PLEASE READ THIS AGREEMENT CAREFULLY. BY CHECKING THE BOX BELOW AND/OR ACCESSING OR CONTINUING TO ACCESS THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Software as a Service Agreement (this “Agreement”) is entered into by and between Yazam Inc. d/b/a Empower, a Delaware corporation (“Empower” or “Company”), and You (“You”, “Customer”, “Service Provider” or “Subscriber”) and governs Empower’s provision and your use of the Empower Hardware (if applicable), Empower Software, Empower Platform and Empower Customer Support (each as defined below and collectively the “Services”). The “Effective Date” of this Agreement is the earliest of the of the date on which Customer clicks to accept this Agreement, or otherwise registers for, accesses or uses the Services. CUSTOMER UNDERSTANDS AND AGREES THAT EMPOWER MAY MODIFY THIS AGREEMENT FROM TIME TO TIME AS PERMITTED IN SECTION 8 (MODIFICATIONS) OF THIS AGREEMENT. BY CONTINUING TO USE THE SERVICES THEREAFTER, YOU CONSENT TO ANY AND ALL SUCH MODIFICATIONS.
1. DEFINITIONS
1.1“Empower Hardware” means the hardware systems or devices, including any mobile devices, provided to Customer in connection with this Agreement.
1.2“Empower Platform” means the proprietary Empower online dynamic booking network (or any successor network) consisting of any Empower websites, wireless platforms or applications owned or operated (in whole or in part) by Empower or its affiliates along with any third-party partner websites, platforms or services used or provided in connection with the Services.
1.3“Empower Software” means the object code version of Empower’s proprietary software provided to Customer, which may consist of one or more applications and may include desktop, mobile or other software, and any updates thereto as may be provided by Empower from time to time.
1.4“Empower Customer Support” means any technical or other support services provided to Customer as part of the Services purchased by Customer.
2. THE SERVICES; LICENSE; SUPPORT; HARDWARE; ACCEPTABLE USE
2.1.Nature of the Services. The Services constitute a marketplace where persons seeking certain services or assistance (“Consumers”) may be matched based on a number of factors or preferences with persons offering to provide such services or assistance (“Service Providers”, “Subscribers” or “Customers”). The services provided by Service Providers to Consumers are referred to as “Consumer Services”. Subject to the terms and conditions of this Agreement, upon your request, Empower will, on your behalf, offer your Consumer Services to Consumers on the Empower Platform and will allow Consumers to book, subject to your affirmative acceptance of each booking request, your Consumer Services. Any decision by You to offer, book, provide or charge a Consumer for your Consumer Services, and any decision by such Consumer to request, reserve, accept or pay for your Consumer Services is a decision made by You and such Consumer in each party’s sole discretion. Each agreement by a Service Provider to provide and by a Consumer to receive Consumer Services is a separate agreement between such parties. Empower does not provide Consumer Services and has no control over the Consumer Services provided by You, or other Service Providers, to any Consumer. You retain the sole right to determine when, where, how, how often and for how long You wish to provide Consumer Services through the Empower Platform. You have the option to accept or decline any Consumer’s request made through the Empower Platform, to cancel an accepted request and to terminate early the provision of your Consumer Services, subject to Empower’s community cancellation policies. In requesting Empower, on your behalf, to make your Consumer Services available on the Empower Platform, You authorize Empower to attempt to match You with Consumers based on certain preferences or considerations. You further authorize Empower to cancel an existing match if necessary and attempt to rematch You as necessary based on the same or different preferences or considerations. Factors considered in matching You and other Service Providers with Consumers may include, but are not limited to, the parties’ respective locations, the type of Consumer Services being requested, the estimated duration of the Consumer Services, the various prices being charged by Service Providers for Consumer Services, other preferences indicated by Service Providers and Consumers and Empower Platform efficiency.
2.2 License. Subject to the terms and conditions of this Agreement, Empower grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Empower Platform during the Term (as defined below) of this Agreement. Customer may only create one user account and may not allow other persons to use or share Customer’s account. Empower reserves the right to deactivate any additional or duplicate accounts created by Customer or used in connection or in coordination with Customer’s account.
2.3.Support. Customer shall have access to Empower Customer Support as of the Effective Date. Company will be reasonably available to provide Customer problem resolution and technical support in connection with the Services during the Term. Subscriber may request Empower Customer Support via email or phone.
