Refersion™ Terms of Service for Cloud Services


Last updated: October 27, 2021.


These Terms of Service (these "Terms") are part of the overall Agreement (as defined below) between you ("you" or "Customer") and Refersion Inc., a New Jersey corporation ("Refersion"). The Agreement governs your use of the Refersion platform, analytics, information, applications, websites, payments functionality and other products and services (collectively, the "Services").

We are one of several affiliated companies offering solutions to e-commerce sellers under the corporate umbrella of Assembly Intermediate LLC ("Assembly"). Please note that parts of these Terms and our Privacy Policy address how you and we interact with Assembly and other affiliated Assembly companies (collectively, our "Affiliated Companies").

This Agreement is effective as of the date you register for an online account with Refersion and/or the date you enters a Customer Order with Refersion incorporating these Terms (the "Effective Date").

By accessing or using the Services (as defined below) in any manner, you agree to the following, which collectively form the "Agreement":

  1. all terms and conditions in these Terms;
  2. our Professional Plan policies, available at https://www.refersion.com/pricing or the terms of any applicable Customer Order (as defined below);
  3. our privacy policy ("Privacy Policy"), currently posted at http://refersion.com/privacy and Acceptable Use Policy ("AUP"), currently posted at https://www.refersion.com/acceptableuse; and
  4. any other standard policies or community guidelines posted in our Services, which also form part of your contract with us and must also be followed.

If you use the Services on behalf of a company or other entity, then “you” includes you personally and your company, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to the Agreement, and (b) you agree to the Agreement on the entity’s behalf.

  1. DEFINITIONS. The following capitalized terms have the following meanings in this Agreement:
    1. "Affiliate" means an individual or business entity registered on the Services as an Affiliate of a respective Merchant which is compensated by the Merchant for qualified sales, leads, clicks, or other measurable action registered by the Merchant on one or more Merchant’s websites.
    2. "Affiliate Sales Revenue" means the total amount of the proceeds received from the sale of products or services by a Merchant and generated by a Merchant’s Affiliates as tracked back to a Merchant on the Services. Such amount shall be net of the amounts with respect to any and all sales, property, use, value-added and similar taxes and discounts. the gross amount of all payments made to a Merchant with respect to all such sales of products and services, including without limitation, shipping charges, handling and processing fees and sales, property, use, value-added and similar taxes. If any amount of Affiliate Sales Revenue is paid in a currency other than the U.S. Dollars, such amount shall be converted into U.S. Dollars by Refersion at the time of issuance of an invoice to Customer for Fees.
    3. "Aggregate Data" is defined in Section 5(g).
    4. "Authorized User" means any individual who uses the Services on Customer’s behalf or through Customer’s Account, including any individual using Customer’s Account without, or in excess of, the authorization granted by Customer.
    5. "Confidential Information" is defined in Section 8.
    6. "Customer Data" means data in electronic form input into or collected through the Services by Customer, including without limitation, sales data and information, pricing, shipping costs, and other similar information, data from Third Party Platforms (as applicable) and data generated by or collected from End Users or Customer’s Users.
    7. "Customer Order" means an order for access to the Services on a subscription basis entered by Customer through Refersion’s online registration process on the Website and acknowledged by such Customer through a click-to-agree online process, including, as applicable, any (i) Customer Order for Refersion Pay under a Refersion Pay Addendum and/or (ii) Customization Services Addendum providing Customization Services to Customer in exchange for Customization Fees.
    8. "Customization Fees" means any fees payable to Refersion by Customer pursuant to a Customization Services Addendum.
    9. "Customization Services" means any customized services, other than Services, provided by Refersion to Customer pursuant to a Customization Services Addendum.
    10. "Customization Services Addendum" means any optional agreement governing the provision of Customization Services to Customer.
    11. "Documentation" means Refersion’s standard manual related to use of the Services, as well as any additional documentation provided to Customer in connection with this Agreement.
