Terms and Conditions
Customer Agreement
These Terms and Conditions (“Terms”) govern access to, and use of, the Services (defined below) described on the order form (“Order Form”) (the Order Form, together with the Terms, forms the “Agreement”) between Buffd Digital, Inc. dba Coast, a Delaware corporation (“Coast”) and the customer identified on such Order Form (“Customer”). The person executing such Order Form represents and warrants that he/she has the authority to bind Customer to this Agreement. There shall be no force or effect given to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
1. Services and Support
1.1 Access to the Services. Coast has developed a proprietary platform designed to sell, market and implement technical products, provided on a remote, software-as-a-service basis, including all fixes, updates and upgrades to the same (the “Services”), and Customer desires to subscribe to the Services for its internal business purposes. Subject to the terms of this Agreement, Coast hereby grants to Customer, during the subscription term of the applicable Order Form, a non-exclusive, non-sub-licensable, non-transferable, revocable right and license to access and use the Services, solely for Customer’s internal business purposes and in accordance with the instructions, on-line help files, technical documentation and user manuals made available by Coast to Customer describing the intended operation of the Services (“Documentation”), subject to any usage limitations or other restrictions set forth in the Order Form, such as the number of permitted Authorized Users.
1.2 Authorized User Access. Customer will require that all employees, agents and consultants of Customer that Customer permits to use the Services (“Authorized Users”) keep user ID and password information strictly confidential and not share such information with any other person. If, during the Term, Customer wishes to purchase access to the Services for additional Authorized Users than specified in the Order Form, Customer shall purchase these from Coast at Coast’s then-current pricing. Customer will ensure its Authorized Users comply with this Agreement, and Customer is responsible for all actions taken using Customer’s accounts and passwords or in Customer’s own trusted environment. Customer shall notify Coast as soon as reasonably practicable of any unauthorized use of any user ID, password or account or any other known or suspected breach of security. Coast reserves the right to suspend, disable or terminate any Authorized User’s access to the Services that Coast reasonably determines may have been used by an unauthorized third party. The unique user IDs and passwords cannot be shared or used by more than one individual Authorized User to access the Services.
1.3 Service Levels. During the subscription term of the applicable Order Form, and for so long that Customer is current in its payment obligations, Coast will use commercially reasonable efforts to provide Customer the Services in accordance with the service level, support, and service-specific terms set forth in Exhibit A (“SLA”). Customer acknowledges that Coast may update or modify the SLA at any time; provided that, if such changes will have a material adverse effect on Customer, Coast will provide at least thirty (30) days’ prior written notice thereof and such changes will not go into effect for Customer until the beginning of the next subscription term.
1.4 Security. Coast will implement and maintain administrative, technical, and physical safeguards (“Security Measures”) designed to prevent unauthorized access to Customer Data (defined below) under Coast’s control; provided, however, that Customer is solely responsible for maintaining the security and operability of its systems and devices used to access the Services. Customer acknowledges that Coast may update or modify the Security Measures at any time; provided the updated measures do not decrease the overall protection of Customer Data
2. Restrictions and Responsibilities
2.1 Restrictions. Customer will not, and will not allow any Authorized User or third party to, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works of the Services (except to the extent expressly permitted by Coast or authorized within the Services); use the Services for time sharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; access or use the Services to build or develop, sell, market, or distribute any competitive product or service, or for any analytics or benchmarking purposes; access or use the Services in violation of any law, regulation, or contractual requirement applicable to Customer; use the Services for any obscene or offensive purposes, or any purposes that would violate the proprietary, privacy, intellectual property or other rights of Coast or any third party; or otherwise access or use the Services in any manner that exceeds the scope of use permitted under Section 1.2 or in a manner inconsistent with applicable law or this Agreement.
2.2 Customer Responsibilities. Customer represents, covenants, and warrants that Customer will use the Services in compliance with all applicable laws and regulations. Although Coast has no obligation to monitor Customer’s use of the Services, Coast may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Customer will (i) be responsible for all use of the Services under its account; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Coast promptly of any such unauthorized access or use; (iii) be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer will also be solely responsible for its failure to maintain such Equipment, and Coast will have no liability for such failure.
2.3 Customer Data. Customer represents, covenants, and warrants to Coast that any data provided, posted or transmitted by or on behalf of Customer to Coast and/or to the Services (“Customer Data”) does not and will not: (i) infringe, misappropriate or violate any intellectual property rights, publicity/privacy rights, law or regulation; (ii) contain any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (iii) contain any sensitive information. For purposes of this Agreement, “sensitive information” includes, without limitation: personal data or personally identifiable information under applicable data protection laws, including personal information relating to children under thirteen (13) years old; protected health information subject to the Health Insurance Portability and Accountability Act or similar legislation; biometric information; any payment card information subject to the Payment Card Industry Data Security Standard or other financial information; or any other information that falls within any special categories of data. As between the parties, Customer is solely responsible for the accuracy, content, and legality of all Customer Data uploaded by or on behalf of Customer to the Services. Customer is solely responsible for maintaining copies of Customer Data.
