Service Company Terms of Service
Pure Coastal Service Company Agreement
This Service Company Agreement is by and between Pure Coastal Development LLC, a Florida limited liability company and its assigns with offices located at 365 5th Avenue South, Suite 201, Naples, FL 34102 (“Pure Coastal”), and the entity (the “Service Company”) identified on the applicable online account set-up webpage (the “Order Form”) electronically completed and agreed to through Pure Coastal’s electronic ordering process. Pure Coastal and Service Company may be referred to herein collectively as the “Parties” or individually as a “Party.” The Order Form and this Service Company Agreement, together with any attachments or exhibits incorporated by reference are collectively referred to as the “Agreement”).
This Agreement is effective as of the date the Service Company clicks the “I Agree” button at the time of completing the Order Form (the “Effective Date”). By clicking the “I Agree” button, Service Company (1) acknowledges that it has read and understands this Agreement and that it is legally bound by its terms, and (2) represents and warrants that: (i) the individual clicking “I Agree” is of legal age to enter into a binding contract, and (ii) if Service Company is a corporation, governmental organization, or other legal entity, the individual clicking “I Agree” has the right, power and authority to enter into this Agreement on behalf of Service Company and bind Service Company to its terms.
Definitions. Unless defined elsewhere in the Agreement, capitalized terms used herein shall have the meanings set forth in this Section 1.
“Aggregated Statistics” means data and information related to Service Company’s use of the Software that is used by Pure Coastal in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software.
“Authorized User” means any of Service Company’s employee, consultant, contractor, or agent (i) who is authorized by Service Company to access and use the Software under the rights granted to Service Company pursuant to this Agreement and (ii) for whom access to, and an associated account for, the Service Technician Mobile Application has been purchased by Service Company pursuant to the Order Form.
“Customer” means an individual or entity that purchases Professional Services from Service Company.
“Customer Mobile Application” means the mobile application provided by Pure Coastal for use by Customers and potential Customers, through which Customers can order Professional Services from Service Company, and through which Service Company communicates pricing, special offers and other information to Customers regarding the Professional Services.
“Intellectual Property” means patents, copyrights, trademarks, service marks, trade secrets, know-how, technology and any other intellectual property rights whether existing at common law, applied for, registered or unregistrable, existing anywhere in the world.
“Master Platform” means the Regular Interval Service Companies (RISC) solutions software platform described in the Order Form sign up process and that is provided hereunder to Service Company for use as a services management tool for the provision of Professional Services to Customers.
“Professional Services” means the services that Service Company chooses to offer to its Customers and potential Customers using the Software.
“Pure Coastal IP” means the Software, the Customer Mobile Application, and any and all Intellectual Property provided to Service Company or any Authorized User in connection with the foregoing. For the avoidance of doubt, Pure Coastal IP includes Aggregated Statistics and any information, data, or other content derived from Pure Coastal’s monitoring of Service Company’s access to or use of the Software, but does not include Service Company Data or Service Company Marks.
“Service Company Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Service Company or an Authorized User through the Software.
“Service Technician Mobile Application” is the mobile application used by Service Company’s Authorized Users and through which Service Company can track such Authorized Users’ geo-location and communicate about the provision of Professional Services.
“Software” means the Master Platform and the related Service Technician Mobile Application.
Software Set Up.
Set up. After Service Company submits an Order Form and clicks “I Agree” with respect to this Agreement, Service Company and Pure Coastal may schedule an onboarding meeting (“Onboarding Meeting”), to be conducted virtually or in-person, at the discretion of Pure Coastal. At such Onboarding Meeting, authorized representatives of the Parties will exchange details to determine what information will be needed from Service Company in order to onboard the Service Company and commence use of the Software. Service Company shall promptly provide such details and shall timely and meaningfully respond to all requests and inquiries from Pure Coastal pertaining to onboarding.
