FIND YOUR GRIND PLATFORM SERVICES AGREEMENT

This Find Your Grind Platform Services Agreement (this “Agreement”) is made and entered into by and between Find Your Grind, Inc., a Delaware corporation (“Find Your Grind”), and the entity or person agreeing to these terms (“Client”).  This Agreement is effective as of the date Client accepts this Agreement (the “Effective Date”) by executing a service order application or form (the “Service Order”), which is hereby incorporated by reference.  Any individual accepting this Agreement on behalf of Client, hereby represents and warrants that: (i) such person has full legal authority to bind Client to this Agreement; (ii) such person has read and understands this Agreement; and (iii) such person agrees, on behalf of Client, to the terms of this Agreement.  Pursuant to the applicable Service Order, Client desires to obtain from Find Your Grind certain platform services relating to Find Your Grind’s Alternative Educational Curriculum (the “Platform Services”) delivered in and through Find Your Grind’s software solutions (the “Service Software”), subject to and in accordance with the terms and conditions of this Agreement.

  1. PLATFORM SERVICES.
    • 1.1 Platform Services.  Subject to Client’s, and each Authorized User’s, compliance with the terms and conditions of this Agreement, Find Your Grind will use commercially reasonable efforts to make the Platform Services available to Client and its Authorized Users (defined below) during the Term and in accordance with the specifications set forth on the Service Order (subject to the limitations set forth in the Documentation (defined below), the “Specifications”) and terms and conditions of this Agreement, solely for Client’s internal business purposes as set forth in (the “Permitted Use”), and solely within the United States, or such other narrower region as set forth in the Service Order or confirmatory acceptance by Find Your Grind (as the case may be, the “Territory”). 
    • 1.2 Authorized Users. Client’s employees and agents (“Client Personnel”), and students (“Students”), who are authorized by Client to use the Platform Services (each, an “Authorized User”) may access and use the Platform Services under Client’s master account. Each Authorized User must create and use its own login credentials to access the Platform Services. Client is responsible for all actions of its Authorized Users in connection with the Platform Services and their compliance with the terms of this Agreement.  The number of Authorized Users is set forth on the Service Order, provided, further that, Client may increase the number of Authorized Users, in consideration of payment of fees for such additional Authorized Users, upon notice to Find Your Grind.  Each Authorized User will have a unique user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Platform Services (“User Credentials”).
    • 1.3 Find Your Grind Curricula.  By using the Platform Services, Client will have access to Find Your Grind’s proprietary alternative educational curricula and programs (the “Curricula”), and related data and materials.
    • 1.4 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
      • 1.4.1 Find Your Grind has and will retain sole control over the operation, provision, maintenance and management of the Platform Services and Find Your Grind Materials, including the: (i) Find Your Grind Systems; (ii) location(s) where any of the Platform Services are performed; (iii) selection, deployment, modification and replacement of the Find Your Grind software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Find Your Grind provides remote access to and use of as part of the Platform Services (the “Service Software”); and (iv) performance of Support Services and Platform Service maintenance, upgrades, corrections and repairs.  “Find Your Grind Systems”means the information technology infrastructure used by or on behalf of Find Your Grind in performing the Platform Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Find Your Grind or through the use of third-party services.
      • 1.4.2 Client has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Platform Services and Find Your Grind Materials by any individual, business entity or venture, governmental authority, unincorporated organization, trust, association or other entity (each, a “Person”) by or through the Client Systems or any other means controlled by Client or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Platform Services or Find Your Grind; (ii) results obtained from any use of the Platform Services or Find Your Grind Materials; and (iii) act, omissions, and undertakings based on such use.  “Client Systems” means Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third-party services.
      • 1.4.3 Notwithstanding anything to the contrary in this Agreement, all Services, including all processing of Client Data by or on behalf of Find Your Grind shall be provided solely from within, and on computers, systems, networks and other infrastructure located in, the United States.
    • 1.5 Changes. Find Your Grind reserves the right, in its sole discretion, to make any changes to the Platform Services and Find Your Grind Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Find Your Grind’s services to its clients, (ii) the competitive strength of or market for Find Your Grind’s services or (iii) the Platform Services’ cost efficiency or performance; or (b) to comply with applicable Law.
