Terms & Conditions
Updated October 2, 2024
PLEASE READ AND REVIEW BUXTON’S GENERAL TERMS AND CONDITIONS ("TERMS AND CONDITIONS”) CAREFULLY. THE TERMS AND YOUR STATMENT OF WORK AND/OR ORDER FORM(S) (“ORDER DOCUMENT(S)”) TOGETHER FORM A LEGAL AND BINDING AGREEMENT (THE “AGREEMENT”) BETWEEN BUXTON COMPANY, LLC (“BUXTON”), A DELAWARE LIMITED LIABILITY COMPANY, AND YOU, THE CLIENT AS REFLECTED IN YOUR ORDER DOCUMENT OR OTHERWISE ASSOCIATED WITH YOUR ACCOUNT (“CLIENT” OR “YOU”) TOGETHER WITH BUXTON, THE “PARTIES”, AND EACH, A “PARTY”. YOUR RIGHT TO ACCESS AND USE THE PRODUCT AND ANY SERVICES (AS LISTED IN YOUR ORDER DOCUMENT) IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THE AGREEMENT. BY SIGNING AN ORDER DOCUMENT OR ACCESSING AND USING A PRODUCT OR SERVICE, YOU AGREE TO BE BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS AND CONDITIONS.
BUXTON’S PRIVACY POLICY IS AVAILABLE AT HTTPS://WWW.BUXTONCO.COM/PRIVACY-POLICY. THIS PRIVACY POLICY (“PRIVACY POLICY”) RELATES TO THE PRODUCTS AND SERVICES PROVIDED THROUGH OUR WEBSITE, WEB APPLICATIONS AND OTHER MEANS (“SERVICES”) AND SETS OUT HOW BUXTON COMPLIES WITH CURRENT DATA PROTECTION LAWS. AS WELL, THIS PRIVACY POLICY DESCRIBES HOW WE COLLECT, USE AND DISCLOSE CERTAIN PERSONAL DATA. PRIVACY POLICY DOES NOT COVER THE PRACTICES OF COMPANIES BUXTON DOES NOT OWN OR CONTROL OR PEOPLE BUXTON DOES NOT MANAGE.
1. Scope of Work.
Buxton is the developer and owner of customer analytics tools, including all enhancements, add-on modules, add-on services, training materials, derivatives, updates, fixes, improvements, or modifications to such tool which are now in existence or hereafter created (“Product(s)”). Some Products may be accessible through a web-based portal located at https://id.buxtonco.com/ or will be provided to You by Buxton. The Product enables You to submit information and data, including but not limited to customer records, customer transactions, website visitation data, and sales data (“Client Data”). When You submit Client Data to the Product, such Client Data is integrated into the Product, may be made available within the Product, and may be used to create or generate analytics, data, results, links, reports, documents, and other information (“Results”). Subject to these Terms and Conditions, Buxton hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right to access and use the Product and the corresponding Results solely for Your legitimate, day-to-day internal business operations. “Results” include analytics, data, results, links, reports, documents and any information generated by or derived from, and made available to You through, or by virtue of Your use of the Product.
As well, in accordance with these Terms and Conditions, You may engage Buxton and Buxton agrees to perform certain services as set forth in the Order Document in a professional, timely and competent manner ("Service(s)").
For the sake of clarity, the foregoing right to access and use granted to You only applies to an add-on module and/or add-on Service if such module and/or Service is expressly identified in an Order Document signed by You and accepted by Buxton and You will pay all fees associated with such module and/or Service. You may only authorize Your employees and officers to access and use the Product on Your behalf (collectively, “Authorized Users”). Once You deem an employee or officer an Authorized User, the individual is an Authorized User regardless of whether s/he is actively accessing the Product at any given time. Depending on the Product, the number of Authorized Users may not exceed the number identified in the Order Document signed by You. Once You have executed an Order Document, created Your Client Product Account (“Account”), and paid the fees set forth in the Order Document, depending on the Product or Service, Buxton may provide You with user name and password credentials for use by Authorized Users to verify their identity and authorization to access and use the Product (“Access Credentials”). You acknowledge and agree that You and any Authorized Users’ access to and use of the Product, Services and any Results is for the sole use of Your employees and any sharing of the Access Credentials with third parties is strictly prohibited all of which is dependent upon their ongoing compliance with these Terms and Conditions. To the extent Buxton offers You an opportunity to access and use add-on modules and/or add-on Services, You and Buxton will enter into an additional Order Document regarding such add-on modules and/or add-on Services, the terms of which are hereby incorporated by reference and form part of the Agreement. If there is a conflict between these Terms and Conditions and any Order Document, the provisions of these Terms and Conditions will govern and control.
