These terms of service (“Agreement”) sets forth the terms and conditions under which Busibud Inc. (“Saufter”) provides access to its proprietary response software and related interfaces (“Saufter Service” or “Service”), to its customers (“Customer” or “You”).
By accepting this Agreement or using the Service, you are entering into a legally binding agreement with Saufter. If you do not agree to these terms, please refrain from completing the order process and using the Service.
1. Provision of the Saufter Service
1.1 General Provision
1.2 Subscription Rights
Subject to the terms and conditions of this Agreement, you are granted a limited, non-transferable right to access and use the Saufter Service for your business purposes during the agreed term. This includes access to Saufter Technology related to the Service.
The term “Saufter Technology” refers to all of Saufter’s proprietary technology, including software, hardware, algorithms, user interfaces, and other technical materials used to provide the Service. Saufter and its licensors retain all rights to Saufter Technology, and no rights are granted to the Customer implicitly.
1.3 Eligibility Requirements
By entering into this Agreement, you confirm that you meet the following minimum requirements –
(a) You are at least 18 years old and have the legal capacity to be bound by this Agreement.
(b) You have the necessary rights and authority to fulfill your obligations under this Agreement, including representing and binding a third-party, if applicable.
(c) All information you provide, including during registration and any third-party business or customers, as well as payment information, is accurate, complete, current, and within your rights to use and provide.
(d) You are in compliance with all relevant laws and regulations, particularly those related to data privacy.
(e) To the best of your knowledge, none of the data you provide will contain any unlawful, defamatory, offensive, harassing, fraudulent, libelous, pornographic, or obscene content.
(f) You agree to provide Saufter with any requested information, records, or materials to verify your compliance with these eligibility requirements.
You (and any third party you authorize) agree –
a) Not to use the Saufter Service to develop or market any product, software, or service that is functionally similar to or derived from the Saufter Service, or for any other purpose not explicitly permitted in this Agreement.
b) You may only access and use the Saufter Service as intended in its normal operation or as specified in the provided documentation or instructions (the “Documentation”).
c) You are prohibited from selling, distributing, renting, leasing, disclosing, posting, linking, or providing access to the Saufter Service to any third party, directly or indirectly.
d) You shall not alter, modify, reverse engineer, decompile, disassemble, or attempt to gain access to the software (including source code) associated with the Saufter Service. You are responsible for safeguarding your passwords and API keys provided by Saufter and must notify Saufter immediately of any unauthorized use or suspected breach. Saufter reserves the right to suspend access to the Saufter Service if it reasonably believes that you have materially violated these restrictions and obligations outlined in this Agreement. In such cases, Saufter will make reasonable efforts to notify you promptly of the suspension and provide an opportunity to rectify the situation, as practical and reasonable under the circumstances.
1.5 Customer Cooperation
You are expected to reasonably cooperate with Saufter to facilitate the provision of the Saufter Service, which may include providing the requested information.
1.6 Supplemental Terms
Certain services may require you or your representatives to agree to additional terms before using those specific services. In some cases, you and Saufter may enter into Supplemental Terms for particular services on an individual basis. These Supplemental Terms will be incorporated into this Agreement and will prevail in the event of any conflict related to the applicable services. It’s important to note that Supplemental Terms will only be binding if you expressly agree to them.
You understand and agree that all ownership rights, including the data, information, text, images, designs, sound, music, marks, logos, compilations, and other content provided through Saufter Service (excluding Customer Data), as well as Saufter Technology and any improvements or derivatives thereof, are owned by Saufter or its licensors. This Agreement does not grant you any ownership rights to Saufter Service or Saufter Technology, except for the limited right to access and use Saufter Service as outlined in this Agreement.
Saufter acknowledges and agrees that all ownership rights to Customer Data are and shall remain owned by you or your licensors. This Agreement does not grant Saufter any ownership rights to Customer Data, except for the limited right to use Customer Data in accordance with this Agreement.
Neither Party is granted any right or license to use the other Party’s trademarks, service marks, trade names, or logos. You are not permitted to remove any Saufter trademarks, service marks, logos, or proprietary notices or labels, including copyright or trademark notices, from Saufter Service.
3. Fees; Payments; Taxes
To access Saufter Services, you agree to pay the monthly and other applicable fees specified in the fee schedule and Saufter subscription plan you have chosen on Saufter’s website. Payment should be made according to the instructions and schedule provided with that subscription plan, unless otherwise agreed upon.
