Well Equipped Website Terms of Service

This agreement(“Agreement”) is between Well Equipped, Asher Rose LLC. (“Well Equipped”, “We”, “Us”) and the person or entity agreeing to the terms of this Agreement(“Customer”, “You”). This Agreement is effective on the earliest of (a) the date Customer signs up to the Service (as defined below); (b) Customer entering into an Order Form or similar form referencing or otherwise incorporating this Agreement; or (c) Customer’s use of the Service (the “Effective Date”). If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority to bind that organization to this Agreement.

1. Definitions:‍

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In addition to     definitions set forth elsewhere in this Agreement, the following terms     have the following meanings:

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“Admin User” means any individual who is authorized by You to use the Service, to whom You (or We at Your request) have supplied access credentials, and who has permissions to administer Your account within the Service in addition to using all other features of the Service applicable to Your Subscription. 

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“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

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“Authorized User” means any Admin User, Full User, or Requester User.

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“User” means an Admin User or Full User

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“Beta Service” means certain features, technologies, and services that are not generally available to Our customers, as updated from time to time.

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“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, by Us or our Affiliates from Customer or an Authorized User by or through the Service, including Customer assets, policies, practices, and protocols that Customer or its Authorized Users upload or otherwise provide to the Service. For the avoidance of doubt, Customer Data does not include any information reflecting the access or use of the Service by or on behalf of Customer or any Authorized User.
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“Documentation” means the online documentation and Service feature descriptions, as updated from timeto time, located or at such other URL as We may provide from time to time.

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“Full User” means an individual, other than an Admin User, who is authorized by You to use the Service, to whom You (or We at Your request) have supplied access credentials, and who has permissions to use features of the Service applicable to Your Subscription beyond the permissions provided to a Requester User.

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“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and trojan horses.

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“Order Form” means an online confirmation page or an ordering document specifying a Subscription to the Service or Implementation Services, or both, to be provided under this Agreement that specifies a number of Users, including any free trial of any Subscription plan or any free or paid Subscription plans offered by Us. For clarity, Order Forms may include online requests by You for access to the Service for a particular number of Users along with any accepted quotes, purchase orders, or signed order forms, in each case referencing this Agreement and without any terms or conditions added by You.

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“Our” means Well Equipped’s and “Your” means Customer’s.

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“Our Materials” means the Service, Installed Software, Documentation, and Our Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided, developed or used by Us or any Subcontractor in connection with the Service or otherwise comprise or relate to the Service or Our Systems, including any information, data, or other content derived from Well Equipped’s monitoring of Customer’s or any Authorized User’s access to oruse of the Service, but not including Customer Data.

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“Our Systems” means the information technology infrastructure used by or on behalf of Well Equipped in providing the Service, including all computers, software, hardware, databases, electronic systems(including database management systems), and networks, whether operated directly by Us or using third-party services.

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“Privacy Policy” means Our Privacy Policy, as updated from time to time.

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“Purchased Service” means the Service that You purchase under an Order Form specifying a paid Subscription, as distinguished from those provided pursuant to a free trial or under a free Subscription.

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“Requester User” means an individual who is authorized by You to use the Service for the limited purpose of making work requests, viewing the status of work requests, and sending and receiving messages within the Service, and any other limited permissions provided to Requester Users specified in the Documentation, and to whom You (or We at Yourr equest) have supplied access credentials.

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“Service” means the computerized maintenance and management software as a service platform that We make available online and through one or more mobile applications, including any changes or updates, as described in the applicable Order Form. 

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“Subscription” means access to the Service as requested by You on a per Restaurant basis as specified in the applicable Order Form.

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“Subscription Term” means the period of time during which Authorized Users are permitted to use the Service as set forth in the applicable Order Form along with any renewals as specified in Section 12.2(Term of Purchased Subscriptions).

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“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Service that are not proprietary to Well Equipped.

2. Free     Trial:

If You register for afree trial Subscription to the Service on Our website or with Our mobileapplication, subject to the terms of this Agreement, We will make the Serviceavailable to You on a trial basis, free of charge, until the earlier of (a) theend of the free trial period, or (b) the start date of any paid Subscriptionordered by You. Additional trial terms and conditions may appear on the trialregistration web page and are incorporated into this Agreement by reference.

Your Customer Data that you input into OurSystems, and any customizations made to the Service by or for You, during Yourfree trial may be permanently lost or deleted at the end of the free trialperiod unless You purchase a Subscription to the Service before the end of thefree trial period.

3. Our     Responsibilities:

               3.1.       Provision of the Service: We will usecommercially reasonable efforts to make the Service available to Customer andits Authorized Users pursuant to this Agreement and the applicable Order Form.Notwithstanding the foregoing, the Service may not be available due to planneddowntime (which We will schedule to the extent practicable during low usagehours such as nights or weekends). 