2. Fees.
You shall pay the amount for the Product or Service as set forth in the corresponding Order Document (“Fees”) and any other amount applicable to add-on modules or add-on Services ordered by You. Your obligation to pay such Fees shall begin on the execution of the Order Form ("Start Date"). Buxton will send invoices for the Fees by email, regular mail or both. If indicated on the Order Document as an Auto Renewal, in addition to anything set forth herein, Buxton may: (a) on each anniversary of the last day of the calendar month in which the Start Date occurred, increase the Fees by five percent (5%) and (b) at any time during a Renewal Term increase the Fees or charge other fees for any portion of the Product or Service, provided, that if You do not agree to the increase or charge implemented solely under this Section 2, then You may give Buxton written notice of termination within ninety (90) days of Buxton’s notice of such increase or charge, in which case You shall continue to pay the Fees in place before the proposed increase or charge until the last day of the calendar month in which Your notice of termination is delivered, and this Agreement shall terminate with respect to that portion of the Product or Service on such date. Buxton accepts payment by check, credit card or bank wire. By providing Buxton with credit card or checking account information for payment, You hereby authorize Buxton to charge the account on record for all Fees due. You agree that all Fees are nonrefundable except as expressly set forth herein. Any travel that might be required of Buxton that would be incremental to the Fees listed in the Order Document will be reimbursed to Buxton personnel at cost, subject to Your prior approval and travel policies. If You request Services not specified in an Order Document, the Parties shall enter into an additional Order Document or amendment, setting forth the additional Services, Fees and other mutually agreed upon terms. All Fees and other amounts payable under this Agreement are exclusive of taxes, levies, duties, or similar governmental assessments, including value-added, sales, use, excise, or withholding taxes (collectively, "Taxes"). You shall be responsible for the payment of all such Taxes imposed on Your use of the Products or Services under these Terms and Conditions, excluding only taxes based solely on Buxton’s net income. If Buxton is required to collect and remit any Taxes, Buxton will include such Taxes in the invoice, and You agree to pay the amount unless You provide Buxton with a valid tax exemption certificate authorized by the appropriate taxing authority and You shall be responsible for all penalties, fines, and other liabilities related to the improper claim of a tax exemption. If any applicable law or regulation regarding Taxes changes during Your Term and such changes result in an increased tax liability for Buxton, You agree that Buxton may adjust the pricing to reflect the additional Taxes payable. For Clients based in the United States, any applicable Taxes will be determined based on the laws and regulations of the taxing authority(ies) governing the "Ship To" location provided by You in the Order Document. Where Taxes are based upon the location(s) receiving the benefit of the Products or Services, You have an ongoing obligation to notify Buxton of such location(s) if different than Your business address listed in the applicable Order Document. If You are required by law to withhold any Taxes from the payments due to Buxton, the amount payable by You shall be increased such that the net amount received by Buxton, after withholding or deduction of such Taxes, shall equal the amount that would have been received in the absence of such withholding or deduction. You shall promptly provide Buxton with a receipt or other documentation reasonably requested by Buxton to confirm payment of such Taxes. and You shall be responsible for all penalties, fines, and other liabilities related to the improper claim of exemption.
