Terms of Use/ Master Agreement
Welcome to the BCompliant website. These terms (the “Master Agreement”) apply to, without
limitation, the use of any information, data, or analytics from this website and/or the Services (as defined
below), as well as any and all other interactions with BCompliant, and constitute a legally binding
agreement between you and the BCompliant. Your continued use of the website and/or the Services is
hereby deemed to mean that you agree to be bound by the following in addition to the Master
Agreement: (a) BCompliants privacy policy which is located at www.bcompliant.com/privacy (the
“Privacy Policy”), (b) any other statements, rules or policies made and set forth by BCompliant in its sole
discretion; and (c) the Master Agreement or Purchase and Subscription Order (as applicable) that you
have executed with BCompliant, all of which are hereby incorporated herein by reference with the same
force and effect as if set forth herein separately and in their entirety. If you are a Customer (defined
below), additional terms and conditions may apply to your use of the website and/or the Services. In the
event of any conflict between the Master Agreement and the Purchase and Subscription Order, the
terms of the Purchase and Subscription Order shall control.
1. PRODUCTS, SERVICES, ORDERS
1.1 Subject to the terms and conditions set forth in this Master Agreement, Customer hereby
agrees to purchase from BCompliant, and BCompliant hereby agrees to use commercially
reasonable efforts to provide thereto or to perform therefor: (a) the Products based on
Technical Specifications (as defined below); (b) Professional Services; and/or (c) Support
Services.
1.2 During the Term (as defined below) of this Master Agreement, Customer will purchase the
Products Professional Services and/or Support Services (including upgrades and additional
purchases) pursuant to a signed Purchase and Subscription Order, which will reference this
Master Agreement and will include: (i) Customer’s name and contact information; (ii) a
description, scope and specifications for Products, Support Services and Professional
Services; (iii) fees, subject to the corporate pricing conditions set forth and attached hereto
and incorporated herein by reference (the “Corporate Pricing Conditions”), and expenses,
as applicable; (iv) payment terms;; (v) any taxes associated therewith or, if applicable, state
the appropriate tax exemption certificate number or include a blanket tax exemption
certificate; and (vi) such other terms as the Parties may mutually agree; (each such order
form, a “Purchase and Subscription Order”).
1.3 Except as otherwise expressly agreed to in writing by BCompliant, additional, modified or
conflicting terms and conditions set forth by Customer in the Purchase and Subscription
Order or in any document provided by or on behalf of Customer do not modify or amend
this Master Agreement and will be considered of no force or legal effect. Until a Purchase
and Subscription Order has been accepted by BCompliant, as evidenced by the execution
thereof by an authorized representative of BCompliant, such Purchase and Subscription
Order will not be binding upon BCompliant.
1.4 No Purchase and Subscription Order which has been accepted by BCompliant may be
cancelled by Customer except with the written consent of an authorized representative of
BCompliant; and provided that Customer agrees to indemnify, defend and hold harmless
BCompliant in full from and against all loss (including loss of profit), costs (including the cost
of all labor and materials used), damages, charges and expenses incurred by BCompliant
as a result of such cancellation.
2. DEFINITIONS
Unless otherwise defined, capitalized terms, used in this Master Agreement, any of the annexes
attached to this Master Agreement or in any document related to this Master Agreement and
incorporated herein by reference shall have the meaning set out below:
“Affiliate(s)” means any legal entity which is owned by, directly or indirectly, Controlled by,
Customer, where “Control” means either the beneficial ownership of at least 50% of the voting
interests of an entity or the power to direct the management or affairs of such entity.
“Customer’s Inputs” means all of the information and inputs to be provided by Customer in the
Purchase and Subscription Order which are required in order for BCompliant to fulfill such
Purchase and Subscription Order. Such inputs may include, inter alia, information, documents,
equipment, services, access, facilities and support regarding the Products.
“Customization Services” means the work performed for Customer by BCompliant with respect
to customizing the Hardware, the Software, and/or the API described in a Statement of Work (as
defined below).
“Customization Fees” means the then current costs, fees and expenses associated with the
Customization Services provided by BCompliant and described in the Purchase and Subscription
Order.
“Malfunction” means a failure by the Software and/or the Hardware to operate in accordance with
the Technical Specifications in any material respect.
“Product(s)” means the Hardware and the Software.
“Professional Services” means the services provided by BCompliant set forth in the Purchase
and Subscription Order.
“Software” means all software owned or controlled by BCompliant comprising the Products which
facilitates and processes the Features, and all updates and documentations related to such
Software.
“Software Support Services” means maintenance and support services provided by BCompliant
with respect to the detection and correction of Software defects or failures.
“Software Fees” means the periodic fee payable by Customer for the Software, , and for the
Software Support Services provided by BCompliant in accordance with the Purchase and
Subscription Order.
