|
|
End User Services Agreement
PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS "AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("YOU" OR "CUSTOMER") AND Baredak CORPORATION ("Baredak" OR "WE") WITH RESPECT TO YOUR USE OF Baredak'S ON DEMAND SOFTWARE AND SERVICES AND APPLICATIONS (THE "SERVICES"). BY USING THE SERVICES, YOU AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU WILL NOT BE ALLOWED TO USE THE SERVICES.
1. Services.
The Services assist customers to distribute electronically customer-created content to customers' lists of subscribers, each of whom must have consented previously to the receipt of such content ("Recipients"). While Customer retains Baredak to assist with the transmittal of content to its Recipients, Customer acknowledges that Baredak does not actually send Customer content to Recipients on Customer's behalf. The Services comprise primarily of a web-based technology platform through which such content is delivered once Customer sends such content. Among other things, Baredak provides customer support and formatting assistance for the electronic content Customer desires to distribute. In all cases, Baredak simply acts as agent for Customer with its authorization. Customer agrees that the Services are used only for Customer's business purposes. If Customer does not intend to use the Services for business purposes, Customer must contact us at customercare@Baredak.com.
2. Site and Policies.
During the Term (as defined below) and subject to the terms and conditions set forth herein and in any guidelines, rules or operating policies that Baredak may establish and post from time to time on www.Baredak.com (the "Site"), including, without limitation, Baredak's anti-spam policy, privacy policy and prohibited content and commerce statement, each of which is incorporated herein by reference (collectively, the "Policies"), Baredak agrees to use commercially reasonable efforts to provide Customer with the Services. From time to time, Baredak may modify the terms and conditions set forth in this Agreement and/or in the Policies. All such changes shall become effective once posted on the Site, and Customer's use of the Services thereafter shall be subject thereto. In the event of any conflict between any term or condition set forth in this Agreement and in a Policy, the former shall govern. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by Baredak with respect to future functionality or features.
3. Professional Services.
In addition to the Services, Customer may purchase certain premium services by making its selection therefore in accordance with the instructions, which Professional Services may be customized pursuant to a mutually agreed upon written statement of work provided to Customer upon the earlier of its request or its selection of desired Professional Services (each, a "Statement of Work"). The Professional Services are provided by Baredak separate and distinct from the Services and are not required for Customer's use or enjoyment of the Services. In the event of any conflict between any term or condition set forth in this Agreement and in a Statement of Work, the terms and conditions of this Agreement shall govern, unless the parties expressly agree otherwise in such Statement of Work. Any Statement of Work may be modified or amended only with the written consent of each of Baredak and Customer.
4. Free Trial Period.
In the event Customer elects to use the Services on a trial basis, Customer will not be billed for such use for a period equal to thirty (30) days or, if a different number of days are posted on the landing page through which Customer subscribes to use the Services, that different number of days, beginning on the date on which Customer first subscribes to use the Services and indicates its agreement with the terms and conditions set forth in this Agreement (the "Trial Period"). During the Trial Period, Customer's subscriber level limit may not exceed 500 Recipients and Customer's monthly email send limit may not exceed four (4) times the number of permitted Recipients (i.e., 2,000 emails per month), unless a higher subscriber level and/or a higher monthly email send limit are posted on the landing page through which Customer subscribes to use the Services. The subscriber level and email send limits for the Trial Period are subject to change at any time. Once Customer completes its free trial period or exceeds any such limit (even if Customer manually removes names from its Recipient list), whichever occurs first, the Trial Period will terminate. Upon such termination, Customer may purchase a monthly or annual subscription for the Services. Customer's access to the Services will be disabled until payment therefore is received. Baredak reserves the sole and exclusive right to modify the duration of the Trial Period.