3. Reservation of Rights.
Except with respect to any Third-Party Materials (defined below), Buxton is and shall remain the sole and exclusive owner of all right, title, and interest in and to (a) the Product, (b) the Results, (c) data and information related to You or Your Authorized Users’ access to and use of the Product or the Results, including, data and information that is used by Buxton to compile statistical and performance information related to the provision and operation of the Product (“Resultant Data”), (d) any inventions, creative works, or tangible embodiments of Feedback (defined below) reduced to practice, conceived, developed, created, produced, or authored by or on behalf of Buxton, and (e) all patent, copyright, trademark, trade secret, database protection, and intellectual property and proprietary rights (“Intellectual Property Rights”) in or related to the foregoing. The applicable third-party suppliers own all right, title, and interest, including all Intellectual Property Rights, in and to any Third-Party Materials. You have no right, license, or authorization with respect to any of the foregoing except the limited rights set forth in Section 1 above. Without limiting Buxton’s rights, You hereby acknowledge Buxton’s right to collect, develop, use and authorize others to use Resultant Data.
4. Changes to Services and Terms and Conditions.
Buxton reserves the right, in its sole discretion, to make any changes to the Product or the Results, in whole or in part, that it deems necessary or useful, including: (a) to maintain or enhance: (i) the quality or delivery of Buxton's Services to its clients; (ii) the competitive strength of or market for Buxton's Services; or (iii) the Product’s cost efficiency or performance; (b) to comply with any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction (“Law”), or (c) based on the availability of third-party services or Third-Party Materials.
Buxton has the right to modify these Terms and Conditions at any time and for any reason, including as its business evolves and as may be necessary, in Buxton’s sole discretion, to accommodate new features for the Product or to protect the Product. If Buxton materially modifies the Terms and Conditions, Buxton will give You notice that the Terms and Conditions have been modified at the email address associated with Your Account or by messaging through the Product. The modified Terms and Conditions will be posted at https://www.buxtonco.com/terms-conditions, and You are responsible for reviewing this site on a regular basis to make sure You and Your Authorized Users remain in compliance with the most up-to-date version of the Terms and Conditions at all times. Material modifications will become effective on the date set forth in Buxton’s notice and all other modifications will become effective upon posting on the website. You hereby agree to comply with and be bound by all terms and conditions in the Terms and Conditions in effect at the time You or Your Authorized Users access or use the Product. You further agree that You or Your Authorized User’s use of or access to the Product after the effective date of any modifications constitutes Your acceptance of the modified Terms and Conditions.
5. Suspension of Services.
Buxton may suspend or otherwise deny You or Your Authorized User's access to or use of all or any part of the Product, Third-Party Materials, and/or the Results for any reason, without incurring any resulting obligation or other liability and with or without notice to You, including if: (a) required by applicable Law or Buxton receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Buxton to do so or (b) Buxton believes, in its sole discretion, that: (i) You or any Authorized User has failed to comply with any term of the Agreement or accessed or used (or intends to access or use) the Product or the Results for a purpose not expressly authorized by the Agreement; or (ii) You or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Product, Third-Party Materials, or the Results. This provision does not limit any of Buxton's other rights or remedies, whether at law, in equity, or under the Agreement.
6. Use Restrictions.
You shall not and shall not permit any other person or entity to access or use the Product, the Results, or any third-party software, data, content, or components of or relating to the Product (“Third-Party Materials”) except as expressly permitted by the Agreement and/or any applicable third-party agreements governing Third-Party Materials. For purposes of clarity and without limiting the generality of the foregoing, You shall not and shall not permit any other person or entity to: (a) copy the Results (except for Your internal business purposes and as set forth in Section 6.1), the Product, or Third-Party Materials or modify or create derivative works or improvements of the Product, the Results, or any Third-Party Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Product, the Results (except that You may distribute and make available the Results solely as expressly permitted under Section 6.1), or any Third-Party Materials to any other person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Product or any Third-Party Materials, in whole or in part; (d) bypass or breach any security device or protection used by Buxton or a third-party supplier or access to or use of the Product, Third-Party Materials, or the Results other than by an Authorized User through the use of his or her own then-valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Product, the Results, or Third-Party Materials any information or materials that are unlawful or injurious or contain, transmit, or activate any harmful or disruptive software, hardware, or other technology or device (“Harmful Code”); (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Product or Buxton's provision of Services to any third-party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, terms and conditions, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Product, the Results, or any Third-Party Materials; (h) access or use the Product, the Results, or any Third-Party Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third-party or that violates any applicable Law; (i) access or use the Product, the Results, or any Third-Party Materials for purposes of competitive analysis or the development, provision, or use of a competing software service or product or any other purpose that is to Buxton's or its third-party suppliers’ detriment or commercial disadvantage; (j) upload or submit personal information or personally identifiable information (other than the information necessary to set up Your Account) through the Product or otherwise provide such information to Buxton, (k) use any GPS based tools and or reports to identify or track individuals or people groups or to study sensitive areas such as abortion clinics, adult venues, political events, military bases, prisons, gun stores, houses of worship, etc. or where prohibited by law (such as in Washington state), healthcare facilities, (l) implement a virtual boundary (geofence) for the purpose of identifying or inferring consumer health data where prohibited by federal, state or local laws or where such laws require consumers’ affirmative consent for the implementation of such virtual boundary or (m) otherwise access or use the Product, the Results, or any Third-Party Materials beyond the scope of the authorization granted under this Agreement or any applicable third-party agreement governing Third-Party Materials.
