BAFOEVAL - End User Master agreement

Welcome to Bafoeval!  We’re glad you’re here, and we hope you enjoy our services.

THESE TERMS OF SERVICE (the “Terms”) GOVERN CUSTOMER’S ACQUISITION AND USE OF BAFO.WORK LTD. (“Bafoeval”) SERVICES.  BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) SIGNING AN ORDER FORM THAT REFERENCES THESE TERMS, CUSTOMER AGREES TO THESE TERMS.  IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL REPRESENTS THAT THE INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE “CUSTOMER” SHALL REFER TO SUCH ENTITY.  THESE TERMS MAY BE AMENDED BY BAFOEVAL FROM TIME TO TIME, AND THE AMENDED TERMS WILL APPLY TO ANY REPORT CREDITS ACQUIRED AFTER THE EFFECTIVE DATE OF THE AMENDMENT AND ANY SERVICES ASSOCIATED WITH THOSE REPORT CREDITS.

UNDERSTANDING YOUR BUSINESS VALUATION

The fair market value of a business is the price at which the business would change hands between a willing buyer and a willing seller.  The actual price that a buyer might pay for a business, and the actual price at which a seller might sell the business, are both highly dependent on many factors that will vary from buyer to buyer and from seller to seller.  Accordingly, any valuation is only an estimate of the actual price that might be obtained on a sale of the business, and there may be a significant difference between the valuation and the actual price.

Bafoeval uses industry-recognized methods to estimate business value.  These methods are described in more detail in the Documentation.

Customers are encouraged to compare their Bafoeval results with results from alternative methods, such as the asking prices for similar businesses listed on business-for-sale websites. Bafoeval takes no responsibility for the accuracy of the numbers Customer enters into the Services, nor for any misunderstanding about the way the Services calculate the estimate of business value, nor for the consequences of using a Bafoeval valuation.

If you have any doubt about the most realistic value for your business, you are strongly encouraged to seek professional assistance from your accountant or from a business appraiser.  On your request, we can provide a referral to a qualified professional.

Bafoeval’s direct competitors are prohibited from accessing the Services, except with Bafoeval’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

These Terms were last updated on March 5th ●, 2019.

  1. DEFINITIONS

Definitions. In these Terms, the following terms have the following meanings:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Content” means information obtained by Bafoeval from publicly available sources or from third party content providers and made available to Customer through the Services.

“Customer” means, in the case of an individual accepting these Terms on his or her own behalf, such individual, or in the case of an individual accepting these Terms on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting these Terms.

“Customer Data” means data and information submitted by or for Customer to the Services, excluding Content.

“Documentation” means the applicable Bafoeval documentation, guides and policies, as updated from time to time, accessible at www.bafoeval.com or by login to the Services.

“Free Services” means Bafoeval services or functionality that may be made available to Customer to use without charge, and includes (without limitation) services or functionality that are designated as beta, pilot, limited release, developer preview or non-production.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Order Form” means an online order specifying the Services to be provided by Bafoeval to Customer, or an ordering document that is entered into between Customer and Bafoeval, including any addenda and supplements to that ordering document.

“Report Credit” means a credit that can be used for an evaluation report under the Services, as described below under “Report Credits”.

“Report Credit Term” means, for each Report Credit, the period during which such Report Credit can be used by Customer, as described below under “Report Credits”.

“Service Term” means any continuous period of time during which Customer has one or more unused Report Credits.

“Services” means the valuation services that are ordered by Customer under an Order Form, and made available online by Bafoeval. “Services” do not include Content.

“User” means, in the case of a Customer that is an individual, that individual, or, in the case of Customer that is a company or other legal entity, an individual who is authorized by Customer to use a Service, and to whom Customer (or, when applicable, Bafoeval at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer.

  1. BAFOEVAL RESPONSIBILITIES

Provision of Services. Bafoeval will (a) make the Services and Content available to Customer pursuant to these Terms, and the applicable Order Forms and Documentation, (b) provide applicable Bafoeval standard support for the Services to Customer at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime and (ii) any unavailability caused by circumstances beyond Bafoeval’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, supplier or Internet service provider failure or delay, or denial of service attack.

Protection of Customer Data. Bafoeval will maintain administrative, physical, and technical safeguards intended for the protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data. Upon written request by Customer made within 30 days after the effective date of termination or expiration of a Service Term, Bafoeval will make evaluation reports and Customer Data available to Customer for export or download.  There may be an additional charge for this service. After such 30 day period, Bafoeval will have no obligation to maintain or provide any evaluation reports or Customer Data.  Upon written request by Customer made during a Service Term or within 30 days after the effective date of termination or expiration of a Service Term, Bafoeval will delete or destroy all copies of Customer Data in its systems, unless legally prohibited.  There may be an additional charge for this service.

