The RoutingBox Terms and Conditions is a supplement to the RoutingBox Agreement (“Agreement”), executed between Buffalo Intelligent Technology Systems, LLC (“BITS”) with principal offices at 401 East Amherst Street, Buffalo, NY 14215 and Client as defined in the Agreement.

WITNESSETH:
WHEREAS, BITS provides access to certain software as a service offering to its clients.

WHEREAS, Client desires to obtain the right to use from BITS, and BITS desires to provide to Client, the software as a service offering described in this Agreement, subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:

DEFINITIONS
The following definitions are applicable to this Agreement and are in addition to the definitions included throughout the Agreement:

“Addendum” means a written amendment to this Agreement executed by the parties. 

“Authorized Contact” means Client’s internal designate authorized to contact BITS in the event of a Service Defect or other emergency, or for technical support.

“Client Data” means all of Client’s data submitted to and processed through the Services.

“Custom Modifications” means programming or other changes to the Services requested by Client and agreed to be provided by BITS in this Agreement or in separate Addendum(s), all of which shall be subject to the terms of this Agreement.

“Data Privacy Laws” means all applicable data and/or privacy Laws concerning the treatment (including the collection, handling, processing, storage, and/or transfer) of Personal Information by BITS, including, but not limited to, Laws that relate to the security and protection of personally identifiable information, data privacy, trans-border data flow, or data protection.

“Delivery Date” means the first day Client receives access to the Service.

“Documentation” means the written materials relating to the operation of the Service (either in hard copy or electronic form), including, without limitation, service documentation, user manuals, and/or program documentation associated with Service, in the English language.  Documentation will be updated as necessary in connection with any New Releases and/or Updates.

“Fee Commencement Date” means the date that BITS will begin charging fees, which shall be the Delivery Date if not otherwise specified in the Agreement’s proposal or pricing schedule.

“Law” means all applicable international, United States federal, country, state, provincial, regional, territorial, local, and other laws, rules, and regulations (including, but not limited to, Data Privacy Laws), ordinances, interpretive letters, and other official releases of or by any authority, decrees, orders, and codes (including any requirements for permits, certificates, approvals, and inspections), as the same are promulgated, supplemented, and/or amended from time to time.

“New Release” means new version releases and/or upgraded versions of the Software which may be released by BITS after the Effective Date of this Agreement, all of which shall be subject to the terms and conditions of this Agreement.

“RoutingBox” means the proprietary software application that enables users to manage operations related to transporting people, including, without limitation, the scheduling, dispatching, and billing of trips. 

“RoutingBox Mobile” means the proprietary software application that allows vehicle drivers to receive updated schedule and route information from RoutingBox.

“Service” or “Services” means the Software, which is hosted on computer systems controlled by BITS, and which is made available to Client through the internet.

“Service Defect” means any instance in which Service does not operate correctly because it does not conform to the specifications set forth in the Documentation.  A Service Defect shall not include any instance in which the Service operates incorrectly as a result of Client’s misuse, modification or alteration of the Service not at the direction of BITS or incorrect operation due to Client’s use of system requirements described in Section 1.1(f) and/or inadequate internet service.

“Service Defect Correction” means programming the modifications, additions, or deletions which when made or added to the Service, revises the Service so as to cause it to materially conform to the Documentation, or a procedure or routine, that, when observed or followed in the ordinary operation of the Service eliminates the practical adverse effect, if any, on Client, of any Service Defect.

“Software” means, collectively, RoutingBox and RoutingBox Mobile and other integrations and modules connected to RoutingBox.

“Training Services” means training on use of the software provided by BITS to Client.

“Updates” enhancements, modifications, or patches for the Software prepared for production environment, typically not on a “for hire” basis.

Section 1

SERVICES

1.1 Software Guidelines: The rights granted to Client in this Agreement are subject to all of the following agreements and restrictions:

a. Client shall not license, sell, rent, lease, transfer (except as set forth in Section 10.3 herein), assign (except as set forth in Section 10.3 herein), distribute, display, host, outsource, use on a timesharing basis, use or permit others to use on a service bureau basis, disclose or otherwise commercially exploit or make the Service available to any third party.

b. Client shall not, nor shall it attempt or permit any third party to, modify, make derivative works of, disassemble, reverse compile, reverse engineer or derive or determine the source code of any part of the Software, the Documentation or BITS’s computer hardware, software, configuration or system through which BITS provides the Service (collectively, the “Host System”), or access or use the Service or Host System in order to build a similar or competitive product or service. Client understands and agrees that the Host System contains valuable, confidential, proprietary trade secrets of great value to BITS, the disclosure, loss or circumvention of which would cause BITS great and irreparable harm.

c. Other than Client Data, or as otherwise expressly stated herein, no data or part of the Software or the Host System may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, without limitation, electronic, electro-magnetic, mechanical, photocopying, recording, residual recollection, or other means.

d. To the fullest extent permitted by applicable Law, Client shall not disclose any review or analysis of the Software or the Host System to any third party, including, without limitation, the results of any tests, without BITS’s prior written approval.

e. Client will ensure that any use of the Software or the Host System by Client is in accordance with the terms of this Agreement. Further, Client shall maintain the confidentiality of all usernames and passwords used to access the Service. Client shall allow the use of the Service and Host System only by Client’s employees and Client’s independent contractors with whom Client has entered into written agreements with respect to such independent contractors’ use of the Host System with terms no less protective of BITS’s rights than the terms of this Agreement. Client acknowledges and agrees that Client is responsible for all access to and use of the Software and Host System by users using Client’s username, password and/or other authentication credentials. Client agrees to prevent unauthorized third parties from accessing or using the Software and Host System using Client’s username, password and/or other authentication credentials.

