PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. For more details, go to Section 12.10(b).
2. Services. Subject to the terms of this Agreement and the Order Forms, Company will provide Customer with the services offered Company through the Platform from time to time with respect to the landscaping and care of plants on Customer’s property (the “Services”). Company does not guarantee that any particular Service will be available at all times, in all countries and/or geographic locations, or at any given time or that Company will continue to offer any particular Service for any particular length of time. Company reserves the right to change and update Services without notice to Customer.
3. Customer Responsibilities.
3.1 Access Credentials. Customer is responsible for safeguarding the username, password and other access credentials that Customer uses to access the Platform and Services (“Access Credentials”) and Customer agrees not to disclose Customer’s Access Credentials to any third party. Customer is responsible for any activity using Customer’s Access Credentials, whether or not Customer authorized that activity. Customer will immediately notify Company of any unauthorized use of Customer’s account and of any actual or potential disclosure of Customer’s Access Credentials. Customer acknowledges that if Customer wishes to protect Customer’s transmission of data or files to Company, it is Customer’s responsibility to use a secure encrypted connection to communicate with the Platform and Services. Company makes no representations or warranties as to the security of any such encrypted connection, however, and Customer agrees that Company will have no liability if it fails to protect Customer’s transmission.
3.2 Suspension of Services. Company may in its sole discretion immediately suspend Customer’s right to use the Platform at any time in its discretion, including if:
(a) Company believes that Customer has breached this Agreement, after 15 days’ written notice and opportunity to cure;
(b) Company believes that Customer has breached Section 7; or
(c) Customer or any third party has accessed the Services in violation of Section 3.1, or there has otherwise been unauthorized use of Customer’s Access Credentials.
4. Payment Terms.
4.1 Fees. The Fees for use of these Services are set forth from time to time on the Fees Schedule, provided that the Fees set forth on any Order Form will not be changed during the term of that Order Form.
4.2 Payment. Customer agrees to pay any and all Fees in accordance with the Order Forms. All Fees are due in advance of the time period during which Services are provided.
4.3 Payment Methods. Company accepts the forms of payment set forth on the Platform from time to time (each, a “Payment Method”). Customer must provide and verify at least one Payment Method to use the Services. Customer authorizes Company to store, and contract with a third party to store, Payment Method information for future use as provided in this Agreement. To the extent permitted by applicable Law, Company may use certain third-party vendors and service providers to process payments and manage Customer’s Payment Method information. By providing Payment Method information, Customer represents and warrants that (a) Customer is legally authorized to provide that information to Company, (b) Customer is legally authorized to perform payments using the Payment Method(s); and (c) that action does not violate the terms and conditions applicable to Customer’s use of those Payment Method(s) or applicable Law. When Customer authorizes a payment using a Payment Method, Customer represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method.
4.4 Taxes. Listed Fees for the Services do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority. Any applicable taxes will be added to Company’s invoice as a separate charge to be paid by Customer.
4.5 Fees Charged by Third-party Sites and Vendors. Company may provide links to other websites. Some of these websites may charge separate fees, which are not included in any Fees that Customer may pay to Company. Any separate charges or obligations that Customer incurs in its dealings with third parties are Customer’s responsibility. Customer is responsible for any internet service provider, telephone, wireless and other connection fees that Customer may incur when using Services.
5. Intellectual Property Rights; Data.
5.1 Platform. Company and Company’s licensors own and will retain all right, title and interest in all Intellectual Property Rights embodied or fixed in, or otherwise pertaining to, the Platform. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a limited, nonexclusive, nontransferable license to use the Platform and the Specifications only during the Term and only to enable Company to provide Customer with the Services. Other than the foregoing grant of rights, Company does not grant, and Customer does not receive or possess, any right or interest in any of Company’s Intellectual Property Rights, or any other type of right or interest, whether an economic, property or moral rights interest in the Platform. Customer acknowledges that Company may from time to time upgrade or otherwise change the Platform or the Specifications in its sole discretion. Company will use commercially reasonable efforts to notify Customer of any such changes that may affect the Services or the way in which Customer connects to the Platform. Customer is responsible for satisfying itself that it can successfully interface with the Platform under the Specifications, and Customer understands that Company may change those Specifications from time to time and that Customer may not be aware when changes have been made or are about to be made. Company will make reasonable attempts to communicate to Customer any Specifications change that have high potential to impact access to Platform. Customer is prohibited from copying or otherwise reproducing or attempting to reproduce the Platform. Customer agrees not to modify, disassemble, decompile, reverse engineer, create derivative works of the Platform.