“Subscription Fees” means the periodic subscription fees payable by Customer for access and
use of the Software, the Software Support Services, and the HW Support Services as set forth in
the Purchase and Subscription Order.
“Territory” means United States of America.
“Technical Specifications” means the technical requirements that must be met by the Products
including, but not limited to, the standard product characteristics , Customer’s set-up requirements
and Customer’s customization requirements if any, set forth and attached hereto and incorporated
herein by reference.
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3. AFFILIATES
Under this Master Agreement, Affiliates (if any) will have the right to purchase and /or subscribe
to use the Product, the Support Services, and/or the Professional Services directly from
BCompliant by entering into and executing a Purchase and Subscription Order, which will be
subject to terms and conditions set forth in this Master Agreement which, except to the extent set
forth herein or in such Purchase and Subscription Order, will be incorporated by reference therein .
Upon execution of a Purchase and Subscription Order, Affiliates executing such Purchase and
Subscription Order will be considered “Customer” for all purposes of this Master Agreement, and
this Master Agreement and the Purchase and Subscription Order will be considered a separate
agreement between BCompliant and such Affiliate. BCompliant acknowledges and agrees that
Affiliate and Customer will be independently and solely responsible for its respective purchases of
the Product, Professional Services and/or Support Services pursuant to each applicable Purchase
and Subscription Order to which it is a party. BCompliant agrees it will only disclose to each Affiliate
Hotel the terms of this Master Agreement to the extent expressly permitted in writing by Customer.
4. EFFECTIVE DATE AND DURATION OF THE MASTER AGREEMENT
Subject to the termination provisions set forth herein, this Master Agreement is effective upon the
date of execution of the Purchase and Subscription Order(the “Effective Date”) and remains in full
force and effect until the end of the then current annual contract period (December 1 to November
30) (the “Initial Term”).
Contemporaneous with the expiration of the Initial Term, this Master Agreement will renew
automatically for consecutive (1)-year terms (each, a “Renewal Term”) until terminated on at least
60 days written notice prior to the next occurring November 30 (each Renewal Term, together with
the Initial Term, the “Term”).
5. PRICING AND PAYMENT TERMS
5.1 As consideration for BCompliant’s performance of the Professional Services, Support
Services, and/or provision of the Products, Customer will pay BCompliant the applicable
fees set forth in each Purchase and Subscription Order in accordance with the terms set
forth therein.
6. RELATIONSHIP OF THE PARTIES
Each of BCompliant and Customer hereby acknowledges and agrees that BCompliant is an
independent contractor of Customer and Customer is a licensee of BCompliant . Nothing contained
herein shall be construed or interpreted as creating any other relationship between the Parties
including, but not limited to, employer/employee, principal/agent, partnership, franchisor or joint
venture.
By utilizing the website and the services Customer acknowledges:
a) BCompliant is not a governmental or quasi-governmental agency and does not speak on behalf of
any government or quasi-government agency;
b) BCompliant is a data provider and is not in a superior or more advantageous position to be able to
locate, obtain or determine any data than anyone else may be in conducting his or her own due diligence
concerning the data provided to you by BCompliant and its employees;
c) BCompliant sources for any data do not include any physical inspections;
d) BCompliant is not responsible for – nor does it guarantee – the accuracy, completeness or correctness
of any of the data provided to you;
e) The Services are not a substitute for Customer’s due diligence;
f) All data is provided to Customer for informational purposes only;
g) All data is provided to Customer “as is” and “as available” from various governmental and quasi-
governmental agencies and other public databases;
h) Customer assumes all risk and liability for any actions or decisions it takes or any other reliance on the
information BCompliant provides to Customer through the Website and/or the Services;
i) Customer’s payment of any fees to BCompliant is separate from and not contingent upon any
predetermined results or information BCompliant conveys to Customer via the Website or the Services or
any analysis, opinion, or conclusions drawn or derived from the Website or the Services;
7. SOFTWARE SERVICES
7.1 Customer hereby acknowledges and understands it is not purchasing the Software
underlying the Products. Such Software is being provided to Customer as a service pursuant
to the terms and conditions set forth herein. To the extent the Software is required to be
downloaded or installed on Customer’s website, BCompliant hereby grants Customer a non-
exclusive, non-transferable, non-sublicensable, revocable, Territory-wide, limited license to
use such Software solely in connection with its intended use as part of the Products during
the Term. Except as otherwise set forth in the immediately preceding sentence, this is an
agreement for services and Customer is not granted any other license hereunder. Customer
will not take any actions inconsistent with BCompliant’s ownership of each of BCompliant’s
rights in and to the Software.
