PLATFORM SERVICES AGREEMENT

LAST UPDATED: FEBRUARY 28, 2022

This BuildBoss Bid Management Software as a Service (“SaaS”) Agreement (the “Agreement”) is entered into between BuildBoss, LLC, an Idaho limited liability company (“Company”) and you (“Client” or “you(r)”). By accepting this Agreement, by clicking a box indicating your acceptance, you agree to the terms of this Agreement. If you are entering this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement. This Agreement is effective between you and Company as of the date you accept this Agreement (the “Effective Date”).

Company and Client may be referred to collectively as the “Parties” or individually as a “Party.” PLEASE READ THIS AGREEMENT CAREFULLY AS IT FORMS A LEGAL CONTRACT BETWEEN YOU AND COMPANY AND CONTAINS TERMS AND CONDITIONS FOR YOUR USE OF THE PLATFORM, LIMITATIONS OF LIABILITY, AND OPTIONS FOR DISPUTE RESOLUTION.

Your agreement with Company to use the Platform comprises and incorporates (i) this Platform Services Agreement; (ii) the BuildBoss Terms of Service and Privacy Policy; and (iii) any other documents referred to within such documentation materials. In the event of a conflict, this Platform Services Agreement will prevail.

WHEREAS, Company has developed and designed a bid management SaaS platform (“Platform”) that allows general contractors and developers to find and interact with prospective bidders during the preconstruction phase of projects; and

WHEREAS, Company desires to allow Client to use the Platform along with any applicable Company applications, data, materials, programs, software, and other services offered in connection with the Platform (collectively, the “Services”) pursuant to the terms of this Agreement; Client desires to use the Services pursuant to the terms of this Agreement; and the Parties desire to enter into this Agreement, which expressly modifies and supersedes any prior agreements regarding Client’s use of the Services. YOU UNDERSTAND AND AGREE THAT COMPANY IS SOLELY PROVIDING SERVICES AS A SAAS PLATFORM AND THAT YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS, PROJECTS, CONTENT, DATA, AND ANY ACTIVITY THROUGH YOUR ACCOUNT AND USE OF THE SERVICES.

 

a. “Add-On Service(s)” shall be defined as any one or more services that are not included in the base Services price but are made available by Company to Client for an additional charge.

b. “Application” shall be defined as a downloadable software application that allows the Services to be accessed via a mobile device or computer desktop.

c. “Authorized User(s)” shall be defined as any and all users who are authorized by the Client to use the Services as part of Client’s general contractor or developer business and who Client represents and warrants are bound by the terms of this Agreement.

d. “Documentation” shall be defined as any written materials or instructions about the use of the Services provided by or made available by Company to Client and/or Authorized Users.

e. “Harmful Code” means any software, hardware, or other technologies, devices, or means, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, or otherwise harm or impede in any manner, any (i) computer, software, firmware, hardware, system, or network, or (ii) any application or function of any of the foregoing or the integrity, use, or operation of any data processed thereby; or (b) prevent Client or any Authorized User from accessing or using the Services or Company systems as intended by this Agreement, and includes any virus, bug, Trojan horse, worm, backdoor, or other malicious computer code and any time bomb or drop dead device.

f. “Statement of Work” shall be defined as any executed work order(s), statement of work (“SOW”), or purchase order, which will set forth all details regarding the specific projects, deliverables, Services, or Add-On Services to be provided as part of this Agreement.

 

a. Grant of License Subject to the terms and conditions of this Agreement, Company grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Services. This license allows you to use the Services in the manner intended by the Services, but it does not allow you to reproduce, duplicate, copy, modify, sell, or otherwise exploit any portion of the Services without the prior express written consent of Company. All rights not expressly granted in this Agreement are reserved by Company. Without limitation, this Agreement grants you no rights to the intellectual property of Company or any other party, except as expressly stated in this Agreement. The license granted is conditioned on your compliance with this Agreement. Your rights under this Agreement will immediately terminate if, in the sole judgment of Company, you have breached any provision of this Agreement or any applicable laws.

b. Rights to Updates Client shall be entitled to use the Services under this Agreement as they are later updated or modified, provided such updates or modifications are made generally available to all clients of the Services.