f. Client is solely responsible for obtaining and maintaining the necessary software, hardware, internet connectivity, and all other systems and devices in order to access and use the Host System. System requirements necessary for proper function can be found at https://routingbox.com/system-requirements/, and are hereby incorporated into this Agreement by reference.

g. Client may not disseminate or transmit any material using the Host System in any way that is unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or harms minors in any way.

h. Client may not disseminate or transmit any material that otherwise may: (i) constitute a criminal offense; (ii) give rise to civil liability; or (iii) violate applicable Law (including, without limitation, the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), rule or regulation. Client shall, at all times, comply with all applicable Law. To the extent applicable, the parties shall comply with the terms and conditions of the HIPAA business associate agreement which can be found at https://founderssoftware.com/hipaa-baa/ and is hereby incorporated into this Agreement by reference.

i. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Software, Documentation, Services, or Host System.

Section 2

FEES

2.1 Fee Schedule.  In consideration of Client’s rights to access and use the Service as provided herein, Client shall pay to BITS the fees (the “Fees”) listed in the Agreement.  The Fees will be billed by BITS within approximately ten (10) days after each monthly billing period and are payable by Client on or before the due date set forth on each invoice by credit card or ACH payment.  Client and BITS agrees to payment terms of NET-30 days from the date of invoice receipt.  Client will be assessed late fees of 1.5% per month, or the maximum rate allowed by Law if less, on all undisputed amounts due from Client to BITS which are not timely received by BITS. In the event of any dispute over the amounts charged on an invoice, Client will pay all undisputed amounts invoiced, will provide BITS with a written explanation for any disputed amounts on or before the due date and will work with BITS in good faith to promptly resolve such dispute.  No interest or penalty (if applicable and permitted) will be accrued until such dispute is resolved and Client is permitted a reasonable period of time (not to exceed 30 days from such resolution) to pay such resolved amount. All pricing and other terms of this Agreement are Confidential Information of BITS, and shall be treated by Client in accordance with Section 10.14 herein. All amounts are payable in U.S. Dollars and are exclusive of all taxes, levies, or duties imposed by taxing authorities (other than taxes imposed on BITS’s net income), and Client shall be responsible for payment of all such taxes, levies, or duties, which shall be billed by BITS to Client concurrently with the Services to which they apply. Client will provide BITS with complete and accurate billing and contact information. Client acknowledges and agrees that all fees paid hereunder for access to and use of the Service are not subject to any refund except as expressly set forth herein. In addition to any other rights of BITS, BITS reserves the right to suspend Client’s access to the Service if Client’s account becomes delinquent and remains delinquent ten (10) days after written notice describing such delinquency in reasonable detail is received by Client.

2.2 Pricing for Services.  Pricing for Services including the monthly Service Access Fee shall be defined by the Agreement between the parties.

2.3 Limitation of Access.  If any monthly payments which are billed by BITS in arrears are not paid within thirty (30) days after the date of the applicable invoice and remain delinquent ten (10) days after written notice describing such delinquency in reasonable detail is received by Client, then, in addition to late fees under Section 2.1 and all other remedies available to BITS under this Agreement and under Law, BITS shall have the right to immediately suspend Client’s use of the Service until payment arrangements satisfactory to BITS have been made.

2.4 Reconnection Fees.  BITS reserves the right to impose a $250 reconnection fee in the event Client is suspended and thereafter requests access to the Service.

2.5 Fee Commencement Date.  BITS will begin charging the Fees on the Fee Commencement Date. The Fee Commencement Date shall not be dependent on the Client’s actual use of the Service. If there are multiple Fee Commencement Dates, the amount owed for each subsequent Fee Commencement Date shall be pro-rated to be the same day as the first Fee Commencement Date, and the Initial Term and each Renewal Term for each added Service shall be coterminous based on the term for the first Service.

Section 3

INTELLECTUAL PROPERTY RIGHTS

3.1 Ownership of BITS Materials.  BITS (or BITS’s third party licensors, to the extent applicable) is, and shall at all times remain, the sole and exclusive owner of all right, title, and interest in and to the Software, Documentation, Services, and Host System, including, without limitation, intellectual property rights.

3.2 Ownership of Custom Modifications.  BITS is, and shall at all times remain, the sole and exclusive owner of all right, title, and interest in and to all Custom Modifications, all developments made in connection with the Services, all improvements upon the Software, Documentation, Services, or Host System, and all other deliverables supplied by BITS under this Agreement, whether developed independently of the Services or in connection with the Services, and in all cases excluding any Client Data and other Client intellectual property.  To the extent that BITS is not automatically considered the owner of any of the foregoing, Client agrees to assign and does hereby assign to BITS all right, title, and interest in and to all such materials and agrees to execute, or cause to be executed, any documents BITS deems necessary to effect such assignment, in all cases at BITS expense.

3.3 No Implied Rights. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement shall be construed as granting Client, or any third party, any right, title, or interest in or to the Software, Documentation, Services, Host System, Custom Modifications, training materials, methods, or any other materials provided by BITS to Client, whether by implication, estoppel, or otherwise.

Section 4

PROPRIETARY RIGHTS; CLIENT DATA

4.1 Acknowledgment of Proprietary Materials; Limitations on Use.  Client acknowledges that the Host System, including, without limitation, the Software and Documentation, are protected under the copyright Laws of the United States of America and embody valuable, confidential and secret information proprietary to BITS, the development of which required the expenditure of considerable time and money by BITS.  Client shall treat and shall require users to treat the Host System, including, without limitation, the Software and Documentation, in confidence and shall not use, copy, or disclose, nor permit any of its personnel to use, copy or disclose the same for any purpose that is not specifically authorized under this Agreement.

