Benelinx Subscription Agreement

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Benelinx Subscription and Services Agreement

This Benelinx Subscription and Services Agreement (“Agreement”) is made between the individual or entity using the Benelinx Platform pursuant to this Agreement (“You” or “Your”) and Benelinx, LLC (“Benelinx” or “we”, “us”, or “our”) and, with all Order Forms (each as defined below) entered into between the parties governs all Services provided or performed by Benelinx to You.

By accepting an Order Form or clicking “I agree” and accessing or using the Platform, You agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of an entity, by accepting an Order Form or clicking “I agree” you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to the terms of this Agreement, do not accept the Order Form or click “I agree”.

PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS OUR SERVICES IN ANY MANNER. SECTION 22 BELOW HAS A MANDATORY ARBITRATION PROVISION AND WAIVER OF CLASS ACTION RIGHTS. BY AGREEING TO THIS AGREEMENT, YOU AGREE TO THOSE PROVISIONS.

1. Definitions. Terms used in this Agreement have the following definitions or those given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.
   “Account” means the individual account each User creates to access and use the Platform.
   “Account ID” means the user name and password each User creates to access his/her Account.
   “Client” means the individual whose information You enter into or otherwise process on the Platform.
   “Deliverable” means the output of the Professional Services, including, without limitation, any software, products, works, or other intellectual property created or otherwise provided by Benelinx to You in connection with Benelinx’s performance of the Professional Services.
   “Documentation” means all Benelinx user manuals, operating instructions, and other documentation relating to the Platform, as generally made available by Benelinx to You from time to time.
   “Non-Benelinx Service(s)” means any third-party products and/or services we may offer or make available to You on our Platform or that you otherwise access through our Platform.
   “Order Form” means, as applicable, a Quote or Statement of Work accepted by You and Benelinx.
   “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household.
   “Platform” means the software-as-a-service which Benelinx makes available to You under this Agreement and, if applicable, one or more Quote(s). As used herein, the term “Platform” includes the software used by Benelinx to operate the Platform and all applicable Documentation.
   “Professional Services” means any implementation, conversion, training, development, consulting, or other professional services provided by Benelinx to You pursuant to this Agreement and one or more Statement(s) of Work.
   “Quote” means any quote, online order form, or other ordering document through which you request and/or acquire access to or use of the Platform.
   “Services” means the Platform and/or any Professional Services that Benelinx provides to You under this Agreement.
   “SFDC” means salesforce.com.
   “SFDC Platform” means the online application and platform service made available by SFDC at www.salesforce.com.
   “SFDC TOU” means the SFDC terms of use that governs Your use of the SFDC Platform when used with our Platform as more fully described below in Section ____, and as updated from time-to-time and available at: https://c1.sfdcstatic.com/content/dam/web/en_us/www/documents/legal/Agreements/alliance-agreements-and-terms/Reseller-Pass-Through-Terms.pdf
   “Statement of Work” or “SOW” means a statement of work executed by Benelinx and You pursuant to which Benelinx will provide Professional Services to You.
   “User” means each individual, including You, Your employees, representatives, consultants, contractors, or agents, who are authorized to use the Platform
   “You” and “Your” mean the person who uses or accesses the Platform and includes any entity on whose behalf you are using this Platform.
2. Provision of Platform. Our Platform offers software and services to help You manage Your Client sales and renewal lifecycle, streamline employer market analysis, generate rates for Your Clients, and automatically generate employee marketing materials, among other things. We provide and make our Platform available to You subject to this Agreement and any Quote we accept through which you acquire access to or use of the Platform.
