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Request a DemoUpdated June 11, 2026
Subject to the terms and conditions of this agreement (this "Agreement"), we at SetSale, Inc. ("we," "us," or "SetSale"), provide subscriptions to: (1) our proprietary AI-driven HVAC selling software ("SetSale") designed to simplify the HVAC selling process for residential contractors and to provide real-time connection between independent contractors ("Contractors") and distributors or partners ("Partners"); (2) a website (the "Site," and, together with SetSale, the "Software") through which you may access and use SetSale; and (3) the Services described in further detail below.
Capitalized terms that are used as defined terms but not defined in context have the meanings given to such terms in Section 13 below.
Our Privacy Policy, available at https://www.setsale.ai/legal/privacy-policy, is incorporated into this Agreement by reference and describes how we collect, use, and share information, including the sharing with Partners through Integrations described in Section 3.d.
By executing an Order with us, by clicking to accept this Agreement, or by accessing or using the Software, you also accept this Agreement (and all terms, addendums and exhibits referenced and incorporated herein) and agree you are legally bound by its terms. The individual registering to use SetSale on your behalf represents and warrants to us that such individual is fully and duly authorized to agree to be bound by this Agreement on your behalf. If you do not agree to this Agreement, do not register to use SetSale or otherwise access or use any Software.
(i) Contractor Access. Provided that you and your Authorized Users comply with this Agreement, we authorize you during the Term, and on a non-exclusive and non-transferable (except as described in Section 12.e) basis, to access and use SetSale through the Site, provided that such access and use is (1) by and through your Authorized Users only (and limited to the number of permitted seat licenses), (2) solely as (and in the form) in which we provide SetSale, (3) solely for the Contractor Permitted Use, and (4) strictly in accordance with this Agreement and the Documentation. The seat licenses available to you are set forth in your Order and you may be subject to additional fees if you require additional seat licenses.
(ii) Contractor Subscriptions.
(1) Non-Exclusive Contractor.If you purchase a subscription to the Services directly from us (a "Non-Exclusive Contractor"), you are not limited to a single Partner integration. Subject to the payment of the Fees set forth in your Order, a Non-Exclusive Contractor may use SetSale to connect and transact with multiple Partners or to operate independently without a Partner integration, at your discretion. A Non-Exclusive Contractor subscription includes five (5) seat licenses for Authorized Users and you may purchase additional seats at the rates set forth in your Order.
(2) Exclusive Contractor.If your subscription is paid for and sponsored by a specific Partner (an "Exclusive Contractor"), your access to SetSale is sponsored by and exclusively integrated with that Partner. As an Exclusive Partner, you are restricted to a single Partner integration and may not use SetSale to transact with other Partners and you acknowledge that your sponsoring Partner controls your subscription and may modify or revoke it at any time, including for your violation of this Agreement. If your sponsoring Partner revokes your license or ceases payment, your Exclusive Contractor subscription will terminate and your account will be placed in a suspended state for thirty (30) days. During that period, you may preserve your account data and regain access to SetSale by entering into a new Order for a new subscription as a paying Non-Exclusive Contractor.
You must use commercially reasonable efforts to prevent unauthorized access to or use of the Software, Documentation, and other data, content and materials we provide to you through SetSale (collectively, the "SetSale Materials"). You must not, and you must not permit any other person or entity to, access or use the SetSale Materials except as we've specifically allowed in this Agreement and, in the case of any Third-Party Materials (as defined below) we provide with or as part of the SetSale Materials, as allowed in the applicable third-party license agreement. Without limiting the generality of the preceding sentence, except as we've specifically allowed in this Agreement, you and your Authorized Users must not do any of the following:
You will ensure your Authorized Users' compliance with this Agreement and are responsible and liable to us for any act or omission of an Authorized User (or any other employee or agent under your control or direction or acting on your behalf) that would be a breach of this Agreement had you performed it yourself. You are also responsible for your relationship with any Partner and must cooperate if a dispute arises between us and a Partner.
Provided that you and your Authorized Users comply with this Agreement, we will provide to you the following services (the "Services") during the Term: (i) the hosting, management and back-end operation of SetSale for remote electronic access and use by you and your Authorized Users through the Site in accordance with the authorizations granted above; (ii) the Support Services described in Section 4.a below; and (iii) to integrate and connect you with Partners to give Partners the ability to communicate with you and provide them with visibility into the performance and activity of Contractors who are connected to their accounts (including, but not limited to, the data sharing noted in Section 7) (the "Integration").