Maintenance of Customer Mobile Application Content. After the set up is complete, Service Company will be responsible for maintaining and updating the content that is displayed through the Customer Mobile Application, such as the prices, options, timing, special offers, and all other information related to the Professional Services. Service Company will be solely responsible and liable for keeping such information accurate, complete and up to date. Service Company will be able to update and modify such information through the Master Platform. Service Company acknowledges and agrees that Pure Coastal will have no liability for Service Company’s failure to communicate, and later receive, the appropriate fees for Professional Services through the Customer Mobile Application.
Access and Use of the Software.
Provision of Access to the Software. Subject to and conditioned on Service Company’s payment of Fees and compliance with all other terms and conditions of this Agreement, Pure Coastal hereby grants Service Company a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(f)) limited license to access and use an instance of the Software that is tailored for Service Company during the Term, solely for use by Service Company and its Authorized Users for Service Company’s internal business purposes in accordance with the terms and conditions herein. To access the Software, Service Company shall create an “Account,” which will include information that is unique to Service Company. Service Company hereby agrees to keep its Account current and to update its Account information as necessary or required by Pure Coastal. Pure Coastal shall have no obligation to correct a problem with the Software caused by Service Company’s or an Authorized User’s equipment malfunction or other causes beyond the control of Pure Coastal.
Access and Use of the Service Technician Mobile Application. The license granted in Section 3(a) includes use of the Service Technician Mobile Application. Use of the Service Technician Mobile Application is limited to the number of Authorized Users designated in the Service Order Form, which Service Company may increase at any time during the Term by submitting the applicable information under the “Add a Technician” option within the My Account Page of the Master Platform and paying the applicable additional fees (each such additional Authorized User added after the Effective Date is considered an “Additional Authorized User”). Pure Coastal will provide access to, and corresponding accounts (“Authorized User Accounts”), for the Service Technician Mobile Application for the number of Authorized Users designated on the Service Order Form plus any Additional Authorized Users, provided that Service Company ensures that each Authorized User Account is used by only one individual, thus the number of Authorized Users shall not exceed the number of Authorized User Accounts designated on the Service Order Form plus any Additional Authorized Users. Service Company may transfer an Authorized User Account to a different individual, or terminate an Authorized User Account upon notice to Pure Coastal. Service Company shall provide Pure Coastal with the email addresses associated with each Authorized User Account, and, upon terminating or transferring an Authorized User’s Account, shall promptly provide Pure Coastal with updated email information. Service Company will be liable for any use of an Authorized User Account by someone other than the single Authorized User permitted to use such account. Authorized Users must agree to the Service Technician Mobile Application Terms of Service (“TOS”) in order to access and use the Service Technician Mobile Application and Service Company will be liable for any of its Authorized Users’ breach of the TOS. Pure Coastal may terminate or suspend any Authorized User Account if the individual accessing or using such account is in breach of this Agreement or the TOS. Service Company will be solely responsible and liable for any actions or omissions of an Authorized User after termination or transfer of his or her Authorized User Account related to the products and services contemplated under this Agreement and/or use of any information such former Authorized User obtained through use of the Software.
Use Restrictions. Service Company shall not use the Software for any purposes beyond the scope of the access granted in this Agreement. Service Company shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Software, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part; (iv) remove any proprietary notices from the Software; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any third party, or that violates any applicable law.
Reservation of Rights. Pure Coastal reserves all rights not expressly granted to Service Company in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Service Company or any third party any Intellectual Property rights or other right, title, or interest in or to the Pure Coastal IP.
Notwithstanding anything to the contrary in this Agreement, Pure Coastal may temporarily suspend Service Company’s and any Authorized User’s access to any portion or all of the Software if: (i) Pure Coastal reasonably determines that (A) there is a threat or attack on any of the Pure Coastal IP; (B) Service Company’s or any Authorized User’s use of the Pure Coastal IP disrupts or poses a security risk to the Pure Coastal IP or to any other customer or vendor of Pure Coastal; (C) Service Company, or any Authorized User, is using the Pure Coastal IP for fraudulent or illegal activities; (D) subject to applicable law, Service Company has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Pure Coastal’s provision of the Software to Service Company or any Authorized User is prohibited by applicable law; (ii) any vendor of Pure Coastal has suspended or terminated Pure Coastal’s access to or use of any third-party services or products required to enable Service Company to access the Software; or (iii) in accordance with Section 5(a) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Pure Coastal shall use commercially reasonable efforts to provide written notice of any Service Suspension to Service Company and to provide updates regarding resumption of access to the Software following any Service Suspension. Pure Coastal shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Pure Coastal will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Service Company or any Authorized User may incur as a result of a Service Suspension.