               3.2.       Access and Use: Well Equipped hereby grants toCustomer a non-exclusive, non-sublicensable, non-transferrable (except incompliance with Section 14.3), worldwide right to access and use, and permitAuthorized Users to access and use, the Service solely for Customer’s internalbusiness operations in accordance with the terms of this Agreement. 

               3.3.       Software License:  Well Equipped hereby grantsto Customer a non-exclusive, non-sublicensable, non-transferable (except incompliance with Section 14.3) license to install, execute and use any mobileapplication software that We provide or otherwise make available to You or YourAuthorized Users in connection with use of the Service as permitted herein(collectively, “Installed Software”), in object code only, on devices owned orcontrolled by Customer or the applicable Authorized User (each, an “AuthorizedDevice”), solely for Customer’s internal business operations in accordance withthe terms of this Agreement. 

               3.4.       Documentation License: Well Equipped herebygrants to Customer a non-exclusive, non-sublicensable, non-transferable (exceptin compliance with Section 14.3) license to use, and permit Authorized Users touse, the Documentation solely for Customer’s internal business purposes.

               3.5.       Changes to the Service: Installed Software,and Documentation. We reserve the right, in our sole discretion, to makechanges to the Service, Installed Software and Documentation at any time thatWe deem necessary or useful to (a) maintain or enhance: (i) the quality ordelivery of services to Our customers; (ii) the competitive strength of or marketfor Our services; or (iii) the Service’s cost efficiency or performance; or (b)to comply with applicable Law.

               3.6.       Beta Service: We may invite You to try BetaService at no charge. You may accept or decline any such trial in Your solediscretion. Beta Service will be clearly designated as beta, pilot, limitedrelease, developer preview, non-production, evaluation or by a description ofsimilar import. Beta Service is for evaluation purposes and not for productionuse, is not considered part of the “Services” under this Agreement, are notsupported, and may be subject to additional terms. Unless otherwise stated, anyBeta Service trial period will expire upon the date that a version of the BetaService becomes generally available. We may discontinue Beta Service at anytime in Our sole discretion and may never make features, technologies, orservices of Beta Service generally available.

               3.7.       Suspension or Termination of Service: We may,directly or indirectly, and by use of any lawful means, suspend, terminate, orotherwise deny Customer’s, any Authorized User’s, or any other Person’s accessto or use of all or any part of the Service, without incurring any resultingobligation or liability, if: (a) Well Equipped receives a judicial or othergovernmental demand or order, subpoena, or law enforcement request thatexpressly or by reasonable implication requires Well Equipped to do so; or (b)Well Equipped believes, in its good faith and reasonable discretion, that: (i)Customer or any Authorized User has failed to comply with any term of thisAgreement, including payment obligations, or accessed or used the Servicebeyond the scope of the rights granted or for a purpose not authorized underthis Agreement; (ii) Customer or any Authorized User is, has been, or is likelyto be involved in any fraudulent, misleading, or unlawful activities relatingto or in connection with any of the Service; or (iii) this Agreement expires oris terminated. This Section 3.7 does not limit any of Our other rights orremedies, whether at law, in equity, or under this Agreement.

               3.8.       Support: Each Subscription includes customersupport services (“Support Services”) at the support levels applicable to theSubscription in accordance with the Well Equipped service support schedule thenin effect.

               3.9.       Implementation Services: If You purchaseimplementation services such as bulk provisioning of Authorized User accountsor Customer training (“Implementation Services”), Well Equipped shall providesuch implementation services as set forth on the applicable Order Form.

            3.10.       Subcontractors: We may engage third parties(each, a “Subcontractor”) to perform Our obligations under this Agreement inOur discretion.

4. Use     of Services:

               4.1.       Subscriptions: Unless otherwise provided inthe applicable Order Form, (a) access to the Service is acquired by Customerwith a Subscription with fees for the applicable Subscription plan, if any,payable on a per Restaurant basis, (b)Subscriptions have a monthly or annual Subscription Term, (c) Subscriptionplans may be upgraded during the Subscription Term with the term for suchupgraded plan prorated for the portion of that Subscription Term remaining atthe time the mid-term subscription plan is upgraded, and (d) access for allAuthorized Users terminates on the same date as the Subscription Term.

               4.2.       Your Responsibilities: You will (a) beresponsible for Authorized Users’ compliance with this Agreement and for allactivities that occur through Your Authorized Users’ use of the Service and anyInstalled Software, including the restrictions set forth in Section 4.3 below,(b) be responsible for the accuracy, quality and legality of Customer Data, (c)use reasonable efforts to prevent unauthorized access to or use of the Serviceor the Installed Software, and notify Us promptly of any such unauthorizedaccess or use, (d) use the Service and Installed Software only in accordancewith this Agreement and applicable laws and government regulations, and (e)respond to questions and complaints from Authorized Users or third partiesrelating to Your or Your Authorized Users’ use of the Service and InstalledSoftware and use reasonable efforts to resolve support issues before escalatingthem to Us.

