Updated September 29, 2022
THIS MASTER SAAS AND SERVICES AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AGREEMENT ENTERED INTO BY AND BETWEEN BOSS32, INC (“BOSS”), A NEW YORK STATE CORPORATION WITH A PRIMARY OFFICE AT 30-30 47TH AVENUE, LONG ISLAND CITY, NEW YORK 11101, AND YOU (“CUSTOMER”). BOSS AND CUSTOMER ARE SOMETIMES REFERRED TO JOINTLY HEREIN AS THE “PARTIES” OR SINGULARLY AS A “PARTY.”
THIS AGREEMENT GOVERNS THE PARTIES’ RELATIONSHIP IN CONNECTION WITH CUSTOMER’S ACCESS TO, USE OF, AND RECEIPT OF THE SERVICES (AS FURTHER DEFINED BELOW). BY ENTERING INTO A BOSS ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT BY REFERENCE (EACH, AN “ORDER FORM”), OR BY USING A BOSS PLATFORM, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THIS AGREEMENT AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE ANY BOSS PLATFORM.
PLEASE NOTE: THIS AGREEMENT CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION THAT AFFECTS CUSTOMER’S RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO DISPUTES CUSTOMER MAY HAVE WITH BOSS.
The purpose of this agreement is to set forth the terms and conditions under which BOSS will provide, and Customer and its Authorized User’s (if applicable) will (i) use certain hosted “software as a service” applications, including any documentation, programming, and user interfaces for each software application (each a “BOSS Platforms”) identified on applicable Order Form(s) and (ii) if applicable, receive certain other services, including but not limited to implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management services, each as set forth in an applicable Order form or Statement of Work executed by the Parties (“Professional Services”) (the Professional Services, BOSS Platform and any Support Services (as defined below) are collectively referred to herein as the “Services”). For purposes of this Agreement, “Authorized Users” shall mean Customer’s employees, consultants, contractors, and/or agents: (a) who are authorized by Customer to access and use the BOSS Platform(s) on Customer’s behalf, and (b) who have been supplied user identifications and passwords for such purpose by Customer’s Administrator (as described below).
1.2 Order Forms and Statements of Work
Subject to the terms of this Agreement, Customer may order subscriptions to use BOSS Platform(s) by entering into one or more Order Forms and may order Professional Services by entering into one or more statements of work for such Services (each a “Statement of Work”) Order Forms and Statements of Work (including any mutually acceptable modifications, supplements and addenda thereto) are incorporated herein by reference. Each such Order Form or Statement of Work will set forth (as applicable): (i) the period for which Customer is permitted to access and use the BOSS Platform(s) (“Subscription Term”); (ii) the BOSS Platform(s) to which Customer subscribes; (iii) the consideration to be paid by Customer; (iv) any usage limits; (v) the provision of Professional Services (if any); and (vi) any other terms that may be agreed upon by the Parties in writing. Upon expiration of an applicable subscription period, the applicable Order Form will automatically renew and/or be replaced by a new Order Form subject to the terms defined therein.
1.3 The Services
Access and Use License: During the term of this Agreement and subject to the terms and conditions set forth herein, BOSS shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to the BOSS Platforms, and (ii) Customer the Professional Services. Subject to the terms and conditions of this Agreement, during the Term, BOSS hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, nontransferable, worldwide license to access and use each applicable BOSS Platform, solely for internal business purposes as set forth herein.
1.4 Changes to Platform
BOSS may, in its sole discretion, make any changes to any Platform or part thereof that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of BOSS’s products or services to its customers, (b) the competitive strength of, or market for, BOSS’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
2. PLATFORM ACCESS & AUTHORIZED USERS
During the configuration and set-up process for each Platform, Customer will identify an Authorized User to manage and administer Customer’s accounts (“Administrator”). Administrators may create additional Authorized Users, up to the number of users agreed to between BOSS and Customer on the applicable Order Form. Customer agrees to pay a fee for all active users in each billing period, including both Administrators and Authorized Users, calculated based on the highest number of users during that billing period (“User Fee”).
