Privacy and Terms of Service

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Terms Of Service

Podium

Podium.com (https://www.podium.com), including all of its related applications, dashboards, or platforms (individually and collectively, the “Website”), is owned and operated by Podium Corporation, Inc. (“Podium,” “we,”“us,” or “our”). By using, installing, or accessing the Website or Services (as defined below), by signing or clicking to accept these terms or any Subscription Documentation (as defined below) referencing these terms, you agree to be bound by the following terms and conditions, including Podium’s Privacy Policy (together, these “Terms”, or this “Agreement”).

If you are using a Podium Service on behalf of a company, organization, or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee, agent, or other authorized representative with all necessary authority to bind that entity to this Agreement.

This Agreement includes and hereby incorporates by reference any Subscription Documentation executed between you and Podium, as well as any policies or exhibits linked to or referenced herein. If you have entered into a separate written agreement with Podium concerning specific Services, the terms of such agreement control if there is any conflict between the terms of such agreement and these Terms. Please note that we may modify this Agreement as described in Section 16.10 below.

1. DEFINITIONS.

1.1. “Business Associate Agreement” (hereinafter “BAA”) means a written agreement between a covered entity and a business associate containing the elements specified at 45 CFR 164.504(e).

1.2. “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.

1.3. “HIPAA” means the Health Information Technology for Economic and Clinical Health Act of 2009 (the “HITECH Act”), the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. §1320d through d-8, as amended from time to time, and the requirements of any regulations promulgated under either the HITECH Act or HIPAA, including, without limitation, the federal privacy regulations as contained in 45 C.F.R. Parts 160 and 164, the federal security standards as contained in 45 C.F.R. Parts 160 and 162, and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160, all as may be amended from time to time.

1.4. “Law(s)” means all applicable local, state, federal, and international laws, rules, and regulations, or amendments thereto, including but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, the CAN-SPAM Act, Do Not Call rules and prohibitions, and Canada’s Anti-Spam Legislation (“CASL”).

1.5. “Protected Health Information” (hereinafter “PHI”) has the same meaning as that term is defined in HIPAA.

1.6. “Territory” means the United States, Canada, and Australia, unless otherwise expressly set forth in Client’s Subscription Documentation.

Other terms are defined in other Sections of this Agreement.

2. SERVICES.

2.1. Services. Podium provides a proprietary multi-product platform that includes without limitation reputation management tools (“Reviews” and “Feedback”), messaging and communication tools (“Inbox,” “Webchat,” “Automations,” “Voice,” and “Campaigns”), payment processing and related services (“Payments”), certain Free Access Subscription or Beta Releases (as defined below), and any other services Podium may offer from time to time (together with the Website, the “Service(s)”). Client will, from time to time, enter into a proposal, quote, services/purchase agreement, order form, statement of work, or otherwise click to accept or agree to an online registration form, which references this Agreement (“Subscription Documentation”) and details the Services ordered from Podium and, if applicable, the usage limits or other scope of use descriptions for the Services (including without limitation any usage or volume limits, numerical limits on Authorized Users, and descriptions of product feature levels) (the “Scope of Use”). Client may be provided the option to purchase certain Services as part of a package or bundle offer (each, a “Bundle”), as detailed in the applicable Subscription Documentation. The Services included in Podium’s Bundles are currently specified at https://www.podium.com/pricing/. Podium has no obligation to provide any services or perform any tasks not specifically set forth in this Agreement, including any applicable Subscription Documentation.

2.2. Alteration of Subscription Documentation. Any amendments or modifications to any existing Subscription Documentation must be agreed to in writing by the parties. Podium has no obligation to perform any Services under any amended Subscription Documentation until the parties have agreed to the effect of such changes on the applicable Fees.

2.3. Modification of the Services. Podium reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), or to alter the offering of the Services (including by adding, limiting, or discontinuing certain Bundle offers) temporarily or permanently. Podium also reserves the right to replace certain Services and Bundles with functionally equivalent Services or Bundles, at its sole discretion. In the event Podium makes any modification or alteration to the Services or the offering thereof that has a material adverse effect on the functionality of the Services ordered under your Subscription Documentation, Client may terminate this Agreement and receive a pro-rated refund of pre-paid unused Fees for the remainder of Client’s Subscription Term (as defined below).

2.4. Additional Terms. Client’s subscription to or use of certain Services may be subject to additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that we may post on or link to from these Terms or the Services (the “Additional Terms”). To the extent applicable, all Additional Terms are incorporated by this reference into, and made a part of, these Terms. If Client purchases or otherwise uses any of the following Services, Client’s use is subject to and Client accepts the applicable Additional Terms, as set forth below.

2.4.1. Podium Payments. If Client uses Podium Payments, Client agrees to be bound by the Podium Payments Service Terms.
2.4.2. Podium Voice. If Client uses the Podium Voice, Client agrees to be bound by the Podium Voice Service Terms.
2.4.3. Podium Marketplace. If Client uses the Podium Marketplace, Client agrees to be bound by the Podium Marketplace Terms of Use.
2.4.4. Podium API. If Client uses the Podium API, Client agrees to be bound by the applicable terms of the Podium API Terms of Use.
2.4.5. Podium Developer Platform. If Client uses the Podium Developer Platform, Client agrees to be bound by the Podium Developer Terms.

3. USE RIGHTS; RESTRICTIONS.

3.1. Use of Services. Subject to all terms and conditions of this Agreement, including any Additional Terms, Podium grants Client a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the applicable Subscription Term and within the Territory (to the extent available in the Territory) to: (a) install and use an object code copy of any mobile application associated with the Services; and (b) access and use the Services, designated on Client’s Subscription Documentation solely for Client’s internal business purposes, but only in accordance with this Agreement, Podium’s Acceptable Use Policy (“Acceptable Use Policy”), the applicable Subscription Documentation, and all applicable Scope of Use descriptions. Although the Services may be accessible worldwide, Podium makes no representation that the Services are appropriate or available for use in locations outside the Territory (or that all products or features of the Services are available throughout the Territory). Furthermore, accessing the Services from territories where their content or use is illegal, is prohibited under this Agreement. Those who choose to access the Services from other locations do so at their own initiative and are responsible for compliance with local laws and any costs associated with access or use outside the Territory. You may not use or export the Services in violation of U.S. export laws and regulations.

3.2. Account Registration. Client must register for a Podium account in order to access or receive the Services. Account information must be accurate, current, and complete, and will be governed by Podium’s Privacy Policy as may be amended from time to time. Client agrees to keep its account information up to date so that Podium may send notices, statements, and other information by email or through Client’s account. By using or accessing the Website, Client agrees and consents to Podium’s use of cookies in accordance with the terms of Podium’s Privacy Policy. Client is solely responsible for all use of its Services account(s). Podium will not be liable for any loss or damage arising from unauthorized use of Client’s account(s).

3.3. Eligibility and Use by Others. By agreeing to these Terms, Client warrants that it and its employees, agents, contractors, and any other users (including but not limited to Developer Partners or Third-Party Providers) whom Client has authorized to access the Services on its behalf (“Authorized Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all Laws when using the Services. Client may permit its Authorized Users to use the Services provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement, which may be communicated by posting to the Website or on a click-through basis to Authorized Users upon access to the Services and/or Website.

3.4. Responsibility for Authorized Users. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with this Agreement. Client will be solely responsible for authorizing and creating user IDs, passwords, and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Provided, however, Podium may, in its sole discretion, suspend any Authorized User’s access to the Services. Client is solely responsible for ensuring that any user IDs, passwords, and other access credentials (such as API tokens) for the Services are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all Laws applicable to Client. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords, or access credentials. Client must notify Podium within twenty-four (24) hours of any breach of security or unauthorized use of its account. Use by all Authorized Users in aggregate will count towards any applicable Scope of Use restrictions.

3.5. Use by Customers. Any person that is a client, customer, or patient of Client, or that is a potential client, customer, or patient of Client (“Customer(s)”) who accesses and/or uses the Services, including via Client’s account or website, are subject to the Acceptable Use Policy and such other terms as may be provided by Podium from time to time, which includes Podium’s right to remove or disable access to any Customer or content or resource that violates the Acceptable Use Policy.