3. Account Subscription. You will be provided one (1) Account for each individual Account subscription you purchase, and only one User may use an Account in order to access and use the Platform. Each Account and Account ID is personal in nature and may only be used by the User who creates the Account. You will not allow any access to Your Accounts or Your Account IDs by anyone other than You and your authorized Users. You agree to change any Account ID (or close the applicable Account) immediately if an Account ID is lost, stolen or otherwise compromised and to immediately notify us of such an incident. You are fully responsible for all use of Your Accounts and Your Account IDs (whether lawful or unlawful) and for any actions taken through Your Accounts (or using Your Account IDs). You agree that all information provided in connection with establishing Your Accounts: (1) will be true and complete; and (2) will be promptly updated and kept accurate and current. Neither You nor Your Users may: (a) select or use an Account ID of another person with the intent to impersonate that person; or (b) select or use an Account ID that Benelinx, in its sole discretion, deems offensive in whole or in part. You authorize Benelinx to access any Account, including any Content (as defined below) as necessary to administer or configure the Platform.
4. Your Access to and Use of the Platform. Subject to Your compliance with this Agreement, during the Term, Benelinx grants You and Your authorized Users a limited non-exclusive license to use and access the Platform solely for Your own internal business purposes, in accordance with all applicable Documentation and as specified in the applicable Quote. You will not, and will not permit any third party to: (A) access or attempt to access the Platform except as expressly provided in this Agreement; (B) use the Platform in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Platform; (C) use automated scripts to collect information from or otherwise interact with the Platform; (D) alter, modify, reproduce, or create derivative works of the Platform; (E) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Platform or otherwise make the Platform available to any third party; (F) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Platform; (G) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Platform; (H) monitor the availability, performance or functionality of the Platform; or (I) interfere with the operation or hosting of the Platform.
5. The SFDC Platform. The Platform is developed and operates on the SFDC Platform and is hosted by SFDC. This Agreement allows You to use the SFDC Platform as part of Your use of our Platform, but does not entitle You to use any other SFDC product or services. In addition to terms of this Agreement, your access to and use our Platform is subject to the SFDC TOU. You may use the SFDC Platform solely as part of Your use of our Platform and solely to use the functionality of the Platform in the form it has been provided to You by Benelinx. The SFDC TOU applies to the SFDC Platform, as applicable, but will not otherwise apply to Your access to or use of the Platform. Except as set forth in this Agreement, in the event of a conflict between the terms of this Agreement and the SFDC TOU, the terms of the SFDC TOU will control with respect to Your access to and use of the SFDC Platform provided under the SFDC TOU. Unless otherwise indicated in an order form entered into with SFDC, You may not use the Platform to create or use custom objects beyond those that appear in the Platform in the form that it has been provided to You by Benelinx. Similarly, You may not use the Platform to merge SFDC standard and custom objects outside the Platform’s intended functionality. If Your access to the Platform provides You with access to any SFDC Platform functionality within it that is in excess of the functionality described in the Platform’s user guide, You agree not to access or use such functionality. You agree that Your noncompliance with the terms set forth in this paragraph would be a material breach of the SFDC TOU.
6. Non-Benelinx Services. Benelinx or other third parties may make available to You certain Non-Benelinx Services on or through our Platform. Except as expressly set forth in this Agreement, Your use or acquisition of or interaction with Non-Benelinx Services and any exchange of data or information between you and any Non-Benelinx Service provider is solely between You and that Non-Benelinx Service provider. Your use of Non-Benelinx Services may be subject to and governed by those applicable third-parties’ terms and conditions (“Non-Benelinx Service TOU”), but those terms and conditions will not otherwise apply to Your access to or use of our Platform. In the event of a conflict between the terms of this Agreement and the terms and conditions of a Non-Benelinx Service provider, the terms of the Non-Benelinx Service provider will control with respect to Your access to and use of their services only. We do not warrant or support any Non-Benelinx Services or service providers, whether or not we recommend them or their services, or designate them as preferred, certified or otherwise. If You install, enable, or interact with a Non-Benelinx Service, You agree that we may allow access to Your data or information, which may include Your Client Personal Information, as required to enable the interoperation of that Non-Benelinx Service with our Platform. We are not responsible for any processing, handling, disclosure, modification or deletion of any of Your data or information resulting from that Non-Benelinx Services interaction with or provision of services to You.