BOSS reserves the right to terminate or refuse to register any usernames or passwords that BOSS deems inappropriate or otherwise acting in violation of this Agreement
2.3 Authorized Users
Authorized User subscriptions are assignable, but strictly limited to one individual user on the account. An Authorized User account may not be shared by more than one individual in any three week period, or assigned more than one time per calendar month.
2.4 Conditions to Use
2.5 Account Responsibility
Customer will be responsible for (i) any use of Customer’s account and all Authorized User’s accounts, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, (ii) securing its BOSS account, passwords, and files, and (iii) ensuring all Authorized Users comply with any conditions and terms set forth in this Agreement, all documents incorporated herein, and all other agreements entered into between the Parties. BOSS is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords or misuse. Customer shall be liable for any damages that stem from such misuse of a Boss Platform or account information
3. SCHEDULED MAINTENANCE
3.1 BOSS may from time to time suspend the BOSS Platform(s) for the purposes of scheduled maintenance. .BOSS shall, where practicable, give Customer reasonable advance written notice of scheduled maintenance that will, or is likely to, affect the availability or have a material negative impact on the BOSS Platform(s); ; provided, however, that BOSS’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification.
3.2 BOSS will make reasonable efforts to ensure that the aggregate period during which the BOSS Platforms are unavailable as a result of scheduled maintenance, or negatively affected by scheduled maintenance to a material degree, does not exceed seven (7) hours per month.
3.3 The BOSS Platform(s) shall be considered available to the extent any unavailability is a result of:
The BOSS Platform shall be considered available to the extent any unavailability is a result of:
- regularly scheduled maintenance or service upgrades;
- intentional shutdowns due to emergency interventions and/or responses to security incidents;
- problems with third-party components for which fixes have not been provided by the vendor;
- customer-managed hardware or software;
- configuration changes initiated by the Customer or any Authorized User;
- the Customer’s or any Authorized User’s failure to observe security and upgrade policies; or
- any cause outside of BOSS’s control.
3.4 Certain enhancements to the Boss Platform(s) made generally available at no cost to all users during Customer’s applicable Subscription Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the BOSS Platform(s) may require the payment of additional fees, and BOSS will determine in its sole discretion whether access to any other such new enhancements will require an additional fee. This Agreement will apply to, and the BOSS Platform(s) include, any enhancements, updates, upgrades and new modules to the BOSS Platform(s) provided in connection therewith and subsequently provided by BOSS to Customer hereunder.
4. ADDITIONAL RESTRICTIONS & RESPONSIBILITIES
4.1 Software Restrictions
Customer will not, and will not, permit, hire, or encourage any employee, contractor, agent, or other third party to directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a BOSS Platform or any software, documentation or data related to a BOSS Platform (“Software”); (ii) modify, translate, or create derivative works based on a BOSS Platform or any Software; (iii) use a BOSS Platform or any Software for timesharing, service bureau purposes, or use as other computer service or benefit to a third party not disclosed and agreed to by BOSS; (iv) modify, remove or obstruct any proprietary notices or labels; (v) use a BOSS Platform for any purpose other than its intended purpose; (vi) interfere with or disrupt the integrity or performance of any BOSS Platform; (vii) attempt to gain unauthorized access to any BOSS Platform, its related systems or networks, or to the content and data uploaded by other users; or (viii) use any Software or BOSS Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or BOSS Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of BOSS, and Customer will comply with all restrictions and terms of this Section 4 with respect thereto.
4.2 Customer Compliance
Customer agrees to cooperate and assist BOSS in exercising its rights and performing its obligations under, and in connection with, this Agreement, including providing BOSS with such access to Customer’s premises and its information technology infrastructure as is necessary for BOSS to perform the Services in accordance with this Agreement.
4.4 Training and Education
Customer shall use commercially reasonable efforts to educate and train its Authorized Users in the proper use and operation of each BOSS Platform to which Customer has subscribed, and to ensure that each BOSS Platform is used in accordance with applicable manuals, instructions, specifications and documentation provided by BOSS from time to time.
4.5 Customer Systems
Customer shall be responsible for obtaining and maintaining both the functionality and security of any equipment and ancillary services needed to connect to, access or otherwise use each applicable BOSS Platform, including modems, hardware, computers, servers, software, operating systems, networking, web servers and the like.