Free Services. From time to time, Bafoeval may make Free Services available to Customer at no charge. Customer may choose to try such Free Services or not in its sole discretion. Any use of Free Services may be subject to additional terms specified in the Documentation.

  1. USE OF SERVICES AND CONTENT

Report Credits. Unless otherwise provided in the applicable Order Form or Documentation, Customer will purchase and pay for the number of Report Credits stated in the applicable Order Form.  Each Report Credit may be used by Customer for an evaluation report under the Services.  If unused, a Report Credit expires at midnight, Pacific Time, on the 30th day after the day on which the Report Credit was purchased (for clarity, not counting the day of purchase as the first day).  However, if Customer purchases an additional Report Credit before an unused Report Credit expires, then the expiration of the unused Report Credit will be postponed until the time when the additional Report Credit expires.  There is no refund of fees paid for unused Report Credits.  Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Bafoeval regarding future functionality or features.

Example.  As an example: (a) On January 1, 2019 Company A purchases 5 Report Credits. The Report Credits may be used within the next 30 days, and will expire on January 31, 2019 (if unused). (b) On January 15, 2019 Company A uses 3 of the 5 Report Credits to generate valuation reports.  The remaining 2 Report Credits will expire on January 31, 2019. (c) On January 30, 2019 Company A purchases 1 more Report Credit. The new Report Credit may be used within the next 30 days, and will expire on March 1, 2019 (if unused). The purchase of the new Report Credit also postpones the expiration of the 2 unused Report Credits that Company A purchased on January 1, 2019 by another 30 days, so that they will also expire on March 1, 2019 (if unused).  Company A now has 3 Report Credits, all of which expire on March 1, 2019 (if unused).

Usage Limits. Services and Content may be subject to usage limits specified in the Order Forms and Documentation. If Customer exceeds a contractual usage limit, Bafoeval may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Bafoeval’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Bafoeval’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section.

Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with these Terms, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Bafoeval promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with these Terms, the Documentation, any acceptable use policy that forms part of the Documentation, the Order Forms, and applicable laws. Any use of the Services in breach of these obligations by Customer or Users that in Bafoeval’s judgment threatens the security, integrity or availability of Bafoeval’s services, may result in Bafoeval’s immediate suspension of the Services.  However Bafoeval will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained in the Services, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Bafoeval intellectual property except as permitted under these Terms, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted in these Terms or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent, (l) use the Services or Content in the presence of a third party who is a competitor of Bafoeval, (m) provide, disclose, divulge or make available to, or permit use of the Services or Content by persons other than Users, without Bafoeval’s prior written consent, (n) access, tamper with, or use any non-public areas of the Services or Bafoeval’s computer systems, (o) attempt to probe, scan, or test the vulnerability of the Services or any related system or network or breach any security or authentication measures used in connection with the Services or such systems or networks, (p) use the Services in an abusive way contrary to their intended use, to the Documentation, or to Bafoeval’s reasonable instructions, or (q) systematically retrieve Content or other data or content from the Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise.

Removal of Content. If Customer receives notice that Content must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or any acceptable use policy, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Bafoeval’s judgment continued violation is likely to reoccur, Bafoeval may disable the applicable Content and/or Service. If requested by Bafoeval, Customer shall confirm such deletion and discontinuance of use in writing and Bafoeval shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if Bafoeval is required by any third party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, Bafoeval may discontinue Customer’s access to Content through the Services.

  1. FEES AND PAYMENT

Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified in these Terms or in an Order Form, (a) fees are based on Report Credits purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased.

Invoicing and Payment. Customer will provide Bafoeval with valid and updated credit card or debit card information, or with a valid purchase order or alternative document reasonably acceptable to Bafoeval. If Customer provides credit card or debit card information to Bafoeval, Customer authorizes Bafoeval to charge such credit card or debit card for all Services listed in the Order Form for the initial Report Credits and any additional Report Credits acquired from time to time.  Such charges shall be made in advance, or in accordance with any different billing method stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card or debit card, Bafoeval will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Bafoeval and notifying Bafoeval of any changes to such information.

Overdue Charges. If any invoiced amount is not received by Bafoeval by the due date, then without limiting Bafoeval’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month (equivalent to 19.56% per annum), or the maximum rate permitted by law, whichever is lower, and/or (b) Bafoeval may condition future Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section.

Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue (or 10 or more days overdue in the case of amounts Customer has authorized Bafoeval to charge to Customer’s credit card or debit card), Bafoeval may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under these Terms, the Order Forms, and such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct card whose payment has been declined, Bafoeval will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.

