Effective upon your access and use of the Bufferloop Platform (as defined below), you or the organization you represent (“Client”) agree with Bufferloop Inc. (“Bufferloop”) that you have read, understood and accepted all the terms and conditions set forth below and that Client agrees to be legally bound by them as of the first date of Client’s access and use of the Bufferloop Platform (the “Effective Date”). 

​This Agreement, together with the applicable Terms of Service, and Order Form(s) sets forth the terms under which Bufferloop will make its Platform and Services available to Client This Agreement includes the terms set forth in any applicable statements of work or Order Forms that reference this Agreement as well as the Bufferloop Terms of Service.

Section 1.   DEFINITIONS

All capitalized terms used herein shall have the meanings set forth in this Section 1: 

“Change Request” means a requested change to the Bufferloop Platform, out of scope of the services identified in this Agreement, made by Client to Bufferloop.

“Client Data” means collectively, all data, information and other materials (such as user profiles, configurations, preferences, registration data, and logs) furnished by or on behalf of Client including by Client Users or furnished by Partners in the course of participating in Client Partner Programs.

“Client Provided Data” means all data collected and/or provided by Client (including through Client’s website or CRM)  or from Partners participating in Client Partner Programs which use the Bufferloop Platform and tools (such as referral links, lead forms). 

“Client Customers” means customers which purchase or consume Client’s products and services.

“Client Users” means employees, contractors, consultants, suppliers, agents, auditors, legal counsel, and other representatives of Client who obtain and use provided log-in credentials to access the Bufferloop Platform. 

“Fees” means costs payable by Client for the Services in accordance with the fee schedule set out in Schedule “A”.

“Intellectual Property Rights” mean any and all intellectual property rights including copyrights, patent rights, trademark rights and any other intellectual property right anywhere in the world, whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection;

"Monthly Fees” means a percentage charged by Bufferloop on total Rewards earned by Partner(s) in a given month. 

“Bufferloop Platform” means the proprietary Software as a Service Platform offered by Bufferloop through which Client may manage its partner program(s) to enable Client’s partners to market, refer or sell Client’s product(s).  The Bufferloop Platform may only be used by Client (i) to build, manage, and grow its Client Partner Programs; (ii) provide information about Client Partner Programs including, if applicable, details about Client’s products or services and commissions; and (iii) communicate with potential Partners about entering into a Client Partner Program with Client. 

“Bufferloop User” or “Partner” means any third-party user of the Bufferloop Platform that obtains login credentials on behalf of a Client partner, reseller, influencer, community member or affiliate or who uses the Bufferloop Platform to participate in any Client Partner Program.

“Rewards” means any monetary or non-monetary rewards, bounties, commissions, or anything of value earned by Partners through Client Partner Programs that are payable by Client;

“Services” means all use of the Bufferloop Platform as described herein or as described in any Order Form .

 “Order Form” means the form describing the Services Client is purchasing from Bufferloop and all associated fees due and payable pursuant to this Agreement. 

Section 2.   SCOPE

2.1     Scope of Services.
Subject to Client’s compliance with the terms and conditions of this Agreement, Bufferloop will grant Client a non-exclusive, non-transferable license to the Services and the Bufferloop Platform during the Term. Client acknowledges and agrees the use of the Bufferloop Platform and the Services may require Client to complete and maintain the necessary technical integration with the Bufferloop Platform according to the instructions on the Bufferloop website (https://Bufferloop.com) through the installation, configuration, and use of the Bufferloop integration API or one of the supported integrations (https://docs.Bufferloop.com). Said integration is an express condition of Bufferloop providing the Bufferloop Platform and the Services. Bufferloop may, from time to time and in its discretion, update and modify the Bufferloop Platform during the Term provided that said updates and modifications do not result in materially diminished functionality to Client.

2.2     Restrictions on Use.
Client agrees that it shall not permit or enable others to:

(a) alter, modify, adapt, create derivative works based on, translate, deface, or reverse engineer, decompile or disassemble the Bufferloop Platform or any of the Services;

(b) use any aspect of the Services to create, market or distribute any product or service that is competitive with the Services or illegal; 

(c) transfer, sell, lease, license, sublicense, distribute, disclose or make available or permit use of or access to the Bufferloop Platform or any of the Services to any other person; 

(d) use any aspect of the Service in a manner that violates the Bufferloop Terms of Service located here: https://www.Bufferloop.com/policies; or 

(e) use the Bufferloop Platform and Services to create and manage Partner Programs for any products and services not offered by Client

2.3     Data Ownership.
Client shall retain all ownership and Intellectual Property Rights in and to Client Data. As between Client and Bufferloop, Client shall retain all ownership of Client Provided Data. During the Term, Client grants to Bufferloop a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit Client Data and Client Customer Data to: (i) provide the Services and Bufferloop Platform; (ii) improve and enhance the Services, the Bufferloop Platform and its other offerings; and (iii) produce data, information or other materials that cannot be identified as relating to a particular individual or company (such data, information and materials, the “Anonymized Client Data”). Bufferloop may use, process, store, disclose and transmit the Anonymized Client Data for any purpose and without restriction or obligation to Client of any kind provided that said Anonymized Client Data or Client Customer Data cannot be associated in any way with Client or Client’s customers.