7. Your Client Information. In using or accessing our Platform, You may enter or process your Client information on our Platform, which may include Client Personal Information. With respect to any such Client information, you agree, represent, and warrant that: (A) as between Benelinx and You, that You are the Controller or Owner of Your Client Personal Information and that You are the Business that collects that Personal Information as those terms are defined under applicable law; (B) You have the right and obtained all necessary permission and consents to enter or process the Client information on our Platform; (C) the Client information You enter or process on our Platform is accurate and correct; and (D) You will provide any necessary or legally required notices or disclosures to Your Clients relating to Your Disclosure or Processing of Client Personal Information on our Platform. To the extent that Benelinx processes or discloses Your Client Personal Information, Benelinx: (a) acts as a service provider or processor as those terms are defined under applicable law and does so strictly in providing our Platform to You and in accordance with Your instructions; (b) may only retain, process, use, and/or disclose Client Personal Information solely to provide the Platform to You; (c) is strictly prohibited from retaining, using, and/or disclosing Your Client Personal Information for any reason or purpose other than providing the Platform to You; and (d) does not receive any monetary and/or other valuable consideration for disclosing Your Client Personal Information to third parties.
8. Safeguarding of Your Client Information. We will maintain reasonable administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of your Client information. You acknowledge and agree that Benelinx may monitor, record, and/or audit Your or Your authorized users use of or access to our Platform to protect the security of our Platform and Your Client information. If You are using the Platform on behalf of a business entity, You will notify Benelinx within twenty-four (24) hours, if any authorized Users leaves Your organization, is terminated, or in any other way ends it relationship with Your organization. In the event You become aware of any unauthorized access to the Platform, You will immediately notify Benelinx. If Benelinx becomes aware of any unauthorized access to or acquisition of Your Client Personal Information that requires notification under applicable law, we will notify You without undue delay, and reasonably investigate and cooperate in any investigation of the unauthorized access. Each party will take appropriate measures to comply with any notification obligations under applicable law.
9. Platform Support. Benelinx will provide You with email and telephone support for current versions of the Platform during its normal business hours. You agree to provide Benelinx such information and assistance it reasonably requests to investigate Your issues and to confirm that they have been resolved. Benelinx will promptly investigate all Your questions and problems and use commercially reasonable efforts to respond to support queries within 1 business day. You may only contact Benelinx for technical support.
10. Professional Services.
    • 10.1 Scope of Professional Services. Benelinx will perform the Professional Services, including providing all Deliverables, as set forth in or contemplated by the applicable Statement of Work. Except as the parties may expressly agree in writing, each Statement of Work shall be governed in all respects by the terms and conditions of this Agreement. All Professional Services shall be described and documented in a Statement of Work unless otherwise expressly agreed to by the parties in writing.
    • 10.2 Changes in Scope of Professional Services. Subject to any additional requirements described in an applicable Statement of Work hereunder, either party may propose changes to the scope of the Professional Services to be provided pursuant to such Statement of Work by delivery of a written notification to the other party describing the desired changes (“Change Request”). Upon delivery of a Change Request, the parties shall negotiate in good faith any modifications necessary to the applicable Statement of Work, including, but not limited to, changes to the cost and time of delivery associated with the Change Request. Notwithstanding to the foregoing, no Statement of Work will be modified or changed until the parties agree upon a Change Request and execute a written change order or other amendment to the applicable Order Form.
    • 10.3 Performance Schedule; Delays. Any delay in the performance of the Professional Services that occurs as a result of Your failure to cooperate or ultimately perform Your obligations under the applicable Statement of Work, Benelinx shall not incur any liability for Benelinx’s non-performance under the applicable Statement of Work as a result of such delay.
11. Your Responsibilities. You will be responsible for: (A) complying with this Agreement, including the SFDC TOU and any other applicable Non-Benelinx Service TOU, and any additional terms contained in our accepted Order Forms; (B) complying with all applicable law; and (C) using commercially reasonable efforts to safeguard your Account ID and prevent unauthorized access to the Platform.