3.6. General Restrictions. Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense, or provide access to the Podium Technology (as defined below) to a third party (except Authorized Users as specifically authorized above); (b) incorporate the Podium Technology (or any portion thereof) into, or use it with or to provide, any site, product, or service; (c) use the Podium Technology (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the Podium Technology (which is deemed Podium’s Confidential Information); (e) modify or create a derivative work of the Podium Technology or any portion thereof; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Podium Technology or Services, except to the extent expressly permitted by applicable Law and then only upon advance notice to Podium; (g) break or circumvent any security measures or rate limits for Services; (h) distribute any portion of the Podium Technology other than as specifically permitted above; (i) use the Services in violation of the Acceptable Use Policy; or (j) remove or obscure any proprietary or other notices contained in the Podium Technology including in any reports or output obtained from the Podium Technology.

3.7. Beta Releases and Free Access Subscriptions. Subject to Client’s compliance with the terms of this Agreement, Podium may provide Client with certain Services for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta”, or other early-stage Services, integrations, or features (“Beta Releases”) for the Subscription Term set forth in the applicable Subscription Documentation (if applicable). This Section 3.7 and any relevant Additional Terms will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Client’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. For the avoidance of doubt, Section 6 (Availability of Services; Support) will not apply to any Free Access Subscription or Beta Release. Podium may use good faith efforts in its discretion to assist Client with Free Access Subscriptions or Beta Releases. Without limiting the other disclaimers and limitations in this Agreement, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH PODIUM WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S SOLE RISK. You may choose to use Free Access Subscriptions and Beta Releases at your sole discretion. Podium makes no guarantees or promises with respect to the continued availability of any Free Access Subscriptions or Beta Releases or that future versions of a Free Access Subscription or Beta Release will be released or will be available under the same commercial or other terms. Podium may discontinue Beta Releases at any time, in our sole discretion, and decide not to make any Beta Releases generally available. Notwithstanding anything to the contrary herein, Podium may terminate Client’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in Podium’s sole discretion, without liability.

4. CLIENT DATA.

4.1. Rights in Client Data. As between the parties, Client retains all right, title, and interest (including any intellectual property rights) in and to any text, images, or other content and data that Client selects or submits for use or incorporation with the Services (including without limitation, chat and message logs, Customer Data, PHI, or any Third-Party Content) (“Client Data”). “Customer Data” means data related to the identity, characteristics, and activities of Customers, collected or submitted to the Services by Client or captured by the Services. To the extent Client is a Covered Entity or a Business Associate, as those terms are defined in HIPAA, “Client Data” also includes PHI. “Third-Party Content” means content, data, or other materials that Client provides to the Podium Services from its third-party data providers, including through Third-Party Products (as defined below) used by Client. Client hereby grants Podium a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Client Data solely to the extent necessary to provide the Services and related services to Client and as otherwise provided herein. Client further instructs Podium to use and disclose Client Data and Customer Data as necessary to (a) provide the Services consistent with this Agreement and Podium’s Privacy Policy, including detecting, investigating, and preventing security incidents, spam, fraud, or unlawful use of the Services, and (b) respond to Client’s inquiries or any technical problems and ensure the Services are working properly.

4.2. Aggregate/Anonymous Data. Client agrees that Podium will have the right to generate usage data from Client use of the Services and may aggregate anonymized Client Data (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is Podium Technology, which Podium may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Podium’s products and services and to create and distribute reports and other materials). Podium will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable Laws. If Client and Podium have entered into a BAA, Podium will use the Aggregate/Anonymous Data only in conformity with the terms of such agreement.

4.3. Monitoring. Client understands and agrees that Podium may monitor and analyze Client Data or Customer Data (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Website or Services; to improve Client’s experience using the Website or Services; to customize and communicate informational or product offerings and promotions to Client; to ensure compliance with the Acceptable Use Policy (including taking corrective action permitted therein); and/or to make the Website or Services more helpful or useful to Client and other users. Client also understands that any third-party platform(s) or Third-Party Provider(s) Client elects to use or access in conjunction with the Services may also monitor and analyze the Client Data and/or Customer Data Client uses or accesses in connection with such third-party platforms, to customize and communicate information or product offerings and promotions to Client; to ensure compliance with applicable terms of use; and to make such third-party platform(s) more helpful or useful to Client and other users.

4.4. Security. Podium agrees to maintain physical, technical, and organizational measures designed, in its discretion, to secure its systems from unauthorized access, use, or disclosure. If Client is a Covered Entity or Business Associate, as defined in HIPAA, Podium and Client agree to the terms of Podium’s BAA (currently available at https://legal.podium.com/#BAA), which may be amended from time to time, and to secure and utilize PHI in accordance with the BAA. Podium takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section 4.4.

4.5. Storage. Podium does not provide an archiving service. During the Subscription Term, Client acknowledges that Podium may delete Client Data no longer in active use. Except for requirements that are included in any BAA entered into between Podium and Client, Podium expressly disclaims all other obligations with respect to storage.

5. CLIENT OBLIGATIONS.

5.1. Warranty. Client warrants and represents that it will use the Services in full compliance with all Laws and terms of this Agreement, including the Acceptable Use Policy, and that it will not use the Services in a manner that would cause Podium to violate any obligation with respect to any such Laws. Client also warrants and represents that: (a) Client has sole ownership of any Client Data it provides to Podium, or otherwise has legal rights to provide such Client Data, and Client Data and Podium’s use thereof will not violate third-party rights, including intellectual property, privacy, and publicity rights; (b) Podium’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, or regulation; (c) any Client Data Client and/or Client’s authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, and will only concern Client or the goods and/or services that Client provides; (d) Client is authorized to provide Podium with any Customer, Client, or Authorized User information it provides in connection with the Services, including any personally identifying information; and (e) Client and/or Client’s Authorized User(s) will only use the Services for interaction with actual Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Services and notify Podium immediately. Additionally, if an integration is included in the Services Client orders, Client grants Podium the right to access Client’s Data or Client’s CRM system directly or through a third-party service for the purposes of fulfilling Podium’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting Podium such right. Podium will not be held liable for any consequences of false and/or inaccurate content published to an online review or ratings website through Podium by Client or its Authorized Users.

5.2. Customer Consent; Intended Use of the Services. Client understands and agrees that the Services are intended to allow Client to send electronic communication, including but not limited to text messages, only to Client’s own current Customers who have consented to the receipt of such communications and are provided with necessary notices in accordance with applicable Laws. Client also understands and agrees that the Services are intended primarily to be used to send transactional and/or informational messages, not advertisements, marketing, telemarketing, or promotional messages, as such are defined in applicable Laws (hereinafter, collectively “Marketing”), and that Client may use the Services to send Marketing messages only via Podium Campaigns. Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable Laws, prior to utilizing the Services; (b) obtain all necessary rights, releases, and consents to allow Client Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant Podium the rights herein; and (c) send Marketing messages through Podium only via Podium Campaigns and only in compliance with all Laws, the terms of this Agreement, including the Acceptable Use Policy, and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable Laws and the Acceptable Use Policy and must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with applicable Laws or the Acceptable Use Policy, and Podium expressly disclaims any liability for Client’s non-compliance. Podium reserves the right to suspend or terminate Client’s access to the Services or specific feature(s) of the Services if Podium believes, in its sole discretion, that Client has violated this Section 5.

6. AVAILABILITY OF SERVICES; SUPPORT.

6.1. Availability. Subject to the terms of this Agreement and any scheduled maintenance and unavailability caused by: (a) actions or omissions of Client; (b) failures, errors, or defects in the facilities, hardware, software, or network of Client; or (c) circumstances that constitute a force majeure event or that are beyond Podium’s reasonable control, the Services will be available for access via the Website 99.0% of the time during of the applicable Subscription Term. Client’s sole remedy and Podium’s sole liability for failure to meet the aforementioned availability will be support in accordance with Section 6.2.

6.2. Support. Podium makes available web-based support through the Website. Additional support services may be available to Client subject to payment of applicable fees (if any), as specified in any applicable Subscription Documentation. Any support services are subject to this Agreement and Podium’s applicable support policies, if any. Client is primarily responsible for its own account setup and onboarding. Podium may also provide onboarding, deployment, and other services under this Agreement, including via Third-Party Providers or subcontractors. If applicable, the scope, pricing, and other terms for these additional services will be set forth in the applicable Subscription Documentation. Podium’s ability to deliver the Services will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Services.