2.4     Terms of Service for Users.
‍All Partners must create user accounts to access the Bufferloop Platform and accept Bufferloop’s terms of service and privacy policy to receive log-in credentials. Partners may participate in any partner programs on the Bufferloop Platform in addition to Client Partner Programs. Client is responsible for its Client User’s compliance with the then-current version of the Terms of Service located at https://www.Bufferloop.com/policies and all Client Users must accept the Terms of Service as a condition of accessing the Bufferloop Platform.

Section 3.   TERM; TERMINATION

3.1     Term.
‍This Agreement will commence on the Effective Date and continue to be in effect for the initial period set out in an Order Form (the “Initial Term”). The Initial Term will automatically renew for successive one year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either Party provides the other Party with written notice of its intention not to renew at least 60 days prior to the end of the then current Term.

3.2     Termination for Cause.
In addition to any other available rights and remedies, either Party may immediately terminate this Agreement in the event of material breach by the other Party of its obligations hereunder, including any of the representations, warranties and covenants hereunder, if such breach is not cured within thirty (30) days of written notification by the non-breaching Party of such breach. In addition, either Party may terminate this Agreement immediately upon written notice to the other if such other Party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other Party’s consent or if the other Party becomes insolvent and cannot pay its debts when they are due.

3.3     Effect of Termination.
Upon any expiration or termination of this Agreement, Client will have a fifteen (15) day period to access its account and download or export Client Data. After the fifteen (15) day period, Bufferloop will convert Client’s account to inactive status and Client Data will no longer be available. After termination, Bufferloop will maintain all Client Data for a period of not less than thirty (30) days after which time Client Data may be deleted unless prohibited by applicable law. Upon termination of this Agreement, (i) the rights granted by one Party to the other will immediately cease and Client shall have no further right to access the Bufferloop Platform; (ii) Bufferloop shall issue Client an invoice for all accrued Fees and Rewards which shall be immediately due upon Client’s receipt of the final invoice; (iii) Client will delete or return any software provided by Bufferloop in connection with the Services; and (iv) each Party will return or destroy all Confidential Information of the other Party.

Section 4.   CHANGES TO THE SERVICES

4.1     Change Requests.
‍Any requested changes to an Order Form will not be effective until both parties have signed an amendment changing the Services being provided.

Section 5.   REWARDS; FEES AND TAXES

5.1      Rewards.
‍Bufferloop will collect Rewards from Client, and Client will pay Bufferloop for all Rewards earned by Partners. Bufferloop will notify Partners when Rewards are collected from Client and are available. Upon a Partner’s request Bufferloop will remit Rewards collected from Client them, but Bufferloop shall have no obligation to remit any Rewards until it has received payment from Client and has received a remittance request. Any Rewards not collected by Partners within two years of Partner being notified of the availability of the Reward may only be redeemed if the Partner pays Bufferloop applicable administrative fees All payments to Partners in connection with Client Partner Programs must be processed through Bufferloop.

5.2      Fees.
‍Client will pay Bufferloop all Fees described in the applicable Order Form or Schedule “A”. Failure by Client to pay the undisputed Fees pursuant to Section 5.3 shall constitute a material breach of this Agreement and may result in the termination of this Agreement or suspension of access to the Service. Unless otherwise noted in the Order Form or Schedule “A”, all Fees shall be paid in advance in U.S. Dollars and are non-cancelable and non-refundable. The annual subscription fees for any Renewal Term will be subject to a 7% increase over the fees in the immediately preceding period.

5.3      Invoices.
‍Bufferloop will invoice Client for Rewards and Monthly Fees on Rewards on a monthly basis and for subscription Fees on an annual basis on each anniversary of the effective date of this Agreement, and each invoice will categorize amounts due accordingly. Unless otherwise expressly stipulated in an invoice, on an Order Form or Schedule “A” Client will pay: (i) all invoiced subscription Fees upon receipt; and (ii) all invoiced amounts for Rewards and Monthly Fees on Rewards within 7 calendar days of the invoice date.  Any discrepancies regarding the invoiced amounts must be reported to Bufferloop within 5 calendar days of invoice or they will be deemed correct.