2.4.Empower Hardware. All title to Empower Hardware shall remain with Empower, and Customer shall not sell, transfer, encumber or permit any third party to use any Empower Hardware. Customer’s right to use any Empower Hardware shall terminate upon termination of this Agreement and is subject to the terms and conditions of any supplemental Empower Hardware Agreement entered into by the parties.
2.5.Acceptable Use. In connection with Customer’s purchase and use of the Services, Customer agrees not to and agrees that it will not permit, cause or assist any third party to: (i) impersonate any person or entity; (ii) interfere with or disrupt the Empower Platform; (iii) share or disseminate any performance information or analysis regarding the Empower Platform; (iv) use the Services in violation of any applicable law, rule, or regulation or for any purpose not permitted in this Agreement; (v) post information or interact on the Empower Platform in a manner which is fraudulent, libelous, abusive, obscene, profane, sexually oriented, harassing, or illegal; (vi) use the Services in any way that infringes upon any third party’s rights; (vii) post, email or otherwise transmit any malicious code, files or programs or attempt to intercept or expropriate any system, data or personal information; (viii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through or using the Services; (ix) frame or mirror any part of the Services or use meta tags or code or other devices containing any reference to Empower in order to direct any person to any other website, application, or platform; (x) copy, modify, adapt, translate, reverse engineer, decipher, decompile, disassemble or otherwise attempt to discern the source code or interface protocols of any portion of the Empower Software or Empower Platform; (xi) rent, lease, lend, sell, distribute, redistribute, license, sublicense or otherwise provide a third party with use or access to the Services or any portion thereof; (xii) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services; (xiii) provide any other Customer’s or Consumer’s information to any other party, store such information outside of the Empower Platform or use such information for any purpose other than in connection with Customer’s provision of Customer’s Consumer Services; (xiv) permit an unauthorized third party to accompany Customer while providing Consumer Services; (xv) provide Consumer Services while under the influence of alcohol or drugs, or take any action that harms or threatens the health or safety of others; (xvi) represent that Customer works for or provides services on behalf of Empower; (xvii) create or use any materials that use Company trademarks, logos, service marks or any other Company Intellectual Property (as defined below), without the prior written consent of Empower, or in any manner that could reasonably be interpreted as indicating or suggesting that Customer is providing Consumer Services or any other services on behalf of Empower; (xviii) remove, modify or obscure any proprietary markings or restrictive legends used or provided by Empower, its affiliates or any third-party in connection with the Services; (xix) take any action that imposes or that Empower reasonably believes may impose a disproportionately large load on the Empower Platform; or (xx) attempt to interfere with or disrupt in any way the performance of the Empower Platform. If Company determines that any improper use of the Services has taken, is taking, or will likely take place at any time by a Subscriber, in addition to any other rights or remedies that Company may have under this Agreement or applicable law, Company may terminate and/or suspend such Subscriber’s access to the Services immediately without prior notice.
3. CUSTOMER REPRESENTATIONS AND WARRANTIES
By entering into this Agreement, Customer represents and warrants that: (i) Customer has the legal authority to enter into this Agreement, perform Customer’s obligations hereunder and consummate the transactions contemplated in connection with Customer’s provision of the Consumer Services; (ii) Customer owns, or has the legal right to operate, the equipment Customer uses to provide Consumer Services, and all such equipment is in good operating condition and meets the industry safety standards and all applicable statutory and state requirements for equipment of its kind, and any and all applicable safety recalls have been remedied per manufacturer instructions; (iii) all information provided by Customer to Empower is true, accurate, current and complete; and (iv) Customer understands that Customer has complete discretion to provide Consumer Services provided on the Empower Platform through other platforms or otherwise engage in other business or employment activities.
4. PAYMENTS AND CHARGES
4.1.Subscription Fee. In exchange for the Services provided by Empower to Customer, Customer agrees to pay Empower a monthly subscription fee (the “Subscription Fee”). THE AMOUNT OF THE SUBSCRIPTION FEE SHALL BE DISPLAYED IN EITHER THE MENU OR USER PROFILE WITHIN THE EMPOWER MOBILE APPLICATION USED BY CUSTOMER. Customer shall not be charged a Subscription Fee unless and until Customer explicitly consents to pay the initial Subscription Fee, which consent shall be requested and must be provided via email, SMS or the Empower Software following the completion of the onboarding process. The Subscription Fee is due and payable in advance of the provision of the Services and is non-refundable; provided, however, each month Empower may waive the Subscription Fee until You first charge a Consumer for Consumer Services or charge a Consumer a cancellation fee during that month, and Empower may, in its sole and absolute discretion, waive the Subscription Fee for a specified number of days as part of a promotional discount (“Free Trial”). Should Empower provide Customer with a Free Trial, subject to the terms and conditions of this Agreement, Customer will be provided with access to the Services and will not be required to consent to pay the initial Subscription Fee until the end of the Free Trial.