7.2 The SaaS Services enable Customer’s employees to access the Features. During the Term
and subject to the terms and conditions set forth herein and in any guidelines, rules or
operating policies that BCompliant may establish and post from time to time on
www.bcompliant.com (the “Website,” and such guidelines, rules and operating policies, the
“Policies”). From time to time, BCompliant may modify the terms and conditions set forth
in the Policies. All such modifications will become effective within forty-eight (48) hours after
BCompliant delivers to Customer notice of the same, and Customer’s use of the Services
thereafter will be subject thereto; provided, however, that any modification which materially
and adversely affects the functionality or feature of the Services will not become effective
unless and until it is accepted by Customer in writing. 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 BCompliant with respect to
future functionality or features.
7.3 BCompliant may create for Customer a private dedicated webpage / uniform resource locator
through which Customer may use the Services to access the Features (the “URL”). If the
URL is owned or controlled by Customer, Customer hereby agrees not to display, post,
publish or present on such URL any content for: (i) sexually explicit adult entertainment,
services or products; (ii) firearms; (iii) tobacco product; (iv) federally regulated drugs or
narcotics; (v) religious faith or services; (vi) services or products tha t do not comply with
applicable laws, rules, or regulations; or (vii) any other item that BCompliant reasonably
believes might damage BCompliant’s brand or reputation.
7.4 BCompliant may create for Customer a private and unique online customer account through
which Customer may view user activity, statistics, alarms and associated data. Access to
such account will be restricted through the use of a unique password and user name (the
“Passwords”). Customer agrees to maintain the Passwords in strict confidence and not to
provide the Passwords to any third-party. Customer will notify BCompliant 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 Customer’s negligence
or intentional misconduct. Any unauthorized use of the Passwords by Customer will
constitute a material breach of this Master Agreement.
8. RESTRICTIONS ON PRODUCT USE
8.1 Customer hereby agrees not to: (i) use the Products to send spam or otherwise duplicative
or unsolicited messages in violation of applicable laws or to send messages to any
purchased (email) lists, purchased distribution lists, purchased newsgroups, or purchased
email addresses; (ii) use the Products to perform or facilitate any act which, directly or
indirectly, causes to be transmitted to, uploaded by or downloaded by, any end user any
“junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other like form of solicitation;
(iii) use the Products to perform or facilitate any act which, directly or indirectly, causes to
be transmitted to, uploaded or downloaded by, the Software any software viruses, worms,
Trojan horses, time bombs, trap doors or any other computer code, files or programs or
repetitive requests for information designed to interrupt, destroy or limit the functionality of
any computer software or hardware or telecommunications equipment or to diminish the
quality of, interfere with the performance of, or impair the functionality of the S oftware; (iv)
use the Products to send or store infringing, obscene, threatening, harassing, libelous, or
otherwise unlawful or tortious material, including material harmful to children or violative of
third party privacy rights; (v) upload, link to or post any portion of the Products on a bulletin
board, intranet, extranet or web site; (vi) possess or use the Software in any format other
than machine-readable format; or (vii) use the Products in order to: (A) build a competitive
commercial product or service; (B) build a product using similar ideas, features, functions or
graphics as the Products; or (C) copy any ideas, features, functions or graphics of the
Products. Customer agrees to report immediately to BCompliant, and to use best efforts to
stop immediately, a violation of any term or condition set forth in this Section 14.2. In the
event of any suspected violation of any term, condition or restriction set forth in this Section
14.2, BCompliant may immediately terminate the Purchase and Subscription Order and/or
this Master Agreement.
9. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
9.1 Customer hereby acknowledges the Products contain proprietary information and trade
secrets of BCompliant and agrees that it will access and use the Products only in connection
with its permitted use thereof and will not take any actions inconsistent with BCompliant’s
ownership of each of BCompliant’s rights in and to the Products and the intellectual property
associated therewith. Customer hereby acknowledges that BCompliant is and shall remain
the sole and exclusive owner of all rights, title and interest in and to the Product, including
but not limited to all Software embedded in the Products developed, owned or controlled by
BCompliant (as applicable), and all intellectual property rights associated therewith .
Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license,
transfer, sell, rent, lease, time share, grant a security interest in, or otherwise tr ansfer any
rights in or to the Product, or make the Products or any part thereof available to any third
party except to any of its affiliates or Customer’s assignees upon prior written authorization
by BCompliant; (ii) modify, translate, reverse engineer, decompile or disassemble the
Products or any part thereof; (iii) use or distribute the Products except in accordance with
the terms set forth in this Master Agreement and the applicable Purchase and Subscription
Order; and/or (iv) use or distribute the Products in violation of any applicable laws,
regulations or export restrictions.