5.4      Taxes.
‍Each Party shall be liable for its own taxes based upon net income, capital or gross receipts. All Fees are exclusive of all applicable taxes such as national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees.

Section 6.   REPRESENTATIONS, WARRANTIES AND COVENANTS

6.1     Mutual.
‍Each Party represents and warrants that (i) the execution and delivery of this Agreement will not breach any contractual duty it has to a third party; and (ii) it has and will have full and sufficient right, title or authority to enter into and perform its obligations under this Agreement; and (iii) they will perform their obligations under this Agreement in full compliance with applicable law.

6.2     DISCLAIMER.
‍EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, Bufferloop MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY NATURE, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN RESPECT OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS RESPECTING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ARISING BY STATUTE, OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, Bufferloop DOES NOT WARRANT THAT THE PROVISION OF THE SERVICES TO CLIENT WILL BE UNINTERRUPTED OR ERROR-FREE.

Section 7.   CONFIDENTIALITY

7.1     Definitions.
‍For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s customers, suppliers, technology or business, and where Discloser is Client includes Client Data; provided that Discloser’s Confidential Information does not include: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

7.2      Protection of Confidential Information.
‍Receiving Party shall: (a) hold all Confidential Information of Disclosing Party in confidence; (b) not use or copy such Confidential Information except for purposes of and as permitted by this Agreement; (c) not disclose such Confidential Information or the provisions of this Agreement except to its directors, officers, employees or agents who have a need to know such information for purposes of and as permitted by this Agreement. Each Party agrees to use the same means it uses to protect its own confidential information of a like nature, but in any event, not less than reasonable means, taking into consideration the sensitivity and nature of the Confidential Information in question, to prevent the disclosure of Disclosing Party’s Confidential Information to third parties. Receiving Party shall be relieved from its obligations under this Section 7.2: (i) to the extent the Disclosing Party gives its prior written consent; or (ii) to the extent necessary to comply with applicable laws or regulations, or judicial or governmental order, provided that such Receiving Party uses commercially reasonable efforts to provide prior written notice of such disclosure (to the extent such disclosure is not required to be made immediately) to Disclosing Party to afford Disclosing Party the opportunity to seek a protective order. Receiving Party will promptly notify Disclosing Party in writing of any unpermitted disclosure or unpermitted use of any Confidential Information of Disclosing Party of which Receiving Party becomes aware.

7.3     Remedies.
‍Receiving Party agrees that Disclosing Party may be irreparably injured by a breach of this Section 7 and that Disclosing Party may be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any appropriate court to prevent breaches of this Agreement and to specifically enforce the terms and provisions hereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.

Section 8. Bufferloop’S INTELLECTUAL PROPERTY RIGHTS

8.1     Ownership.
Bufferloop or its licensors retain all ownership and intellectual property rights in and to: (i) the Services and the Bufferloop Platform; (ii) anything developed or delivered by or on behalf of Bufferloop under this Agreement; and (iii) any modifications to the foregoing (i) and (ii). Other than as specifically licensed herein, Client shall obtain no rights to the Bufferloop Platform or the Services. If Client provides Bufferloop with any feedback during the Term, Bufferloop shall have a perpetual right to use and incorporate same at its discretion.  All rights not expressly granted by Bufferloop to Client under this Agreement are reserved.

Section 9.   INDEMNITY AND LIMITATION OF LIABILITY

9.1     By Client.
‍Client agrees to defend, fully indemnify and hold harmless Bufferloop from and against any and all claims, demands, suits, actions, causes of action and/or liability, of any kind whatsoever (each a “Claim”), for damages, losses, costs and/or expenses (including legal fees and disbursements) (“Losses”) arising out of or relating to: (i) Client Data, including but not limited to, Client’s failure to comply with applicable laws with respect to the collection of Client Data, including obtaining all necessary consents and permissions for the transfer of Client Data to Bufferloop; (ii) Client’s breach of Sections 2.2 (Restrictions on Use); or (iii) unauthorized use of Services by Client or any Client User.