We may make any changes to the Software (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Software) that we deem necessary or useful to improve the Software or for any other reason, from time to time in our discretion. Such changes may include upgrades, bug fixes, patches, error corrections, modifications, enhancements, improvements and/or new features (collectively, "Updates"). All Updates shall be deemed a part of the Software governed by all the provisions of this Agreement pertaining thereto.
You understand and agree that we may, in our discretion, engage subcontractors and other third-parties ("Third-Party Providers") to aid us in providing the Software and performing our Services under this Agreement, including other software, content or materials owned by third-parties ("Third-Party Materials"). We may integrate third-party programs into our Software and Services that will process Your Data on our behalf. You hereby approve and consent to our use of Third-Party Providers and accept Third-Party Materials as part of SetSale Materials. You further agree that we cannot guarantee or ensure the performance of any Third-Party Providers or programs to the terms of this Agreement, and remediation of a breach by a Third-Party Provider is limited to the remedies specified in the Third-Party Providers terms and conditions of use.
We may suspend performance of our Services and/or suspend or deny access to or use of all or any part of the SetSale Materials with no liability to you or others, if (i) we're required to do so by law or court order; or (ii) you have or your Authorized User (or any other employee, contractor or agent under your control or direction or acting on your behalf, as applicable) has (A) accessed or used our Services or the SetSale Materials in violation of this Agreement, (B) been involved in any fraudulent or unlawful activities relating to or in connection with our Services or the SetSale Materials, or (C) otherwise failed to comply with this Agreement and have failed to cure such breach within fifteen (15) days after we provide written notice to you. Unless we have exercised our right to terminate this Agreement pursuant to Section 8.b, we will promptly resume performance of our Services and restore access to the SetSale Materials as soon as the applicable legal requirement or court order is lifted or the applicable breach or violation is cured. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 8.b or any other rights or remedies under this Agreement, at law or in equity.
Provided that you and your Authorized Users comply with this Agreement, during the Term we will provide customer support services to you and your Authorized Users via e-mail and telephone during our standard support hours (8:00 a.m. to 6:00 p.m., Eastern time, Monday through Friday, but excluding federal holidays) ("Support Services"). Support Services include:
However, Support Services do not include (i) support for software or hardware that is not part of the Software (including support for any part of your equipment, products or technology infrastructure), (ii) on-site dispatch of our personnel, (iii) formal, comprehensive training of Authorized Users on the Software, (iv) on-site or remote support to configure or customize the Software for you, or (v) performance of any other professional, implementation, configuration, consulting or advisory services (provided that items (iii) through (v) may be separately provided Services to the extent agreed to in your Order or another Attachment). You must provide all information and assistance that we request in connection with providing such Support Services. We reserve the right to charge you at an hourly rate (on a time-and-materials basis) for support services provided (x) outside of our normal support hours, or (y) in connection with a request we determine is outside the scope of the Support Services described above.
5.a General.In connection with receiving or providing the SetSale Materials and Services during the Term, each party (each, a "Discloser") may disclose to the other party (the "Recipient") the Discloser's proprietary or confidential information (collectively, "Confidential Information"). During the Term and thereafter the Recipient will not without the Discloser's written consent disclose Discloser's Confidential Information to any third party (other than our subcontractors as permitted in Section 3.c above or as set forth in Section 7 below) nor use the Discloser's Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement or at the direction of the Discloser as part of the Services. All non-public information related to the SetSale Materials and the features, functionality and performance thereof are all our Confidential Information, Your Data is your Confidential Information, and the terms of this Agreement, your Order and any Attachment are the Confidential Information of both of us.
5.b Exceptions.These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act or omission by the Recipient or its employees or agents, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, or (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser. Additionally, Recipient may disclose Discloser's Confidential Information to the extent it is legally compelled to do so pursuant to applicable law or the valid order of a court or governmental agency, provided that Recipient must first give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.
6.a Fees.You will pay to us the fees and charges described in your Order or an Attachment (the "Fees") in accordance with the Order or Attachment and this Section 6. If you are an Exclusive Contractor, your base subscription Fees are paid by your sponsoring Partner; you remain responsible for any Fees for additional seats or optional Services you purchase directly. In addition, unless otherwise specified in your Order, in each renewal term all Software subscription Fees or Contractor subscription Fees may, in our discretion, be increased for the renewal term. We will notify you of the pending Fee increase at least thirty (30) days prior to the commencement of the upcoming renewal. All purchases are final, all payment obligations are non-cancelable and all Fees once paid are non-refundable.
