BuyerAssist's provision of the Subscription Services. Customer will not, and will cause its Users and anyone acting on its behalf to not, perform security, vulnerability, load testing or penetration tests or intentionally exploit known vulnerabilities in any capacity against the BuyerAssist platform infrastructure or applications. Customer will be responsible for maintaining the security of its access to and use of the Subscription Services and will promptly notify BuyerAssist of any unauthorized access or use of which it becomes aware. Customer will not provide BuyerAssist access to or upload or send through the Subscription Services any of the following categories of data: (i) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (ii) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended “HIPAA”), or similar information under other comparable laws or regulations; or (iii) credit or debit card numbers, or any related security codes or passwords, bank account numbers, or similar information (collectively or individually, “Restricted Information”).
2.3 Usage Rights. Customer will, at all times, ensure that its use of the Subscription Services does not exceed the usage terms specified in the Service Order (“Usage Rights”). If BuyerAssist determines that Customer is exceeding the Usage Rights, BuyerAssist will notify Customer, and Customer will have 30 days from the date of notice in which to bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days, BuyerAssist has the right to charge Customer, and Customer agrees to pay, for the applicable usage tier, which will be co-termed with the Subscription Term in the applicable Service Order.
2.4 Suspension. BuyerAssist may immediately suspend Customer’s account and access to the Subscription Services (“Access”) if (i) Customer fails to make payment of undisputed amounts due within 10 business days after BuyerAssist has provided Customer with written notice of such failure; or (ii) Customer violates Section 2.1 (Restrictions) and Section 2.2 (BuyerAssist Use Policies) (“Violation”). With respect to a violation set forth in 2.4(ii) above, BuyerAssist will only suspend Customer’s account if Customer’s violations put BuyerAssist or its customers at risk of substantial harm. BuyerAssist will use best efforts to promptly notify Customer of any Violation and to communicate with Customer about the steps needed to rectify such Violation, and will promptly restore Customer’s Access to suspended Services once the Violation is rectified. Any suspension by BuyerAssist of the Subscription Services under the preceding sentence will not relieve Customer of its payment obligations hereunder.
3. Ownership: Subscription Services; SOW Results; Customer Data; Statistical Information.
3.1 Subscription Services. Customer acknowledges that the Subscription Services are offered online on a subscription basis. BuyerAssist reserves all rights, title and interest in and to the Subscription Services, including any software or documents related to or provided with the Subscription Services and all intellectual property rights and derivatives, modifications, refinements or improvements thereto. From time to time, Customer or its Users may submit to BuyerAssist comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Subscription Services (“Feedback”). Customer agrees that BuyerAssist has all rights to use and incorporate Feedback into the Subscription Services without restriction or payment to Customer. No rights are granted to Customer other than as expressly set forth herein.
3.2 SOW Results. BuyerAssist hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes reports and other materials developed by BuyerAssist as a result of the Consulting Services for which BuyerAssist has received full payment (“SOW Results”). BuyerAssist retains all ownership rights to the SOW Results, but not to any Customer Confidential Information contained therein. Any reports generated by Customer regarding Customer Data shall remain the property of Customer.
3.3 Customer Data. Customer owns any data, information or material originated by Customer or that Customer provides in the course of using the Subscription Services (“Customer Data”). Customer will be solely responsible for the accuracy, quality, content, legality and use of Customer Data, including the means by which Customer Data is acquired and transferred by Customer or its Users outside of the Subscription Services. Customer Data is Customer’s Confidential Information.
3.4 Statistical Information. BuyerAssist may monitor Customer’s use of the Subscription Services and compile such usage data with other data in an aggregate and anonymous manner to derive statistical and performance information related to the provision and operation of the Subscription Services and may make such information publicly available, provided that such information does not include any data that would enable the identification of Customer, its industry, or Customer Data, or the disclosure of Customer Confidential Information. BuyerAssist retains all rights, title and interest in and to such statistical and performance information.
