This PLATFORM SUBSCRIPTION AGREEMENT by and between Joblyt LLC dba GreatPros.com, an Arizona limited liability company (the “Company”), and the Customer identified in the Order (“Customer”) (individually Company and Customer are referred to as a “Party” and collectively as the “Parties”). Capitalized terms not defined within this Agreement shall have the meaning set forth in Exhibit A, attached hereto. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
Delivery of Services. Subject to the terms and conditions of this Agreement, Company will provide the features, applications, services, and functionality as set forth in the Order, or as selected by Customer in the course of Customer’s use of the GreatPros Platform (collectively, the “GreatPros Platform”). Company’s sole duty is to provide the GreatPros Platform, and Customer is responsible for Customer’s internal management, administration and use of the GreatPros Platform.
Data Transfer. As part of providing the GreatPros Platform, Company and its licensors may transfer and process all data and information provided or submitted by Customer to the GreatPros Platform (“Data”) in the United States or any other country in which Company, its licensors or their agents maintain facilities. By using the GreatPros Platform, Customer consents to (a) this transfer and processing of Data, and (b) the storage of (i) the technical data necessary to communicate to Customer’s servers to utilize the GreatPros Platform, and (ii) User personalization options.
Modifications. Company and its licensors may from time to time make modifications to the GreatPros Platform, or particular components of the GreatPros Platform. If such modification requires Company or its licensors to make any changes to this Agreement that Company, in its sole discretion, determines is material, Company will notify the Customer via the GreatPros Platform or email. If the change to the Agreement has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Company within thirty (30) days after receiving notice of the change. If Customer notifies Company as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Term. If Customer fails to notify Company within thirty (30) days, then Customer will be deemed to have accepted the modification. If the Term of the Agreement is renewed, it will be renewed under Company’s then-current form of Agreement.
Technical Obligations. Customer acknowledges and agrees that (a) Company is not responsible for any hardware used by Customer to access the GreatPros Platform, and (b) if such Customer hardware is deficient, the GreatPros Platform may not be accessible or available to Customer.
Users. Customer will designate the desired number of Customer’s employees and independent contractors as authorized users on the Order and/or through the GreatPros Platform (each, a “User”). Users are licensed on a per seat basis.
Use of GreatPros Platform. Customer will specify a minimum of one User through the GreatPros Platform who will receive certain notifications as set forth in this Agreement and will have the rights to manage and administer the GreatPros Platform, including Users (each, an “Administrator”). Customer is responsible for: (a) maintaining the confidentiality of its GreatPros Platform password; (b) designating those of its employees who are Administrators and authorized to access the GreatPros Platform; and (c) ensuring that all activities that occur in connection with the GreatPros Platform comply with the Agreement. Any misuse of the GreatPros Platform by Customer is a material breach of this Agreement for which Company may immediately terminate the Agreement.
Compliance. Customer is solely responsible for all GreatPros Platform activity by Users. Customer will abide, and will ensure that Users abide, by all applicable local, state, national and foreign laws, treaties and regulations in connection with use of the GreatPros Platform, including but not limited to those related to data privacy, international communications, export control, and the transmission of technical or personal data.
Privacy. Customer is responsible for protecting the privacy rights of Users under all applicable laws and regulations. Customer’s Administrators may have the ability to access, monitor, use, or disclose Data of the Customer. Customer is responsible for obtaining any necessary authorizations, if applicable, from Users to enable Company to provide the GreatPros Platform.
Unauthorized Use. Customer will use all commercially reasonable efforts to prevent unauthorized use of the GreatPros Platform, and to terminate any unauthorized use. Customer will promptly notify Company of any unauthorized use of, or access to, the GreatPros Platform of which it becomes aware, including unauthorized use by any User, known or suspected breaches of security, and unlawful use of the GreatPros Platform or Company Intellectual Property Rights.
Term and Termination.
Term. The “Term” of the Agreement begins upon the Effective Date (as set forth on the Order) and continues until terminated as provided herein.