(i) Partial months. The Subscription Fee shall be prorated for partial months. For example, if the monthly Subscription Fee for March is $10 and Customer wishes to begin receiving Services on March 11th, Customer’s invoice for the month of March would be (21/31)*($10) = $6.77.
(ii) Price Increases. THE AMOUNT OF THE SUBSCRIPTION FEE IS SUBJECT TO INCREASE UPON 5 DAYS’ NOTICE. Notice will be deemed received upon Empower providing a push notification, email or SMS to Subscriber specifying the amount and effective date of the new Subscription Fee. Subscriber must expressly accept any increase to the Subscription Fee via email, SMS or through the Empower Software in order to continue using the Services once the price level has increased. If Subscriber fails to agree to accept the increased price level prior to such price increase taking effect, Subscriber’s access to the Services will be restricted and Subscriber will not be further charged. If Subscriber later agrees to accept the increased price level, Subscriber shall be charged the prorated amount of the increased Subscription Fee. For example, if Subscriber’s monthly Subscription Fee in March is $10 and Empower notifies Subscriber on March 20th that the Subscription Fee will be increased to $20 effective April 1st and Subscriber fails to expressly accept the price increase prior to April 1st, Subscriber’s account will be restricted and Subscriber will be notified that Subscriber will be unable to continue to use core features of the Services and that Subscriber will not be further charged unless and until Subscriber agrees to the price increase. If Subscriber later agrees on, for example, April 16th, to the increased Subscription Fee, subject to the terms and conditions of this Agreement, the restrictions on Subscriber’s account will be lifted on April 16th and Subscriber will immediately be charged ($20) * (15/30) = $10 for the Services for the period April 16, 2020 – April 30, 2020.
(iii) Auto Debit through Stripe; Late Payment Fees. CUSTOMER AUTHORIZES EMPOWER TO AUTOMATICALLY AND IMMEDIATELY TRANSFER ANY AMOUNTS DUE AND PAYABLE FROM CUSTOMER’S CONNECTED STRIPE ACCOUNT (“CUSTOMER’S STRIPE ACCOUNT”) TO EMPOWER’S PLATFORM STRIPE ACCOUNT (“EMPOWER’S STRIPE ACCOUNT”). IF CUSTOMER’S STRIPE ACCOUNT LACKS SUFFICIENT FUNDS TO TRANSFER PAYMENT IN FULL, EMPOWER MAY IN ITS SOLE DISCRETION EITHER (A) TRANSFER THE BALANCE IN CUSTOMER’S STRIPE ACCOUNT TO EMPOWER’S STRIPE ACCOUNT, ALLOW CUSTOMER CONTINUED ACCESS TO THE SERVICES, TRANSFER FUNDS FROM CUSTOMER’S STRIPE ACCOUNT TO EMPOWER’S STRIPE ACCOUNT AS CUSTOMER’S FUNDS BECOME AVAILABLE AND ASSESS A LATE PAYMENT FEE EQUAL TO THE LESSER OF ONE AND ONE HALF PERCENT (1.5%) PER MONTH OR THE HIGHEST RATE PERMITTED BY LAW, COMPUTED AND COMPOUNDED DAILY FROM THE DATE DUE UNTIL THE DATE PAID; OR (B) NOTIFY CUSTOMER THAT CUSTOMER’S STRIPE ACCOUNT HAS INSUFFICIENT FUNDS TO PAY THE MONTHLY SUBSCRIPTION FEE DUE AND PAYABLE AND RESTRICT CUSTOMER’S ACCESS TO THE SERVICES UNTIL THE SUBSCRIPTION FEE IS PAID IN FULL.
