These Terms and Conditions along with each Order Form represent the agreement (the “Agreement”) by and between the client as stated on the Order Form on behalf of itself and its affiliates (collectively, the “Client”) and BuyTheSell LLC ("BuyTheSell"). The Client and BuyTheSell are referred to as the “parties” and each is a “party”. Each Order Form shall become part of this Agreement when signed by both parties.
1. The Software, the Services and the Materials
1.1. BuyTheSell agrees to provide Client and those individual employees and contractors of Client authorized by Client (“Users”) access to the BuyTheSell software (“Software”), the BuyTheSell services (“Services”) and/or the BuyTheSell data, text, graphics or other materials (collectively, “Materials”) identified in each Order Form.
1.2. BuyTheSell grants to Client and its Users, subject to the terms and conditions set forth in this Agreement, a limited term, non-exclusive, non-transferable license to access the Software and Services, and to access, use, print, download and/or copy the Materials, all solely for Client’s internal business purposes (the “License”). The License is limited to the number of Users specified on the Order Form. All rights in and to the Software, the Services and the Materials not expressly granted to Client and the Users in this Agreement are reserved by BuyTheSell.
2. The Users
2.1. BuyTheSell will provide each User with a unique user name and password (“User ID”) to access the Software, the Services and the Materials. No User ID may be transferred from one individual to another individual without the express written permission of BuyTheSell.
2.2. Individuals who are not Users may not access or use the Software or the Services at any time. Users are not permitted to allow any other person or entity to share their User ID, or to allow unauthorized individuals to access or use the Software or the Services. Client and each User shall promptly notify BuyTheSell in writing of any unauthorized use of any User IDs, or any access to or use of the Software, the Services or the Materials, of which it may become aware.
2.3. Client shall provide BuyTheSell with notice of the termination of any User. Should Client wish to switch a User ID to a different individual, Client shall contact BuyTheSell, which may switch a current User ID, or BuyTheSell may terminate one User ID and establish a new User ID at BuyTheSell’s sole discretion.
2.4. BuyTheSell reserves the right to view, monitor and record User activity on the Software and through the Services and Materials, including without limitation User navigation, searching and use of Materials, calculation of new or revised data, solving of technical problems, and usage statistics. BuyTheSell may also use data it collects for editorial and feedback purposes, for BuyTheSell marketing and promotional purposes, for a statistical analysis of users’ behavior, for product development, for content improvement, or to customize the content and layout of the Software. Aggregated and anonymized data on Client and its Users activity may be used by BuyTheSell for its internal, marketing and other purposes.
2.5. Client is responsible for all activities that occur under each User ID allocated to Client and its Users. Client shall use commercially reasonable efforts to comply with all applicable local, state, federal, and foreign laws in using the Software, the Services and the Materials. Client shall not interfere with or disrupt the integrity or performance of the Software, Services or the Materials. Client shall not attempt to probe, scan, penetrate or test the vulnerability of the Software or any other BuyTheSell system or network, or BuyTheSell’s security or authentication measures, whether by passive or intrusive techniques, without BuyTheSell's prior written consent, which BuyTheSell may refuse in its sole discretion.
2.6. Client is solely responsible for (i) obtaining and maintaining any Client computer hardware, software, network infrastructure and ancillary services (collectively, the “Equipment”) to connect to, access or otherwise use the Software, the Services or any Materials; (ii) paying third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Software, the Services or any Materials; and (iii) ensuring that the Client’s Equipment is compatible with the Software, the Services or any Materials.
3. Term, Renewal and Termination
3.1. Each Service provided pursuant to this Agreement shall be effective on the Order Date stated on the applicable Order Form, and continues for a period of time set forth in the applicable Order Form, unless the Service or this Agreement is terminated earlier pursuant to the terms of this Agreement. For the ease of billing, where multiple Services are ordered through multiple Order Forms, BuyTheSell may pro-rate one or more Services so that multiple Services have termination and renewal dates on the same day.
3.2. The term of each Service may be renewed on an annual basis by mutual agreement of the parties. Payment of a renewal invoice for a Service shall be deemed to be an agreement between the parties to renew this Agreement for a term of one year. The initial term and any renewal terms shall be collectively referred to as the “Term.”
3.3. BuyTheSell may terminate this Agreement and access to the Software, the Services and the Materials if Client or any User breaches any provision of this Agreement, and fails to cure the breach within five (5) business days after BuyTheSell sends written notice of the breach to Client.