9.2 Customer acknowledges and agrees that BCompliant owns all exclusive rights to the URL,
all content and materials contained within the URL, including, without limitation, to
BCompliant’s Marks (as defined herein), and the look, feel, layout and organization of the
URL and/or any other content or material provided by BCompliant to Customer (collectively
the “Materials”). Except to the extent expressly set forth herein, Customer does not have
any rights in, to, or under the Products and the Materials or any of the intellectual property
rights associated therewith.
93 Unless otherwise agreed by the Parties in writing, all improvements or modifications to,
enhancements of, derivative works made from, or suggestions, ideas and recommendations
with respect to the Products, (each, an “Improvement”) are owned solely by BCompliant
regardless of whether Customer controls such Improvement. Customer hereby agrees to
execute such documents as may be required to evidence such ownership and not to take
any action inconsistent therewith. BCompliant shall have sole discretion as to whether to
implement any such Improvements into the Product.
9.4 In connection with the rights granted under this section, BCompliant may provide Customer
with user manuals, reference manuals, release, application and methodology notes, written
utility programs, and other materials (collectively, the “Documentation”). BCompliant is and
will remain the sole and exclusive owner of all right, title and interest in and to the
Documentation and all of the intellectual property rights associated there with.
10. TRADEMARK, LICENSES, PUBLICITY AND MARKETING
10.1 In connection with each Party’s performance of its obligations hereunder, Bcompliant (in
such capacity, the “Licensor”) hereby grants to Customer (in such capacity, the “Licensee”)
a limited, nonexclusive, royalty-free license to use the Marks during the Term in connection
with the purposes of this Master Agreement. The Licensee hereby agrees not to: (i) alter or
otherwise modify any of the Licensor’s Marks; (ii) attack ownership of, or rights to, any of
the Licensor’s Marks; or (iii) intentionally use the Licensor’s Marks in a way that might
deceive others, create a likelihood of confusion or destroy or diminish the goodwill in any of
Marks. The Licensor reserves all rights in Licensor’s Marks not explicitly granted herein.
The licenses granted pursuant to this section shall terminate upon termination of this Master
Agreement. For purposes hereof, “Marks” means all names, logos, trade names, domain
names, uniform resource locators, trademarks and service marks owned by BCompliant or
Customer, as the case may be. For purposes of avoiding doubt, BCompliant may use
Customer’s Marks on BCompliant’s website and in any of BCompliant’s publicity or
marketing materials, documents, or publications for the sole purposes of identifying
Customer as a customer of BCompliant, and as otherwise permitted by Customer in writing.
10.2 Customer hereby agrees to display prominently on any websites owned or controlled by
Customer material provided to Customer by BCompliant and/or developed by Customer and
approved by BCompliant pursuant to the terms and conditions set forth herein (the “Copy”).
In the event Customer develops the Copy, prior to displaying or publishing the same, at
Customer’s sole expense, Customer shall deliver to BCompliant a sample of the Copy for
approval by BCompliant. BCompliant shall have a period of fifteen (15) days following the
date on which it receives such sample in order to complete its review thereof. In the event
BCompliant determines any such sample is unacceptable, BCompliant shall provide
Customer within such fifteen (15)-day period with the reasons for BCompliant’s
determination of unacceptability and Customer shall promptly correct such Copy to
BCompliant’s satisfaction prior to commencement of its display of the Copy. In the event
that on or before the expiration of such fifteen (15) -day period BCompliant fails to provide
Customer with such written notice (or provides written notice of BCompliant’s affirmative
approval thereof), then Customer shall be free to thereafter commence the use and display
of the Copy. Any modification of the Copy shall be subject to BCompliant’s prior written
approval.
11. CONFIDENTIALITY, PERSONAL INFORMATION AND CUSTOMER DATA
11.1 During the Term and for a period of three (3) yea rs thereafter, each of BCompliant and
Customer (in such capacity, the “Receiving Party”) 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 other Party (in such capacity, the
“Disclosing Party”). For purposes hereof, “Confidential Information” means any
confidential or proprietary information disclosed, made available or otherwise provided by
or on behalf of the Disclosing Party to the Receiving Party that relates to such Disclosing
Party’s business affairs, internal operations, financial matters, technology, research and
development, product plans or offerings, markets, Customers, or know-how that is labelled
as “confidential” or with like marking or that reasonably should be known by the Receiving
Party to be confidential or proprietary to the Disclosing Party in light of the nature of the
information disclosed or the circumstances of disclosure. Confidential Information will not
include information that: (i) was publicly available at the time of disclosure, 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 re ceived
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 independ ently developed by the
Receiving Party; (v) is approved in writing for release by the Disclosing Party; or (v i) is
required to be disclosed by Receiving Party pursuant to judicial order or other compulsion
of law; provided that Receiving Party shall provide to Disclosing Party notice of any such
order and comply with any protective or similar order imposed on such disclosure.