c. Provision of Other Services To the extent that Company agrees to perform services that are outside of the scope of or otherwise not described in the Services, the Parties agree to execute a Statement of Work that includes pricing information and sufficient detail to enable Company to adequately perform its obligations under such SOW. Such SOW will be governed by this Agreement and executed prior to Company beginning any additional services.

d. Rights to New Functionality From time-to-time, Company may introduce new functionality into the Services. Company may, in its sole discretion, offer such new functionality to all its clients for an additional fee specified by Company. Client shall be under no obligation to acquire such new functionality.

e. Proprietary Notices Client agrees to not remove, alter, or conceal any product identification, copyright notices, or other notices or proprietary restrictions from the documentation provided to Client by Company.

f. Restrictions on Use Except as permitted under this Agreement or a SOW, Client acknowledges and agrees that the rights granted to Client in this Agreement are subject to all of the following agreements and restrictions: (i) Client shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Services available to any third party other than an Authorized User; (ii) Client shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services, including without limitation the Platform or any Application, or access the Services in order to build a similar or competitive product or service; (iii) Client shall not create Internet "links" to the Services or "frame" or "mirror" any part of the Services, on any other server or device; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (v) Client agrees to make commercially reasonable efforts to prevent unauthorized third parties from accessing the Services; (vi) unauthorized use, resale or commercial exploitation of any part of the Services in any way is expressly prohibited; (vii) Client does not acquire any rights in the Services, express or implied, other than those expressly granted in this Agreement and all rights not expressly granted to Client are reserved by Company; (viii) the unauthorized sharing of a user Account between multiple users is prohibited; and (ix) this Agreement is not a sale and does not convey any rights of ownership in or related to the Services, the Platform, or the Application to Client.

 

a. The Platform Client understands and agrees that Company only provides the Services as a SaaS platform. Client understands and agrees that third parties may use the Services and that Company shall not be liable for any conduct of third parties. Client further understands and agrees that this Agreement is between Company and the signatory Client, and that Client shall not contract with or otherwise engage any “sub-client” or licensee to use the Services or perform any obligations under this Agreement without prior approval of Company.

b. Third Party Terms and Conditions Client acknowledges that providing the Services may include third parties for ancillary services including payment, messaging, and data services. Client further acknowledges that each of such third-party service providers may have its own terms and conditions and privacy policies for use of its services. As such, Client agrees to abide by each third party’s terms and conditions as if incorporated into this Agreement and acknowledges the collection and use of Client’s data by third parties may differ from Company.

c. Reasonable Efforts Company shall use reasonable commercial efforts to make the Services available 99% of the time out of 24 hours a day, 7 days a week, except for (i) planned downtime; or (ii) downtime caused by circumstances beyond Company’s reasonable control. Client shall promptly report any issues with the Services to Company; and Company shall use reasonable efforts to respond to Client within commercially accepted timeframes within business hours.

 

a. Client Systems Client shall be solely responsible for procuring and maintaining the necessary hardware and software for accessing and utilizing the Services.

b. Provision of Client Data Client is responsible for the quality and accuracy of all Client data and other input provided to Company by Client or any party providing data on Client’s behalf. Company shall not be responsible or liable in any way for any delay resulting from any failure by Client to comply with Client’s responsibilities under this Section.

c. Client Data Storage Any information and data related to or derived from Client’s use of the Services (“Client Data”), will be hosted on Company’s servers or on the servers of Company’s third-party hosting providers. Client hereby authorizes and consents to the collection, storage, and transfer or release by Company and its third-party hosting providers of Client Data. Client Data will be treated as Confidential Information (as defined below). CLIENT HEREBY ACKNOWLEDGES THAT A CATASTROPHIC SERVER FAILURE OR OTHER EVENT COULD RESULT IN THE LOSS OF ALL OF CLIENT DATA. CLIENT AGREES AND UNDERSTANDS THAT IT IS CLIENT’S RESPONSIBILITY TO BACKUP CLIENT DATA TO CLIENT’S COMPUTER OR EXTERNAL STORAGE DEVICE AND TO ENSURE SUCH BACKUPS ARE SECURE.

