Subscription Services Agreement
This Subscription Services Agreement (the “Agreement”), effective as of the date set forth on the Order Form (the “Effective Date”), is entered into by and between Refine Technology, Inc., a Delaware corporation (“Refine”) and the legal entity that purchased access to the Platform pursuant to an Order Form (“Customer”). Refine and Customer may be referred to herein individually as a “Party”, and collectively referred to as the “Parties”.
Customer acknowledges that the Order Form may contain additional terms and conditions regarding Customer’s use of and access to the Platform, and those terms are incorporated herein.
DEFINED TERMS. Except as otherwise defined herein, capitalized terms shall have the following meanings:
“Account(s)” means all accounts created by or on behalf of Customer, including accounts created by or for any Administrator or User, to access and use the Platform.
“Account Credentials” has the meaning ascribed to it in Section 3.1.
“Administrator(s)” means the person(s) designated by Customer to (a) communicate with Refine regarding the performance of the Platform, and (b) create and manage Accounts.
“Aggregated Data” has the meaning ascribed to it in Section 6.4.
“Agreement” has the meaning ascribed to it in the preamble.
“AI Systems” has the meaning ascribed to it in Section 3.4.
“API” means the application programming interface made available by Refine in connection with the Platform, or otherwise necessary to use, integrate, or interoperate with the Platform.
“Claim” has the meaning ascribed to it in Section 9.1.
“Customer” has the meaning ascribed to it in the preamble.
“Customer Data” means all content, information, and other data inputted by Customer or Users into the Service or otherwise processed or stored through the Service by Customer or on Customer’s behalf.
“Customer Offering” means the websites, mobile applications, systems, or other digital properties owned or controlled by Customer that will be integrated with the Platform via the API, as agreed to by the Parties in the Order Form.
“Confidential Information” has the meaning ascribed to it in Section 7.1.
“Disclosing Party” has the meaning ascribed to it in Section 7.1.
“Effective Date” has the meaning ascribed to in the preamble.
“Feedback” has the meaning ascribed to it in Section 6.3.
“Fees” has the meaning ascribed to in Section 4.1.
“Force Majeure Event” has the meaning ascribed to it in Section 14.6.
“Implementation Date” means the date on which the Platform is first available for Customer’s production use.
“Indemnified Party” has the meaning ascribed to it in Section 9.3.
“Indemnifying Party” has the meaning ascribed to it in Section 9.3.
“Initial Subscription Term” has the meaning ascribed to it in Section 5.2.
“IP Claim” has the meaning ascribed to it in Section 9.1.
“JAMS” has the meaning ascribed to it in Section 13.2.
“Losses” means any and all liabilities, losses, damages, costs, and expenses (including reasonable attorneys’ fees).
“Order Form” means Refine’s standard ordering document executed by the Parties which references this Agreement and reflects (as applicable) Customer’s access to the Platform purchased by Customer.
“Nonperforming Party” has the meaning ascribed to it in Section 15.6.
“Party” or “Parties” has the meaning ascribed to it in the preamble.
“Payment Processor” has the meaning ascribed to it in Section 4.3.
“Performing Party” has the meaning ascribed to it in Section 15.6.
“Platform” means the proprietary artificial intelligence-enabled search and discovery platform made available by Refine.
“Receiving Party” has the meaning ascribed to it in Section 7.1.
“Refine” has the meaning ascribed to it in the preamble.
“Renewal Term” has the meaning ascribed to it in Section 5.2.
“Representative” has the meaning ascribed to it in Section 7.2.
“Service” means the API and the Platform.
“Subscription Term” has the meaning ascribed to it in Section 5.2.
“Support Services” has the meaning ascribed to it in Section 2.3.
“Third-Party Material(s)” has the meaning ascribed to it in Section 3.6.
“Third-Party Terms” has the meaning ascribed to it in Section 3.6.
“Use Limitations” has the meaning ascribed to it in Section 3.2.
“Users” mean Customer’s employees, contractors and other users who are authorized by Customer to access and use the Platform.
THE SERVICE.