6.1. Permitted Uses of Results.
You may share the Results with third-parties in the United States with whom You do business with in the ordinary course and scope of Your legitimate business operations only via the functionality provided within the Product (which specifically allows You to share a read-only format of the Results via a link to the Product); however, You and Your Authorized Users shall not, and shall not permit any other person or entity to, rent, lease, lend, sell, sublicense, assign or otherwise use the Results in any way that is competitive to Buxton or for any purpose that is detrimental to Buxton or results in Buxton being at a commercial disadvantage. You agree that such third parties may not share, distribute, disclose, transmit, or reproduce the Results or use the Results for any purpose other than the limited purpose for which You and the third-party have engaged in a business relationship. You agree to make clear to all such third parties that the Results are provided “AS IS” with no warranties of any kind and that any use of such the Results is at the third-party’s risk.
7. Client Obligations.
You have and will retain sole control over and responsibility for: (a) all access to and use of the Product, the Results, and any Third-Party Materials by or through Your Account or systems, including through the Access Credentials assigned to Your Account or through links provided by or through the Product or via email from Buxton; (b) Your information technology infrastructure, including computers, software, hardware, databases, electronic systems, database management systems, and networks; and (c) all conclusions, decisions, acts, or omissions based on You and Your Authorized Users’ access to and use of the Product, the Results, or Third-Party Materials and all conclusions, decisions, acts, or omissions based on any third-party access to or use of the Results. You shall employ all physical, administrative, and technical controls and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials to Your Authorized Users and to protect against any unauthorized access to or use of the Product or the Results. You are solely responsible for obtaining and maintaining, at Your own expense, any equipment, hardware, and third-party software necessary to access and use the Product, including internet access and You will notify Buxton if You require stronger password configuration settings than the standard provided. You shall also provide and maintain accurate, complete, and current Account information, including contact information, in connection with Your Account and You will notify Buxton of any changes made to any technical or administrative contact information in a timely matter. You acknowledge that if You fail to do so, You may not receive important notices from Buxton, and Buxton shall not be liable for the failure of any notices to reach You due to inaccurate, outdated, or incomplete contact information. You shall develop Your own disaster recovery and business continuity plans that address potential disruptions in accessing Buxton’s Services. You shall implement policies and procedures to protect Your systems from unauthorized or accidental use, modification, or deletion. You shall immediately notify Buxton of any security incidents that may affect Buxton and its Products or Services. You shall provide all cooperation and assistance as Buxton may reasonably request to enable Buxton to exercise its rights and perform its obligations under and in connection with the Agreement. You shall cooperate with Buxton with respect to Buxton’s investigation and enforcement of the Agreement. Buxton may review Your or Your Authorized Users’ use of the Product or the Results, but it has no duty to do so. If You become aware of any actual or threatened activity prohibited by the Agreement, You shall, and shall cause Your Authorized Users to, immediately: (y) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (z) notify Buxton in writing of any such actual or threatened activity. You accept the risks associated with, and will be responsible and primarily liable for, activity that occurs in connection with Your Account and Access Credentials, whether or not You authorized such activity, including any violation of Buxton’s acceptable use policies. You shall also be responsible and primarily liable for any act or omission by Authorized Users or any other third parties, and any act or omission by Authorized Users or such third parties that would constitute a breach of the Agreement if committed by You shall constitute a breach of the Agreement by You.