4.6 Restrictions on Export
The BOSS Platforms utilize software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using any BOSS Platform, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The BOSS Platforms may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. BOSS and its licensors make no representation that the BOSS Platforms are appropriate or available for use in other locations. Any diversion of the Customer Data (as defined below) contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the BOSS Platforms, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
5.1 Confidential Information
Each Party (the “Receiving Party”) understands it has been, and may be, exposed to or may acquire business, technical or financial information relating to the other Party’s (the “Disclosing Party”)s business (hereinafter referred to as “Confidential Information”). Confidential Information of BOSS includes but is not limited to non-public information or knowledge regarding features, functionality and performance of each BOSS Platform and the Software. Confidential Information of Customer includes non-public data, content and information recorded and stored by Customer on the BOSS Platforms other than Vendor Information (defined below)(collectively “Customer Data”). Confidential Information. The terms and conditions of this Agreement, including all pricing and related metrics, are BOSS’s Confidential Information.
Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
5.3 Non-use and Non-disclosure
With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer, reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
5.4 Compelled Disclosure
Notwithstanding the Non-Use and Non-Disclosure restrictions set forth above, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided however, that the Receiving Party delivers reasonable advance notice to the Disclosing Party of such court action or other request to disclose, and said Receiving Party uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
5.5 Remedies for Breach of Obligation of Confidentiality
The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Agreement, the Disclosing Party shall be entitled to injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
6. PROFESSIONAL SERVICES
6.1 Professional Services
BOSS shall use commercially reasonable efforts to perform the Professional Services as set forth in applicable Statements of Work. BOSS and Customer shall cooperate to enable BOSS to perform the Professional Services according to the dates of performance and delivery terms set forth in each applicable Statement of Work. In addition, Customer shall perform any Customer obligations specified in each Statement of Work. In the event the Professional Services are not performed in accordance with the terms of the applicable Statement of Work, Customer shall notify BOSS in writing no later than thirty (30) calendar days after performance of the affected Professional Services, Customer’s notice shall specify the basis for non-compliance with the Statement of Work and if BOSS agrees with the basis for non-compliance, then at BOSS’s sole option, BOSS shall re-perform the Professional Services at no additional charge to Customer or refund to Customer the applicable fees for the affected work product or other deliverables to be provided to Customer (each a “Deliverable”) or Professional Service. THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND BOSS’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE PROFESSIONAL SERVICES.
BOSS shall assign employees, consultants and subcontractors with qualifications suitable for the work described in the relevant Statement of Work. BOSS may replace or change employees, consultants and/or subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
6.3 Customer Responsibilities
Customer shall make available in a timely manner at no charge to BOSS all data, documentation and/or other information and resources of Customer required for the performance of the Professional Services (“Customer-Furnished Items”) as specified in the applicable Statement of Work or requested by BOSS. Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to BOSS, access to premises, work sites and/or equipment solely to the extent reasonably required to perform the Professional Services. Customer hereby grants to BOSS and BOSS’s designated consultants and subcontractors a non-exclusive, worldwide, royalty-free, fully paid-up license to use, publicly perform, publicly display, modify, prepare derivative works of, reproduce, make, have made, import and otherwise exploit each item of the Customer-Furnished Items as reasonably required for the performance of the Professional Services. Customer warrants that it has the right to provide the foregoing license with respect to any Customer-Furnished Item provided under this Agreement and that neither the Customer-Furnished Items themselves nor their use for purposes of this Agreement will infringe or misappropriate any patent right, copyright, trademark right, trade secret right, moral right, design right, database right, business process or method or other intellectual property or proprietary right of any third party. Customer agrees to defend, indemnify, and hold harmless BOSS from and against all claims, proceedings, liabilities, costs or damages arising from any breach of the foregoing warranty, or BOSS’s or its designated consultants’ and subcontractors’ use of any Customer-Furnished Item, provided that such use is in accordance with this Agreement.