Payment Disputes. Bafoeval will not exercise its rights under the “Overdue Charges” or “Suspension of Service” section if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

Taxes. Bafoeval's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, GST, HST, sales, use, value-added or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases. If Bafoeval has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Bafoeval will invoice Customer and Customer will pay that amount unless Customer provides Bafoeval with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Bafoeval is solely responsible for taxes assessable against it based on its income, property and employees.

  1. PROPRIETARY RIGHTS AND LICENSES

Reservation of Rights. Customer agrees that all trade-marks, inventions (whether patentable or not), patent applications, patents, works protected by copyright, trade secrets, know-how and other intellectual property rights in or related to the Services and Content are the exclusive property of Bafoeval, its Affiliates, its licensors and its Content providers. Subject to the limited rights expressly granted these Terms, Bafoeval, its Affiliates, its licensors and its Content providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer other than as expressly set forth in these Terms.

Access to and Use of Content. Customer is permitted to access and use applicable Content subject to the terms of applicable Order Forms, these Terms and the Documentation.

License by Customer to Bafoeval. Customer grants Bafoeval, its Affiliates and applicable contractors a worldwide, limited-term, royalty-free license to host, copy, use, transmit, and display any Customer Data for use by Customer with the Services, as appropriate for Bafoeval to provide and ensure proper operation of the Services and associated systems in accordance with these Terms.  Customer grants to Bafoeval , its Affiliates and applicable contractors a worldwide, perpetual, irrevocable, royalty-free license: (a) to retain and use copies of Customer Data that have been de-identified; and (b) to disclose to third parties copies of Customer Data that have been de-identified and aggregated with similar data of other customers, in each case for the business purposes of Bafoeval, including (without limitation) for Bafoeval’s internal statistical purposes, to monitor and improve Bafoeval’s products and services, to conduct research and analysis related to Bafoeval’s business, products and services, and to develop new products and services.

License by Customer to Use Feedback. Customer grants to Bafoeval and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Bafoeval’s or its Affiliates’ services.

  1. CONFIDENTIALITY

Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data. Confidential Information of Bafoeval includes the Services and Content, and the terms and conditions of these Terms and all Order Forms (including pricing). Confidential Information of each party includes the business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.  For the avoidance of doubt, the obligations in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Bafoeval services.

Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those in these Terms. Neither party will disclose these Terms or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Bafoeval may disclose these Terms and any applicable Order Form to a subcontractor to the extent necessary to perform Bafoeval’s obligations under these Terms, under terms of confidentiality materially as protective as set forth in these Terms.

Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

  1. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

Bafoeval Warranties. Bafoeval warrants that during an applicable Report Credit Term (a) the Services will perform materially in accordance with the applicable Documentation, and (b) Bafoeval will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections.

Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED OR STATUTORY WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND FREE SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.  BAFOEVAL DOES NOT WARRANT THAT THE SERVICES OR CONTENT ARE EXEMPT FROM ERRORS, THAT ALL ERRORS MAY BE DETECTED OR CORRECTED, THAT USE OF THE SERVICES OR CONTENT AND DEVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SERVICES OR ANY RESULTS GENERATED BY THE SERVICES COMPLY WITH ANY LAWS APPLICABLE TO CUSTOMER. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES OR CONTENT REMAINS WITH CUSTOMER.

  1. MUTUAL INDEMNIFICATION

Indemnification by Bafoeval. Bafoeval will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service (other than a Free Service) infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, legal fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Bafoeval in writing of, a Claim Against Customer, provided Customer (a) promptly gives Bafoeval written notice of the Claim Against Customer, (b) gives Bafoeval sole control of the defense and settlement of the Claim Against Customer (except that Bafoeval may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability), and (c) gives Bafoeval all reasonable assistance, at Bafoeval’s expense. If Bafoeval receives information about an infringement or misappropriation claim related to a Service, Bafoeval may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Bafoeval’s warranties under “Bafoeval Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with these Terms, or (iii) terminate Customer’s unused Credit Reports and refund Customer any prepaid fees for those Credit Reports. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer, (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Bafoeval, if the Services or use thereof would not infringe without such combination, (3) a Claim Against Customer arises from Free Services, or (4) a Claim against Customer arises from Content, or Customer’s breach of these Terms, the Documentation or applicable Order Forms.