Order Forms. Refine will make the Platform available to Customer pursuant to this Agreement and each applicable Order Form entered into by the Parties. Each Order Form shall be incorporated into and become part of this Agreement and be governed by the provisions hereof. Customer agrees that Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Refine regarding future functionality or features. In the event of a conflict between this Agreement and an Order Form, the terms of this Agreement shall govern unless the Order Form expressly states otherwise.
Provision of the Platform. Refine will (a) use commercially reasonable efforts to make the Platform available 99.9% of the time, except for (i) scheduled maintenance of the Platform (of which Refine shall endeavor to give reasonable advance electronic notice), (ii) unscheduled maintenance that Refine determines is immediately required to maintain the security or performance of the Platform, at any time and without prior written notice to Customer, or (iii) any unavailability caused by circumstances beyond Refine’s reasonable control, including any Force Majeure Event; (b) provide reasonable Support Services in accordance with Section 2.3; and (c) provide the Platform in accordance with laws and government regulations applicable to Refine in connection therewith, and subject to Customer’s use of the Platform in compliance with the terms of this Agreement. In order to access and use the Platform, Customer must have a computing device, an operating system, a web browser, and an Internet connection that meets or exceeds industry standard hardware, bandwidth, and latency standards that Refine supports at the time the Platform is accessed.
Support Services. During the Subscription Term, Refine shall provide reasonable support services to Customer, and updates and upgrades to the Service from time to time, in accordance with Refine’s then-current standard support policies (collectively, “Support Services”). As between the Parties, (a) Customer shall be responsible for the support and maintenance of the Customer Offering, including any and all fixes, workarounds, updates and/or enhancements thereto, and (b) Refine shall be responsible for the support and maintenance of the API and the Platform, including any and all fixes, patches, workarounds, updates and/or enhancements thereto. With respect to any issue relating to the API integration that is not readily attributable either to the API or the Platform (on the one hand) or to the Customer Offering (on the other hand), the Parties shall work together in good faith to determine the source of the issue, at which time the Party(ies) responsible therefor shall endeavor to resolve it as soon as commercially practicable.
Changes. Refine reserves the right, in its sole discretion, to make any changes to the Service that it deems necessary or useful to (a) maintain or enhance (i) the quality or delivery of the Service to customers, (ii) the competitive strength of or market for the Service, or (iii) the Service’s cost efficiency or performance; or (b) comply with applicable laws.
ACCESS TO AND USE OF THE PLATFORM.
Access and Integration. Refine shall provide Customer access to the Platform via the API in accordance with this Section 3.1. Subject to the terms and conditions of this Agreement, Refine hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license, during the Subscription Term to access and use the API solely to integrate the API into the Customer Offering in connection with its authorized use of the Platform. The Parties agree to cooperate and devote such resources as are reasonably necessary to integrate the API into the Customer Offering within sixty (60) days of the Effective Date in accordance with this Agreement. Customer acknowledges and agrees that it is solely responsible for the Customer Offering, including the development, operation, maintenance and end user support for the Customer Offering.
Accounts; Users. Customer will appoint one or more Administrators who will have sole responsibility for the assignment and management of Users’ Accounts. As between Customer and Refine, Customer will be responsible for providing the login and password information that will permit Administrators and Users to access and use the Platform (“Account Credentials”). Customer shall require that all Users maintain the confidentiality of such Account Credentials and not disclose the Account Credentials to any third party. Customer shall ensure that all Users comply with all applicable terms and conditions of this Agreement. Notwithstanding anything to the contrary contained herein, any breach of any terms and conditions of this Agreement by any User will be deemed a breach of this Agreement by Customer. Customer will be responsible and liable for the acts or omissions of each User as if such acts or omissions were the acts or omissions of Customer. Customer shall be solely responsible for ensuring that access to the Platform for any User whose employment status with Customer changes, or whose access to the Platform should otherwise be revoked according to Customer’s policies and procedures, is promptly revoked by Customer or by immediately notifying Refine and requesting termination of such User’s Account Credentials.