5.2 Data. Subject to the terms and conditions of this Agreement, Customer hereby grants Company a limited, worldwide, nonexclusive, royalty free license during the Term to use, copy, store and transform Customer Content and Customer Data, including modifying or editing, combining with other materials, and creating derivative works of the Customer Content and Customer Data with other Content and data, solely in order to provide use of the Platform and Services as provided under this Agreement and subject to its terms. As between Customer and Company, Company agrees that Customer owns all right, title and interest, including all Intellectual Property Rights, in and to the Customer Content and Customer Data, and any changes, modifications or corrections to them. For purposes of this Agreement (a) “Customer Data” means any data of Customer processed or stored using the Platform or Services, and (b) “Customer Content” means any Content provided to Company by or on behalf of Customer as part of the Services. Company also may aggregate Customer Data and Customer Content with that of other customers for the purpose of analyzing and improving Company’s services to all customers and reporting the results of Company’s operations to Company’s equityholders and potential investors in Company, purchasers or part or all of Company’s business, or business partners or potential business partners of Company, so long as Company does not in the process disclose to any third parties Customer Data or Customer Content in a manner that is readily personally identifiable to Customer.
5.3 Reservation of Rights. Each party does not grant, and hereby expressly reserves onto itself, all rights not granted in this Agreement.
5.4 Injunctive Relief. The parties agree that any breach of this Section 5 is likely to cause irreparable injury for which the non-breaching party would have no adequate remedy at law. Therefore, in the event of such a breach or threatened breach, the non-breaching party will be entitled to seek injunctive relief, without limiting any other rights or remedies that may be available to it and breaching party agrees to waive any requirement for the securing or posting of any bond in connection with any non-breaching party effort to seek injunctive relief in accordance with this.
5.5 Software, Utilities and Tools. Services may require or allow Customer to download Software from Company or its licensors onto Customer’s smartphone, tablet, computer or other device. Company grants to Customer a nonexclusive, limited license to use Software solely for the purpose stated by Company at the time the Software is made available to Customer. If an end user license agreement is provided to Customer with the Software, Customer’s use of the Software is subject to the terms of that license agreement. Customer may not sublicense, or charge others to use or access Software. Customer may not translate, reverse engineer, reverse compile or decompile, disassemble or make derivative works from Software. Customer may not modify Software or use it in any way not expressly authorized in writing by Company. Customer understands that Company’s introduction of various technologies may not be consistent across all platforms and that the performance of Software and related Services may vary depending on Customer’s computer and other equipment. From time to time, Company may provide Customer with updates or modifications to Software. Customer understand that certain updates and modifications may be required in order to continue use the Software and Services.
6. Contributing User Generated Content (UGC) to Services.
6.1 Customer Responsibility. Company does not prescreen all UGC and does not endorse or approve any UGC that Customer and other customers may contribute to Platform. Customer is solely responsible for Customer’s UGC and may be held liable for UGC that Customer posts. Customer bears the entire risk of the completeness, accuracy and/or usefulness of UGC found on Platform.
6.2 Intellectual Property Rights. Company respects the Intellectual Property Rights of others. Customer must have the legal right to Upload UGC through the Platform. Customer may not Upload any UGC on the Platform that infringes the Intellectual Property Rights or any other rights of a third party nor may Customer Upload UGC in violation of Law or this Agreement. Customer may Upload only UGC that Customer is permitted to Upload by the owner or by Law.
6.3 Treatment of UGC. Company reserves the right (but has no obligation except as required by Law) without notice to remove, block, edit, move or disable UGC for any reason, including when Company determines that UGC violates this Agreement, Law or the Intellectual Property Rights or other rights of Company or a third person. The decision to remove UGC at any time is in Company’s sole discretion. To the maximum extent permitted by Law, Company does not assume any responsibility or liability for UGC or for removal of, UGC or any failure to or delay in removing, UGC or other content.
