Terms & Conditions

Master Subscription Terms (MST) – Benza, now and therefore “Benza”

1. DEFINITIONS

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Customer Data” means all electronic data or information submitted by Customer to the Services, whether that data or information is submitted by Customer, Users, or generapublic users of the Network. “Network” means the network of websites or web services operated by Customer, and Customer’s Users, and used in connection with the Services, including but not limited tthe Customer’s own website, or web services, and third party web sites or web services that directly or indirectly are using the Services. “Order Form” means the ordering documents for purchases hereunder that are entered into between Customer and Benza from time to time. Order Forms shall be deemeincorporated herein by reference. “Services” means the online, Web-based applications and platform provided by Benza via www.benzavalue.com and/or other designated websites as described in the UseGuide, that are ordered by Customer under the Agreement, including any associated offline components. “User Guide” means the online user guide for the Services, including a definition of the different Services offered by Benza, accessible Benza Support Portal as updatefrom time to time. “Users” means individuals or entities that are authorized by Customer to use the Services, for whom subscriptions to a Service have been purchased, and who have beesupplied user identifications and passwords by Customer (or by Benza at Customer’s request). Users may include but are not limited to third parties with which Custometransacts business and/or has a contractual relationship.

2. SERVICES
2.1 Provision of Services

Benza shall make the Services available to Customer pursuant to this Agreement and the relevant Order Forms during the subscription term.

2.2. Subscriptions

Unless otherwise specified in the applicable Order Form, Services are purchased as subscriptions and the Services are limited to the specified capacity as described in the Order Form.

3. USE OF THE SERVICES
3.1. Benza Responsibilities

Benza shall: (i) provide to Customer basic support for the Services, (ii) use commercially reasonable efforts to make the critical support available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Benza shall give at least 2 business days notice via the Benza customer blog or (b) any unavailability caused by circumstances beyond Benza’s reasonable control, including without limitation force majeure events such as acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labor problems (other than those involving Benza employees), Internet service provider failures or delays, or legal restrictions in accordance with applicable laws and government regulations. For further description of the Benza support, see the SLO available at www.benzavalue.com.

3.2 Customer Responsibilities

Customer is responsible for (a) Customer’s and Users’ use of the Benza Services, and (b) the appropriateness and legality of all Customer Data. Customer acknowledges that Benza acts as a mere technological carrier and is not responsible for the content of the Customer Data or for evaluating the appropriateness of the Customer Data in relation to the environment where they are disclosed or published.

4. FEES AND PAYMENT FOR PURCHASED SERVICES
4.1. Fees

Customer shall pay all fees specified in all Order Forms hereunder in consideration for Benza’s provision of the Services. Customer must pay to Benza all fees that are owed under this Agreement even if the Customer has not received payment outstanding from the transactions utilizing the Services. Except as otherwise specified in this Agreement or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are payable based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the amount of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form.

4.2. Invoicing and Payment

Benza will issue monthly invoices to Customer in advance of Customer’s use of the Services based on the applicable fixed and minimum monthly fees, as specified in the Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date.

4.3. Overdue Charges

If any charges are not received from Customer by the due date, then at Benza’s discretion, such charges will accrue late interest at the maximum rate permitted by law, from the date such payment was due until the date paid, and Benza may charge Customer for any legal fees and/or collection costs incurred by Benza in collecting any amounts due from Customer.

4.4. Suspension of Services and Acceleration

If any amount owed by Customer under this or any other agreement for the Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized Benza to charge to Customer’s credit card), Benza may, without limiting Benza’s other rights and remedies under this Agreement and/or applicable laws, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services to Customer until the fees are paid in full.

4.5. Taxes

Unless otherwise stated, the Benza fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes“). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Benza has the legal obligation to pay or collect Taxes for which Customer is responsible under this clause, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Benza with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Benza is solely responsible for Taxes assessable against it based on Benza’s income, property, and employees.

5. PRIVACY

Customer will not (and will not allow any third party to) use the Services to track or collect personally identifiable information of Internet users, Customer will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from visitors to the Service. Customer must post a privacy policy on its site(s) and that policy must include sufficient notice of its use of cookies that collect anonymous traffic data, and that these data can be shared with third parties for personalization, marketing, and advertising purposes. The policy must also include a clear opt out for users.

6. LIMITATION OF LIABILITY
6.1. Limitation of Liability

In no event shall either party’s aggregate liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability, exceed the lesser of (a) the total amount paid by customer hereunder or (b) the actual direct damages sustained by such party or, with respect to any single incident, the lesser of (c) $1,000, (d) the actual direct damages sustained by such party related to such single incident, or (e) the amount paid by customer hereunder in the 12 months preceding the incident. The foregoing shall not limit customer’s payment obligations under clause 4.

6.2. Exclusion of consequential and related damages

In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The above does not apply if there is gross negligence or intential mis-conduct from either party.

7. TERM AND TERMINATION
7.1. Term of Agreement

This Agreement commences on the Effective Date and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated.