9.2     By Bufferloop.
(a) Bufferloop shall indemnify and defend any Claim brought against Client arising out of or relating to any allegation that Client’s use of the Services infringes a third party’s Intellectual Property Rights (an “IP Claim”). Bufferloop’s indemnity obligation will apply to any Losses that: (i) a court finally awards as a result of any IP Claim; or (ii) are agreed to by Bufferloop in any settlement arising from any IP Claim, in each case subject to this Section 10; provided, that Bufferloop shall have full control over the defense of the IP Claim and (x) any settlement or resolution entered into by Bufferloop shall not require an admission of liability or any payment by Client, (y) Client has not made any admission against Bufferloop’s interests and has not agreed to any settlement of any claim or demand without Bufferloop’s consent, and (z) Client shall cooperate with Bufferloop in the defense of the claim, at Bufferloop’s expense. 

(b) Notwithstanding anything herein to the contrary, Bufferloop will have no obligation or liability to Client under this Section 9.2 if: (i) the IP Claim is based upon, arises out of or is related to (a) the combination of any of the Services with any other software, hardware or products not provided by Bufferloop; (b) the use of the Services for other than their intended purpose; or (c) modifications, improvements and derivative works of Bufferloop created by or on behalf of Client; (ii) Client is in material breach of this Agreement or has failed to pay amounts due hereunder as set forth in Section 5; or (iii) Client fails to notify Bufferloop of the IP Claim in a prompt manner and the delay results in prejudice to Bufferloop.

(c) If any part of the Services become the subject of an IP Claim, Bufferloop may, at Bufferloop’s option and expense, (i) procure for Client the right to continue using the Services; (ii) replace or modify the Services with a non-infringing version of substantially equivalent function and performance; or (iii) terminate this Agreement and refund to Client on a pro rata basis any prepaid but unused subscription fees. The obligations of Bufferloop set forth in this Section 9.2 shall constitute the sole and exclusive remedy of Client with respect to any IP Claim.

9.3     Cooperation.
‍In connection with any Claim or action described in this Section 9, the Party seeking indemnification will (i) give the indemnifying Party prompt written notice of such Claim or action; (ii) cooperate with the indemnifying Party (at the indemnifying Party’s expense) in connection with the defense and settlement of such Claim or action, and (iii) permit the indemnifying Party to control the defense and settlement of such Claim or action; provided that the indemnifying Party will not under any circumstances (a) settle such Claim or action without the indemnified Party’s prior written consent (which will not be unreasonably withheld or delayed), or (b) make an admission of liability on behalf of the indemnified Party without the indemnified Party’s prior written consent and further provided that the indemnified Party shall be entitled to participate (at its expense) in the defense and settlement of such Claim or action.

9.4     Limitation of Liability.
‍(a)  Neither Party will be liable for any indirect, special incidental, consequential, punitive or exemplary damages, or lost profits including, without limitation, loss of revenue, regardless of the form of action, whether in contract or in tort including negligence, even if the Party knew or should have known of the possibility of such damages and even if direct damages do not satisfy a remedy.

(b)   Except as set forth in Section 9.4(c), neither Party’s liability for damages under this Agreement (whether in contract or tort, including negligence, or otherwise) will in any event exceed the aggregate amount paid by Client pursuant to this Agreement in the six (6) month period preceding the event giving rise to the damages.

(c)  The limitations provided for in Section 9.4(b) will not apply to Claims arising from: (i) any failure of Client to pay any Fees or Rewards; or (ii) any breach of Section 2.2 (Restrictions on Use), or Section 7 (Confidentiality).

Section 10. DISPUTE RESOLUTION

10.1     Arbitration.
‍(a) Except for actions relating to Client’s failure to pay any invoiced Fee or Reward (which shall be settled through the appropriate court system), the Parties will resolve any dispute arising out of or relating to this Agreement as set forth in this Section 10.1.  

(b) If a dispute occurs between the Parties so that one party is considering legal action against the other Party, then notice shall be provided by the party to the other Party of such dispute and the parties will endeavor in good faith to resolve same. In the event the parties are unable to resolve the dispute within five (5) days of the receipt of such notice, then such dispute shall be escalated to the immediate supervisors of such representatives, who shall have an additional ten (10) days to resolve such dispute.

(c) If the dispute is not resolved pursuant to Section 10.1(b), the dispute will be referred to and determined by arbitration in accordance with (i) the National Arbitration Rules of the ADR Institute of Canada, Inc. (the “NADR Rules”) if the governing law of this Agreement is Ontario and (ii) the Commercial Dispute Rules of JAMS/Endispute (“JAMS”) or American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes (“CARASP”), at Bufferloop’s discretion, if the governing law of this Agreement is in the United States.  Either Party may commence the arbitration.  The site of the arbitration will be the same as the venue for the governing law. 