Monitoring. Notwithstanding anything to the contrary in this Agreement, Pure Coastal may monitor Service Company’s use of the Software for purposes including but not limited to assisting Service Company in its use of and operations using the Software and to collect and compile Aggregated Statistics. As between Pure Coastal and Service Company, all right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by Pure Coastal. Service Company acknowledges that Pure Coastal may compile Aggregated Statistics based on Service Company Data input into the Software. Service Company agrees that Pure Coastal may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Service Company or Service Company’s confidential information.
Service Company Responsibilities.
Service Company is responsible and liable for all uses of the Software resulting from access provided by Service Company and through Service Company’s Account and its Authorized User Accounts, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Service Company is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Service Company will be deemed a breach of this Agreement by Service Company. Service Company shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions. Service Company shall safeguard the confidentiality of its Account information. Service Company is responsible for preserving the confidentiality of its Account information. Service Company shall be responsible for all activity that occurs in connection with its Account and its Authorized Users Accounts and Pure Coastal will not be responsible for any damage or injury caused by Service Company’s or Authorized Users’ failure to keep such account information confidential.
Fees; Audit Rights; Personally Identifiable Information.
Fees. Service Company shall pay Pure Coastal the Software subscription fees (“Fees”) set forth on the Service Order Form plus any and all fees associated with Additional Authorized Users that Service Company elects to purchase, without offset or deduction for each Initial and Renewal Term in the Term of this Agreement. Service Company acknowledges and agrees that with respect to any Additional Authorized Users, the associated license fees are pro-rated on a daily basis through the end of the month that Service Company elects to purchase such Additional Authorized User, and full payments will be owed for every subsequent month thereafter as part of the Fees. Service Company hereby authorizes Pure Coastal’s third party payment processor to charge and automatically collect the Fees from Service Company using Service Company’s selected payment method, as designated in the Master Platform. Service Company acknowledges and agrees that all Fees are payable and collected in advance prior to the start of the subscription term designated in the Service Order Form, unless indicated otherwise on the Service Order Form. Service Company is responsible for ensuring all billing and payment information is accurate, complete and up to date in the Master Platform. If Service Company fails to make any payment when due, without limiting Pure Coastal’s other rights and remedies: (i) Pure Coastal may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Service Company shall reimburse Pure Coastal for all reasonable costs incurred by Pure Coastal in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more after written notice thereof, Pure Coastal may suspend Service Company’s and its Authorized Users’ access to any portion or all of the Software until such amounts are paid in full.
Taxes. All Fees and other amounts payable by Service Company under this Agreement are exclusive of taxes and similar assessments. Service Company is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Service Company hereunder, other than any taxes imposed on Pure Coastal’s income.
Payments for Professional Services. As described in Section 2(b), Service Company will designate and communicate to Customers through the Customer Mobile Application the fees associated with the Professional Services (“Customer Fees”). Customers will have the option through the Customer Mobile Application to submit a tip (“Tip”), in addition to the Customer Fees, in connection with the receipt of Professional Services. Service Company acknowledges and agrees that (i) Customer Fees and Tips are collected and processed through the Customer Mobile Application via a third party payment processor and then submitted directly to Service Company, less payment processor fees, which are set forth in the Order Form and subject to change upon notice to you, charged by the third party processor at a current rate of 2.9% and $0.30, plus the Pure Coastal technology fee, which will not exceed 1.00%, the exact percentage of which will be identified in the Order Form; (ii) Customer Fees and Tips are not paid to, received by, or possessed for any amount of time by Pure Coastal and Pure Coastal merely provides Service Company a tool, through the Software and Customer Mobile Application, to charge and receive payments from Customers for Professional Services; and (iii) Pure Coastal will not be liable for, and Service Company will indemnify and hold harmless Pure Coastal for any and all Losses (defined in Section 8(a)(i)) incurred by Pure Coastal resulting from any Third-Party Claim (defined in Section 8(a)(i)) arising out of arising out of, Service Company’s failure to receive any Customer Fees and/or Tips.