7. FEES AND PAYMENT.

7.1. Fees. Unless otherwise specified on the applicable Subscription Documentation, the Services are provided on an ongoing, per-license subscription-basis including automatically recurring payments for periodic charges, according to the terms and conditions referenced in the Subscription Documentation (“Subscription”). Client agrees to pay to Podium the fees for the Subscription to the Services or any Bundle (“Subscription Fees”) and any additional fees (if applicable), all as set forth in the applicable Subscription Documentation or Additional Terms (collectively, the “Fees”). Except as otherwise specified in the applicable Subscription Documentation, unless Client terminates a Free Access Subscription prior to the lapse of the Free Access Subscription Term, such Services will convert to a paid Subscription and Client agrees to pay Podium the applicable Subscription Fees according to the terms of this Agreement. Unless otherwise specified in the applicable Subscription Documentation, payment for all Fees is due within thirty (30) days of the invoice date.

7.2. Payment of Fees. Unless otherwise specified in the applicable Subscription Documentation, all Subscription Fees will be paid annually in advance, though overage fees (if any) may be charged in arrears, and all references to currency set forth herein will mean U.S. dollars, with all payments hereunder to be made in U.S. dollars. Subscription Fees are non-refundable and non-creditable, except as expressly set forth in Sections 2.3 (Modification of the Services) and 8.3 (Termination for Cause). If the payment method selected on the applicable Subscription Documentation is credit card, ACH, or direct debit, Client authorizes Podium to charge the Subscription Fees automatically, on an auto-renew basis on your Subscription Start Date (as defined below) for each subsequent Subscription Term. For the avoidance of doubt, all additional Subscription Fees for additional Services accessed by Client will be billed when the Service is first accessed by Client and automatically, on an auto-renew basis on Client’s existing Subscription Start Date. The Subscription will continue unless and until you or Podium terminate your Subscription in accordance with Section 8. You must cancel your Subscription before it renews in order to avoid billing the next periodic Subscription Fees to your account. If Client elects to pay by credit card, then you are responsible for both (a) enabling auto-recharge on your account and (b) ensuring that your account has a sufficient positive balance to cover all Fees when due. Should Podium be unable to process/receive the Fees when due and owing, payment shall be considered overdue. Podium will have the right to charge interest on all overdue amounts equal to the maximum amounts allowed by applicable Law. Additionally, after payment becomes overdue, Podium will have the right to immediately suspend Client’s access to the Services and/or seek to enforce Client’s payment obligations including through the use of third-party services.

7.3. Taxes. Podium’s Fees are exclusive of all taxes and regulatory fees, and Client must pay any applicable taxes regulatory fees, or levies, whether domestic or foreign, other than taxes based on the income of Podium. Client will make tax and regulatory fee payments to Podium to the extent amounts are included on Podium’s invoices.

7.4. Fee Increase. Podium reserves the right to determine the applicable Fees for any Services. While Podium will make reasonable efforts to keep the information relating to Fees published on its Website up to date, you should check the Website periodically for information about current Fees. If any Fees are specified on your Subscription Documentation, Podium may increase Fees applicable to you upon forty-five (45) days’ prior written notice, effective on the start date of your subsequent Subscription Term. Additionally, notwithstanding the foregoing, Podium may adjust the Payments Services Fees as set forth in the Payments Service Terms. Podium may also, from time to time and in its sole discretion, make promotional offers or different Fees available to its clients or other users. Such promotional offers will not apply to you or this Agreement unless specified in writing in your Subscription Documentation.

8. TERM AND TERMINATION.

8.1. Term. This Agreement is effective until the applicable Subscription Term for the Services has expired or the Subscription is terminated as expressly permitted herein. Unless otherwise stated in Client’s Subscription Documentation, the initial term for any Subscription to the Services is twelve (12) months and will automatically renew for subsequent periods of equal duration (the “Subscription Term”), unless either party gives written notice of non-renewal at least one (1) month before the end of the then-current Subscription Term. Client may give notice of non-renewal by sending an email to [email protected]. If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Services (“Subscription Start Date”). By agreeing to any Subscription Documentation, Client is agreeing to pay applicable fees for the entire Subscription Term. Client cannot cancel or terminate a Subscription Term except as expressly permitted by this Section 8.1 or Section 8.3 (Termination for Cause). Unless Client’s Subscription Documentation expressly states otherwise, any additional Services purchased during Client’s Subscription Term will be coterminous with Client’s most recent Podium platform Subscription Term.

8.2. Suspension of Services. Podium may suspend Client’s (or any Authorized User’s, as applicable) access to the Services if: (a) Client’s account is overdue, or (b) Client has exceeded its Scope of Use limits. Podium may also suspend Client’s (or any Authorized User’s, as applicable) access to the Services, remove Client Data, or disable Third-Party Products if it determines that: (i) Client has breached Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations); or (ii) suspension is necessary to prevent harm or liability to other clients of Podium or third parties or to preserve the security, stability, availability, or integrity of the Services. Podium will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period. Unless this Agreement has been terminated, Podium will cooperate with Client to restore access to the Services once it verifies that Client has resolved the condition requiring suspension.

8.3. Termination for Cause. Either party may terminate this Agreement, including any related Subscription Documentation, if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Client terminates during the Subscription Term for any reason other than the foregoing, Client will be responsible for the Fees due for the entire Subscription Term. Podium may also terminate this Agreement or any related Subscription Documentation immediately if Client breaches Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations), for repeated violations of other Sections of this Agreement, or if applicable, a breach of the parties’ BAA.

8.4. Effect of Termination. Upon any expiration or termination of this Agreement or any Subscription Documentation: (a) Client’s license rights will terminate and it must immediately cease use of the Services (including any related Podium Technology) and delete (or, at Podium’s request, return) any and all copies of any Podium documentation, scripts, passwords or access codes, and any other Podium Confidential Information in Client’s possession, custody, or control; and (b) Client’s right to access any Client Data in the applicable Services will cease, and unless otherwise precluded by a BAA, Podium may delete any such data in its possession at any time. If Podium terminates this Agreement for cause as provided in Section 8.3 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

8.5. Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 3 (Use Rights; Restrictions); 4 (Client Data); 7 (Fees and Payment); 8 (Term and Termination); 9 (Confidential Information); 10 (Podium Technology); 11 (Third-Party Providers and Third-Party Products); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); 15 (Dispute Resolution); and 16 (General).

9. CONFIDENTIAL INFORMATION.

9.1. Obligation of Confidentiality. Except as otherwise expressly permitted in this Agreement, each party (as the receiving party) must: (a) hold in confidence and not disclose the other party’s Confidential Information to third parties; and (b) use the other party’s Confidential Information only as necessary to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, contractors, subcontractors, or Authorized Users having a legitimate need to know (which, for Podium, includes the subcontractors referenced in Section 16.6), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 9 and these recipients are bound to confidentiality obligations no less protective than this Section.

9.2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the receiving party; (b) was known by the receiving party prior to receipt of the Confidential Information; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law, subpoenas, or court orders, provided it uses commercially reasonable efforts to notify the other party where permitted to do so) and cooperates in any effort by the other party to obtain confidential treatment for the information.

9.3. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

10. PODIUM TECHNOLOGY.

10.1. Ownership and Updates. By accepting this Agreement, Client acknowledges that it is obtaining only a limited right to use the Services and irrespective of any use of the words “purchase”, “sale”, or similar terms, no ownership rights are transferred to Client under this Agreement and, except as expressly permitted by such limited right, Client may not make any use of Podium Technology. Client agrees that Podium (or its suppliers) exclusively retains all rights, title, and interest (including all intellectual property rights) in and to all Services, products, any and all related documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Services), anything delivered as part of support, materials or other services, and any updates, modifications, or derivative works of any of the foregoing, including as may incorporate any Feedback (as defined below) (“Podium Technology”) provided by Podium (which is deemed Podium’s Confidential Information) and reserves any licenses not specifically granted herein. Furthermore, Podium exclusively owns and reserves all right, title, and interest in and to Podium’s Confidential Information and any data, in anonymized or aggregated form that does not identify you, any end users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. The Services are offered as an online, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Services and that Podium at its option may make updates, bug fixes, modifications, or improvements to the Services from time-to-time.