4.2 Communication of the Terms and Restrictions of this Agreement.  Client agrees to communicate the terms and restrictions contained in this Agreement to, and ensure compliance with such terms and restrictions through written agreement by, all persons under its employment, direction, or control who have access to the Service, in whole or in part, and such communication shall not be in violation of Client’s obligations under Sections 2.1 or 10.14.

4.3 Secure Handling.  Client shall require that all Documentation delivered to or downloaded by Client be kept on Client’s premises or secure off‑site backup premises in a secure manner so as to preclude unauthorized persons from having access thereto, and Client shall permit such Documentation to be accessed only by Client’s employees with a legitimate need for the purposes of this Agreement.

4.4 Copyright and Trademark Notices; Proprietary Legends.  Client shall not permit any personnel of Client to remove any copyright or trademark notice or proprietary or other legend or restrictive notice contained or included in any Documentation provided by BITS, and Client shall not permit Client personnel to reproduce or copy any such material except as specifically authorized hereunder. BITS shall not permit any personnel of BITS to remove any copyright or trademark notice or proprietary or other legend or restrictive notice contained or included in any Client Data or intellectual property provided by Client in connection with creating Custom Modifications, and BITS shall not permit BITS personnel to reproduce or copy any such material except as specifically authorized hereunder.

4.5 Client’s Obligations Respecting Access.  As much as possible, Client shall limit use of and access to the Services and Documentation to such employees of Client as are directly involved in the use thereof by Client, and Client shall (a) disclose such information only to employees of Client who Client reasonably believes will not violate the provisions of this Agreement and (b) prevent all of Client’s employees from having access to any such information that is not required in the performance of their duties for Client.  Client shall, if and as requested by BITS, provide BITS with written notice of all employees or consultants of Client who have been accorded access to the Services or Documentation in the course of their employment by Client.

4.6 Client Data

a. Ownership. Client may provide Client Data to BITS in connection with this Agreement. Client Data is, and shall at all times remain, the sole and exclusive property of Client and all right, title, and interest in the same is reserved by Client.

b. BITS Use of Client Data. Client hereby grants to BITS a limited, royalty-free, fully paid up, non-exclusive, sublicensable license to collect, process, store, generate, and display Client Data as necessary in providing of the Service.

c. Extraction of Client Data. To the extent reasonably available during the Term and in the 60-day period following termination of this Agreement, BITS shall provide Client, without charge, an extract of the Client Data within a reasonable time after Client’s written request, in a manner determined by BITS based upon the size of the Client Data extract. Following termination, expiration, or suspension of at least sixty (60) days of this Agreement, BITS will only retain Client Data as required under applicable statute, regulation, or other legal requirement, and such Client Data may be irretrievably deleted by BITS.

d. Backup and Recovery of Client Data. As a part of the Services, BITS is responsible for maintaining a backup of Client Data and for an orderly and timely recovery of such data in the event that the Service may be interrupted.

e. Loss of Client Data. Client acknowledges that BITS is not responsible for any electronic communications or Client Data which are lost, altered, intercepted, or stored during the transmission of such electronic communications or Client Data across networks not owned or operated by BITS.

Section 5

WARRANTIES; SERVICE DEFECT CORRECTION; DISCLAIMER; LIMITATION OF LIABILITY

5.1 Limited Warranty of Conformity.  BITS warrants, for the benefit only of Client, that from the Effective Date to the termination of this Agreement that the Service shall conform in all material respects to the specifications contained in any Documentation (except for modifications, if any, made by Client or by BITS at the request of Client). BITS further warrants, for the benefit only of Client, that (a) BITS has the right to grant the rights and licenses granted to Client under this Agreement and will obtain, maintain, and comply with all third party consents and governmental approvals required to perform its obligations under this Agreement and to grant the rights and license granted to Client under this Agreement; (b) the Services do not contain any virus, worm, code, program, or sub-program whose knowing or intended purpose is to damage or interfere with the operation of the computer system containing the code, program, or sub-program, or to halt, disable, or interfere with the operation of the software, code, program, or sub-program, itself, adware, spyware, Internet bots, malware, bugs, web bugs, or other surreptitious code; and (c)(i) the Software, Documentation, Services, Host System, Custom Modifications, training materials, methods, or any other materials provided by BITS to Client, (ii) any processes, procedures, technologies, techniques, or products used by BITS or its personnel to provide the Software, Documentation, Services, Host System, Custom Modifications, training materials, methods, or any other materials provided by BITS to Client, and (iii) the procurement, purchase, receipt, or use thereof by Client, shall not infringe, or violate any patent, copyright, trademark, or other intellectual property rights, or misappropriate or violate any trade secret or other proprietary right of a third party, including any moral or privacy right.

5.2 Limitation on Service Defect Correction.  For any nonconformity constituting a Service Defect in the Service for which BITS is responsible, Client’s sole and exclusive remedy for such Service Defect is for BITS to promptly provide Service Defect Corrections with respect to such Service Defect; provided, however, BITS shall not be obligated to correct, cure, or otherwise remedy any Service Defect in the Service to the extent resulting from any (a) modification of the Software by Client or any third party acting on Client’s behalf that is not at the direction of BITS or its agent, (b) misuse or damage of the Software other than by personnel of BITS, (c) accidents, fire, theft, neglect, abuse, acts of God or other such casualties, or any other external conditions or events which directly or indirectly result in a failure or malfunction or otherwise adversely affect the operation of the Service, or (d) failure of Client to notify BITS in writing of the existence and nature of such nonconformity or Service Defect promptly upon its discovery.  THE REMEDY PROVIDED IN THIS SECTION 5.2 SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 5.1, TO THE EXCLUSION OF ALL OTHER REMEDIES, EVEN IF SUCH LIMITATION CAUSES THIS WARRANTY OR ITS REMEDY TO FAIL OF THEIR ESSENTIAL PURPOSES.  NOTWITHSTANDING THE FOREGOING, IF BITS IS UNABLE TO MATERIALLY CORRECT A SERVICE DEFECT WITHIN THIRTY (30) DAYS OF THE DATE BITS RECEIVES CLIENT’S WRITTEN NOTIFICATION OF A SERVICE DEFECT, CLIENT MAY TERMINATE THIS AGREEMENT WITH CAUSE, WITHIN TEN (10) BUSINESS DAYS OF SUCH TERMINATION BITS WILL REFUND TO CLIENT ALL PREPAID BUT UNUSED FEES, AND CLIENT MAY SEEK ALL AVAILABLE REMEDIES.