4.2.Onboarding and Administrative Fees. An “Onboarding Fee” for the background check conducted by Checkr, Empower’s third-party background check provider, shall be due and payable prior to completion of the background check step of the onboarding process. An annual “Administrative Fee” shall be due and payable on the anniversary of the Effective Date and every year thereafter to cover Empower’s cost to conduct an annual background check of Customer. Should Empower not be charged for a background check for Customer, the Onboarding Fee and/or Administrative Fee will be refunded to Customer. Empower may, in its sole and absolute discretion, elect to waive the Onboarding Fee and any Administrative Fee in connection with promotional discounts. If the Onboarding Fee or an Administrative Fee will not be waived, the amount of the Onboarding Fee or Administrative Fee will be disclosed to Customer and Customer may elect not to pay such fee and not receive the Services.
4.3.Customer Promotions. Empower may, at Empower’s sole and absolute discretion, offer Subscribers or potential Subscribers promotional discounts.
4.4.Consumer Payments. Empower does not collect any payments owed by Consumers or third parties to Customer.
(i) Off-platform payments: Empower does not prohibit tipping or additional payments from being made to Services Providers outside of the Empower Platform. Consumers who wish to make such additional payments or tip off platform and Service Providers who wish to accept such additional payments or tips do so at their own risk.
(ii) Cancellation fees. The following amounts shall be owed to a Service Provider by a Consumer in connection with an undisputed cancellation of Consumer Service after a Service Provider has agreed to provide such Consumer Services to the Consumer: (a) $0 if the Consumer cancels Consumer’s reservation within three (3) minutes of Service Provider’s acceptance; (b) $2 if the Consumer cancels Consumer’s reservation more than three (3) minutes but no more than six (6) minutes after Service Provider’s acceptance; (c) $4 if the Consumer cancels Consumer’s reservation more than six (6) minutes after Service Provider’s acceptance. Payment of cancellation fees by Consumers may be subject to delay or may not be made in situations where Consumer disputes the fee or cancelled the reservation due to the alleged acts or omissions of Service Provider.
(iii) Consumer promotions. Empower may, at its discretion, from time to time, offer promotional or other discounts to Consumers. Such discounts are not intended to impact what Service Providers charge Consumers for Consumer Services and do not impact amounts owed by Consumers to Service Providers. Empower reserves the right to withhold credits or benefits obtained through a promotion if Empower determines the redemption of such credit or benefit was in error, fraudulent, illegal or in violation of the applicable promotional terms. You understand and agree that Empower’s efforts to generate additional business for You through promotional activity in no way constitute payment by Empower to You.
(iv) Refunds. Customer authorizes Empower to refund payments to Consumers or third parties on Customer’s behalf if Empower determines that the Consumer Services to which such payments relate were not provided in full, the Customer violated the terms of this Agreement in connection with such Consumer Services, or such payment was otherwise associated with fraudulent or apparently fraudulent behavior of the Customer or such Consumers or third parties. IN SUCH EVENT, CUSTOMER AUTHORIZES EMPOWER TO TRANSFER THE AMOUNT OF ANY SUCH REFUNDS FROM CUSTOMER’S STRIPE ACCOUNT TO SUCH CONSUMERS OR THIRD PARTIES. IF CUSTOMER’S STRIPE ACCOUNT LACKS SUFFICIENT FUNDS TO TRANSFER PAYMENT IN FULL, EMPOWER MAY TAKE THE SAME ACTIONS DESCRIBED IN SECTION 4.1(iii) ABOVE.
4.5.Payment Processing. Empower is not a payment processor. Payment processing services for the Empower Platform are currently provided by Stripe and subject to the Stripe Connected Account Agreement (available at https://stripe.com/us/connect-account/legal), which includes the Stripe Services Agreement (available at https://stripe.com/us/legal) (collectively, the “Stripe Terms“). By using Stripe to receive payments from Consumers, Customer agrees to be bound by the Stripe Terms, which may be modified from time to time. As a condition of Empower enabling payment processing services through Stripe, Customer authorizes Empower to obtain all necessary access and perform all necessary activity on Customer’s Stripe Account and charge Customer a reasonable service fee in exchange for assisting Customer in this regard (“Service Fee”). Customer further agrees to provide accurate and complete information about Customer and Customer’s business and authorizes Empower to share it and transaction information with Stripe for the purpose of facilitating the payment processing services provided by Stripe. Empower reserves the right to switch payment processing vendors or use alternate or backup vendors at Empower’s sole discretion without prior notice to Customer. Customer agrees to bear all fees that payment processing vendors charge with respect to Customer’s use of the Empower Platform (“Payment Processing Fees”) and all Service Fees and authorizes Empower to transfer funds from Customers’ Stripe Account or other payment method on file to pay for any and all Payment Processing Fees and Service Fees. Empower may, in its sole and absolute discretion, elect to waive all or a portion of such fees, but Customer acknowledges that Empower’s decision to do so in no way relieves Customer of responsibility for any unwaived portion of such fees. In order to minimize payment processing fees charged to Customer by Stripe, Empower may set the default payout period for payments to Customer’s bank or debit account at once per week. If Customer wishes to change the default payout period, Customer can do so by contacting Empower Customer Support.
