BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS PLATFORM END USER LICENSE AGREEMENT (THE “AGREEMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT WILL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE PLATFORM.
“You” and “your” refers to the individual or entity that desires to access and use the software as a service from Lawnstarter, Inc.’s (“LawnStarter”) software and platform (“Platform”). The term “program documentation” refers to the program user manual as well as any other materials provided or made available by LawnStarter as part of the Platform. The term “LawnStarter programs” refers to the software products owned or distributed by LawnStarter to which LawnStarter grants you access as part of the Platform, including program documentation, and any program updates provided as part of the Platform. The term “users” will mean those individuals authorized by you or on your behalf to use the Platform. The term “your data” refers to the data provided by you that resides on the Platform and expressly excludes any data, including customer data, provided or otherwise made available to you by LawnStarter.
2.1
During the Term and subject to the terms and conditions of this
Agreement, LawnStarter hereby grants you a nonexclusive,
non-assignable, royalty free, worldwide limited right to access
and use the Platform solely for your internal business
operations. You may allow your users to access and use the
Platform for this purpose and you are responsible for your
users’ compliance with this Agreement.
2.2
You acknowledge that LawnStarter has no delivery obligation and
will not ship copies of the LawnStarter programs to you as part
of your use of the Platform. You agree that you do not acquire
under this Agreement any license to use the LawnStarter programs
or the Platform other than as set forth herein. Upon termination
of this Agreement, your right to access or use the Platform and
any LawnStarter programs will terminate.
LawnStarter may charge a fee for your access to and use of the Platform, or elements thereof. If LawnStarter charges a fee for your access to and use of the Platform, or elements thereof, you hereby agree to pay the fee on the terms set forth by LawnStarter or LawnStarter may terminate this Agreement and your access to and use of the Platform. This termination may result in the forfeiture and destruction of all of your data, subject to Section 7.3.
4.1
You retain all ownership and intellectual property rights in
and to your data. LawnStarter or its licensors retain all
ownership and intellectual property rights to the Platform
and any data, including customer data, that it provides or
otherwise makes available to you on the Platform. LawnStarter
retains all ownership and intellectual property rights to
anything developed and delivered under this Agreement.
4.2
Third party technology that may be appropriate or necessary for
use with some LawnStarter programs is specified in the program
documentation or on the Platform, as applicable. Your right to
use such third party technology is governed by the terms of the
third party technology license agreement specified by
LawnStarter and not under this Agreement.
4.3
You may not:
4.4
Payment processing services for providers on LawnStarter are provided by Stripe and are subject to the Stripe Connected Account Agreement , which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to operate as a provider on LawnStarter, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of LawnStarter enabling payment processing services through Stripe, you agree to provide LawnStarter accurate and complete information about you and your business, and you authorize LawnStarter to share it and transaction information related to your use of the payment processing services provided by Stripe.
5.1
LawnStarter warrants that the Platform will perform in all
material respects in accordance with the program documentation.
If the Platform in any given month during the Term do not
perform as warranted, you must provide written notice to
LawnStarter no later than five business days after the last
day of the applicable month.
5.2
LAWNSTARTER DOES NOT GUARANTEE THAT THE PLATFORM WILL BE
ERROR-FREE OR UNINTERRUPTED, OR THAT LAWNSTARTER WILL CORRECT
ALL ERRORS. YOU ACKNOWLEDGE THAT LAWNSTARTER DOES NOT CONTROL
THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING
THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO
LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF
SUCH COMMUNICATIONS FACILITIES. LAWNSTARTER IS NOT RESPONSIBLE
FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING
FROM THESE PROBLEMS.
5.3
Should an element of the Platform become, or be likely to
become, in LawnStarter’s opinion, the subject of infringement
of a third party intellectual property right, LawnStarter will
(a) procure for you the right to continue using the same, or
(b) replace or modify it to make it non-infringing, provided
that the replacement or modification performs the same functions
and matches or exceeds the performance and functionality of the
Platform. In the event that LawnStarter reasonably determines
that neither (a) nor (b) above is commercially practicable,
LawnStarter may terminate this Agreement.