    12. "End Users" means individuals or businesses who interact with Customer and Customer’s Affiliates through hyperlinks or other software enabled by Customer’s use of the Services.
    13. "Excluded Data" is defined in Section 5(f).
    14. "Feedback" is defined in Section 7(b).
    15. "Fees" is defined in Section 3(b).
    16. "Merchant" means an e-commerce or other business entity that is contractually obligated to pay a commission, referral fee or similar compensation to an Affiliate for qualified sales, leads, clicks, or other measurable action by a visitor generated or referred by such Affiliate to the Merchant’s website for the purpose of purchasing Merchant’s products or services.
    17. "Refersion Associates" means Refersion’s officers, directors, shareholders, parents, subsidiaries, agents, representatives, advisors, successors, and assigns.
    18. "Term" is defined in Section 12(a).
    19. "Transaction" means a purchase of a Merchant’s products and services logged by the Services.
    20. "Website" means the website owned and operated by Refersion, currently available at http://www.refersion.com.
  2. THE SERVICES.
    1. Account Terms. In order to access most features of the Services, you must register for a Refersion account ("Account") by providing your entity’s full legal name, current address, phone number, a valid email address, and any other information indicated as required. You may only register on behalf of a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law. Refersion may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
    2. Use of the Services. During the Term and provided that this Agreement has not been terminated, and in consideration of the payment of the Subscription Fees (and any applicable Refersion Pay and Customization Fees), you may access the Services for the purpose of using Services pursuant and subject to the terms of this Agreement and any applicable Customer Order.
    3. Documentation. The Documentation may be reproduced solely as necessary to support use of the Services by you or your Authorized Users.
    4. Access Rights. Refersion reserves the right to refuse service to any Affiliate, Partner or Customer for any reason at any time. Refersion may, but has no obligation to, suspend or terminate Accounts if Refersion determines in our sole discretion that the goods or services offered via a Store, or the Materials uploaded or posted to a Store, violate the AUP or these Terms. We reserve the right to provide the Services to Customer’s competitors, and make no promise of exclusivity in any particular market segment.
    5. Services Modifications. Refersion, in its sole discretion, may modify the Services at any time, including without limitation by ceasing operation of the Services in their entirety.
  3. ORDERS & FEES.
    1. Affiliate Sales Revenue. Customer agrees to approve, deny or otherwise action all pending Transactions no later than the dates such actions are due pursuant to the Customer Order (such dates, the "Order Date"), and further agrees that acceptances shall be dated as of the Order Date for the purpose of calculating Affiliate Sales Revenue. Customer further agrees and understands that any pending Transactions not actioned by Customer prior to Order Date will be automatically deemed accepted by the Services as of the Order Date without further action by Customer, and all amounts of such Transactions will be included in Affiliate Sales Revenue as recorded by the Services in an applicable month. For the avoidance of doubt, if a Customer converts from a Professional Plan to an Enterprise Plan, such Customer’s Transactions shall be deemed accepted as of the Order Date even if it predates the date of Customer’s conversion to Enterprise Plan.
    2. Fees. Customer shall pay Refersion the fees for the access to and use of the Services ("Fees") specified in the Customer Order, including those calculated using Affiliate Sales Revenue, and any applicable Refersion Pay and Customization Fees. Fees may depend on the number of workflow “operations” and the number of active workflows and are further based on the length of the Term, number of Authorized Users, Affiliates and Affiliate transactions, data volume and such other capacity limitations as may be stated in the Customer Order, and may be adjusted by Refersion from time to time in response to the changes to the foregoing factors. For the avoidance of doubt, Refersion’s fee schedules as posted on the Website or elsewhere will not apply to Customer who executed a Customer Order under this Agreement unless a Customer Order so specifies.