5. Commission:
During the Term, Baredak agrees to pay Affiliate a commission equal to: (i) fifteen percent (15%) of all Revenue (as defined below) actually received from each Baredak Customer referred to Baredak by Affiliate; and (ii) five percent (5%) of all Revenue generated by affiliates referred to Baredak by Affiliate, which enter into affiliate agreements with Baredak substantially similar to this Agreement (each, a "Second Tier Affiliate"); provided, however, that: (A) for Baredak Customers which Baredak determines, in its sole discretion, are Baredak for Sales force or Agency customers, Baredak will not pay Affiliate any commission; (B) for Baredak Customers which Baredak determines, in its sole discretion, are enterprise, large sender, or managed account customers, Baredak agrees to pay Affiliate a commission equal to ten percent (10%) of all Revenue (as defined below) actually received from each Baredak Customer referred to Baredak by Affiliate; and (C) Baredak will pay Reseller a monthly commission of no more than $175 for each Baredak Customer. Except as otherwise set forth in Section 4 above, Affiliate will continue to receive the commission payments described in this Section 5 for the life of each Baredak Customer in accordance with the terms and conditions set forth herein. Commission payments will be based on Revenue actually received by Baredak from Baredak Customers in a calendar month, as calculated on the first day of the immediately subsequent calendar month (the "Month of Payment"), and will be mailed to Affiliate no later than the fifteenth (15th) day of the Month of Payment, by check made payable to Affiliate. Such payments will be made after Affiliate's cumulative commissions exceed $30.00 (or in the case of non-U.S.-based Affiliate, such payments will be made after cumulative commissions exceed US$100.00). For purposes hereof, "Revenue" means gross revenue actually received by Baredak from each Baredak Customer minus any refunds, rebates, setoffs, discounts, promotions, charge backs, non-payments, or defaults, any of which may be set-off against amounts already paid to Affiliate.
6. Purchase.
Pricing for the Services is based upon the subscriber level Customer chooses to purchase as indicated on the landing page through which Customer subscribes to use the Service or in a negotiated sales order, as the case may be (in either case, the "Sales Order"). The Sales Order records Customer's subscriber level, term, subscription fee, payment method and other account information. If the number of Recipients stored in Customer's account exceeds the subscriber level set forth in the Sales Order, Customer's access to and use of the Services will be disabled until Customer: (i) reduces the number of Recipients stored in Customer's account; or (ii) upgrades its subscriber level to at least equal the number of Recipients stored in its account. Customer may upgrade (but not downgrade) Customer's subscriber level at any time during the term of this Agreement. The total number of emails per month that may be sent by Customer cannot exceed six (6) times the subscriber level limit. For example, if Customer's subscriber level limit is 100,000, Customer can send up to 600,000 emails per month. If Customer requires a sending limit higher than six (6) times Customer's subscriber level limit per month, Customer should contact Baredak's sales group at sales@Baredak.com or +961-1-252300.
7. Fees and Payment.
In consideration for the Services to be provided by Baredak (other than through Baredak Free Edition), Customer agrees to pay the monthly subscription fees set forth in the Sales Order (the "Subscription Fees"). Paid Subscription Fees are non-refundable. Customer acknowledges that from time to time, delivery of email messages sent using the Services may be blocked or prevented at destination email servers. Customer's payment obligation set forth herein continues regardless of whether delivery of such email messages is prevented or blocked. In consideration for the Professional Services to be provided by Baredak, if any, Customer agrees to pay the fees, set forth in the Statement of Work or as otherwise provided to Customer by Baredak, (the "Professional Fees," together with the Subscription Fees, the "Fees"). Payments for Fees and reimbursements for expenses, if any, will be billed monthly and will be due immediately upon receipt of invoice; or may be pre-paid in advance; or otherwise may be paid pursuant to the terms set forth in the Sales Order. The Fees shall include all applicable foreign, federal, state and local taxes payable with respect to this Agreement. If Customer is paying for the Services by credit card and such credit card is declined, Baredak will send Customer notice thereof to Customer's email address on record. If Customer misses a payment, Baredak may notify Customer by phone or mail, but has no obligation to do so. Any payment due and not received by Baredak by the due date may be subject, at Baredak's sole discretion, to a late fee equal to 1.5% (or the maximum rate permitted by law) of the amount then due, for each month overdue until paid in full. In the event Customer fails to make timely payments when due, Baredak may, at its election, discontinue, terminate or suspend the Services, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Fees until this Agreement is terminated in accordance with the termination provisions set forth herein. For amounts outstanding after ninety (90) days from its receipt of the invoice therefore, Customer shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to, court and attorneys' fees and expenses. From time to time, and at any time, Baredak may require reasonable credit guarantees before continuing its provision of the Services or the Professional Services hereunder.