7. PROPRIETARY RIGHTS
Customer shall own all right, title and interest in and to the Customer Data and Customer-Furnished Items. BOSS shall own and retain all right, title and interest in and to (i) each BOSS Platform, the Software, the Services, and all improvements, enhancements or modifications of each of the foregoing, (ii) any software, applications, inventions or other technology developed in connection with the provision of the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Customer acquires any right, title or interest in the BOSS Platform, the Software, the Services and/or any Services IP, Customer hereby assigns all of its right, title and interest to BOSS.
7.2 Customer Data and Vendor Information License
Customer hereby grants to BOSS a non-exclusive, irrevocable, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit (i) Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve the BOSS Platforms, Software and/or the Services, and (ii) Vendor Information for any lawful purpose. As used herein, “Vendor Information” means any Vendor list or Vendor contact information that is provided to BOSS by Customer or uploaded to any BOSS Platform by or on behalf of Customer or any Authorized User. Notwithstanding anything else in this Agreement or otherwise, BOSS may monitor Customer’s use of the Services and use Customer Data and other data and information related to such use, in an aggregate and anonymous manner, including to compile statistical and performance information related to the BOSS Platforms and their users (“Aggregated Statistics”). As between BOSS and Customer, all right, title and interest in the Aggregated Statistics, including all intellectual property rights therein, belong to and are retained solely by BOSS. Customer acknowledges that BOSS will be compiling Aggregated Statistics based on Customer Data and information input by other customers into the BOSS Platforms and Customer agrees that BOSS may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information. It is Customer’s sole responsibility to back-up Customer Data during the Term, and Customer acknowledges that it will not have access to Customer Data through BOSS or any BOSS Platform following the expiration or termination of this Agreement.
7.3 Pre-Existing Intellectual Property
As between Customer and BOSS, BOSS shall retain all right, title and interest (including all intellectual property rights) in and to any Pre-Existing Intellectual Property. Inclusion of any Pre-Existing Intellectual Property in a Deliverable does not change its character as Pre-Existing Intellectual Property. Customer will not obtain any rights in Pre-Existing Intellectual Property other than to use the Pre-Existing Intellectual Property as incorporated into a Deliverable, in conjunction with Customer’s permitted use of such Deliverable. For purposes of this Agreement, the term “Pre-Existing Intellectual Property” means the following, whether developed by BOSS and/or its designated consultants and subcontractors in the course of performing the Professional Services under this Agreement or independently of this Agreement: (a) software programs, specifications, algorithms or other tangible property (including all intellectual property rights embodied therein) developed by BOSS and/or its consultants and subcontractors; (b) any business methods, methodologies, processes, techniques, know-how or other intangible property (including all intellectual property rights therein) which are developed by BOSS and/or its consultants and subcontractors; and (c) any derivative works, enhancements, improvements and/or modifications to any of the foregoing items listed in (a) or (b) above.
7.4 Customer Data and Vendor Information License
Deliverables. Subject to Customer’s compliance with this Agreement BOSS hereby grants Customer a limited, non-exclusive, non-transferable license during the Term to use the Deliverables solely in connection with Customer’s authorized use of the BOSS Platform(s). Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by BOSS to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.
7.5 No Other Rights
No rights or licenses are granted except as expressly set forth herein.
8. CONSIDERATION; TAXES
8.1 User Fees
Charges are based on the actual volumes utilized in the previous month and volumes retained from previous months of additional services incurred by the Customer. Customer will pay BOSS all fees described in applicable Order Forms and Statements of Work in accordance with the terms set forth therein, including, for the avoidance of doubt, any fees incurred through Customer’s use of a BOSS Platform in excess of the services capacity parameters specified in such Order Forms or Statements of Work, and any usage-based service fees, which are calculated, reported and charged monthly in arrears (all such charges and fees, collectively, the “Fees”). Such Fees constitute the consideration for the Services. Except as otherwise specified herein or in an Order Form or Statement of Work: (i) the fees for the Services are based on the Services purchased and not on actual usage thereof, and fees paid are non-refundable; and (ii) Service ordered under an applicable Order Form or Statement of Work and their respective payment obligations are non-cancelable. Notwithstanding the foregoing, in an event of termination by Customer for cause, as further described below, amounts paid for the Service in advance, but unused on the effective date of termination (calculated on a pro-rata basis of the balance period between the termination date and the original term of the applicable Order Form or Statement of Work), may be refundable.