    3. Payment of Fees. Customer authorizes Refersion to charge an amount equal to the amount of the Fees on a monthly basis (or on such dates as the Customer Order provides), and any additional amounts as permitted by this Agreement, to the credit card and/or bank account specified in the Customer Order by means of debit or credit card charge for the duration of each Term. Customer hereby agrees to keep such valid credit card and/or bank account in effect with sufficient credit limit to enable Refersion to charge the Fees every month, quarter or other period of each Term, as applicable, and not to challenge such charges or to request reversal of such charges. Refersion will not be required to refund the Fees under any circumstances.
    4. Taxes. All Fees are exclusive of, and Customer is responsible for, applicable sales, use, excise, export or other applicable taxes, except for taxes on the net income of Refersion. Refersion may add any such taxes to the applicable Fees.
  4. THIRD PARTY CONTENT AND SERVICES
    1. Customer may configure the Services to integrate and/or interact with third-party data or platforms (collectively with the Partners, "Third Party Platforms"), including via APIs or customized software connections. Certain functionalities of the Services may require a Customer and/or Merchant to integrate Third Party Platforms, such as to capture Affiliate Sales Revenue accurately. The Services may be configured by Customer to leverage software connections from any of the third-party platforms and services described as “Partners” on the Services to integrate with and interact with partners’ services and products.
    2. It is Customer’s responsibility to analyze and interpret any third party contractual terms applicable to Customer’s use of the Services (collectively, "Third Party Terms"), and Customer acknowledges that we have no control over, and are not a party to, such terms. Refersion has no affiliation, endorsement or sponsorship by any other Third Party Platform. Refersion makes no endorsement of such third parties, nor any representation or warranty regarding anything that takes place between Customer and any such third parties. Third Party Platforms are independent from and not controlled by Refersion, even if, for example, a Refersion link or logo appears on a platform linked from the Services.
    3. By incorporating Third Party Platforms into Customer’s Account, Customer authorizes Refersion access to collect, analyze and use data collected by or via Third Party Platforms, including, without limitation, End User data.
    4. Customer represents that it has the right to access any applicable Third Party Platforms (including as may be granted during the integration process), and that it is an owner or authorized user of the Third Party Platform accounts it authorize Refersion to incorporate. Customer agrees and acknowledges that Refersion does not own or operate such Third Party Platforms and Refersion is therefore not responsible for the operations, security, or performance of such Third Party Platforms or Customer Data provided thereby.
    5. By using the Services, Customer hereby releases Refersion from, and waives any and all claims or claim rights that Customer may have against Refersion, and releases and indemnifies Refersion against any claims that any third party may have against Refersion, arising from or related to (i) Customer’s use of any Third Party Platforms, including if accessed or used via the Services, and (ii) Third Party Terms, applicable privacy policies or any other rules or regulations of such third parties entered into by or applicable to Customer.
  5. CUSTOMER DATA & PRIVACY.
    1. Use of Customer Data.
      1. License Grant. Customer grants Refersion a non-exclusive right and license to use, copy, reproduce, modify, adapt, publish, and display the Customer Data to provide the Services, enhance the Services, collect and deliver market insights and for other business purposes. For clarity, this information is not considered confidential information for purposes of this Agreement.
      2. Rights to Use. Customer represents and warrants that Customer has all necessary rights, consents and approvals, to grant us this access and this information for the uses permitted hereunder. Customer expressly represents and warrants that all Customer Data was collected by Customer in accordance with Customer’s privacy policy, applicable Third Party Platform policies and all applicable laws. Customer further agrees not to provide any Customer Data that violates the privacy rights of any individual or intellectual property rights of any third party or to which Customer does not have rights.
      3. Limits on Refersion's License to Customer Data. Unless it receives Customer’s prior written consent, Refersion: (a) shall not access, process, or otherwise use Customer Data other than as necessary to operate and facilitate the Services, to provide Services to Customer and as otherwise permitted under this Agreement; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Refersion’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement or confidentiality obligations. Notwithstanding the foregoing, Refersion may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Refersion shall give Customer prompt notice, if permitted by applicable law, of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
    2. Privacy Policy. The Privacy Policy applies only to the Services and does not apply to any third party website or service linked to the Services or recommended or referred to through the Services or by Refersion’s staff, including without limitation, Merchant’s websites or Affiliate’s websites.