d. Account Prior to and as a condition of using the Services, Client is required to create and maintain an account (“Account”) for each subscribed user of the Services. Each Account requires a unique username and password. Company has the right, in its sole discretion, to approve or reject any Account request and any documentation (e.g., username) required to create and use an Account. By creating an Account, Client represents and warrants that all information provided in relation to its Account, including name/company name, username, and contact information is current, complete, and accurate. Client is solely responsible for maintaining the confidentiality of their Account username and password and may not distribute the same to any third party without Company’s consent. Client shall promptly notify Company of any unauthorized access to its Account. Company shall not be liable for, and Client assumes all risks related to, any third-party access to Client’s Account. In using the Services and/or its Account, Client agrees that it will not: (i) publish any material that is false, defamatory, harassing, or obscene; (ii) violate privacy rights or promote bigotry, racism, or harm; (iii) menace or harass any person or cause damage or injury to any person or property; (iv) rent, lease, lend, sell, sublicense, transfer, distribute, or make the Services available to any unauthorized third party or allow anyone other than authorized users to access its Account; (v) access or seek to reverse engineer the Services software code; (vi) make derivative works of, sell, sublicense, lease, transfer, copy, gift, reverse engineer, scrape, decompile, alter, modify, conceal, eliminate, or render inoperable any part of the Services; or (vii) violate any Applicable Laws as defined below.

e. Content Company acknowledges and agrees that Client shall retain all, right, title, and interest in any content and user data, excluding aggregate data developed by Company, created, or developed by Client or any Authorized Users on Client’s behalf and uploaded, stored, and delivered by or through the Services (the “Content”). Client is and will remain solely responsible for all Content transmitted via the Services. Client represents and warrants that all Content uploaded by Client complies with all applicable laws and regulations. Under no circumstances will Company be liable for any Content accessed, retrieved, recorded, heard, posted, or otherwise transmitted or received via the Services, regardless of where or how it originated. For purposes of providing the Services to Client and to improve the Services and Platform, Client grants to Company a non-exclusive and perpetual right and license to use, copy, transmit, modify, and display the Content for the purpose of fulfilling its obligations under this Agreement. Company may remove or delete Content from the Services for any reason in its sole discretion.

f. Content Storage Limits Content may be subject to usage limits specified. Content uploaded through the Services must be relevant to the nature of the business that the Platform was designed for. If Client uploads excessive Content through the Services such that it interferes with the Services, Company will notify Client. Client may be required to remove Content to meet storage limits.

 

a. Term This Agreement commences on the date Client first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

b. Term of Purchased Subscriptions The term of each subscription is one month. Except as otherwise specified, subscriptions will automatically renew for additional one-month terms, unless either Party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term.

c. Termination A Party may terminate this Agreement for cause (i) upon 7 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.

d. Refund or Payment upon Termination If this Agreement is terminated by Client in accordance with the “Termination” section above, Company will refund Client any prepaid fees covering the remainder of the term after the effective date of termination. If this Agreement is terminated by Company in accordance with the “Termination” section above, Client will pay any unpaid fees covering the remainder of the term to the extent permitted by applicable law. In no event will termination relieve Client of its obligation to pay any fees payable to Company for the period prior to the effective date of termination.

e. Effect of Termination Upon termination of this Agreement, any and all licenses and rights granted to Client in connection with this Agreement shall immediately cease and terminate, and Client shall immediately: (i) discontinue use of the Services and its Account; (ii) pay all outstanding Fees and amounts then due and owing under this Agreement, if any; (iii) return to Company all Documentation and other materials related to the Services as required or requested by Company; and (iv) continue to perform any obligations under this Agreement that expressly survive, or that may be reasonably expected to survive termination. Without limiting any other provisions of this Agreement, and except as stated above, Sections 6-15 shall expressly survive any termination.

f. Content Deletion upon Termination Upon termination of this Agreement, Company shall delete all of Client’s Content and data in its possession within 60 days following termination. Client is responsible for backing up and migrating all of its Content and data in Company’s possession prior to the termination of this Agreement at the Client’s expense.