Saufter reserves the right to increase its fees after the Initial Term or Renewal Term (as defined below) by providing you with a 60-day prior notice. If you object to the fee increase, you have the option to terminate Saufter Service by providing written notice after the Initial Term or applicable Renewal Term. Failure to exercise your right to termination during this period will be deemed as acceptance of the increased fees.
All amounts payable under this Agreement, including fees for Saufter Service and your access to it, do not include any sales, use, excise, service, value-added, or other taxes, duties, and charges of any kind, whether foreign, federal, state, local, or otherwise. You are solely responsible for paying all such taxes, duties, and charges (except for taxes imposed on Saufter’s income) that may be invoiced by Saufter periodically.
3.4 Late Payments and Disputed Fees
In the case of late payments for undisputed amounts, you shall pay interest calculated at the lesser of (a) 1% per month or (b) the highest rate permitted by applicable law, compounded monthly and calculated on a daily basis. You shall reimburse Saufter for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred in collecting any unpaid undisputed amounts owed by you under this Agreement. If you have a reasonable dispute regarding any invoiced amount, you must promptly notify Saufter of the dispute and may withhold payment for the disputed amount.
4. Term; Termination
4.1 Term, Automatic Renewal
The term of this Agreement will begin when the Customer selects a subscription plan for the Saufter Service and will continue for the duration of the initial subscription period chosen by the Customer (the “Initial Term”), unless terminated earlier as per this Agreement. If the Agreement is not terminated, it will automatically renew for the same duration as the Initial Term (each a “Renewal Term”). Hereon, the Initial Term and any Renewal Term together are referred to as the “Subscription Term” or the “Term.”
Either party may terminate this Agreement by providing written notice to the other party if the other party materially breaches this Agreement and fails to remedy the breach within 30 days after receiving written notice of the breach.
Additionally, either party may terminate this Agreement at their convenience by providing 30 days written notice. However, if the Customer terminates for convenience and their subscription plan includes a discounted fee for a minimum Term, the Customer may only terminate for convenience after paying Saufter the difference between the discounted fee and the standard fee for the periods in which they had access to or used the Services.
4. Effects of Termination; Survival
Upon termination of this Agreement:
a) All rights granted to the Customer under this Agreement will cease, and Saufter will no longer provide access to the Saufter Service
b) The Customer must stop using the Saufter Service
c) Saufter will either make the Customer Data in its possession or control available to the Customer or destroy it, as per the Customer’s choice. Any obligations that have accrued prior to termination will survive the termination of this Agreement. Additionally, the following sections, as well as any other provisions in this Agreement that should naturally survive, will continue to be in effect after termination: Sections 2 through 10.
5. Customer Data
5.1 Data Generally
All data and information that the Customer enters into the Saufter Service, that is obtained through third-party integrations used by the Customer with the Saufter Service, or that is collected, generated, or acquired by Saufter or on its behalf in connection with the Customer’s use of the Saufter Service (referred to as “”Customer Data””) is securely stored and will be used by Saufter only as outlined in this Agreement.
The Customer grants Saufter a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, and display the Customer Data during the Term to provide the Saufter Service to the Customer, improve and develop the Saufter Service or new offerings, and train and enhance artificial intelligence algorithms and models (provided that Saufter will only use anonymized and aggregated Customer Data for such purposes).
Saufter may analyze Customer Data, as well as data from other customers, to create aggregated and anonymized statistics or data that do not identify the Customer or any individual, household, user, browser, or device. Saufter may use and disclose such statistics or data at its discretion during and after the Term.
Except as otherwise specified in this Agreement, the Customer is solely responsible for providing, updating, uploading, and maintaining all Customer Data. The content of the Customer Data is the sole responsibility of the Customer. Saufter will operate the Saufter Service in a manner that ensures reasonable information security for Customer Data by implementing commercially reasonable data backup, security, and recovery measures.