Initial Term; Prorated Terms. The initial term of this Agreement is the length of time beginning on the Effective Date and ending after the number of months identified on the Order or through the GreatPros Platform (the “Initial Term”).
Automatic Renewal. This Agreement will automatically renew for an additional term of the number of months of the Initial Term (each, a “Renewal Term”). Renewal Terms are subject to Company’s then-current terms and conditions and the renewal pricing specific in the Order or, if not specified in the Order, on our standard pricing available at <www.GreatPros.com>. At any time up to seventy-two (72) hours prior to the expiration of the then-current Term, Customer may disable the automatic renewal option in the GreatPros Platform and this Agreement will terminate upon the conclusion of the then-current Term.
Termination for Breach. Either Party may terminate this Agreement immediately upon written notice: (a) with regard to obligations other than payment obligations, if the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice, or immediately as provided in this Agreement; (b) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; (c) the other Party is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches; or (d) with regard to Customer’s payment obligations, Company may immediately (or, at its option, after suspension of access to the GreatPros Platform pursuant to Section 6.2 below) terminate this Agreement for failure to pay any Fees when due pursuant to Section 4.1.
Effect of Termination. Upon termination of this Agreement: (a) all rights and licenses granted under this Agreement will terminate, (b) Customer will pay Company all Fees owed and outstanding, and (c) upon request, each Party will return or destroy the Confidential Information of the other Party. If Company terminates due to Customer’s material breach, Customer is not entitled to a refund of any Fees and Company will not refund any Fees that Customer has paid. If Customer terminates due to Company’s failure to cure its material breach of this Agreement, Company will refund, pro rata, any Fees Customer has paid Company for the terminated duration of the current subscription to the GreatPros Platform.
Fees and Payment.
Fees. Customer will pay all fees (“Fees”) for the GreatPros Platform in accordance with the Order, as modified by any specific terms in the Order.
Purchase Orders. Any terms and conditions on any purchase orders of Customer other than the Order are not binding on Company and are null and void regardless of whether they were received by Company.
By Customer. Customer will, at its own expense, respond to technical questions raised by Users relating to their use of the GreatPros Platform. Customer will use commercially reasonable efforts to answer technical questions brought to its attention on its own, without notification to Company.
By Company. If Customer cannot answer a technical question raised by a User relating to their use of the GreatPros Platform, then an Administrator shall notify Company and Company shall use commercially reasonable efforts to provide an answer to the Administrator.
By Customer. If Customer becomes aware of a User’s violation of this Agreement, Customer will suspend the applicable User. If Customer fails to suspend a User pursuant to this paragraph, then Company reserves the right to do so. The suspension of a User will continue until Company is reasonably satisfied that the applicable User has cured the breach which caused the suspension and Customer pays to Company any damages incurred by Company due to the User’s breach.
By Company. If Customer materially breaches the terms of this Agreement, including any failure to pay any Fees, Company reserves the right to suspend use of the GreatPros Platform, or particular components of the GreatPros Platform, without notice until the breach is cured or Company terminates this Agreement.
For Emergency Security Issues. If there is an Emergency Security Issue, Company may immediately suspend the offending use. suspension will be to the minimum extent and duration that Company deems to be required to prevent or terminate the Emergency Security Issue. If Company suspends a User, Company will provide Customer the reason for the suspension as soon as is reasonably possible.
Obligations. Each Party will: (a) hold and keep the other Party’s Confidential Information in strict confidence; (b) protect the other Party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (c) not disclose the Confidential Information, except to Affiliates, employees and agents. Each Party (and any Affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each Party is responsible for any actions of its Affiliates, employees and agents in violation of this Section 7.
Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew as evidenced by its written records; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
Required Disclosure. Each Party may disclose the other Party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other Party; (b) gives the other Party the opportunity to challenge the disclosure; and (c) releases only so much of the Confidential Information as required by law and properly requests confidential treatment of that information.