BOSS will bill, and Customer will pay, all invoices and amounts due in accordance with the Fees, charges, and billing terms in effect at the time a Fee or charge is due and payable in accordance with any invoice. Full payment for invoices issued in any given month must be received by BOSS thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Order Form or by written agreement executed by all parties). Unpaid amounts of longer than sixty (60) days are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection including reasonable attorney fees and court costs. In addition to any other remedies available, BOSS may suspend Services in the event of payment delinquency of longer than sixty (60) days. Fees may be subject to up to a 5% annual increase. Any increase would commence at the following annual renewal, unless otherwise agreed to in writing by both parties. BOSS will provide Customer with thirty (30) days written notice prior to renewal date of any increases to increase in Fees.
8.3 AUTOMATIC RENEWAL
UNLESS CUSTOMER CANCELS ITS SUBSCRIPTIONS AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN-CURRENT SUBSCRIPTION TERM, BOSS WILL AUTOMATICALLY RENEW SUCH SUBSCRIPTIONS ON THE FIRST BUSINESS DAY FOLLOWING THE END OF THE SUBSCRIPTION TERM AND INVOICE CUSTOMER FOR SUCH RENEWAL SUBSCRIPTION(S). CUSTOMER MAY CANCEL ITS SUBSCRIPTION BY PROVIDING NOTICE WITHING 30 DAYS OF THE END OF THE THEN CURRENT SUBSCRIPTION TERM. SUBSCRIPTION FEES ARE NOT REFUNDABLE. IF CUSTOMER CANCELS ITS SUBSCRIPTION FEWER THAN THIRTY (30) DAYS PRIOR TO THE LAST DAY OF THE THEN-CURRENT SUBSCRIPTION TERM, THE SUBCRIPTION WILL AUTOMATICALLY RENEW AND CUSTOMER WILL NOT RECEIVE A REFUND, BUT WILL CONTINUE TO ENJOY ITS SUBSCRIPTION BENEFITS FOR THE REMAINDER OF THE SUBSCRIPTION(S) FOR WHICH IT HAS PAID.
8.4 Payment Disputes
If Customer believes that BOSS has billed Customer incorrectly, Customer must contact BOSS no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to BOSS’s customer support department or the applicable Account Manager.
Customer shall pay and be liable for, all taxes relating to BOSS’s provision of the Services hereunder; provided that BOSS shall pay, and shall be liable for, taxes based on BOSS’s net income or capital.
8.6 No Deductions or Setoffs
All amounts payable to BOSS hereunder shall be paid by Customer to BOSS in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
8.7 Subpoena Expenses
If BOSS has to provide information in response to a subpoena related to Customer’s account, then BOSS may charge Customer for BOSS’s costs. Such charges may include reasonable attorney fees and employee compensation time spent retrieving records, preparing documents, participating in depositions, or other legal proceedings as well as any costs incurred in complying with such legal processes.
9. TERM & TERMINATION
The term of this Agreement shall commence upon the execution of an applicable Order Form and continue until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided below (the “Term”). Unless earlier terminated as provided for below, upon its expiration, each Order Form or Statement of Work shall renew for additional (i) one (1) year periods if the Term agreed to by the Parties is equal to or greater than one (1) year, or (ii) periods equal to the Term if the Term agreed to by the Parties is less than one (1) year.
9.2 Termination; Termination for Convenience
Upon the conclusion of the initial Term, either Party may terminate this Agreement for any reason, or for no reason, upon sixty (60) days written notice to the other Party before the end of the Term. In addition to any other remedies it may have, either Party may also terminate this Agreement upon written notice if the other Party fails to pay any amount for longer than sixty (60) days from the date on which the amount was due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days of being notified of such breach, or such other period agreed to in writing between the Parties.
9.3 Effect of Termination
Upon termination of the Agreement, any outstanding Services to be performed, if any, shall terminate and Customer shall immediately cease all use of the BOSS Platforms and BOSS shall immediately cease providing the Services and access to the BOSS Platforms. At no time will Termination excuse Customer from paying all Fees that would otherwise become payable for Services under this Agreement, an Order Form or a Statement of Work had it remained in effect until expiration of its current Term, and such fees will become immediately due and payable.