3. Confidentiality
3.1 Definition. “Confidential Information” means any information disclosed, directly or indirectly, by or on behalf of a party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that: (i) is designated as “confidential,” or in some other manner to indicate its confidential nature; or (ii) otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. The Services, Documentation, and Coast IP constitute Confidential Information of Coast. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes generally known and available to the public through no act of Receiving Party; (b) was already in Receiving Party’s possession without a duty of confidentiality owed to Disclosing Party at the time of disclosure by Disclosing Party, as shown by Receiving Party’s contemporaneous records; (c) is lawfully obtained by Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without breach of an obligation owned to Disclosing Party.
3.2 Use. Receiving Party will not use Confidential Information for any purpose except to exercise its rights and perform its obligations under this Agreement. Receiving Party will not disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information, except: (i) to Receiving Party’s employees, advisors, or prospective investors or purchasers, in each case subject to written obligations of confidentiality; or (ii) where Receiving Party becomes legally compelled to disclose Confidential Information; provided that, in the event of (ii), Receiving Party will give Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity to seek a protective order or other confidential treatment for such Confidential Information (if permitted by applicable law). Receiving Party will take at least reasonable measures and care to protect the secrecy of, and avoid disclosure and unauthorized use of, Confidential Information and will take at least those measures that it takes to protect its own most highly confidential information.
3.3 Freedom of Action. Subject to Coast’s compliance with its confidentiality obligations herein, nothing in this Agreement will restrict or limit Coast from providing the Services for any other entity, regardless of the similarity of the Output (defined below).
4. Intellectual Property Rights
4.1 Coast IP. Coast and its licensors own and retain all rights, title, and interest, including all intellectual property rights, in and to the Services and Documentation, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, and other tangible and intangible material and information pertaining thereto or included therein, including all enhancements thereto and derivatives thereof made during the performance of this Agreement and Order Forms hereunder (“Coast IP”). Nothing in this Agreement precludes or restricts Coast from using or exploiting any concepts, ideas, techniques, or know how of, or related to, the Coast IP or otherwise arising in connection with Coast’s provision of the Services. Other than as expressly set forth in this Agreement, no license or other rights in or to the Coast IP are granted to Customer and all such rights are hereby expressly reserved.
4.2 Customer IP. As between Coast and Customer, Customer and its licensors own and retain all right, title and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Coast a non-exclusive, worldwide, royalty-free and fully paid up license to: (i) during the Term, access and use Customer Data to provide the Services to Customer; (ii) during the Term, access and use the API designated by Customer to provide the Services to Customer; and (iii) on a perpetual, irrevocable basis, use Customer Data on an aggregated and/or anonymized basis for its internal business purposes, including to improve the Services or Company’s other products or services.
4.3 Output. “Output” means the results, information, data, materials, text, images, or other content generated by the processing of Customer Data through the Services. As between Coast and Customer, subject to Coast’s rights in any Coast IP incorporated into Output, all right, title and interest in and to the Output and all intellectual property rights therein, are owned by Customer. Given the nature of artificial intelligence which powers the Services, Customer acknowledges that: (i) Output may not be unique across users and the Services may generate the same or similar output for another user under similar terms, and Customer does not have any right, title or interest in or to any output provided to other users, regardless of the level or degree of similarity with the Outputs; (ii) Outputs may not be protected or protectible by any intellectual property rights under applicable law, and (iii) Output may infringe third-party intellectual property rights, and Customer agrees that Coast shall have no liability to Customer in connection with same. Notwithstanding any of Customer’s ownership rights in Output, Customer acknowledges and understands that Output may only be viewed, displayed, and otherwise accessed through the Services, and subject to Coast using commercially reasonable efforts to provide the Services in accordance with Exhibit A, Coast has no obligation to make Output accessible or available to Customer to download or export. The Services may include the capability for Customer, at its option and in its sole discretion, to display Output to its current or potential customers. Customer acknowledges and agrees that it is Customer’s sole responsibility to evaluate any risks related to the sharing of Output with such persons, and Coast has no control over, and will have no liability for, any acts or omissions of any such person with respect to Customer’s sharing of Output.
4.4 Usage Data. Notwithstanding anything to the contrary herein, Coast shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Coast will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Coast offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
4.5 Publicity. Coast may use Customer’s name and logo to identify Customer as a client of Coast (including on Coast’s website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other clients. Coast will use Customer’s name and logo in accordance with Customer’s applicable branding guidelines. Coast’s use of the name and logo does not create any ownership right therein and all rights not granted to the Coast are reserved by Customer. The parties shall also work together in good faith to issue a fully developed, publicly available case study that may include written, visual and audio components.