6.b Taxes. Our Fees do not include taxes and similar assessments. We will pass along to you the cost of any sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income. If any such amounts are owed to a governmental authority, we will calculate the amount of the obligation and include this on your bill or invoice, and we will remit those amounts to the applicable authority. If you are exempt from such taxes, you must provide us with a true, up-to-date and complete copy of your direct pay permit or exemption certificate.
6.c Payment. You will make all payments in U.S. dollars. Invoiced amounts are due thirty (30) days from the invoice date. You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information.
7.a SetSale Materials; SetSale IP.You acknowledge and agree that we (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to the SetSale Materials (for the avoidance of doubt excluding any of Your Data or Confidential Information), including all associated features, functionality, software, content, materials and services made available thereon by us, including all new versions, Updates, configurations, revisions, derivative works, improvements and modifications of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing and all related intellectual property rights (collectively, the "SetSale IP"). We are not granting you any right, license or authorization with respect to the SetSale IP except as we've specifically provided in Section 2 above. We and the respective rights holders in any Third-Party Materials reserve all other rights in and to the SetSale IP.
7.b Generative AI Content.In order for us to provide the Software and Services for you and Partners, you may be provided with access to or Your Data may be used to generate content through generative artificial intelligence tools (collectively, "Generative AI Content") provided by us or Third-Party Provider. You may be asked to include input data or Your Data to receive access to the Software and Services. We reserve the right to share Your Data with the Third-Party Provider to create the Generative AI Content and share Generative AI Content (which will not include any personally identifiable information of you or your Authorized Users or your customers) with SetSale customers or allow the Third-Party Provider to use the Generative AI Content as part of the services it provides to us to improve our Software and Services. As between you and us, the Generative AI Content shall be considered SetSale Materials. You further acknowledge that the generative artificial intelligence tools and the Generative AI Content are not within our control. You acknowledge and agree that, notwithstanding anything to the contrary in this Agreement or your Order, all Generative AI Content is provided solely on an "as is," "as available" and "with all faults" basis and we make no (and we hereby disclaim any and all) warranties, guarantees, indemnitees as to the quality, completeness, accuracy, reliability, suitability, appropriateness, usefulness, legality, merchantability, fitness for purpose or non-infringement of any Generative AI Content. The availability of any Generative AI Content on or through SetSale does not imply our endorsement of such Generative AI Content for your unique needs or the unique needs of any other person or entity. You should independently evaluate the accuracy, quality and suitability of any Generative AI Content as appropriate for your use case, including by using human review of the Generative AI Content, and you understand, acknowledge and agree that, unless otherwise expressly agreed to in writing by us, we will not (and do not undertake to) provide any human review of the Generative AI Content. ANY ACCESS TO, USE OF, DISCLOSURE OF OR RELIANCE YOU PLACE ON ANY GENERATIVE AI CONTENT IS STRICTLY AT YOUR OWN RISK. WE DISCLAIM ANY AND ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY ACCESS TO, USE OF, DISCLOSURE OF OR RELIANCE PLACED ON ANY GENERATIVE AI CONTENT BY YOU, YOUR AUTHORIZED USERS, OR ANY OTHER PERSON OR ENTITY.
(i) Ownership. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in this Section 7.c.
(ii) License Grant. You grant to us and our subcontractors all such rights and permissions in or relating to Your Data to: (1) perform the Services and provide the Software during the Term; (2) update and improve our Software and Services and other products and services; (3) to create and update Generative AI Content; (4) to create Aggregated and Deidentified Data; (5) enforce this Agreement and exercise our rights and perform our obligations under this Agreement; and (6) to host, store, process, reproduce, and share Your Data as necessary to provide the Software and Services and Integrations to you and Partners.
(iii) Integrations and Data Sharing with Partners. We may share Your Data (for example, your business activity like win rates, quote volume, equipment selection, business contact information) with Partners to provide you the Services. However, please note that we will not share any of Your Data that includes personally identifiable information (for example, customer names, addresses, emails) about your customers. As part of the Integrations with Partners, you authorize us to make available to Partners to which you are connected through an Integration, the following information derived from or comprising Your Data through SetSale:
Please note that information under this Section 7.c is made available only to Partners with whom you have set up an Integration and, where applicable, their territory managers to whom you are assigned. Note that if an Integration is disconnected, the information above will no longer be shared with such integrated Partner but it does not retract information already made available to such Partner during the previous Integration.