Saufter will implement and maintain reasonable and appropriate technical and organizational measures to protect the confidentiality, integrity, and security of Customer Data, in compliance with its data protection policies and/or addendums. In the event of any actual or reasonably suspected accidental, unauthorized, or unlawful use, destruction, loss, alteration, disclosure, or access to Customer Data (“Security Incident”), Saufter will:
a) Promptly notify the Customer upon discovering the Security Incident (within seventy-two (72) hours).
b) Make reasonable efforts to prevent, contain, and mitigate the impact of the Security Incident.
c) Collect, preserve, and document evidence related to the discovery, cause, vulnerability, remedial actions, and impact of the Security Incident to the extent feasible.
d) Reasonably cooperate with Customer inquiries regarding the Security Incident.
5.2 Additional Customer Responsibilities
The Customer is solely responsible for all Customer Data. Saufter does not guarantee the accuracy, integrity, or quality of the Customer Data. The Customer shall not:
a) Upload or provide Saufter with any Customer Data that is unlawful or infringes upon the rights of any third parties
b) Upload or provide Saufter with any Customer Data that the Customer is not authorized to transmit due to rule, regulation, or any legal obligation.
c) Use, upload, or transmit any Customer Data that violates the intellectual property or other proprietary rights of any third party.
d) Upload or provide Saufter with any material that contains software viruses or any other computer code, files, or programs intended to interrupt, destroy, or limit the functionality of computer software, hardware, or telecommunications equipment.
e) Interfere with or disrupt the Saufter Service or servers or networks connected to the Saufter Service.
f) Upload or provide Saufter with any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any related regulation, rule, or standards, or similarly protected information under applicable state rules or regulations.
g) violate any applicable law, rule, or regulation, including those governing the export of technical data.
h) Use the Saufter Service in a manner that is not consistent with the instructions provided in the Documentation.
6. Representations and Warranties; Disclaimer
6.1 General Representations and Warranties
Each Party represents and warrants to the other Party that:
a) if it is a corporation, company, or other entity, it is duly organized, validly existing, and in good standing in its jurisdiction of organization,
b) its execution, delivery, and performance of this Agreement have been duly and validly authorized; or if it is an individual, it has the legal capacity to enter into this Agreement.
c) the provisions of this Agreement constitute legal, valid, and binding obligations enforceable against it in accordance with their terms, subject to bankruptcy, insolvency, and other laws affecting creditors’ rights generally.
d) its execution, delivery, and performance of this Agreement do not and will not conflict with breach, or constitute a default or require the consent of any third party under any other agreement or obligation to which it is a Party, and
e) it possesses all necessary rights and permissions to fulfill its obligations under this Agreement.
6.2 Saufter Warranty
Saufter further represents and warrants that:
a) it will provide the Saufter Service with a level of competence and workmanship consistent with industry standards; and
b) it owns or holds sufficient rights (including intellectual property rights) to grant the licenses to Customer as outlined in this Agreement.
Saufter does not warrant that all reported defects will be corrected or that the use of the Saufter Service will be uninterrupted or error-free. Saufter provides no warranty regarding features or services provided by third parties. Saufter reserves the right to modify its Services and the Saufter Technology. If Saufter makes a material reduction to the Services due to a modification, Customer may terminate the agreement with 30 days’ notice and receive a refund for pre-paid fees for Services not provided after termination. Customer’s sole remedy for Saufter’s breach of the warranty in this paragraph shall be that Saufter will rectify the applicable error, or if Saufter is unable to do so in a timely manner, refund Customer for actual damages up to the fees paid for the Saufter Service during the Subscription Term in which the breach occurred.
Except for the express warranties set forth in this Agreement, neither Party makes any representation or warranty whatsoever and hereby disclaims all representations and warranties, whether express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, non-infringement, and any warranties arising from a course of dealing, course of performance, usage of trade, or otherwise. Neither Party warrants that the Service will meet Customer’s requirements, be always available, accessible, uninterrupted, timely, secure, or error-free, nor does it warrant the results that may be obtained from the use of the Service or the accuracy or reliability of any information obtained from the Service.
6.4 Additional Disclaimer
The customer acknowledges that the Service is hosted by a third-party hosting provider (referred to as the “Hosting Contractor”) and utilizes third-party server hardware, disk storage, firewall protection, server operating systems, and management programs, including web server programs for service delivery (referred to as the “Hosting Contractor Services”). Additionally, Saufter utilizes third parties to facilitate payments (referred to as the “Payment Processor”).