               4.3.       Usage Restrictions: You will not, and You willnot permit any third party (including any Authorized User) to, (a) make theService or Installed Software available to, or use the Service or InstalledSoftware for the benefit of, anyone other than You, (b) sell, resell, license,sublicense, distribute, rent or lease the Service or Installed Software, orinclude the Service or Installed Software in a service bureau or outsourcingoffering, (c) use the Service or Installed Software to store or transmitinfringing, libelous, or otherwise unlawful or tortious material, or to storeor transmit material in violation of third-party privacy or intellectualproperty rights, (d) use the Service or Installed Software to store or transmitMalicious Code, (e) interfere with or disrupt the integrity or performance ofthe Service or Installed Software or third-party data contained therein,including without limitation any anomalous use of the Service or InstalledSoftware, (f) attempt to gain unauthorized access to the Service or its relatedsystems or networks, (g) permit direct or indirect access to or use of theService or Installed Software in a way that circumvents a contractual usagelimit, (h) copy the Service or Installed Software or any of their respectiveparts, features, functions, or user interfaces, (i) frame or mirror any part ofthe Service, other than framing on Your own intranets or otherwise for Your owninternal business purposes or as permitted in this Agreement, (j) access theService or Installed Software in order to build a competitive product orservice, (k) reverse engineer the Service or any of its associated software orthe Installed Software (to the extent such restriction is permitted by law),(l) remove any proprietary notices from the Service, Installed Software, orDocumentation, or (m) access the Service or Installed Software for purposes ofmonitoring their availability, performance or functionality, or for any otherbenchmarking or competitive purposes.

               4.4.       Privacy: Our Privacy Policy describes thecollection, use, and sharing of certain information that may be provided inconnection with Your use of the Service. By using the Service, You acknowledgethat Customer Data will be processed in accordance with Our Privacy Policy andthis Agreement and may be processed in a country where it was collected, aswell as in countries where privacy laws may be less stringent, including theUnited States. By using the Service or submitting Customer Data through theService, You expressly consent to such processes. To the extent You or one ofyour representatives provide Us personally identifiable information about anamed person or entity in connection with this Agreement, You represent andwarrant that You have that person’s or entity’s consent to do so and willdefend and indemnify Us for any breach of such warranty.

               4.5.       Vendor Service Requests: The Well EquippedPlatform allows Customer to send a request for Services. Once a Service Requestis made:

•        Well Equipped will send ServiceRequests to the available Service Provider(s) based on their availability andinternal allocation processes as solely determined by Well Equipped.

•        The Service Request may be acceptedbased on the availability of Service Provider(s) for the required location atthe requested time.

•         Your request is subject toacceptance by a Service Provider. Once a Service Provider has accepted theService Request, Well Equipped will inform the Customer via an SMS, pushnotification or confirmation screen in the Well Equipped App/Website. If noService Provider is available to accept the Service Request, Well Equipped willnotify the Customer in the same manner.

The services provided through the Well EquippedPlatform shall include:

•        Accepting Service Requests subjectto the terms herein;

•        Identifying Service Providers toprovide the Services;

•        Remotely monitoring start and endof Service Requests using the Well Equipped Platform;

•        Receiving and dealing withfeedback, questions and complaints relating to Service Requests; and

•        Providing customer support forgrievances;

in each case in accordance with the terms of this Agreement and anyrelevant provisions of Applicable Laws.

Once a Service Request has been accepted WellEquipped may provide:

•         The Customer with a bookingconfirmation through the Well Equipped Platform, and information regarding theService Provider, contact number, and any other details Well Equipped considersappropriate; and

•        The Service Provider with Customerdetails, such as services sought and location, necessary to enable the ServiceProvider to provide the Services.

The Customer agrees that upon acceptingthe Service Request, Well Equipped may provide to the Service Provider theservice location, mobile phone number of the Customer, and such otherinformation to enhance and facilitate the provision of Services by the ServiceProvider to the Customer, and for the Service Provider to identify theCustomer.

Once a Service Request is allocated tothe Service Provider, Well Equipped will provide the Service Provider with thenecessary Customer details in order to enable the Service Provider to providethe Services to the Customer.

If the Customer needs to cancel orreschedule an assigned Service Request, the Customer must immediately contactWell Equipped’s customer care or may cancel or reschedule an assigned ServiceRequest through the Well Equipped Platform. However, such cancellations orrescheduling may be subject to applicable cancellation or no-show charges.

The refund of any payments made by Youtowards the booking of the Services shall be governed by Well Equipped’sCancellation Policy as provided herein or as updated by Well Equipped from timeto time on the Well Equipped Platform.

Any services canceled prior to delivery ofservices will be refunded minus any applicable cancellation or no-show feecommunicated prior to or at the time of cancellation to the Customer. Anyrefunds post delivery of services will be at the discretion of Well Equipped.

If the Customer requires any assistance inrelation to the Well Equipped Platform or any Service Request, they shouldcontact Well Equipped customer care or send an email to customerservice@wellequipped.app.