8. Customer's Recipient Data.
In offering the Services, we may collect personal information about Recipients. Baredak will not own any data, information or material that Customer submits to Baredak in connection with the Services ("Customer Recipient Data"). Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Recipient Data, and Customer is responsible for maintaining, securing and storing all Customer Recipient Data in accordance with applicable law. Upon any termination or expiration of this Agreement and Customer's payment of all unpaid and outstanding Fees, and Customer's written request received by Baredak within thirty (30) days of such expiration or termination, Baredak will provide Customer with an electronic file of the Customer Recipient Data. Customer acknowledges and agrees that after the thirtieth (30th) day following any such termination or expiration, Baredak has no obligation to retain the Customer Recipient Data and may delete and destroy such Customer Recipient Data without providing Customer with notice of such deletion. If Customer uses the Services during a Trial Period and fails to convert its account to Baredak Free Edition or a standard paid customer account upon the expiration or other termination thereof, Baredak has no obligation to retain the Customer Recipient Data after the date of such expiration or termination. If Customer uses the Services through Baredak Free Edition and fails to use the Services for at least sixty (60) consecutive days, as of the sixty-first (61st) day after Customer's last use of the Services, Customer acknowledges and agrees that Baredak has no obligation to retain the Customer Recipient Data and may delete and destroy such data without providing Customer with notice of such deletion. Baredak will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Recipient Data.
9. Customer Information.
Baredak collects certain personal and business-related information about its Customers, which generally includes, but is not limited to, contact information and payment information (the "Customer Information"). Baredak collects such information in order to provide the Services or the Professional Services, as the case may be, and related technical support. If you have provided your Customer Information, Baredak may contact you for marketing purposes by various means, including, but not limited to, regular mail, email or telephone. When you activate an Baredak account (including during the Trial Period), you expressly consent to receive marketing communications via direct mail, email (at the email address you provided when you activated your account), telephone (at the number you provided when you activated your account), pre-recorded messages (at the number you provided when you activated your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods.
10. Data Disclosures.
Except as otherwise set forth herein, Baredak does not disclose, sell or rent Customer Recipient Data or Customer Information (collectively, the "Data"), without Customer's prior consent or unless required by order or other requirement of a court, administrative agency, or other governmental body or applicable law. Customer expressly permits Baredak to disclose the Data to: (i) Baredak personnel who access and manage the Data in connection with the Services; (ii) service providers for purposes of providing functions or services related to the Services and Baredak's customers' accounts; and (iii) Baredak marketing partners through which Customer purchased the Services, if any. Except as otherwise set forth herein, Baredak will not provide any Data to any third party without Customer's authorization and will use commercially reasonable efforts to prohibit any third party that receives any such Data from selling or redistributing such Data without Customer's authorization.
11. Passwords.
In connection with Baredak's provision of the Services, Baredak will send to Customer's email address (as designated by Customer at the time an account is established), information such as user-IDs and/or passwords which will enable Customer to access the Services (the "Passwords"). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify Baredak promptly if there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer's negligence or intentional misconduct. Any unauthorized use of the Passwords by Customer will constitute a material breach of this Agreement.
12. Proprietary Rights.
This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services, the Professional Services, and in any applications developed, owned or controlled by Baredak (as applicable) (the "Software"), and the Services, are and shall remain the sole and exclusive property of Baredak. Accordingly, Customer acknowledges that, as between Baredak and Customer, Baredak owns all right, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer acknowledges that the Software contains proprietary information and trade secrets of Baredak. Customer will not take any actions inconsistent with Baredak's ownership of each of Baredak's rights in and to the Software. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by Baredak. If you are using the Services in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
13. Use of Services.
Customer acknowledges and agrees that it will use the Services (and the Professional Services as the case may be) only to access, employ, utilize, or display the Software solely for Customer's "internal business purposes" by Customer's employees or by independent contractors hired by Customer. For the avoidance of doubt, the term "internal business purposes," as used herein, does not include, among other things, the right to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send messages to any purchased (email) lists, purchased distribution lists, purchased newsgroups, or purchased email addresses; (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (v) use the Services (and the Professional Services as the case may be) in any other manner which violates any Policy or any applicable law. Customer agrees to report immediately to Baredak, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section 13 or in any of the Policies. In the event of any suspected violation of any term, condition or restriction set forth in this Section 13 or in any Policy, or in the event Baredak otherwise reasonably objects to any inappropriate or improper content uploaded by Customer in connection with its use of the Service, Baredak may immediately disable Customer's access to the Services and suspend its provision thereof.
14. No Tampering.
Each email message that is sent using the Services must contain an "unsubscribe" link that allows Recipients to remove themselves from Customer's mailing list and a link to Baredak's Policies. Customer agrees that it will not remove, disable, modify or attempt to remove, disable or modify either link. Further, each such email message may contain an automatic identifying footer such as "Powered by Baredak." Except as otherwise expressly permitted in writing by Baredak, Customer agrees that it will not remove, disable or modify or attempt to remove, disable or modify such footer.