6.4 Take Down Procedure. If any person believes that person’s Intellectual Property Rights have been infringed by someone else on the Platform, that person may contact Company by emailing the following information to firstname.lastname@example.org:
(a) a description of the Intellectual Property Rights and an explanation as to how they have been infringed;
(b) a description of where the infringing material is located;
(c) the complaining person’s address, phone number and email address;
(d) a statement by the complaining person, made under penalty of perjury, that (i) the complaining person has a good faith belief that the disputed use of material in which that person owns Intellectual Property Rights is not authorized, and (ii) the information provided is accurate, correct, and that the complaining person is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
(e) a physical or electronic signature of the person authorized to act on behalf of the owner of the exclusive right that has allegedly been infringed.
6.5 UGC License Grant. If Customer uses the Platform to transmit UGC to other customers, except as expressly communicated by Customer to the recipient in writing at the time of transmittal, then Customer grants those customers the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute the UGC transmitted on or through the Platform without further notice, attribution or compensation to Customer.
7. Rules of Conduct.
7.1 Rules. The Platform will include a Customer page on which Customer and Customer’s designated landscaper may post notes, pictures and other Content with respect to the location and condition of Customer’s property and Company may post notes as part of the Services. Customer may give third parties access to Customer’s page on the Platform or make the page publicly accessible. The Platform may also include, from time to time, discussion forums, bulletin boards, review services or other forums in which Customer or third parties may post reviews or other content, messages, materials or other items on the Services (collectively, “Interactive Areas”). Customer is solely responsible for Customer’s use of such Interactive Areas and uses them at Customer’s own risk. Customer Content submitted to any public area of the Platform will be considered non-confidential. Customer agrees not to Upload any of the following:
(a) any message, data, information, text, music, sound, photos, graphics, code or other Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
(b) Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any Law;
(c) Content that may infringe any Intellectual Property Rights or any other right of any person;
(d) Content that impersonates any person or entity or otherwise misrepresents Customer’s affiliation with a person or entity;
(e) unsolicited promotions, political campaigning, religious proselytizing, advertising or solicitations;
(f) private information of any third person, including addresses, phone numbers, email addresses and credit card numbers, unless that third person has expressly consented to that use;
(g) viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs, corrupted data or other harmful, disruptive or destructive files;
(h) Content that is unrelated to the topic of the Interactive Area(s) in which the Content is posted;
(i) commercial or other messages to any third person if those messages are not solicited, authorized or welcomed by the third person; or
(j) Content that, in Company’s discretion, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or the Services, or which may expose Company or its Affiliates or its customers to any harm or liability of any type.
7.2 Company Has No Duty to Monitor. Unless otherwise specified, there is no requirement or expectation that Company will monitor or record any online activity on the Platform, including communications. However, Company reserves the right to access and/or record any online activity on the Platform and Customer gives Company Customer’s express consent to access and record Customer’s activities. Company has no liability for Customer’s or any third party’s violation of this Agreement, including this Section 7.
7.3 Reporting Abuse. If Customer encounters another customer who is violating this Section 7, Customer will promptly report this activity to Company using the “Help” functions in the relevant Service, if available, or contact Company customer support at email@example.com.
8. Representations, Warranties and Covenants.
8.1 Authority. Customer represents, warrants and covenants to Company that Customer has full power and authority to enter into this Agreement, to carry out Customer’s obligations under this Agreement and to grant the rights and licenses granted by Customer to Company pursuant to this Agreement.
8.2 Approval. Customer warrants to Company that Customer has and will have at all times during the Term all licenses, approvals, qualifications, permits or certificates required in respect of the delivery of all Customer Content, Customer Data and other information provided pursuant to this Agreement.
8.3 Compliance with Law. Customer represents, warrants and covenants to Company that in connection with all actions under this Agreement, Customer will comply with all applicable Law, including all Law related to privacy and data protection.
8.4 Conflicting Obligations. Customer represents and warrants to Company that Customer has no outstanding agreement or obligation which is in conflict with any of the provisions of this Agreement, or which would preclude Customer from complying with the provisions of this Agreement, and further agrees that, during the Term, Customer will not enter into any such conflicting agreement.
8.5 Cooperation. Customer will provide Company with all information, data, documentation and other materials reasonably necessary for Company to fulfill its obligations under this Agreement.
