TERMS AND CONDITIONS

These Terms and Conditions (“Terms”, and collectively with the Order Form, the “Agreement”) are made between Allwhere, Inc. (“Supplier”) and the customer identified on the Order Form (“Company”).   The provisions of this Agreement will apply to the Services provided to Company under this Agreement and shall govern all Order Forms entered into between Supplier and Company.

1. DEFINED TERMS.

1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party.  For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2 “Authorized Parties” means Company’s and its Affiliates’ designated employees and third party contractors or providers.

1.3 “Company Data” means data, information submitted by or on behalf of Company or Authorized Parties in connection with the Services, or otherwise arising from or accessible in connection with their use of the Services, including any personally identifiable information or other information associated with or that otherwise could be used to potentially identify an individual.

1.4 “Documentation” means Supplier’s user guides or other documentation for the Services which describes the then-current functions and features of the Services.  

1.5 “Intellectual Property Rights” means any and all intellectual property rights and proprietary rights throughout the world, including copyrights, trademarks, trade secrets, patents and other comparable rights issued, honored or enforceable under any applicable laws, and all moral rights related thereto, and any applications or registrations in connection with the foregoing rights.

1.6 “Law” means any local, state, national and/or foreign law, treaties, rules, and/or regulations.

1.7 “Order Form” means the separate ordering document under which Company orders Procurement Services.

1.8 “Procurement Services”  means the Company’s services of assisting Company in procuring third-party goods selected by Company  and reselling them to Company, as described in an Order Form.

1.9 “Platform Services” means a Supplier platform as described in an Order Form and/or the Documentation relating thereto, including the hosting, maintenance, support relating thereto, but excluding the Procurement Services.  

1.10 “Services” means the Procurement Services and the Platform Services.

1.11 “Term” has the meaning set forth in Section 9.1.

1.12 “Third Party Goods” means any third party products, goods or services that Supplier may resell to Company through the use of the Platform Services or Procurement Services.

2. SERVICES.

2.1 Provision of Platform Services. Supplier will make the Platform Services available in accordance with the Documentation to Company and its Authorized Parties during the Term.  Company may enable access of the Platform Services for use by it and the Authorized Parties for the business purposes of Company and its Affiliates and for other purposes contemplated under the Documentation.  Company will be responsible for the accuracy and quality of Company Data it provides hereunder, and Company will take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Supplier promptly of any such unauthorized access or use of which it is aware.

2.2 Provision of Procurement Services & Sale of Third Party Goods. Supplier shall use commercially reasonable efforts to perform the Procurement Services, as set forth in an Order Form, which may include Supplier’s reselling of Third Party Goods to Company.   Supplier shall use good faith efforts to address any changes that Company may request in connection with the Procurement Services and, as appropriate and as may be agreed upon by the parties, the parties may enter into a new or amended Order Form in connection therewith. Company acknowledges that Supplier is not the manufacturer of any Third Party Goods, and Supplier is not responsible for any maintenance, warranties, or support services in connection therewith.  To the extent permitted by the applicable manufacturer, Supplier will pass along any transferable warranties associated with any Third Party Goods purchased by Company from Supplier.

2.3 Feedback. Company hereby grants to Supplier a non-exclusive, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use and otherwise exploit any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services.  Supplier will not identify Company as the source of any such feedback.

3. FEES.

3.1 General.  Company shall pay Supplier the fees for the Services set forth in the applicable Order Form.  Non-payment or late payment of undisputed fees is a material breach of this Agreement.

3.2 Invoicing and Payment.  Unless otherwise specified in the applicable Order Form, (i) all amounts payable will be quoted and payable in United States Dollars, (ii) fees for Platform Services will be invoiced and payable as provided in the applicable Order Form, (iii) fees for Procurement Services will be invoiced and payable as provided in the applicable Order Form, and (iv) invoiced amounts not disputed in good faith will be due and payable thirty (30) days after receipt of the invoice.  

3.3 Taxes.  Unless otherwise stated, Supplier's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”).  Supplier will separately invoice any such Taxes at the appropriate amounts and will be responsible for remitting them to the relevant tax authorities in a timely fashion.  Company will bear all Taxes properly invoiced by Supplier unless Company provides Supplier with a valid tax exemption certificate authorized by the appropriate taxing authority.  Supplier will be solely responsible for taxes assessable against it based on its income, property or employees.

3.4 Shipping Fees. Unless otherwise stated, Supplier’s fees for the Procurement Services do not include any shipping costs or fees of any nature (collectively, “Shipping Costs”).  Supplier will separately invoice any such Shipping Costs at the appropriate amounts.