5. Security     and Access to Customer Data:

               5.1.       Protection of Customer Data: We maintainindustry-standard administrative, physical, and technical safeguards to protectthe security, confidentiality, and integrity of Customer Data. Those safeguardswill include, but will not be limited to, measures for preventing unauthorizedaccess, use, modification, or disclosure of Customer Data by Our personnel.

               5.2.       Self-Service Access to Customer Data: We willprovide Customer’s Admin Users with the ability to download Customer Data fromthe Service, subject to any usage limits applicable to Your Subscription. Forexample, We may only provide Customer the ability to download particular typesof Customer Data in particular formats under a free Subscription plan. 

               5.3.       Customer Control and Responsibility: Customerhas and will retain sole responsibility for: (a) all Customer Data, includingits content and use; (b) all information, instructions, and materials providedby or on behalf of Customer or any Authorized User in connection with theService; (c) Customer’s information technology infrastructure, includingcomputers, software, databases, electronic systems (including databasemanagement systems), and networks, whether operated directly by Customer orthrough the use of third-party services (“Customer Systems”); (d) the securityand use of Customer’s and its Authorized Users’ access credentials; and (e) allaccess to and use of the Service directly or indirectly by or through theCustomer Systems or its or its Authorized Users’ access credentials, with orwithout Customer’s knowledge or consent, including all results obtained from,and all conclusions, decisions, and actions based on, such access or use.Without limiting the foregoing, the Service does not replace the need forCustomer to maintain regular data backups or redundant data archives. We haveno obligation or liability for any loss, alteration, destruction, damage,corruption, or recovery of Customer Data.

6. Fees     and Payment for Purchased Services

               6.1.       Fees: For any paid Subscription,Implementation Service, or other Service You purchase from Us, You will pay allfees specified in the applicable Order Form(s). Except as otherwise specifiedherein or in an Order Form, (a) fees for the Service are based on theSubscription purchased and the total number of permitted Users rather thanactual usage or actual number of individuals with access credentials and (b)payment obligations are non-cancelable and fees paid are non-refundable.

               6.2.       Invoicing and Payment: You will provide Uswith valid and updated credit card information, or with a valid purchase orderor alternative document reasonably acceptable to Us. If You provide credit cardinformation to Us, You (a) authorize Us to charge such credit card for (i) allPurchased Services listed in the Order Form for the initial Subscription Termand any renewal Subscription Term(s) as set forth in Section 12.2 (Term ofPurchased Subscriptions) and (ii) any Implementation Services listed in the OrderForm, and (b) will ensure that the credit card information provided to Us iscurrent and valid and promptly update the information if the credit cardexpires. Charges will be made in advance, either annually or in accordance withany different billing frequency stated in the applicable Order Form. If theOrder Form specifies that payment will be by a method other than a credit card,We will invoice You in advance and otherwise in accordance with the relevantOrder Form. Unless otherwise stated in the Order Form, invoiced charges are duenet 30 days from the invoice date. You are responsible for providing completeand accurate billing and contact information to Us and notifying Us of anychanges to such information.

               6.3.       Overdue Charges:  If any undisputed invoicedamount is not received by Us by the due date, then without limiting Our rightsor remedies, (a) We may charge interest at the rate of 1.5% of the outstandingbalance per month, or the maximum rate permitted by law, whichever is lower,(b) We may condition future subscription renewals and Order Forms on paymentterms shorter than those specified in Section 6.2 (Invoicing and Payment), and(c) We may require You to pay any collections or legal fees or costs incurredby Us in order to collect payment of the corresponding undisputed invoicedamount.

               6.4.       Payment Disputes: If You dispute any invoicedamounts, You will promptly provide Us with notice of the disputed amounts alongwith supporting documentation within 30 days of Your receipt of the invoice,and the parties will cooperate diligently to resolve such dispute in goodfaith. We will not exercise Our rights under Section 6.3 (Overdue Charges) orany Suspension of Service and Acceleration if You are disputing the applicablecharges reasonably and in good faith and are cooperating diligently to resolvethe dispute, provided that You remit payment for any undisputed amounts in atimely manner.

               6.5.       Taxes: Our fees do not include any taxes,levies, duties, or similar governmental assessments of any nature, including,for example, value-added, sales, use, or withholding taxes, assessable by anyjurisdiction whatsoever (collectively, “Taxes”). You are responsible for payingall Taxes associated with Your purchases hereunder. If We have the legalobligation to pay or collect Taxes for which You are responsible, We willinvoice You and You will pay that amount unless You provide Us with a valid taxexemption certificate authorized by the appropriate taxing authority. Forclarity, We are solely responsible for taxes assessable against Us based on Ourincome, property, and employees.

               6.6.       Future Functionality: You agree that Yourpurchases are not contingent on the delivery of any future functionality orfeatures, or dependent on any oral or written public comments made by Us regardingfuture functionality or features.