    3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services, Customer assumes such risks. Refersion offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through its own errors or actions, or those of third parties.
    4. Data Accuracy. Refersion shall have no responsibility or liability for the accuracy of data uploaded to the Services by Customer, including without limitation Customer Data and any other data uploaded by Authorized Users. In addition, Refersion shall not be responsible or liable for any Affiliate commission payment calculation errors in connection with PayPal or other online or mobile payments made in reliance on the reports generated from the use of the Services or of any API keys generated by the Services.
    5. Data Deletion. Refersion may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
    6. Excluded Data. Customer represents and warrants that the Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Refersion’s computers, servers, network or other media, any data that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law or regulation (examples include but are not limited to the Health Insurance Portability and Accountability Act (HIPAA), the Gramm–Leach–Bliley Act (GLBA), Family Educational Rights and Privacy Act (FERPA), “Sensitive Personal Data” as defined under the General Data Protection Regulation (GDPR), etc. (the "Excluded Data Laws")) (such Customer Data collectively, "Excluded Data”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) REFERSION HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) REFERSION’S SYSTEMS, INCLUDING THE SERVICES, ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA UNLESS OTHERWISE NOTED BY REFERSION.
    7. Aggregate and Anonymized Data. “Aggregate Data” means information, including information derived from Customer Data, that relates to a group or category of users, from which individual user identities have been removed, that is not linked or reasonably linkable to any individual or household. For clarify, “Aggregate Data” does not including information that identifies any of Customer’s Authorized Users, Affiliates or End Users or is otherwise identifiable as originating from Customer. Notwithstanding any provision of this Section 5 to the contrary, Refersion may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.
  6. CUSTOMER’S RESPONSIBILITIES AND RESTRICTIONS.
    1. Acceptable Use. Customer shall not: (i) use the Services for service bureau or time-sharing purposes or in any other way allow third parties, including Customer’s Affiliates, to exploit the Services; (ii) provide Services passwords or other log-in information to any third party; (iii) share non-public Services features or content with any third party; (iv) access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services; or (v) violate the AUP. In addition, Customer shall comply with all restrictions imposed by its respective agreements with each Affiliate in connection with Affiliate transactions.
    2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. Customer shall notify Refersion immediately of any known or suspected unauthorized use of the Services or breach of its security and shall use best efforts to stop said breach.
    3. Compliance with Laws. In its use of the Services, Customer shall comply with all applicable laws and regulations, including without limitation laws governing the sale of goods and services in a jurisdiction in which the goods or services are being sold, delivered, conveyed or otherwise distributed, and the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
    4. Authorized Users & Services Access. Customer is responsible and liable for: (a) Authorized Users’ use of the Services, including without limitation any Authorized User conduct that would violate the requirements of this Agreement applicable to Customer; (b) any violation or noncompliance with any applicable laws and regulations by Authorized Users; and (c) any use of the Services through Customer’s Account, whether authorized or unauthorized.
  7. IP AND FEEDBACK.
    1. IP Rights to the Services. Refersion retains all right, title, and interest in and to the Services, including without limitation all software, system software and applications used to provide the Services, including any source code, updates, improvements, enhancements, modifications or derivative works thereof, whether or not patentable, and all inventions, content, graphics, media, user interfaces, logos, and trademarks contained in, displayed, performed or reproduced through the Services. This Agreement is an agreement for services and does not grant Customer any intellectual property license or rights in or to the Services or any of its components. Customer understands and agrees that the Services and its components are protected by copyright and other applicable law.