Auditing Rights. Pure Coastal may, at its own expense, on reasonable prior notice to Service Company, periodically inspect and audit Service Company’s records with respect to matters covered by this Agreement solely to ensure compliance with the terms of this Agreement, including without limitation, the restriction on the number of Authorized Users permitted to access the Authorized User Accounts as described in Section 3(b). Service Company shall pay for the costs of the audit and the reasonable cost of an additional license(s) for an additional Authorized User(s) if the audit reveals that Service Company has permitted more than the designated number of Authorized Users on the Service Order Form to access and use the Service Technician Mobile Application through an Authorized User Account. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of one year after the termination or expiration of this Agreement.
Intellectual Property Ownership; Feedback.
Pure Coastal IP. Service Company acknowledges that, as between Service Company and Pure Coastal, Pure Coastal owns all right, title, and interest, including all Intellectual Property rights, in and to the Pure Coastal IP.
Service Company Data. Pure Coastal acknowledges that, as between Pure Coastal and Service Company, Service Company owns all right, title, and interest, including all Intellectual Property rights, in and to the Service Company Data. Service Company hereby grants to Pure Coastal a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Service Company Data and perform all acts with respect to the Service Company Data as may be necessary for Pure Coastal to provide the Software to Service Company, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Service Company Data incorporated within the Aggregated Statistics.
Feedback. If Service Company or any of its Authorized Users, employees or contractors sends or transmits any communications or materials to Pure Coastal by mail, email, telephone, or otherwise, suggesting or recommending changes to the Pure Coastal IP or any comments, questions, suggestions, or the like (“Feedback”), Pure Coastal is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Service Company hereby assigns to Pure Coastal all right, title, and interest in and to any ideas, know-how, concepts, techniques, or other Intellectual Property rights contained in the Feedback.
Disclaimer. SERVICE COMPANY ACKNOWLEDGES AND AGREES THAT THE SOFTWARE AND CUSTOMER MOBILE APPLICATION ARE MERELY TOOLS PROVIDED BY PURE COASTAL TO ASSIST SERVICE COMPANY WITH MANAGEMENT OF ITS OPERATIONS. THE PURE COASTAL IP IS PROVIDED “AS IS” AND PURE COASTAL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PURE COASTAL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PURE COASTAL MAKES NO WARRANTY OF ANY KIND THAT THE PURE COASTAL IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SERVICE COMPANY’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Pure Coastal Indemnification.
Pure Coastal shall indemnify, defend, and hold harmless Service Company from and against any and all losses, damages, liabilities, costs (including attorneys’ fees) (“Losses”) incurred by Service Company resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software or the Customer Mobile Application, or any use of the Software in accordance with this Agreement, infringes or misappropriates such third party’s Intellectual Property rights, provided that Service Company promptly notifies Pure Coastal in writing of the claim, cooperates with Pure Coastal, and allows Pure Coastal sole authority to control the defense and settlement of such claim.
If such a claim is made or appears possible, Service Company agrees to permit Pure Coastal, at Pure Coastal’s sole discretion, to (A) modify or replace the Software and/or Customer Mobile Application, or component or part thereof, to make it non-infringing, or (B) obtain the right for Service Company to continue use. If Pure Coastal determines that neither alternative is reasonably available, Pure Coastal may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Service Company.
This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Pure Coastal or authorized by Pure Coastal in writing; (B) modifications to the Software not made by Pure Coastal; or (C) Service Company Data.