7.2. Term of Purchased Subscriptions

Subscriptions purchased by Customer commence on the Effective Date if a start date is not otherwise specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.

7.3. Termination for Cause

A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such 30-day period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

7.4. Refund or Payment upon Termination

Upon any termination for cause by Customer according to Clause 7.3, Benza shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Benza, Customer shall pay any unpaid fees covering the balance of the remaining term of all Order Forms that were valid up to the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Benza for the period prior to the effective date of termination.

7.5. Return of Customer Data

Upon request by Customer made within 30 days after the effective date of termination of a purchased Services subscription, Benza will make available to Customer for download a file of Customer’s Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Benza shall have no obligation to maintain or provide any of Customer’s Data and may thereafter, unless legally prohibited, delete all of Customer’s Data in Benza’s systems or otherwise in Benza’s possession or under Benza’s control.

7.6. Surviving Provisions

Clauses 4, 6, 7.4, 7.5, 8, 9, and 10 shall survive any termination or expiration of this Agreement.

8. INDEMNIFICATION AND LIABILITY

Subject to Sections 6.1 and 6.2 above, the Parties make the following representations, warranties and indemnities:

8.1 Representations, warranties and Indemnities by Benza

Benza warrants and represents at all times that Benza (i) has the right and full power and authority to enter into this Agreement, to grant the rights herein granted and to fully perform its obligations hereunder, and (ii) that, to the best of its knowledge, the Services will not infringe the copyright held by any third party. In the event that a third party initiates any action against Benza based on an infringement claim in respect of intellectual property rights of that third party, Benza may, at its sole option, either (a) obtain for Customer the right to continue using the Services, (b) replace or modify the Services so that the Services no longer infringe or misappropriate the intellectual property rights of a third party; however, providing substantially the same functionality, or (c) terminate the Services. Benza shall indemnify, defend and hold Customer harmless from and against any and all claims, actions, losses, damages, liabilities, reasonable costs and expenses (including reasonable outside attorneys’ fees) resulting from or arising out of or in connection with any breach of the foregoing representations and warranties. Customer shall promptly notify Benza of all claims and proceedings related thereto of which Customer becomes aware.

8.2 Representations, warranties and indemnification by Customer

Customer warrants and represents at all times that Customer (i) has the right and authority to enter into this Agreement, to grant all rights herein and to fully perform its obligations hereunder, (ii) owns and/or has the right to use any and all Customer Data and all materials contained on the Customer and/or its Affiliates websites and/or applications, including, without limitation, all copyrights, trademarks and other proprietary rights in and to such materials, (iii) has secured the requisite permission or consent to use the Customer Data and provide it to Benza for processing, (iv) has secured that the Customer Data does not contain any messages or images that are in violation of applicable laws, (v) will use the Services in accordance with the terms and conditions hereof and applicable law; and (vi) will not use the Services for purposes of segmenting, re-targeting, creating or supplementing user profiles or inventory profiles, creating, supplementing or amending interest categories, or syndication or other distribution to third parties, unless such data collection and usage are authorized by or on behalf of the data owner. In furtherance of the foregoing, Customer agrees to indemnify and hold Benza harmless from and against any and all claims, actions, losses, damages, liability, reasonable costs and expenses (including reasonable outside attorneys’ fees) arising out of or in connection with the breach of the foregoing representations and warranties. Benza shall promptly notify Customer of all claims and proceedings related thereto of which Benza becomes aware.

8.3 Disclaimer

Except as expressly provided herein, benza makes no warranties of any kind, whether express or implied, including any implied warranty of merchantability or fitness of the services hereunder for a particular purpose or application.

9. Notices, governing law, and jurisdiction
9.1. General

This Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, and all questions with respect thereto will be determined by the laws of Norway. Both parties hereby irrevocably submit any disputes under this Agreement to the non-exclusive jurisdiction of the courts located in Oslo, Norway. Each party agrees to the governing law above without regard to choice or conflicts of law rules.

9.2. Notices

All notices permitted or required to be given hereunder shall be addressed as follows:

To Benza:

Notices, except notices of termination or indemnification claims, shall be addressed to: Sales Operations, Email: customercare@benzavalue.com .

To Customer:

Notices to Customer shall be addressed to the system administrator designated by Customer for Customer’s relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by Customer.

10. GENERAL PROVISIONS
10.1. Waiver and Cumulative Remedies

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party under applicable laws.

10.2. Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

10.3. Assignment

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this clause shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination by Customer, Benza shall refund to Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Benza for the period prior to the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.4. Confidentiality

Both parties agree to keep the terms and conditions of this Agreement confidential and not to inform any third party about its content unless required to do so by law or regulation or mutually agreed upon by the parties.

10.5. Entire Agreement

This Agreement, including all exhibits and addenda hereto, and all Order Forms, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions inserted by Customer in Customer’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

10.6 Marketing and PR

Benza reserves the right to publish a notice about this agreement and related use case, and list the Customer name and logo on Benza.com in company presentation.