Terms of Service
Last Updated July 13, 2023
Please read these Terms of Service (the “Agreement”) carefully before using the Audere website, Platform, and Services operated by BST Consultants Inc. (“BST”), a corporation having its principal place of business at 5925 Benjamin Center Drive, Tampa, FL USA 33634. This Agreement is a contract between users of the BST Audere Services and underlying platform (“Authorized Users”), customers of BST (“Customers”) (collectively “Users”), and BST. By visiting the BST Audere website and using the Services, Users are agreeing to these terms. BST periodically updates these terms. Authorized Users and Customers that have an active BST account will be informed of any updates to this Agreement via an email. The parties agree as follows:
1. Definitions
“Affiliate” means a person or entity that owns, is owned by, or is under common control with a Party, and “control” in this definition means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such entity.
“Account Owner” means the person in whose name your account is registered, either you or any person to which you transfer ownership to as detailed in section 6.
“Account” means a unique account created for Authorized Users to access the Services.
“Authorized Users” means individuals who are authorized by Customer to use the Platform and Services with varying levels of control and access specified by Customer and who have been supplied user identifications and passwords by Customer.
“Content” means any text, documents, software, data, applications, images, formats, and other files created by BST and provided through the Services and any updates and modifications thereto and derivative works thereof.
“Customer Data” means all information and data submitted to BST by or on behalf of Customer in connection with the creation and management of Customer’s account for the Services.
“Customer” means Customer who subscribes to BST’s subscription plan.
“Order Form” means a document issued by BST and executed or otherwise agreed upon by authorized representatives of Customer, which specifies the details of the specific Services to be provided to Authorized Users.
“Platform” means the BST proprietary “Software as a Service” (defined herein) that is designed to support the resourcing of projects in the professional services arena.
“Services” means access to the Platform and Services, via an account, that are ordered by and paid for by Customer and made available by BST.
“Service Start Date” means the date on which Customer is granted access to the Services purchased pursuant to registration for services.
“Software as a Service” (“SaaS”) means a software delivery model in which a software platform is made available on a subscription basis and is centrally hosted.
2. BST Services
2.1 Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement for such Services, and solely for Customer’s internal business and non-commercial purposes, BST shall make the Services available to Customer in accordance with the applicable Order Form.
2.2 Updates and Functionalities. Customer acknowledges that, from time to time, at its discretion, BST may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of such Platform and Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, BST will provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”).
2.3 Acceptable Use Policy.
Customer shall:
(i) be responsible for Authorized Users’ compliance with this Agreement;
(ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform or Services, including keeping passwords and user names confidential and not permitting any third party to access or use its or any of its Authorized Users’ user names, passwords, or Customer account for the Services;
(iii) be solely responsible and liable for all activity conducted through its Customer account in connection with the Services;
(iv) promptly notify BST if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any Authorized User’s) user name, passwords, or Customer account; and
(v) use the Services only in accordance with applicable laws and government regulations.
Customers agrees not to:
(a) make the Platform or Services available to anyone other than the Authorized Users;
(b) sell, trade, publish, reproduce, or otherwise transfer the Content, Platform, or Services to another party;
(c) use the Platform or Services to store or transmit any content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law;
(d) upload to, or transmit from, the Platform or Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component;
(e) attempt to (or in fact) reverse engineer, de-compile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Platform or Services (including any mechanism used to restrict or control the functionality of the Platform or Services), any third-party use of the Platform or Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);
(f) gain or attempt to gain unauthorized access to the Platform or Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Platform or Services;
(g) use or access the Platform or Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Platform or Services; or
(h) authorize, permit or encourage any third party to do any of the above.
Customer agrees that BST may suspend, for any time period within BST’s sole and absolute discretion, or terminate Customer’s or any Authorized User’s access to the Platform or Services for a violation of this Section 2.3 or for any abusive practices that degrade the performance of any Service for Customer and/or other BST customers.
2.4 Non-Exclusivity. Customer and its Authorized Users acknowledge that the rights granted to it under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict BST’s right to license, sell, or otherwise make available the Platform or Services to any third party or perform any services for any third party.
3. Intellectual Property
3.1 Platform and Services. As between Customer and BST, BST retains all rights, title, and interest in and to the Platform and Services, Updates and any derivative works thereof, including all intellectual property rights therein. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of BST’s rights or interests therein or any other BST intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Platform and Services not expressly granted in this Agreement are reserved by BST.