8. Client Data.
8.1 Client Data.
As between You and Buxton, You are and will remain the sole and exclusive owner of all right, title, and interest in and to Your Client Data; however, You acknowledge and agree that Client Data does not include any Resultant Data or any Results or any Intellectual Property Rights relating thereto. You grant to Buxton a non-exclusive, fully-paid, royalty-free, perpetual, irrevocable, worldwide, sublicensable right and license to use, reference, copy, modify, create derivative works from, display, publish, and distribute the Client Data, including for the purposes of: (i) inclusion in the Results and Resultant Data; (ii) inclusion in other Buxton products and services, whether directly or indirectly, including without limitation, Buxton products and services that are sold on a stand-alone basis and those that are integrated into third party products and services; (ii) use in products or services which may be sold or licensed to third parties by Buxton or its distributors; and (iii) Buxton’s business use, including without limitation, use in any manner chosen by Buxton, including but not limited to, the use of such Client Data to generate, use, and publish aggregate statistical information (“Aggregate Data”). Client Data submission must meet Buxton’s minimum data requirements and must contain information on Your customer accounts.
8.2 Marketing Release.
You also agree that Buxton may use Your name and logo to identify You as a Buxton client and identify the types of Products and/or Services Buxton provides to You for marketing purposes.
8.3 Protection of Client Data.
Buxton is committed to protecting and respecting Your privacy and has implemented policies, procedures, and safeguards to comply with all federal, state or local data protection laws applicable to Buxton. Buxton will maintain administrative, physical, and technical safeguards at a commercially reasonable level, including measures for preventing unauthorized access, use, modification, deletion and disclosure of Client Data by Buxton personnel. Before sharing Client Data with any of Buxton’s third-party service providers, Buxton will ensure that the third-party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Client Data and preventing unauthorized access. Buxton will only use and disclose Client Data as provided for in the Agreement and as required to do so by law. Buxton shall not name You as the source of any Aggregate Data to any third party unless required to do so by legal process or given permission by You to do so. Buxton will not sell Client Data submitted by You as a stand-alone product to any third parties; however, You acknowledge that any Aggregate Data may be included in Results so long as You are not named in such Results.
8.4 Survival of License and Data Usage Post-Termination.
The foregoing license shall survive the termination of these Terms and Conditions. This license shall supersede and control over any separate confidentiality or non-disclosure agreement between the parties except for Business Associate Agreements (“BAAs”) governing Buxton’s obligations with respect to Protected Health Information (defined below), inasmuch as Buxton shall be permitted to retain any Client Data provided to Buxton and use such Client Data solely to the extent permitted by the license granted to Buxton above. If You provide Client Data to Buxton after termination of the Terms and Conditions, this section shall apply to that Client Data notwithstanding termination of the Terms and Conditions. Buxton shall own all rights, title, and interest in the Results and to any other materials, products, or services created by or on behalf of Buxton in any form containing or derived from the Client Data (or any part thereof), provided that the foregoing does not name You as the source of the Client Data, and You shall have no ownership, authorship, or moral rights therein.