3.5 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

4. INTELLECTUAL PROPERTY RIGHTS & CONFIDENTIALITY.

4.1 Reservation of Intellectual Property Rights.  Subject to the limited rights expressly granted under this Agreement, as between the parties (i) Supplier reserves all rights, title and interest in and to its pre-existing and separately developed Intellectual Property Rights and the Services, and (ii) Company reserves all rights, title and interest in and to its pre-existing and separately developed Intellectual Property Rights, Company Data, Company marks and Company Confidential Information as well as any such items made or acquired by Company.  No rights or licenses are granted by a party under this Agreement other than as expressly set forth in this Agreement.

4.2 Confidential Information. Each party (“Receiving Party”) acknowledges that it may receive from the other party (“Disclosing Party”) confidential information relating to the Disclosing Party and such confidential information includes, but is not limited to, technical, business, marketing, pricing and financial information, and any other information that could reasonably be considered confidential or proprietary (“Confidential Information”).  The terms of this Agreement and any Order Form, the Services, and all software, technology or technical information relating thereto shall be considered Confidential Information of Supplier. The Company Data shall be considered Confidential Information of Company.

4.3 Exclusions to Confidential Information. Confidential Information does not include information that:

(a) is or becomes generally available to the public other than through a wrongful act of the Receiving Party;

(b) is or becomes available to the Receiving Party on a non-confidential basis from a source that is entitled to disclose it to the Receiving Party; or

(c) is independently developed by the Receiving Party, its employees or third party contractors without access to or use of the Disclosing Party’s Confidential Information.  

4.4 Treatment of Confidential Information. During and after the term of this Agreement, the Receiving Party shall: (i) not use (except for performance of this Agreement) or disclose Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party; and (ii) take no less than the same measures that it takes with its own Confidential Information, and in any case no less than reasonable measures, to maintain the Confidential Information of the Disclosing Party in confidence.  Either party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.  

4.5 No Transfer of Confidential Information. All Confidential Information disclosed by Disclosing Party shall remain the property of the Disclosing Party.  The Disclosing Party reserves all rights in its Confidential Information.  Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except for the limited use right above) operate to transfer, or operate as a grant of any Intellectual Property Rights in the Confidential Information.  

4.6 Aggregated Data. Company grants Supplier a perpetual, non-exclusive, worldwide, royalty-free and fully paid license to use any data collected or obtained in the course of performing the services hereunder only in de-identified, aggregated form to: (i) improve the Services, and Supplier’s other products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided that Company will not be identified as the source of any such data.

5. DATA SECURITY.

5.1 Supplier’s Commitments.  During the Term, Supplier shall implement reasonably administrative, technical and physical safeguards designed to:

(a) ensure the security and integrity of the Company Data;

(b) prevent unauthorized access to, or disclosure of, the Company Data; and

(c) protect against threats, hazards and security incidents with respect to the Company Data.

5.2 Company Responsibility for Company Data. Company will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Company Data.  Supplier is not obligated to back up any Company Data.

6. WARRANTIES & DISCLAIMERS.

6.1 Corporate Warranties.  Each party represents and warrants that it has the authority to enter into this Agreement.

6.2 Supplier Warranties.  Supplier warrants that during the Term (i) the Services will be provided and operate materially in accordance with the Documentation; (ii) the Services will be provided in a timely, professional manner in accordance with industry standards; and (iii) the Services will be provided in accordance with applicable Laws.  

6.3 Company Warranties.  Company warrants that (i) Company has all consents and necessary to provide the Company Data hereunder, and (ii) Company will comply with its obligations under this Agreement and with applicable laws.

6.4 Transferable Warranties. To the extent Supplier is able to pass on warranties of Third Party Goods  to Company, Supplier shall do so.

6.5 Disclaimer. (a) COMPANY EXPRESSLY UNDERSTANDS AND AGREES THAT THE SERVICES, AND ANY THIRD PARTY GOODS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS.” EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES.  (b) SUPPLIER MAKES NO WARRANTIES WITH RESPECT TO THE AVAILABILITY, QUALITY, EFFECTIVENESS, OR ANY OTHER CHARACTERISTICS WITH RESPECT TO THE THIRD PARTY GOODS, AND DOES NOT ASSURE COMPANY THAT THEY WILL MEET COMPANY’S REQUIREMENTS. (c) SUPPLIER CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE SERVICES, AND THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF SUPPLIER’S CONTROL. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS, AND OTHER DISRUPTIONS AND SUPPLIER DOES NOT WARRANT THAT THE SERVICES WILL BE COMPLETELY ERROR FREE OR UNINTERRUPTED.  