(iv) Aggregated and Deidentified Data.You grant us and our subcontractors all such rights and permissions to aggregate and de-identify Your Data and collect data regarding the use and performance of the Software or Services ("Aggregated and Deidentified Data") which we may use to enhance the Software or Services, to provide to Partners as part of the services they receive under their subscription, for benchmarking purposes to create (in aggregated form) statistical comparisons among users of the Services, to generate insights, to improve our products, improve the quality of its analytics and improve our artificial intelligence algorithms and machine learning models associated with the Services and providing support. Aggregated and Deidentified Data does not include Your Data and is considered SetSale Materials. Aggregated and Deidentified Data may include aggregate sales level data like equipment SKUs quoted and sold by a Contractor but will not include your customer's personally identifiable information or margins.
7.d Publicity Rights. During the Term, you agree that we may, without separate written consent from you, include your name, trademarks and logos on our website and in other sales and marketing materials to factually identify you as a current customer.
8.a Term; Renewal.The initial term of this Agreement commences on the first date you accept this Agreement under Section 1 above and continues for the period specified in your Order as the "Initial Term" (the "Initial Term"). Thereafter, unless otherwise specified in your Order, this Agreement will automatically renew for successive periods equal to the length of the "Renewal Period" specified in the Order (each, a "Renewal Period"), unless one party provides written notice to the other of its intent not to renew at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Period. The Initial Term and each Renewal Period (if any) are referred to in this Agreement collectively as the "Term." If you are an Exclusive Contractor, the Term shall be set forth in the applicable order between us and the Partner sponsoring your subscription and any termination of an agreement between us and such Partner shall automatically terminate your subscription as an Exclusive Contractor.
8.b Termination. In addition to any other termination rights described in this Agreement, this Agreement may be terminated prior to the end of the Term at any time by either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement and such breach (i) remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice regarding such breach, or (ii) is the second (or higher ordinal) breach of the limitations and restrictions in Section 2.b.
8.c Effect of Termination.The exercise of any right of termination under this Agreement will not affect any rights of either party (including rights to payment) that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled. If this Agreement is terminated or expires, then: (i) all rights, licenses and authorizations granted by one party to the other (other than licenses that expressly state in this Agreement that it will survive termination of this Agreement) will immediately terminate, (ii) we may disable your and your Authorized Users' access to the SetSale Materials, and (iii) we each will cease all use of the other party's Confidential Information and (at such other party's request) promptly destroy or return the other party's Confidential Information.
8.d Surviving Terms. Sections 5 (Confidentiality), 7 (Intellectual Property Rights), 8.c (Effect of Termination), 10 (Indemnification), 11 (Limitations of Liability), 12 (Miscellaneous), 13 (Definitions) and this Section 8.d will survive any expiration or termination of this Agreement.
9.a By You Regarding Your Data.You represent and warrant that: (i) your and your Authorized Users' collection and use of all of Your Data (including your choice to upload and process Your Data to and through the Software as contemplated in this Agreement) and your Confidential Information is consistent with your own privacy policy and your license agreements and other agreements with third parties; (ii) you either own, or have all rights, permissions and consents that are necessary to store, use and process, and to permit us, our subcontractors and the Software to store, use and otherwise process as contemplated in this Agreement, all of Your Data and your Confidential Information; (iii) our and our subcontractors' access to and storage, use and other processing of Your Data and your Confidential Information (including all personal data included in Your Data and your Confidential Information) as contemplated by this Agreement does not and will not violate any applicable law, rule or regulation or infringe, misappropriate or otherwise violate any intellectual property right, privacy right or other right of any third party. You will defend us from and against any Claims brought by a third party, and you will indemnify and hold us harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that you, your Authorized Users or any other employee, contractor or agent under your control or direction or acting on your behalf have breached any representation or warranty in this Section 9.a.
9.b By Us Regarding Our Services. We warrant that we will perform all Services in a professional and workmanlike manner, using adequate resources and appropriately qualified personnel, and consistent with generally accepted standards of quality in our industry. If we breach this warranty, we will promptly re-perform the non-conforming Services at no additional cost to you.