9. Client’s Representations and Warranties.
You represent, warrant, and covenant to Buxton that (i) the individual who signed the Order Document is an authorized representative who has authority to sign on behalf of, and bind, You, (ii) that all of the Client Data submitted to Buxton shall be true, accurate, and complete to the best of Your knowledge and belief as of the dates of submission, (iii) to the extent the Client Data contains any personal information about consumers, You collected any Client Data directly from consumers in the United States and have provided to them all notices required by applicable laws concerning the collection or use of personal information (including the California Consumer Privacy Act and any other applicable law concerning the privacy or protection of personal data), (iv) You own or otherwise have and will continue to have the necessary rights and consents in and relating to the Client Data and any Feedback so that Buxton’s use of such Client Data or Feedback in accordance with the Agreement does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any third-party or violate any applicable Law, and (v) You will abide by all federal, state and local data privacy and protection laws, including by refraining from using the product for purposes set forth in section (6)(k)-(l) above; (vi) when applicable, You are in compliance with and will abide by AMA Physician Professional Data Policies, (vii) You and Your Authorized Users will comply with all of the Terms and Conditions and any acceptable use policies issued by Buxton, and (viii) You will not provide Buxton with (a) personal data that constitutes “sensitive personal data” or “sensitive personal information,” including information about racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, sex life, government issued identification numbers, credit card details, or precise geolocation information; (b) PCl-related sensitive data (including but not limited to magnetic strips and chip data, CAV2/CVC2/CVV2/CID4 numbers, and personal identification numbers (PINs)); (c) Protected Health Information (“PHI”) (as the term is defined in the Health Insurance Portability and Accountability Act of 1996 (as amended, superseded or replaced) or Consumer Health Data (as defined in the Washington My Health My Data Act), or (d) criminal records.
10. BUXTON’S DISCLAIMER OF WARRANTIES.
You agree that from time to time, the Product, Third-Party Materials, and/or the Results may be inaccessible or inoperable for various reasons, including equipment malfunctions, upgrades or modifications, or causes beyond Buxton’s control like interruption or failure of internet, telecommunication or digital transmission links, hostile network attacks or network congestion. There will be occasions when the Product (in whole or part), Third-Party Materials, or the Results will be interrupted or unavailable due to maintenance, updates and emergency repairs or due to failure of telecommunications links and equipment or due to circumstances that are outside of Buxton’s control. Buxton will not be liable in any event to You or any other party for any suspension, modification, discontinuance, loss of, or lack of availability of the Product, the Results, Third-Party Materials, or modules thereof, regardless of the cause of such suspension, modification, discontinuance, loss of, or lack of availability and that You are responsible for mitigating the impact of scheduled maintenance activities on Your production processes. You agree that in no event will Buxton be liable to You for any damages due to lost or damaged Client Data, regardless of the cause. You agree that, in Buxton’s sole discretion, Buxton may discontinue modules, features or functions of the Product without breaching the Agreement. You agree that cancellation of Your Account is Your sole and exclusive remedy if You are dissatisfied with the Product or the Results and for any claim that functionality, modules or features discontinued or modified by Buxton materially impact Your use of the Product, Third-Party Materials, or the Results. NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THE AGREEMENT TO THE CONTRARY, THE PRODUCT, THE RESULTS, AND ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS." BUXTON SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, BUXTON MAKES NO WARRANTY OR REPRESENTATIONS OF ANY KIND THAT THE PRODUCT, THE RESULTS, OR THIRD-PARTY MATERIALS WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITIES’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, ACCESSIBLE, AVAILABLE, COMPLETE, TIMELY, FREE OF HARMFUL CODE, OR ERROR FREE. BUXTON DOES NOT MAKE ANY ASSURANCES, REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE ACCURACY OF THE RESULTS OR OUTPUT THAT DERIVES FROM YOUR USE OF THE PRODUCT, THIRD-PARTY MATERIALS, OR THE RESULTS.
11. Client’s Indemnification.
You agree to defend (at Buxton’s election), indemnify, and hold harmless Buxton and its affiliates and their respective directors, officers, agents, contractors, licensors, service providers, representatives, suppliers, employees, successors, and assigns (each of the foregoing including Buxton, a "Buxton Indemnitee") from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, liabilities, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (all of the foregoing, “Losses”), incurred by or alleged or assessed against any Buxton Indemnitee resulting from any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise (“Action”) arising out of or related to (a) Your or any Authorized User’s breach of any of these Terms and Conditions, (b) Client Data or Feedback, including but not limited to uploading data in violation of Your representations and warranties under Section 9 of these Terms and Conditions, (b)Your or any Authorized User’s acts and omissions, (d) a violation of or non-compliance with any part of all applicable federal, state or local privacy or data protection laws, (e) claims asserted by any third party arising out of or relating to Your use or misuse of the Products or Services or relating to any claims of a Product’s or Services' non-compliance with any applicable state, federal, or local laws, rules, or regulations or (f) Your or any other person’s conclusions, decisions, acts or omissions based on or related to use of the Results. Buxton reserves the right to assume the exclusive defense and control of any Action subject to indemnification by You hereunder, and You shall fully cooperate with such defense at its own cost and expense. If Buxton chooses to have You defend such an Action, You shall choose legal counsel reasonably acceptable to Buxton. You agree to promptly notify Buxton in writing of any third-party claims, cooperate with Buxton in defending such claims, and pay all fees, costs and expenses associated with defending such claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance).
