AutoSpot - Software as a Service Agreement
(Revised on- 06/08/2020)
This Software as a Service Agreement (this “Agreement”) governs your and your Authorized Users’ (defined below) access to and use of our Services (as defined below), which are made available to you (“Customer,” “you,” or “your”) by BASF Corporation (“BASF”, “we,” “our,” or “us”).
If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms “you” or “your” refers to such entity. Customer and BASF are each referred to herein as a “Party,” and together are referred to herein as the “Parties.”
BY CLICKING THE “ACCEPT” BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU AND YOUR AUTHORIZED USERS MAY NOT ACCESS OR USE THE PLATFORM OR THE SERVICES.
The Parties hereby agree as follows:
1. DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1. “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.2. “Applicable Law” means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such Party or any of its properties, assets, or business operations.
1.3. “Authorized User” means you or your employees, contractors, or agents authorized by you to access and use the Platform and the Drivers pursuant to the terms and conditions of this Agreement; provided, however, that any contractors’ or agents’ access to and use of the Platform will be limited to their provision of services to you or your organization.
1.4. “Confidential Information” means: all nonpublic information revealed by or through BASF or its Affiliates to you, your Affiliates, or your personnel including, without limitation, (i) all forms and types of financial, business, scientific, technical, economic, or engineering information including patterns, plans, compilations, program devices, formulas, algorithms, recipes designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored or compiled; (ii) information traditionally recognized as proprietary trade secrets; (iii) the Services, the Platform, all Content (defined below) and all source code relating thereto; and (iv) all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, you; (b) is documented as being known to you prior to its disclosure by BASF or its Affiliates; (c) is independently developed by you without reference or access to the Confidential Information and is so documented; or (d) is obtained by you without restrictions on use or disclosure from a third party.
1.5. “Content” means the data, information, text, graphics, images, audio recordings, video recordings, and other materials provided to you on or through the Platform and your use thereof, including, without limitation, paint formulae, but excluding any Customer Data.
1.6. “Customer Data” means any data that you or your Authorized Users submit to BASF or otherwise upload to the Platform, including, without limitation, business data, Authorized Users’ personal information (such as name, email address, and other identifying information), and information received from Devices and business management systems connected to the Platform through your use of the Platform such as your usage records, inventory information, and related data (but expressly excluding Content).
1.7. “Device” means a equipment hardware owned or operated by Customer that can interact with the Platform through a Driver.
1.8. “Distributor” means a third-party product distributor having access to the Platform, including, without limitation, the third-party product distributor that has purchased a subscription to the Services on your behalf to enable you and your Authorized Users to use the Platform.
1.9. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Services as provided or made available by BASF to Customer whether in a written or electronic form.
1.10. “Driver” means the data points and files that enable one or more Devices to communicate with the Platform.
1.11. “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services or the Platform, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services or the Platform to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services or the Platform.
1.12. “Platform” means BASF’s proprietary, cloud-based, color retrieval software as a service (SaaS) platform, and all updates and improvements thereto, and all Content thereon.
1.13. “Services” means our provision of access to and usage of the Platform, and making the Drivers available for download through the Platform.
2. PROVISION OF SERVICES.
2.1. Services. During the Term (as defined below), we will provide the Services to you subject to the terms and conditions of this Agreement. Subject to the terms and conditions hereof, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to access and use the Platform for your internal business purposes. With respect to Content, your license and right to use such Content is expressly restricted to use in connection with products distributed by BASF.
2.2. Onboarding of Authorized Users. Authorized Users have access to the Platform via their log-in and account password. Upon accesing your subscription you will identify an individual to be the administrator for the account (the “Administrator”). The Administrator will then have the ability to create accounts for your Authorized Users to enable access to the Platform to such persons. Accordingly, the Administrator shall oversee the onboarding of Authorized Users and may grant Authorized Users various levels of permissions within the Platform. The Administrator, will have the ability to assign permission access to each Authorized User under Customer’s account. You are solely responsible for the confidentiality and use of your log-in credentials, and you are further responsible for the acts and omissions of any person who accesses and uses the Platform using any your log-in credentials. You will notify us immediately if you become aware of any log-in credentials becoming compromised or used by someone other than an Authorized User. The Administrator will promptly inform us of any need to deactivate an Authorized User’s access. We reserve the right to delete or change log-in credentials (e.g., passwords or other unique identifiers) at any time and for any reason. We will not be liable for any unauthorized use of an Authorized User’s account.