3.2 Feedback. Customer may from time to time provide suggestions, comments, or other feedback to BST with respect to the Platform and Services (“Feedback”). Feedback, even if designated as confidential by Customer and, notwithstanding Article 5 of this Agreement, shall not create any confidentiality obligation for BST. Customer shall, and hereby does, grant to BST a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
3.3 Privacy Policy. Customer is solely responsible for the Customer Data submitted to the Platform or Services, and Authorized Users are responsible for any information submitted through the Audere website, Platform or Services. BST may use the Customer Information to provide the Services, as provided herein and as provided in the Audere Privacy Policy, which is incorporated herein, published at Privacy Policy (the “Privacy Policy”) or as may be required by law.
3.4 Copyright Notices. The works of authorship contained in this Website, including but not limited to all software, design, text, and images, are owned, except as otherwise expressly stated, by BST. Portions of the software are copyright 2009–2022 by Bryntum AB.
Except as otherwise expressly stated herein, the above may not be copied, transmitted, displayed, performed, distributed (for compensation or otherwise), licensed, altered, framed, stored for subsequent use or otherwise used in whole or in part in any manner without the Company’s prior written consent, except to the extent permitted by the Copyright Act of 1976 (17 U.S.C. § 107), as amended, and then, only with notices of the applicable proprietary rights. You are granted permission to display on your computer, print and download the content on this Website for your personal use, so long as you do not remove any copyright or other notice as may be contained in information, as downloaded. The Website content may not be copied, reproduced, modified, adapted, translated, transmitted, displayed, published, posted, resold, or otherwise distributed in any way, other than as expressly set forth in these Terms of Service, without the Company’s express prior written authorization.
4. License for Customer Data
Customer grants BST an irrevocable, world-wide, royalty-free, perpetual license, and right to access, process, analyze and store Customer Data in connection with providing the Services, preparing information, reports and recommendations for Customer relating to the Services, Customer’s business practices and other purposes related to providing the Services. Notwithstanding any provision in this Agreement, Customer agrees that: (a) BST may collect Aggregate Data; (b) Aggregate Data is and will remain the exclusive property of BST; and (c) BST may use Aggregate Data without restriction for any purpose, including for evaluating the usage and performance of the Services generally sales, licensing, advertising, marketing, promotion, and other purposes. “Aggregate Data” means information or data that is (a) not identifiable to any person or entity, (b) is compiled with data from numerous other BST customers such that Customer’s identity cannot be inferred, (c) does not contain Customer’s Confidential Information, and (d) is not distributed or otherwise conveyed in a context that identifies Customer’s identity.
5. Subscription, Payment & Free Trial Period
5.1 Subscription Terms. As an express condition of Customer’s use of and access to the BST Services and Platform, Customer agrees to pay all fees applicable to the subscription plan for which Customer registered on the applicable Order Form (the “Plan”).
5.2 Fees. Customer will pay all fees as and when described in the Order Form (the “Fees”). The fee for Customer’s Plan is billed in advance, is non-refundable, and automatically renews on a monthly or annual basis, as specified in the applicable Plan. No refunds or credits will be provided for portions of Plans.
5.3 Plan Cancellation. If Customer cancels a Plan before the end of a current subscription period, Customer will not be charged again for the Plan following the end of such full subscription period. If Customer cancels a Plan, Customer will lose all access, upon the cancelation date, to the BST Services and Platform and any data associated with Customer’s account.
5.4 Free Trial Period. During the registration process, BST may offer a one-time free trial period during which Customers can try out the BST Services and Platform for an agreed period without pre-paying in advance (“Free Trial Period”).
If Customer does not cancel before the Free Trial Period expires, Customer will be required to provide valid credit card payment information and authorizes BST to charge the Customer’s credit card on file for the full cost of the Plan described. The subscription will automatically renew and continue month-to-month or year-to-year (depending on the applicable Plan), unless and until Customer cancels their subscription or BST terminates this Agreement pursuant to Section 8.3. Customer will receive a notice from BST that Customer’s Free Trial Period is about to end or has ended.
Customers may cancel their subscription at any time during the Free Trial Period. Upon cancellation of Customer’s account, Customer will immediately lose all access to the BST Services and Platform.
5.5 Taxes and Withholdings. Customer is responsible for paying all taxes, assessments, charges, fees, and levies that may be levied or based upon Customer’s subscription to the Services, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority. If BST has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.5, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides BST with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Confidential Information & Security
6.1 Confidential Information. Each party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care consistent with industry standards) and will not disclose or use any Confidential Information (as defined below) of the other party for any purpose outside of the scope of this Agreement, and each party shall limit access to Confidential Information to those of its, or its Affiliates’, employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving party containing protections no less stringent than those herein.