12. Limitations of Liability.
12.1 EXCLUSION OF DAMAGES.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL BUXTON OR ANY OTHER BUXTON INDEMNITEE BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE, LOSS OF USE, OR INTERRUPTION OR DELAY OF THE PRODUCT, THE RESULTS, OR THIRD-PARTY MATERIALS; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF CLIENT DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, TREBLED, ENHANCED, OR PUNITIVE DAMAGES OR ANY DAMAGES WHATSOEVER, REGARDLESS OF WHETHER BUXTON OR ANY OTHER BUXTON INDEMNITEE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2 CAP ON MONETARY LIABILITY.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL THE COLLECTIVE, AGGREGATE LIABILITY OF BUXTON OR ANY OTHER BUXTON INDEMNITEE ARISING OUT OF OR RELATED TO THE PRODUCT, THE RESULTS, THIRD-PARTY MATERIALS, OR THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), GROSS NEGLIGENCE, FRAUD, MISREPRESENTATION, WILLFUL AND/OR WANTON MISCONDUCT, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE APPLICABLE FEE PAID TO BUXTON BY YOU FOR THE TERM DURING WHICH THE EVENT GIVING RISE TO DAMAGES OCCURED. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12.3 YOU AGREE THAT THESE LIMITATIONS OF LIABILITY REPRESENT A REASONABLE ALLOCATION OF RISK AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND BUXTON. IF ANY PORTION OF THIS SECTION 12 IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
13. Term; Cancellation and Termination.
The term of this Agreement shall begin on the Start Date and shall continue for the Initial term specified on the Order Document (the “Initial Term”), and shall expire at the end of such Initial Term on the last day of the calendar month in which the Start Date occurred, unless earlier terminated pursuant to the terms hereof. If designated as such on the Order Document, this Agreement shall continue thereafter for successive periods of one (1) year (each such successive period being a “Renewal Term”) commencing on the last day of the Initial Term or any Renewal Term, unless at least ninety (90) days prior to the last day of the Initial Term or any Renewal Term, either Party has provided the other written notice of an intent not to renew. You acknowledge that You are responsible for payment of Fees pursuant to Section 2 for the entire Renewal Term unless the Agreement is terminated in accordance with the notice provisions of this Section.
13.1 Client Cancellation.
You may not cancel the Agreement during the Initial Term, or the Renewal Term unless (a) Buxton has materially breached the Agreement and such breach has not been cured by Buxton within a reasonable time period or (b) You have obtained prior written consent from an officer of Buxton (not a sales representative) or (c) pursuant to Section 13 above.
13.2 Buxton’s Termination.
Notwithstanding anything contained in the Agreement, Buxton reserves the right, without notice and in its sole discretion, to immediately terminate Your (including all Authorized Users’) right to access and use the Product, any Third-Party Materials, or the Results for any or no reason, including, any violation of the Agreement by You or Your Authorized Users. Except as set forth in the following sentence, You acknowledge and agree that Buxton shall have no liability or obligation to You in the event Buxton terminates the Agreement and You and Your Authorized Users’ access to and use of the Product. If Buxton terminates Your right to access and use the Product for any reason other than You or Your Authorized User’s breach of the Agreement, then Buxton shall refund to You a pro rata portion of applicable fees paid by You to Buxton. If Buxton terminates the Agreement and access to and use of the Product due to breach, You will not be entitled to a refund of any amounts that You have already paid to Buxton.