10.2. Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas, or other feedback or related materials to Podium (collectively, “Feedback”), Client hereby grants Podium a worldwide, perpetual, non-revocable, sublicensable, royalty-free right, and license to use, copy, disclose, license, distribute, and exploit any such Feedback in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Podium’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

11. THIRD-PARTY PRODUCTS AND INTEGRATIONS.

Podium may, from time to time, contract with a third party to facilitate certain features of the Services, including as described in Section 16.6 of this Agreement. Podium may also allow or facilitate Client to make arrangements with other third-party providers that provide products or services in connection with, but which are not included in, the Services as described in this Agreement (“Third-Party Provider(s)”). If Client elects to use any Third-Party Provider(s) or any applications, integrations, add-ons, software, code, online services, systems, and other products that are not Podium Technology (“Third-Party Products”) in connection with the Services, such Third-Party Provider(s) or Third-Party Products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Provider(s) or Third-Party Products may require Client to enter into separate terms and conditions with such third-party. Unless Podium expressly agrees otherwise in a signed writing, Podium (a) is not a party to any such terms; (b) will not be liable thereunder; (c) does not warrant or support Third-Party Providers, Third-Party Products; or Third-Party Content; and (d) disclaims all responsibility and liability for these providers and items and their access to the Services, including their modification, deletion, disclosure, or collection of Client Data. Podium is not responsible in any way for Client Data once it is transmitted, copied, or removed from the Services.

12. INDEMNIFICATION.

12.1. Indemnification by Client. Client will indemnify and hold harmless Podium and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “Podium Entities”) from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to: (a) your unauthorized use of, or misuse of, the Services, including but not limited to the Podium Marketplace and Podium API, as applicable; (b) your violation of, any claim that you have violated, any applicable Law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (c) any dispute or issue between you and any third party (including but not limited to your Customers, any Developer Partners, and any Third-Party Providers); (d) any demand, dispute, or issue (including without limitation fee disputes) between you and any Payment Service Provider(s) (as defined in the applicable Additional Terms); (e) any Client Data; (f) Podium’s use, as contemplated in this Agreement, of any information provided to Podium by you or your Customers; (g) breach or alleged breach of this Agreement, including Client’s warranties and obligations; or (h) if applicable, alleged breach or breach of Client’s obligations contained in the BAA. Client also agrees to defend the Podium Entities against these claims at Podium’s request, but Podium may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. In the event Podium assumes exclusive defense of such claims, Client agrees to cooperate with our defense of any such claims. Client may not settle any claim without Podium’s prior written consent if the settlement does not fully release Podium from liability or would require Podium to admit fault, pay any amounts, or take or refrain from taking any action.

12.2. Indemnification by Podium. Podium will indemnify and hold Client harmless from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to (a) Podium’s gross negligence or willful misconduct; or (b) Podium’s infringement, misappropriation, or violation of a third party’s intellectual property rights. Podium also agrees to defend Client against these claims at Client’s request, but Client may participate in any claim through counsel of its own choosing and the Parties will reasonably cooperate on any defense. Podium must not settle any claim without Client’s prior written consent if the settlement does not fully release Client from liability or would require Client to admit fault, pay any amounts, or take or refrain from taking any action.

12.3. Exclusions to Podium’s Indemnification. Podium will not be required to indemnify Client in the event of: (a) modification of the Services by Client, its Authorized Users, Developer Partners, Third-Party Providers, affiliates, employees, or contractors in conflict with Client’s obligations or as a result of any prohibited activity under this Agreement, (b) use of the Services in a manner inconsistent with this Agreement, the Acceptable Use Policy, the Additional Terms, the Subscription Documentation, or any other agreement related to this Agreement, or (c) use of the Services in combination with any other application, product, or service not provided by Podium if such claim would not have occurred without such combination.

13. DISCLAIMERS.

13.1. EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL PODIUM TECHNOLOGY AND RELATED SERVICES, MATERIALS, AND CONTENT AVAILABLE THROUGH THE PODIUM TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER PODIUM NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. PODIUM MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT PODIUM TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT PODIUM TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, AND PODIUM DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. PODIUM WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PROVIDERS, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-PODIUM SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE, AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON PODIUM TECHNOLOGY OR PODIUM’S RELATED SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES). THE DISCLAIMERS IN THIS SECTION 13 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

13.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR PODIUM ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE PODIUM ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. PODIUM DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY PODIUM TO ITS CLIENT(S) DO NOT CONSTITUTE LEGAL ADVICE. USE OF THE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.

14. LIMITATIONS OF LIABILITY.

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL PODIUM OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PODIUM’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CLIENT TO PODIUM FOR THE APPLICABLE SERVICE(S) OR RELATED SERVICE(S) IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, PODIUM’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY PODIUM TECHNOLOGY, OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

15. DISPUTE RESOLUTION.

If a dispute arises between the parties related to this Agreement or the Services provided therefrom, and the dispute cannot be settled through informal negotiations, the parties agree to resolve their dispute (referred to herein as “Claim(s)”) as follows:

15.1. Mediation. The parties agree to participate in mediation to settle their Claims in accordance with the rules and procedures found in Utah Code § 78B-10-101 et seq. (Utah Uniform Mediation Act and referred to as “UUMA”) and this Agreement before a party can file a judicial action, whether in a court of law, an administrative body, government agency, or otherwise. If there are any conflicting provisions between UUMA and this Agreement, the provisions in this Agreement will govern.

15.1.1. Notice. Mediation must be conducted within sixty (60) days from a party receiving written notice of Claims from a complaining party. The notice must contain a detailed description of the nature of the Claims and the requested relief sought.

15.1.2. Mediator Selection and Mediator Fees. A neutral mediator will be selected as mutually agreed upon by the parties. The mediator’s fees and costs will be paid to the mediator at the end of mediation, with both parties equally sharing the mediation costs and paying their own legal fees and costs.

15.1.3. Location. Mediation will occur in Salt Lake City, Utah.

15.2. Judicial Action. If the parties are unable to resolve the Claim pursuant to the mandatory mediation referenced above (or if one of the parties refuses to participate in the mandatory mediation or fails to respond to a complaining party’s request for mediation), the parties may subsequently file a judicial action.

15.3. Disputes Not Subject to the Mediation Process. The following claims or actions are not subject to the mandatory mediation provisions of this Section 15:

15.3.1. A request for an order of injunctive relief and any related incidental damages;

15.3.2. A request for an order to prevent the disclosure of or misuse of Confidential Information or trade secrets; and/or

15.3.3. Enforcement of Client’s payment obligations as set forth under Section 7.

16. GENERAL.

16.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Podium may assign this Agreement without consent to an affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.

16.2. Notices. Any notice or communication to Podium under this Agreement must be in writing. Client must send any notices under this Agreement (including breach notices) to Podium Headquarters (include “Attn. Legal Department” in the subject line) or by email to [email protected]. Podium may send notices to the e-mail addresses on Client’s account or, at Podium’s option, to Client’s last-known postal address. Podium may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on Podium’s Website or the Services. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. Podium is not responsible for any automatic filtering Client or its network provider may apply to email notifications.

16.3. Publicity. Unless otherwise specified in the applicable Subscription Documentation, Podium may use Client’s name, logo, and marks to identify Client as a Podium Client on Podium’s website and other marketing materials.

16.4. Podium Communication with Client. You agree that Podium may send you emails and text messages, including transactional, operational, and marketing messages, possibly using automated technology, to the email or phone number you provide to Podium. Message and/or data rates may apply to such messages, and you may opt out at any time. You will keep your contact information up to date and will notify Podium immediately in the event that your contact information changes.

16.5. Referral Programs. Podium may, from time to time, and in its sole discretion, offer referral programs or opportunities to certain Podium clients or users. Such programs or opportunities may include incentives for such clients or users to promote Podium and/or its Services to their family or friends. Participation in such programs or opportunities is completely voluntary and is subject to this Agreement and the Podium Referral Submission Terms (“Referral Submission Terms”). Podium may modify, discontinue, or terminate any referral program or similar opportunity at any time, without notice.

16.6. Subcontractors. Podium may use subcontractors and permit them to exercise the rights granted to Podium in order to provide the Services and related services under this Agreement. Unless Podium expressly states otherwise in signed writing, Third-Party Providers are not “subcontractors” under this Agreement, and Podium disclaims all responsibility and liability for the actions or omissions of any Third-Party Providers, including but not limited to Developers.

16.7. Subpoenas. Nothing in this Agreement prevents Podium from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Podium will use commercially reasonable efforts to notify Client where permitted to do so.