15. Confidential Information.
Each of Baredak and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). For purposes hereof, "Confidential Information" means any information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") that relates to such Disclosing Party's business affairs, internal operations, personnel, subscribers, customers, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party's possession prior to receipt of the same hereunder, as evidenced by the Receiving Party's prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law; (iv) can be proven by competent written evidence to have been independently developed by the Receiving Party; or (v) is approved in writing for release by the Disclosing Party. For purposes hereof, Customer Recipient Data and Customer Information are considered Customer's Confidential Information. Nothing set forth herein shall be construed to prohibit Baredak from disclosing Customer's Confidential Information to any third party that has a need to know such information in connection with its performance of the Services. From time to time, Baredak may be required to disclose Customer's Confidential Information by order or other requirement of a court, administrative agency, or other governmental body or applicable law, as determined by Baredak or its legal counsel. In such event, Customer hereby permits Baredak to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 15.
16. Representations, Warranties and Covenants.
Customer represents, warrants and covenants to Baredak that: (i) if an individual, Customer is at least eighteen (18) years old; (ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized; (iii) it has full power and authority to enter into this Agreement, which constitutes a legal, valid and binding obligation enforceable against it in accordance with the terms hereof; (iv) all information provided by it in the Sales Order and that will be provided it during the term of this Agreement, is and will be truthful and accurate; (v) its use of the Customer Recipient Data, the Services and the Professional Services, including, without limitation, its right to email Recipients, is and will at all times be in accordance with the terms and conditions set forth in this Agreement, the Policies and all applicable laws, rules and regulations, and without infringement or misappropriation of any intellectual property right or other right of a third party; (vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services; and (vii) neither Customer nor any of its officers, directors or personnel is located in a United States embargoed country, or is, or has been, named on the United States Treasury Department's listing of specially designated nationals and blocked persons or is, or has been, otherwise blacklisted by any instrumentality of the United States.
17. Third Party Products and Services.
From time to time, certain third parties may offer products and services related to the Services (and the Professional Services, as applicable). Any subsequent business relationship, exchange of data or other interaction between Customer and such a third party, and/or any purchase, download or use by Customer of any product or service offered by such third party, is solely between Customer and such third party. Regardless of any recommendation by Baredak or use of such third party products or services, Baredak does not make any representations, warranties or guarantees with respect to any such third parties or any of their products or services. While Baredak may rely on data or information provided or generated by such third party products and services in the course of providing the Services (and the Professional Services, as applicable), Customer hereby acknowledges that Baredak specifically does not warrant the accuracy, reliability or completeness of any such data and information; and agrees that Baredak shall not be liable for any acts or omissions based on its reliance thereon. Accordingly, Customer hereby releases and holds harmless Baredak from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising there from.
18. Open Source Software.
Customer acknowledges and understands that certain open source code may be incorporated into the Service (the "Source Code"). Except as otherwise set forth in the applicable Source Code license therefore, the Source Code is provided "as is," and without representation or warranty of any kind. Customer hereby releases and holds harmless Baredak from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising there from.
19. Disclaimer of Warranties.
THE SERVICES (AND THE PROFESSIONAL SERVICES, AS APPLICABLE) ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Baredak AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS, AGENTS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE "REPRESENTATIVES") DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES OR THE PROFESSIONAL SERVICES. THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES OR THE PROFESSIONAL SERVICES WILL MEET CUSTOMER'S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES OR THE PROFESSIONAL SERVICES.
20. Limitation of Liability.
IN NO EVENT WILL Baredak OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF Baredak OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL Baredak OR ANY REPRESENTATIVE'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT, THE SERVICES, OR THE PROFESSIONAL SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO Baredak FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM, LOSS, OR DAMAGE. No claim may be asserted by Customer against Baredak more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or Baredak's non-provision, of the Services (or the Professional Services as the case may be), Customer's sole and exclusive remedy shall be for Baredak to use commercially reasonable efforts to repair or provide the Services (or the Professional Services as the case may be).
21. Indemnification.
Customer agrees to indemnify, defend and hold harmless Baredak, the Representatives, and its and their respective affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising from: (i) Customer's acts or omissions; (ii) Customer's violation of any applicable law, including, without limitation, the United States CAN SPAM Act and Canada's Fighting Internet and Wireless Spam Act, or the Policies; (iii) Customer's breach of any term or condition set forth in this Agreement (including in the Policies); (iv) Customer's breach of any of its representations or warranties set forth herein; and/or (v) Customer's infringement or misappropriation of any intellectual property rights or other rights of any person or entity.