13.3 Effect of Cancellation or Termination.
Upon cancellation or termination under Section 13.1 or Section 13.2 or upon expiration of the term set forth in the Order Document, the Agreement shall automatically terminate (except as set forth below) and all rights to You under the Agreement will immediately terminate and You and Your Authorized Users shall immediately cease all access to and use of the Product and the Results. You may keep all Results that You have received from Buxton prior to termination. Following termination or expiration, Buxton has no obligation to maintain or provide any Client Data and may thereafter, unless legally prohibited, delete all Client Data in its systems or otherwise in its possession or under its control. The provisions set forth in the following sections will survive any cancellation or termination of the Agreement: Section 3 and Sections 9-16.
14. Confidentiality.
Each Party (“Disclosing Party”) may disclose “Confidential Information” to the other Party (“Receiving Party”) in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the Order Document. Confidential Information of Yours includes Client Data. Without limiting the foregoing, if something is labeled “Confidential,” that is a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available 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 as demonstrated by written evidence. The Receiving Party will take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information and limit access to those employees, affiliates, and contractors who need to know such information in connection with the Agreement. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and will prohibit its employees, affiliates, and contractors from making unauthorized use or disclosure of any Confidential Information. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure.
15. Feedback.
You have no obligation to provide Buxton with feedback, ideas, suggestions, or proposals (“Feedback”). You hereby grant Buxton a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, export, reproduce, publicly display, distribute, modify, create derivative works from, publicly perform, and otherwise exploit any Feedback You submit to Buxton without notice or compensation to You. Any inventions, creative works, or tangible embodiments of Feedback reduced to practice, conceived, developed, or authored by or on behalf of Buxton shall be owned by Buxton, including any and all Intellectual Property Rights, and You hereby irrevocably assign, and shall cause any employees, offices or other personnel to assign, to Buxton and its successors and assigns any and all right, title and interest they may have in and to any such inventions, creative works, or tangible embodiments of Feedback and all Intellectual Property Rights thereto.
16. Miscellaneous.
16.1 Relationship of the Parties.
The relationship between the Parties is that of independent contractors and not employees.
16.2 Notices and Software Communications.
All notices to You from Buxton may be sent to You via the email address currently associated with Your Account or through the Product and shall be deemed to have been duly given the same day sent by Buxton. Any notices or communications to Buxton must be in writing and sent to: legal@buxtonco.com.
16.3 Force Majeure.
Without limiting any other provision in these Terms and Conditions, Buxton is not responsible or liable to You for delay or failure to perform its obligations hereunder in the event that any of Buxton’s operations or activities are affected by any cause or event beyond the sole and reasonable control of Buxton, including, without limitation, by reason of any acts of God, equipment failure, threatened or actual terrorist acts, air raid, act of public enemy, war (declared or undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire, explosion, earthquake, flood, hurricane, unusually severe weather, blackout, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown, any law, rule, regulation, action, order, or request adopted, taken, or made by any governmental or quasi-governmental entity (whether or not such governmental act proves to be invalid), or any other cause, whether or not specifically mentioned above.
16.4 Interpretation.
For purposes of the Agreement: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation". The Parties intend the Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The headings above are for reference only and do not affect the interpretation of the Terms and Conditions.
16.5 Choice of Law.
This Agreement, including all documents and exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
16.6 Anti-Bribery and Anti-Corruption.
Buxton agrees not to offer or pay any bribes, including improper gifts or entertainment, to gain a business advantage during the term of these Terms and Conditions. This includes refraining from bribing any person, especially government officials, in connection with the Services or Products provided. Buxton will maintain policies and provide training to ensure compliance with Buxton policies. We confirm that no bribes or improper gifts have been given to secure Your business. If Buxton violates this provision, You may terminate the Order Document immediately without any obligation to pay Fees.
16.7 Entire Agreement.
These Terms and Conditions constitute the sole and entire agreement between You and Buxton with respect to the Products, the Services, the Results, Third-Party Materials and the subject matter of these Terms and Conditions and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
16.8 Assignment.
Buxton may freely assign, transfer or delegate its rights and obligations under the Agreement, in whole or in part. You shall not assign or otherwise transfer any of Your rights or delegate or otherwise transfer any of Your obligations or performance under these Terms and Conditions.