12. Intellectual Property and Content Ownership.
    • 12.1 Platform Technology. The Platform, the databases, software, hardware, and other technology used by or on behalf of Benelinx to operate the Platform, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), constitute valuable trade secrets of Benelinx and are owned by Benelinx.
    • 12.2 Intellectual Property Ownership. Benelinx retains all right, title and interest, including all IPR (as defined below), in and to the Technology and any additions, improvements, updates and modifications thereto. You receive no ownership interest in or to the Technology and You are not granted any right or license to access or use the Technology itself, apart from Your ability to access and use the Platform and Platform Content under this Agreement. The Benelinx name, logo and all product and service names associated with the Platform and Platform Content are trademarks of Benelinx and its licensors and providers and You are granted no right or license to use them. For purposes of this Agreement, “IPR” means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
    • 12.3 Platform Content. As between You and Benelinx and its licensors and providers, all software, data, information, reports, or other materials or content (“Content”), including all text, audio, video, photographs, illustrations, graphics and other content or media, provided through the Platform (“Platform Content”) is owned by Benelinx and its licensors and providers. All Platform Content is for Your informational purposes only and You are solely responsible for verifying the accuracy, completeness, and applicability of all Platform Content prior to making use of that Platform Content. Subject to Your compliance with this Agreement, You may use the Platform Content provided to You through the Platform solely for Your own internal business purposes in connection with Your permitted use of the Platform in accordance with this Agreement. You agree that You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Platform Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Platform Content; or (c) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Platform Content. Benelinx has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Platform Content. Without limiting the foregoing, Benelinx will not be held liable to You or any other third party for any Content (including Your Content) under the Communications Decency Act (47 U.S.C. § 230). Except as set forth in this Agreement, You are granted no licenses or rights in or to any Platform Content, or any IPR (as defined in Section 10) therein or related thereto.
    • 12.4 Your Content. You are solely responsible for all Content that You or Your Users may provide through the Platform or to Benelinx or generate through the use of the Platform, including all Your Client information (collectively, “Your Content”). As between You and Benelinx, You retain ownership of Your Content. However, in addition to any other rights granted to Benelinx under this Agreement, by providing Your Content through the Platform, You grant Benelinx and its licensors and providers all necessary rights and licenses in and to Your Content necessary for Benelinx to provide you access to and use of the Platform and otherwise perform its obligations described in this Agreement, including the right to process Your Content outside the SFDC systems. You commit to Benelinx that neither Your Content nor the use of Your Content by Benelinx as permitted will: (1) violate this Agreement or any applicable laws, rules, or regulations; (2) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (3) constitute an infringement or misappropriation of the IPR or other rights of any third party; (4) be illegal in any way or advocate illegal activity; (5) be false, misleading, or inaccurate; or (6) be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. Benelinx is not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back-up any of Your Content. You represent and warrant to Benelinx that You have all rights, permissions, and consents necessary to grant Benelinx each of the foregoing rights set forth in this Section.
    • 12.5 Deliverables. Unless otherwise expressly set forth in the applicable Statement of Work, Benelinx retains all right, title, and interest in and to the Professional Services and the Deliverables created, provided, or made available by Benelinx through or in connection with the Professional Services, excluding any of Your IPR incorporated therein. Without limiting anything set forth in this Agreement or any Statement of Work, You represent and warrant to Benelinx that You have all necessary rights in and to any of Your IPR incorporated in, or otherwise utilized by, any Deliverables and any of Your IPR incorporated therein shall not infringe any third party’s IPR.
13. Third Party Beneficiaries. SFDC and Non-Benelinx Service providers are intended third party beneficiaries of this Agreement and may enforce its applicable terms.