11.2 The Receiving Party will not disclose any of the Disclosing Party’s Confidential Information
to anyone other than the Receiving Party’s employees, agents, and representatives ; (i) who
have a reasonable need to know such Confidential Information; (ii) who have been advised
of the confidential nature of the information; and (iii) who are subject to written confidentiality
and non-disclosure agreements with such Receiving Party which protect the confidentiality
of third party information pursuant to terms, conditions, and restrictions no less restrictive
than those terms, conditions and restrictions set forth herein . The Receiving Party shall be
responsible for any breach of this Master Agreement by its employees, agents , sub-
contractors and representatives.
11.3 Nothing set forth herein shall be construed to prohibit a Party from disclosing the other
Party’s Confidential Information to any third party that has a need to know such information
in connection with the performance of the Party’s obliga tions hereunder, subject however to
such third party’s written undertaking to protect the Confidential Information under terms and
conditions substantially similar to the terms and conditions set forth herein . A Party may be
required to disclose the other Party’s Confidential Information by order or other requirement
of a court, administrative agency, or other governmental body or applicable law. In such
event, such Party shall have the right to disclose such Confidential Information to the extent
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necessary to comply with such order or legal requirement and shall inform the other Party
of such request for disclosure immediately, unless prohibited by applicable law.
11.4 The Parties agree that the content of this Master Agreement, including the specifications,
commercial terms and warranty promises shall be Confidential Information and will only be
disclosed between the Parties.
11.5 Any press releases or other public statements made by Customer or Affiliate Hotels or
BCompliant concerning this Master Agreement or the relationship created by Customer and
BCompliant shall be approved in advance by both Parties. .
11.6 In connection with Customer’s access to and use of the Products, BCompliant may collect,
consolidate and analyze personal information and data about third parties that interact
electronically or otherwise with Customer or the Products (collectively, the “Customer
Data”). BCompliant will not own any Customer Data; provided, however, that Customer
hereby grants to BCompliant a non-exclusive, perpetual, fully-paid up, worldwide license to
use: (i) Customer Data in connection with BCompliant’s performance of its obligations under
this Master Agreement and provision of the Products; and (ii) non-personally identifiable
Customer Data in aggregate and blinded formats that do not identify, reference or imply an
association with Customer or the Guests, for the purposes of creating benchmarking,
statistical, research and marketing analyses, surveys, reports and studies. Customer agrees
that BCompliant has sole discretion with respect to the collection and retention of Customer
Data and has no obligation to Customer to retain the Customer Data. BCompliant may delete
and destroy Customer Data at any time without providing Customer with notice of such
deletion. BCompliant will not be responsible or liable for any deletion, correction,
destruction, damage, loss or failure to store any Customer Data. Subject to the license s set
forth in this Section, Customer Data will be considered Customer’s Confidential Information.
BCompliant’s Data Privacy policy is either hereby attached or can be found at
____________________.
12. REMEDIES, SPECIFIC PERFORMANCE
Both Parties agree that the terms, conditions and restrictions set forth in Sections “Ownership of
Intellectual Property Rights“, “Trademark, Licenses, Publicity and Marketing“ and “Confidentiality,
Personal Information and Customer Data“ of this Master Agreement are reasonably necessary for
the protection of their respective business and goodwill, and that any breach or threatened breach
by a Party of any of such terms, conditions or restrictions may cause the other Party substantial
and irreparable harm for which monetary damages alone may not be adequate; and accordingly,
that in the event of such a breach or threatened breach, the other Party shall have the right to seek
immediate injunctive relief and/or specific performance, in addition to any other remedies available
at law or in equity. All rights and remedies hereunder are cumulative.
13. INDEMNIFICATION
13.1 Except with respect to Claims (as defined herein) described below, at its sole cost and
expense, Customer hereby agrees to defend and hold harmless BCompliant and its affiliates,
subsidiaries, officers, directors, stockholders, employees, consultants, repr esentatives,
agents, successors and assigns (the “Indemnitees”) in and against any claim or action, and
to indemnify BCompliant and its Indemnitees from and against all losses, liabilities, sums of
money, damages, judgments, expenses and costs (including, but not limited to, reasonable
attorneys’ fees and costs of any investigation or action related thereto) (collectively,
“Claims”) suffered or incurred by BCompliant and/or its Indemnitees arising from: (i)
Customer’s breach of any term or condition, or any of its representation or warranty, set
forth in this Master Agreement; (ii) Customer’s use of the Products in contravention of the
permitted uses thereof; (iii) Customer’s negligence or misconduct; (iv) Customer’s violation
of any applicable law; (v) Customer’s infringement or misappropriation of any intellectual
property, privacy or other rights of a third party; and/or (vi) a Guest’s Claim.