5.3 Mutual Representations and Warranties.  Each of Client and BITS represent and warrant that: it is a business duly organized, validly existing, and in good standing under the Laws of its state of organization; it has all requisite power and authority to execute, deliver, and perform its obligations under this Agreement; and the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms.

5.4 Disclaimer.  THE WARRANTIES IN SECTIONS 5.1 AND 5.3 OF THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES FROM BITS.  EXCEPT AS EXPRESSLY STATED IN SECTIONS 5.1 AND 5.3 OF THIS AGREEMENT, BITS MAKES NO REPRESENTATIONS OR WARRANTIES RELATED TO THE SERVICES, SOFTWARE, OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL OTHER WARRANTIES (EXPRESS OR IMPLIED) ARE EXPRESSLY DISCLAIMED BY BITS.  BITS DOES NOT GUARANTEE THAT THE SERVICES WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT BITS WILL CORRECT ALL ERRORS.  CLIENT ACKNOWLEDGES THAT BITS WILL NOT BE LIABLE FOR ANY ERRORS IN DATA ACCESSED THROUGH THE SERVICES AND THAT CLIENT IS RESPONSIBLE FOR REVIEWING, CONFIRMING, AND VALIDATING ALL DATA, REPORTS, AND FORMS THAT MAY BE GENERATED BY THE SERVICES.  BITS IS NOT RESPONSIBLE FOR DATA LOSS.  IF THE SERVICES ARE USED IN CONNECTION WITH ANY MEDICAL TREATMENT OR SERVICES, CLIENT AGREES TO ACCEPT ALL RESPONSIBILITY IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION, RESPONSIBILITY FOR INJURY, DEATH, DAMAGE, AND/OR LOSS RELATED TO TREATMENT OR SERVICES.

5.5 Limitation on Liability. 

NO LIABILITY FOR CERTAIN DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, OR DIMINUTION OF VALUE, ARISING OUT OF, RELATING TO, RESULTING FROM, OR IN CONNECTION WITH ANY USE OF THE SERVICES BY CLIENT OR ANY BREACH OF THIS AGREEMENT BY BITS OR THE CLIENT, REGARDLESS OF: (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT BITS OR THE CLIENT, AS APPLICABLE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (IV) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.  FOR CLARITY, AMOUNTS AWARDED UNDER A CLAIM SUBJECT TO INDEMNIFICATION UNDER SECTION 6 (INDEMNIFICATION) OF THIS AGREEMENT SHALL BE DEEMED DIRECT DAMAGES AND THEREFORE NOT SUBJECT TO THE EXCLUSIONS SET FOR IN THIS PARAGRAPH, IRRESPECTIVE OF THE CHARACTERIZATION OF SUCH AMOUNTS IN THE UNDERLYING THIRD PARTY CLAIM.

MAXIMUM LIABILITY.  IN NO EVENT SHALL BITS’S OR THE CLIENT’S AGGREGATE LIABILITY ARISING OUT OF, RELATING TO, RESULTING FROM, OR IN CONNECTION WITH THE AGREEMENT, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PROCEEDING THE EVENT THAT GAVE RISE TO THE LIABILITY. FOR ANY CLAIM ARISING PRIOR TO COMPLETION OF THE TWELFTH MONTH THIS AGREEMENT HAS BEEN IN EFFECT, SUCH LIABILITY CAP SHALL BE CALCULATED BASED ON THE ANNUALIZED AMOUNT OF FEES TO BE PAID BY CLIENT.

ASSUMPTION OF RISK.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF THE SERVICES, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY BITS, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE SERVICES.

Section 6

INDEMNIFICATION

6.1 Indemnification of BITS by Client.  To the fullest extent permitted by Law, Client shall indemnify, defend, and hold BITS, its affiliates, and their respective officers, directors, employees, and agents (collectively, “BITS Indemnitees”) harmless from and against any and all third party claims, actions, liabilities, losses, damages, expenses, and costs (including, without limitation, reasonable attorneys’ fees with interest and disbursements), directly or indirectly, arising out of, related to, resulting from, or in connection with, in whole or in part, (a) Client’s use of the Services other than in accordance with this Agreement; (b) Client’s modification of the Services if any such modifications infringe upon any third party’s  intellectual property; (c) Client’s negligence or willful misconduct; (d) Client’s breach of this Agreement; or (e) Client’s violation of Law.  In addition, Client will be responsible for all costs and expenses, including, without limitation, reasonable attorneys’ fees with interest and disbursements, incurred by a BITS Indemnitee in enforcing any term or condition of this Agreement and Client will indemnify and hold harmless and promptly reimburse a BITS Indemnitee for such costs and expenses. 

