Terms of Service

THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN YOUR ACCESS TO AND USE OF OUR SUBSCRIPTION SERVICES.  THIS AGREEMENT APPLIES TO THE SUBSCRIPTION SERVICES YOU ARE USING IN CONNECTION HEREWITH AND THAT ARE BROUGHT TO YOU BY BUYERASSIST.IO, INC. (“US” OR “OUR” OR “BUYERASSIST”).

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, OR BY ACCESSING OR USING ANY PART OF THE SERVICE, YOU AGREE TO ALL THE TERMS SET FORTH HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO ALL OF THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" OR “CUSTOMER”, AS USED HEREIN, SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT UNCONDITIONALLY AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SUBSCRIPTION SERVICES.

YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICES IF YOU ARE OUR DIRECT COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

THIS AGREEMENT IS EFFECTIVE BETWEEN YOU AND US AS OF THE DATE OF YOUR ACCEPTING THIS AGREEMENT. OUR ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS HEREIN, TO THE EXCLUSION OF ALL OTHER TERMS.

1. Scope; Procurement and Provisioning by Affiliates; Users; Service Level Agreement.

1.1 Scope: This Agreement applies to Customer’s use of the (i) online subscription services available in BuyerAssist’s “Boomerang” tool and related online training and packaged professional services offered by BuyerAssist (collectively, the “Boomerang Services”) that are listed in one or more BuyerAssist 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.  Boomerang 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 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 Users:  During the Subscription Term set forth in each Service Order, BuyerAssist will make the Boomerang Services available to Customer and its authorized Affiliates, employees, agents or contractors and such other parties designated by Customer (“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 Boomerang  Services by Users and any party who accesses the Boomerang  Services with Customer’s or a User’s account credentials.

1.4 Provision of the Boomerang Services: Subject to the terms of this Agreement and the applicable Service Order, BuyerAssist will make the Boomerang  Services available to Customer, and hereby grants Customer a non-exclusive right to access and use the Boomerang  Services and Documentation during the term of the Service Order.   BuyerAssist will provide the Boomerang Services in accordance with the Service Level Agreement located at www.getboomerang.ai/service-level-agreement(“SLA”) and the Security Standards located at https://www.getboomerang.ai/security-standards (“Security Standards”) each of which is hereby incorporated by reference into this Agreement.  The Boomerang 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 Boomerang  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. Boomerang  Services.

2.1 Restrictions:  Customer will not, and will ensure that its Users do not, directly or indirectly (i) make the Boomerang  Services available to anyone other than Users or use the Boomerang Services for the benefit of any unrelated third party; (ii) sell, resell, assign, pledge, transfer, license, sublicense, distribute, rent or lease the Boomerang Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Boomerang Services or any software, documentation or data related to or provided with the Boomerang Services; (iv) upload or otherwise transmit through the Boomerang 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 Boomerang Services or remove any proprietary notices or labels from the Boomerang Services; (vi) use or access the Boomerang Services to build or support, and/or assist a third party in building or supporting products or services competitive to the Boomerang Services; or (vi) include the Boomerang Services in a service bureau or outsourcing offering.

2.2 Customer Obligations:   Customer will: (i) access and use the Boomerang Services in accordance with the terms of the Agreement and in compliance with all applicable laws, rules and regulations, (ii) be responsible for Users’ compliance with this Agreement; (ii)  be responsible for all activities conducted under its and its Users’ use of the Boomerang Services, and secure all access credentials provided by BuyerAssist; (iii) not knowingly or willfully use the Boomerang Services in any manner that could damage or interfere with BuyerAssist's provision of the Boomerang Services; (iv) 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; and (v) be responsible for maintaining the security of its access to and use of the Boomerang 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 Boomerang 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:  Each subscription to the Boomerang Services is subject to usage limits (e.g., a certain number of Boomerang Leads or Contact Inputs) as set forth in the Service Order. Additional quantities of Boomerang Leads may be purchased as specified in the Service Order and will terminate on the same date as the underlying subscription. Except as otherwise provided herein, the listed quantities of Boomerang Leads specified in the Service Order cannot be decreased prior to the end of the then-current Subscription Term or Renewal Term.  A “Boomerang Lead” is a marketing lead or referral path generated by the Boomerang Services through the processing of a Content Input (as defined in Section 3.3 below.