4. Fees; Taxes and Currency; Invoices; SOW Expenses.
4.1 Fees. Customer will pay all fees set forth in the Provisioning Documents and any fees invoiced pursuant to this Agreement. All fees are noncancelable and nonrefundable, except as expressly specified in this Agreement. Consulting Services will be provided on a time and materials (“T&M”) basis unless otherwise set forth in the SOW. If an estimated total amount is stated in the SOW, that amount is a good faith estimate and not a guarantee the Consulting Services will be completed for that amount. If the estimated amount is expended, BuyerAssist will continue to provide Consulting Services on a T&M basis at the same rates and terms. Any fees paid pursuant to a Provisioning Document will not offset any fees due under any other Provisioning Document. BuyerAssist shall not exceed the total amount of fees set forth in the SOW without Customer’s prior written consent. Any change to an SOW, including but not limited to changes in the hourly rates, requires a change order signed by both Parties
4.2 Taxes and Currency. All fees are exclusive of, and Customer will be responsible for payment of, taxes, levies, duties or similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the BuyerAssist Services. Customer is not responsible for any taxes based on BuyerAssist’s net income or property. Except as otherwise specified in a Provisioning Document, all fees due hereunder will be paid in U.S. Dollars.
4.3 Invoices. All amounts are due and payable as specified in the Provisioning Documents. If no payment terms are specified in the applicable Provisioning Documents, payment terms are net 30 days from receipt of invoice. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
4.4 SOW Expenses. Customer will be responsible for all reasonable travel expenses, hotel accommodations and any other reasonable out-of-pocket expenses incurred by BuyerAssist in connection with the Consulting Services except all air-travel and hotel expenses must be approved in advance in writing by Customer.
5. Agreement Term; Termination for Cause; SOW Convenience Termination; Effect of Termination; Survival.
5.1 Agreement Term. The Agreement will commence on the Effective Date and will remain in effect until the later of (i) the Subscription Term in all Service Orders has expired or has otherwise been terminated; or (ii) the completion or termination of the Consulting Services set forth in any SOW (the “Agreement Term”). Notwithstanding the foregoing, if immediately following the expiration of the Subscription Term in any Service Order, the Parties are negotiating a renewal of such Service Order, the Agreement Term will remain in effect for a reasonable period of time to allow the Parties to effect such renewal. Nothing contained herein will extend the Subscription Term set forth in any Service Order.
5.2 Termination for Cause. In the event of a material breach by either Party, the non-breaching Party will have the right to terminate the applicable Provisioning Document for cause if such breach has not been cured within 30 days after written notice from the non-breaching Party specifying the breach.
5.3 SOW Convenience Termination. Customer may terminate a SOW for convenience upon 30 days’ written notice to BuyerAssist. BuyerAssist may terminate a SOW upon thirty (30) days written notice to Customer if Customer’s performance under the applicable SOW unduly delays or prevents BuyerAssist from performing its obligations in a timely or effective manner under such SOW.
5.4 Effect of Termination. If BuyerAssist terminates a Provisioning Document for Customer’s uncured material breach (i) all fees set forth in the terminated Provisioning Document will be immediately due and payable; (ii) all rights granted thereunder will immediately terminate; and (iii) if such terminated Provisioning Document includes fees for usage of the Subscription Services in excess of the Usage Rights, such fees are also immediately due and payable. If Customer terminates a Provisioning Document for BuyerAssist’s uncured material breach, Customer will be entitled to a pro-rata refund for applicable prepaid fees under such terminated Provisioning Document for the BuyerAssist Services not performed as of the date of termination. If either Party terminates a SOW for convenience, Customer is responsible for all outstanding fees and expenses incurred under that SOW prior to the date of termination. Upon completion of the Agreement Term, all rights to access and use the Subscription Services will terminate. Customer may delete or retain Customer Data during the Subscription Term, subject to applicable Usage Rights. If requested by Customer in writing prior to the completion of the Subscription Term, BuyerAssist will maintain Customer Data for up to sixty days after completion of the Subscription Term provided Customer is in compliance with its then-current Usage Rights. Prior to the completion of the sixty day extension period and if requested in writing, BuyerAssist will provide Customer a copy of the Customer Data currently in its possession in an industry standard format (e.g., XLS, CSV, zip, etc.). Upon completion of the sixty days extension period, BuyerAssist will irretrievably delete and destroy Customer Data and, if requested in writing, BuyerAssist will certify to such destruction in writing.