(d) The arbitration will be conducted in English before a single arbitrator. If the Parties do not agree on the arbitrator within 15 days of the referral to arbitration, then the arbitral tribunal will be appointed by the ADR Institute of Canada or pursuant to the procedures set out in the CARASP.  The arbitral tribunal will be conducted on an expedited basis and will render its final award and the reasons for the award within 45 days of the conclusion of the hearing, unless such time is reduced or extended by the tribunal after giving the parties an opportunity to be heard.  Any award or judgment on an award and any award for interim relief may be entered in any court having jurisdiction and will be final and binding on the parties and will not be subject to appeal. No Party is prohibited from seeking interim, interlocutory, or expedited remedies (including the use of arbitration rules providing for emergency measures of protection), in any forum having jurisdiction, including remedies to preserve or protect trademarks, Confidential Information, copyrights, or trade secrets or for extraordinary relief such as an injunction or eviction. In addition to any other restriction on the tribunal in this Agreement, in no event will the arbitral tribunal award, or have any jurisdiction to award, punitive or exemplary damages against any Party.  No arbitration award will have an effect of preclusion or collateral estoppel in any other adjudication or arbitration.

Section 11.   GENERAL PROVISIONS

11.1     Third Party Software and Service.
The Bufferloop Platform may provide links and access to third party software and services.  The use of such third party software and services are governed by the terms of the third party provider and are binding on Client.  Bufferloop does not provide any warranties, and has no liability or obligation to Client, with respect to third party software and services.  Copies of the applicable license agreement between third party providers and Client are available on the Bufferloop website or by contacting Bufferloop.

11.2 Assignment.

Client will not assign this Agreement to any third party including in the event of merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without informing Bufferloop in writing. If Bufferloop in its reasonable discretion does not agree to assignment and/or transfer of rights in this Agreement, then Bufferloop may either, in its sole discretion: (i) terminate this Agreement and refund Client Subscription Fee on pro-rated basis; or (ii) mutually agree, with Client, on a revised Client Subscription Fee for the remainder of the Term. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.

11.3 Relationship of Parties.

In all matters relating to this Agreement, Bufferloop and Client are independent contractors and nothing will be construed to create any association, partnership, joint venture, or relationship of agency or employment between Bufferloop and the Client.

11.4 Publicity.

Client authorizes Bufferloop to (i) include Client in any user or subscriber list; and (ii) use Client’s name and/or trademarks for marketing and publicity on its website, in marketing materials and/or in press releases.

11.5 Excusable Delays.

Should Bufferloop incur any delay in the provision of the Services resulting from any errors, defects or other problems contained in the information, materials and/or instructions provided to it by Client, Bufferloop shall be excused from performance during the period of such delay and Client shall remain liable for any Fees incurred during such delay.

11.6 Force Majeure.

Except as relating to Client’s payment obligations, neither Party shall be liable to the other for a failure or delay in the performance of any obligation under this Agreement if such failure or delay is caused by an event beyond a Party’s control, including, but not limited to, any fire, power failure, act of God, labour dispute or government measure or other cause beyond such Party’s reasonable control (a “Force Majeure Event”), provided that such Party gives prompt written notice of the Force Majeure Event to the other Party and resumes performance of its obligations as soon as possible. Either Party may terminate this Agreement without penalty if such delay due to a Force Majeure Event continues for a period of ninety (90) days without cure.

11.7 Survival.

The following sections shall survive the expiration or termination of this Agreement in addition to any other provision which by law or by its nature should survive: Section 3.3 (Effect of Termination); Section 5 (Rewards; Fees and Taxes); Section 6.3 (Disclaimer); Section 7 (Confidentiality); Section 8 (Bufferloop’s Intellectual Property Rights); Section 9 (Indemnity and Limitation of Liability); Section 10 (Dispute Resolution); and Section 11.8 (Governing Law). Client’s obligations in respect of any Fees and Rewards owing shall also survive, whether or not such Fees or Rewards have been invoiced by Bufferloop.

11.8 Governing Law.

If Client is incorporated outside Canada, then this Agreement shall be governed by and construed in accordance with the laws of the State of New York, excepting its choice of law provisions, and the Parties hereby agree to irrevocably attorn to the exclusive jurisdiction of the courts of the State of New York and the venue of Buffalo.  If Client is incorporated in Canada, then this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, excepting its choice of law provisions, and the Parties hereby agree to irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Ontario and the venue of Toronto.

11.9 Notices.

All notices under the terms of this Agreement shall be both 

(i) sent by email to [email protected] and 

(ii) given in writing and sent by registered mail or email or shall be delivered by hand to the following addresses:

‍

[Account.Name]

Address:  As set out on the order Form  

‍

Bufferloop, Inc.