8.6 Content Warranties. In respect of any reproduction, adaptation or copy of an artistic work, audiovisual work, motion picture, sound recording, musical work, other copyrightable content, file or other data (each, a “Work”), forming part of Customer Content received or delivered in connection with the provisions of the Services, Customer warrants to Company that Customer has the Intellectual Property Rights, permission or proper authority necessary to allow the Work to be used through the Platform in provision of the Services without infringing the Intellectual Property Rights or other rights of any third party; and, if applicable, Customer has paid or will pay any royalty, license fees and all other properly imposed fees associated with the Work to a third party having the relevant Intellectual Property Rights.
9. Indemnification. Customer will defend, indemnify, save, and hold Company and its Affiliates, officers, employees, agents, suppliers or licensors harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, costs of investigation, and the amount of any settlements, asserted against Company and them that may arise or result from (a) Customer’s use of the Services or the Platform, (b) Customer’s breach of any representation, warranty or covenant in this Agreement, (c) Customer’s negligence, willful misconduct or violation of applicable Law, (d) any Customer Content or Customer Data, (e) any disclosure of personally identifiable information or other confidential information in violation of third party rights or applicable Law except if solely attributable to a willful violation of applicable Law by Company, and (f) any death or physical injury or damage to personal property of any third party on Customer’s property or resulting from or related to any plants or other landscaping on such property or any produce thereof.
10. Limitations and Disclaimers.
10.1 Limitation of Liability. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUCH PARTY WILL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS. EXCEPT FOR CUSTOMER’S OBLIGATIONS UNDER SECTIONS 4-9, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE LOWER OF (a) $1,000, AND (b) THE AGGREGATE AMOUNTS PAID OR PAYABLE BY WAY OF FEES FOR THE SIX MONTH PERIOD BEFORE THE EVENT GIVING RISE TO LIABILITY.
10.2. Disclaimer of Warranties. ASIDE FROM THE WARRANTIES THAT COMPANY EXPRESSLY SETS FORTH IN WRITING IN THIS AGREEMENT, IT PROVIDES THE PLATFORM AND SERVICES “AS IS” AND “WITH ALL FAULTS.” EXCEPT AS OTHERWISE SET FORTH IN WRITING IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, THE SERVICES AND CUSTOMER’S USE THEREOF. CUSTOMER WAIVES ANY AND ALL WARRANTIES THAT MAY BE IMPLIED BY LAW, INCLUDING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SERVICES OR PLATFORM, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY ERRORS OR DEFECTS IN THE PLATFORM WILL BE CORRECTED, OR THAT THE SERVICES, MATERIALS OR PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, CUSTOMER UNDERSTANDS AND AGREES THAT HORTICULTURE IS SUBJECT TO RISKS, SUCH AS PESTS AND BAD WEATHER, AND THAT COMPANY DOES NOT GUARANTEE ANY PARTICULAR RESULTS FROM THE SERVICES, INCLUDING ANY PARTICULAR PRODUCE OR ANY PRODUCE AT ALL. CUSTOMER IS RESPONSIBLE FOR AND MUST PROVIDE ALL HARDWARE, SOFTWARE, SERVICES AND OTHER COMPONENTS NECESSARY TO ACCESS AND USE THE PLATFORM, OTHER THAN THE PLATFORM. COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR ASSURANCES THAT CUSTOMER’S HARDWARE, SOFTWARE AND OTHER SERVICES AND SYSTEMS WILL BE COMPATIBLE WITH THE PLATFORM. COMPANY WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO CUSTOMER’S COMPUTER SYSTEM, LOSS OR CORRUPTION OF DATA, OR OTHER HARM THAT RESULTS FROM CUSTOMER’S ACCESS TO OR USE OF THE PLATFORM. Some states do not allow the types of disclaimers in this Section 10.2, so they may not apply to you.