3.4. Either party, upon giving written notice to the other party, may terminate this Agreement (i) at any time in the event the other party terminates or suspends its business, becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, or becomes subject to direct control by a trustee or similar authority, or (ii) as of the expiration of the Term by providing the other party with at least thirty (30) days prior written notice of non-renewal. In addition, any failure by Client to pay applicable fees for a Service for a particular term shall be deemed Client’s non-renewal of such Services.
3.5. Any termination, expiration or non-renewal of this Agreement or any Services under this Agreement shall not relieve Client of the duty to pay BuyTheSell for any Services provided prior to the effective date of termination.
3.6. The following provisions shall survive any termination or expiration of this Agreement: Sections 5 through 11; and, any other terms that, by their nature, ought to survive termination, will survive the expiration or termination of this Agreement.
3.7. Upon the effective date of termination of this Agreement: (i) BuyTheSell shall immediately cease providing access to the Software, the Services and the Materials to Client and Users; (ii) Client’s License to use the Software, the Services and the Materials shall cease; (iii) any and all payment obligations of Client incurred in respect of periods prior to the date of termination shall immediately become due; and (iv) Client and Users shall promptly return the Materials to BuyTheSell along with any BuyTheSell Confidential Information, and all copies, derivative works, abstracts, and compilations of the Materials or Confidential Information in any medium.
4.1. Client shall pay all fees specified in all executed Order Forms, including any membership fees. Except as otherwise agreed in writing, all fees are quoted and due in United States dollars (USD) and are nonrefundable.
4.2. Any amounts due BuyTheSell that are not paid within thirty (30) days of the invoice date shall be subject to a late fee of one percent (1.0%) per month, or, if less, the maximum amount allowed by law, and may be charged on any past due amounts. Client shall pay any attorneys’ fees, court costs, or other costs incurred in collecting monies from Client.
4.3. If Client’s account is thirty (30) days or more overdue for any Service or Material, then, in addition to any of its other rights or remedies, BuyTheSell reserves the right to suspend the BuyTheSell Service provided to Client, without any liability to Client.
4.4. Unless otherwise stated in an Order Form, BuyTheSell’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Client is responsible for paying all Taxes, excluding only taxes based on BuyTheSell’s income. If BuyTheSell has the legal obligation to pay or collect Taxes for which Client is responsible under this section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides BuyTheSell with a valid Tax exemption certificate issued by the appropriate taxing authority.
5. Intellectual Property Rights
5.1. All rights, including copyrights, trademarks, service marks, patent rights and other rights in and to the Software, the Services and the Materials belong exclusively to BuyTheSell. Client agrees to use the same standards of care to protect the distribution of and access to the Software, the Services and the Materials as Client would normally exercise in the protection of its own proprietary or confidential information.
5.2. Users are permitted to print, download and/or copy reasonable portions of the Materials for internal use by Client. Client and each User agree not to use the Software, the Services or any Materials to provide any Services to or for the benefit of any third party. A User of Client may, on an occasional and irregular basis, disseminate an insubstantial portion of the Materials, without additional charge, in print or via secure electronic means, to a limited number of individuals within Client’s organization, provided Client includes proper attribution to BuyTheSell or the legend “Source: BuyTheSell Energy” as credit in a highly visible location on the Materials. An “insubstantial portion” means a quantity of material which would not prejudice or otherwise diminish BuyTheSell’s advantage in licensing the Services (or any separately marked subset or update thereof) for commercial gain.
5.3. Any usage of Materials external to Client (including, but not limited to, press releases, regulatory findings, presentations, analyses, memoranda or reports) and information contained therein, shall require prompt notice to and prior written approval of BuyTheSell, which permission BuyTheSell may grant or refuse in BuyTheSell's sole discretion. The parties agree and acknowledge that their obligations under this Section shall survive any termination of this Agreement.
6. Limited Warranties
6.1. Each party represents and warrants to the other party that (a) it has appropriate authority to enter into this Agreement, and exercise its rights and perform its duties under this Agreement; (b) its performance of its duties described in this Agreement does not conflict with any other agreement to which it is currently a party; or (c) to its actual knowledge as of the applicable Order Date, no third party has made any claim that would affect adversely the right of such party to enter into or perform under this Agreement.
7. Disclaimer of Warranties
7.1. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT: (A) THE SERVICES, THE SOFTWARE, AND ANY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; (B) NO WARRANTIES, EXPRESS OR IMPLIED, AND NO REPRESENTATIONS OR PROMISES, HAVE BEEN MADE BY BuyTheSell TO CLIENT OR TO ANY USER OR TO ANY OTHER PERSON OR ENTITY; (C) BuyTheSell EXPRESSLY DISCLAIMS ALL OF THE WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ORIGINALITY, NON-INFRINGEMENT, SUITABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE; AND (D) BuyTheSell DOES NOT WARRANT THAT THE SOFTWARE, THE SERVICES, THE SOFTWARE, OR ANY MATERIALS WILL CONFORM TO ANY DESCRIPTION THEREOF OR BE FREE OF OMISSIONS, ERRORS OR DEFECTS.