6.2 Indemnification and Defense of Client by BITS.   To the fullest extent permitted by Law and notwithstanding any provision of this Agreement to the contrary, BITS shall indemnify, defend, and hold Client, its affiliates, and their respective officers, directors, employees, and agents (collectively, “Client Indemnitees”) harmless from and against any and all third party claims, actions, liabilities, losses, damages, expenses, and costs (including, without limitation, reasonable attorneys’ fees with interest and disbursements), directly or indirectly, arising out of, related to, resulting from, or in connection with, in whole or in part,  any action against Client brought by a third party to the extent that the action is based on a claim that the Services or Documentation directly infringe any U.S. intellectual property right.  In the event of an infringement claim under Subsection 6.2(d), BITS will pay any costs and damages finally awarded against a Client Indemnitee in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.  BITS’s obligations under the preceding paragraph with respect to a particular action are conditioned on (y) the Client Indemnitee promptly notifying BITS of the action in writing, (z) the Client Indemnitee giving sole control of the defense of the action to BITS (including any related settlement negotiations that do not adversely affect the Client Indemnitee’s business), and (c) the Client Indemnitee cooperating with BITS in the defense of the action.  Notwithstanding the foregoing, BITS will have no obligation or liability for any infringement action to the extent that it is based on (i) use of the Services for an unintended purpose, (ii) use of the Services in combination with other products that are not approved or implemented by BITS, or (iii) any modification of the Services made by a party other than BITS or its agent.  This section states BITS’s entire liability and Client’s sole and exclusive remedy for infringement actions. 

6.3 Indemnification Procedures.  At the request of the BITS Indemnitee or Client Indemnitee (as applicable) from time to time after any such claims, the indemnifying party shall at its sole expense defend, with counsel reasonably acceptable to the BITS Indemnitee or Client Indemnitee (as applicable), all claims, suits or proceedings arising out of the foregoing.  The indemnifying party shall be notified promptly of any such claims, suits or proceedings in writing and, if requested to defend said action, given full and complete authority, information and assistance for the defense of same, provided, however, the indemnifying party shall have no authority to enter into any settlement or compromise on behalf of the BITS Indemnitee or Client Indemnitee (as applicable) without the prior written consent of the BITS Indemnitee or Client Indemnitee (as applicable), which consent shall not be unreasonably withheld, delayed or conditioned.  In no event will the BITS Indemnitee or Client Indemnitee (as applicable) be required to consent to any settlement that: (a) does not include a release of all covered claims pending against the BITS Indemnitee or Client Indemnitee (as applicable); (b) contains an admission of liability or wrongdoing by the BITS Indemnitee or Client Indemnitee (as applicable); or (c) imposes any obligation upon the BITS Indemnitee or Client Indemnitee (as applicable) other than an obligation to cease using any infringing item.  In all events, the BITS Indemnitee or Client Indemnitee (as applicable) shall have the right to participate in the defense of any proceedings with counsel of its own choosing, at its expense.

Section 7

CUSTOM MODIFICATIONS

7.1 Custom Modifications.  Custom Modifications beyond those specifically covered in this Agreement will be submitted to Client for approval prior to commencement and billed in accordance with Section 7.2 below.  Unless explicitly stated otherwise in writing, all Custom Modifications shall be subject to this Agreement.

7.2 Fees; Payment.  The fees for all Custom Modifications shall be mutually agreed upon by the parties.  Client shall pay the invoiced amount for Custom Modifications upon receipt of such invoice, in accordance with Section 2.1 above.  Development work for Custom Modifications will not commence until paid by Client.  Any amount not paid within thirty (30) days after date of the invoice shall bear interest at the rate of 1.5% per month or the maximum rate allowed by Law, whichever is less.

Section 8

HOST SYSTEM SUPPORT

8.1 Support and Maintenance Services.  During the Term, BITS shall provide support and maintenance services, to Client in the use and operation of the Host System and Service as defined in Section 11.  Support and maintenance services will be provided by appropriately trained personnel of BITS.  BITS shall not be responsible for correcting Service Defects in any version of the Software other than the latest New Release of the Software.  BITS may provide bug fixes, corrections, modifications, enhancements, upgrades, Updates, and New Releases to the Service to ensure the functionality of the Service, as described in the Documentation, is available to users.

8.2 Training Services.  BITS shall provide Training Services to Client to assist with setup and use of the Software.  Client will be offered a limited number of online training sessions with BITS implementation staff.  Each training session will cover a different topic and area of the Software.  Client is responsible to include employees in session(s) that cover areas of the software applicable to their duties within Client’s organization.  Client may purchase additional Training Sessions at any time.  Scheduled training sessions in which Client does not show up or attend will be considered forfeited.

In addition, BITS will provide links to online Documentation and knowledge base articles that describe how to perform common tasks within the Software and a link to live chat with BITS’s support staff.

8.3 Audit Rights of BITS.  Upon notice, BITS shall have the right to audit Client’s use of the Services and Documentation to confirm compliance with this Agreement.  Client shall fully cooperate with all such audits which shall include, without limitation, providing full access to Client’s facilities and personnel.  For the avoidance of doubt, in no event will BITS be provided access to any system or information that contains the confidential information of a third party. If BITS determines in good faith that Client has violated this Agreement, then, in addition to any other rights and remedies available to BITS as a matter of law or equity, Client shall pay for all costs and expenses incurred by BITS in connection with the audit.

8.4 Additional Charges and Expenses.  In the event BITS provides any support and maintenance services beyond those set forth in Section 8.1, BITS shall invoice Client for, and Client shall pay, such additional support and maintenance services that are pre-approved in writing by the Client. BITS shall also invoice Client for, and Client shall pay, all expenses incurred as a result of additional support and maintenance services that are pre-approved in writing by the Client, including, without limitation, mailing expenses of any kind, and reasonable travel expenses, including, without limitation, airfare, meals, lodging, rental cars, parking fees, etc.