 

a. Subscriptions Unless otherwise agreed upon by the Parties, Services and access to the Platform are purchased as a subscription (“Subscription”) for the term stated in the applicable online purchasing portal.

b. Service Fees In consideration of the rights granted hereunder, Client shall pay Company the Services fees (the “Fees”), as set forth on the BuildBoss webpage at https://buildboss.com/pricing, which is incorporated herein by reference.

c. Add-On Service Fees Client shall pay the applicable fees for any Add-On Services specifically requested by Client as set forth in any applicable agreement or SOW entered into between the Parties.

d. Payment TermsClient agrees to timely pay all Fees promptly when due in accordance with the Subscription. If Client provides credit card information to Company for payment of its Subscription, Client authorizes Company to charge such credit card for all purchased Services listed in the Subscription for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either monthly or in accordance with any different billing frequency as agreed upon between the Parties. If payment will be by a method other than a credit card, Company will invoice Client in advance and otherwise in accordance with the relevant Subscription. Client is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.

e. Suspension for Delinquent AccountCompany reserves the right to immediately suspend Client’s access and/or use of the Services for any account for which any payment is due but remains unpaid after 30 days written notice of such delinquency. Client agrees that Company shall not be liable to Client, or to any third Party, for any suspension of the Services of loss of Content resulting from Client’s non-payment of the Fees.

f. TaxesAll taxes and charges of any kind imposed by any national, federal, state, or local government with respect to the products, services, or other items covered by this Agreement, shall be paid by each respective party. Client will indemnify, defend and hold Company harmless from and against any claim, suit, proceeding or other action resulting from Client’s non-payment of taxes, together with all related penalties and interest.

 

a. Rights to ServicesClient acknowledges and agrees that the Services and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the property of Company. Furthermore, Client acknowledges and agrees that the source and object code of the Services and the format, directories, queries, algorithms, structure, and organization of the Services are the intellectual property and proprietary and confidential information of Company and its affiliates, licensors, and suppliers. Except as expressly stated in this Agreement, Client is not granted any intellectual property rights in or to the Services by implication, estoppel or other legal theory, and all rights in and to the Services not expressly granted in this Agreement are hereby reserved and retained by Company.

b. Third Party SoftwareThe Services may utilize or include third-party software that is subject to open source and third-party license terms (“Third Party Software”). Client acknowledges and agrees that Client’s right to use such Third-Party Software as part of the Services is subject to and governed by the terms and conditions of the open-source or third-party license applicable to such Third-Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the terms of this Agreement and the terms of such open source or third-party licenses, the terms of the open-source or third-party licenses shall control with regard Client’s use of the relevant Third-Party Software. In no event shall the Services or components thereof be deemed to be “open source” or “publicly available” software.

c. Company MarksBuildBoss, the BuildBoss Logo, and the BuildBoss tradename (collectively, the “Company Marks”) are trademarks or registered trademarks of Company. Other trademarks, service marks, graphics, logos, and domain names appearing on the Services may be the trademarks of third parties. Neither Client’s use of the Services nor this Agreement grants Client any right, title, or interest in or to, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. Client agrees that any goodwill in the Company Marks generated as a result of Client’s use of the Services will inure to the benefit of Company, and Client agrees to assign, and hereby does assign, all such goodwill to Company. Client shall not at any time, nor shall Client assist others to, challenge Company’s right, title, or interest in or to, or the validity of, the Company Marks.

d. Company Copyrights; Copyright NoticeAll content and other materials available through the Services, including without limitation any software code, scripts, interfaces, graphics, displays, text, documentation, and other components, and the selection, arrangement, and organization thereof, are either owned by Company or are the property of Company’s licensors and suppliers. Except as explicitly provided, neither Client’s use of the Services nor this Agreement grant Client any right, title or interest in or to any such materials.

 

CLIENT MAY NOT RENT, LEASE, LEND, SUBLICENSE OR TRANSFER THE SERVICES, THIS AGREEMENT, OR ANY OF THE RIGHTS GRANTED HEREUNDER. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THIS PROVISION SHALL BE NULL AND VOID AND OF NO FORCE OR EFFECT.