4.6 Taxes. Empower is not responsible for deducting or withholding any taxes or other amounts that may be owed by Customer from payments made by Consumers to Customer for Consumer Services. Additionally, Customer acknowledges and agrees that all applicable taxes and government permit or license fees, and all customs and similar fees levied upon the delivery of the Services and the use thereof or otherwise associated with the Empower Platform or any other products or services sold, leased or provided by Empower hereunder, with the exception of Empower’s income taxes, are the sole responsibility of Customer (“Customer Taxes”). The Subscription Fee is exclusive of any VAT or other sales or use taxes to which the Services may be subject. Customer authorizes Empower to collect and remit any Customer Taxes to the applicable governmental entities, it being understood that Empower is under no obligation to do so, and Customer hereby agrees to indemnify and hold Empower harmless from all Customer Taxes, as well as the collection or withholding thereof, including penalties and interest, and any costs associated with the collection of any of the foregoing items.
5. TERM; AUTO-RENEWAL; TERMINATION
5.1 Term. The initial term of this Agreement shall be one (1) month (the “Term”).
5.2 Auto-renewal. Except as otherwise provided in connection with a Subscription Fee increase, the Term shall automatically renew for one (1) month (a “Renewal Term”) unless and until a party provides notice to the other party of its decision to terminate this Agreement.
5.3 Termination by Company. Without limiting any other remedies, Company may, with or without notice, terminate this Agreement and refuse to provide Services to Customer if Company reasonably believes that Customer has breached or intends to breach this Agreement.
5.4 Cancellation by Customer. Customer may terminate this Agreement without notice at any time; provided, however, Customer is not entitled to receive a refund of any amounts paid to Empower unless Customer provides notice of its decision to terminate and the decision to terminate is due to Empower’s material breach of this Agreement. If Customer provides notice to Empower of its decision to terminate for Empower’s material breach, Customer’s exclusive remedy shall be a refund of any portion of the Subscription Fee prepaid by Customer for the terminated period of the then-current Term.
5.5 Effect of Termination or Expiration. In the event of any termination or expiration of this Agreement: (a) all rights granted hereunder to Subscriber will immediately cease and Subscriber will immediately cease all access to the Services; and (b) Subscriber shall return any Empower Hardware (if applicable) according to Empower’s reasonable instructions. The terms of this Agreement which by their usage and context are intended to survive this Agreement, together with any outstanding payment amounts, shall survive termination or expiration of this Agreement.
6. NOTIFICATIONS AND COMMUNICATIONS FROM EMPOWER; DATA
6.1 Notifications and Communications from Empower. By entering into this Agreement, Customer agrees to receive communications from Empower and its affiliates via e-mail, SMS, phone, and push notification (collectively “Empower Communications”). Customer agrees that Empower Communications may be generated by automatic telephone dialing systems. Empower Communications may include, but are not limited to, operational communications concerning Customer’s account or use of the Services, updates concerning new and existing features of the Services, communications concerning promotions run by Empower or Empower’s third-party partners or news concerning Empower and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to SMS messages sent by Empower. If You wish to opt out of promotional emails, You can unsubscribe from them by following the unsubscribe directions in the promotional email. If You wish to opt out of promotional calls or texts, You may text “Stop” from the mobile device receiving messages. You acknowledge and agree that opting out of all notifications, calls or SMS messages from Empower or from Consumers may impact or completely restrict your ability to use the Services.
6.2 Data Plan. Customer’s use of the Services may consume large amounts of data. Empower recommends that Customers obtain a plan with their carrier that includes unlimited data or a high data usage limit. Empower is not responsible for any overage charges or any other fees or costs associated with Customer’s data plan.