Use Limitations. Access to the Platform may be subject to additional use limitations, which will be specified in the Order Form (the “Use Limitations”). In the event that Refine becomes aware of any User exceeding the Use Limitations, Refine reserves the right to immediately suspend or terminate such User’s access to the Platform and is under no obligation to refund Customer any applicable Fees with respect to such User’s suspended or terminated access.
Customer Responsibilities. Customer will (a) only use the Service in accordance with this Agreement (including any Order Forms), and applicable laws, rules and regulations, (b) reasonably cooperate with Refine in the diagnosis of any error or defect in the Service, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, including violation of the Use Limitations, and notify Refine promptly of any such unauthorized access or use, or violation, and (d) be responsible for the accuracy, quality, and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data on the Service.
Restrictions on Access and Use. Except to the extent expressly authorized by Refine under this Agreement or an Order Form, Customer shall not (a) permit any third party to access the Service except as permitted herein and in the relevant Order Form, (b) commingle, process, modify, or combine any portion of the Service in conjunction with other data, or software from any other source, (c) create derivate works based on the Service, (d) copy, frame or mirror any part or content of the Service, (e) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code of any software included in the Service, in whole or in part, nor will Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of any software included in the Service or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), (f) access the Service in order to build a competitive product or service, or to copy any features, functions or graphics of the Service, (g) sublicense, relicense, sell, resell, rent, lease or redistribute the Service or any portion thereof, (h) interfere with or disrupt the integrity or performance of the Service, including any Third-Party Materials contained therein, (i) use any robotic mechanisms, web crawlers, spiders, artificial or software based searches or any other form of automated data collection processes to access the Service, (j) attempt to gain unauthorized access to the Service or its related systems or networks, (k) access or use the Service in a way intended to avoid incurring fees, (l) use the Service in a manner that infringes, misappropriates or otherwise violates the intellectual property or proprietary rights of Refine or any third party, including rights of privacy and publicity, (m) use any portion of the Service in conjunction with any machine learning, neural network, deep learning, predictive analytics or other artificial intelligence applications, tools, or systems (1) to train any artificial intelligence or machine learning algorithms, engine or system (collectively, “AI Systems”), or (2) in the development of any such AI Systems, (n) use the Service to create, develop, enhance or structure any database, or create models, analytics, derivative products or other derivative works, (o) remove, alter, cover or distort any proprietary or intellectual property notice contained in the Service, or (p) use any portion of the Service in any manner that is in violation of applicable law or that intentionally harms Refine.
Third-Party Materials. In connection with the Service, Refine may use, license, offer, resell, incorporate into the Service, or otherwise facilitate access to data, files, tools, scripts, software, hardware, applications, resources, systems, infrastructure, services, and the like, belonging to or provided by a third party (“Third-Party Material(s)”). Customer acknowledges that Refine is not the provider of any Third-Party Materials, and Customer shall, if required by Refine, enter into a separate agreement for the Third-Party Materials directly with the applicable provider (collectively, the “Third-Party Terms”). Refine makes no warranties or representations of any kind regarding the correctness, accuracy, completeness, merchantability or fitness of any Third-Party Materials or any associated data, information or system. To the extent applicable, Customer shall observe the Third-Party Terms and shall not claim any right to any Third-Party Materials other than as expressly set forth in the Third-Party Terms and/or this Agreement.
FEES AND PAYMENT TERMS.
Fees. Customer shall pay to Refine all fees specified in the Order Form (collectively, the “Fees”). Fees for the Platform will begin to accrue as of the Implementation Date. Except as otherwise specified in the applicable Order Form, payment obligations are non-cancellable, and Fees paid are non-refundable. If Customer’s use of the Service exceeds the Use Limitations or otherwise requires the payment of additional Fees, Customer will be invoiced for such usage and Customer agrees to pay such additional Fees.
Payment Terms. The Fees shall be paid by Customer within thirty (30) days of Customer’s receipt of an invoice. Customer shall be responsible for all applicable taxes, withholdings, duties, and levies (excluding taxes based on Refine’s net income). All amounts described herein are in United States dollars. Payments will be made without right of set-off or charge back.