7. Intellectual     Property Rights:

               7.1.       Our Materials:  Subject to the limited rightsexpressly granted hereunder, We retain all of Our rights, title, and interestin and to Our Materials and all of Our intellectual property rights therein.With respect to Third-Party Materials, the applicable third-party providers ownall right, title, and interest, including all Intellectual Property Rights, inand to the Third-Party Materials. No rights are granted to You hereunder other thanas expressly set forth herein or, with respect to Third-Party Materials, theapplicable third-party license.

               7.2.       Customer Data: As between You and Us, You areand will remain the sole and exclusive owner of all right, title, and interestin and to all Customer Data,  subject to the rights and permissions granted inSection 7.3.

               7.3.       Our Rights to Use Customer Data:  You grant Usand Our Affiliates the right to use Customer Data, in compliance withapplicable law, in order to: (a) provide the Service in accordance with thisAgreement and the Privacy Policy, (b) prevent or address service, support, ortechnical problems, or (c) as may be required by law. You also grant Us and OurAffiliates the right to use Customer Data, in compliance with applicable law,in an aggregated and de-identified manner, without use of any personallyidentifiable information, to create and make available insights, reports,statistical inferences, and industry best practices for You and our othercustomers and for marketing, survey purposes, benchmarking, proposing industrystandards or modifications thereto, feature suggestions, product analytics, newproduct features or services, Service utilization analyses and relatedpurposes, provided that it does not identify You, Your Affiliates, or Your orYour Affiliates’ respective agents, representatives, customers or employees andis not attributable to such persons or entities in any way.

               7.4.       License to Use Feedback: You grant to Us andOur Affiliates a worldwide, perpetual, irrevocable, royalty-free license to useand incorporate into Our Materials any suggestion, enhancement request,recommendation, correction, or other feedback provided by You or AuthorizedUsers relating to the Service.

8. Confidentiality:

               8.1.       Definition of Confidential Information:“Confidential Information” means all information disclosed by a party(“Disclosing Party”) to the other party (“Receiving Party”), whether orally orin writing, that is designated as confidential or that reasonably should beunderstood to be confidential given the nature of the information and thecircumstances of disclosure. Our Confidential Information includes OurMaterials; and Confidential Information of each party includes the terms andconditions of this Agreement and all Order Forms (including pricing), as wellas business and marketing plans, technology and technical information, productplans and designs, and business processes disclosed by such party. However,Confidential Information does not include any information that (a) is orbecomes generally known to the public without breach of any obligation owed tothe Disclosing Party, (b) was known to the Receiving Party prior to itsdisclosure by the Disclosing Party without breach of any obligation owed to theDisclosing Party, (c) is received from a third party without breach of anyobligation owed to the Disclosing Party, or (d) was independently developed bythe Receiving Party.

               8.2.       Protection of Confidential Information: TheReceiving Party will use the same degree of care that it uses to protect theconfidentiality of its own confidential information of like kind (but not lessthan reasonable care) (a) not to use any Confidential Information of theDisclosing Party for any purpose outside the scope of this Agreement, and (b)except as otherwise authorized by the Disclosing Party in writing, discloseConfidential Information of the Disclosing Party only to those of its and itsAffiliates’ employees, contractors and advisors who need that access forpurposes consistent with this Agreement and who are boundby confidentiality obligations to the Receiving Party at least asprotective as those herein. Neither party will disclose the terms of thisAgreement or any Order Form to any third party other than its Affiliates, legalcounsel, and accountants without the other party’s prior written consent,provided that a party that makes any such disclosure to its Affiliate, legalcounsel or accountants will remain responsible for such Affiliate’s, legalcounsel’s or accountant’s compliance with this Section 8.2.

               8.3.       Compelled Disclosure:  The Receiving Party maydisclose Confidential Information of the Disclosing Party to the extentcompelled by law or by the order of a court or similar judicial oradministrative body to do so, provided the Receiving Party gives the DisclosingParty prior notice of the compelled disclosure (to the extent legallypermitted) and reasonable assistance, at the Disclosing Party’s cost, if theDisclosing Party wishes to contest the disclosure. If the Receiving Party iscompelled by law to disclose the Disclosing Party’s Confidential Information aspart of a civil proceeding to which the Disclosing Party is a party, and theDisclosing Party is not contesting the disclosure, the Disclosing Party willreimburse the Receiving Party for its reasonable cost of compiling andproviding secure access to that Confidential Information.

9. Representations,     Warranties, Exclusive Remedies, and Disclaimers:

               9.1.       Representations: Each party represents to theother party that it has validly entered into this Agreement and has the legalpower to do so.

               9.2.       Our Warranties: We warrant to You that thePurchased Services will perform materially in accordance with thespecifications set forth in the Documentation. We further warrant to You thatthe Implementation Services and Support Services will be performed in aprofessional and workmanlike manner. For any breach of the above warranty, Yourexclusive remedies and Our sole obligations are those described in Sections12.3 (Termination) and 12.4 (Refund or Payment upon Termination).