7. FEEDBACK; USAGE INFORMATION; BACKGROUND CHECKS
7.1 Feedback; Usage Information. Customer consents to Empower using any information that Customer actively or passively provides, publishes or posts to the Empower Platform or through the use of the Services, including profile information, comments, questions, data, ideas, or descriptions of processes (“Feedback”) to Empower. Customer agrees that Empower may in connection with any of its products or services freely use, copy, disclose, license, or distribute Feedback in any manner without any obligation, royalty or restriction. Customer further agrees that Empower may collect usage and other technical data regarding Customer’s use of the Empower Platform, including without limitation Customer’s IP address and geolocation information, hardware and device information (e.g. carrier, operating system and device manufacturer) and records regarding features of the Empower Platform used and session length (“Usage Information”) and may use Usage Information for any lawful business purpose. Company may use third party platforms and tools in order to assist with the collection of Usage Information. Company shall own all rights, title and interest in Feedback and Usage Information. Empower’s collection and use of Feedback and Usage Information is subject to Empower’s Privacy Policy which can be accessed at https://rideempower.com/privacy/.
7.2 Background Check. Customer agrees that Empower may obtain information about Customer, including Customer’s criminal and driving records, and Customer further agrees to provide any necessary authorizations to facilitate Empower’s access to such records during the Term of this Agreement.
8. MODIFICATIONS TO THIS AGREEMENT
Empower reserves the right to modify the terms and conditions of this Agreement and will provide Customer with notice of such modifications via email, text, SMS or other reasonable means as determined by Empower. Such modifications shall become effective upon the start of the next Renewal Term. Continued use of the Services after the effective date of the modification shall constitute Customer’s acceptance of the modified terms. If Customer does not agree to the modifications, Customer’s exclusive remedy is to provide Empower with notice of termination of this Agreement (which notice must be received prior to the effective date of the modification specified by Empower) to receive a refund from Empower of any portion of the Subscription Fee prepaid by Customer for the terminated period of the then-current Term. Notwithstanding the foregoing, as provided above, any increase in Customer’s Subscription Fee shall require Customer’s express acceptance.
9. ADDITIONAL SERVICES
9.1 Additional Services. In addition to providing the Services, Empower may assist Customers in purchasing or receiving services from third parties (“Additional Services”). For example, Empower pay partner with a tax reporting provider to offer tax reporting services or other small business software to Customers, potentially at discounted rates. Customer acknowledges that Additional Services are subject to the terms and pricing of the third-party providers of such services. If Customer chooses to purchase Additional Services through the Empower Platform, Customer authorizes Empower to facilitate the payment by Customer to the third-party provider of any amounts owed through Customer’s Stripe Account or other payment method on file. Customer acknowledges that Company is not a reseller of Additional Services and is not responsible for the provision or quality of Additional Services.
9.2 No Liability for Additional Services. Customer agrees that Empower shall have absolutely no liability in connection with Customer’s purchase of or the provision of Additional Services, or the acts or omissions of any third-party in connection with Additional Services. Empower makes no warranties or representations about Additional Services. Additional Services may not be investigated, monitored, or checked for accuracy, appropriateness or completeness by Empower, and Customer agrees that Empower is not responsible for any Additional Services accessed through the Empower Platform or in connection with the Services.
10. INTELLECTUAL PROPERTY
10.1 Company Intellectual Property Rights. Empower is the owner of the Empower Platform, Empower Software, and Empower Hardware, and owns all right, title, and interest thereto, including all source code, object code, operating instructions, and interfaces developed for or relating thereto, together with all modifications, enhancements, upgrades, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, and all copyrights, patents, trade secrets, trademarks, and other intellectual property and proprietary rights relating thereto (the “Company Intellectual Property”). Subscriber has no rights with respect to the Company Intellectual Property other than those expressly granted under this Agreement.
10.2 Infringement Claims. In the event that Company reasonably determines that the Services are likely to be the subject of a claim of infringement or misappropriation of third-party rights, Company shall have the right (but not the obligation), at its option, to: (i) procure for Subscriber the right to continue to use the Services for the remainder of the then-current Term, (ii) replace the infringing components of the Services with other non-infringing components with the same or similar functionality that are reasonably acceptable to Subscriber, or (iii) suitably modify the Services so that they are non-infringing and reasonably acceptable to Subscriber. If none of the foregoing options are available to Company on commercially reasonable terms, Company may, at its option, terminate this Agreement and Subscriber shall be entitled to a refund of any portion of the Subscription Fee prepaid by Subscriber for the terminated period of the then-current Term. This Section 10.2, together with the indemnity provided under Section 13.1, provides Subscriber’s sole and exclusive remedy, and Company’s sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.