2.4 Suspension: BuyerAssist may immediately suspend Customer’s account and access to the Boomerang 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 Boomerang Services under the preceding sentence will not relieve Customer of its payment obligations hereunder.

2.5 Non-BuyerAssist Applications: Customer or its Users may choose to use the Services with certain Non-BuyerAssist Applications (defined below). Use of Non-BuyerAssist Applications is subject to Customer’s agreement with the relevant provider of such Non-BuyerAssist Applications and are not provided by BuyerAssist and not governed by, or subject to, the terms and conditions in this Agreement. Customer will be responsible for complying with its agreement(s) for any Non-BuyerAssist Application. To the fullest extent permitted under applicable law, BuyerAssist will have no liability for Customer’s or its Users’ use of Non-BuyerAssist Applications, including their security, functionality, operation, availability, or interoperability or how the Non-BuyerAssist Applications or their providers use Customer Data (including Personal Data). By enabling or otherwise using a Non-BuyerAssist Application with the Service, Customer hereby authorizes BuyerAssist to access and exchange Customer Data with the Non-BuyerAssist Application on Customer’s behalf. “Non-BuyerAssist Applications” means certain third-party applications, integrations, systems, or services used by Customer, but not supplied by BuyerAssist, that are designed to interoperate with the Boomerang Services (for example, third-party services such as Workato or Zapier).  For clarity, the Boomerang Services excludes any Non-BuyerAssist Applications.

2.6 Use of Boomerang Leads: Customer is solely responsible for its use of Boomerang Leads in compliance with all applicable privacy and data protection laws.  In some countries or jurisdictions, additional consents, notices and permissions may be required for certain types of marketing or processing of Personal Data. Customer understands that, while BuyerAssist seeks to comply with its own legal obligations, BuyerAssist has not obtained any rights or consents on Customer's behalf: therefore, to the extent that any law or regulation may require that Customer (in addition to Boomerang) provide notice or obtain consent in order to market to any person or process any person's personal data, Customer agrees that Customer shall obtain on Customer's own behalf such notices or consents.  If Customer is notified by a Customer contact and/or a Boomerang Lead (“Contact”) to remove such Contact’s Personal Data from Customer’s database and to cease any or all further communications with such Contact (“Opt-Out”), Customer shall (i) cease all further communications with such Opt-Out and (ii) immediately notify Buyer Assist regarding such Opt-Out.

3. Ownership:  Boomerang Services; SOW Results; Customer Data; Statistical Information

3.1 Boomerang Services: Customer acknowledges that the Boomerang Services are offered online on a subscription basis.  BuyerAssist reserves all rights, title and interest in and to the Boomerang Services, including any software or documents related to or provided with the Boomerang Services and all intellectual property rights and derivatives, modifications, refinements or improvements thereto.  No rights are granted to Customer other than as expressly set forth herein.  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 Boomerang Services (“Feedback”).  Customer agrees that BuyerAssist has all rights to use and incorporate Feedback into the Boomerang Services without restriction or payment to Customer.  

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 represents and warrants that Customer has all the rights, power and authority necessary to collect, share, and grant the rights granted herein to any data, information, text, graphics, or other materials, including without limitation the Personal Data (as defined in the DPA) regarding Customers contacts (“Contact Inputs”) provided by Customer to BuyerAssist (collectively referred to as “Customer Data”), that Customer uses in association with the Services.  BuyerAssist acknowledges and agrees that Customer owns all Customer Data that Customer provides in the course of using the Boomerang Services, including the Personal Data therein.  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 Boomerang Services.  Customer Data is Customer’s Confidential Information.

3.4 Statistical Information:  BuyerAssist may monitor Customer’s use of the Boomerang 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 Boomerang Services and may make such information publicly available, provided that such information does not include any data that would enable the identification of Customer, or any 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 Boomerang 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. Term and Termination; ROI Guarantee

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. Indemnification

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://www.buyerassist.io/dpa.

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, acknowledgment, 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.