    • 1.6 Subcontractors. Find Your Grind may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
    • 1.7 Suspension or Termination of Services. Find Your Grind may, directly or indirectly, and by use of a device or application intended to disable Client’s use of, or access to, the Platform Services, or any other lawful means, suspend, terminate or otherwise deny Client’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Platform Services or Find Your Grind Materials, without incurring any resulting obligation or liability, if: (a) Find Your Grind receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Find Your Grind to do so; or (b) Find Your Grind believes, in its sole discretion, that: (i) Client or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Platform Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Platform Services; or (iii) this Agreement expires or is terminated. This Section 1.7 does not limit any of Find Your Grind’s other rights or remedies, whether at law, in equity or under this Agreement.
    • 1.8 Service Support. The Platform Services include Find Your Grind’s standard client support services (“Support Services”).
  2. OWNERSHIP. 
    • 2.1 Find Your Grind Platform Services and Data.  As between the parties, Find Your Grind is the sole owner of all rights, title and interest in and to Find Your Grind Materials including without limitation, the Platform Services, Platform console, tools, methods, know-how, inventions, features, data models, and data architecture provided or otherwise developed by Find Your Grind in connection with the provision of the Platform Services, and any enhancements, modifications, adaptations, or improvements thereto made by Find Your Grind.  This includes without limitation, all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights recognized in any jurisdiction in the world (collectively, “Intellectual Property Rights”) therein, whether or not fully matured, accrued, or registrable, as may now or in the future be recognized under any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction (collectively, such applicable law being referred to herein as “Law”).  “Find Your Grind Materials” means the Platform Services, Service Software, Specifications, Documentation and Find Your Grind 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 or used by Find Your Grind or any Subcontractor in connection with the Platform Services or otherwise comprise or relate to the Platform Services or Find Your Grind Systems. For the avoidance of doubt, Find Your Grind Materials include resultant data and any information, data or other content derived from Find Your Grind’s monitoring of Client’s access to or use of the Platform Services, but do not include Client Data.
    • 2.2 Authorization of Use of Platform Services.  Subject to and conditioned on Client’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Find Your Grind hereby authorizes Client to access and use, solely in the Territory and during the Term, the Platform Services and such Find Your Grind Materials as Find Your Grind may supply or make available to Client solely for the use(s) permitted pursuant to the terms of this Agreement, by and through Authorized Users in accordance with the Specifications, and the conditions and limitations set forth in this Agreement.  Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Platform Services, Find Your Grind Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Platform Services, Find Your Grind Materials and the Third Party Materials are and will remain with Find Your Grind and the respective rights holders in the Third Party Materials.  “Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Platform Services that are not proprietary to Find Your Grind.
    • 2.3 Privacy. Client will obtain and maintain any required consents necessary to permit the processing of Client Data under this Agreement.