Saufter reserves the right to change its Hosting Contractor and Payment Processor at any time. The use of the Service is subject to any restrictions imposed by the Hosting Contractor and the Payment Processor, as applicable. Notwithstanding any other provision of this Agreement, Saufter shall not be liable for any problems, failures, defects, or errors with the Service to the extent caused by the Hosting Contractor or Payment Processor. The customer acknowledges that the fees payable for the Service reflect the fact that Saufter is not responsible for the acts and omissions of the Hosting Contractor or Payment Processor.
7. Limitations of Liability
7.1 Damages Cap
To the fullest extent permissible by law, each party’s total liability for all damages arising out of or related to the service or this agreement, whether in contract, tort (including negligence) or otherwise, shall not exceed the total amount of fees payable by Customer to Saufter under this agreement over the twelve months prior to when the last liability arose.
7.2 Disclaimer of Indirect Damages
In no event shall either party be liable for any indirect, consequential, incidental, special, exemplary, or punitive damages (including loss of data, profits, or revenue) arising out of or related to the Service or this Agreement, whether such damages arise in contract, tort (including negligence) or otherwise.
The limitations in sections 7.1 and 7.2 above shall not apply to liability arising from
a) a Party’s wilful misconduct
b) Customer’s obligation to pay all amounts due hereunder;
c) a breach of confidentiality obligations or infringement or misappropriation by a Party of the other Party’s intellectual property rights; or
d) indemnification obligations.
With respect to liability arising from an unauthorized use or disclosure of Customer Data in breach of this agreement, each Party’s liability will be twice the amount set out in section 7.1 of this agreement notwithstanding anything to the contrary in section 7.1.
7.4 Basis of the Bargain
The Parties agree that the limitations of liability set forth in this section 7 are a fundamental basis of the bargain, that Saufter has set its fees in reliance on the enforceability of these provisions, and that they shall apply notwithstanding that any remedy shall fail its essential purpose.
8.1 Saufter Indemnification
Saufter shall defend, indemnify, and hold harmless Customer and its directors, officers, and employees (“Customer Indemnified Parties”) from any third-party claims, actions, proceedings, demands, lawsuits, damages, liabilities, and expenses, including reasonable attorneys’ fees and court costs (collectively referred to as “Claims”) to the extent it is proven that the Saufter Service infringes, misappropriates, or otherwise violates any third-party intellectual property or proprietary right when used in accordance with this Agreement (collectively, “Infringement”).
8.2 Customer Indemnification
Customer shall defend, indemnify, and hold harmless Saufter and its directors, officers, and employees (“Saufter Indemnified Parties”) from any Claims relating to:
(a) an allegation that the Customer Data infringes or misappropriates any third-party intellectual property, proprietary, or privacy right; or
(b) Customer’s violation of the restrictions in Section 1.4 above.
8.3 Indemnification Process
As conditions of the indemnification obligations in Sections 8.1-8.2 above:
a) the applicable Customer Indemnified Party or Saufter Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby);
b) the Indemnitee will allow the Indemnitor to control the defense and settlement of such Claim; and
c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the evaluation, defense, and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party, not unreasonably withheld.
Saufter’s obligations in Section 8.1 above shall not apply to any Claim arising from or relating to:
a) misuse of the Saufter Service not strictly following the Documentation, Saufter’s instructions, and this Agreement;
b) any modification, alteration, or conversion of the Saufter Service not created or approved in writing by Saufter;
c) any combination of the Saufter Service with any computer, hardware, software, or service not provided by Saufter;
d) Saufter’s compliance with specifications or other requirements of Customer; or
e) any Customer Data used by Saufter in accordance with this Agreement. If the Saufter Service is or may be subject to a Claim of infringement as described in Section 8.1 above, Saufter may, at its cost and sole discretion:
(i) obtain the right for Customer to continue using the Saufter Service as contemplated herein;
(ii) replace or modify the Saufter Service to make it non-infringing without substantially compromising its principal functions; or
(iii) if the foregoing options are not commercially reasonable, terminate this Agreement and refund to Customer any prepaid fees for the Saufter Service associated with the then-current Subscription Term.
Saufter’s obligations in this Section 8 shall be Saufter’s sole obligations, and Customer’s sole remedies, in the event of any infringement of intellectual property or proprietary rights by or related to the Saufter Service.
