Purchaser Terms and Conditions
This Software Services Agreement (together with the Order Form, this “Agreement”) governs use of the Services (defined below) made available by Purchase, Inc. (“Purchase”) by the customer identified on the applicable Order Form (“you” or “Customer”) and Customer’s Authorized Users. Purchase and Customer may be referred to herein collectively as the “Parties ” or individually as a “Party”.
1. AGREEMENT TO TERMS AND CONDITIONS.
This Agreement is effective as of (a) the effective date specified on the applicable Order Form incorporating this Agreement, or (b) the date upon which you first use or access the Services, whichever is earlier (“Effective Date”). If you are accepting this Agreement on behalf of Customer, you represent and warrant that you have the authority to bind Customer to the terms and conditions of this Agreement.
2. DEFINITIONS.
“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Services, including, without limitation, any usage data or trends with respect to the Services.
“Authorized User” means an employee or contractor who Customer has authorized to Use the Services.
“Purchase IP” means the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, and Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
“Customer Materials” means all Input, information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Services or to Purchase in connection with Customer’s Use of the Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Purchase and made available through or in connection with the Services.
“Documentation” means the user manuals, training materials, and other similar materials as provided by Purchase to Customer (including any revised versions thereof) relating to the Services, which may be updated from time to time.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Purchase in writing; or (iii) quote issued by Purchase and accepted by Customer, in each case which references this Agreement and sets forth the applicable Services to be provided by Purchase.
“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
“Services” means the process optimization services provided by Purchase, as may be more particularly described or identified in the applicable Order Form.
“Use” means to use and/or access the Services in accordance with this Agreement and the Documentation.
3. SERVICES; ACCESS AND USE.
Services. Subject to the terms and conditions of this Agreement, Purchase hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 13(f)) right to Use the Services during the Term, solely for Customer’s internal business purposes.
Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Services or Documentation, in whole or in part; (iii) decipher, reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain improper access to any software component of the Services or any components, models, algorithms or systems used to provide the Services, in whole or in part or engage in any of the adversarial attacks set forth in the NIST AI 100-2 E2023 publication available at https://nvlpubs.nist.gov/nistpubs/ai/NIST.AI.100-2e2023.pdf; (iv) frame, mirror, sell, resell, rent or lease use of the Services to any other Person, or otherwise allow any Person to use the Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Services, Output, or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Purchase for use expressly for such purposes; (viii) use the Services, Documentation or any other Purchase Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services; or (ix) utilize the Services (including any AI models or derivatives thereof), Documentation, Input or Output to train, improve or have trained or improved an AI model (e.g., engage in “model scraping”).
Authorized Users. Customer will not allow any Person other than Authorized Users to Use the Services. Customer may permit Authorized Users to Use the Services, provided that Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify Purchase if Customer knows or reasonably suspects that any username and/or password has been compromised. Each account for the Services may only be accessed and used by the specific Authorized User for whom such account is created.
Third-Party Services. Certain features and functionalities within the Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services. Purchase does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Services.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, Purchase reserves and, as between the Parties will solely own, the Purchase IP and all right, title and interest in and to the Purchase IP and to the Services. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
4.CREDITS AND PAYMENT.
Credits. Customer may purchase a package of virtual credits (“Credits”) in accordance with Purchase’s pricing page set forth at [insert URL] (“Pricing Page”). Customer and its Authorized Users may use Credits to utilize the Services, including without limitation to run queries through the Services. If Customer or its Authorized Users deplete all of Customer’s Credits, Customer may purchase additional Credits through the Services.
Payments. Payments due to Purchase for Credits under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Purchase or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Purchase may suspend Services until all payments are made in full. Customer will reimburse Purchase for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Purchase hereunder, other than any taxes imposed on Purchase’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Purchase hereunder, Customer will pay an additional amount, so that Purchase receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
5. CONFIDENTIAL INFORMATION.
Confidential Information. As used herein, “Confidential Information” means any information that Purchase provides to Customer in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Services and the Documentation will be deemed Confidential Information of Purchase. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by Customer; (ii) were rightfully known by Customer prior to receiving such information or materials from Purchase; (iii) are rightfully acquired by Customer from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to Purchase; or (iv) are independently developed by or for Customer without use of or access to any Confidential Information of Purchase.
Obligations. Customer will maintain Purchase’s Confidential Information in strict confidence, and will not use the Confidential Information of Purchase except as necessary to perform its obligations or exercise its rights under this Agreement. Customer will not disclose or cause to be disclosed any Confidential Information of Purchase, except (i) to those employees, representatives, or contractors of Customer who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to Customer providing to Purchase reasonable written notice to allow Purchase to seek a protective order or otherwise contest the disclosure.
Disclosure. The terms and conditions of this Agreement will constitute Confidential Information of Purchase but may be disclosed on a confidential basis to Customer’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
6. CUSTOMER MATERIALS; INPUT AND OUTPUT.
Ownership. Purchase acknowledges that, as between Customer and Purchase and except as set forth in Section 6(b), Customer owns and retains all right, title and interest in and to all Customer Materials.