7. INDEMNIFICATION.

7.1 Supplier’s Indemnification Obligations. Supplier will defend, indemnify and hold Company and its Affiliates harmless against any loss, damage or costs (including reasonable attorneys' fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Company or its Affiliates by a third party (i) alleging that the use of the Services as contemplated hereunder infringes or misappropriates a copyright, patent, trade secret, trademark, or other proprietary right of a third party or (ii) arising from Supplier’s gross negligence or willful misconduct.

7.2 Company’s Indemnification Obligations. Company will defend, indemnify and hold Supplier and its Affiliates harmless against any loss, damage or costs (including reasonable attorneys' fees) in connection with Claims made or brought against Supplier or its Affiliates by (i) any of Company’s employees, contractors or personnel in connection with their use of any Third Party Goods or (ii) arising from Company’s gross negligence or willful misconduct.

7.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.  

8. LIMITATION OF LIABILITY.

8.1 Limitation of Liability.  EXCEPT FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING COMPANY’S USE OF ANY THIRD PARTY GOODS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY COMPANY TO SUPPLIER DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD PRECEDING THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.

8.2 Exclusion of Damages.  EXCEPT FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR PROCUREMENT SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

9. TERM & TERMINATION.

9.1 Term of Agreement.  The term of this Agreement commences on the effective date of the first Order Form between the parties (“Effective Date”) and continues until the stated term in all Order Forms has expired or has otherwise been terminated, unless otherwise renewed or extended pursuant to this Agreement or the written agreement of the parties.  If the Order Forms do not contain an explicit term, the term for the Order Form shall be deemed to be one (1) year and shall automatically renew for subsequent one (1) year periods unless either party gives sixty (60) days advance notice of non-renewal, in which case the Order Form shall end at the conclusion of the then-current term.   The “Term” means the initial term and any renewal or extension thereto.  

9.2 Termination.   Either party may terminate this Agreement, the applicable Order Form(s) or any applicable Services or Procurement Services: (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  

9.3 Effect of Termination.  Upon any termination or expiration of this Agreement, Company will, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Services and each party will return or destroy the Confidential Information of the other in its possession or control.  Upon any termination or expiration, all fees owed for the Services shall become immediately due and payable.

9.4 Surviving Provisions.  The following provisions of this Agreement will survive any termination or expiration of this Agreement: Sections 3.2 (Invoicing and Payment), 3.3 (Taxes), 4 (Intellectual Property Rights & Confidentiality), 6.5 (Disclaimer), 7 (Indemnification), 8 (Limitation of Liability), 9.3 (Effect of Termination), 9.4 (Surviving Provisions), 10 (General Provisions), and such other provisions that are reasonably necessary to give effect to the purpose of this Agreement.  

10. GENERAL PROVISIONS.

10.1 Relationship of the Parties.  The parties are independent contractors.  This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.  There are no third-party beneficiaries to this Agreement.

10.2 Notices.  All notices under this Agreement will be in writing and will be deemed to have been given upon:  (i) personal delivery; (ii) receipt of e-mail; or (iii) the third business day after first class mailing.  Notices to Supplier shall be sent to hello@allwhere.co. Notices to Company will be addressed to Company’s signatory of this Agreement.  Each party may modify its recipient of notices by providing notice pursuant to this Agreement.

10.3 Waiver and Cumulative Remedies.  No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right or any other right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

10.4 Force Majeure.  Neither party will be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, which may include, but is not limited to, acts of God, acts of government, flood, fire, supply chain issues, civil unrest, acts of terror, strikes or other labor shortages problems.

10.5 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 (which consent will not be unreasonably withheld).  Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section will be void and of no effect.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.    

10.6 Governing Law; Waiver of Jury Trial.  This Agreement will be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules.  The parties will submit any dispute, controversy or claim arising out of or relating to the validity, formation, enforceability, performance, breach or termination of this Agreement to the exclusive jurisdiction of the U.S. federal or state courts in New York, New York, and the parties hereby submit to, and waive any objection to, personal jurisdiction and venue in such courts for such purpose.  

10.7 Export.   Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services.  

10.8 Miscellaneous.  This Agreement, including all Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof.  In the event of a conflict, the provisions of the main body of this Agreement will take precedence over provisions of any Order Form.  Supplier may use Company’s name and logo to publicly identify Company as its client, including without limitation on its website or in its marketing materials.  This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.  

[End of Agreement]