7.2. BuyTheSell DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS FROM THE SOFTWARE, THE SERVICES, OR THE MATERIALS, INCLUDING BUT NOT LIMITED TO ANY TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS; (B) ANY THIRD PARTY WEB SOFTWARE OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS IN THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM; (C) THE UNAVAILABILITY OF THE SOFTWARE, THE SERVICES, OR THE MATERIALS, OR ANY PORTION THEREOF; (D) CLIENT’S OR ANY USER’S USE OF THE SOFTWARE, THE SERVICES, OR THE MATERIALS, OR ANY DECISION MADE USING OR INFORMED BY THE SAME, (E) UNAUTHORIZED ACCESS TO THE SOFTWARE, THE SERVICES OR THE MATERIALS, OR ANY INFORMATION PROVIDED THEREIN; OR (F) CLIENT’S OR ANY USER’S USE OF ANY EQUIPMENT IN CONNECTION WITH THE SOFTWARE, THE SERVICES OR THE MATERIALS.
7.3. BuyTheSell MAKES NO WARRANTIES AND MAKES NO REPRESENTATIONS WHATSOEVER WITH RESPECT TO THE SEQUENCE, ACCURACY, CURRENCY OR COMPLETENESS OF THE SOFTWARE, THE SERVICES OR ANY MATERIALS PROVIDED TO CLIENT OR ANY INFORMATION THEREIN. BuyTheSell DOES NOT WARRANT THAT CLIENT’S USE OF THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. BuyTheSell SHALL NOT BE LIABLE TO CLIENT OR TO ANY PERSON OR COMPANY FOR ANY INACCURACY, ERRORS, OR OMISSIONS CONTAINED OR PROVIDED AS PART OF THE SOFTWARE, THE SERVICES OR THE MATERIALS.
8. Limitations of Liability
8.1. IN NO EVENT SHALL BuyTheSell OR ANY OF ITS LICENSORS OR AFFILIATES BE LIABLE TO CLIENT OR ANY USER OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF DATA, LOSS OF USE OR CLAIMS OF THIRD PARTIES), ARISING OUT OF OR IN ANY MANNER IN CONNECTION WITH THIS AGREEMENT, THE SUBJECT MATTER HEREOF OR CLIENT’S OR ANY USER’S OR ANY OTHER PERSON’S OR ENTITY’S USE OF (OR INABILITY TO USE) THE MATERIALS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), CONTRACT OR OTHERWISE, WHETHER OR NOT BuyTheSell, ITS LICENSORS, AFFILIATES OR ANY SUCH OTHER PARTY HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF, SUCH DAMAGES.
8.2. IN NO EVENT SHALL BuyTheSell’S OR ITS LICENSORS’ OR THEIR RESPECTIVE AFFILIATES’ LIABILITY EXCEED THE FEES RECEIVED BY BuyTheSell UNDER THIS AGREEMENT.
8.3. WITHOUT LIMITING THE FOREGOING, CLIENT AND EACH USER ACKNOWLEDGES THAT THE SOFTWARE, THE SERVICES, AND THE MATERIALS MAY BE INCOMPLETE OR CONDENSED, ARE FOR INFORMATION PURPOSES ONLY, AND ARE NOT INTENDED AS, AND SHALL NOT BE CONSTRUED TO BE, AN OFFER OR SOLICITATION WITH RESPECT TO THE PURCHASE OR SALE OF ANY SECURITY. ALL OPINIONS AND ESTIMATES PROVIDED CONSTITUTE JUDGMENTS AS OF THEIR DATE AND ARE SUBJECT TO CHANGE WITHOUT NOTICE. SUCH MATERIALS, REPORTS, DATA, INFORMATION, OPINIONS AND ESTIMATES ARE FURNISHED AS PART OF A GENERAL SERVICE, WITHOUT REGARD TO ANY PERSON’S PARTICULAR CIRCUMSTANCES, AND BuyTheSell SHALL NOT BE LIABLE FOR ANY DAMAGES IN CONNECTION THEREWITH.