In this Agreement, “Confidential Information” means all information, data and financial information relating to the business, commercial strategies, pricing, personnel, customers, products, or services of each party. Confidential Information includes any business information that is either marked physically or identified orally as “confidential” or “proprietary.” Confidential Information excludes any information that (a) was lawfully in the receiving party’s possession before receiving it from the disclosing party; (b) is provided in good faith to the receiving party by a third party without restriction on use or disclosure and without breaching any rights of the disclosing party; (c) is or becomes generally known or available to, or accessible by, the public through no act or omission of the receiving party; or (d) was or is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. In the event that the receiving party or any representative of the receiving party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the receiving party will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
6.2 Security. BST has implemented technical and organizational security measures consistent with the prevailing industry standards. However, BST cannot guarantee that unauthorized third parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third-party access to Customer’s account or use, alteration, or disclosure of the Customer Information except in the event of BST’s gross negligence or willful misconduct. Details about BST’s security measures can be found in the Privacy Policy.
7. Transfer of Account
You are permitted to transfer your account to a new Account Owner. The new Account Owner must be configured as an Authorized User on the system, agree to these terms of use and ensure that they have updated their credit card details to pay the Fees, this will take affect from the first payment due upon or immediately after the transfer of the account. Following the transfer, this agreement will apply between BST and the new Account Owner.
8. Term & Termination
8.1 Term of Agreement. This Agreement shall commence on the Service Start Date and shall continue in effect until the expiration of the Plan or this Agreement has been terminated in accordance with this Article 8 (the “Term”).
8.2 Term of Subscription Plan. The term of each Plan shall start on the Service Start Date specified in the registration process or Order Form and shall continue for the term specified therein. Except as expressly stated otherwise, Plans shall automatically renew for subsequent one-month or one-year renewal periods, unless a Party gives the other Party written notice of non-renewal at least 30 days prior to the end of the then-current term. Upon renewal, BST reserves the right to increase the Fees for Services.
8.3 Termination for Cause. Either party may terminate this Agreement for cause (i) upon 30 days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. In the event that BST terminates this Agreement for cause, no refund shall be issued.
8.4 Termination for Convenience. BST may terminate this Agreement for convenience upon 60 days’ written notice to the Customer. In the event of BST’s termination for convenience, BST will issue the Customer a pro-rata refund of Fees paid for Services not rendered.
8.5 Effects of Termination. Upon termination of this Agreement or cancellation of a Plan for any reason, (i) Customer will immediately cease all use of the Services; (ii) Customer will have no further access to its Customer account provided by BST; and (iii) Customer will pay BST all unpaid Fees owing to BST. If Customer terminates this Agreement in accordance with Section 8.3, then without limiting any other remedies that may be available, Customer will pay any unpaid Fees covering the remainder of the term specified in the Plan after the date of termination. In no event will termination relieve Customer of its obligation to pay any amounts and Fees payable to BST for the period prior to the date of termination and other obligations that survive termination of this Agreement.
8.6 No Refunds. In the event that Customer terminates this Agreement or cancels its Plan in accordance with section 5.3, BST will not issue any refunds for fees already paid.
8.7 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive, and such other provisions that expressly or by their nature are intended to survive termination shall survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 5.1, as well as Sections 3,4,6, 9–13, shall survive the expiration or termination of this Agreement.
9. Service Levels
9.1 General. The BST Services and Platform depend on IT equipment, software and services that are provided, maintained and supported by BST. BST will provide and maintain the BST Services and Platform in a commercially reasonable fashion.
9.2 BST will use its best efforts to make the BST Services and Platform available to Customers who subscribe to a Plan. BST makes no service level or System Availability guarantees to Customers who subscribe to a Plan.
10. Warranty & Disclaimers
10.1 Mutual Warranties. Each of BST and Customer represents and warrants that it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement and that doing so is not in conflict with any other agreement.
10.2 BST Warranties. BST warrants that (i) subject to Section 2.2, the Services will materially perform in accordance with the applicable documentation and the functionality of the Services will not be materially decreased during the term of the applicable Plan; and (ii) BST has implemented and will maintain commercially reasonable measures designed to protect against viruses and other malicious code. For any breach of an above warranty, Customer’s exclusive remedies are those described in Section 8.3.
10.3 Legal Disclaimer. Nothing on the BST website, Platform, or Services, nor any portion thereof constitutes actual legal, regulatory, or other professional advice, opinion, or recommendation by BST, its Affiliates or any licensor of BST. If legal or other professional assistance is required, Customer should seek the services of an attorney or other competent professional. Customer assumes all responsibilities and obligations with respect to any decision, advice, conclusions, legal opinions, recommendations made or given as a result of the use of the Platform and Services, including, without limitation, any decision made or action taken by Customer in reliance upon the Services or Content, or incorporating or referencing the Content.