5.4
WITH THE EXCEPTION OF THOSE EXPRESS WARRANTIES MADE IN THIS
SECTION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LAWNSTARTER
DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE,
NON-INFRINGEMENT, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
6.1
Each party (“Indemnifying Party”) hereby releases and will
defend, hold harmless, the other party and its subsidiaries,
affiliates, directors, officers, employees, agents, successors
and assigns (collectively “Indemnified Parties”), from any third
party allegation or claim and against any loss, damage,
settlement, cost, expense and any other liability (including
reasonable attorneys’ fees incurred and/or those necessary to
successfully establish the right to indemnification)
(“collectively “Claims”), to the extent arising from or related
to the Indemnifying Party’s breach of its representations or
warranties under this Agreement, gross negligence, strict
liability or willful misconduct. Indemnifying Party’s duty
to defend is independent of its duty to indemnify.
6.2
The Indemnified Party will give the Indemnifying Party prompt
written notice of any claim subject to indemnification. The
Indemnifying Party will use counsel reasonably satisfactory to
the Indemnified Party to defend each Claim, and the Indemnified
Party will cooperate (at the Indemnifying Party’s expense) with
the Indemnifying Party in the defense. The Indemnifying Party
will not consent to the entry of any judgment or enter into any
settlement without the Indemnified Party’s prior written
consent, which may not be unreasonably withheld. At its
discretion and expense, the Indemnified Party may participate
in the defense, any appeals, and settlement with counsel of
its own choosing. If at any time the Indemnified Party
reasonably determines that the Indemnifying Party is not
effectively and diligently defending any Claim, the Indemnified
Party may take control of the defense of the Claim at the
Indemnifying Party’s expense (without limiting the Indemnifying
Party’s indemnification obligations).
7.1
This Agreement will commence as of your date of acceptance and
will continue until terminated in accordance with termination
provisions herein (“Term”).
7.2
LawnStarter may terminate your access to and use of all or any
part of the Platform at any time, with or without cause, with
or without notice, effective immediately, which may result in
the forfeiture and destruction of all of your data. If you wish
to terminate your access to and use of the Platform, you may do
so by contacting us or through the account settings.
7.3
At your request, and for a period of up to 60 days after the
termination of this Agreement, LawnStarter may permit you to
access the Platform solely to the extent necessary for you to
retrieve a file of your data then in the Platform environment.
You acknowledge agree that LawnStarter has no obligation to
retain your data and that your data may be irretrievably deleted
after 60 days following termination of this Agreement.
7.4
You agree that you have not relied on the future availability
of any Platform, programs or updates in entering into this
Agreement.
8.1
By virtue of this Agreement, the parties may have access to
information that is confidential to one another (“Confidential
Information”). We each agree to disclose only information that
is required for the performance of obligations under the
agreement. Confidential Information will be limited to the
terms of this Agreement, your data residing in the Platform
environment, and all information clearly identified as
confidential at the time of disclosure.
8.2
A party’s Confidential Information will not include information
that: (a) is or becomes a part of the public domain through no
act or omission of the other party; (b) was in the other party’s
lawful possession prior to the disclosure and had not been
obtained by the other party either directly or indirectly
from the disclosing party; (c) is lawfully disclosed to the
other party by a third party without restriction on the
disclosure; or (d) is independently developed by the other
party without use of or reference to the other party’s
Confidential Information.
8.3
We each agree to hold each other’s Confidential Information in
confidence for a period of three years from the date of
disclosure. Also, we each agree to disclose Confidential
Information only to those employees or agents who are required
to protect it against unauthorized disclosure in a manner no
less protective than under this Agreement. LawnStarter will
protect the confidentiality of your data residing in the
Platform environment in accordance with the LawnStarter
security practices specified in the [LawnStarter Privacy
Policy], which is incorporated herein by reference. Nothing
will prevent either party from disclosing the other party’s
Confidential Information in connection with any legal
proceeding arising from or in connection with this Agreement
or from disclosing the Confidential Information to a
governmental entity as required by law.
You agree that LawnStarter will communicate with you by email, telephone, push notification, and SMS or text message.
NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. LAWNSTARTER’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, WILL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF (I) THE TOTAL AMOUNTS ACTUALLY PAID TO YOU BY LAWNSTARTER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, OR (II) $100.00.
10.1
With respect to the collection, use and disclosure of your data,
LawnStarter will comply with the LawnStarter Privacy Policy.
You agree to provide any notices and obtain any consents related
to your access or use of the Platform and LawnStarter’s
provision of the Platform, including those related to the
collection, use, processing, transfer and disclosure of
personal information. You will have sole responsibility for
the accuracy, quality, integrity, legality, reliability,
appropriateness and ownership of all of your data.