Third-Party Payment Processor. Except as otherwise agreed to by the Parties, Customer will make all payments due hereunder directly to Refine’s designated third-party payment processor (any such third-party payment processor, the “Payment Processor”). Customer acknowledges and agrees that such Payment Processor’s terms and conditions and privacy policy may apply to Customer with respect to any payments made by Customer to the Payment Processor. Refine will not be responsible for any acts or omissions of the Payment Processor, or any delays or errors related to the Payment Processor’s processing of payments. Customer is responsible for ensuring timely payment of all Fees as set forth in this Agreement.
Fee Adjustment. All Fees for the Service shall remain in effect for the duration of the then-current Subscription Term. After the Initial Subscription Term and prior to the commencement of any Renewal Term thereafter, Refine may increase the Fees in its sole discretion upon notice to Customer.
Late Payments. If any Fee or charge owed by Customer under this Agreement is fifteen (15) days or more overdue, then without limiting Refine’s rights or remedies, those charges shall accrue interest at the rate of one and one half percent (1.5%) of the outstanding balance each month, or the maximum rate permitted by law, whichever is lower. If any Fee or charge owed by Customer under this Agreement is thirty (30) days or more overdue, Refine may, without limiting its other rights and remedies, accelerate Customer’s unpaid Fee obligations under this Agreement (including any accrued interest) so that all such obligations become immediately due and payable, and suspend access to the Platform until such amounts are paid in full.
TERM; TERMINATION.
Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until there are no Order Forms in effect between the Parties, unless sooner terminated pursuant to this Section 5.
Subscription Term. The initial term of each subscription provided pursuant to an Order Form shall be one (1) month (the “Initial Subscription Term”) from the Effective Date. After the Initial Subscription Term, the Subscription shall automatically renew for additional one (1) month periods (each, a “Renewal Term”) unless either Party provides written notice to the other Party at least thirty (30) days prior to the end of the Initial Subscription Term or then-current Renewal Term (as applicable) of such Party’s intent not to renew the Subscription, in which case the applicable Order Form will expire at the conclusion of the Initial Subscription Term or then-current Renewal Term (as applicable). The Initial Subscription Term, together with any Renewal Term(s), shall be referred to as the “Subscription Term”.
Termination.
Either Party may terminate this Agreement and/or any Order Form(s) or any portion(s) thereof (a) upon written notice to the other Party if the other Party fails to cure any material breach of this Agreement (if capable of cure) within thirty (30) days after receipt of written notice of such breach, or (b) upon written notice to the other Party if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to such Party’s insolvency, receivership, liquidation or assignment for the benefit of creditors which is not dismissed or vacated within forty-five (45) days of the filing of such petition or commencement of any such proceeding.
Refine may terminate this Agreement and/or any Order Form(s) or portion(s) thereof for any reason upon thirty (30) days’ prior written notice to Customer.
Effect of Termination. Upon termination of this Agreement for any reason, (a) all rights granted hereunder shall immediately cease, (b) each Party will return to the other Party the Confidential Information of the other Party in its possession or will destroy such Confidential Information and, upon request of the other Party, confirm such destruction to the other Party in writing, and (c) except in the case of Refine’s termination pursuant to Section 5.3.2, any amounts owed to Refine under this Agreement prior to the date of termination will become immediately due and payable. Notwithstanding the foregoing, (i) each Party may retain Confidential Information to the extent necessary to comply with applicable law, rule, or regulation or its internal recordkeeping policies and procedures, and (ii) Refine may retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course, provided that in each case such retained Confidential Information will at all times remain subject to Section 7.
Suspension. Refine reserves the right to temporarily suspend or disable Customer’s or any User’s access to or use of the Service in the following circumstances: (a) if Refine reasonably believes that any use of the Service represents a direct or indirect threat to the Service, network function or integrity, (b) if Refine reasonably believes that Customer’s use of the Service is in violation of any applicable law, rule or regulation, (c) to the extent reasonably necessary to comply with Refine’s legal obligations, or (d) pursuant to Section 3.2 or Section 4.5. Any suspension pursuant to this Section 5.5 will only be in effect for as long as reasonably necessary to address the issues giving rise to the suspension. Refine will provide advance notice before suspending access to the Service, unless Refine reasonably believes an immediate suspension is required.