5.5 Survival. The following sections of this Agreement will survive the termination of the Agreement: Section 2.1 (Restrictions), Section 3 (Ownership: Subscription Services; SOW Results; Customer Data; Statistical Information), Section 4 (Fees, Taxes and Currency; Invoices; SOW Expenses), Section 6.5 (Warranties Disclaimer), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidential Information) and Section 11 (General Terms).
6. Warranties; Warranty Remedies; Warranties Disclaimer.
6.1 General Warranty. Each Party represents and warrants to the other Party that it has the power and authority to enter into the Agreement and that it is not bound by any agreements, obligations or restrictions that would interfere with its obligations under this Agreement.
6.2 Subscription Services Warranty. BuyerAssist warrants the Subscription Services, under normal use, will (i) perform materially in accordance with the applicable documentation provided by BuyerAssist; (ii) be provided in a manner consistent with generally accepted industry standards; and (iii) conform to the SLA.
6.3 Computer Virus. BuyerAssist undertakes commercially reasonable efforts to monitor the Subscription Services, and Customer undertakes commercially reasonable efforts to monitor the Customer Data, for Computer Viruses, using a reputable brand of virus checking software, and each Party shall notify the other immediately if it is determined that any code contains a Computer Virus and agrees to make every reasonable effort to ensure that any is removed. "Computer Virus" means: any computer code, programming instruction or set of instructions that are intentionally constructed with the ability to damage, destroy, interfere with or otherwise adversely affect computer programs, data files, or hardware or computer systems, including, but not limited to, any viruses, worms, trojan horses, logic bombs, time bombs, back doors or trap doors; but specifically excludes (a) anything designed to prevent or inhibit unauthorized use of any software; or (b) the use of date-limited software, as used by either Party in the ordinary course of its business. For the avoidance of doubt, provided each Party has complied with these procedures, such Party shall have no liability to the other Party or any person claiming through it for any loss suffered by such party as a result of any Computer Virus.
6.4 Consulting Services Warranty. BuyerAssist warrants the Consulting Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards.
6.5 Warranty Remedies. Customer will notify BuyerAssist of any Subscription Services or Consulting Services warranty deficiencies under Sections 6.2 and 6.3 within 30 days of the discovery of the relevant deficient relevant BuyerAssist Services, and Customer's exclusive remedy will be the re-performance of the deficient BuyerAssist Services or fulfillment of the SLA. If BuyerAssist cannot re-perform such deficient BuyerAssist Services as warranted, Customer will be entitled to terminate the deficient BuyerAssist Services, as applicable, under Section 5.2 above and recover a pro-rata portion of the fees paid to BuyerAssist for such deficient BuyerAssist Services, and such refund will be BuyerAssist's entire liability.
6.6 WARRANTIES DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, BUYERASSIST AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BUYERASSIST DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE BUYERASSIST SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE BUYERASSIST SERVICES. BUYERASSIST DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT BUYERASSIST WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. BUYERASSIST DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. IN THE EVENT ANY DISCLAIMER IN THIS SECTION CONFLICTS WITH THE SLA, THE TERMS OF THE SLA SHALL GOVERN WITH RESPECT TO THAT SPECIFIC DISCLAIMER. BUYERASSIST WILL NOT BE LIABLE IN ANY MANNER FOR ANY RESTRICTED INFORMATION RECEIVED FROM OR ON BEHALF OF CUSTOMER IN BREACH OF THIS AGREEMENT.