2.3. Modifications. We reserve the right to modify the Services, the Platform, and the Drivers from time to time by adding, deleting, or modifying features to improve the user experience or for other business purposes. We further reserve the right to discontinue any feature of the Services, the Platform, or the Drivers at any time during the Term at our sole and reasonable discretion. Any such modification or discontinuance will not materially decrease the overall functionality of the Services, the Platform, or the Drivers.
2.4. Beta Features. From time to time, we may invite Customer to try “beta” features or functionalities of the Platform which are not generally available to our customers for use at no charge. Customer may accept or decline any such trial in its sole discretion. Such beta features are for evaluation purposes only and not for use, are not considered part of the Services under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by us, any beta feature trial period will expire upon the date that a version of the beta feature becomes generally available to all of our customers for use or upon the date that we elect to discontinue such beta feature. We may discontinue beta features at any time in our sole discretion and may never make them generally available as part of the Services. We will have no liability to Customer or any third party for any harm or damage arising out of or in connection with any use of a beta feature, and Customer’s use of any beta feature is at Customer’s own risk.
2.5. Hosting. During the Term, BASF, or our contractors, shall host the Platform, such that the Platform is available for use by you and your Authorized Users. BASF and/or our contractors shall periodically monitor the Platform to optimize performance, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers. We will notify you of any unavailability or other issue with the Services, the Platform, or the Drivers of which we have knowledge.
3. USE AND LIMITATIONS OF USE.
3.1. Restrictions on Use. You shall not (and shall not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to use the Platform or the Drivers; (ii) allow an Authorized User to share with any third party his or her access credentials described in Section 2.2; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or the Drivers; (iv) modify, adapt, or translate the Platform, the Drivers, or any portion or component thereof; (v) make any copies of the Platform, the Drivers, or any portion or component thereof; (vi) resell, distribute, or sublicense the Platform, the Drivers, or any portion or component thereof, or use any of the foregoing for the benefit of anyone other than Customer; (vii) save, store, or archive any Content outside of the Platform without the prior, written permission of BASF in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Platform or the Drivers; (ix) use the Content with any products not distributed by BASF; (x) use the Platform, the Drivers, or any portion or component thereof in violation of any Applicable Law; (xi) use the Platform, the Drivers, or any portion or component thereof in order to build a competitive product or service; (xii) use the Platform for any purpose not specifically permitted in this Agreement; or (xiii) introduce, post, or upload to the Platform any Harmful Code.
3.2. Compliance. We have the right to monitor your compliance with this Section 3. If any such monitoring reveals that your or your Authorized Users are using the Platform, the Drivers, or any portion or component thereof in violation of this Agreement, you shall remedy any such non-compliance within five (5) business days of receiving notice from us. Failure to remedy such default shall be deemed a material breach of this Agreement by Customer.
4.1. Customer Data. Subject to the terms and conditions of this Agreement, Customer hereby grants us a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses, to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Data for the purpose of providing the Services hereunder, to make you aware of BASF products and services in which you may have interest, for our internal purposes related to the Services and your use of the Platform and Content, and as set forth in Section 4.2 below. Personal information collected as Customer Data shall be subject to our Privacy Statement available https://www.basf.com/us/en/legal/data-protection.html and on the Platform.
4.2. Aggregated Data. Notwithstanding anything to the contrary herein, we may use, and may permit our third-party service providers to access and use, the Customer Data, as well as any Usage Data (as defined below) that we may collect, in an anonymous and aggregated form (“Aggregate Data”) for the purposes of operating, maintaining, managing, and improving our products and services including the Platform. Aggregate Data does not identify Customer or any individual. You hereby agree that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data. “Usage Data” means the data that we collect in connection with our monitoring of the performance and use of the Platform by you and your Authorized Users, including, without limitation, date and time that you access the Platform, the portions of the Platform visited and Content viewed, the frequency and number of times such pages are accessed, the number of times the Platform is used in a given time period and other usage and performance data.