License. Customer hereby grants Purchase a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials and Input (defined below) solely for the purpose of hosting, operating, improving and providing the Services and Purchase’s other related products, services and technologies during the Term, including to train Purchase’s AI models, to enforce compliance with this Agreement, and to comply with applicable law.
Customer Materials. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials and Input (including any personal data provided or otherwise collected pursuant to Customer’s privacy notice) as contemplated by this Agreement and (ii) Purchase’s use of the Customer Materials or Input in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
Input and Output. The Services may generate output for Customer (each, “Output”) in response to: (i) Customer’s interaction, request or input; or (ii) Customer Materials uploaded or submitted to influence the Output or Services (collectively, “Input”).
Rights to Input and Output. As between Customer and Purchase, to the extent permitted by applicable law and subject to Section 3(e): (1) Customer owns and is responsible for all Input that Customer provides; and (2) subject to Customer’s compliance with this Agreement, Purchase assigns to Customer its right, title and interest in and to the Output generated by Customer’s Input. Customer may not represent that Output from the Services was human-generated. Purchase may use and modify Customer’s Input and Output to enforce this Agreement, to provide, maintain, develop, and improve the Services for Customer during the Term and to comply with applicable law.
7. REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and to submit Input to the Services; and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
8.INDEMNIFICATION
Purchase Indemnification. Subject to Section 8(b), Purchase will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that the Customer’s Use of the elements of the Services that are proprietary to Purchase infringe or misappropriate such third party’s copyright rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Purchase (including reasonable attorneys’ fees) resulting from such Claim.
Exclusions. Purchase’s obligations under Section 8(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Services that have been provided by Purchase; (iv) modifications to the Services by anyone other than Purchase; (v) combinations of the Services with software, data or materials not provided by Purchase; or (vi) any Output.
IP Remedies. If Purchase reasonably believes the Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Purchase may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If Purchase determines that neither alternative is commercially practicable, Purchase may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Purchase will refund to Customer a pro-rata portion of the fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 8 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Services.
Customer Indemnification. Customer will defend Purchase against Claims arising from (i) any Customer Materials or Input (or their processing or use by Purchase), including, without limitation, (A) any Claim that the Customer Materials or Input infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials or Input violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 3(b), and in each case, will indemnify and hold harmless Purchase against any damages and costs awarded against Purchase or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
9.DISCLAIMERS
General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, OUTPUT, AND OTHER PURCHASE IP ARE PROVIDED ON AN “AS IS” BASIS, AND PURCHASE MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE PURCHASE IP, THE SERVICES, OUTPUT OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PURCHASE HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, PURCHASE HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES OR OUTPUT WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
Similarity, Accuracy and Appropriateness of Output. Due to the nature of machine learning, Output may not be unique and the Services may generate the same or similar Output for Customer or a third party. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE SERVICES MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE INPUT PROVIDED AND CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, PURCHASE NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER, ITS AUTHORIZED USERS OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER MATERIALS, INPUT, OUTPUT OR THEIR USE. Customer will evaluate the content, nature and accuracy of any Output as appropriate for the applicable use case, including by using human review of the Output.
10. LIMITATIONS OF LIABILITY.
Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS OR (IV) A PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PURCHASE IP OR THE PROVISION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
Total Liability. IN NO EVENT WILL PURCHASE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, THE PURCHASE IP OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO PURCHASE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY PURCHASE TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT PURCHASE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
BASIS OF THE BARGAIN. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN PURCHASE AND CUSTOMER AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
11. TERM AND TERMINATION.
Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of the same duration as the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless: (i) either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term or (ii) is otherwise specified in the applicable Order Form.
Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
Survival. This Section 11(c) and Sections 2, 3(b), 3(c), 3(e), 3(f), 4, 5, 6, 7, 8, 9, 10, 11(d) and 13 survive any termination or expiration of this Agreement.
Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 3(a) will terminate; and (ii) Customer will return or destroy, at Purchase’s sole option, all Purchase Confidential Information in its possession or control, including permanent removal of such Purchase Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Purchase’s request, certify in writing to Purchase that the Purchase Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
12. PUBLICITY
Subject to the provisions of Section 5, each Party will have the right to publicly announce the existence of the business relationship between the Parties. In addition, during the term of Customer’s Use of the Services, Purchase may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on Purchase’s website and in its marketing materials to identify Customer as Purchase’s customer, and for the purpose of providing the Services to Customer, provided that Purchase will use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer’s Marks.
13. GENERAL
Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the applicable Order Form or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 13(b). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (4) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of Customer, and on the next business day if sent after normal hours of Customer.
Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco, California and the Parties irrevocably consent to the personal jurisdiction and venue therein.
Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 3(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
Subcontracting. Purchase may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Purchase remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Purchase will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Purchase.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.