 

a. Confidential InformationWithout limiting any other provision in this Agreement, “Confidential Information” shall mean any proprietary information, technical data, trade secrets or know-how (which shall include, without limitation, any information designated as Confidential at the time of disclosure, information that would, under the circumstances, appear to a reasonable person to be confidential or proprietary, certain Client Content and data, research, product plans, products, services, customer lists, and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information) whether disclosed orally or in writing through any media, whether or not designated as confidential, that is known or should reasonably be known by the receiving party to be treated as confidential. Confidential Information does not include information, technical data or know-how which: (i) is known to the receiving party at the time of disclosure to the receiving party by the disclosing party as evidenced by written records of the receiving party; (ii) has become publicly known and made generally available through no wrongful act of the receiving party; (iii) is shared with other users through use of the Services; or (iv) has been rightfully received by the receiving party from a third party who is authorized to make such disclosure.

b. Nondisclosure of Confidential InformationClient hereby agrees to maintain the secrecy of Company’s Confidential Information, and to safeguard Company’s Confidential Information with the same degree of care as is exercised in connection with its own proprietary and confidential materials. Company hereby agrees not to share Confidential Information of Client other than as disclosed in the BuildBoss Privacy Policy. Each Party shall not disclose, use, modify, copy, reproduce, or otherwise divulge any Confidential Information of the other Party other than as necessary to fulfill the receiving Party’s obligations under this Agreement. The Parties acknowledge that unauthorized disclosure or use of Confidential Information may cause irreparable harm to the disclosing Party for which recovery of money damages would be inadequate, and that disclosing Party shall therefore be entitled to seek timely injunctive relief to protect its rights under this Agreement, in addition to any and all remedies available at law.

 

CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT CLIENT’S USE OF OR RELIANCE UPON THE SERVICES IS AT CLIENT’S SOLE RISK AND DISCRETION. COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS, AND LICENSORS MAKE NO WARRANTY THAT: (I) THE SERVICES WILL MEET CLIENT’S REQUIREMENTS; (II) THE SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY CLIENT THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET CLIENT’S EXPECTATIONS; OR (IV) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. WHILE COMPANY SHALL MAKE COMMERCIALLY REASONABLE EFFORTS TO PROTECT CLIENT DATA, COMPANY IS NOT RESPONSIBLE FOR CLIENT DATA RESIDING ON COMPANY SERVERS OR THE SERVERS OF COMPANY’S THIRD-PARTY HOSTING PROVIDERS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM COMPANY OR FROM THE SERVICES SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY.

 

UNDER NO CIRCUMSTANCES SHALL COMPANY OR ITS AFFILIATES, PARTNERS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY’S AGGREGATE LIABILITY TO CLIENT (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AGGREGATE PRICE CLIENT PAID TO COMPANY DURING THE SIX MONTHS PRECEDING THE INCIDENT. CLIENT AGREES THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND CLIENT. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

a. Intellectual Property Indemnity Company shall indemnify, defend and hold harmless Client from and against any claims, actions, or demands alleging that the Services infringe any patent, copyright, or other intellectual property right of a third party. If use of the Services is permanently enjoined for any reason, Company, at Company’s option, and in its sole discretion, may: (i) modify the Services so as to avoid infringement; (ii) procure the right for Client to continue to access and use the Services; or (iii) terminate this Agreement and refund to Client all Fees paid. Company shall have no obligation under this Section 12(a) for or with respect to claims, actions, or demands alleging infringement that arise as a result of (a) the combination of non-infringing items supplied by Company with any items not supplied by Company; (b) modification of the Services by Client; (c) the direct or contributory infringement of any process patent by Client through the use of the Services; and (d) continued allegedly infringing activity by Client after Client has been notified of the possible infringement.

b. Client IndemnificationClient shall indemnify, defend and hold harmless Company and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents, and employees from and against any claim, proceeding, loss, damage, fine, penalty, interest, and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) Client’s and/or Client’s Authorized Users’ access to or use of the Services; (ii) Client’s breach of this Agreement; (iii) Client’s and/or Client’s Authorized User’s violation of law, including without limitation laws designed to regulate unsolicited email or other electronic advertising; (iv) Client’s negligence or willful misconduct; or (v) Client’s and/or Client’s Authorized User’s violation of the rights of a third party, including the infringement by Client of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the Agreement.