               9.3.       Mutual Warranties:  Each party warrants thatit will comply with all laws and regulations applicable to its provision or useof the Purchased Services, Implementation Services, and Support Services, asapplicable (including applicable data security breach notification law).

               9.4.       Disclaimers:  EXCEPT AS EXPRESSLY PROVIDEDHEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED,STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIEDWARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BYAPPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED UNDER SECTION 9.2 ABOVE, THESERVICE, THE INSTALLED SOFTWARE, THE IMPLEMENTATION SERVICES, THE SUPPORTSERVICES, AND ANY BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTYWHATSOEVER.

               9.5.       Benefit of the Bargain:  The warrantydisclaimer set forth above in Section 9.4 and the limitation of liability set forthin Section 11 below are fundamental elements of the basis of the agreementbetween Well Equipped and Customer. We would not be able to provide the Serviceon an economic basis without such limitations. The warranty disclaimer andlimitation of liability inure to the benefit of Our suppliers.

10. Mutual     Indemnification:

            10.1.       Indemnification by Us: We will defend You against any claim, demand, suit,or proceeding made or brought against You by a third party alleging that theuse of the Service in accordance with this Agreement infringes ormisappropriates such third party’s intellectual property rights (a ”ClaimAgainst You”), and will indemnify You from any damages, attorney fees, andcosts finally awarded against You as a result of, or for amounts paid by You pursuantto a settlement of, a Claim Against You, provided You (a) promptly give Uswritten notice of the Claim Against You, (b) give Us sole control of thedefense and settlement of the Claim Against You (except that We may not settleany Claim Against You unless it unconditionally releases You of all liability),and (c) give Us all reasonable assistance, at Our expense. You may participatein the defense and settlement of the Claim Against You at Your expense. If Wereceive information about an infringement or misappropriation claim related toa Service, We may in Our discretion and at no cost to You (i) modify theService so that it no longer infringes or misappropriates, (ii) obtain alicense for Your continued use of that Service in accordance with thisAgreement, or (iii) terminate Your Subscriptions for that Service upon 30 days’written notice and refund You any prepaid fees covering the remainder of theSubscription Term for the terminated subscriptions. The above defense andindemnification obligations do not apply to the extent a Claim Against Youarises from Your breach of this Agreement or otherwise from Your grossnegligence or willful misconduct.

            10.2.       Indemnification by You:  You will defend Usagainst any claim, demand, suit or proceeding made or brought against Us by athird party, including any Authorized User (a) alleging that Customer Data orany use of the Customer Data in accordance with this Agreement, infringes ormisappropriates such third party’s intellectual property rights or rights of privacyor publicity; (b) based on Customer’s or any Authorized User’s (i) grossnegligence or willful misconduct, (ii) use of the Service in a manner notauthorized by this Agreement, (iii) use of the Service in combination withdata, software, hardware, equipment, or technology not provided by Us orauthorized by Us in writing; or (c) alleging personal injury or property damagecaused by Customer or any Authorized User in connection with the Service(collectively, a ”Claim Against Us”), and will indemnify Us from any damages,attorney fees and costs finally awarded against Us as a result of, or for anyamounts paid by Us pursuant to a settlement of, a Claim Against Us, provided We(a) promptly give You written notice of the Claim Against Us, (b) give You solecontrol of the defense and settlement of the Claim Against Us (except that Youmay not settle any Claim Against Us unless it unconditionally releases Us ofall liability), and (c) give You all reasonable assistance, at Your expense. Wemay participate in the defense and settlement of the Claim Against Us at Ourexpense.

            10.3.       Exclusive Remedy: This Section 10 states theindemnifying party’s sole liability to, and the indemnified party’s exclusiveremedy against, the other party for any type of claim described in this Section10.

11. Limitation     of Liability:

            11.1.       Limitation of Liability:  EXCEPT FOR ANYBREACH OF SECTION 5 (DATA SECURITY) OR SECTION 8 (CONFIDENTIALITY), OR YOUROBLIGATIONS UNDER 4.6 (USAGE RESTRICTIONS) OR SECTION 6 (FEES AND PAYMENT FORPURCHASED SERVICES), NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TOTHIS AGREEMENT WILL EXCEED THE GREATER OF THE AMOUNT PAID BY YOU HEREUNDER INTHE 12 MONTHS PRECEDING THE INCIDENT OR SERIES OF RELATED INCIDENTS OR $100.WITH RESPECT TO ANY BREACH OF SECTION 5 (DATA SECURITY) OR SECTION 8(CONFIDENTIALITY), NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THISAGREEMENT WILL EXCEED THE GREATER OF TWO TIMES THE AMOUNT PAID BY YOU HEREUNDERIN THE 12 MONTHS PRECEDING THE INCIDENT OR SERIES OF RELATED INCIDENTS OR $200.THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT ANDREGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOTLIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. 

            11.2.       Exclusion of Consequential and Related Damages: EXCEPT FOR ANY BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8(CONFIDENTIALITY) OR YOUR OBLIGATIONS UNDER 4.6 (USAGE RESTRICTIONS), IN NOEVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS,REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVEDAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORYOF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BYLAW.