Additionally, if a mutually agreed training session is scheduled, and Client subsequently misses such session without prior notice of at least 2 hours, BITS reserves the right to charge a one hundred fifty-dollar $150 no-show fee for its time lost due to the no-show. Client shall pay BITS all such amounts upon receipt of any such invoice. Travel time to and from a Client site will be billed.  Any amount not paid within thirty (30) days after date of the invoice shall bear interest at the rate of 1.5% per month or the maximum rate allowed by Law, whichever is less.

8.5 Hosting Infrastructure, Maintenance, Updates.  BITS is committed to providing an industry-standard, secure, properly performing available hosted infrastructure. The Host System will reside on computer hardware and software systems which will be located in one or more secure, professionally managed third party data centers.  The Host System is monitored with notification and alerts to our support team to ensure both availability and performance. From time to time, scheduled system maintenance (“Scheduled Maintenance”) may be required. If practicable, Scheduled Maintenance will typically take place over a weekend and last not more than 1-2 hours. If practicable, Scheduled Maintenance will be planned to minimize the impact to the Service. BITS is not responsible for other infrastructure issues that do not directly affect availability of the Service, but that prohibit users from using the Services (like an outage of Client corporate network or internet connectivity).  Updates do not typically require system downtime or cause any impact to users. However, to minimize any impact to users, if practicable, Updates will be scheduled to occur outside of normal peak hours. If practicable, BITS will endeavor to provide no less than fifteen (15) calendar day’s prior written notice to Client of all Scheduled Maintenance to be performed on the Host System, such written notice including a description of all maintenance to be performed.  For emergency maintenance, BITS shall provide as much prior notice as practicable to Client and shall provide a description of all maintenance performed either prior to or after such emergency maintenance.

8.6 Personal Information; Data Security.

(a)          Without limiting any of BITS’s other obligations under this Agreement, to the extent that the Client Data contains “personal information” (or equivalent term or phrase as defined by applicable Law) of an individual (“Personal Information”), BITS shall hold any Personal Information that it receives in compliance with the requirements of this Agreement and all Data Privacy Laws relating to such Personal Information, including, but not limited to, the processing, storage, handling, security, storage, and transfer thereof.  BITS may have certain responsibilities prescribed by Data Privacy Laws as a processor of the Personal Information, and BITS hereby acknowledges such responsibilities to the extent required thereby for processors of data and agrees that such responsibilities shall be considered as a part of the Services.  BITS shall promptly carry out any request from Client with respect to Personal Information that is necessary to allow Client to comply with Data Privacy Laws regarding processing, storage, handling, collection, use, transfer, and transmission of Personal Information.  Subject to BITS having received Client’s written approval, BITS shall process and store all Personal Information in (i) the United States of America, and (ii) such other jurisdiction(s) as may be agreed by Client in writing, and shall not transfer to, or process or maintain Personal Information in any other jurisdiction(s) without Client’s written approval.  With respect to any given Personal Information, the applicable Data Privacy Laws are deemed to include the Data Privacy Laws of the country from which the information originated.

(b)          Notwithstanding anything to the contrary in this Agreement, BITS is specifically prohibited from (i) retaining, using, or disclosing the Personal Information for any purpose other than the specific purpose of performing the services specified in this Agreement or for business purposes explicitly permitted in this Agreement on behalf of Client (including retaining, using, or disclosing the Personal Information for a commercial purpose other than providing such services); (ii) selling Personal Information; and (iii) using Personal Information received either from a person or entity it services or from a consumer’s direct interaction with BITS for the purpose of providing services to another person or entity.  BITS certifies that it understands and will comply with these provisions.  To the extent BITS is contractually permitted by Client to receive, create, and/or use Deidentified Data, BITS shall (aa) take reasonable steps to ensure that the Deidentified Data cannot be associated with either a person or a household; (bb) publicly commit to maintain and use, and actually maintain and use, the data only in a deidentified form; (cc) publicly commit to not attempt to re-identify any Deidentified Data; and (dd) to the extent permitted by Client for BITS to provide any Deidentified Data to a related party or third party, require such recipient of Deidentified Data to comply with the requirements of this Section 8.6(b).  To the extent legally required, BITS agrees that Client shall be permitted, and BITS shall permit Client, to exercise reasonable oversight to monitor BITS’s compliance with this Section 8.6(b), and BITS shall promptly take appropriate steps to address any breach of this Section 8.6(b).  “Deidentified Data” means information that cannot reasonably be used to infer information about, or otherwise be limited to, an identified or identifiable individual, or a device linked to such an individual.  If any Data Privacy Law defines “deidentified data” (or similar term) differently than the immediately preceding sentence, the definition of Deidentified Data shall be deemed modified to the extent such Data Privacy Law is applicable in a particular context.

(c)           Notwithstanding anything in this Agreement to the contrary, BITS shall delete or return all Personal Information to Client as requested at the end of the provision of Services, unless retention of the Personal Information is required by Law.  BITS shall make available to Client all information in its possession necessary to demonstrate compliance with the obligations in this Section 8.6.

(d)          BITS promptly will honor any access or deletion request for Personal Information it receives and maintain reasonable security practices to meet any obligations around BITS management, as provided in Section 8.6(f) below, or if BITS will not comply with a deletion request it promptly shall explain the basis for the denial.  If BITS receives an access or deletion request directly from the consumer, BITS shall promptly notify Client, not respond to the request directly to the consumer, and promptly inform the consumer that it should submit the request directly to Client and, when feasible, provide the consumer with contact information for Client.  BITS will notify any service providers, contractors or third parties who may have accessed such Personal Information from or through BITS unless the Personal Information was accessed at the direction of Client, to delete the Personal Information, unless this proves impossible or involves disproportionate effort.