9.c By Us Regarding Our Software.We warrant that the Software will at all times during the Term substantially conform in all material respects to its Documentation and the written specifications expressly set forth by you and us in your Order. However, the warranty in this Section does not apply to any non-conformance resulting from: (w) your configurations or modifications or your own platform or software, (x) use of the Software in a manner inconsistent with this Agreement or its Documentation, (y) the operation of or access to your or a third party's system or network, or (z) Your Data or any Third-Party Materials.
9.d Remedy for Breach of Software Warranty.If we breach the warranty set forth in Section 9.c, we will, at our sole option and expense, take any of the following steps to remedy such breach: (i) modify, fix or correct the Software to remedy such non-conformity; (ii) replace the non-conforming portion of the Software, as applicable, with functionally equivalent software; or (iii) if the remedies in clauses (i) and (ii) are not feasible by commercially reasonable standards, terminate this Agreement and promptly refund to you on a pro rata basis the share of any Software subscription fees prepaid by you for the future portion of the applicable subscription term that would have remained but for such termination (a "Refund of Fees"). If we do not cure a warranty breach or terminate this Agreement as permitted by the immediately preceding sentence within 30 days after our receipt of written notice of such breach, you will have the right to terminate this Agreement and we will promptly provide to you a Refund of Fees.
9.e Disclaimer of Warranties.EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN SECTIONS 9.b AND 9.c, ALL SERVICES AND THE SETSALE MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE SETSALE MATERIALS WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE SETSALE MATERIALS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
10.a By You. You will defend us from and against any Claims brought by a third party, and will indemnify and hold us harmless from any Losses associated with such third-party Claims, in each case to the extent the same are based on: (i) allegations that Your Data or Confidential Information infringe any intellectual property, proprietary rights or privacy rights of such third party, or misappropriate the trade secret of such third party; (ii) your fraud, gross negligence or willful misconduct; or (iii) your agreements with your customers or with a Partner.
10.b By Us.We will defend you from and against any Claims brought by a third party, and will indemnify and hold you harmless from any Losses associated with such third-party Claims, in each case to the extent the same are based on: (i) allegations that the Software or your use thereof (excluding Your Data or Confidential Information) infringe any U.S. patent, copyright or trademark of such third party, or misappropriate the trade secret of such third party (each, a "SetSale Infringement Claim"); or (ii) our fraud, gross negligence or willful misconduct.
10.c Exclusions from SetSale Infringement Claims. Notwithstanding the foregoing, we will have no liability or obligation with respect to any SetSale Infringement Claim to the extent based upon or arising out of: (i) access to or use of the Software in combination with any hardware, system, software, network or other materials or service not provided by us (or authorized in the Documentation or otherwise in writing by us); (ii) modifications or configurations made to the Software by anyone other than us or a party acting under our direction without our prior written consent; (iii) Third-Party Materials; or (iv) any action taken by you or any Authorized User or a Partner relating to use of the Software that violates this Agreement.
10.d Mitigation for SetSale Infringement Claims.If the Software is, or in our opinion is likely to be, the subject of a SetSale Infringement Claim, or if your or any Authorized User's use of the Software is enjoined or threatened to be enjoined, we will, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the allegedly infringing Software as contemplated by this Agreement, (ii) modify or replace the allegedly infringing Software to make such Software (as so modified or replaced) non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate this Agreement upon written notice and without any liability to you and we will promptly provide a Refund of Fees.
10.e Indemnification Procedures.If a party reasonably believes it is entitled to indemnification under this Agreement, such party (the "Indemnified Party") promptly must give the other party (the "Indemnifying Party") written notice of the claim of indemnification, provided that an Indemnified Party's failure to notify the Indemnifying Party will not diminish the Indemnifying Party's indemnification obligations except to the extent the Indemnifying Party is materially prejudiced as a result of such failure. Any such notice shall set forth in reasonable detail the facts, circumstances and basis of the applicable Claim. Upon receipt of notice of the assertion of a Claim, the Indemnifying Party will have the right to control the defense or settlement of the matter at its own expense and with counsel of its choice, provided that the Indemnifying Party shall not enter into any settlement of the relevant Claim without written consent of the Indemnified Party (not to be unreasonably withheld). The Indemnified Party must cooperate reasonably with the Indemnifying Party, at the Indemnifying Party's expense, to facilitate the defense, compromise or settlement of any Claims. The Indemnified Party may employ separate counsel and participate in any indemnified Claim, but the fees and expenses of such counsel will be at the expense of the Indemnified Party.