OWNERSHIP.
The Service. Customer acknowledges that as between Customer and Refine, Refine owns all right, title and interest, including all intellectual property rights contained therein, in and to the Service and Aggregated Data, and except for the limited rights expressly granted hereunder, Refine will retain all right, title and interest in and to the Service and Aggregated Data (including all patent, copyright, trademark, trade secret and other intellectual property rights). Customer acknowledges that it is obtaining only a limited right to access and use the Service and that irrespective of any use of the words “purchase”, “sale”, or like terms hereunder, no ownership rights are being conveyed to Customer under this Agreement or otherwise.
Customer Data. Customer grants to Refine and its contractors a worldwide license to copy, use, transmit, and display Customer Data to the extent necessary for Refine to provide and ensure proper operation of the Service in accordance with this Agreement. Except for the limited rights expressly granted hereunder, as between Refine and Customer, Customer will retain all right, title and interest in and to Customer Data.
Feedback. During the course of this Agreement, Customer or Users may provide comments, suggestions, enhancement requests, recommendations or other feedback to Refine regarding the Service (including comments, suggestions, enhancement requests, recommendations or other feedback with respect to modifications, enhancements, improvements and other changes to the Service) (“Feedback”). Customer grants to Refine a royalty-free, worldwide, irrevocable, perpetual license to use for any purpose any such Feedback.
Aggregated Data. Notwithstanding anything to the contrary contained herein, Refine shall have the right to use any Customer Data in an aggregated, anonymized and de-identified manner (“Aggregated Data”) for benchmarking purposes and in the review, development, and improvement of current and future products and services of Refine, including the Service and other similar quality improvement purposes. Aggregated Data will not be considered Customer Confidential Information.
CONFIDENTIALITY.
Definition. For purposes of this Agreement, “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including, with respect to Refine, the terms of this Agreement, the Service, and any specifications or technical information relating to the Service. The restrictions on and use and disclosure of Confidential Information shall not apply to information which the Receiving Party can demonstrate (a) is or has become generally known 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) was received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, (d) was independently developed by the Receiving Party without access to or use of such information, or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party (to the extent legally permitted)). As between the Parties, each party retains all ownership rights in and to its Confidential Information.
Protection of Confidential Information. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care that it uses to protect the confidentiality of its own confidential information of a similar nature, (b) use the Disclosing Party’s Confidential Information solely for the purpose of exercising its rights and fulfilling its obligations under this Agreement or as otherwise directed by the Disclosing Party in writing, and (c) only disclose the Disclosing Party’s Confidential Information to its employees, agents, representatives and contractors (collectively, “Representatives”) who have a need to know such information for the purposes of this Agreement, provided that (i) such Representatives agree to be bound by confidentiality obligations that are at least as protective of such Confidential Information as this Section 7 (or in the case of attorneys or accountants, have a similar professional ethical duty with respect thereto), and (ii) the Receiving Party will remain liable for any breach by any such Representative of such provisions and for any damages caused thereby. The Receiving Party agrees to give notice to the Disclosing Party promptly after learning of or having reason to suspect a breach of any of the restrictions set forth in this Section 7.2 and in such an event, the Receiving Party will cooperate with the Disclosing Party to help the Disclosing Party to regain possession of its Confidential Information and prevent its further unauthorized use.
Injunctive Relief. Customer acknowledges that disclosure of Refine’s Confidential Information in violation of this Section 7 may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by Customer, Refine shall be entitled to seek appropriate equitable relief in addition to any other remedies it might have at law.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
Mutual. Each Party represents and warrants to the other Party that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms, (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement, and (c) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a Party or by which it is otherwise bound.