(e)          For purposes of applicable Law, both parties agree that there is no sale of personal data involved in BITS’s provision of services to Client.  For the avoidance of doubt, Client does not provide Personal Information to BITS for any valuable consideration.

(f)           BITS will maintain and comply with appropriate administrative, physical, and technical safeguards designed to (i) protect Personal Information and all other information received by BITS in connection with providing Services under this Agreement (collectively, “Affected Data”) against accidental or unlawful destruction, loss, alteration, and unauthorized disclosure or access, and (ii) provide a level of security appropriate to the risk represented by the processing

(g)          In the event of any impermissible disclosure, loss, theft, access, use, or destruction of Personal Information and/or Confidential Information, BITS shall immediately notify Client in writing and take all steps and actions reasonably necessary to mitigate all potential harm or further disclosure, loss, theft, access, use, or destruction of such Personal Information and/or Confidential Information.

Section 9

TERM; SUSPENSION; TERMINATION; EFFECT OF TERMINATION

9.1 Term.  The Term shall be defined by the Agreement between the parties.

9.2 Suspension.  BITS reserves the right to suspend Client’s access to and use of the Services for Client’s breach of this Agreement, or if BITS determines that Client’s use of the Services is causing, or may cause, immediate harm to BITS or to others.  BITS will work with Client to resolve issues that resulted in the suspension of the Services.  Client acknowledges and agrees that BITS will not be liable to Client or to any third party for any damages or liability that arises out of, relates to, or results from, the suspension.

9.3 Termination.  Each party has the right to terminate this Agreement or the delivery of any Services, in any case in whole or in part, pursuant to this Section 9.3 (Termination) for the other party’s breach of this Agreement, if the breaching party does not cure the applicable breach within ten (10) days after receipt of written notice describing such breach in reasonable detail. Either party have the right to terminate this Agreement immediately upon prior written notice if the other party shall apply for or consent to the appointment of a receiver, trustee or liquidator, file a voluntary petition-in-bankruptcy, admit in writing its inability to pay its debts as they become due, make a general assignment for the benefit of creditors, file a petition or an answer in any judicial proceedings seeking reorganization or arrangement with creditors or taking advantage of any insolvency law, or if an order, judgment or decree shall be entered against that party by a court of competent jurisdiction on the application of a creditor of such party, adjudicating such party bankrupt or insolvent, or approving a petition seeking reorganization of such party or appointing a receiver, trustee, or liquidator of such party and such order, judgment, decree or proceeding is not dismissed or vacated within a period of sixty (60) consecutive days.  BITS may terminate this Agreement immediately upon notice to Client if Client breaches Section 1.1 of this Agreement, without any cure period. Client may terminate this Agreement immediately upon notice to BITS if (a) BITS declares a Force Majeure Event that continues for five (5) or more business days, or (b) the Services are not available (as determined by BITS in good faith) for two (2) consecutive calendar months, or three (3) calendar months in a twelve (12) consecutive calendar month period.

9.4 Effect of Termination.  Upon termination or expiration of this Agreement:  (a) Client shall immediately return to BITS, all Documentation and BITS shall be permitted to immediately deactivate Client’s access to, and use of, the Services; (b) within a reasonable period of time after the date of termination or expiration of this Agreement, upon written request by Client BITS shall extract and deliver Client Data to Client in the format selected by BITS; and (c) after 90 days from the date of termination of expiration of this Agreement, BITS shall be permitted to remove or overwrite all Client Data from BITS’s systems; provided, however, that BITS may retain a copy of Client Data to the extent required by applicable Law.  All amounts due by Client upon termination of this Agreement shall be paid by Client when due. If Client terminates this Agreement pursuant to Section 9.3 above, within ten (10) business days of such termination BITS will refund to Client all prepaid but unused Fees. All provisions of this Agreement which by their nature should survive any termination or expiration of this Agreement will so survive and may be enforced at any time after the date of termination of expiration.

9.5 Liquidated Damages.  If this Agreement is terminated by BITS pursuant to Section 9.3 above, then Client acknowledges that the actual damages likely to result from such material breach are difficult to estimate as of the Effective Date and may be difficult for BITS to prove.  Accordingly, Client agrees that it shall pay to BITS, within ten (10) business days after the date of termination, the amount calculated as follows: one-half of the monthly Service Access Fee, plus applicable taxes and fees, for the balance of the Term (the “Liquidated Damages Amount”).  The parties intend that Client’s payment of the Liquidated Damages Amount would serve to compensate BITS for Client’s material breach and the parties do not intend for it to serve as punishment or penalty for any such material breach by Client.

Section 10

GENERAL

10.1 Entire Agreement.  The provisions herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, oral or written, and all other communications relating to the subject matter hereof.  No amendment or modification of any provision of this Agreement will be effective unless set forth in a document that purports to amend this Agreement and that is executed by both parties hereto.

10.2 Client’s Responsibilities.  Client shall be responsible for procuring, installing and maintaining all equipment and devices, telephone lines, internet connectivity, communications and data interfaces and other hardware necessary to access the Services including, without limitation, the system requirements specified in Section 1.1(f).

10.3 Assignment.  Neither party shall, directly or indirectly, by operation of law or otherwise, sell, transfer, assign, sublicense or subcontract this Agreement or any right or obligation hereunder without the prior, written permission of the other party.  Notwithstanding the foregoing, each party hereby consents to the other party assigning all of its rights or delegating all of its duties to one or more Affiliates, or to an acquiring or surviving entity in a merger or acquisition in which such assigning party is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of the assigning party’s assets.  Any assignment made in contravention of this provision is void.  This Agreement shall bind and inure to the benefit of the parties to the Agreement and their respective successors, representatives, and permitted assigns.