10.3 Third-party Services. Links from the Platform to external websites (including external sites that are framed by the Website) or inclusion of advertisements do not constitute an endorsement by Company of those sites or the Content, products, advertising and other materials presented on those sites or of the products and services that are the subject of those advertisements, but are for Customer’s reference and convenience. Customer accesses such sites or the products and services that are the subject of those advertisements at Customer’s risk. It is Customer’s responsibility to evaluate the content and usefulness of the information obtained from other sites. Company does not control those sites, and is not responsible for their content. Company’s provision of links to third-party sites does not mean that Company endorses any of the material on those sites, or has any association with their operators. Customer further acknowledges that use of any site controlled, owned or operated by third parties is governed by the terms and conditions of use for those sites, and not by this Agreement. Company expressly disclaims any liability derived from the use and/or viewing of links that may appear on the Platform. Customer agrees to hold Company harmless from any liability that may result from the use of links that may appear on the Platform.
11. Term and Termination.
11.1 Term. The term of this Agreement will begin on the Effective Date and will remain in effect for a period of one year, and automatically renew for successive one-year terms unless either party gives notice of non-renewal no later than 15 days of the renewal date or unless terminated in accordance with this Section 11. The term of each Order Form will begin on the date of that Order Form and will remain in effect for the period set forth in that Order Form, and automatically renew for successive terms of equal length unless either party gives notice of non-renewal no later than 15 days of the renewal date or unless terminated in accordance with this Section 11.
11.2 Suspension or Termination by Company.
(a) Company may terminate this Agreement or suspend access to the Platform or provision of the Services (i) by notice to Customer if Customer materially breaches this Agreement and, if the breach is subject to cure, does not cure the breach within 30 days after notice from Company, provided that Customer may immediately suspend, without penalty or other liability to Customer, provision of the Services and access to the Platform and maintain that suspension until the breach is cured, (ii) immediately on notice to client, if Customer fails to pay any Fees or other amounts owed under this Agreement as and when due, (iii) immediately on notice to Customer if Customer becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or any similar proceeding. If Company terminates this Agreement or suspends provision or Services or access to the Platform pursuant to this Section 11.2(a), Customer remains responsible for the entire amount of the Fees (pre-paid and/or due) and will not receive a refund of any pre-paid Fees, for the applicable Services. Company may also suspend provision of the Services and access to the Platform, without penalty or other liability to Customer and without notice, in the event of a suspected material breach of this Agreement.
(b) Company may terminate this Agreement for convenience immediately on notice to Customer. If Company terminates this Agreement pursuant to this Section 11.2(b), Company will refund to Customer a pro-rata portion (rounded to the nearest whole month) of any pre-paid Fees pertaining to Services that will not be provided as a result of the termination.
11.3 Termination by Customer. Customer may terminate this Agreement by notice to Company (a) immediately for convenience or, (b) if Company materially breaches this Agreement and, if the breach is subject to cure, does not cure the breach within 30 days after notice from Company. Pre-paid Fees are non-refundable, except in the case of an uncured material breach by Company (and in the absence of any contributory act and/or omission to act by Customer), in which case Company will refund to Customer a pro-rata portion (rounded to the nearest whole month) of any pre-paid Fees pertaining to Services that will not be provided as a result of the termination.
11.4 Survival of Terms. Sections 1, and 4-13 will survive the termination of this Agreement.
12.1 Assignment. Customer will not assign, transfer or delegate its rights or obligations under this Agreement to any third party without Company’s prior written consent. For the purposes of this Agreement, any sale or transfer by a Customer that is a legal entity of all or substantially all of its stock or assets or by merger or otherwise by operation of law is considered an assignment, requiring Company’s express written consent. Company may freely assign this Agreement or transfer any of its interest herein, including to any Company Affiliate, to a purchaser of all or substantially all of Company’s assets, and to a successor in interest of Company as part of a corporate reorganization, consolidation or merger. This Agreement and each of the provisions of this Agreement will inure to the benefit of and be binding on each party’s successors, heirs, administrators and permitted assigns.
12.2 Severability. If any provision of this Agreement is determined by any arbitrator or court of competent jurisdiction to be invalid or unenforceable, that provision will be interpreted to the maximum extent to which it is valid and enforceable, all as determined by that arbitrator or court in the applicable proceeding, and the remaining provisions of this Agreement will, nevertheless, continue in full force and effect without being impaired or invalidated in any way.