    2. Feedback. "Feedback" refers to any suggestion or idea for improving or otherwise modifying any of Refersion’s products or services. Refersion has not agreed to and does not agree to treat as confidential any Feedback that Customer or Authorized Users provide to Refersion, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Refersion’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the Authorized User in question.
  8. CONFIDENTIAL INFORMATION. "Confidential Information" refers to the following items Refersion discloses to Customer: (a) any document Refersion marks “Confidential”; (b) any information Refersion orally designates as “Confidential” at the time of disclosure, provided Refersion confirms such designation in writing within seven (7) business days; (c) the Documentation, this Agreement, Customer Order and any communications between Refersion and Customer in relation to this Agreement, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by Refersion, whether or not marked or designated “Confidential." Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer.
    1. Nondisclosure. Customer shall not use Confidential Information for any purpose other than in connection with its use of the Services for its ordinary business purposes (the “Purpose”). Customer shall not disclose Confidential Information to any other third party without Refersion’s prior written consent. Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but in no event less than reasonable care. Customer shall promptly notify Refersion of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Refersion prompt notice of any such legal or governmental demand and reasonably cooperate with Refersion in any effort to seek a protective order or otherwise to contest such required disclosure, at Refersion’s expense.
    2. Injunction. Customer agrees that breach of this Section 8 would cause Refersion irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Refersion will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
    3. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 8(a) above (Nondisclosure) will terminate five (5) years after the date of disclosure. Upon termination of this Agreement, Customer shall return or destroy all copies of Confidential Information in its possession.
    4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Refersion will retain all right, title, and interest in and to all Confidential Information.
  9. REPRESENTATIONS & WARRANTIES.
    1. From Refersion. Refersion represents and warrants that (i) it is the owner of the Services and of each and every component thereof, or the recipient of a valid license thereto, (ii) it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party and (iii) the Services do not and will not infringe the intellectual property rights of any third party. Refersion’s representations and warranties in the preceding sentence do not apply to use of the Services in combination with hardware or software not provided by Refersion. In the event of a breach of the warranty in this Section 9(a)(iii), Refersion, at its own option and expense, will promptly take the following actions: (a) secure for Customer the right to continue using the Services; (b) replace or modify the Services to make it non-infringing; or (c) terminate the infringing features of the Services and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Refersion’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 9(a) and for potential or actual intellectual property infringement by the Services.
    2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations and grant the licenses specified in this Agreement; (b) it has not provided any inaccurate information about itself to or through the Services; (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law; and (d) it is in full compliance with all laws and regulations applicable to its business; (e) if Customer is a Merchant, it has entered into a valid and enforceable agreement with one or more Affiliates with respect to which it intends to use the Services; and (f) no other contract, agreement, undertaking or obligation of Customer, including without limitation Customer’s agreements with Affiliates, prevents or restricts in any way Customer’s disclosure of the Customer Data or the licenses and use of the Services contemplated hereby.
    3. Warranty Disclaimers. Except as provided in Section 9(a) above, CUSTOMER ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) REFERSION HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR AUTHORIZED USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) REFERSION DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) REFERSION DOES NOT REPRESENT OR WARRANT THAT THE SERVICES IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
  10. INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless Refersion and each of the Refersion Associates against any “Indemnified Claim," meaning any third party claim, suit, or proceeding arising out of or related to (a) Customer’s breach of its representations or warranties set forth in Section 9(b); (b) Customer Data infringing the intellectual property or other personally held right of such third party; (c) Customer's alleged or actual use of, misuse of, or failure to use the Services; (d) claims by Authorized Users, Customer's employees or End Users, including without limitation any claims related to (i) unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (ii) infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by content uploaded to the Services through Customer’s Account; and (iii) claims that use of the Services through Customer’s account which harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. and (e) Customer’s gross negligence or willful misconduct. Customer’s indemnity obligations include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Refersion will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing obligations.