14. Fees and Payment. You agree to pay Benelinx, or any third party indicated in any Order Form, all fees and other amounts set forth in each Order Form under this Agreement (“Fees”). All Fees will be invoiced as indicated in the applicable Order Form. If an Order Form does not specify payment terms for the Fees, You agree to pay all such Fees as set forth on each Order Form in immediately available U.S. funds within 30 days of the date of invoice. If You have specified credit card or direct withdrawal from a bank account as a payment mechanism under this Agreement, You grant Benelinx the right to charge the credit card or debit the bank account provided to Benelinx for all Fees incurred under this Agreement. Except as otherwise set forth herein, all Fees will be non-refundable once paid to Benelinx (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Benelinx may change any portion of the Fees upon any renewal of this Agreement, such changes to take effect at the beginning of each Renewal Term (as defined below). Fees and other amounts payable by You under this Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by You hereunder, other than taxes imposed on Benelinx’s income.
15. Term and Termination. Unless otherwise set forth in an Order Form, the initial term of this Agreement shall be for 1 year from the date set forth in the applicable Order Form (the “Initial Term”). This Agreement shall be automatically renewed for successive 1 year periods thereafter (each a “Renewal Term”), unless either party provides written notice of intent not to renew at least 60 days prior to the expiration date of the Initial Term or the then-current Renewal Term. The Initial Term and Renewal Term are collectively referred to as the “Term”. Benelinx may terminate this Agreement upon notice to You if You breach any term of this Agreement and fail to cure such breach within 10 days of notice thereof from Benelinx. Benelinx further reserves the right to immediately suspend Your access to or use of the Services where it believes that Your use of or access to the Services may be in violation of this Agreement or applicable law, present a security risk, or otherwise place Benelinx or its licensors or providers at risk of harm, loss, or liability.
16. Effect of Termination or Expiration. Following termination or expiration of this Agreement for any reason: (1) all rights granted to You under this Agreement will terminate; (2) You will cease all use of and access to Your Account, the Platform, the Deliverables (except as otherwise agreed under the applicable Statement of Work), and the Content you received from and through the Platform; (3) all Fees or other amounts incurred through Your Account or which You have otherwise incurred under this Agreement will become payable; and (4) Benelinx may, in its sole discretion, delete Your Account and any of Your Content. The provisions of this Agreement which by their nature are intended to survive the termination, cancellation, completion or expiration of this Agreement shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, cancellation, completion or expiration. Without limiting the foregoing, the following Sections will survive termination or expiration of this Agreement for any reason: 1 (Definitions), 12 (Intellectual Property and Content Ownership), 14 (Fees and Payment), 16 (Effect of Termination or Expiration), 18 (Confidential Information), 19 (Representations and Warranties), 20 (Disclaimers), 21 (Indemnity), 22 (Limitation on Liability), 23 (Arbitration and Class Action Waiver), 24 (Governing Law and Venue), 25 (Notices), 27 (Force Majeure), 28 (Irreparable Harm), 29 (Entire Agreement) and 30 (Additional Terms).
17. Trial Period. Subject to Your compliance with this Agreement, Benelinx may permit You and Your authorized Users to access and use the Platform, free of charge, for 30 days (the “Trial Period”). All access to and use of the Platform during the Trial Period shall be solely for Your own internal testing and evaluation purposes to determine the suitability of the Platform and in accordance with all applicable Documentation. During the Trial Period, You shall exclusively use Benelinx’s pre-populated demo data to evaluate and test the Platform and may not upload Your Content to the Platform. Unless You purchase additional access pursuant to a valid Quote, Your right to access and use the Platform will terminate upon expiration of the Trial Period.
18. Confidential Information. Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the Term of this Agreement. Each Recipient agrees to protect from disclosure such Confidential Information with the same degree of care that it affords its own confidential information, but in no event with less than reasonable care. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (1) designated as confidential; (2) of a nature such that a reasonable person would recognize it as confidential; or (3) disclosed under circumstances such that a reasonable person would know it is confidential. The following information will not be considered Confidential Information: (a) information that is publicly available through no fault of the party that was obligated to keep it confidential; (b) information that was known by a party prior to commencement of discussions regarding the subject matter of this Agreement; (c) information that was independently developed by a party; and (d) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose the Confidential Information: (i) solely to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure; and (ii) to its affiliates in connection with its corporate and financial reporting requirements. Each Recipient will return to Discloser, or destroy (if requested), all of Discloser’s Confidential Information in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon Discloser’s written request or the expiration or termination of this Agreement. If You provide any feedback, comments, or ideas to Benelinx regarding the Services or improvements thereto, You agree that Benelinx and its licensors and providers will be free to use, disclose, and exercise any rights in the same in connection with their products and services.