    • 2.4 Restrictions. Client acknowledges that Find Your Grind Materials (as defined below) contain trade secrets of Find Your Grind and its licensors, and, in order to protect such trade secrets and other interests that Find Your Grind has in Find Your Grind Materials (including, without limitation, the Platform Services), and all Intellectual Property Rights therein. Client will not, may not, and will not permit any other Person to, access or use the Platform Services or Find Your Grind Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Without limiting the generality of the foregoing, Client will not, may not, and will not permit any other Person to:
      • 2.4.1 reverse engineer, decompile or disassemble Find Your Grind Materials, adapt or otherwise attempt to derive or gain access to the source code of the Platform Services or Find Your Grind Materials, in whole or in part, or authorize any Person to do any of the foregoing
      • 2.4.2 modify, distribute, sell, sublicense, create derivative works of, or otherwise transfer Find Your Grind Materials;
      • 2.4.3 copy Find Your Grind Materials except as strictly necessary to use the Platform Services in accordance with the terms of this Agreement;
      • 2.4.4 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available, the Platform Services or functionality of Find Your Grind Materials  to any Person other than an Authorized User through any means, including, but not limited to, by uploading Find Your Grind Materials to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or other use or configuration whereby Find Your Grind Materials are used by, for the benefit of, or to provide a service on the computer equipment of a third party;
      • 2.4.5 use Find Your Grind Materials, or any Find Your Grind technology or Confidential Information, to create, improve (directly or indirectly) or offer a substantially similar product or service, or build a competitive product;
      • 2.4.6 repackage, redistribute, or sell Find Your Grind Materials as an OEM product. In addition, Client will not share Curricula with any third party other than its Client Personnel and Student, and solely for the intended use. Client will reproduce all of Find Your Grind’s and its licensors’ copyright notices and any other proprietary rights notices on all copies of Find Your Grind Materials that Find Your Grind makes available hereunder;
      • 2.4.7. bypass or breach any security device or protection used by the Platform Services or Find Your Grind Materials or access or use the Platform Services or Find Your Grind Materials other than by an Authorized User through the use of his or her own then valid User Credentials;
      • 2.4.8 input, upload, transmit or otherwise provide to or through the Platform Services or Find Your Grind Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code;
      • 2.4.9 damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Platform Services, Find Your Grind Systems or Find Your Grind’s provision of services to any third party, in whole or in part;
      • 2.4.10 remove, delete, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Find Your Grind Materials, including any copy thereof;
      • 2.4.11 access or use the Platform Services or Find Your Grind Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Find Your Grind client), or that violates any applicable Law;
      • 2.4.12 access or use the Platform Services or Find Your Grind Materials for purposes of competitive analysis of the Platform Services or Find Your Grind Materials, the development, provision or use of a competing software service or product or any other purpose that is to Find Your Grind’s detriment or commercial disadvantage
      • 2.4.13 access or use the Platform Services or Find Your Grind Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Platform Services could lead to personal injury or severe physical or property damage; or
      • 2.4.14 otherwise access or use the Platform Services or Find Your Grind Materials beyond the scope of the authorization granted under this Agreement.
    • 2.5 Feedback.  All feedback, comments, and suggestions for improvements that Client provides to Find Your Grind hereunder, are referred to collectively as “Client Feedback”.  Client hereby irrevocably transfers and assigns to Find Your Grind and agrees to irrevocably assign and transfer to Find Your Grind all of Client’s right, title, and interest in and to all Client Feedback, and Client will execute documents and take such further acts as Find Your Grind may reasonably request to assist Find Your Grind to acquire, perfect and maintain its Intellectual Property Rights and other legal protections for the Client Feedback.
  3. CLIENT OBLIGATIONS.
    • 3.1 Client Systems and Cooperation.  Client shall at all times during the Term: (i) set up, maintain and operate in good repair and in accordance with the Specifications all Client Systems on or through which the Platform Services are accessed or used; (ii) provide Find Your Grind personnel with such access to Client’s premises and Client Systems as is necessary for Find Your Grind to enable the Platform Services in accordance with the Specifications; and (iii) provide all cooperation and assistance as Find Your Grind may reasonably request to enable Find Your Grind to exercise its rights and perform its obligations under and in connection with this Agreement.
    • 3.2 Effect of Client Failure or Delay. Find Your Grind is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Client Failure”).
    • 3.3 Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by Section 2.4, Client will, and will cause its Authorized Users to, immediately: (i) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Platform Services and Find Your Grind Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (ii) notify Find Your Grind of any such actual or threatened activity.
    • 3.4 Non-Solicitation. During the Term and for twelve (12) months following the termination or expiration of the Term, Client shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Find Your Grind or any Subcontractor or involved in any respect with the Platform Services or the performance of this Agreement. Client acknowledges that Find Your Grind’s employees are a valuable asset of Find Your Grind. In the event of a violation of this Section 3.4, in addition to, and not in lieu of any other remedy in law or equity (including equitable relief such as an injunction), Find Your Grind will be entitled to liquidated damages equal to the compensation paid by Find Your Grind to the applicable employee or contractor during the prior twelve (12) months.