  11. LIMITATION OF LIABILITY.
    1. Dollar Cap. REFERSION’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY CUSTOMER TO REFERSION IN A PERIOD OF TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
    2. Exclusion of Consequential Damages. IN NO EVENT WILL REFERSION BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
    3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 11 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF REFERSION IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 11, Refersion’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Refersion’s liability limits and other rights set forth in this Section 11 apply likewise to Refersion Associates.
  12. TERM AND TERMINATION.
    1. Term. The term of this Agreement (the "Term") shall commence on the Effective Date and continue for the initial term specified in the Customer Order. Following its expiration, the Term will renew automatically for successive terms equal to the initial term specified in the Customer Order, unless either party provides notice of non-renewal to the other party thirty (30) or more days before the renewal date.
    2. Termination for Cause. Either party may terminate this Agreement and any Customer Order if the other party: (i) fails to cure any material breach (including, without limitation, Customer’s failure to pay the Fees) of this Agreement within thirty (30) days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Nothing in this Section shall limit Refersion’s ability to immediately terminate this Agreement or any Customer Order immediately (x) upon any breach of Section 6 of this Agreement by Customer or (y) for any other reason otherwise specified herein. Upon termination, Refersion may also disable links and reporting and payment functionality with respect to Affiliates of Customer, effective immediately, in its sole discretion.
    3. Effects of Termination. Upon termination of this Agreement, Refersion shall discontinue Customer’s access to the Services, Customer shall cease all use of the Services and Customer shall promptly delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay Fees (unless the termination is by Customer for cause); (b) Sections 7, 8, 11, 12 and 13; and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
  13. PUBLICITY. In further consideration of the rights granted hereunder to Customer, Customer agrees to permit Refersion to use Customer’s name and trademarks and service marks to identify Customer as Refersion’s customer on the Website, in sales and marketing materials and activities. Customer agrees to cooperate with Refersion in reasonable publicity efforts involving the Services, such as, for example, media releases and marketing materials in accordance with Refersion’s reasonable request.
  14. MISCELLANEOUS.
    1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Refersion employee or contractor will be an employee of Customer.
    2. Notices. Refersion may send notices pursuant to this Agreement to Customer’s email address(es) in Customer’s Account, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to Refersion, and such notices will be deemed received 72 hours after they are sent in writing and if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid) addressed to Refersion Inc., 242 West 38th St., 10th floor, New York, NY 10018, with a copy sent by email to [email protected]
    3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
    4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Refersion’s express written consent. Except to the extent forbidden in this Section 14(d), this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
    5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
    6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
    7. Choice of Law & Jurisdiction This Agreement will be governed solely by the internal laws of the State of New York, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of the New York County, New York.
    8. Conflicts. These Terms will control over any contrary provision in any Refersion policy posted online, including without limitation the Privacy Policy, except to the extent any such policy specifically states that it controls over these Terms.
    9. Headings. The section headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
    10. Technology Export. Customer shall not: (a) permit any third party to access or use the Services in violation of any U.S. law or regulation; or (b) export any software provided by Refersion or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Services in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
    11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
    12. Amendment. Refersion may amend this Agreement from time to time by posting an amended version at its Website. Such amendment will be deemed accepted and become effective immediately. Customer’s continued use of the Services following the effective date of an amendment will confirm Customer’s consent thereto. Refersion may also revise the Privacy Policy, the AUP and any other Refersion policy at any time by posting a new version on the Services, and such new version will become effective on the date it is posted.
    13. Acceptance. CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PERSON ACCEPTING THIS AGREEMENT ON CUSTOMER’S BEHALF THROUGH REFERSION’S ONLINE REGISTRATION PROCESS OR BY MEANS OF A CUSTOMER ORDER REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS. Customer will have indicated its assent to the terms of the Agreement by clicking on the “Accepted and Agreed to” (or similar button) that is presented to Customer at the time of its opening of an online account with Refersion and submitting an order for the Services through Refersion’s online registration process on the Website.