Indemnification by Customer. Customer will defend Bafoeval against any claim, demand, suit or proceeding made or brought against Bafoeval by a third party alleging that any Customer Data or Customer’s use of Customer Data with the Services, infringes or misappropriates such third party’s intellectual property rights or other rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of these Terms, the Documentation, or Order Form (each a “Claim Against Bafoeval”), and will indemnify Bafoeval from any damages, legal fees and costs finally awarded against Bafoeval as a result of, or for any amounts paid by Bafoeval under a settlement approved by Customer in writing of, a Claim Against Bafoeval, provided Bafoeval (a) promptly gives Customer written notice of the Claim Against Bafoeval, (b) gives Customer sole control of the defense and settlement of the Claim Against Bafoeval (except that Customer may not settle any Claim Against Bafoeval unless the settlement unconditionally releases Bafoeval of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.

Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

  1. LIMITATION OF LIABILITY

Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE SERVICES OR THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” OR “INDEMNIFICATION BY CUSTOMER” SECTIONS ABOVE.

Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

  1. TERM AND TERMINATION

Term. These term of the agreement under these Terms commences on the date Customer first accepts these Terms and continues until terminated by either Bafoeval or Customer providing notice to the other.  Bafoeval may provide such notice of termination to Customer by sending the notice to the email address provided by Customer.

Termination. A party may terminate these Terms for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Refund or Payment upon Termination. If these Terms are terminated by Customer in accordance with the “Termination” section, Bafoeval will refund Customer any prepaid fees covering the unused Report Credits on the effective date of termination. If these Terms are terminated by Bafoeval in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Bafoeval for the period prior to the effective date of termination.

Surviving Provisions. The sections titled “Fees and Payment”, “Proprietary Rights and Licenses”, “Confidentiality”, “Disclaimers”, “Mutual Indemnification”, “Limitation of Liability”, “Refund or Payment upon Termination”, “Surviving Provisions” and “General Provisions” will survive any termination or expiration of these Terms, and the section titled “Protection of Customer Data” will survive any termination or expiration of these Terms for so long as Bafoeval retains possession of Customer Data.

  1. GENERAL PROVISIONS

Export Compliance. The Services, Content and other Bafoeval technology may be subject to export laws of Canada, the United States and other jurisdictions. Bafoeval and Customer each represents that it is not named on any Canadian or U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a Canadian or U.S.-embargoed country or region, or in violation of any Canadian or U.S. export law or regulation.

Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

Entire Agreement and Order of Precedence. These Terms, the Order Forms and the Documentation are together the entire agreement between Bafoeval and Customer regarding Customer’s use of Services and Content and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (a) the applicable Order Form, (b) these Terms, and (c) the Documentation. Titles and headings of sections of these Terms are for convenience only and shall not affect the construction of any provision of these Terms.

Amendment of these Terms.  Bafoeval may amend all or any part of these Terms by adding, deleting, or varying the content of these Terms.  These amendments may be made at any time and from time-to-time in Bafoeval’s discretion, and could occur very close together, or very far apart, depending on the circumstances.  Bafoeval will provide Customer with notice of the proposed amendments by posting an amended version of these Terms with a new version date.  Bafoeval will include a link to the previous version of the Terms beneath the new version date.  The amendments will take effect 30 days after the date on which the amended version is posted.  Prior to that date, the previous version of the Terms will continue to apply.  The amended terms shall apply to any Report Credits purchased after the effective date of the amendment, and any Services associated with those Report Credits. If Customer purchases any Report Credits after the effective date of the amendment, then Customer is deemed to have accepted the amendments.

Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

Third-Party Beneficiaries. There are no third-party beneficiaries under these Terms.

Waiver. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right.

Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of these Terms will remain in effect.

Assignment. Neither party may assign any of its rights or obligations these Terms, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign these Terms in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate these Terms upon written notice. In the event of such a termination, Bafoeval will refund Customer any prepaid fees covering the remainder of all unused Credit Reports after the effective date of such termination. Subject to the foregoing, these Terms will bind and enure to the benefit of the parties, their respective successors and permitted assigns.

Manner of Giving Notice. Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective upon (a) personal delivery, (b) the fifth business day after mailing, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.

Governing Law; Forum. This Agreement shall be governed and construed in accordance with the laws in force in the Province of British Columbia, Canada, without giving effect to principles of conflicts of law. The courts having jurisdiction in Vancouver, British Columbia shall have exclusive jurisdiction in respect of any dispute related to this Agreement.

Language. The parties have expressly requested that this Agreement and all related documents, including the Purchase Order, be drawn up in English and that all modifications thereto can be made in this language. Les parties ont expressément demandé que ce contrat et tous les documents connexes, incluant la proposition et le bon de commande, soient rédigés en anglais et que toute modification à ceux-ci puissent se faire également dans cette langue.

Quebec Waiver. Customer hereby waives any rights it may have pursuant to articles 2126 and 2129 of the Civil Code of Québec, and acknowledges that its sole rights and recourses with respect to termination of this Agreement are those set forth in the “Term and Termination” section.

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