Terms

General Terms

These General Terms (the “General Terms”) form part of an Agreement (as further described in Section 1 below) between ReFiBuy, Inc. (“ReFiBuy”) and the Customer identified in the Order Form referencing these General Terms (each, a “Party” and together, the “Parties”). These General Terms are dated as of the date they were executed by both Parties or were incorporated by reference into, or attached to, an Order Form (“Effective Date”). 

1. Contracting Overview.

These General Terms describe the terms and conditions under which Customer may purchase or license certain subscriptions, software, and services (each, an “Offering”) from ReFiBuy. Customer may obtain Offerings by executing an order form with ReFiBuy describing such Offerings (each an “Order Form”) that references these General Terms, and which may also incorporate other documents by reference, such as terms that relate specifically to the Offerings (“Offering Specific Terms”). All of the documents incorporated by reference into an Order Form, including these General Terms and any Offering Specific Terms, make up an agreement between the Parties relating to the Offerings purchased or licensed under that Order Form (each, an “Agreement”).

2. Term and Termination.

2.1. Term and Termination of the General Terms.

These General Terms will continue in effect until they are terminated. Either Party may terminate these General Terms by providing written notice to the other Party at any time that there are no effective Order Forms outstanding that incorporate these General Terms.  

2.2. Termination or Suspension of an Agreement for Cause.

Either Party may terminate an Agreement by notice to the other Party if (a) the other Party materially breaches such Agreement and does not cure the breach within thirty (30) days after receiving written notice of such breach, or (b) 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. In addition, ReFiBuy may, at its option and without limiting its other remedies, suspend (rather than terminate) its performance under an Agreement if Customer breaches such Agreement (including with respect to payment of Fees) until the breach is remedied.

2.3. Effect of Termination; Survival.

The termination or suspension of an individual Agreement will not terminate or suspend any other Agreement. If an Agreement is terminated, Customer agrees to pay for all Units that it used or deployed or that were provided by ReFiBuy up to the effective date of termination. Sections 2.3, 3, 4.2, and 5 - 11 of these General Terms will survive the termination of an Agreement.

3. Fees and Payment​

3.1. Payment of Fees.

Issuance of invoices is described in the Order Form or Offering Specific Terms. Unless otherwise set forth in the Order Form, Customer will pay all undisputed Fees no later than thirty (30) days after receipt of the applicable invoice. Unless otherwise provided in the Agreement, all Fees and other amounts paid under the Agreement are non-refundable.

3.2. Taxes.

Fees do not include Taxes. If Customer is required to withhold or deduct any Taxes from the Fees, then Customer will increase the amount payable to ReFiBuy by the amount of such Taxes so that ReFiBuy receives the full amount of all Fees.

3.3. Basis of Fees.

Fees are determined by counting the Units associated with the applicable Offering, as described in the Offering Specific Terms or Order Form. If during the term of an Agreement, the number of Units Customer uses or deploys exceeds the number of Units it has ordered and paid for, ReFiBuy will invoice Customer and Customer agrees to pay for the additional Units (at the same price that Customer is paying for the Units purchased under that Agreement).​

4.Representations and Warranties; Disclaimers

4.1. ReFiBuy represents and warrants that (a) it has the authority to enter into each Agreement, (b) any Offerings will be performed in a professional and workmanlike manner by qualified personnel, (c) to its knowledge, the Offerings do not include malicious code such as viruses or trojan horses, and (d) the Offerings will comply in all material respects with laws applicable to ReFiBuy as the provider of the Offerings. Customer represents and warrants that (i) it has the authority to enter into each Agreement; and (ii) it will comply in all material respects with the laws applicable to Customer as the user of the Offerings.

4.2. To the maximum extent permitted by applicable law and except as expressly provided in an Agreement, the Offerings are provided “as is” and without any representations or warranties express or implied, and ReFiBuy disclaims all such representations and warranties, including the implied warranties of merchantability, non-infringement, and fitness for a particular purpose, as well as any warranties implied by the course of dealing or usage of trade. To the maximum extent permitted by applicable law, ReFiBuy does not represent or warrant that the offerings will be uninterrupted, secure, error free, accurate, complete, comply with regulatory requirements, or that ReFiBuy will correct all errors. In the event of a breach of the warranties set forth in an Agreement, Customer’s exclusive remedy, and ReFiBuy’s entire liability will be the re-performance or re-delivery of the deficient Offering, or if ReFiBuy cannot substantially correct such breach in a commercially reasonable manner, termination of the relevant Agreement, in which case ReFiBuy will pay Customer a pro rata refund of the prepaid fees under such Agreement as of the effective date of termination.