11. DISCLAIMERS
11.1.No Warranties. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY MAKES NO WARRANTY IN CONNECTION WITH THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, USAGE OF TRADE, OR AVAILABILITY. EMPOWER DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OR CUSTOMER’S USE THEREOF WILL BE ERROR-FREE, UNINTERRUPTED, RELIABLE, OR SECURE. EMPOWER DOES NOT WARRANT OR GUARANTE PAYMENT FOR THE CONSUMER SERVICES YOU PROVIDE. EMPOWER SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET, CELLULAR SERVICE OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF EMPOWER. TO THE EXTENT THAT COMPANY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THE LAW.
11.2.Insurance. EMPOWER IS NOT RESPONSIBLE FOR AND DOES NOT PROCURE INSURANCE ON BEHALF OF CUSTOMERS OR CONSUMERS. EMPOWER IS NOT RESPONSIBLE AND DOES NOT HAVE A POLICY OF INSURANCE THAT COVERS THE PERSONAL BELONGINGS OR EQUIPMENT, INCLUDING THE MOTOR VEHICLES, OF CUSTOMERS OR CONSUMERS.
11.3.Consumers. Empower does not verify the identities of consumers or their ability to pay for Customer’s Consumer Services.
11.4.Unauthorized Use of Your Account. Customer is responsible for the use of Customer’s account. Empower is not responsible for monitoring unauthorized usage. Should Customer suspect that an unauthorized party may be using Customer’s account, or any other breach of security, Customer agrees to notify Empower immediately.
11.5Use of Customer’s Personal Information. It is possible for others to obtain information about You that You provide, publish, post or send to other users to or through the Services (including any profile information that You provide), and to use such information to harass or harm You. Regardless of whether use of the Services requires and is conditioned on your provision, publication, posting or sending of such information, Empower is not responsible for the use by others of such information and You agree by using the Services to release the Company from any and all liability, regardless of the form of action, for the acts or omissions of others (including unauthorized users, or hackers).
11.6Location Data. Location data provided by or through the Services is for basic location and informational purposes only and is not intended to be relied upon in emergency situations. Empower does not guarantee the accuracy, availability, timeliness, or completeness of location data tracked or displayed in connection with the Services.
12. LIMITATION OF LIABILITY
12.1.No Liability for Indirect Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE OR SPECIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUE, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL, LOSS OF USE OF PROPERTY, LOSS OF DATA OR COST OF SUBSTITUTE PERFORMANCE) WITH RESPECT TO ANY CLAIMS BASED ON ANY THEORY OF LIABILITY REGARDLESS OF THE FORESEEABILITY OF SUCH CLAIMS OR DAMAGES OR WHETHER SUCH CLAIMS OR DAMAGES WERE CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OR OMISSION OF A PARTY ARISING FROM OR RELATED TO THIS AGREEMENT. A party’s out-of-pocket costs, including but not limited to attorney’s fees, for damages of the kinds specified in the preceding sentence are indirect damages to such party. Each party releases the other party and its affiliates, as well as their respective officers, directors, managers, employees and agents from such claim(s).
12.2.Exclusions. Company shall not be liable for any damages arising out of or relating to (a) interoperability, interaction or interconnection problems with applications, hardware, third party services, or networks not provided by Company; (b) interruptions of the Services or lost or altered messages or transmissions; or (c) unauthorized access to, theft, alteration, loss, or destruction of Customer’s applications, data, information, hardware or equipment.
12.3.Third Parties. Company shall not be liable for the unauthorized actions of any third party, including, but not limited to, third party access to, or alteration, theft or destruction of Customer’s data or information.
12.4.Company Liability Limits. In no event will Empower’s liability arising from or related to this Agreement exceed the amount paid by Subscriber to Empower under this Agreement during the one (1) month prior to the date of the event(s) giving rise to the initial claim for which damages are attempting to be recovered. All claims, other than claims for amounts past-due, arising under or in any way related to this Agreement, must be brought within one (1) year of the date that the party bringing such claim knew or should have known about the facts giving rise to such claim.
12.5.Consideration. The parties acknowledge that these limitations of liability are part of the consideration of this Agreement and were specifically included in the calculation and establishment of the price paid by Customer for the Services, which, but for these limitations of liability, would be higher.