22. Term and Termination.
The Sales Order determines the initial term (the "Initial Term") of your Agreement. Upon expiration of the Initial Term, this Agreement will automatically renew for successive terms equal to the same period of time as the Initial Term (each, a "Successive Term," together with the Initial Term, the "Term"), and you will continue to be billed for the Fees until this Agreement is terminated in accordance with the terms and conditions set forth herein. At any time during the Term, either Customer or Baredak may terminate this Agreement for any reason. If Customer desires to terminate this Agreement, Customer may request a termination by calling Baredak at 961-1-252300, Monday through Friday, between the hours of 8:00 am and 6:00 pm (Lebanon Time) (a "Valid Termination Notice"). Customer acknowledges that allowing a credit card to expire or failing to submit payment by check does not constitute a Valid Termination Notice. Any Customer termination request that occurs in the middle of a payment term (whether monthly, quarterly or annually, as set forth in the Sales Order) will be made effective on the final day of such term. If Customer wishes to terminate only the Professional Services, it should contact its account manager prior to such services being performed. Baredak may terminate this Agreement immediately effective upon delivery to Customer of notice thereof. Such right to terminate this Agreement shall include Baredak's right to terminate its provision of the Services and/or the Professional Services (as applicable) and to pursue all available equitable and legal remedies (in the event Customer breaches any term or condition, or any of its representations or warranties set forth herein). Upon termination of this Agreement for any reason, all Customer Recipient Data may be destroyed and deleted in accordance with the terms and conditions set forth in Section 8 above. Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay Baredak Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be.
23. Governing Law.
This Agreement will be governed by the laws of the State of North Carolina as applied to agreements entered into and performed entirely within the State of North Carolina, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
24. Arbitration.
Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in Lebanon. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, Baredak shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in Lebanon, to which jurisdiction, for such purpose, Customer hereby irrevocably consents.
25. Relationship.
This Agreement does not create a partnership, joint venture or agency relationship between Baredak and Customer. Customer does not have any right, power, or authority to act as a legal representative of Baredak.
26. Assignment.
Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Baredak. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
27. Severability.
In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
28. Survival.
The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
29. Entire Agreement.
This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between Baredak and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the Baredak and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement. At any time prior to, or during, its use of the Services, Customer may enter into certain other agreements with Baredak which are subject, expressly or otherwise, to the terms and conditions set forth in this Agreement. In the event of any conflict between a term or condition set forth therein and herein, the term or condition which most favors Baredak, as determined by Baredak, shall govern.
30. No Waivers.
Baredak's failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
31. Notice.
Baredak may provide Customer with general notice by electronic mail to Customer's e-mail address of record, or by written communication sent by first class mail or pre-paid post to Customer's address of record, or to such other address designated by Customer and communicated to Baredak in accordance with the notice delivery provisions of this Section 31. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by electronic mail. Except as otherwise provided herein, Customer must give notice to Baredak (such notice shall be deemed given when received by Baredak) by using one of the following means: (i) letter delivered by a nationally recognized overnight delivery service; or (ii) by first class postage, return receipt requested, prepaid mail to Baredak, Customer must adhere to the terms and conditions set forth in Section 22 above to provide Baredak with notice of its intention to terminate this Agreement. Either Customer or Baredak may designate a different mailing address for notice delivery by providing the other party with such different address in accordance with the notice delivery provisions of this Section 31.
32. Consent to Use of Electronic Signatures and Records.
As a convenience and courtesy to you, Baredak provides access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking "I Agree" or "I Accept" anywhere on the Site or by otherwise agreeing to the terms and conditions set forth in any agreement posted on the Site:
• you agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;
• you have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, the Policies and any amendments hereto or thereto;
• you agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;
• you are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto; and
• you agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.
If you wish to withdraw this consent, please contact us at customercare@Baredak.com, in which case Baredak shall have the right to terminate your use of the Services.
33. Export Restrictions.
Customer acknowledges that the Services may be subject to Lebanon or other countries' export control laws and regulations. Customer agrees not to export, or transfer for the purpose of re-export, the Services (including technical data) in violation of any Lebanon or other applicable export control laws and regulations.
34. Miscellaneous.
Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by Baredak and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries..
|
|
|