9.1. BuyTheSell, at its expense, agrees to indemnify, defend and hold harmless Client, its Users, directors, officers, employees and agents (the “Client Indemnitees”) against any and all actions, claims, demands, causes of action, costs, losses, damages, expenses (including reasonable attorney’s fees), liabilities and/or judgments of any nature (collectively, “Damages”), brought by an unrelated third party, as incurred by the Client Indemnitees, arising out of an allegation by such third party that the Software, the Services or the Materials infringe any United States patent, trademark of copyright, provided however, this indemnity shall not apply to any portion of such Damages which is attributable to the willful misconduct of any of the Client Indemnitees.
9.2. Client, at its expense, agrees to indemnify, defend and hold harmless BuyTheSell, its licensors, affiliates and its and their affiliates’ respective directors, officers, employees and agents (the “BuyTheSell Indemnitees”) against any and all actions, claims, demands, causes of action, costs, losses, damages, expenses (including reasonable attorney’s fees), liabilities and/or judgments of any nature (collectively, “Damages”), brought by an unrelated third party, as incurred by the BuyTheSell Indemnitees, arising out of or related in any respect to the Client’s or Users’ use of (or inability to use) the Software, the Services or the Materials, or any breach by Client or Users of this Agreement, provided however, this indemnity shall not apply to any portion of such Damages which is attributable to the willful misconduct of any of the BuyTheSell Indemnitees.
9.3. BuyTheSell reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including but not limited to the right to block access from a particular Internet address, user access code or password to the Software, the Services, the Material, or any portion or feature thereof.
10.1. Client and each User acknowledge and agree that the Software, the Services and any Materials provided by BuyTheSell constitute “Confidential Information” of BuyTheSell or its licensors. Client and each User agree to maintain (and cause its employees, agents and subcontractors to maintain) the confidentiality of the Confidential Information.
10.2. Without limitation of the foregoing, Client and each User agree not to (i) transfer or disclose the Confidential Information (or any part thereof), directly or indirectly, to any third party, (ii) use the Confidential Information (or any part thereof) in any manner, except as contemplated under this Agreement, or (iii) take any other action with respect to the Confidential Information inconsistent with the confidential and proprietary nature of the Confidential Information.
10.3. Client and each User acknowledge and agree that the Confidential Information constitutes valuable property of BuyTheSell and its licensors and that any violation by Client, any User, or their employees, agents or subcontractors of the foregoing provisions, any failure to return Confidential Information as provided herein, or any use or disclosure of Confidential Information other than as permitted by this Agreement shall cause BuyTheSell or its licensors irreparable injury not compensable by money damages for which BuyTheSell or its licensors will not have an adequate remedy at law. Accordingly, if BuyTheSell or its licensors institute an action or proceeding to enforce the foregoing provisions, to compel the return of Confidential Information or to prevent or curtail any use or disclosure of Confidential Information other than as provided in this Agreement, BuyTheSell or its licensors shall be entitled to seek injunctive or other equitable relief to enforce such provisions or to prevent or curtail any breach thereof, to compel such return or to prevent or curtail any such unauthorized use or disclosure, threatened or actual. The foregoing shall be in addition to and without prejudice to or limitation on any other rights BuyTheSell or its licensors may have under this Agreement, at law or in equity
11. General Terms
11.1. If any provision of this Agreement is held invalid or unenforceable by a tribunal or court of competent jurisdiction, such provision shall be considered separate and apart from the remainder of this Agreement which shall remain in full force and effect. In the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and shall be enforced as amended.
11.2. The waiver or failure of either party to enforce any violation or provision of this Agreement shall not constitute a waiver of its rights hereunder with respect to any other violation or provision of this Agreement nor in any way prejudice such party’s rights to take subsequent actions.
11.3. This Agreement shall be binding upon and inure to the benefit of each party, its successors, and assigns. Client may not assign or transfer this Agreement without the express written consent of BuyTheSell. BuyTheSell may assign or transfer this Agreement effective upon written notice to Client.
11.4. All notices and other communications shall be provided in writing and shall be deemed sufficient for all purposes if sent by registered or certified letter, courier service, email, or facsimile to the recipient’s addresses stated on the Order Form. Notices shall be effective on the dates of receipt.
11.5. This Agreement shall be governed by and construed in accordance with the law of the State of New York, without reference to its conflict of law provisions. Any controversy or claim between the parties or arising out of this Agreement shall be determined by one arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules and the Optional Rules for Emergency Measures of Protection in the city of New York, NY. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction.
11.6. The parties agree to accept service of process by mail or courier and hereby waive any and all jurisdictional and venue defenses otherwise available.
11.7. This Agreement sets forth the entire understanding of the parties and replaces any prior oral or written communications made between the parties relating to the subject matter hereof. This Agreement shall not be amended or modified except by a written instrument duly executed by each of the parties hereto.