12. Term     and Termination:

            12.1.       Term of Agreement: This Agreement commences onthe date You first accept it and continues until all Subscription Termshereunder have expired or have been terminated.

            12.2.       Term of Purchased Subscriptions: TheSubscription Term is as specified in the applicable Order Form. Subscriptionsautomatically renew for additional periods equal to the expiring SubscriptionTerm or one year (whichever is shorter), unlessotherwise set forth in the applicable Order Form or either party gives theother notice of non-renewal at least 30 days before the end of the relevantSubscription Term. The pricing during any automatic renewal term, as describedin the Order Form, will be the same as that during the immediately prior termunless We have given You written notice of a pricing increase at least 60 daysbefore the end of that prior term, in which case the pricing increase will beeffective upon renewal and thereafter.

            12.3.       Termination:  A party may terminate thisAgreement (a) 30 days after providing written notice to the other party of amaterial breach of its obligations under this Agreement if such breach remainsuncured at the expiration of such 30-day period, (b) if the other party becomesthe subject of a petition in bankruptcy or any other proceeding relating toinsolvency, receivership, liquidation or assignment for the benefit ofcreditors, or (c) upon 10 days’ written notice to the other party if the otherparty is in material breach of this Agreement more than two timesnotwithstanding any cure of such breaches.

            12.4.       Refund or Payment upon Termination:  If Youterminate this Agreement in accordance with Section 12.3 (Termination), We willrefund You any prepaid fees for the Service covering the remainder of theSubscription Term of all Order Forms after the effective date of terminationand any prepaid fees for any Implementation Services not yet performed. If Weterminate this Agreement in accordance with Section 12.3, You will pay anyunpaid fees covering the remainder of the Subscription Term of all Order Forms.In no event will termination relieve You of Your obligation to pay any feespayable to Us for the period prior to the effective date of termination.

            12.5.       Customer Data Portability and Deletion:  Afterthe effective date of termination or expiration of this Agreement, We will haveno obligation to maintain or provide Customer Data, and may, in Our solediscretion, delete or destroy all copies of Customer Data in Our systems orotherwise in Our possession or control, unless legally prohibited.Notwithstanding the foregoing, for any Purchased Service, We will make allCustomer Data available to You for electronic retrieval for a period of 30 daysafter such termination or expiration.

            12.6.       Surviving Provisions:  Each party isresponsible for any obligations to the other party that arose prior to anytermination or expiration of this Agreement. In addition, except asotherwise set forth in this Agreement, Section 7 (Intellectual PropertyRights), Section 8 (Confidentiality), Section 9.4 (Disclaimers), Section 10(Mutual Indemnification), Section 11 (Limitation of Liability), Section 12.4(Refund or Payment upon Termination), Section 12.5 (Customer Data Portabilityand Deletion, this Section 12.6 (Surviving Provisions), Section 13 (Notices,Governing Law and Dispute Resolution), and Section 14 (General Provisions)survive any termination or expiration of this Agreement.

13. Notices     and Dispute Resolution:

            13.1.       Manner of Giving Notice: All notices,permissions, and approvals hereunder must be in writing and will be deemedgiven upon: (i) personal delivery, (ii) the third business day after mailing,(iii) the second business day after sending via an overnight delivery service;or (iii) the first business day after sending by email (provided email is notsufficient for notices of material breach, termination, or an indemnifiableclaim). Notices to Us shall be addressed to:
Well Equipped, Asher Rose LLC,1575, Red Oak Ln,Brentwood,TN - 37027,WilliamsonCounty.
Email: customerservice@wellequipped.app
Billing-related notices to You shall be addressed to the relevant billingcontact designated by You. All other notices to You shall be addressed to therelevant Admin User designated by You, in writing, by like notice.