5. INTELLECTUAL PROPERTY. As between the Parties, all right, title, and interest in and to the Services, the Platform (including all Content), the Drivers, the Aggregate Data, and the Usage Data, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, are and will remain the sole and exclusive property of BASF. Subject to Section 4, all right, title, and interest in and to Customer Data, and all intellectual property rights therein, will be and remain Customer’s sole and exclusive property. BASF grants you a non-exclusive, non-transferable, non-sublicensable, royalty-free right and license during the Term to use Content solely as permitted under this Agreement and for no other purpose. The foregoing license does not permit you to download Content from the Platform, store Content outside of the Platform, or copy Content for any reason. Such license shall automatically terminate upon the expiration or termination of this Agreement.
6. CONFIDENTIALITY; FEEDBACK.
6.1. Confidentiality. At all times you shall protect and preserve the Confidential Information as confidential, using no less care than that with which you protect and preserve your own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform your obligations and exercise your rights under this Agreement. You may disclose, distribute, or disseminate the Confidential Information to your officers, directors, members, managers, partners, employees, contractors or agents (your “Representatives”), provided that such Representatives have a need to know such Confidentiality Information, and that such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. You shall not disclose, distribute, or disseminate the Confidential Information to any third party, other than your Representatives, without our prior written consent in each instance. You shall at all times remain responsible for any violations of this Agreement by any of your Representatives. If you are legally compelled to disclose any of the Confidential Information, you shall provide us with prompt prior written notice of such requirement so that we may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or if we waive compliance with the provisions of this Section, you may furnish only that portion of the Confidential Information which you are advised by its counsel is legally required to be disclosed, and will use your best efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
6.2. Specific Performance and Injunctive Relief. You acknowledge that in the event of a breach of Section 6.1 by you or your Representatives, substantial injury could result to BASF, and money damages will not be a sufficient remedy for such breach. Therefore, in the event that you or your Representatives engage in, or threaten to engage in any act which violates Section 6.1, we will be entitled, in addition to all other remedies which may be available to us under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 6.1. We will not be required to post a bond or other security in connection with the granting of any such relief.
6.3. Feedback. During the Term, Customer or your Authorized Users may elect to provide us with feedback, comments, and suggestions with respect to the Services, the Platform, or the Drivers (“Feedback”). Customer agrees that BASF will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer or any Authorized User.
7. REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER.
7.1. Representations and Warranties. Each Party represents and warrants to the other Party that: (i) to the extent it is an entity, it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby constitute a valid and binding agreement of such Party; (iii) the individual accepting this Agreement on behalf of a legal entity has the authority to bind such entity to this Agreement; and (iv) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder. In addition, you represent and warrant that you have all necessary rights to provide us with the Customer Data and to grant to us the licenses thereto that are granted under this Agreement.
7.2. Our Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE SERVICES, THE PLATFORM (INCLUDING ALL CONTENT), THE DRIVERS, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED BY BASF HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER BASF NOR OUR SUPPLIERS OR SERVICE PROVIDERS MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND BASF HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, COMPLETENESS, CURRENTNESS, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT WE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL BASF BE LIABLE TO YOU, YOUR AFFILIATES, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER WE WERE ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. FURTHER, BASF’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY YOU OR BY A DISTRIBUTOR ON YOUR BEHALF IN CONNECTION WITH OUR PROVISION OF THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
9.1. Indemnification by Customer. You will indemnify, defend, and hold BASF, our Affiliates, our suppliers and service providers, and our and their respective Representatives harmless from and against any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by any of such parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from your or any of your Authorized Users’ (i) breach or violation of this Agreement, including any of your representations and warranties hereunder; (ii) negligence, misconduct, or willful act or omission; and (iii) breach or unauthorized access to the Platform where the breach originated through your or your Authorized Users’ access to the Platform, including any mis-use of the Authorized Users’ log-in credientials.
9.2. Indemnification by BASF. BASF will indemnify, defend, and hold Customer and its Representatives harmless from and against any and Losses incurred by any such parties in connection with any third-party Claim (i) arising from BASF’s gross negligence or willful misconduct, or (ii) alleging that the Platform or your access thereto infringes or misappropriates any third-party intellectual property rights (an “Infringement Claim”). In the event that we reasonably determine that the Platform is likely to be the subject of a third-party Claim, we will have the right (but not the obligation), at our own expense, to: (a) procure for you the right to continue to use the Platform as provided in this Agreement; (b) replace the infringing components of Platform with other components with equivalent functionality; or (c) suitably modify the Platform so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, we may terminate this Agreement without further liability to you. Notwithstanding the foregoing, we are not obligated to indemnify, defend, or hold Customer or its Representatives harmless with respect to any Infringement Claim to the extent the Infringement Claim arises from or is based upon (v) any BASF product or service outside of the scope of this Agreement; (w) your or your Authorized Users’ use of the Platform not in accordance with the Documentation or this Agreement; (x) any unauthorized modifications, alterations, or implementations of the Platform made by or on behalf of Customer (other than by BASF); (y) use of the Platform in combination with unauthorized modules, apparatus, hardware, software, Devices, or services not supplied or expressly permitted in writing by us; or (z) use of the Platform in a manner or for a purpose for which it was not designed. This Section 9.2 states Customer’s sole and exclusive remedy, and our sole and exclusive liability, regarding any Infringement Claim.