Address:       

A206, Redtag Internet pvt ltd

Sai Arcade, Opp ST stand 

Panvel, Maharashtra, 410206

India

‍

Attention: Legal Department

Email: [email protected]

‍

or to any other person or address of which either Party may notify the other in writing from time to time. All notices shall be presumed to have been received when they are hand delivered, transmitted by email or five (5) days following the day of facsimile transmission.

11.10 Severability.

If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct.

11.11 Waiver.

A waiver of any provision of this Agreement shall only be valid if provided in writing and shall only be applicable to the specific incident and occurrence so waived. The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, shall not act as a waiver of any right, promise or term, which shall continue in full force and effect.

11.12 Remedies Cumulative.

No single or partial exercise of any right or remedy under this Agreement shall preclude any other or further exercise of any other right or remedy in this Agreement or as provided at law or in equity. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity.

11.13 Number and Gender.

Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders.

11.14 Amendment.

This Agreement may only be amended by written agreement duly executed by authorized representatives of the Parties.

11.15 Counterparts and electronically transmitted.

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. A document signed and transmitted electronically by facsimile or email is to be treated as an original and shall have the same binding effect as an original signature on an original document.

11.16 Entire Agreement.

This Agreement and the Order Form attached hereto shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall replace all prior promises or understandings, oral or written.

End of Agreement – Schedules to Follow

SCHEDULE “A”

“SOFTWARE AS A SERVICE” SERVICES

The Services: As outlined in your Order Form

Support and Success:

Email and Web Support. Client will generally have access to Bufferloop’s technical support through email at [email protected], or through the web site at https://docs.Bufferloop.com.

Onboarding Support. Client will work with a Bufferloop:

(a) onboarding specialist to support Client’s onboarding to Bufferloop, as well as program migration from other partner platforms and Client Partner Program launch on Bufferloop.

(b) solutions architect to support Client with required integrations between Bufferloop and Client systems.

Continued Support. Client will work with a Bufferloop: Customer Success Manager to support Client with user training, and to assist Client in scaling their Client Partner Program with Bufferloop best practices.

Fees:

Unless otherwise agreed to by the Parties in writing, Client will pay Bufferloop the following fees:

Subscription Fee: An annual Subscription Fee set out in the order form and due upon execution of this agreement.

Monthly Fee on Rewards earned by Partners:

(a) a monthly fee in the amount of (as set out in the Order Form) of the Rewards earned by Partners in such month, for Partners that are brought to Client’s program by Client.

(b) a monthly fee in the amount of (as set out in the Order Form) of the Rewards earned by Partners in such month, for Partners that are brought to Clients program by Bufferloop, either through the Bufferloop Marketplace or directly referred to Client’s program by Bufferloop.

SCHEDULE “B”

SERVICE LEVEL AGREEMENT

This Service Level Agreement (“SLA”) is part of each Client’s SaaS Agreement (the “Agreement”). If the terms of this SLA conflict with the terms of the Agreement (or any other agreement with Client), this SLA shall apply, but only to the extent of such conflict. Capitalized terms used but not defined in this SLA will have the meaning assigned to them in the Agreement. 

If Bufferloop does not achieve the Service Levels set forth herein, Client may be eligible for a credit towards a portion of Client’s Subscription Fee. This SLA will not change during the Initial Term, however, the then-current SLA shall apply during any Renewal Term. We will provide at least 60 days’ notice of any material change to this SLA. 

Definitions:

“Annual Fee” means Client’s total annual Subscription Fee paid and which shall form the basis of any Service Credit owed under this SLA; 

“Downtime” means any period of time when Client’s users are not able to log into the Bufferloop Platform. Downtime does not include any unavailability of the Bufferloop Platform for routine or scheduled maintenance.  

“Bufferloop Platform” has the meaning assigned to it in the Agreement. 

“Service Credit” is the percentage of the applicable annual Subscription Fee  Client may obtain as described herein;

“Service Level” means the availability of the Bufferloop Platform set forth in Section 2 below. 

“Support Business Hours” means Bufferloop’s normal business hours of 9am-5pm EST, excluding weekends and Canadian statutory holidays. 

Service Levels:

Bufferloop will make commercially reasonable efforts to provide the Platform no less than 99.50% of the time each calendar month (the “Availability Service Level”).  The Availability Service Level will be calculated by subtracting the total minutes of Platform Downtime from the total number of minutes during each month and dividing that result by the number of minutes in that month. If Bufferloop fails to meet the Availability Service Level in any calendar month during the Term, Client will be entitled to request credits as follows:

Bufferloop’s Severity Levels and Response Times:

Bufferloop shall make commercially reasonable efforts to respond to Platform issues (and update Client regarding same) as set forth in the table below.