13.2 Except with respect to Claims described above, at its sole cost and expense, BCompliant
hereby agrees to defend and hold harmless Customer in and against any third party claim
or action, and to indemnify Customer from and against all Claims arising from such third
party claim or action and finally awarded by a court of competent jurisdiction or by an
arbitration panel in a binding arbitration proceeding, or set forth in a bona fide settlement
agreement to the extent directly related to: (i) BCompliant’s gross negligence or willful
misconduct; (ii) BCompliant’s breach of any of its representation or warranties set forth in
this Master Agreement; (iii) BCompliant’s breach of its confidentiality obligations under
Section “Confidentiality, Personal Information and Customer Data“ of this Master
Agreement; and (iv) BCompliant’s infringement or misappropriation of any intellectual
property rights of a third party.
13.3 Notwithstanding anything to the contrary set forth above, BCompliant will not be required to
perform its indemnification obligations to the extent a Claim arises out of or is connected to :
(i) Customer’s misuse or unauthorized use of the Product; (ii) Customer’s combination of the
Products with any products, services, information, materials, technologies, business
methods or processes not furnished or authorized by BCompliant; (iii) Customer’s failure to
use updates to the Products provided by BCompliant, at no cost to Customer, that would
have avoided the alleged infringement; and (iv) Customer’s unauthorized manipulation,
modification, or alteration to the Products. Upon the occurrence of any claim for which
indemnity is or may be required under Section 22.2 (iv) above, or in the event that
BCompliant believes that such a Claim is likely, BCompliant may, at its option: (x)
appropriately modify the infringing Hardware or Software, as the case may be, so that it
becomes non-infringing, or substitute functionally equivalent software or hardware; (y)
obtain a license to the applicable third-party intellectual property rights; or (z) if neither (x)
nor (y) are feasible, terminate Customer’s use of the infringing Software or Hardware, as the
case may be, and provide Customer with a refund of any prepaid Subscription Fees or all
Hardware Fees paid by Customer hereunder prorated on a three (3)-year straight line
depreciation basis; provided, however, that if the entire Product is infringing, BCompliant
also may terminate this Master Agreement by providing Customer with written notice of
termination.
14. REPRESENTATIONS AND WARRANTIES, DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY
14.1 Each Party represents and warrants to the other Party that: (i) its performance under this
Master Agreement will not violate any applicable law; (ii) it is duly formed, validly existing
and in good standing under the laws of the jurisdiction of its formation; (iii) it has the full
right, power and authority to enter into this Master Agreement and to perform its obligations
hereunder; (iv) this Master Agreement has been duly executed by its authorized
representative and is legally binding upon it and enforce able in accordance with its terms;
and (v) that the entry into and performance under this Master Agreement shall not result in
a breach or constitute a default under any third -party contract.
14.2 Customer further represents, warrants, and covenants to BCompliant that: (i) neither it, nor
any of its officers, directors, owners or employees is located in any embargoed country,
named as a “Specially Designated National” or “Blocked Person”, or is otherwise bl acklisted
by any Territory Government Institutions; (ii) it abides by and will continue to abide by
Territory and other applicable export control laws and does not and will not take any action
which would violate any Territory Government Administration Reg ulations or any sanctions
policies, or cause BCompliant to be in violation thereof; (iii) Customer and any of its owners,
affiliates, officers, directors, employees and agents involved in performing its obligations
under this Agreement, do comply and will comply with, and will not cause BCompliant to
violate any, all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices
Act of 1977, U.K. Bribery Act, 2010, and any other applicable jurisdiction; and (iv) it is and
will remain a member of the U.S.-EU Privacy Shield Framework Program (the “Framework”)
via self-certification of its compliance with the Framework’s requirements, and will actively
adhere to the Framework at all times during the Term.