“Confidential Information” refers to information disclosed by either Party (referred to as the “Disclosing Party”) to the other Party (referred to as the “Receiving Party”) during the Term. This information should be clearly labeled or identified as confidential or proprietary when disclosed, or it should reasonably be treated as confidential given the circumstances. It includes tangible or intangible information regarding technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, strategic information, business plans, policies, practices, employee information, and other business and technical information.
However, “Confidential Information” does not include information that:
a) becomes publicly known without the fault or breach of this Agreement by the Receiving Party;
b) is already in the possession of the Receiving Party at the time of disclosure, without an obligation of confidentiality;
c) is independently developed by the Receiving Party without using the Disclosing Party’s Confidential Information; or
d) is lawfully obtained by the Receiving Party from a third party without any restrictions on use or disclosure. Additionally,
(i) the terms and conditions of this Agreement are considered Confidential Information of both Parties;
(ii) the Saufter Service and Saufter Technology are deemed Confidential Information of Saufter, regardless of whether they are labeled or identified as such; and
(iii) Customer Data is considered Confidential Information of Customer.
9.2 General Obligations
Both Parties agree that during the Term and thereafter, they will:
a) not disclose the other Party’s Confidential Information to any third party, except as permitted in the last sentence of this paragraph;
b) use the other Party’s Confidential Information only to the extent necessary for fulfilling their obligations or exercising their rights under this Agreement;
(c) disclose the other Party’s Confidential Information only to employees, independent contractors, and service providers who need to know such information for the purposes of this Agreement and who are bound by confidentiality obligations offering similar protection as stated in this Section 9; and
d) protect the other Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as they protect their own confidential information of a similar nature, exercising reasonable care. However, this paragraph does not prohibit:
(i) a Party from disclosing the other Party’s Confidential Information to the extent required by applicable law, rule, or regulation (including court orders or government orders), provided that the Party provides prior written notice of such disclosure to the other Party, to the extent permitted by law, and reasonably cooperates with efforts to seek confidential treatment; or
(ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys, financial advisors, current or potential lenders, sources of financing, investors, or acquirers, provided that such third parties are bound by confidentiality obligations offering similar protection as stated in this Section 9. Furthermore, such third parties are only allowed to use the information for the purpose of advising, lending, providing financing, investing, or acquiring the respective Party.
9.3 Return or Destruction
Except as expressly provided in this Agreement, the Receiving Party will return, destroy, or erase the Disclosing Party’s Confidential Information in tangible form upon termination of this Agreement. However, subject to ongoing compliance with the terms of this Agreement as long as the Receiving Party processes or controls the Disclosing Party’s Confidential Information, the Receiving Party may:
a) retain a copy of the Disclosing Party’s Confidential Information solely for the purpose of tracking its rights and obligations under this Agreement;
b) retain copies of the Disclosing Party’s Confidential Information as required by law or applicable professional standards that demand the retention of working papers; and
c) retain the Disclosing Party’s Confidential Information to the extent reasonably necessary for the Receiving Party to exercise its rights or fulfill its obligations under this Agreement that survive the termination.
9.4 Feedback and AI Learnings
Notwithstanding the above or any contrary provision in this Agreement, if at any time Customer provides Saufter with feedback or suggestions regarding the Saufter Service, including potential improvements or changes (referred to as “Feedback”), the Feedback shall not be considered Customer’s Confidential Information. Saufter may use, disclose, and exploit the Feedback in any manner it chooses. All Feedback provided by Customer is provided “AS IS” and without any warranty or representation. Additionally, Customer acknowledges and agrees that Saufter and Saufter Technology may learn from the Customer’s use of the Services, and any general improvements or learnings in Saufter’s algorithms or models related to the Services that do not include or reference the identity of Customer, its users, or its customers may be used by Saufter to enhance the Services.
10.1 Compliance with Laws
Both Parties agree to comply with all applicable laws, rules, regulations, and ordinances in connection with their activities under this Agreement.
Neither Party may assign this Agreement or transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Any attempted assignment or delegation in violation of this provision is void. This Agreement will be binding upon and inure to the benefit of the Parties’ successors and permitted assigns. However, Saufter may assign this Agreement to any entity that acquires all or substantially all of its assets related to this Agreement, or in connection with a merger, acquisition, or reorganization, without obtaining prior written consent from Customer.
10.3 Entire Agreement; Amendment
This Agreement represents the complete understanding and agreement between the Parties regarding the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written, concerning such subject matter.