Support Service Availability:

Bufferloop offers Support Business Hours for In-App and email support issues.  Response to any emails or other contacts received outside of Support Business Hours will be provided during the next business day. 

Service Credit:

To request a Service Credit, Client must submit the request in writing to Bufferloop and include all information necessary for Bufferloop evaluate the claim.  Client should include: (i) a general description of the incident or issue; and (ii) the total Client Downtime claimed.  Client shall waive all claims for Service Credits if not property submitted within ten (10) days of the incident. No Service Credit will be owed if Client is not in compliance with the Agreement. 

Bufferloop will evaluate all reasonably available information regarding the incident and make a good faith determination of Client’s request for a Service Credit . We will use commercially reasonable efforts to process your credit request within forty-five (45) days of receipt the request. All allowed Service Credits will be applied to Fees invoiced during the month immediately following Bufferloop’s determination. 

Payment of Service Credits as set forth herein are Clients sole and exclusive remedy for any performance or availability issues related to the Services or the Platform.  Failure to meet the SLA described herein shall not be considered a breach of the Agreement.

Limitations:

This SLA and any applicable Service Level do not apply to any performance or availability issues caused or contributed to by: 

• Factors outside Bufferloop’s reasonable control including any Force Majeure Event (including at your site or between your site and our data center); 
• Use of services, hardware, or software not provided by Bufferloop;
• Your use of a Service after we advised you to modify your use of the Service (if you did not modify your use as advised). 
• Your acts or omissions or from your employees, agents, contractors, or vendors, or anyone gaining access to Bufferloop’s network by means of your passwords or equipment, or otherwise resulting from your failure to follow appropriate security practices.

Introduction and Definition

Bufferloop Inc. operating as Bufferloop (“Bufferloop”, “we”, ”us”) is committed to protecting your data and your customers’ data. We review this policy regularly to help ensure continued compliance with applicable regulatory and legislative regimes governing personal information and data collection. This Data Security and Privacy Policy (the “Policy”) describes how we collect, store, use and distribute information and data that you submit to us through the use of our Services, including without limitation, the PII (as defined below) of your end users.

This Policy does not impose any limits on the collection, use or disclosure of aggregate information that cannot be associated with a specific individual, or information that is otherwise determined to be Non-PII (as defined below).

• “Companies”, “Company”, "Vendor" or “you” refers to the entities that are using Bufferloop for their Partner Programs.
• “Customer Data” refers to the information collected from End Users through the Vendor’s website. This may include, but is not limited to, first name, last name, email address, IP address, and transactional information to facilitate Partner program(s) requirements.
• “End Users” refers to the customers that are referred to Vendors by Partners in their Partner Programs.
• “Partner(s)” refers to the Partners in the Vendor Partner Programs. Partners include, but are not limited to, resellers, affiliates, advocates, and ambassadors of the Vendor/Company.
• “Partner Data” refers to the information collected from Partners through the Vendor’s website. This may include, but is not limited to, first name, last name, email address, the location of posted referral links, and transactional information to facilitate Partner program(s) requirements.
• “Partner Programs” refers to any (but not limited to) reseller, affiliate, advocates, and ambassador programs, campaigns intended to create sales.
• Personally Identifiable Information (“PII”) collected by ParterStack refers to information that may personally identify an individual. This includes, but is not limited to, first name, last name, e-mail, IP address, postal address, date of birth, phone number and may include subscriptions to the Vendor services. We may collect such information about Vendors, Partners, and Customers.
• Non-Personally Identifiable Information (“Non-PII”) collected by Bufferloop refers to information of an anonymous nature and aggregate information. Aggregate information may include, but is not limited to, usage statistics and demographic statistics with regards to Vendors, Partners, and Customers.
• “Services” refers to Bufferloop’s collection, processing and storage of data which is used to facilitate Partner Programs for Vendors. The collection of data is performed through the Vendor’s website.
• “Vendor Data” refers to the information collected from Vendors. This may include, but is not limited to, first name, last name, email address, IP address, and transactional information to support its Partner program(s) requirements.

Consent Disclosure

By using our Services, entities consent to the use of Partner Data and Customer Data as described in this Policy.

• “Customer Data” refers to the information collected from End Users. This may include, but is not limited to, first name, last name, email address, IP address, and transactions on the Vendor’s website.
• Except as set forth in this Policy, Vendor Data, Partner Data, and Customer Data will not be used for any other purpose without the consent of the Vendor, Partner or Customer, as applicable. We do not collect Vendor Data, Partner Data, or Customer Data for the purpose of sales or marketing in a way that specifically identifies individuals, and will implement reasonable efforts to help ensure this is met.