19. Representations and Warranties. You represent, warrant, and covenant that: (1) You have the legal right and authority to enter into this Agreement; (2) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with this Agreement; and (3) You will access and use the Services only as expressly set forth in this Agreement at all times in strict compliance with the terms of this Agreement.
20. Disclaimers.
    • 20.1 You acknowledge that access to and use of the Platform and certain Professional Services are dependent upon the proper functioning of the SFDC Platform and other Non-Benelinx Services and that Benelinx has no control over such services. Benelinx disclaims responsibility and liability for any inability to access or use the Services, or degradation in the Services’ performance, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, the SFDC Platform, or other Non-Benelinx Services. You are solely responsible for the configuration of the Platform and all technology and services necessary to access and use the Internet, the Platform, the SFDC Platform, and any Non-Benelinx Services.
    • 20.2 THE PLATFORM and all Platform Content ARE PROVIDED “AS IS” AND “AS AVAILABLE.” Benelinx and its respective licensors and providers do not warrant or guarantee the accuracy, completeness, adequacy, or currency of any Platform Content. Benelinx and ITS licensors and providers EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO the PLATFORM, Platform Content, and other SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF Availability, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, title, or non-infringement. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Benelinx, its licensors or providers, or any of their respective EMPLOYEES OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES expressly SET FORTH IN THIS SECTION. BENELINX and its LICENSORS AND PROVIDERS SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY THAT the PLATFORM WILL MEET your REQUIREMENTS OR OPERATE UNINTERRUPTED OR ERROR FREE.
21. Indemnity.
    • 21.1 Benelinx’s Indemnity. Benelinx hereby agrees to indemnify, defend, and hold You harmless from and against any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) (collectively, “Losses and Expenses”) that result from any claim or allegation that Your use of the Platform infringes or misappropriates any third party’s United States patent, copyright, or trade secret (“Infringement Claim”). The foregoing obligations do not apply to any Losses and Expenses based on Your or any or any third party’s: (a) use of the Platform outside the scope of the rights granted to You in this Agreement; (b) use of portions of the Platform not supplied by Benelinx, including the SFDC Platform or any Non-Benelinx Services; (c) modification or improvement of the Platform; (d) continued use of an allegedly infringing item or continued allegedly infringing activity after Benelinx has replaced or modified the item or instructed You to modify Your activity so that it becomes non-infringing; or (e) use of the Platform during the Trial Period. If an Infringement Claim is made or appears possible, You agree to permit Benelinx, at Benelinx’s sole discretion, to: (y) modify or replace the Platform, or component or part thereof, to make it non-infringing; or (z) obtain the right for You to continue to use the Platform. If Benelinx determines that neither alternative is reasonably available, Benelinx may terminate this Agreement and/or any applicable Order Form, in its entirety or with respect to the affected component or part, effective immediately on written notice to You, and credit or refund any allocable prepaid fees on a pro rata basis.
    • 21.2 Your Indemnity. You hereby agree to indemnify, defend, and hold harmless Benelinx and its officers, directors, shareholders, affiliates, employees, agents, contractors, volunteers, users, customers, licensors, providers, and successors in interest (“Indemnified Parties”) from and against any and all Losses and Expenses that result from any claim or allegation against any Indemnified Party arising in any manner from: (a) Your access to or use of the Services and any Platform Content or Deliverables; (b) the collection, use, and/or processing of Your Client information on or in connection with the Services; (c) Your Content; (d) Your access to or use of the SFDC Platform or any Non-Benelinx Services; and (e) Your breach of any representation, warranty, or other provision of this Agreement.