12.4 Amendment. Company may revise this Agreement from time to time and the most current version will always be posted on the Website. If a revision, in Company’s reasonable discretion, is material, Company may, but have no obligation to, notify Customer by email or by notice provided to Customer through the Platform. By continuing to access or use the Platform and Services after revisions become effective, Customer agrees to be bound by the revised terms. If Customer does not agree to the new terms, Customer must cease using the Platform and Services and terminate Customer’s account using the process provided on the Platform for terminating a customer account. Notwithstanding the foregoing, the terms set forth in any Order Form may only be amended by mutual consent of the parties. On Company’s provision of a notice of material amendment from Company, Customer will have 10 business days in which to elect to terminate Services in which case Company will refund to Customer a pro-rata portion of any pre-paid Fees pertaining to Services that will not be provided as a result of the termination. If Company provides notice of a material amendment and Customer fails to timely elect or terminate the Services, any continued use of the Services after expiration of the 10 business day termination period will be deemed Customer’s express acceptance of the amendments disclosed in that notice.
12.5 Force Majeure. Neither party will be held responsible for any delay or failure in performance of any part of this Agreement (with the exception of any obligation to make payments to the other party) to the extent the delay or failure is caused by fire, flood, explosion, war, terrorism, strike, embargo, epidemic, pandemic, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure material or transportation facilities, acts or omissions of carriers, power outages, computer failures, or by any other causes beyond its control whether or not similar to the foregoing.
12.6 No Waiver. The waiver, modification, or failure to insist by a party on any of the provisions of this Agreement will not void, waive, nor modify any of the other provisions nor be construed as a waiver or relinquishment of such party’s right to performance in the future of any such provision.
12.7 Relationship of the Parties. The relationship of the parties under this Agreement is one of independent contractors, and no agency, partnership, employment, joint venture or similar relationship is created by this Agreement. Except as specifically authorized, neither party will have any authority to assume or create obligations on the other party’s behalf, and neither party will take any action that has the effect of creating the appearance of its having such authority.
12.8 Notices. Except as otherwise expressly set forth in this Agreement, any notice required or permitted under this Agreement will be given in writing by personal delivery, by USPS Priority ExpressMail, by nationally recognized overnight delivery service (e.g. UPS) or by e mail. Any notice will be deemed received on the earlier of the date of actual delivery or the date on which delivery is refused, regardless of whether the party has vacated the physical address or discontinued the email address. The notice address and email address for Customer will be the address and email address on record with Company as modified by Customer through the Platform from time to time. The notice address for Company will be 2401 Fountain View Dr Ste 312 #98, Houston, TX 77057 and the email address for Company will be firstname.lastname@example.org, as reflected in this Agreement as modified from time to time, pursuant to its terms.
12.9 Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies on any person or entity other than the parties.
12.10 Governing Law; Arbitration.
(a) The validity and enforceability of this Agreement, and all claims or causes of action (whether in contract, tort, statute or otherwise) that may be based on, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based on, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), will be governed by, construed in accordance with, and enforced in accordance with, the domestic internal laws of the state of Texas, including its statutes of limitations, but without regard for conflicts of law principles.
(b) Binding, confidential arbitration pursuant to this Section 12.10(b) will be the only remedy for any dispute or claim of any kind, including third-party claims arising under, concerning, or relating to this Agreement, its interpretation, its validity (including any claim that all or any part of this Agreement is void or voidable), its termination, or its subject matter, whether sounding in contract, tort, equity, statutory law, administrative regulation or otherwise (a “Claim”). Any Claim, will be resolved in a confidential expedited arbitration administered by the JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (a copy of which can be found here: https://www.jamsadr.com/rules-comprehensive-arbitration) (the “Rules”) then in effect. For purposes of clarification, the parties understand and agree that (a) Section 12.10(a) will apply to any arbitration under this Section 12.10(b), both as to the governing law to be applied by the Arbitrator to the Claim and as to the law governing the arbitration and the interpretation of this Section 12.10(b), and (b) the Federal Arbitration Act, 9 U.S.C. §§ 1-16, will also apply to any arbitration under this Section 12.10(b) by virtue of Article VI, Clause 2 to the United States Constitution. Any Claim submitted to arbitration will be decided by a single, neutral arbitrator (the “Arbitrator”) mutually