16.8. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

16.9. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act or order.

16.10. Amendments; Waivers. Podium may update or modify these Terms (including the Additional Terms and any referenced policies and other documents) from time to time by posting a revised version on the Website or Services or by notification via the email associated with your account. If a change to these Terms materially modifies your rights or obligations, you may be required to click through the updated Terms to show acceptance and to continue to use the Services. Material modifications are effective upon the earlier of your acceptance of the modified Terms or upon your next subsequent Subscription Term. Immaterial modifications will become effective upon posting or notification, and continued use of the Services or Website, following the update, will constitute acceptance of the updated Terms. If Client does not agree to the updated Terms, Client will no longer have the right to use the Services. Except as otherwise described in this Section 16.10, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. No waiver of any provision of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement will not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.

16.11. Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.

16.12. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect, and all other provisions remain in full effect.

16.13. No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Documentation and not any affiliates. Furthermore, Client’s affiliates are not permitted to use the Services under these Terms unless an affiliate agrees to these Terms individually and creates its own account.

16.14. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

16.15. Entire Agreement. This Agreement, including these Terms and any applicable Subscription Documentation, represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Podium Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only and have no legal effect.

16.16. Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery will be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.

16.17. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Utah and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement will be the state courts located in Salt Lake County or Utah County, Utah or the United States District Court for the District of Utah, and both parties submit to the personal jurisdiction of these courts.

16.18. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.

16.19. Notice Regarding Apple. This Section 16.19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Podium only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Services and/or your possession and use of the Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

Stripe

As a provider of payment services, Stripe is required to comply with many regulations, including anti-terrorism and anti-money laundering laws. Some of these regulations and laws require Stripe to retain transactional records for a prescribed period of time. You can read more about our underwriting obligations in our Privacy Policy.

You can also visit our Privacy Center to learn more about privacy at Stripe.

FittleBug

This Licensing and Services Agreement (“Agreement”) is entered into on , (“Commencement Date”) by and between AGS Acquisition Corp., an Illinois corporation (“AGS”), and , a(n) corporation (“Client”).

Recitals

Whereas, AGS developed an internet model branded as “FittleBug” that facilitates the relationship and scheduling between consumers and service providers (the “Model”)
Whereas, AGS offers to customers limited licenses to use the Model. In all instances the Model must reside on AGS designated servers.
Whereas, AGS customers electing to license the Model will maintain and utilize their own internet domain name and web presence which will link to their respective Models.
Whereas, Client seeks to operate an independent service business utilizing the Model
Whereas, AGS agrees to grant Client a limited license to utilize the Model and agrees to provide certain implementation, training, and web hosting services to Client, and Client seeks to retain said license and services from AGS, in accordance with the terms and conditions set forth in this Agreement.
Therefore, in consideration of the covenants and conditions set forth herein, and for other consideration, the receipt and sufficiency of which is hereby acknowledged, AGS and Client agree as follows:

Agreement

Recital. The above recitals are incorporated by reference and made a part of this Agreement.
Model Ownership. AGS, or third party-licensors, own and retain all rights, title and interest (including all copyrights, trademarks, patents, trade secret rights, and other intellectual property rights) in and to all aspects of the Model. Client’s access to and/or use of all or any aspect of the Model does not transfer to Client any title to the intellectual property in the Model, and Client will not acquire any rights to use any aspect of Model except as expressly set forth in this Agreement. Client shall retain in the same form as provided by AGS, all copyright, trademark and other proprietary notices contained in any aspect of the Model. Client may not sell, modify, reproduce, display, publicly perform, prepare derivative works based upon, distribute, or otherwise use any aspect of the Model except as expressly provided in this Agreement.
Limited License Granted Client.

Subject to: (i) Client’s payment of the fees described below; and (ii) the other terms and conditions of this Agreement, AGS hereby grants Client, and Client accepts, a limited, non-transferable, non-exclusive, terminable, license to use the Model in connection with the operation of its independent service business, subject to the terms and conditions of this Agreement (“Limited License”). The Limited License includes any updates, enhancements, modifications, revisions, additions, replacements or conversions of the Model. The Limited License allows Client to utilize the Model in connection with the operation of Client’s individual service business (“Client Business Model”), subject to the terms and conditions of this Agreement. Client represents and warrants each shareholder, officer, director, employee, agent, representative and other person utilizing the Model pursuant to the Limited License (“Authorized User”) shall abide by the terms and conditions of this Agreement and shall be subject to all limitations and obligations of Client under this Agreement. Client is liable for any breach of this Agreement by an Authorized User.

Prohibited Uses. Without expanding the scope of the Limited License, Client may not without AGS’s prior written consent:

Use the Model except as expressly permitted herein;
Lease, loan, sub-license, or resell the Model;
Transfer or assign any of the rights granted to Client under this Agreement;
Duplicate, reverse engineer, decompile, or disassemble any aspect of Model;
Modify or create derivative works based in whole or in part on any aspect of Model;
Remove any proprietary notices appearing on any aspect of the Model;
Interfere with or disrupt networks connected to any aspect of the Model;
Attempt to gain unauthorized access to any aspect of the Model, or the computer systems and networks connected to the same;
Interfere with any other persons’ use and enjoyment of any aspect of the Model;
Utilize the Model in any way that is unlawful, harmful, threatening, harassing, tortious, defamatory, obscene, libelous, invasive of another’s privacy, or otherwise objectionable;
Upload any information regarding another person without being authorized by that person;
Upload content, data, or information that contains a virus, corrupted file, or other harmful component;
Impersonate any person or entity, including but not limited to AGS personnel, or falsely state or otherwise misrepresent any affiliation with any person or entity, or upload any content, data, or information under a fictitious name; or
Intentionally or unintentionally violate, encourage or assist another to violate any ordinance, statute, regulation, rule, or law in connection with Client’s use of the Model.

User ID and Password. AGS will provide Client with a unique user identification and password allowing Client to access the Client Business Model (“User ID and Password”) administrative functionality. Client is responsible for ensuring the confidentiality of the User ID and Password, and for all activities that occur under the User ID and Password. In the event Client forgets the User ID and Password, Client may contact AGS at 630-444-2000 and/or [email protected], or such other phone number and/or email address hereafter provided to Client by AGS.
Client access to the Client Business Model. Client understands and acknowledges the Client Business Model is available only through the worldwide web through AGS. Client is solely responsible for acquiring and maintaining the hardware, software, internet access, and any other equipment, and services of any kind necessary to access and utilize the Client Business Model, and for all associated fees, costs, and expenses. If the Model is lost or damaged, AGS will provide a replacement copy at no additional charge.
Changes in the Model. AGS may in its sole and absolute discretion change, modify, alter, enhance, or discontinue any aspect of the Client Business Model at any time without notice. Client’s sole remedy in the event Client is dissatisfied with any such change, modification, alteration, enhancement, or discontinuance of any aspect of the Client Business Model is to terminate this Agreement in accordance with Section 10.c. below. Under no circumstances shall Client be entitled to a refund of any fees or other amounts paid AGS in accordance with this Agreement.
AGS Services. In addition to the Limited License granted hereunder, AGS shall provide Client certain implementation, training, and hosting services defined in this Section 8.
Hosting Services.
Hosting Services Defined. AGS agrees to: (a) host the Client Business Model and related web pages on its server (“AGS Server”); and (b) back up the Client Business Model nightly while this Agreement remains in effect (collectively “Hosting Services”). Client acknowledges the AGS Server is provided to Client on a non-exclusive basis.
Access Not Guaranteed. While the AGS Server will generally be available and operational twenty-four (24) hours a day, seven (7) days a week, Client acknowledges AGS makes no representations or guarantees regarding the operation and availability of the Hosting Services. Without limiting the foregoing, the Hosting Services may not be operational or available, and may fail or be interrupted do to scheduled maintenance, repairs, upgrades, security breaches, interruption of telecommunication or digital transmission links, Internet failures, and other causes not anticipated by AGS and/or beyond AGS’s control.

iii. Warranty Disclaimer. Client understands and agrees the Hosting Services are provided on an “as-is,” “as-available” basis without any warranties to the maximum extent possible pursuant to applicable law. AGS disclaims all warranties, express, implied, or statutory, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing provisions, AGS makes no warranty that the Hosting Services will be error-free or free from interruptions or other failures or that the Hosting Services will meet client’s requirements.