5. Payment of Fees
5.1 Fees. Customer will pay Coast the then applicable fees described in the Order Form for the Services (the “Fees”). If Customer’s use of the Services exceeds restrictions or limitations set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein at the rate stated in the applicable Order Form or, if none is stated, at Coast’s then-current standard rates. Coast reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon forty-five (45) days’ prior notice to Customer (which may be sent by email). If Customer reasonably believes that Coast has billed Customer incorrectly, Customer must contact Coast no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Coast’s customer support department.
5.2 Invoicing and Payment. All Fees are quoted in United States Dollars and, except as set forth otherwise in this Agreement, are non-refundable. Coast may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Coast thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with the Services, the Implementation Services and the Support Services other than U.S. taxes based on Coast’s net income.
5.3 Taxes. The Fees do not include taxes, duties or charges of any kind. If Coast is required to pay or collect any local, value added, goods and services taxes or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on Coast’s income), then such taxes and/or duties shall be billed to and paid by Customer.
6. Term and Termination
6.1 Term. Subject to earlier termination as provided below, this Agreement will begin on the Order Form’s effective date, and unless terminated earlier in accordance with this Agreement, will continue for the term set forth therein (“Initial Term”). Following the expiry of the Initial Term, this Agreement shall automatically renew for successive twelve (12) month terms (each, a “Renewal Term”) at Coast’s then-current fees (the Initial Term collectively with all subsequent Renewal Terms, the “Term”), unless either party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
6.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if: (i) the other party materially breaches this Agreement or an Order Form, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach; or (ii) the other Party: (a) becomes insolvent; (b) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement; or (iii) makes an assignment for the benefit of its creditors.
6.3 Effect of Termination. Upon the earlier of expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will immediately terminate, Customer will cease use of the Services and Documentation, and return or destroy all copies of the Documentation in its possession/control, and Customer will pay in full for the Services up to and including the last day on which such services are provided. Notwithstanding the foregoing, other than in the event of termination pursuant to Section 6.2, Order Forms in effect on the date of termination or expiration hereof shall remain in effect for the balance of their respective terms, and this Agreement shall be deemed to continue to apply to such Order Form(s). Sections 2.1, 3, 4, 5, 6.3, 7, 8, 9, and 10 will survive any termination.
7. Disclaimer of Warranties
COAST DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES, THE IMPLEMENTATION SERVICES AND THE SUPPORT SERVICES ARE PROVIDED “AS IS” AND COAST DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. Indemnity
8.1 By Coast. Coast shall defend, indemnify and hold Customer harmless against any claim brought by a third party to the extent such claim alleges that Customer’s permitted use of the Services as authorized under this Agreement infringe any United States patent or any copyright or misappropriation of any trade secret, provided Coast is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Coast will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to Customer Data or Output, or with respect to portions or components of the Services (i) not supplied by Coast, (ii) made available to Coast by Customer or made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Coast, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Coast to be infringing, Coast may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. THIS SECTION 8.1 STATES THE ENTIRE LIABILITY OF COAST, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS BY COAST, THE SERVICES, OR OTHER COAST IP, OR ANY PART THEREOF.
8.2 By Customer. Customer shall defend, indemnify hold Coast harmless against any claim brought by a third party arising out of or relating to any Customer Data or Customer’s use of the Services, Customer’s use of any Output, Customer’s infringement or misappropriation such third party’s intellectual property or other rights, Customer’s breach of its representations and warranties under this Agreement, or Customer’s violation of applicable laws, rules or regulations, provided Customer is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Coast will not be responsible for any settlement it does not approve in writing.
9. Limitation of Liability
EXCEPT FOR (I) CUSTOMER’S OBLIGATIONS TO PAY ACCRUED FEES, OR (II) LOSSES CAUSED BY OR ARISING OUT OF A PARTY’S FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE, OR BREACH OF SECTION 2.1, IN NO EVENT SHALL (A) EITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES OR ALLEGED DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER DUE TO NEGLIGENCE OR OTHERWISE, OR IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER IN THE TWELVE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY (AND MULTIPLE CLAIMS SHALL NOT INCREASE THIS LIMITATION), AND (B) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. Miscellaneous
10.1 Assignment. Neither party may assign this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other party, except that Coast may assign this Agreement without the consent of Customer as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to this Agreement, or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
10.2 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure or degradation of the Internet. The delayed party will give the other party notice of such cause and will use its commercially reasonable efforts to correct such failure or delay in performance.
10.3 Governing Law. This Agreement will be governed by and construed under the laws of the State of New York without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. If a lawsuit or court proceeding is permitted under this Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.
10.4 Government Rights. Coast provides the Services, including any related software, data, and technology, for ultimate government end use solely in accordance with the following. The Services will constitute “commercial” computer software. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Coast to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
10.5 Miscellaneous. In the event of a conflict between this Agreement and the terms of any Order Form, this Agreement will prevail unless otherwise expressly stated in the Order Form. No terms of any purchase order, acknowledgement, or other form provided by either party will modify this Agreement, regardless of any failure of the other party to object to such terms. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Coast in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may be executed in counterparts. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
Exhibit A
Service Level Agreement
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 1% of Service fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.