Saufter may provide notices related to this Agreement to Customer via email using the email address provided by Customer during account creation. Such notices will be deemed effective upon confirmation of transmission to Customer.
10.5 Force Majeure
Neither Party shall be held liable or considered in default under this Agreement for any failure or delay in the performance of its obligations due to circumstances beyond its reasonable control, including acts of God, natural disasters, governmental actions, war, terrorism, riots, national emergency, revolution, insurrection, epidemic, lockouts, strikes, labor disputes, or other similar events. This includes restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage. The Party affected by such force majeure event shall promptly provide written notice to the other Party, and shall resume performance as soon as reasonably possible.
Saufter is granted the right to use Customer’s name and logo on client lists published on Saufter’s website and in its marketing materials, subject to obtaining prior approval from Customer. Saufter may also announce the business relationship between the Parties in a press release, provided that the wording of the release is approved by Customer in advance, which approval shall not be unreasonably withheld.
10.7 Choice of Law
This Agreement is governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without giving effect to any conflicts of laws principles or provisions of any other jurisdiction that would result in a different outcome.
10.8 Disputes; Arbitration
Any disputes, claims, or controversies arising between Customer and Saufter or its employees, agents, successors, or assigns, including those concerning the interpretation and scope of this clause and the arbitrability of the dispute, shall be exclusively settled through binding and confidential arbitration.
Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before a single commercial arbitrator with substantial experience in resolving commercial contract disputes, as designated by the American Arbitration Association (AAA). Subject to modifications made by this Agreement, and unless the parties have agreed otherwise in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules, and if applicable, the Supplementary Procedures for Consumer-Related Disputes (collectively, “Rules and Procedures”).
To obtain additional information about AAA, including its Rules and Procedures, and to learn how to file an arbitration claim, please contact AAA at 800-778-7879 or visit their website at http://www.adr.org.
In arbitration, there is no judge or jury, and the review of an arbitration award by a court is limited. However, the arbitrator has the authority to award damages and provide relief on an individual basis, similar to a court, including injunctive and declaratory relief, statutory damages, and must adhere to the terms of this Agreement as a court would.
Both Customer and Saufter agree to the following terms:
a) any claims brought by a Party must be brought in their individual capacity and not as a plaintiff or member of a purported class or representative proceeding;
b) the arbitrator cannot consolidate multiple claims or preside over any form of representative or class proceeding, nor award relief on a class-wide basis;
(c) Saufter retains the right, at its sole and exclusive discretion, to assume responsibility for all arbitration costs;
d) the arbitrator will respect claims of privilege and privacy as recognized by law;
e) the arbitration proceedings will be confidential, and neither Party may disclose the existence, content, or results of the arbitration, except as required by law or for the enforcement of the arbitration award;
f) the arbitrator may award individual remedies and relief permitted by applicable law; and
g) the Party that loses in the arbitration shall be responsible for the prevailing Party’s reasonable attorneys’ fees and expenses, as directed by the arbitrator. However, it should be noted that
(i) either Customer or Saufter may initiate an individual action in small claims court, to the extent permissible, and
(ii) either Party may seek emergency equitable relief from the state or federal courts located in Delaware to maintain the status quo during arbitration, and both Parties agree to submit to the exclusive personal jurisdiction of the courts in Delaware for such purposes. Seeking interim measures shall not be considered a waiver of the right to arbitrate.
10.9 Relationship of the Parties
The Parties acknowledge and agree that their relationship is that of independent contractors, and nothing in this Agreement creates any agency, partnership, joint venture, or employment relationship between them. Neither Party has the authority to contract for or bind the other Party.
No waiver by either Party of any provision of this Agreement shall be effective unless it is explicitly set forth in writing and signed by the Party granting the waiver. The failure to exercise or delay in exercising any right, remedy, power, or privilege under this Agreement shall not operate as a waiver, nor shall any single or partial exercise preclude any other or further exercise of such rights or remedies.
If any provision of this Agreement is found to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect the validity, legality, or enforceability of the remaining provisions of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction.
10.12 Headings; Interpretation
The headings in this Agreement are provided for convenience only and shall not be used to interpret the substance of the provisions. The use of the terms “include,” “includes,” or “including” in this Agreement is not limiting, and the term “or” is not exclusive, unless expressly stated otherwise in specific instances.