Upgrades. AGS reserves the right, but shall have no obligation, to upgrade or substitute the AGS Server and take other actions with regard to the AGS Server it reasonably believes are necessary or in the best interest of AGS’s business.
Limited Services. AGS is responsible only for providing the Hosting Services defined in Section 8.a.i. above. AGS shall not provide any equipment, supplies, materials, or services not specifically identified as Hosting Services in Section 8.b.i. Whether specific equipment, supplies, materials, or services are included within the definition of Hosting Services shall be determined by the AGS in its sole and absolute discretion.
Implementation & Training Services. Upon receipt of a signed Agreement and the initial License and Hosting Fee payment, AGS will forward to Client the necessary documents to assist in the gathering and submitting of the appropriate Client data for input into the Client Business Model. Upon the receipt of all necessary data, AGS will prepare the Client Business Model to be available for productive use within two business days. AGS will provide initial training on administration of the Client Business Model not to exceed a total of three hours. AGS will provide reasonable additional training assistance via phone, email or webinar through the first year of this Agreement.
Additional Services. Upon Client’s request and AGS’s acceptance, AGS may provide other services separate from and in addition to the Implementation, Training, and Hosting Services described above (“Additional Services”). AGS may from time to time make available to Client generic marketing materials to assist in the marketing of their model.
Fees and Taxes.
Introductory Monthly License and Hosting Fee. AGS offer two types of contracts – Plan “A” and Plan “B”.
Under Plan “A” – Client shall pay AGS a non-refundable $200 per month for unlimited number of transactions, plus a one (1) time non-refundable set up fee of $200. Payment will be made automatically from Clients provided credit card at the time of License on the same day each month until canceled. Once monthly payment is paid, AGS provides no refunds for the month of service. Client will be responsible for the set up and cost of the necessary PayPal PRO or Advanced, Stripe or any other account to work with the Plan “A” model of FittleBug. The License and Hosting Fee for the second and subsequent years shall be subject to AGS’s then current pricing. Client shall make all payments to AGS’s chosen electronic payment account or by such other method as AGS communicates to Client in writing.
Under Plan “B” Client shall pay AGS a non-refundable $50 per month, a one (1) time non-refundable set up fee of $200, and 15% of each total revenue including any relevant taxes for each transaction processed through FittleBug. Client will NOT be responsible for the set up and cost of the necessary PayPal PRO account to work with the Plan “B” model of FittleBug. The License and Hosting Fee for the second and subsequent months shall be subject to AGS’s then current pricing. The Client may switch between Plan A and B for a one time $100 transfer fee per occurrence.
Fees for Additional Services. In the event Client requests and AGS agrees to provide, any Additional Services, Client shall pay AGS an additional fee based on the time spent by AGS in furtherance of the Additional Services at AGS’s hourly rate of One Hundred Ten and No/100 Dollars ($110.00) per hour. AGS will submit a monthly invoice to Client for hourly fees and expenses currently due in connection with the Additional Services, and Client shall pay the balance due within ten (10) days of the date of said invoice.
Failure to Pay Fees. In the event Client fails to make timely payment of any amounts due AGS under this Agreement, Client shall reimburse AGS for all expenses including, but not limited to, legal fees incurred in connection with any action (regardless of whether a formal complaint is filed) pursued by AGS to recover amounts due from Client.
Taxes. Client shall pay or reimburse AGS for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by AGS under this Agreement; excluding, however, income taxes on profits which may be levied against AGS.
Added Functionality. During the Term of this Agreement, in the event AGS develops or otherwise acquires additional functionality and/or options which enhance the Model (“Model Addition”), AGS shall, in each instance, notify Client of the Model Addition and the cost associated with licensing and adding the Model Addition to the Client Business Model (“Addition Cost”). If Client chooses to license and incorporate any Model Addition to the Client Business Model, the Prorated cost of the remaining Hosting and License Fee will be increased by the Additional Cost following implementation of the Model Addition and through the end of the Agreement Term.
Term and Termination.
a. Term. The term of this Agreement shall commence on the Commencement Dated stated above and shall continue for one (1) year(“Term”) unless terminated prior thereto, or extended, in accordance with this Section 10. b. Early Termination by AGS. AGS may terminate this Agreement at any time and for any reason or no reason by providing written notice of termination to Client and refunding a pro rata portion of the License and Hosting Fee for any period paid by Client but not yet completed as of the date of termination. AGS shall have no other obligation to Client if AGS terminates this Agreement under this provision prior to the end of Term. AGS may also terminate this Agreement without any liability at anytime by giving written notice to Client in the event Client breaches any of the representations, warranties, or provisions contained in this Agreement.
c. Early Termination by Client. Client may terminate this Agreement on thirty (30) days written notice to AGS in the event of a breach of any provision of this Agreement by AGS, provided that, during the thirty (30) day notice period, AGS fails to cure such breach.
Extension of Term. Unless either party notifies the other of it’s intent to terminate the Agreement in writing at least thirty (30) days prior to the expiration of the current Term, the Agreement will automatically be extended for an additional one (1) year period and Client shall pay to AGS the then current annual License and Hosting Fee.
Effect of Termination. Upon expiration or termination of this Agreement, Client’s License and access to the Client Business Model shall end. Except for information AGS may retain for its own internal uses Client acknowledges that all other information and data related to Client, and Client’s customers, contractors, vendors, and prospects, if any, cannot be saved outside of the Client Business Model or transferred from the Client Business Model and is usually destroyed upon termination of this Agreement. AGS is not liable for any losses or
damages suffered by Client as a result of the destruction or loss of such information or data. Expiration or termination of this Agreement shall not relieve Client of Client’s obligation to pay fees due under this Agreement. Nothing herein shall be construed as obligating AGS to destroy or return any information it may possess regarding Client, and Client’s customers, contractors, vendors, and prospects.
Client Responsibility. Other than the Hosting Services specified in paragraph 8.b.i., Client assumes sole responsibility for everything necessary or required for the proper and secure functioning of the Client Business Model. Without limiting the foregoing, Client assumes sole responsibility for: (a) the administration, marketing, and operations of Client’s service business; (b) the accuracy of the contents contained on, and the proper use of, the Client Business Model; (c) ensuring the contents of the Client Business Model do not infringe on or violate any applicable statute, ordinance, law, regulation or the rights of any third party; and (d) providing all data transmitted to, gathered by, or related to the Client Business Model. Client shall not place or cause to be placed on the AGS Server content which violates any applicable law or regulation or any proprietary, contract, privacy or other third party right, or which may expose AGS to civil or criminal liability. AGS reserves the right to exclude or remove any content from the AGS Server and the Client Business Model if AGS determines, in its sole and absolute discretion, said content may violate any law, violate or infringe any third party right, potentially expose AGS to civil or criminal liability, or is otherwise deemed inappropriate.
Limitation of liability. Client understands and agrees that under no circumstances, shall AGS, or any of its directors, officers, employees, suppliers, agents, and other representatives be liable for any direct or indirect losses or damages arising out of or in connection with this Agreement; the Hosting Services; the Set Up Services; the Training Services; the Client Business Model; third parties accessing or using the Client Business Model; the actions or inactions of Client or AGS; the interruption or failure of the AGS Server; or any security breach. This is a comprehensive release of liability that applies to all losses and damages of any kind, including, without limitation, direct, indirect, general, special, incidental, consequential, exemplary, statutory, contractual, or damages or losses of any other kind or type. This limitation of liability applies whether the alleged liability is based on contract, negligence, tort, strict liability, or any other basis and even if AGS knew or should have known of the possibility of such damages. The foregoing provisions shall be enforceable to the maximum extent permitted by law.
Waiver of claims. Client hereby waives any and all claims, demands, actions, or causes of action of any kind Client may have directly or indirectly against AGS or its affiliates, or any of their respective managers, directors, officers, members, shareholders, employees, contractors, agents or other representatives resulting from, arising out of, or in anyway connected with or related to this Agreement, the Hosting Services; the Set Up Services; the Training Services; the Client Business Model; third parties accessing or using the Client Business Model; the actions or inactions of Client or AGS; the interruption or failure of the AGS Server; or any security breach.
Indemnification and Insurance. Client agrees to defend, indemnify, and hold harmless AGS and its directors, officers, employees, suppliers, agents, and other representatives against any and all claims, demands, actions, causes of action, losses, damages and expenses (including reasonable attorneys’ fees and costs incurred in defending such claims), directly or indirectly resulting from, arising out of, or in any way related to this Agreement; the Hosting Services; the Set Up Services; the Training Services; the Client Business Model; third parties accessing or using the Client Business Model; the actions or inactions of Client or AGS; the interruption or failure of the AGS Server; or any security breach. Client shall carry and maintain insurance sufficient to cover its obligations under this indemnification provision and elsewhere in this Agreement, and shall provide evidence of said insurance upon AGS’s request.
Relationship of the parties. AGS and Client are, and will act as, independent contractors. Nothing in this Agreement is intended to or shall be construed to constitute an agency, joint venture, partnership, or fiduciary relationship between the parties; and neither party shall have the right or authority or shall hold itself out as having the right or authority to bind the other party.
MARKS
Ownership. All trademarks, service marks, trade names, logos or other words or symbols identifying the Model or AGS’s business (the “Marks”) are and will remain the exclusive property of AGS or its licensors, whether or not specifically recognized or perfected under local law. Client will not take any action that jeopardizes AGS’s or its licensors’ proprietary rights or acquires any right in the Marks, except the limited use rights specified in Section 16(b). Client will not register, directly or indirectly, any trademark, service mark, trade name, copyright, company name or other proprietary or commercial right that is identical or confusingly similar to the Marks. Upon AGS’s request, Client will execute the instruments that may be appropriate to register, maintain or renew the registration of the Marks in AGS’s or its licensors’ name.
Use. Client will use the Marks exclusively to advertise and promote the Model. All advertisements and promotional materials will (i) clearly identify AGS or its licensors as the owner of the Marks, and (ii) conform to AGS’s then-current trademark and logo guidelines. Before publishing or disseminating any advertisement or promotional materials bearing a Mark, Client will deliver a sample of the advertisement or promotional materials to AGS for prior approval. If AGS notifies Client that the use of the Mark is inappropriate, Client will not publish or otherwise disseminate the advertisement or promotional materials until they have been modified to AGS’s satisfaction.
Client Information and Data. During the course of this Agreement, AGS shall have access to and possess information and data regarding Client, Authorized Users, and third parties (“Authorized User Information and Data”). To the extent Client possesses a proprietary interest in Authorized User Information and Data, Client hereby grants AGS a non-exclusive, perpetual, worldwide, royalty free, license to utilize in any manner and for any purpose any and all Authorized User Information and Data.
Legal Compliance. Client shall at all times comply with all applicable local, state, and federal statutes, ordinances, regulations, rules, and other laws of any kind.
Client compliance with the CAN-SPAM Act (15 USC 7701-7713). Without limiting Client’s obligations under paragraph 18, all e-mail sent or initiated by Client in any way related to the Client Business Model and/or this Agreement shall comply with the requirements of 15 USC 7701-7713 (“CAN-SPAM Act”). Without limiting the foregoing, Client shall not send any e-mails after being notified by AGS or the email recipient that the recipient requested not to receive any future e-mail from AGS or Client.
Drafting and construction. No inference or presumption shall arise against or in favor of either Party because it did or did not draft this Agreement or any provision hereof.
Survival. The parties agree that paragraphs 2, 9.d, 10-14, 16, 17, and 21-27 shall survive the termination of this Agreement.
Waiver. If one party agrees to waive its right to enforce any term of this Agreement, it does not waive its right to enforce such term, or any or all other terms, of this Agreement at any other time.
Governing Law and Choice of Forum. This Agreement was entered into in the State of Illinois, and shall be governed by and construed in accordance with Illinois law. Any claim or dispute
related to or arising out of this Agreement shall reside in the courts of the State of Illinois, and in particular in either the Kane County Circuit Court or the U.S. District Court for the Northern District of Illinois.
Severability. If any provision of this Agreement is invalidated or held unenforceable, the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other provision of this Agreement. In addition, the parties agree that as to any provision found to be invalid or unenforceable, the same shall not be void, but shall be reformed and enforced to the
maximum extent permissible under applicable law, as if originally executed in that form by the parties.
Amendments. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by AGS and Client.
Entire Agreement. This Agreement constitutes the entire agreement between Client and AGS and there are no representations, understandings or agreements which are not fully expressed in this Agreement. All prior agreements, verbal or written, are of no effect once this Agreement is executed.
Acknowledgement. The undersigned hereby represent and acknowledge they have read the foregoing Agreement, they know its contents, and they are executing this Agreement as a free and voluntary act and on behalf of the named parties. The undersigned further represent they are duly authorized to execute this document on behalf of the named parties.