10.2
You hereby grant to LawnStarter a worldwide, nonexclusive,
perpetual, royalty-free, paid-up license to use, copy, modify
and make derivative works of your data for LawnStarter’s
internal business purposes.
You agree not to use or permit use of the Platform, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to LawnStarter under this Agreement, LawnStarter reserves the right to terminate your access to and use of the Platform, or remove or disable access to any material that violates the foregoing restrictions. LawnStarter will have no liability to you in the event that LawnStarter takes such action. You agree to defend and indemnify LawnStarter against any claim arising out of a violation of your obligations under this section.
LawnStarter may compile statistical information related to the performance of the Platform, and may make such information publicly available, provided that such information does not incorporate your data, identify your Confidential Information, or include your company’s name. LawnStarter retains all intellectual property rights in such information.
The Platform may enable you to add links to websites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. LawnStarter is not responsible for any third party websites or third party content provided on or through the Platform and you bear all risks associated with the access and use of such websites and third party content, products and services.
You agree (a) that LawnStarter may identify you as a user of the Platform and use your logo in sales presentations, marketing materials and press releases, and (b) to develop a brief customer profile for use by LawnStarter on LawnStarter.com for promotional purposes.
15.1 Non-Solicitation.
During the Term and for a period of one year
thereafter, each party agrees that it will not: (a) directly or
indirectly induce any customers or clients of the other party
to patronize that party or any similar business; (b) directly
or indirectly request or advise any customer or client of the
other party to withdraw, curtail, or cancel that customer's or
client's business with the other party; or (c) make any
statement disparaging the other party, any member, principal,
officer, director, shareholder, employee or agent thereof, to
any person, firm, corporation or other business organization
whatsoever. Nothing herein will prohibit either party from
performing services for or providing products to customers or
clients who (x) respond to general advertising by a party, (y)
voluntarily withdraw or cancel their business with a party, or
(z) contact a party directly.
15.2 Relationship of the Parties.
The relationship of you and
LawnStarter established by this Agreement is that of independent
parties. Nothing contained in this Agreement in intended, or is
to be construed, to constitute the party’s as partners in the
legal sense. Neither party has any express or implied right
or authority to assume or create any obligations on behalf of
or in the name of the other party or to bind the other party
to any contract, agreement, or undertaking with any third party.
15.3 No Waiver.
Neither party waives any right under this Agreement
by failing to insist on compliance with any of the terms of this
Agreement or by failing to exercise any right hereunder. Any
waivers granted hereunder are effective only if recorded in a
writing signed by the party granting such waiver.
15.4 Assignment and Change of Control.
You may not assign any part or all of this Agreement without
LawnStarter’s prior written consent. LawnStarter may assign
this Agreement at any time without notice or consent.
Any attempt to assign in violation of this Section is void in
each instance.
15.5 Governing Law, Venue, and Jurisdiction.
This Agreement is governed by Texas law, excluding its conflicts
of law rules. Developer irrevocably submits to venue and
exclusive personal jurisdiction in the federal and state
courts in Travis County, Texas, for any dispute arising
out of this Agreement, and waives all objections to
jurisdiction and venue of such courts.
15.6 Severability.
If any provision of this Agreement is determined by any court
or governmental authority to be unenforceable, the parties
intend that this Agreement be enforced as if the unenforceable
provisions were not present and that any partially valid and
enforceable provisions be enforced to the extent that they
are enforceable.
15.7 Notice.
Except as expressly provided herein, all notices, requests,
demands, and other communications under this Agreement will be
delivered in writing and will be deemed to have been duly given:
(i) on the next day if delivered personally to the party, (ii)
on the date three days after mailing if mailed by registered or
certified mail, or (iii) on the next day if delivered by
courier. The parties will send all notices to addresses
listed in the preamble above or at another address as may
be provided by a party from time to time.
15.8 Survival.
The following provisions of this Agreement survive termination
or expiration: 1, 4-6, 7.3, 8-10, 12, 14, and 15.
15.9 Entire Agreement.
This Agreement constitutes the complete and final agreement of
the parties pertaining to the subject matter herein and
supersedes the parties’ prior agreements, understandings
and discussions relating to subject matter herein. No
modification of this Agreement is binding unless it is
in writing and signed by both parties.