9.3. Procedure. The indemnification obligations set forth in Section 9.1 and Section 9.2 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim (provided that failure to provide prompt written notice to of such Claim will not alleviate the indemnifying Party of its obligations under this Section 9 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s approval.
10. CONSIDERATION. You are responsible for paying all fees associated with our provision of the Services to you and your Authorized Users. In the event you fail to make a payment for any reason, we reserve the right to suspend the Services until we are paid in full and/or terminate this Agreement. We will use commercially reasonable efforts to notify you of any such suspension.
11. TERM AND TERMINATION.
11.1. Term. The term of this Agreement (the “Term”) commences on the Effective Date and will continue in effect thereafter, on a calendar month-to-calendar month basis, until you cancel your subscription, or until this Agreement is otherwise earlier terminated pursuant to Section 11.2 below.
11.2. Termination by BASF. We may terminate this Agreement at any time, for any reason, upon fourteen (14) days’ prior written notice via electronic mail to your Administrator. We will use commercially reasonable efforts to notify you of such termination as set forth in the prior sentence, however, we shall not be liable to you or any third party if the notice fails to reach the Administrator. We will also notify your Distributor via email of the termination. We may also terminate this Agreement (i) upon written notice to you if you or any of your Administrative or Authorized Users are in material breach of this Agreement, or (ii) upon written notice to you under the limited circumstances set forth in Section 9.2. We may also suspend the Service in accordance with Section 10 above.
11.3. Termination by You. You may elect to stop access and using the Platform at any time. Our performance of the Services shall continue for so long as your subscription payments are up to date, unless we terminate this Agreement under Section 11.2 above. Your supscription is based on Services purchased, and not on actual use. You will not receive a refund, in full or in part, for any early termination of your subscription.
11.4. Effect of Termination. Upon termination of this Agreement by BASF, (i) we will immediately stop providing the Services, and you will immediately cease, and cause your Authorized Users to cease, all access to and use of the Platform and the Drivers; (ii) we will grant you access to the Customer Data if and to the extent required under Applicable Law provided, however, that BASF may retain archival copies of the Customer Data kept in the normal course of business, to comply with Applicable Law, or to exercise its rights under Section 4 hereof.
11.5. Survival. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 4 (“Data”), Section 5 (“Intellectual Property”), Section 6 (“Confidentiality; Feedback”), Section 7 (“Representations and Warranties; Our Disclaimer”), Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), Section 11.4 (“Effect of Termination”), this Section 11.5 (“Survival”), and Section 12 (“General Provisions”).
12. GENERAL PROVISIONS.
12.1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that BASF may, upon written notice to you, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
12.2. Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
12.3. Governing Law; Dispute Resolution. This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of New Jersey, U.S.A. FOR ANY CAUSE OF ACTION OR DISPUTE RELATING TO THIS AGREEMENT BROUGHT BY EITHER PARTY, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED WITHIN MORRIS COUNTY, NEW JERSEY, AND YOU WAIVE ANY RIGHT TO OBJECT TO VENUE IN SUCH COURTS ON ANY GROUND.
12.4. Notices. All notices that we are required to give you under this Agreement may be given via your dashboard on the Platform, and will be effective as of the date we post such notice. All notices that you are required to give us under this Agreement must be in writing and will be delivered either personally or by e-mail, national overnight courier. Notices from you will be effective upon actual delivery to and receipt by us.
12.5. Independent Contractors. The Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.
12.6. Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
12.7. Force Majeure. Neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.
12.8. Third-Party Beneficiaries. The Parties agree that there are no third-party beneficiaries under this Agreement.
12.9. Complete Understanding. This Agreement constitutes the final and complete agreement between you and BASF regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between us, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.