13. INDEMNIFICATION
13.1.Indemnification by Company. Company will indemnify, defend, and hold harmless Customer from and against any suit, proceeding or other claim brought or threatened by an entity not a party to this Agreement that arises out of any actual, alleged, or contributory patent, copyright, or trademark infringement or violation of other intellectual or proprietary rights or license related to the manufacture, delivery, sale or use of the Services provided under this Agreement; provided, however, that this Section 13.1 shall not apply if the alleged infringement or violation arises from (i) modification of the Services by a party other than Company; (ii) use of a superseded or altered version of the Empower Software or Empower Hardware, if such infringement or violation would have been avoided by the use of updated Empower Software or Empower Hardware, and if such updated Empower Software or Empower Hardware had been made available to Customer prior to the claim of infringement having arisen; (iii) use of the Services in a manner for which they were not authorized by this Agreement; or (iv) use of the Services in combination with unauthorized modules, apparatuses, hardware, software, or other services (any of the foregoing circumstances under clauses (i) – (iv), a “Customer Indemnity Responsibility”).
13.2.Indemnification by Customer. Customer will defend, indemnify and hold harmless Company, its employees, directors, officers and agents from and against any suit, proceeding or other claim brought or threatened by an entity not a party to this Agreement that arises out of: (a) property damage, or personal injury (including death) arising while Customer was using the Services; (b) Customer’s breach of any provision, warranty or representation in this Agreement; (c) any unlawful act perpetrated, facilitated or encouraged by Customer; (d) any claim that any materials that Customer submits to or transmits through the Services infringes or otherwise violates the intellectual property rights or any other rights of any third party; or (e) a Customer Indemnity Responsibility. Customer’s indemnification obligations shall be applicable without regard to the acts or omissions of any third party or indemnified party, including any contributory negligence of any third party or indemnified party.
13.3.Procedure. If a claim is made against a party, the party in receipt of this claim (“Indemnified Party”) will notify the other party (“Indemnifying Party”) in writing no later than sixty (60) days after learning of the claim. If the Indemnifying Party has properly assumed defense of the claim and proceeds to defend the claim in good faith, the Indemnified Party may not settle or compromise the claim without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld; provided, however, if the Indemnifying Party’s insurer has assumed the defense of the claim and proceeds to defend the claim in good faith, such insurer may settle the claim or part of the claim over which the Indemnifying Party’s insurer has assumed the defense without the Indemnifying Party’s consent. The Indemnified Party will provide assistance, information, and authority reasonably necessary to assist the Indemnifying Party. Failure of the Indemnified Party to provide notification of a claim will not relieve the Indemnifying Party of its obligations under this Agreement expect to the extent the delay prejudices the Indemnifying Party.
14. MISCELLANEOUS
14.1 Notices. All notices, requests, demands and other communications required or permitted to be given under this Agreement may be sent electronically and will be deemed given upon transmission if sent electronically.
14.2 Assignment. Subscriber may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of Company. Any assignment or other transfer in violation of this Section will be null and void. Company may assign or transfer this Agreement without the consent of Customer. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
14.3 Governing Law; Venue. This Agreement and the Parties obligations hereunder are governed by the laws of the Commonwealth of Virginia (without regard to conflicts of laws principles thereof). For purposes of litigating any dispute that arises directly or indirectly in connection with this Agreement, the Parties hereby submit to and consent to the exclusive jurisdiction of the Commonwealth of Virginia and agree that such litigation shall be conducted in the courts of Fairfax County, Virginia, or the federal courts of the Eastern District of Virginia.
14.4 Waiver. No provision of this Agreement may be modified or waived except in a writing signed by the party against whom enforcement is sought. No waiver by Company of any provision or breach of this Agreement will be a waiver of any other provision or any preceding or succeeding breach. No waiver by Company of any right under this Agreement will be construed as a waiver of any other right. Company is not required to give notice to enforce strict adherence to all terms of this Agreement.
14.5 Severability. Should any provision in this Agreement be held to be unenforceable in any respect, the other provisions in this Agreement will otherwise remain in effect to the maximum extent permitted by law. If any provision in this Agreement is held to be excessively broad as to duration, geographical scope, activity or subject, such provision will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law.
14.6 Force Majeure. Empower shall not be liable to Customer in any way whatsoever for any failure or delay in performance of any of its obligations under this Agreement arising out of any event or circumstance beyond the reasonable control of Empower.
14.7 Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto.