14.3 EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE PRODUCTS,
SUPPORT SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND
“AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. EXCEPT
AS OTHERWISE SET FORTH HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, BCOMPLIANT AND ITS AFFILIATES, PARENTS, SUBSIDIARIES AND
AGENTS (COLLECTIVELY, THE “REPRESENTATIVES”) DISCLAIM ANY AND ALL
REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR
IMPLIED, OR STATUTORY, INCLUDING (WITHOUT LIMITATION) ANY WARRANT Y AS
TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR
NON-INFRINGEMENT. THE REPRESENTATIVES DO NOT WARRANT THAT THE
PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS NOR DO THEY GIVE ANY
WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE
PRODUCT. CUSTOMER ACKNOWLEDGES THAT BCOMPLIANT DOES NOT CONTROL
THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE
INTERNET, AND THAT THE PRODUCTS, SUPPORT SERVICES AND PROFESSIONAL
SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS
INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BCOMPLIANT IS
NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE
RESULTING FROM SUCH PROBLEMS. CUSTOMER EXPRESSLY ACKNOWLEDGES
AND AGREES THE PRODUCTS MAY RELY UPON THIRD-PARTY SOFTWARE AND
HARDWARE FOR CERTAIN FUNCTIONS AND, EXCEPT AS SET FORTH EXPRESSLY
HEREIN, BCOMPLIANT MAKES NO REPRESENTATION, WARRANTY, PROMISE OR
GUARANTEE TO CUSTOMER THAT SUCH SOFTWARE OR HARDWARE WILL BE
ERROR FREE, ACCOMPLISH A SPECIFIED PURPOSE OR PERFORM IN ACCORDANCE
WITH ANY PARTICULAR STANDARD, LEVEL OR METRIC AND BCOMPLIANT WILL NOT
BE LIABLE TO CUSTOMER FOR ANY FAILURE THEREOF. WHEREVER AND
WHENEVER POSSIBLE AND NEEDED, BCOMPLIANT WILL TRANSFER THIRD PARTY
MANUFACTURER WARRANTY RIGHTS TO THE CUSTOMER.
14.4 NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION LOSS OF INCOME, PROFITS, DATA, USE, OR INFORMATION) ARISING
UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF
RELIEF. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO (A)
THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER, (B) ANY DAMAGES
RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (C)
ARISING FROM A WILLFUL BREACH OF A PARTY’S OBLIGATIONS OF
CONFIDENTIALITY HEREUNDER, OR (D) ANY DAMAGES RESULTING FROM A
SECURITY BREACH.
EXCEPT AS OTHERWISE REQUIRED BY A PARTY’S OBLIGATIONS OF
INDEMNIFICATION, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, A
BREACH OF BCOMPLIANT’S OBLIGATIONS OF CONFIDENTIALITY, OR A SECURITY
BREACH CAUSED BY BCOMPLIANT, NEITHER PARTY’S LIABILITY UNDER THIS
AGREEMENT SHALL EXCEED THE TOTAL AMOUNT PAID BY OR EXPECTED TO BE
PAID BY CUSTOMER TO BCOMPLIANT IN A 12-MONTH PERIOD. NO CLAIM MAY BE
ASSERTED BY EITHER PARTY AGAINST THE OTHER PARTY MORE THAN TWELVE (12)
MONTHS AFTER THE DATE OF TERMINATION OR EXPIRATION OF THIS MASTER
AGREEMENT AND/OR A PURCHASE AND SUBSCRIPTION ORDER.
15. NOTICES
Any notice provided for in this Master Agreement shall be given in writing in English. Notices
hereunder shall be in writing, and shall be deemed effectively given: upon pers onal delivery; upon
confirmed delivery or electronic mail without notice of transmittal failure; on the [third (3 rd )] day
following delivery to a nationally-recognized overnight courier or the post service for registered ; or
on the [seventh (7 th)] day following mailing by registered or certified mail, postage prepaid or
certified mail or on the notified day of receipt by the other Party, whichever is earlier. Notices of
termination must be sent by registered or certified mail or by overnight courier; facsimile or
electronic mail notices of termination will not be effective. Any other communication related to this
Master Agreement and the Parties’ obligations hereunder may be sent by electronic mail.
16. ASSIGNMENT AND TRANSFER
CUSTOMER MAY NOT TRANSFER, ASSIGN, SUBLICENSE, OR DELEGATE ANY RIGHT OR DUTY UNDER THIS MASTER
AGREEMENT TO ANOTHER ENTITY OR PERSON WITHOUT THE EXPRESS WRITTEN CONSENT OF BCOMPLIANT.
17. SUB-CONTRACTING
Except as otherwise set forth, BCompliant may, without prior consent of Customer, subcontract
any or all of its obligations hereunder to a third party.
18. FORCE MAJEURE
Neither Party shall be liable for any defaults or delay in performance of, or for any improper
performance of its obligations hereunder (excluding payment obligations) if such default, delay or
improper performance arises due to any incident of force majeure, including but not limited to acts
of nature, acts of government, transportation delays, war, power outages, strike or other labor
disturbances, work stoppage, material shortages, lock-out, industrial action, fire, flood, drought,
tempest, failure of third party providers, stability of availability of the internet , telecommunication
system failures and deficiencies in mobile and/or wireless network coverage , telecommunication
system failures, deficiencies in mobile and/or wireless network coverage or oth er event beyond
the reasonable control of either Party (“Force Majeure”). Any time specified for completion of
performance falling due during or subsequent to the occurrence of any such events shall be
automatically extended for a period of time equal to the reasonably unavoidable period of such
disability. Should the Force Majeure persist for a period of more than three (3) months, then th e
applicable Purchase and Subscription Order and/or this Master Agreement may be terminated with
immediate effect by either Party upon simple written notice to the other Party.