Customer. Customer represents and warrants to Refine that (a) Customer owns all right, title and interest in and to Customer Data, (b) Customer has the necessary rights in Customer Data to provide Customer Data to Refine and grant the rights to Refine contemplated by this Agreement; and (c) use of Customer Data by Refine in accordance with this Agreement will not violate any law, rule or regulation or otherwise infringe, misappropriate or violate the rights of any third party.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. REFINE FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE AND PERFORMANCE OF THE SERVICE REMAINS SOLELY AND EXCLUSIVELY WITH CUSTOMER. REFINE ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE SERVICE, AND REFINE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, REFINE DOES NOT WARRANT THAT THE SERVICE (i) WILL OPERATE UNINTERRUPTED, (ii) WILL BE FREE FROM DEFECTS, (iii) WILL PRODUCE ACCURATE RESULTS, OR (iv) HAS BEEN DESIGNED TO MEET CUSTOMER’S SPECIFIC REQUIREMENTS.
INDEMNIFICATION.
Refine Indemnification. Refine shall defend, indemnify, and hold harmless Customer from and against any Losses arising from any actual or threatened third-party claim, action or proceeding (“Claim”) asserted or brought against Customer alleging that the Service (or portion thereof) or the use thereof by Customer in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (an “IP Claim”). If Refine receives information about an IP Claim related to the Service, Refine may, at its sole option and expense: (a) procure for Customer the right to continue use of the Service pursuant to this Agreement, or (b) make such alterations, modifications, or adjustments thereto as are necessary to make the Service non-infringing, which modification, alteration, or adjustment does not materially adversely affect the functionality of the Service. This Section 9.1 sets forth Customer’s sole rights and remedies, and Refine’s sole obligations, with respect to any IP Claim related to the Service.
Customer Indemnification. Customer shall defend, indemnify, and hold harmless Refine and its affiliates, and each of its and their respective members, directors, officers, employees, shareholders, licensees, licensors, agents, suppliers, successors and assigns, from and against all Losses arising from any actual or threatened Claim asserted or brought against Refine arising from (a) Customer’s and/or its Users’ (i) use of the Service or any portion thereof, (ii) actual or alleged breach of this Agreement, and/or (iii) use of the Service in violation or alleged violation of any applicable law, rule or regulation, and/or (b) Refine’s use of Customer Data in accordance with the terms of this Agreement.
Indemnification Procedure. The Party seeking indemnification under Section 9.1 or Section 9.2, as applicable (“Indemnified Party”), shall (a) promptly notify the other Party (“Indemnifying Party”) in writing of any Claim for which the Indemnified Party believes it is entitled to indemnity, provided that failure to provide such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent it is materially prejudiced thereby, and (b) cooperate in all reasonable respects, at the Indemnifying Party’s sole cost and expense, in defending or settling such Claim. The Indemnifying Party shall not compromise any Claim or enter into any settlement that adversely affects the rights of the Indemnified Party without the Indemnified Party’s prior written consent.
LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR DAMAGES ARISING OUT OF EITHER PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND WITHOUT LIMITING EITHER PARTY’S OBLIGATIONS UNDER SECTION 9, IN NO EVENT WILL CUSTOMER OR REFINE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF REFINE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO REFINE PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PARTIES ENTERED INTO THIS AGREEMENT, IN PART, IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN THE PARTIES AND CONTRIBUTE TO THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
AUDIT. During the Subscription Term and for one year thereafter, Refine will have the right, during normal business hours and upon thirty (30) days’ prior written notice to Customer, either itself or through a third-party auditor, to audit the records of Customer relating to its activities pursuant to this Agreement in order to verify that its use of the Service is in compliance with the terms of this Agreement. If the audit reveals that Customer’s use of the Service is in excess of any limitations set forth in this Agreement and/or the Order Form, or otherwise constitutes a breach of this Agreement, without prejudice to its other rights and remedies, Refine reserves the right to adjust the Fees due hereunder to reflect the use of the Service for the period of non-compliance and thereafter on an ongoing basis. The audit will be conducted at Refine’s expense, unless the audit reveals that Customer has underpaid amounts owed to Refine by seven percent (7%) or more during the audited period, in which case Customer shall reimburse Refine for the reasonable out-of-pocket costs and expenses incurred by Refine in connection with such audit.
GOVERNING LAW AND DISPUTE RESOLUTION.
This Agreement shall be governed by the laws of the State of New York applicable to contracts executed and fully performed therein.