5. Confidentiality

5.1. Recipient (a) will not disclose Confidential Information of Discloser to any third party unless Discloser approves the disclosure in writing or the disclosure is otherwise permitted under this Section 5, (b) will not use Confidential Information for any purpose other than to support the performance of its obligations under, or receive the benefits of, an Agreement, (c) will use the same degree of care to protect Confidential Information of Discloser as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care, and (d) may disclose Confidential Information of the Discloser only to its employees, Affiliates, agents, and subcontractors who have a need to know, and to its auditors and legal counsel, in each case, who are under a written or other professional obligation to keep such information confidential using standards of confidentiality no less restrictive than those required by this Section 5. These obligations will continue for a period of three (3) years following initial disclosure of the particular Confidential Information. Recipient may disclose Confidential Information if it is required to do so by applicable law, regulation or court order but, where legally permissible and feasible, will provide advance notice to the Discloser to enable the Discloser to seek a protective order or other similar protection.

5.2. Information is not Confidential Information if (a) the information is or becomes publicly available other than as a result of the Recipient’s breach of an Agreement, (b) the Recipient, at the time of disclosure, knows or possesses the information without obligation of confidentiality or thereafter obtains the information from a third party not under an obligation of confidentiality, (c) the Recipient independently develops the information without use of the Discloser’s Confidential Information, or (d) the information is generally known or easily developed by someone with ordinary skills in the business of the Recipient.

6. Customer Information, Feedback, and Reservation of Rights

6.1. Customer Information.

If Customer provides Customer Information to ReFiBuy in connection with its use of or access to Offerings, ReFiBuy may use such Customer Information to provide the Offerings to Customer. Customer represents and warrants that its provision (and ReFiBuy’s use) of Customer Information will not require any additional consents or licenses, will comply with applicable law, and will not violate any intellectual property, proprietary, privacy, or other right of any third party. As between ReFiBuy and Customer, subject to the rights granted in this Section, Customer retains all of rights in and to Customer Information. Customer acknowledges that to provide the Offerings, it may be necessary for Customer Information to be transferred between ReFiBuy, its Affiliates, and subcontractors, which may be located worldwide.

6.2. No Personal Data.

Other than business contact information, Customer agrees not to provide to ReFiBuy personal data subject to the General Data Protection Regulation or similar laws (“Privacy Laws”). In the event Customer wishes to provide ReFiBuy such personal data (or access to such personal data), Customer will notify ReFiBuy in advance in writing and if ReFiBuy agrees that its receipt or access to such personal data is necessary for provision of an Offering, the Parties will use good faith efforts to negotiate a data processing or similar addendum which will amend the applicable Agreement as reasonably required to comply with such Privacy Laws, as applicable.

6.3. Feedback.

Customer may voluntarily provide ReFiBuy with Feedback related to Offerings, but has no obligation to do so. If Customer chooses to do so, ReFiBuy may use Feedback for any purpose, including incorporating the Feedback into, or using the Feedback to develop and improve, ReFiBuy’s Offerings without attribution or compensation. Customer grants ReFiBuy a perpetual and irrevocable license to use all Feedback for any purpose.​

6.4. Reservation of Rights; Use of Data.

ReFiBuy grants to Customer only those rights expressly granted in an Agreement with respect to the Offerings and reserves all other rights in and to the Offerings (including all intellectual property rights). ReFiBuy may collect and use aggregated and anonymized data relating to Customer’s use of the Offerings for any business purpose.​

7. Limitations

7.1. Disclaimer of Damages.

To the maximum extent permitted by applicable law, neither Party, nor its Affiliates, will be liable for any incidental, consequential, special, indirect, exemplary or punitive damages, or for any damages for lost or damaged data, lost profits, lost savings or business or service interruption, even if such Party was advised of the possibility of such damages, and regardless of the failure of essential purpose of any limited remedy.

7.2. Limitation of Liability.

To the maximum extent permitted by applicable law, each Party’s total and aggregate liability with respect to any claim arising out of or relating to an Agreement will not exceed the fees paid or payable by Customer to ReFiBuy with respect to such Agreement during the twelve (12) months immediately preceding the first event giving rise to such claim. This limitation applies regardless of the nature of the claim, whether based on contract, tort (including negligence), statute, or other legal theory. This limitation of liability does not limit claims based on (i) intellectual property infringement by one Party against the other, (ii) bodily injury (including death) or damage to real or tangible personal property, or (iii) Customer’s failure to pay Fees due under an Agreement.