Third Party Requests. Customer is responsible for responding to Third Party Requests. Company will, unless it is prohibited by law or by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request in a manner permitted by law; (b) comply with Customer’s reasonable requests, at Customer’s expense, regarding its efforts to oppose a Third Party Request; and (c) provide Customer, at Customer’s expense, with the information or tools required for Customer to respond to the Third Party Request.
Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either Party any rights, implied or otherwise, to the other Party’s Intellectual Property Rights. Company and its licensors are the sole owners of all Intellectual Property Rights in and to the GreatPros Platform.
License to Customer. Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable and revocable license in and to Company’s Intellectual Property Rights solely to the extent necessary to use the GreatPros Platform pursuant to this Agreement.
License to Company. Subject to the terms and conditions of this Agreement, Customer grants Company a royalty-free, worldwide, and revocable license in and to Data and Customer’s Intellectual Property Rights solely to the extent necessary for Company to provide Customer with the GreatPros Platform.
Suggestions. Customer hereby grants to Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the GreatPros Platform any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
Unless Customer notifies Company otherwise in writing, Customer hereby consents to Company’s inclusion of Customer’s name in a customer list and in press releases and such notification will only apply to materials that are not yet printed or available as of the date of the notification.
Representations and Warranties. Each Party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the GreatPros Platform.
Disclaimer. THE GREATPROS PLATFORM IS PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND SUITABILITY OF CUSTOMER SERVICES IS SOLELY WITH CUSTOMER. NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, WARRANTIES AGAINST INTERFERENCE WITH ENJOYMENT OF INFORMATION, AND WARRANTIES OF QUALITY AND ACCURACY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Voiding of Warranties and Indemnifications.
Any and all warranties and indemnifications will be void as to GreatPros Platform where the non-compliance is caused by or related to (a) the acts or omissions of non-Customer personnel or third parties; (b) misuse, theft, vandalism, fire, water or other peril; (c) any impermissible alterations or modifications made to any GreatPros Platform by the Customer, its employees, independent contractors, representatives or agents; or (d) use of the GreatPros Platform in violation of this Agreement.
By Customer. Customer shall and hereby does indemnify and agrees to pay, defend, and hold harmless Company and its Affiliates and each of their respective officers, directors, shareholders, employees and independent contractors and their successors and assigns for, from, and against any loss, liability, claim demand, cost, or expense (including attorneys’ fees) arising out of or pertaining in any manner to Customer’s use of the GreatPros Platform or otherwise arising out of: (a) the relationship between Customer and any of its employees or independent contractors; (b) Customer’s provision of Customer Services; (c) Customer infringing or misappropriating any Intellectual Property Rights; (d) Customer’s or its employees or independent contractors use of the GreatPros Platform in violation of this Agreement; and (e) suspension of any User.
By Company. Company shall and hereby does indemnify and agrees to pay, defend, and hold harmless Customer, its Affiliates, and their successors and permitted assigns for, from, and against any loss, liability, claim demand, cost, or expense (including attorneys’ fees) arising out of or pertaining in any manner to a third party claim that Company’s Intellectual Property Rights in and to the GreatPros Platform infringe or misappropriate any third party Intellectual Property Rights. Notwithstanding the foregoing and in addition to the events stated in Section 13, in no event will Company have any obligations or liability under this Section 14.2 arising from: (a) use of any GreatPros Platform in a modified form or in combination with materials not furnished by Company, and (b) any services performed by Customer in connection with Customer’s use of the GreatPros Platform, information or Data provided by Customer, or its Users.
Possible Infringement. If Company reasonably believes the GreatPros Platform infringes a third party’s Intellectual Property Rights, then Company will: (a) obtain the right for Customer, at Company’s expense, to continue using the GreatPros Platform; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the GreatPros Platform so that it no longer infringes. If Company does not believe the foregoing options are commercially reasonable, then Company may Suspend or terminate Customer’s use of impacted portions of the GreatPros Platform. If Company terminates the impacted portions of the GreatPros Platform, then Company will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of the GreatPros Platform.
General. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party has full control and authority over the defense, except that: (a) any settlement requiring the Party seeking indemnification to admit liability or to pay any money will require that Party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other Party may join in the defense with its own counsel at its own expense. THE INDEMNITIES, RIGHTS AND REMEDIES IN THIS SECTION 14 ARE THE ONLY REMEDIES UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Limitation of Liability. Customer acknowledges and agrees that, in light of the many potential tasks for which the GreatPros Platform may be used and the diverse environments in which the GreatPros Platform may be used, use of the GreatPros Platform remains the sole responsibility and liability of Customer. IN NO EVENT WILL Company BE LIABLE FOR ANY LOST PROFITS OR REVENUES, EQUIPMENT DOWN-TIME, LOSS OF DATA, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND EVEN IF Company HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Company DISCLAIMS ALL LIABILITY OF ANY KIND OF Company’S LICENSORS.
Limitation on Amount of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, Company’S LIABILITIES UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO Company IN THE SIX (6) MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE LIABILITY.
Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations or violations of a Party’s Intellectual Property Rights by the other Party.
Notices. All notices provided pursuant to this Agreement will be in writing and deemed effective upon delivery. Notices will be deemed to have been delivered if addressed to the Chief Executive Officer of recipient at the address set forth in the Order or received at an email address provided by the recipient on (a) the date of personal delivery or email transmission, (b) five days after deposit in the United States mail, first class, postage prepaid, certified and return receipt requested, or (c) one day after deposit with a reputable national overnight courier service. A Party may designate a different address or facsimile number for the delivery of notices upon ten (10) days’ prior written notice to the other Party.
Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, not to be unreasonably withheld, except (a) to an Affiliate, or (b) in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets not involving a direct competitor of the other Party. In the event of a permissible assignment under this Agreement, the assignee must agree in writing to be bound by the terms of this Agreement and the assigning Party must notify promptly the other Party of the assignment. Any other attempts to assign this Agreement are null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
Force Majeure. Neither Party will be liable for inadequate performance to the extent caused by a “Force Majeure Event” (defined below), provided that the affected Party resumes full performance as promptly as possible following the Force Majeure Event. “Force Majeure Event” means the existence of a condition that is beyond a Party’s reasonable control, for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action and Internet disturbance.
No Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of that provision on any other occasion.
Severability. In the event that any provision of this Agreement is deemed unlawful or otherwise unenforceable by any tribunal of competent jurisdiction, that provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Each and every provision or restriction set forth in this Agreement is independent and severable from the others, and no provision or restriction will be rendered unenforceable by virtue of the fact that, for any reason, any other provision or restriction may be unenforceable in whole or in part.
No Agency. The Parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
No Third-Party Beneficiaries. Except as expressly set forth in the indemnification provisions of Section 14 above, there are no third-party beneficiaries to this Agreement.
Equitable Relief. Nothing in this Agreement will limit either Party’s ability to seek equitable relief. Customer acknowledges and agrees that the breach or threatened breach of Sections 7, 8, 9 and 16.2 will cause immediate and irreparable harm to Company for which monetary damages would be an inadequate remedy and, in the event of such a breach or threatened breach, Company will have, in addition to any other rights it may have, the right to seek equitable relief, including injunctive relief, without an obligation to prove actual damages, post bond or other security.