11.aIN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY OTHER PERSON OR ENTITY FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNT OF FEES PAYABLE OR ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING A PARTY'S FIRST CLAIM AGAINST THE OTHER HEREUNDER (THE "DAMAGES CAP"). ADDITIONALLY, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.b Exclusions from Limitations.The exclusions and limitations of liability in Section 11.a will not apply to (i) a party's fraud, gross negligence or willful misconduct; or (ii) a party's infringement or misappropriation of the other party's intellectual property rights; provided that our maximum liability for any of the foregoing shall not exceed two times (2x) the Damages Cap.
This Agreement, your Order and each Attachment together constitute the entire agreement between the parties on the subject matter hereof, and supersede all prior negotiations, understandings or agreements (oral or written) and all past dealing or industry custom.
No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought; provided, that, we may update this Agreement or the Privacy Policy by posting an updated version or providing notice, and your continued use after the effective date constitutes acceptance. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
Except as expressly agreed by you and us, this Agreement will be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in the State of North Carolina, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action.
All notices under this Agreement must be in writing and may be delivered by electronic mail, certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in your Order.
Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party's consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
The relationship between the parties is that of independent contracting parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
Except for payment obligations, neither party will be liable for any delays or non-performance of its obligations arising out of actions or decrees of governmental authorities (including enactment or adoption of law or regulation) following the first date you accept this Agreement, criminal acts of third parties, telecommunication failures not caused by a party, problems with equipment or software provided by other parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire, or other similar causes not within such party's reasonable control (each, a "Force Majeure Event"). In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 2.b (Limitations and Restrictions) or Section 5 (Confidentiality) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
If there is a conflict between this Agreement and your Order or an Attachment, the terms of the Order or the applicable Attachment shall govern the provision of the Software or the Services involved; provided, however, that nothing in your Order or any Attachment may modify or supersede anything in Sections 2.b (Limitations and Restrictions), 7 (Ownership and Intellectual Property Rights), 9 (Representations and Warranties), 10 (Indemnification), 11 (Limitation of Liability), or 12 (Miscellaneous) of this Agreement unless an express cross-reference is made to the relevant provision of this Agreement in the Order or Attachment (as applicable) and the parties have expressly agreed in the Order or Attachment to modify or alter the relevant provision of this Agreement.
The Order and each Attachment may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of the Order or any Attachment delivered by facsimile, e-mail or other electronic means is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Capitalized and other terms used in this Agreement have the meanings described below:
"Attachment" means an exhibit, addendum, statement of work or other attachment to this Agreement (other than your Order) executed by you and us that references this Agreement, and in each case which forms a part of and is incorporated into this Agreement by reference for all purposes.
"Authorized User"means your employees who have registered to use SetSale through your account and to whom we have provided access codes to log in to SetSale through the Site. Unless we have provided prior written consent, "Authorized Users" shall not include any third parties, including but not limited to third-party independent contractors, consultants, agents, subcontractors, vendors or service providers or your affiliates.
"Claim" means any investigation by a governmental body, claim, suit, action or proceeding.
"Contractor Permitted Use"means to receive and use information relevant to the Contractor's business, in each case for the Contractor's own benefit and for the Contractor's own internal business purposes in the ordinary course of such business (and not on behalf of, for the benefit of or as a service to any third party).
"Documentation" means the then-current online, electronic and written user documentation and guides we make available to you and your Authorized Users which describe the functionality, components, features or requirements of the Software, as we may update from time to time in our discretion.
"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
"Loss"means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.
"Order" means the Order executed by you and us references this Agreement, and which forms a part of and is incorporated into this Agreement by reference for all purposes.
"You" and "your" as used throughout this Agreement refers to the party (other than us) entering into this Agreement to obtain a subscription to SetSale and our Services.
"Your Data" means information, data, records or other materials that are either (i) uploaded or created directly by you or an Authorized User by, in or through the Software, or (ii) uploaded by you or an Authorized User to a File Transfer Protocol (FTP) site provided to you by us to facilitate our provision of Services to you. For purposes of this Agreement, Your Data does not include SetSale Materials, SetSale IP, Generative AI Content, or Third-Party Materials.