10.4 General Disclaimer. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION 10.4 MAY NOT APPLY TO CUSTOMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, BST EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BST SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, BST DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BST OR ELSEWHERE NOR ANY COURSE OF DEALING WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. BST EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR THE INFORMATION CONTAINED THEREIN AS WELL AS ACCOUNT AND CUSTOMER INFORMATION.
11. Indemnification
Customer agrees to defend, indemnify, and hold harmless BST, its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection or arising out of a third party claim (i) alleging that Customer’s or Authorized User’s use of the Platform or Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates any applicable law; (ii) relating to, or arising from, Customer Data or User’s breach of Section 2.3 or Section 10.1; or (iii) relating to Customer or its Authorized User’s violation of this Agreement.
12. Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL BST'S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE, AS PRO-RATED BASED UPON THE FEES FOR THE THEN CURRENT TERM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BST, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE PLATFORM OR SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL BST BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF BST WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING
OR RESTRICTING THE LIABILITY OF BST FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF BST, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE OF BST OR ITS EMPLOYEES; OR (III) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
CUSTOMER AGREES THAT CUSTOMER WILL ONLY BE ABLE TO PURSUE CLAIMS AGAINST BST ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. CUSTOMER FURTHER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF BST’S SERVICES MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13. General
13.1 Assignment. Customer may not assign or otherwise transfer any of their rights or obligations hereunder, (whether by merger, sale of assets, change of control, operation of law or otherwise) without the prior written consent of BST (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, BST may assign this Agreement in its entirety, without consent of Customer, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets.
13.2 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
13.3 Customer Logo. Customer agrees that BST may use Customer’s name and logo and may disclose that Customer is a customer of the Services in BST advertising, press, promotion, and similar public disclosures, including at trade shows and similar events. In addition to the foregoing, Customer hereby grants BST a non-exclusive license during the Term to list Customer’s name and display Customer’s logo as a BST customer on BST’s website.
13.4 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes; lock-outs or labor disruptions; pandemic; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
13.5 Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or interference against the party drafting this Agreement in construing or interpreting the provisions hereof.
13.6 Amendment. BST may amend, modify or update these Terms from time to time. In such event, an update notice will be provided on the BST Website.
13.7 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
13.8 Notices. For purposes of service messages and notices about the Services, BST may place a banner notice across the Services or website to alert Customers. Alternatively, notice may consist of an email from BST to an email address associated with Customer’s account, even if BST has other contact information. For communication about Customer’s account and services associated with BST, BST may contact Customer or its Authorized Users through its Customer account or through other means including email, mobile number, telephone, or delivery services such as the postal service. Customer acknowledges and agrees that BST shall have no liability associated with or arising from Customer’s failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Services. Notices to BST must be delivered by email to [email protected]. This contact information provided may be updated by giving notice in accordance with this Section 13.8.
13.9 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all parties to this Agreement, except that any provision that does not give rights or benefits to particular parties may be waived in writing, signed only by those parties who have rights under, or hold the benefit of, the provision being waived if those parties promptly send a copy of the executed waiver to all other parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
13.10 Governing Law, Jurisdiction and Venue. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of Florida. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Tampa. Florida, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Tampa, Florida, such personal jurisdiction shall be nonexclusive.
13.11 Binding Arbitration. It is the intention of the parties to use their reasonable best efforts to informally resolve, where possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by mutual negotiation and cooperation, a period of which shall be no less than five (5) business days from first notice of any such dispute. In the event the parties are unable to informally resolve any such dispute, including relating to this Agreement, the parties agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement and any disputes upon termination of the relationship, including claims for violation of any local, state or federal law, statute, regulation or ordinance or common law. The arbitration will be conducted in Tampa, Florida, by a single neutral arbitrator and in accordance with the American Arbitration Association’s (“AAA”) then current Employment Arbitration Rules’ expedited procedures for resolution. Notwithstanding the provision in the preceding or subsequent paragraph with respect to applicable substantive law, the arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1–16). The arbitrator shall have the power to enter any award that could be entered by a judge of the trial court of the State of Florida, and only such power, and shall follow the law. In the event the arbitrator does not follow the law, the arbitrator will have exceeded the scope of his or her authority and the parties may, at their option, file a motion to vacate the award in court. The parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to costs and attorneys’ fees.
13.12 Entire Agreement. The terms of this Agreement, together with any and all Exhibits and other terms incorporated by reference, including, without limitation, BST’s Audere Privacy Policy, constitute the entire agreement between the parties with respect to the subject matter thereof and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the parties and their permitted successors and assigns. In the event of any conflict between this Agreement and the terms specified in an Authorization Form, the provisions of the Authorization Form shall prevail. The terms of this Agreement will apply to all orders submitted to BST and shall supersede any additional terms that may be incorporated in a purchase order form or any other Customer-generated form. Any such Customer terms shall be null and void.