ServiceMonster

These terms of service (“Terms of Service”) apply to the online business applications provided by ServiceMonster LLC (collectively referred to as the “Service”). Service features and capabilities may vary depending on the version or level of the Service provided with these Terms of Service. As used in the Terms of Service, the terms “you”, “your” or “user” all refer to the person using the Service in any way.

1. Permitted Uses and Restrictions on Use

Subject to these terms and conditions of the Terms of Service, ServiceMonster LLC (“ServiceMonster”) or its subcontractors will provide the Service that allows you to manage your company and business-related data on the World Wide Web. By logging into and using the Service, you indicate that you accept these Terms of Service. In order to use the Service, you must obtain access to the World Wide Web at your own expense. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.

2. Your Registration Obligations

A. In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form(s) (“Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that we have reasonable grounds to suspect is untrue, inaccurate, not current or incomplete, ServiceMonster may suspend or terminate your account and refuse current or future use of the Service (or any portion thereof).

B. Acceptable Use Policy. By submitting data, files, software, text or other content (“Content”) to ServiceMonster in connection with this Service, you warrant that: (i) you are the owner of such Content, or have been granted all the rights necessary from the owner of Content to submit such Content to ServiceMonster, and (ii) the use of Content by ServiceMonster and its members will not infringe or misappropriate the intellectual property rights of or otherwise violate the rights of any third party.

3. Access, Passwords and Security

You may designate as many users as your level of subscription to the Service will allow, and you may provide and assign access and passwords to such users. You will be responsible for the confidentiality and use of your access number(s), password(s), and account number(s). You will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting, and other data; including any Content (“Electronic Communications”) entered through or under your access number(s), password(s) or account number(s). ServiceMonster will deem any Electronic Communications it receives under your access number(s), password(s) or account numbers(s) will have been sent by you, and act in-kind. You agree to immediately notify ServiceMonster if you become aware of any loss or theft or unauthorized use of any of your access number(s), password(s) and/or account number(s).

4. Member Conduct

You agree not to use the Service for:

A. Impersonation of any person or entity, including but not limited to, a ServiceMonster official, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;

B. Interference with or disruption of the Service, including interference with servers or networks connected to the Service;

C. Violation of any applicable law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission and any rules of any securities exchange;

D. Providing instructional information about, or otherwise inciting illegal activities;

E. The use, viewing, or copying any portion of the service for purposes of creating or modifying a competing product or service.

5. General Practices Regarding Use, Storage and Service Access

You acknowledge that ServiceMonster may establish practices and limits concerning use of the Service, including without limitation establishing the maximum amount of storage space you have on the Service at any time, as well as limiting the number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that ServiceMonster has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Service. As a condition of use for this Service, you agree that, in the event of an error with the Service, a representative of ServiceMonster shall be permitted to access your Content as necessary to resolve the problem. You acknowledge that ServiceMonster reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

6. Consumer Information and Privacy

6.1 Privacy. ServiceMonster recognizes the account owner of record as the exclusive owner of the data entered by either the account owner or an authorized user of the account into ServiceMonster. The use of this service does not entitle, in whole or in part, the sale or distribution of your Content by ServiceMonster to another person, company or entity. It may be necessary, however, for a representative of ServiceMonster to access your Content to resolve any problems you, or others, may encounter. ServiceMonster reserves the right to obtain system metadata and analytics for the purpose of member support, marketing, or business operations of ServiceMonster.

6.1.1 Personal Contact Information. ServiceMonster may use the phone and email information you provide to contact you via phone, text messages, and email about your service or any interest you have shown in our services. If you do not have a ServiceMonster subscription, you may contact us via email or phone if you would like us to forgo future contact attempts.