7.1 BuyerAssist. BuyerAssist will defend Customer against any claim brought against Customer by a third party alleging the BuyerAssist Services as provided by BuyerAssist directly infringe the intellectual property rights of the claimant and will pay Customer for finally-awarded damages and costs and BuyerAssist-approved settlements of the claim. BuyerAssist’s obligations to defend or indemnify will not apply to the extent a claim is based on (i) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (ii) a combination of the BuyerAssist Services with non-BuyerAssist products or services; or (iii) any use of the BuyerAssist Services not in compliance with this Agreement. BuyerAssist may, in its discretion and at no cost to Customer, (a) modify the BuyerAssist Services to avoid infringement; or, if applicable, (b) terminate Customer’s subscriptions for the affected Subscription Services and refund Customer any related prepaid fees for the remainder of the Subscription Term.
7.2 Customer. Customer will defend BuyerAssist against any claim brought against BuyerAssist by a third party alleging (i) Customer Data infringes the intellectual property, privacy or other rights of the claimant; or (ii) Customer's use of the BuyerAssist Services, other than as authorized in this Agreement, violates applicable law or regulations, and will pay BuyerAssist for finally-awarded damages and costs and Customer-approved settlements of the claim.
7.3 Procedure. As a condition to the indemnifying Party’s obligations under this Section 7, the Party seeking indemnification must (i) promptly give written notice of the claim to the indemnifying Party; (ii) give the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) provide the indemnifying Party, at the indemnifying Party’s cost, all reasonable assistance. A Party’s failure to provide prompt notice to the other Party relieves the Party of its obligation to defend and indemnify the other Party only to the extent that the failure to provide notice materially harms the Party’s ability to defend the claim. THIS SECTION STATES THE INDEMNIFIED PARTY'S SOLE REMEDY, TO THE EXCLUSION OF ALL OTHER REMEDIES (IN CONTRACT, TORT OR OTHERWISE), AND THE INDEMNIFYING PARTY'S TOTAL LIABILITY REGARDING THE CLAIMS AND LIABILITIES ADDRESSED BY THIS SECTION 7.
8. Limitation of Liability. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (i) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) FOR ANY INDIRECT, EXEMPLARY, LOST PROFITS, LOST REVENUE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (iii) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (iv) EXCEPT FOR CUSTOMER PAYMENT OBLIGATIONS, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE CUMULATIVE FEES INVOICED TO CUSTOMER UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION DO NOT APPLY TO:A) FOR CLAIMS ARISING OUT OF EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (B) TO THE EXTENT PROHIBITED BY LAW.
9. Confidential Information. Each Party (the “Recipient”) understands that the other Party (the “Discloser”) may during the Agreement Term and in connection with the BuyerAssist Services disclose non-public information relating to the Discloser’s business that is designated as confidential or reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure (“Confidential Information”). The Recipient agrees (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information except as set forth herein and to those of its employees and contractors who need access for purposes consistent with this Agreement and who are bound to confidentiality terms with Recipient containing protections no less stringent than those herein. The Discloser agrees that the foregoing will not apply with respect to Confidential Information after 5 years following the termination of the Agreement or any Confidential Information the Recipient can document (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Discloser. If the Recipient is required by law or court order to disclose Confidential Information, it will give prior written notice to the Discloser (to the extent legally permitted) and reasonable assistance at the Discloser’s cost to contest the disclosure.
10. Insurance; Data Security.
10.1 Insurance. BuyerAssist will, at its expense, procure and maintain throughout the Agreement Term insurance policies and coverages required by law applicable to its business operations and sufficient to support and cover its obligations hereunder. All such policies identified under this Section shall be issued by reputable and financially sound insurance companies authorized to do business in the geographic area where the BuyerAssist Services are to be performed. Upon Customer’s written request, BuyerAssist shall furnish to Customer a certificate of insurance evidencing that such policies are in full force and effect.
10.2 Data Security. BuyerAssist shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security of the Subscription Services and Customer Data in accordance with the BuyerAssist Security Standards. BuyerAssist will not access Customer Data except in accordance with the Agreement, to the extent necessary to address technical issues, for Subscription Services support and training or to ensure compliance with the Agreement. If Customer’s use of the Subscription Services involves processing personal data pursuant to Regulation 2016/679 (the “GDPR”) and/or transferring personal data outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the data processing addendum shall apply to such personal data and be incorporated into the Agreement upon the execution and submission of the data processing addendum to BuyerAssist in accordance with its terms. Upon Customer’s receipt of account credentials, the DPA may be accessed at https://buyerassist.io/dpa.