Service Company Indemnification. Service Company shall indemnify, hold harmless, and, at Pure Coastal’s option, defend Pure Coastal from and against any Losses resulting from any Third-Party Claim that the Service Company Data, or any use of the Service Company Data in accordance with this Agreement, infringes or misappropriates such third party’s Intellectual Property rights and any Third-Party Claims based on Service Company’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Software in a manner not authorized by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Pure Coastal or authorized by Pure Coastal in writing; (iv) modifications to the Software not made by Pure Coastal; or (v) offer, provision or management of Professional Services or any information provided by Service Company or Authorized Users through the Software to Customers regarding Professional Services, provided that Service Company may not settle any Third-Party Claim against Pure Coastal unless Pure Coastal consents to such settlement, and further provided that Pure Coastal will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Sole Remedy. THIS SECTION 8 SETS FORTH SERVICE COMPANY’S SOLE REMEDIES AND PURE COASTAL’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability. IN NO EVENT WILL PURE COASTAL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PURE COASTAL WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PURE COASTAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY SERVICE COMPANY TO PURE COASTAL IN THE 12 MONTHS PRECEDING SUCH CLAIM
Term and Termination.
Term. The terms and conditions of this Agreement are effective and binding upon the Parties as of the Effective Date and will continue in full force and effect until the end of the Term (as defined below). Notwithstanding the foregoing, for the purposes of determining Fees owed, the subscription term of this Agreement begins on the Effective Date, unless the Service Order Form includes a free trial, in which case the subscription term begins on the completion of the free trial period, and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the duration of the subscription term, as designated on the Service Order Form (the “Initial Term”). This Agreement will automatically renew at the end of the Initial Term for successive terms that are the same length as the Initial Term, subject to Pure Coastal’s then-current Fees, unless earlier terminated pursuant to this Agreement’s express provisions (each a “Renewal Term” and together with the Initial Term, the “Term”).
Termination. In addition to any other express termination right set forth in this Agreement:
Pure Coastal may terminate this Agreement at any time for any reason upon thirty (30) days’ written notice to Service Company;
if the Initial Term is for one year, then either Party may terminate by providing the other Party with written notice of non-renewal at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term. If the Initial Term is for one month, then either Party may terminate this Agreement only after the second Renewal Term, upon providing the other Party with written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current Renewal Term;
Service Company may terminate this Agreement, effective on written notice to Pure Coastal, if Pure Coastal materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the Service Company provides Pure Coastal with written notice of such breach; or
either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Service Company shall immediately discontinue use of the Pure Coastal IP and Service Company shall delete, destroy, or return all copies of the Pure Coastal IP and certify in writing to the Pure Coastal that the Pure Coastal IP has been deleted or destroyed. No expiration or termination will affect Service Company’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Service Company to any refund, including without limitation Service Company’s termination of an Authorized User Account in accordance with Section 3(b). Upon termination or expiration of this Agreement, Pure Coastal shall promptly make all Service Company Data available to Service Company in a reasonable format selected by Pure Coastal.
Survival. This Section 10(d) and Sections 1, 5(e), 6, 7, 8(b), 9, 10, and 121 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Parties from time to time). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). A Notice is effective upon receipt by the receiving Party.
Force Majeure. In no event shall Pure Coastal be liable to Service Company, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Pure Coastal’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
Amendment and Modification; Waiver. This Agreement may be amended at any time by Pure Coastal without prior written approval by you; provided, that Pure Coastal shall provide written notification to you of such modification either through its website or via other means. Your continued enjoyment of the Services provided in accordance with this Agreement following such notification shall constitute your agreement to such modifications. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Governing Law; Submission to Jurisdiction. This Agreement is governed under the laws of the State of Florida without regard to its conflict of law provisions. Any claim, legal proceeding or litigation arising in connection with this Agreement shall be brought solely within the courts of the State of Florida located in Collier County and the Parties hereby expressly waive any challenge to the jurisdiction of such courts.
Assignment. Service Company may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Pure Coastal. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
Export Regulation. Service Company shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Software or any Service Company Data outside the US.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by Service Company of Section 3(c), would cause Pure Coastal irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the Pure Coastal will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
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