Governing Law and Disputes. This Agreement, and any disputes arising out of or related to this Agreement, will be governed exclusively by the laws of the State of Arizona, without regard to conflicts of laws principles. Except for the rights granted in Section 16.8, any and all disputes of any kind or nature arising out of or related to this Agreement will be decided by arbitration conducted under the commercial arbitration rules of the American Arbitration Association. The arbitration will take place in Phoenix, Arizona. The Parties will act in good faith to select a single arbitrator. If the Parties do not agree on an arbitrator within twenty (20) days of a Party initiating arbitration, then the American Arbitration Association will select the arbitrator. The decision of the arbitrator will be final and binding, and not subject to appeal for any reason. The arbitrator will award attorneys’ fees, costs, and all costs and fees of the American Arbitration Association to the prevailing Party in the arbitration as determined by the arbitrator. The arbitration award or other orders can be confirmed and/or enforced through the courts in Maricopa County, Arizona. THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, AND WAIVE ALL OBJECTIONS TO FORUM IN, THE COURTS IN MARICOPA COUNTY, ARIZONA.
Waiver of Jury Trial. Each Party hereby waives any right to a jury trial in connection with any action or litigation arising out of or related to this Agreement.
Amendments; Interpretation. Any amendment to this Agreement must be in writing and expressly state that it is amending this Agreement. The titles of sections and subsections contained in this Agreement are for convenience only. Any and all uses of the word “including” in this Agreement mean “including without limitation.”
Survival. Sections 3.6, 4.1, 7, 8.1, 8.6, 9, 10, 12, 13, 14, 15, and 16 survive the expiration and termination of this Agreement.
Entire Agreement. This Agreement, including all Exhibits and all documents referenced herein and hereby incorporated by reference, is the Parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.
Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the Agreement will control.
Counterparts. The Parties may execute this Agreement in counterparts, including PDF or other electronic copies, each of which will be considered an original, and all of which together will constitute one and the same instrument.
EXHIBIT A - DEFINITIONS
“Affiliate” means any entity directly or indirectly controlling, controlled by or under common control with the subject entity. For purposes of this definition, the terms “controlling”, “controlled by” or “under common control with” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the subject entity, whether through the ownership of voting securities, by contract or otherwise, or the power to elect at least 50% of the directors, managers, general partner, or persons exercising similar authority with respect to the subject entity.
“Confidential Information” means information disclosed by a Party to the other Party under this Agreement that is marked as confidential or a reasonable person would consider confidential under the circumstances. Data is Customer’s Confidential Information.
“Customer Services” means all services provided by Customer arising out of, in connection with, or related to Customer’s use of the GreatPros Platform, including, but not limited to, finding customers, contacting or otherwise responding to such customers, identifying potential jobs, or performing any jobs or tasks on behalf of any other users of the GreatPros Platform.
“Emergency Security Issue” means a User’s use of the GreatPros Platform in a manner which could disrupt (i) the GreatPros Platform, (ii) other Users’ use of the GreatPros Platform, or (iii) the network or servers of Company or its licensors that are used to provide the GreatPros Platform; or (c) unauthorized third party access to the GreatPros Platform.
“High Risk Activities” means any uses where the failure of the GreatPros Platform could lead to death, personal injury, or environmental damage, including use in the operation of nuclear facilities, air traffic control, or life support systems
“Intellectual Property Rights” means current and future worldwide rights under patents and patent applications, and all patents issuing from the patent applications, together with any and all divisionals, continuations or continuations-in-part, substitutions, extensions, registrations, confirmations, reissues, re-examinations, and renewals, know-how, inventions, copyrights, trade secrets, trademarks, trade dress, moral rights, other similar proprietary rights and all foreign counterparts of the foregoing.
“Order” means either (1) the information and selections made by Customer on Company’s website or (2) document(s) entered into between Customer and Company, and any addendums thereto, either or both of which are incorporated into and made a part of this Agreement, setting forth the details of Customer’s order for the GreatPros Platform and that may contain the details of the following terms: (a) Fees; (b) number of Users; (c) Initial Term; and (d) any other additional terms governing the Order. The foregoing shall not be deemed final and an “Order” for purposes of this Agreement unless and until Company has indicated its acceptance as evidenced by issuing an Order confirmation.
“Third Party Request” means a request from a third party for records relating to a User’s use of the GreatPros Platform. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order or written consent from the Customer or User permitting the disclosure.