    • 21.3 Indemnification Procedure. In the event a party is entitled to indemnification pursuant to this Agreement, the party seeking indemnification shall provide the indemnifying party with: (a) prompt written notification of the applicable Losses and Expenses; (b) sole control and authority over the defense or settlement thereof, provided that if any settlement requires any actions or admissions by the indemnified party, then the settlement will require the indemnified party’s prior written consent; and (c) all available information and reasonable assistance necessary to settle and/or defend any such Losses and Expenses, at the indemnifying party’s expense. Failure by the indemnified party to provide prompt notice of any Losses and Expenses or to provide sole control and authority or information and assistance shall not relieve the indemnifying party of its indemnification obligations under this Agreement, except and solely to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may have its own counsel present at, and participate in, all proceedings or negotiations relating to any Losses and Expenses, at the indemnified party’s own expense.
22. Limitation on Liability. Benelinx AND ITS LICENSORS AND PROVIDERS will not BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE ACCESS TO OR USE OF THE SERVICES AND any Platform Content OR DELIVERABLES, EVEN IF Benelinx HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF Content, OPPORTUNITY, REVENUES, OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. the TOTAL CUMULATIVE LIABILITY of Benelinx AND ITS LICENSORS AND PROVIDERS IN CONNECTION WITH THIS AGREEMENT AND all Platform Content and/or professional services (including any deliverables) provided under this agreement, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED FEES paid by you to Benelinx for THE PLATFORM or professional services, as applicable, IN THE 12 MONTH period PROCEEDING THE DATE SUCH LIABILITY IS ALLEGED TO HAVE ARISEN. You agree THAT Benelinx WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, Benelinx’S, AND ITS LICENSORS’ AND PROVIDERS’, LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
23. Arbitration and Class Action Waiver.
    The parties will attempt to settle all claims, allegations, controversies, and disputes related in any way to this Agreement (“Disputes”) through good faith discussions between the parties. Except as set forth below, the parties agree that any Dispute that cannot be resolved between the parties shall be resolved through binding arbitration under this Section (the “Arbitration Agreement”). Either party may refer the Dispute to binding arbitration. This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. Any such arbitration will be conducted in accordance with the rules of the American Arbitration Association (the “AAA Rules”) and will be conducted in Denver, Colorado (U.S.A.). The arbitration will be presided over by a single arbitrator, neutral as to each party, and possessing substantial experience in the software industry. Each party will bear its own expenses and will share equally in fees of the arbitrator. The parties will provide each other with all requested documents and records related to the dispute in a manner that will minimize the expense and inconvenience of both parties. Discovery will not include depositions or interrogatories, except as the arbitrator may expressly allow upon a showing of need. The parties and the arbitrator will be guided in resolving discovery disputes by the Federal Rules of Civil Procedure. If disputes arise concerning discovery requests, the arbitrator will have sole and complete discretion to resolve such disputes. The parties agree that time of the essence principles will guide the hearing and that the arbitrator will have the right and authority to issue monetary sanctions in the event of unreasonable delay. The arbitrator will deliver a written learned opinion setting forth findings of fact and the rationale for the award within 30 days following conclusion of the hearing. The award of the arbitrator, which may include legal and equitable relief, but which may not include punitive damages, will be final and binding upon the parties, and judgment may be entered upon it in accordance with applicable law in any court of competent jurisdiction. In addition the arbitrator will have the discretion to award the prevailing party all or part of its attorneys’ fees and costs, including fees associated with arbitrator, if the arbitrator determine(s) that the positions taken by the other party on material issues of the dispute were without substantial foundation. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. This Agreement will control if there is a conflict between the terms of this Agreement and the AAA Rules.

    The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver and/or the arbitrability of a claim or dispute may only be determined by an arbitrator.

    Notwithstanding the foregoing, you agree that the following matters shall not, at the election of Benelinx, be subject to binding arbitration: (1) any dispute concerning Benelinx’s IPR; (2) any dispute related to or arising from allegations of criminal activity; or (3) any claim for injunctive relief.

24. Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado without regard to the conflict of laws provisions thereof. Subject to Section 23, each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal court or state courts in Denver, Colorado, U.S.A., and You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by Benelinx.
25. Notices. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided in one of several ways: (1) by postal mail to the address for Benelinx listed on the Platform or applicable Order Form; (2) electronically by sending You an email to any email address You provide to Benelinx in connection with Your Account or on any applicable Order Form; or (3) in the case of any notice or communication applicable both to You and other users of the Platform, Benelinx may instead provide such notice or communication by posting it on the Platform. Notices provided to Benelinx will be deemed given when actually received by Benelinx. Notices or communications provided to You will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
26. Modifications. Benelinx reserves the right, at any time, to modify the Platform and any portion of the Platform Content with or without notice to You, by making those modifications available on the Platform. Benelinx reserves the right, at any time, to modify the terms of this Agreement, whether by posting a modified version of this Agreement on the Platform or by providing notice to You as permitted in this Agreement. Any modifications will be effective following posting on the Platform or delivery of such notice. You may terminate this Agreement at any time if You does not agree to any modification, provided however, that You must also cease using the applicable Services, Platform Content, and Deliverables. You will be deemed to have agreed to all modifications if You continue to access or use the Services or any Platform Content or Deliverables.
27. Force Majeure. With the exception of any monetary obligations under this Agreement, neither party will be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including, without limitation, acts of God or any governmental body, war or national emergency, riots or insurrection, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power or telecommunications under third-party control.
28. Irreparable Harm. You acknowledge that Your breach of this Agreement would cause Benelinx irreparable harm and subject Benelinx to damages difficult or impossible to ascertain and, therefore, Benelinx shall be entitled to injunctive and other equitable remedies, in addition to any other remedies which may be available upon Your breach or threatened or anticipated breach of this Agreement.
29. Entire Agreement. Unless You later enter into any other agreements with Benelinx regarding the Services, this Agreement is the complete and exclusive understanding and agreement between You and Benelinx regarding the access to and use of the Services, Platform Content, and Deliverables. This Agreement supersedes any prior agreement or proposal, whether oral or written, and any other communications between You and Benelinx, relating to the Services or any Platform Content or Deliverables.
30. Additional Terms. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers by Benelinx under this Agreement must be in writing or later acknowledged by Benelinx in writing. Any waiver or failure by Benelinx to enforce any provision of this Agreement on one occasion will not be deemed a waiver by Benelinx of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The words “include,” “includes” and “including” mean “include,” “includes” or “including,” in each case, “without limitation.” Each of the parties acknowledges that it has the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. The rule of construction that any ambiguity in an agreement be construed against the drafter will not apply to this Agreement. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. You may not assign or transfer this Agreement or any of Your rights or obligations hereunder (in whole or in part and including by sale, merger, consolidation, or other operation of law) without Benelinx’s prior written approval. Any assignment in violation of the foregoing will be null and void. Benelinx may assign this Agreement to any party that assumes Benelinx’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. Benelinx may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Platform appearing on the Platform and for other marketing and promotional purposes relating to the Services. Except as expressly set forth herein, no term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. All rights conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently.
31. Electronic Communications. The communications between You and Benelinx use electronic means, whether You access or use the Services or communicate with Benelinx via email, or whether Benelinx posts notices on the Platform or communicates with you via email. For contractual purposes, each party consents to receive communications from the other party in electronic form. Further, You agree that all terms and conditions and other notices, disclosures, and other communications to Benelinx provides to You electronically satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect either Party’s non-waivable rights.
32. Conflicts. In the event of any inconsistency between the statements made in the body of this Agreement, an Order Form, and any other documents incorporated herein by reference, the following order of precedence governs: (a) this Agreement; (ii) the Order Form; and (iii) any other document incorporated herein by reference unless such document expressly provides that it is modifying this Agreement and is signed by an authorized representative of Benelinx and You.
33. No Exclusivity. Nothing herein shall restrict Benelinx’s right to contract with any third party to provide products and/or services that are similar to those provided by Benelinx to You under this Agreement.