            13.2.       Informal Dispute Resolution and Arbitration: Theparties acknowledge that most disputes can be resolved without resort tolitigation. The parties will use their best efforts to settle any disputedirectly through consultation with each other before initiating a lawsuit orarbitration. If, after good faith negotiations the parties are unable toresolve the dispute, any and all disputes arising out of or in any way relatingto this Agreement, including without limitation its existence, validity, ortermination, shall be resolved according to California law and exclusively bybinding arbitration before a single arbitrator with the Judicial Arbitrationand Mediation Service (“JAMS”) and pursuant to the then existing arbitrationrules at JAMS.
If the parties cannot agree upon selection of an arbitrator, then JAMS shallappoint an arbitrator experienced in the enterprise software industry. Theplace of the arbitration will be San Francisco, California unless otherwiseagreed upon by the parties. The arbitration will be conducted in English. Thearbitrator shall provide detailed written findings of fact and conclusions oflaw in support of any award. Judgment upon any such award may be enforced inany court of competent jurisdiction. The existence of a dispute, submission toarbitration, and any arbitration award under this Agreement is deemed theConfidential Information of both parties.
The parties further agree that the arbitration shall be conducted in theirindividual capacities only and not as a class action or other representativeaction, and the parties expressly waive their right to file a class action orseek relief on a class basis. If any court or arbitrator determines that theclass action waiver set forth herein is void or unenforceable for any reason orthat an arbitration can proceed on a class basis, then the portions of thisSection 13.2 mandating arbitration shall be deemed null and void in itsentirety and the parties shall be deemed to have not agreed to arbitratedisputes. 
You may opt out and not be bound by the arbitration and class action waiverprovisions by sending written notice to Well Equipped. Any such notice must begiven within 30 days of the Effective Date. If Customer opts out ofarbitration, Well Equipped also will not be bound to arbitrate. 
Notwithstanding anything to the contrary in this Section 13, (a) either partyshall be entitled to seek injunctive relief as set forth in Section 13.3(Equitable Relief) below and to stop unauthorized use of the Service or infringementof Intellectual Property Rights and (b) any disputes, claims, or controversiesconcerning either party’s Intellectual Property Rights or claims of piracy orunauthorized use of the Service shall not be subject to arbitration but insteadmust be heard in state or Federal court in San Francisco, California.

            13.3.       Equitable Relief: Each party acknowledges andagrees that a breach or threatened breach by such Party of any of itsobligations under Section 8 (Confidentiality) or, in the case of Customer,Section 4.3 (Usage Restrictions), would cause the other Party irreparable harmfor which monetary damages would not be an adequate remedy and agrees that, inthe event of such breach or threatened breach, the other Party will be entitledto equitable relief, including a restraining order, an injunction, specificperformance, and any other relief that may be available from any court, withoutany requirement to post a bond or other security, or to prove actual damages orthat monetary damages are not an adequate remedy. Such remedies are notexclusive and are in addition to all other remedies that may be available atlaw, in equity, or otherwise.

14. General     Provisions:

            14.1.       Entire Agreement and Order of Precedence: ThisAgreement, including any Order Forms and addenda or exhibits incorporatedtherein, is the entire agreement between You and Us regarding the subjectmatter hereof and supersedes all prior and contemporaneous agreements,proposals, or representations, written or oral, concerning its subject matter.No waiver of any provision of this Agreement will be effective unless inwriting and signed by the party against whom the waiver is to be asserted. Theparties agree that any term or condition stated in Your purchase order or inany other of Your order documentation (excluding Order Forms) during the termof this Agreement is void. In the event of any conflict or inconsistency amongthe following documents, the order of precedence will be: (1) this Agreement,(2) the applicable Order Form, and (3) the Documentation. 

            14.2.       Assignment: Neither party may assign any ofits rights or obligations hereunder, whether by operation of law or otherwise,without the other party’s prior written consent (not to be unreasonablywithheld); provided, however, either party may assign this Agreement in itsentirety (including all Order Forms), without the other party’s consent to itsAffiliate or in connection with a merger, acquisition, corporatereorganization, or sale of all or substantially all of its assets to which thisAgreement relates. Notwithstanding the foregoing, if a party merges with, isacquired by, sells substantially all or substantially all of its assets to, orotherwise undergoes a change of control in favor of, a direct competitor of theother party, then such other party may terminate this Agreement upon writtennotice.

            14.3.       Relationship of the Parties: The parties areindependent contractors. This Agreement does not create a partnership,franchise, joint venture, agency, fiduciary, or employment relationship betweenthe parties.

            14.4.       Publicity: Unless otherwise set forth on anOrder Form, Well Equipped may use Customer’s name, logo, and marks to identifyCustomer as a Well Equipped customer on Well Equipped’s website and marketing,public relations, and materials for current or prospective investors. 

            14.5.       Third-Party Beneficiaries:  There are nothird-party beneficiaries under this Agreement.

            14.6.       Waiver:  No failure or delay by either partyin exercising any right under this Agreement constitutes a waiver of thatright.

            14.7.       Severability: If any provision of thisAgreement is held by a court of competent jurisdiction to be contrary to law,the provision will be deemed null and void, and the remaining provisions ofthis Agreement will remain in effect.

            14.8.       Changes: Well Equipped may revise thisAgreement from time to time by posting a revised version on its website. Anysuch revised version will take effect as of the date of posting of the revisedversion or such later date set forth in a notice to you. Notwithstanding theforegoing, if You do not agree to the revised version, You may provide uswritten notice of non-renewal under Section 12.2 (Term of PurchasedSubscriptions) within 30 days of the effective date of the revised version andsuch revised version will not apply to Your access and use of the Servicethrough the remainder of Your then-current Subscription Term. 

            14.9.       Force Majeure: Except for payment obligations,neither party will be liable for inadequate performance to the extent caused bya condition (for example, natural disaster, an act of war or terrorism, riot,labor condition, governmental action, Internet service provider failure ordelay, or denial of service attack) that was beyond the party’s reasonablecontrol. 

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