10.4 Payments.  All payments required under this Agreement shall be made to the BITS at its principal place of business in United States Dollars.

10.5 Intentionally Left Blank.

10.6 Force Majeure.  BITS shall not be liable for any delay or failure in performance of any obligation under this Agreement, which are caused by, or in any manner arise from, directly or indirectly, any cause beyond parties’ reasonable control (a “Force Majeure Event”).

10.7 Governing Law.  The validity, construction, and performance of this Agreement shall be governed exclusively by the Laws of the State of New York, United States of America, without regard to conflict of law principles.

10.8 Severability.  The provisions of this Agreement will be severable, and if any clause, sentence, paragraph, provision or other part of this Agreement will be adjudged by any court of competent jurisdiction to be invalid, such judgment will not affect, impair or invalidate the remainder of this Agreement, which remainder will continue in full force and effect.

10.9 Notices.  All notices sent, communicated or delivered to either of the parties hereto shall be in writing addressed to such party at its address as first set forth in this Agreement or at such other address as such party shall last have designated for such purpose by written notice to the other, and shall be deemed to have been effectively given five (5) days after having been posted by, postage‑paid Certified U.S. Mail, upon successful e-mail transmission (excluding notice of breach or termination which may not be sent by email) or, the next business day if delivered by overnight carrier.

10.10 Intentionally Left Blank.

10.11 Equitable Remedies.  Client acknowledges and agrees that a breach or threatened breach by Client of any of its obligations under this Agreement would give rise to irreparable harm to BITS for which monetary damages would not be an adequate remedy and in the event of a breach or a threatened breach by Client of any such obligations, BITS shall, in addition to any and all other rights and remedies that may be available to BITS at law, at equity, or otherwise in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.

10.12 No Third-Party Beneficiaries.  Except for the BITS Indemnities and the Client Indemnities, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

10.13 Intentionally Left Blank.

10.14 Non-Disclosure of Confidential Information.  The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication which is not intended to be disclosed to third parties.

Meaning of Confidential Information.  For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that: (i) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (ii) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; or (iii) should reasonably be recognized as confidential information of the disclosing party.  The term “Confidential Information” does not include any information or documentation that was: (w) already in the possession of the receiving party without an obligation of confidentiality; (x) developed independently by the receiving party, as demonstrated by the receiving party, without violating any obligations of confidentiality; (y) obtained from a source other than the disclosing party without an obligation of confidentiality; or (z) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party).  For purposes of this Agreement, in all cases and for all matters, Client Data shall be deemed to be Confidential Information unless it is subject to one of the aforementioned exceptions.

Obligation of Confidentiality.  During the Initial Term, each Renewal Term (if any), and at all times thereafter, the parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement.  The parties agree to require their respective employees, agents, and subcontractors to keep all Confidential Information confidential upon terms that are no less restrictive than those contained in this Agreement.

Cooperation to Prevent Disclosure of Confidential Information.  Each party shall use its reasonable efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information.  Without limiting the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person. If either party becomes legally obligated to disclose any of the other party’s Confidential Information, the party subject to the obligation shall notify the other party in writing promptly, unless such disclosure is not legally permitted, and shall cooperate with the other party at the other party’s expense in seeking a protective order or other appropriate remedy.

Surrender of Confidential Information upon Termination.  Upon termination of this Agreement each party shall, within five (5) calendar days from the date of termination, return to the other party all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which is in such party’s possession, custody, or control.  Should BITS or Client determine that the return of any Confidential Information is not feasible, such party shall destroy the Confidential Information and shall certify the same in writing within five (5) calendar days from the date of termination to the other party.  The obligations of this paragraph shall not affect the obligations of BITS or the rights of Client pursuant to Section 4.6(c).

10.15 Third Party Audits; Investigations; Subpoenas.  BITS may, from time to time, be required to respond to or comply with audit requests, investigations, subpoenas, and the like related to Client and Client’s business (collectively, “Information Requests”) from regulatory agencies and other third parties, including, without limitation, the state Attorneys General.  Client acknowledges that BITS will incur costs and expenses, including, without limitation, those related to data extraction, and reasonable attorneys’ fees and disbursements, in connection with such Information Requests.  Client agrees that Client shall promptly reimburse BITS for all reasonable costs and expenses (including, without limitation, those related to data extraction, and reasonable attorneys’ fees and disbursements) arising from BITS’s compliance with Information Requests.  This reimbursement obligation is in addition to and does not limit any other rights or remedies available to BITS under this Agreement or under Law.

Section 11

TECHNICAL SUPPORT; AUTHORIZED CONTACTS

BITS will provide to Client technical support (“Technical Support”) via email, live chat, phone, or support tickets through BITS’s customer service web portal between the hours of 9:00 AM and 5:00 PM Eastern Standard Time, on BITS regular business days (Monday through Friday excluding holidays). Technical Support may be changed, expanded, reduced or terminated at any time and without notice.

BITS is not obligated to provide assistance in connection with issues unrelated to the Service such as, without limitation, Client hardware issues, internet connectivity issues, viruses and Windows updates on Client’s computers.  Any support which is provided by BITS to address an issue which is determined to be unrelated to the Service shall be charged at a rate of $175 per hour, with a one (1) hour minimum and supplemental billing increments of thirty (30) minutes.  Any charges will be agreed upon between BITS and the Client prior to an invoice being initiated and support services performed.

Technical Support services to Client will be limited to those authorized by Client.  Client will provide BITS a list of Authorized Contacts who can make Technical Support requests.