c. Condition to IndemnificationShould any claim subject to indemnity be made against Company or Client, the Party against whom the claim is made agrees to provide the other Party with prompt written notice of the claim. Company will control the defense and settlement of any claim under Section 12(a) and Client will control the defense and settlement of any claim under Section 12(b). The indemnified party agrees to cooperate with the indemnifying party and provide reasonable assistance in the defense and settlement of such claim. The indemnifying party is not responsible for any costs incurred or compromise made by the indemnified party unless the indemnifying party has given prior written consent to the cost or compromise.

 

Company does not warrant that the Services will be compatible or interoperable with Client’s computer or any other piece of hardware, software, equipment, or device installed on or used in connection with Client’s computer. Furthermore, Client acknowledges that compatibility and interoperability problems can cause the performance of Client’s computer to diminish or fail completely, and may result in permanent damage to Client’s computer, loss of the data located on Client’s computer, and corruption of the software and files located on Client’s computer. CLIENT ACKNOWLEDGES AND AGREES THAT COMPANY AND ITS AFFILIATES, PARTNERS, SUPPLIERS, AND LICENSORS SHALL HAVE NO LIABILITY TO CLIENT FOR ANY LOSSES SUFFERED RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS.

 

The Services and this Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in Idaho Falls, ID, and shall be governed by and construed in accordance with the laws of the State of Idaho without regard to its conflict of law principles. ANY CAUSE OF ACTION BY CLIENT ARISING OUT OF OR RELATING TO THE APPLICATION, THE SERVICES, INCLUDING THE PLATFORM, OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN ABOVE.

a. Requirement of Arbitration Client agrees that any dispute, of any nature whatsoever, between Client and Company arising out of or relating to the Services or this Agreement, shall be decided by neutral, binding arbitration before a representative of JAMS in a location of the Client’s choosing unless Client and Company mutually agree to a different arbitrator, who shall render an award in accordance with the substantive laws of Idaho and JAMS’ Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS fee and reasonable attorney’s fees) to the prevailing party.

b. Remedies in Aid of Arbitration; Equitable Relief This agreement to arbitrate will not preclude Client or Company from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude Client or Company from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. THE PROPER VENUE FOR ANY ACTION PERMITTED UNDER THIS SUBSECTION REGARDING “EQUITABLE RELIEF” WILL BE THE FEDERAL AND STATE COURTS LOCATED IN A LOCATION OF THE CLIENT’S CHOOSING. THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE VENUE AND PERSONAL JURISDICTION OF SUCH COURTS.

 

a. Entire Agreement This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and supersedes all prior oral and written agreements, discussions, and understandings between the Parties with respect to the subject matter of this Agreement, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.

b. Independent Contractors In making and performing this Agreement, Client and Company act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership, or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party makes commitments or incur any charges or expenses for, or in the name of the other Party.

c. Notices All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight delivery, to the Parties at their respective addresses set forth in the preamble to this Agreement or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision.

d. Amendments; Modifications This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.

e. Assignment; Delegation Neither this Agreement nor any right or obligation hereunder may be assigned or otherwise transferred (whether voluntarily, by operation of law or otherwise), without the prior express written consent of the other party; provided, however, that either party may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business or assets related to this Agreement, or in the event of its merger, consolidation, change in control or other similar transaction. Any permitted assignee shall assume all obligations of its assignor under this Agreement. Any purported assignment or transfer in violation of this Section will be null, void, and of no effect.

f. No Third-Party Beneficiaries Except as otherwise expressly stated, the Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors, and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors, and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

g. Severability If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance, or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

h. Waiver No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.

i. Force Majeure Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement. In the event of such delays, Services in effect at the time will be extended for such additional period of time as is determined to be equitably by the Parties. In the event any of these events occur, the impacted Party will immediately notify the other Party.

j. Publicity The Client hereby grants Company permission to publicly identify the Client, including through use of Client’s name, logo, location, and user profile information, as one for Company’s marketing and Platform usage.