10.3 California Consumer Privacy Act. BuyerAssist will only retain, use, or disclose Customer Data for the purposes of providing the BuyerAssist Services or as otherwise set forth in this Agreement. Each party agrees that BuyerAssist’s receipt of Customer Data is not in exchange for any monetary or other valuable consideration. BuyerAssist will not sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate Customer Data to any third party for monetary or other valuable consideration. Customer acknowledges that Customer or BuyerAssist acting on behalf of Customer may, through Customer’s use of the BuyerAssist Services, sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate Customer Data to a third party, and such actions will not be considered a sale by BuyerAssist but may be considered a sale by Customer. If BuyerAssist receives access or deletion requests from individuals in connection with Customer’s use of the BuyerAssist Services, BuyerAssist will direct such individuals to Customer, and Customer is responsible for responding to such requests in accordance with applicable laws. If applicable, BuyerAssist will contractually oblige BuyerAssist’s third-party service providers to meet equivalent requirements as set forth in this Agreement.
11. General Terms.
11.1 Notice. BuyerAssist may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in BuyerAssist's account information. All legal or dispute-related notices will be sent by first class mail or express delivery, if to BuyerAssist, attention CEO, BuyerAssist.io Inc., 355 Bryant Street, # 403, San Francisco, CA 94107 and if to Customer, to Customer's account representative and address on record in BuyerAssist's account information or such other addresses as either Party may designate in writing from time to time.
11.2 Force Majeure. Neither Party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either Party may cancel unperformed BuyerAssist Services upon written notice.
11.3 Governing Law. Unless specifically set forth in the applicable Provisioning Document (i) any action, claim, or dispute between the Parties will be governed by Delaware law, excluding its conflicts of law provisions, and controlling U.S. federal law; and (ii) the Parties agree to the exclusive jurisdiction of and venue in the state and federal courts in the State of Delaware. Except for actions for nonpayment or breach of either Party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either Party more than 2 years after the cause of action has accrued.
11.4 Entire Agreement. This Agreement represents the Parties' entire understanding relating to the BuyerAssist Services and supersedes any prior or contemporaneous agreements or understandings regarding the BuyerAssist Services. In the event of a conflict between this Agreement and a contemporaneous or later-dated Provisioning Document, the terms of the contemporaneous or later-dated Provisioning Document will control. This Agreement may be amended only by written agreement signed by the Parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intent of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of either Party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
11.5 Standard Terms. No terms, provisions or conditions of any purchase order, acknowledgement, or other business form that either Party may use in connection with the acquisition or provision of BuyerAssist Services will affect the rights, duties or obligations of the Parties hereunder, or otherwise modify this Agreement, regardless of any failure of the other Party to object to such terms, provisions, or conditions.
11.6 Customer Reference. BuyerAssist is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion. Any other public use of Customer’s name or use of Customer’s trademarks or logos shall be subject to Customer’s prior written permission.
11.7 Assignment. No joint venture, partnership, employment, or agency relationship exists between BuyerAssist and Customer as a result of the Agreement or use of the BuyerAssist Services. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the Parties without the prior written approval of the non-assigning Party, except that either Party may assign or transfer this Agreement in connection with a merger or acquisition of all or substantially all of the assets of the assigning company (other than to a direct competitor of the non-assigning Party and provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning Party with prompt written notice of assignment. Any purported assignment in violation of this section will be void.
11.8 Compliance with Laws. Each Party agrees to abide by all applicable federal, state, and local laws and regulations in the performance of this Agreement.
11.9 Counterparts and Electronic Signatures. This Agreement (including Provisioning Documents) may be executed in counterparts, by pdf or other electronic means to accurately send images, or by electronic signature service.
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