19. TERMINATION AND EFFECT OF TERMINATION
19.1 A party may terminate a Purchase and Subscription Order and this Master Agreement by
providing the non-terminating party with written notice of its intention not to renew the
Purchase and Subscription Order and this Master Agreement no later than sixty (60) prior
to the end of the then-current Term.
19.2 At any time, a Party may terminate a Purchase and Subscription Order and/or this Master
Agreement by providing the other Party with at least sixty (60) days’ prior written notice
thereof, in the event such other Party: (i) breaches any material term or condition set forth
herein, or any of its representations or warranties set forth herein, which breach is not cured
within such sixty (60)-day period; (ii) is or becomes insolvent; (iii) is or becomes a party to
any bankruptcy or receivership proceeding or any similar action affecting its financial
condition or property, if such proceeding has not been dismissed within sixty (60) days; or
(iv) makes a general assignment for the benefit of creditors.
19.3 Effects of Expiration or Termination:
i. The expiration or termination of this Master Agreement for any reason shall not
release either Party from any liability which, at the time thereof, has already accrued to such
Party, or which is attributable to a period prior to such expiration or termination; nor shall it
preclude any Party from pursuing all rights and remedies it may have hereunder or at law or
in equity with respect to any breach of this Master Agreement.
ii. Upon any termination or expiration of this Master Agreement, as the case may be, all
rights of access and use and licenses to Software granted hereunder shall terminate and
Customer will immediately discontinue all use of the Products. Each Party shall destroy or
return to the other Party all of such other Party’s Confidential Information and all documents
and materials containing such other Party’s Marks, as instructed by such other Party.
iii. Any provision of this Master Agreement, including, the obligations of Parties under in
Section 18 “Ownership of Intellectual Property Rights”, which by its terms imposes
continuing obligations on the Parties will: (a) survive any expiration or termination of this
Master Agreement, and (b) all other provisions of this Master Agreement expire on the date
that is three (3)-year anniversary of the expiry date or the effective date of termination of
this Master Agreement. For avoidance of doubt, the obligations of Parties under Section 18
“Ownership of Intellectual Property Rights”, shall continue in perpetuity.
20. GOVERNING LAW AND SETTLEMENT OF DISPUTES
This Master Agreement will be governed by, and interpreted in accordance with, the laws of the
New York, USA except for those conflicts of law rules thereof that would require or permit the
application of the laws of another jurisdiction. Except with respect to those rights granted to
BCompliant in Section 21 “ Remedies, Specific Performance” above, any dispute, claim or
controversy arising out of, connected with, or relating to this Master Agreement (the “Disputes”),
between or among Parties shall be resolved finally by binding arbitration as provided herein.
Arbitration shall be conducted under, and governed by the American Arbitration Association (AAA),
(the “Arbitration Rules”). All arbitration hearings shall be conducted in English . The Parties
hereby agree that a judgment upon an arbitration award may be entered in any court having
appropriate jurisdiction.
Each Party shall bear its own costs and expenses and attorneys’ fees, and an equal share of the
arbitrators’ fees and any administrative fees of arbitration.
21. ENTIRE AGREEMENT, ORDER OF PRECEDENCE
This Master Agreement, together with all annexes as well as any documentation expressly
incorporated by reference therein, constitute and set forth the entire agreement and understanding
between the Parties with respect to the subject matter hereof. In the event of any conflict or
inconsistency between any term or condition set forth in this Master Agreement, the Purchase and
Subscription Order or any Annexes or other related documents, the terms and conditions set forth
in the following documents shall take precedence in the following order:
1. Change Request(s)
2. Purchase and Subscription Order(s)
3. Master Agreement (Terms and Conditions)
22. MISCELLANEOUS
No delay or omission by a Party to exercise any right or remedy accruing pursuant to any of the terms
hereof shall impair any such right or remedy or be construed to be a waiver thereof. A waiver by either
Party of any of the covenants and contracts hereof shall not be construed to be a waiver of the future
enforceability of such covenants and agreements or any other covenant and agreements herein
contained. If any provision of this Master Agreement is declared invalid or unenforceable as a matter of
law, such invalidity or unenforceability shall not affect or impair the validity or enforceability of any other
provision of this Master Agreement or the remainder of this Master Agreement as a whole. Any
prohibited, invalid or unenforceable provision shall be replaced with equivalent provision customarily
used in the trade; absent such provision, the provision shall be replaced by the applicable law governing
this Master Agreement. This Master Agreement shall not be modified or amended except by a specific
agreement in writing signed by duly authorized representatives of the Parties.