Purposes of Collection of Data

• We aim to collect only such information as is required to enable us to manage Vendor and Partner accounts, to provide the Services, service improvement, fraud prevention, and for other legitimate business purposes.
• We will maintain and implement necessary safeguards for Vendor Data, Partner Data, and Customer Data provided to us through the use of the Services.
• We will use the PII of Vendor, Partner, and Customer for the purposes specified above in this section (subject to the exclusions and disclosures we have listed under the section entitled Important Exceptions)
• Two types of information may be collected and processed through our Services:
  
  i. PII: This information is collected by Bufferloop andVendors directly or through third-parties that may integrate with Bufferloop and Vendors. The basis for collecting this information is for the provision of our Services.
  
  ii. Non-PII: This information is collected by Bufferloop and Vendors directly or through third-parties that may integrate with Vendors.The basis for collecting this information is for the provision and enhancement of our Services.
• Bufferloop does not knowingly collect any information from or about children under the age of 16.  If we become aware that we have received any such information, we will take steps to delete this information as soon as possible.

Use and Purposes for Processing of Data

• We use collected data in order to provide and enhance our Services, as well as for fraud prevention.
• Vendor Data, Partner Data, and Customer Data may be shared with third-parties only to the extent which is necessary to provide our Services. Data transfers will be secured and managed based on the sensitivity of the data.
• We collect aggregated statistics about the Vendors’ and Partners' use of our Services, and this information will be kept confidential.  However, Non-PII will be retained by us and may be made available to other members or third-parties as per our discretion to improve our services.
• If we plan to use PII in the future for any other purposes not identified in this Policy, we will only do so after informing you, and obtaining consent on the updates to this Policy.
• This Policy does not apply to the security or privacy practices of such third parties.

Cookie Disclosure

• We collect both "persistent" cookies and "session" cookies (“Cookies”). A persistent cookie will be stored by a web browser and will remain valid until its set expiry date, unless deleted by the user before the expiry date. A session cookie will expire when the web browser is closed.
• Our service providers may use Cookies and those Cookies may be stored on Vendor, Partner, or Customer computers when our website is visited by those individuals.
• We use Cookies in order to provide and improve upon our Services, and for the following additional reasons: authentication, status, personalisation, security, analysis, and consent.
• Cookies may be refused by the website visitor.

Security Safeguards

• The security of Vendor Data, Partner Data, and Customer Data is important to us. We use commercially reasonable efforts to store and maintain data in a secure environment. We take technical, contractual, administrative, and physical security steps designed to protect Vendor Data, Partner Data and Customer Data, including the encryption of data and secure storage.
• We use Google Cloud Platform (GCP) automated services, as well as various other third-party security services to automate security assessment and improve the security and compliance of our applications.
• We share Vendor Data, Partner Data, and Customer Data only with our trusted subprocessors, such as service providers and database hosts. We use the Google Cloud Platform (GCP) service and accordingly Vendor Data, Partner Data and Customer Data may be available to governments or its agencies anywhere in the world, under a lawful order, irrespective of the safeguards we have put in place for the protection of such data.
• We have implemented procedures designed to limit the dissemination of Vendor Data, Partner Data, and Customer Data to only such designated staff as are reasonably necessary to carry out the stated purposes described in this Policy.
• We may employ third parties to help us improve the Services. These third parties may have limited access to databases of user information solely for the purpose of helping us to improve the Services and they will be subject to contractual restrictions prohibiting them from using the user information about our members for any other purpose.
• Disclosures & Transfers: We have put in place contractual and other organizational safeguards with our agents to ensure an adequate level of protection of Vendor Data, Partner Data, and Customer Data. In addition to those measures, we will not disclose or transfer Vendor Data, Partner Data, orCustomer Data to third parties except as specified in this  Policy (see further Important Exceptions).

For more details on how we protect your data, please see our security practices.

For more details on our subprocessors, please see our subprocessors policy.

Data Subject Requests

• We have implemented measures in order to meet data and security obligations  with respect to data subject rights, including but not limited to:
  i. Right to know
  ii. Right to accuracy
  iii. Right to be forgotten
  iv. Right to access
  v. Withdrawal of Consent
• Vendors have the right to access the Partner Data and Customer Data we hold. Upon receipt of your written request, we will provide you with a copy of your Customer Data although in certain limited circumstances, we may not be able to make all relevant information available to where such disclosure would result in a breach of our confidentiality obligations to our stakeholders. In such circumstances we will provide reasons for the denial to you upon request. We will endeavour to deal with all requests for access in a timely manner.