Any claim, dispute or controversy arising out of or relating to this Agreement, or the making, performance, breach or interpretation of the rights and obligations set forth in this Agreement, including the determination of scope of the applicability of this provision, shall be resolved by binding arbitration in New York County, New York, before a single arbitrator from the Judicial Arbitration Mediation Service (“JAMS”) mutually agreeable to the Parties to the arbitration, and, if no agreement is reached on an arbitrator, before the arbitrator from JAMS selected in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures. The arbitration will be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures. The arbitration proceedings and arbitration award shall be maintained by the Parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the Parties’ respective attorneys, tax advisors and senior management. The decision of the arbitrator shall be binding on all of the Parties to the arbitration, and any right to judicial action on any matter subject to arbitration hereunder is hereby waived, unless otherwise provided by applicable law. The arbitrator shall be bound by the terms and conditions of this Agreement and shall not extend, modify or suspend any of the provisions of this Agreement. The decision of the arbitrator, which will be issued in a reasoned award, will be enforceable according to the applicable provisions of the New York Civil Practice and Law Rules. The prevailing Party in any arbitration conducted hereunder shall be entitled to recover from the losing Party all reasonable fees, costs and expenses for outside attorneys, experts and other third parties (including its share of JAMS administrative costs and arbitrator compensation) incurred by the prevailing Party in connection with such arbitration (including any motion to compel arbitration and costs of enforcement of the arbitration award).
CLASS ACTION WAIVER. CUSTOMER AGREES THAT IT MAY BRING CLAIMS AGAINST REFINE ONLY IN CUSTOMER’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
GENERAL.
Relationship of the Parties. Refine and Customer agree that each is an independent contractor, and this Agreement will not establish any relationship of partnership, joint venture, employment, or agency between the Parties. Neither Party possesses the power or authority to bind the other Party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other Party. Neither Party shall represent to any person or entity that it possesses such power or authority.
Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Refine’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed.
Publicity. During the Subscription Term, Refine may identify Customer as a customer of Refine on Refine’s website and in its customer lists and other marketing and advertising materials; provided that, upon Customer’s request, Refine will promptly cease such use of Customer’s name.
Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by overnight courier, properly posted and fully prepaid to the appropriate address set forth below, or (c) sent via email. Notices to Refine will be sent to 247 Centre Street 6th Fl, New York, NY 10013 and via email to dash@joinrefine.io. Notices to Customer will be sent to the address and email provided by Customer on the Order Form. Notices will be considered to have been given at the time of actual delivery in person or one day after delivery to an overnight courier service.
Third-Party Beneficiaries. Without limiting Section 9, the provisions of this Agreement are for the benefit of only the Parties and each of their permitted assigns, and except for the Indemnified Parties, and as expressly set forth in this Agreement, no third party is, or will be, a beneficiary of, or have any rights by virtue of, this Agreement.
Force Majeure. A “Force Majeure Event” means any act or event that (a) prevents a Party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other Party’s (the “Performing Party”) obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, or insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other Party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event (except for payment obligations). When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other Party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this Section 14.6 is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
Waiver; Remedies Cumulative; Entire Agreement; Modifications. A waiver of any breach, default or condition under this Agreement shall not constitute a waiver, or continuing waiver, of such, or any other or subsequent, breach, default or condition. No failure or delay by either Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by either Party of any right, power or privilege preclude any further exercise thereof or any other right, power or privilege. No payment or acceptance thereof under this Agreement shall operate as a waiver of any provision hereof. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative and none of them, nor the exercise or failure to exercise any of them, shall be in limitation of any other remedy, right, undertaking, obligation, or agreement of either Party. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior and contemporaneous agreements, arrangements and understandings, regardless of whether or not written or oral, relating to the subject matter hereof. This Agreement shall not be modified other than in a writing, signed by each of the Parties.
Interpretation; Headings. The headings herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Sections and Exhibits are to Sections and Exhibits of this Agreement unless otherwise specified. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized term used in any Exhibit but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import.
Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
Survival. Any provision of this Agreement, which, by its nature would survive termination of this Agreement, will survive termination, including any provision relating to confidentiality and liability (including limitations and indemnification).