8. Governing Law and Jurisdiction.

The Agreement, and any claim, controversy or dispute arising out of or related to the Agreement, will be governed by laws of the State of New York without giving effect to any conflicts of laws provision. Any claim, suit, action or proceeding arising out of or relating to this Agreement or its subject matter will be brought exclusively in the state or federal courts of New York County, New York, and each party irrevocably submits to the exclusive jurisdiction and venue. No claim or action, regardless of form, arising out of or related to the Agreement may be brought by either Party more than two (2) years after the Party first became aware or reasonably should have been aware of the basis for the claim.

9. Miscellaneous

9.1. Export.

Customer agrees that it will not export, disclose, re-export or transfer Offerings, directly or indirectly, to (a) any U.S. embargoed destination; or (b) anyone on (or controlled by a person or entity on) a U.S. government restricted persons list, including those who have been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. ReFiBuy may terminate any or all Agreements without liability to Customer if (a) Customer breaches (or ReFiBuy believes it has breached) this paragraph; or (b) ReFiBuy is prohibited by law or otherwise restricted from providing Offerings to Customer.

9.2. Notices.

Notices must be in English, in writing, and will be deemed given upon receipt, after being sent using a method that provides for positive confirmation of delivery to the address(es) or email address of Customer on the Order Form. Any notice from Customer to ReFiBuy must be sent to: Chief Operating Officer; Email: legalnotices@refibuy.ai.

9.3. Assignment.

Upon written notice, either Party may assign this Agreement to (a) an Affiliate, or (b) a successor or acquirer pursuant to a merger or sale of all or substantially all of such Party’s assets. Any other assignment will be deemed void and ineffective without the prior written consent of the other Party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and permitted assigns.

9.4. Waiver.

A waiver by a Party under this Agreement is only valid if in writing and signed by an authorized representative of such Party. A delay or failure of a Party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of its rights.

9.5. Independent Contractors; Subcontracting.

The Parties are independent contractors and nothing in an Agreement creates an employment, partnership, or agency relationship between the Parties or any Affiliate. Each Party is solely responsible for supervision, control and payment of its personnel. ReFiBuy may subcontract its obligations to third parties or Affiliates as long as (a) subcontractors agree to protect Confidential Information, and (b) ReFiBuy remains responsible to Customer for performance of its obligations.

9.6. Third Party Beneficiaries.

An Agreement is binding on the Parties to the Agreement and, other than as expressly provided in an Agreement, nothing in an Agreement grants any other person or entity any right, benefit or remedy.

9.7. Force Majeure.

Neither Party is responsible for nonperformance or delay in performance of its obligations (other than payment of Fees) due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, pandemic, epidemic, government actions, strikes, or telecommunications or power failures.

9.8. Complete Agreement and Order of Precedence.

An Agreement represents the complete agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and proposals, whether written or oral, with respect to such subject matter. Any terms contained in any other documentation related to an Agreement, including any purchase order or other order-related document (other than an Order Form), are void and will not become part of an Agreement or otherwise bind the Parties. If there is a conflict between the General Terms, the Offering Specific Terms and/or an Order Form, the General Terms will control unless otherwise expressly provided in the Offering Specific Terms or Order Form.

9.9. Counterparts.

Each document making up an Agreement may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same document. The Parties may exchange signature pages by electronic signature process and such signatures will be effective to bind the parties.

9.10. Severable.

If any provision of an Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of the Agreement will remain in effect to the greatest extent permitted by law.

10. Definitions

“Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with the subject entity, where “control” is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.​

“Confidential Information” means information disclosed by the Discloser to the Recipient during the term of the Agreement that (i) is marked confidential; (ii) if disclosed orally, is clearly described as confidential at the time of disclosure and is subsequently set forth in writing, marked confidential, and sent to the Recipient within thirty (30) days following the oral disclosure; or (iii) is of a nature that the Recipient knows or should reasonably be expected to know is confidential.

“Customer Information” means any data, information, or other materials that Customer provides to ReFiBuy under an Agreement.

“Discloser” is a Party disclosing Confidential Information under an Agreement.

“Feedback” means any ideas, suggestions, proposals or other feedback Customer may provide regarding Offerings or ReFiBuy’s business.

“Fees” means the amounts paid or to be paid by Customer to ReFiBuy for Offerings.

“Recipient” is the Party receiving Confidential Information under an Agreement.

“Taxes” means any form of taxation of whatever nature and by whatever authority imposed, including any interest, surcharges or penalties, arising from or relating to this Agreement or any Offerings, other than taxes based on the net income of ReFiBuy.

“Unit” means the basis upon which Fees are determined for Offerings as set forth in Offering Specific Terms or an Order Form.