6.2 Healthcare Information. You acknowledge and agree that the Service, related Services, and Content are not “HIPAA ready” or “HIPAA compliant” and will not assist with or ensure compliance with HIPAA. You are solely responsible for using the Service, related Services, and Content in a manner consistent with all applicable federal and state privacy laws relating to medical or health information.

7. Modifications to the Service

Modifications to the Service. ServiceMonster reserves the right at any time to temporarily or permanently modify or discontinue the Service (or any part thereof) at reasonable notice to you. You agree that ServiceMonster shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. At any time ServiceMonster may specify the version(s) of related products required in order to use the Service (e.g. supported browser versions).

8. Modifications to the Terms of Service.

You agree that ServiceMonster may modify the Terms of Service to comply with any other agreements that ServiceMonster is currently bound by or will be bound by in the future, and/or with applicable law, as well as to adjust to changing business circumstances. Your continued use of any of the Service shall constitute your acceptance of the Terms of Service with the new modifications. If you do not agree to such changes, you may terminate the Terms of Service by immediately terminating all access and use of the Service. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to the Terms of Service.

9. Fees

You agree to pay the then-current non-refundable fees associated with the level of Service you choose. Additional fees may apply for (a) additional user licenses (b) optional add-on features to the Service. Additional fees may apply in the event you elect to transfer from one level of the Service to another. When you subscribe and provide payment information, your chosen payment method will be charged, and will automatically be debited monthly or annually depending upon the schedule of payments chosen upon subscribing. You will be charged to maintain the service unless you notify us to cancel the Service prior to the beginning of the next renewal period. ServiceMonster reserves the right to modify its fees with or without notice for future purchases or changes to your current Service.

10. Termination Policy

You may terminate your Service at any time either by (a) directly terminating your subscription though the Service, or (b) by providing electronic mail correspondence, issued from the account holder’s email account of record. Failure to notify us with the account holder’s electronic mail account on record may result in non-termination and continued charges for the Service.

Upon termination your pre-paid non-refundable credits will allow you to access to the Service until the next renewal period, at which time, your account will be suspended.

11. Termination

You acknowledge and agree that ServiceMonster may suspend or terminate your account and/or deny you access to, use of, or submission of Content for, all or part of the Service, without prior notice, if you engage in any conduct that ServiceMonster believes, in its sole discretion: (a) violates any term or provision of the Terms of Service, (b) violates the rights of ServiceMonster or third parties, (c) is otherwise inappropriate for continued access and use of the Service. In addition, ServiceMonster reserves the right to terminate inactive membership accounts. You agree that upon termination, either by you or us, we will maintain your content for 30 days, after which, we may delete all Content and information related to your account at any time as determined by ServiceMonster and may bar your access to your account and the Service including, but not limited to, access to any of your Content entered into or used in connection with the Service immediately upon cancellation. Upon request, ServiceMonster will provide, through mail or electronic mail, a copy of your Content. If you choose to request a copy of your content, you must do so within 30 days of cancelation. Should you decide to return to ServiceMonster after a cancellation, if you are outside of the 30-day window mentioned above, you will need to create a new account. Further, you agree that ServiceMonster shall not be liable to you or any third-party for any termination of your access to the Service. You agree to defend, indemnify, and hold ServiceMonster harmless from and against all claims, losses, liability costs and expenses (including but not limited to attorneys’ fees) arising from your violation of the Terms of Service, state or federal laws or regulations, or any third party’s rights, including but not limited to infringement of any copyright, violation of any proprietary right and invasion of any privacy rights. This obligation will survive the termination of Service.

12. Links

The Service may provide links to other World Wide Web sites or resources. You acknowledge and agree that ServiceMonster is not responsible for the availability of such external sites or resources, and publication of these links is not an endorsement nor is ServiceMonster responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that ServiceMonster shall not be responsible or liable, directly, or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

13. ServiceMonster Proprietary Rights

You acknowledge and agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information that may have been presented to you through the Service or advertisers is protected by copyrights, trademarks, Service marks, patents or other proprietary rights and laws.

12. No Resale, Etc. of the Service

You agree not to copy, sell, resell, rent or sublicense (including offering the Service to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Service, use of the Service, or access to the Service. You agree not to access the Service by any means other than through the interface that is provided by ServiceMonster for use in accessing the Service.

13. Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

A. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ANY CONTENT OR ADD-ON FEATURES THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SERVICEMONSTER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

B. SERVICEMONSTER AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE SERVICE AND ANY CONTENT OR ADD-ON FEATURES THROUGH THE SERVICE

(i) WILL MEET YOUR REQUIREMENTS OR RESULT IN REVENUES OR PROFITS,

(ii) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) WILL PROVIDE THE RESULTS THAT OBTAINED FROM THE USE OF THE SERVICE TO BE ACCURATE OR RELIABLE, AND (iv) WILL PROVIDE THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE TO MEET YOUR EXPECTATIONS. SERVICEMONSTER AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TERMS OF SERVICE OR THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. SERVICEMONSTER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THIS SERVICE, RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW.

c. ANY CONTENT OR MATERIAL TRANSFERRED FROM, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE OR ADD-ON FEATURES THROUGH THE SERVICE ARE DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA AND/OR CONTENT THAT RESULTS FROM THE TRANSFER OR DOWNLOAD OF ANY SUCH MATERIAL.

d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SERVICEMONSTER OR THROUGH OR FROM THE SERVICE OR ADD-ON FEATURES THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.

14. Representations and Warranties.

You represent that, to the best of your knowledge and belief, your use of the Service does not directly or indirectly infringe the legal rights of a third party. You further represent and warrant that all information provided by you in connection with your registration is accurate and reliable.

15. Limitation of Liability

(a) YOU EXPRESSLY UNDERSTAND AND AGREE THAT SERVICEMONSTER AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF SERVICEMONSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE, CONTENT AND/OR ANY INFORMATION; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, CONTENT, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

(b) YOU ALSO AGREE THAT SERVICEMONSTER WILL NOT BE LIABLE FOR ANY (i) INTERRUPTION OF BUSINESS, (ii) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEB SITE(S) YOU ACCESS THROUGH THIS SERVICE; (iii) CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (iv) EVENTS BEYOND SERVICEMONSTER’S REASONABLE CONTROL;

(c) IN NO EVENT SHALL SERVICEMONSTER’S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO SERVICEMONSTER FOR THE SERVICE, BUT IN NO EVENT GREATER THAN THREE HUNDRED DOLLARS ($300.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

16. Exclusions and Limitations

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 13 AND 15 MAY NOT APPLY TO YOU.

17. General Information

The Terms of Service constitutes the entire agreement between you and ServiceMonster and governs your use of the Service, superseding any prior agreements between you and ServiceMonster (including, but not limited to, any prior versions of the Terms of Service) with respect to its subject matter. You also may be subject to additional terms and conditions that may apply when you use affiliate or other ServiceMonster services, third-party content or third-party software. Except as otherwise provided herein, the Terms of Service shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. Except as otherwise provided in the Terms of Service, you and ServiceMonster agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Whatcom, Washington. The Terms of Service does not limit any rights that ServiceMonster may have under trade secret, copyright, patent, trademark or other laws. The failure of ServiceMonster to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect. You agree that any claim or cause of action arising out of or related to use of the Service or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect. The Terms of Service will inure to the benefit of ServiceMonster and its successors and assigns.

18. Survival

All representations, warranties, Sections, 11, 13, 14, 15, 16, 17 and 18 in the Terms of Service shall survive the termination of the Terms of Service.

Customer Testimonials

“LOOK NO FURTHER! I cannot rant enough about Frank with Chemdry. I was a little hesitant at first because his prices were more expensive then the other companies. In the end, I was extremely satisfied with his work! Frank got so much red dirt out of our carpets they look brand new! He was even here for about 8 hours because our pet filled house was such a challenge. The professionalism, compassion and care we received from Frank was like no other. We will forever use this company! Thank you SO much!!!!!”

Anna B. — Yelp!

“I’d give him ten stars if they allowed. A real first for HI he actually shows up on time. Every time! Very through and very knowledgeable. And the price was reasonable. Would highly recommend Ohana Chem Dry.”nalism, compassion and care we received from Frank was like no other. We will forever use this company! Thank you SO much!!!!!”

John F. — Yelp!

“My Ohana Chem Dry experience was great!

“Excellent professional service my floor looks brand new!!!

Yvonn B. — Yelp!

Connie S. — Yelp!