This Section and Sections 2.5, 4.1, 4.5, 4.6, 5, 6.3, 7, 8.2, 8.3, 8.5, 8.6, 10.2, 10.3, 11, 12, 15 and 18 shall survive any termination or expiration of this Agreement.
10. WARRANTY & DISCLAIMER
10.1 Warranties and Customer Representations
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT THE USE OF THE SERVICES IS AT ITS SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, BOSS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BOSS MAKES NO WARRANTY THAT THE SERVICES WILL (I) BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; OR (II) MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; OR (III) BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE, OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY CUSTOMER FROM BOSS, ITS EMPLOYEES, OR REPRESENTATIVES SHALL CREATE OR EXPAND ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS
10.3 Third Party Services
BOSS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING ANY BOSS PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND CUSTOMER’S RECOURSE FOR ANY CLAIM BY CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL BE SOLELY AGAINST SUCH SERVICE PROVIDER.
11. LIMITATION OF LIABILITY; INDEMNIFICATION
11.1 No Consequential Damages
NEITHER BOSS NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF BOSS OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICES AND/OR THE RESULTS THEREOF. BOSS WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
11.2 Limits on Liability
NEITHER BOSS NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO BOSS UNDER THIS AGREEMENT DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
11.3 Essential Purpose
CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 11 (LIMITATION OF LIABILITY; ARBITRATION) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
Customer shall defend BOSS and its affiliates, licensors and their respective officers, directors and employees (“BOSS Indemnified Parties”) from and against any and all actions, proceedings, claims and demands by a third party (each a “Third-Party Claim”) which arise out of or relate to: (a) a claim or threat that any Customer Data, Vendor Information or Customer-Furnished Item (and the exercise by BOSS of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s intellectual property rights or privacy rights; or (b) Customer’s use or alleged use of any Boss Platform in violation of applicable law or other than as permitted under this Agreement. Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any Third-Party Claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (z) BOSS providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such Third-Party Claim. In no event shall BOSS settle any such Third-Party Claim without Customer’s prior written approval. BOSS may, at its own expense, engage separate counsel to advise BOSS regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
12. GOVERNING LAWS AND DISPUTE RESOLUTION
This Agreement is governed in all respects by the laws of the State of New York, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on Contracts for the International Sale of Goods applies to this Agreement or to the rights or duties of the Parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either Party may send a notice to the other Party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in New York, New York by a single arbitrator knowledgeable in the commercial aspects of “software as a service” arrangements and intellectual property. The Parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the Parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each Party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrator will provide detailed written explanations to the Parties to support their award and regardless of outcome, each Party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
BOSS may, from time to time, host and/or maintain one or more BOSS Platforms using a third Party technology service provider and Customer acknowledges that BOSS cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
Customer agrees that BOSS may identify Customer as a customer and use Customer’s logo and trademark in BOSS’s promotional materials. Customer may request that BOSS stop doing so by submitting an email to email@example.com at any time. Customer acknowledges that it may take BOSS up to 30 days to process such request. Notwithstanding anything herein to the contrary, Customer acknowledges that BOSS may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
All notices, consents, and other communications between the Parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to the contact information provided on an Order Form or Statement of Work. All notices, consents and other communications between the Parties under a Statement of Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date actually received. Either Party may change its address for notices by giving written notice of the new address to the other Party in accordance with this Section.
16. FORCE MAJEURE
BOSS is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, pandemics or viral outbreaks, weather conditions or acts of hackers, internet service providers or any other third party, or acts or omissions of Customer or any Authorized User.
Neither Party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. BOSS may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with a BOSS Platform shall not be deemed a sublicensee under this Agreement.
18. GENERAL PROVISIONS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with Services agreed to and entered into hereunder, together with all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has authority of any kind to bind the other Party in any respect whatsoever. In the event of a conflict between this Agreement and any Order Form or Statement of Work, the terms of this Agreement shall prevail unless otherwise expressly indicated in the Order Form or Statement of Work. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.
Last updated: September 29, 2022