agreed by the parties or, if they cannot agree within 15 business days of the commencement of arbitration, in accordance with the Rules. The Arbitrator must be qualified as a Texas attorney who has at least ten years of prior combined professional experience either as a judge or in private practice as a business or commercial litigator. Any arbitration hearings or conferences pursuant to this Section 12.10(b) will be conducted exclusively by means of conference telephone or other communications technology, as reasonably determined by the Arbitrator, by means of which all persons participating in those hearings or conferences can hear each other, and neither the parties, the Arbitrator or any attorneys, witnesses or other representatives of the parties will be required to be physically present in any particular place for purposes of any hearing or conference unless the Arbitrator determines that a physical hearing is necessary to effectively arbitrate the Claim, in which case that physical hearing will be in a location selected by the Arbitrator to be reasonably convenient to the parties and the Arbitrator. The Arbitrator will have the exclusive power to adjudicate the alleged breach, enforcement, interpretation or validity of this Agreement, including as to the scope or applicability of this Section 12.10(b). Discovery within the arbitration will be as the Arbitrator determines is reasonable or necessary for the fair and efficient arbitration of the Claim. All JAMS fees and costs will be borne equally by the parties, except that in rendering the award, the Arbitrator will allocate and award an appropriate share of the prevailing party’s reasonable attorneys’ fees and costs, to the losing party. Judgment on any arbitration award may be entered and enforced by any court of competent jurisdiction. If there is more than one Claim between the parties, all such Claims may be heard in a single arbitration under this Section 12.10(b). Except to the extent required by applicable Law that cannot be waived or modified by this Agreement, Claims under this Section 12.10(b) may not be consolidated into a single arbitration proceeding with claims between the Company and other persons, even if those claims are governed by an arbitration proceeding similar or identical to this Agreement and even those other persons are similarly situated and their claims are similar or identical in the nature to a Claim under this Agreement, provided that nothing in this sentence will be interpreted to prevent the Arbitrator from granting public injunctive relief in conformance with applicable Law. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LITIGATION ARISING UNDER, CONCERNING, OR RELATING TO THIS AGREEMENT, ITS INTERPRETATION, ITS VALIDITY (INCLUDING ANY CLAIM THAT ALL OR ANY PART OF THIS AGREEMENT IS VOID OR VOIDABLE), ITS TERMINATION, OR ITS SUBJECT MATTER, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY, STATUTORY LAW, ADMINISTRATIVE REGULATION OR OTHERWISE.
13. Definitions. The following terms will be defined as set forth below for purposes of this Agreement:
“Access Credentials” means the secure method by which Company provides Customer, generally through Customer’s own computer systems, access to control the Platform.
“Affiliate” means, in respect of a party, any company or other business entity controlled by, controlling, or sharing common control. For the purposes of this definition, “control” will mean the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of 50% or more of the voting interest, by contract, or otherwise.
“Content” means software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or emanating to and/or from Services, as well as the design and appearance of our applications and websites. Content includes UGC.
“Fees” means the amount payable by Customer to Company for the Services as set forth on the Order Form, as modified from time to time in accordance with this Agreement, and on the Fees Schedule.
“Fees Schedule” means a schedule of Company’s Fees, as in effect from time to time, posted at https://letspluck.com/pages/fee-schedule.
“Intellectual Property Rights” means all copyrights fixed in any medium now known or hereafter discovered, including copyrights in computer programs, pictorial works, audiovisual works, literary works, musical works, sound recordings, motion pictures and the like; patents, trademarks, trade names, trade secrets, design rights, design models, database rights and topography rights, all rights to bring an action for passing off, rights of privacy or publicity, and any other similar form of intellectual rights in intangible property or proprietary rights, statutory or otherwise, whether registered or not, and whether applied for or not, all rights to apply for protection in respect of any of the above rights and all other forms of protection of a similar nature or that relate to intangible property, ideas or expression, as they may exist anywhere in the world.
“Order Form” means the ordering documents (whether paper or electronic) for Customer purchases from Company that are executed under this Agreement by Customer and Company from time to time. All Order Forms will be deemed incorporated in this Agreement.
“Specifications” means the documentation and specifications provided by Company to Customer from time to time (through the Website, the Software or otherwise) with respect to use and integration of the Platform.
“Upload” means to upload to the Platform, transmit, distribute, store, create or otherwise publish through the Service.
“UGC” means Content contributed by customers to the Platform or created by customers through Platform.
Last Revised 2022-02-07