  4. CONFIDENTIAL INFORMATION.
    • 4.1 Definition.  “Confidential Information” means: (i) the Platform Services (including the existence thereof), and any features produced by, and other any information, documentation, manuals, instructions or other documents or materials that Find Your Grind provides or makes available to Client in any form or medium which describe or relate to the Platform Services or other Find Your Grind Materials (including, without limitation, Client Feedback, collectively, “Documentation”); and (ii) any business or technical information of Find Your Grind or Client, including, but not limited to, any information relating to product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or otherwise should be reasonably deemed confidential, and, if orally disclosed, is reduced to writing by the disclosing party within thirty (30) days of such disclosure.
    • 4.2 Restrictions.  Neither party will use or disclose any Confidential Information, except as necessary for the performance of this Agreement and each party will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information of a similar nature and importance.  Each party may disclose Confidential Information only to those of its employees, contractors, and service providers who have a bona fide need to know such Confidential Information for the performance of this Agreement; provided, that each such employee, contractor, or service provider first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement.  To the extent there is a breach of Confidential Information or Intellectual Property Rights, each party may seek injunctive relief in any court of competent jurisdiction without the posting of a bond or other similar requirement.  
    • 4.3 Exclusions. The obligations in Section 4.2 will not apply to the extent any information: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without access to or use of any Confidential Information that can be evidenced in writing; or (iv) is rightfully obtained by the receiving party from a third party without restriction on use or disclosure. In addition, the receiving party may disclose such Confidential Information of the disclosing party that it is required to disclose pursuant to a court order or other judicial process provided, the receiving party shall first give the disclosing party prompt notice and only disclose the minimum amount of information required.  Find Your Grind may further disclose the existence of this Agreement to any of its investors, shareholders, or prospective investors or acquirers.  
  5. PAYMENT.
    • 5.1 Fees.  Client will pay Find Your Grind the fees specified in the Service Order in accordance with the terms set forth therein and this Agreement (“Fees”) and any reasonable out of pocket expenses incurred or committed by Find Your Grind and approved by Client in advance in writing.  Any additional services or features that may be provided by Find Your Grind shall be subject to additional fees set forth in either a mutually agreed upon amendment to this Agreement or the execution of a change order. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client 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 Client hereunder, other than any taxes imposed on Find Your Grind’s income.
    • 5.2 Payment Terms.  Unless set forth otherwise in the applicable Service Order, all Fees and other amounts set forth in the Service Order are stated in and are payable in U.S. dollars, and are due and payable within thirty (30) days from the date of the invoice[1] thereof from Find Your Grind.  To the extent Client does not dispute such invoice in good faith within ten (10) days of receipt, such invoice shall be deemed approved and to the extent Client fails to pay such invoice, Find Your Grind may in its discretion, and without limiting its termination or other rights, (i) charge interest at 1.5% per month, (ii) suspend access to Find Your Grind Materials; and (iii) to the extent Client is more than 30 days late, be immediately reimbursed for any collection fees including any reasonable attorney fees or costs.
    • 5.3 No Deductions or Setoffs. All amounts payable to Find Your Grind under this Agreement shall be paid by Client to Find Your Grind in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
  6. WARRANTY DISCLAIMERS AND RELATED MATTERS. 
    • 6.1 Warranty Disclaimer.  CLIENT ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, FIND YOUR GRIND MATERIALS ARE BEING PROVIDED ON AN “AS IS” BASIS.  FIND YOUR GRIND DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR COLLATERAL, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHER, FIND YOUR GRIND DOES NOT WARRANT OR GUARANTEE: (I) THE USE OF FIND YOUR GRIND MATERIALS (INCLUDING, WITHOUT LIMITATION, THE PLATFORM SERVICES), OR RESULTS THEREOF OR THEREFROM, or (II) THAT FIND YOUR GRIND MATERIALS WILL MEET CLIENT’S EXPECTATIONS. FIND YOUR GRIND DISCLAIMS ALL LIABILITY ARISING FROM ALL THIRD PARTY APPLICATIONS OR DATA INCLUDING, ANY RESULTS OR REPORTS GENERATED FROM SUCH THIRD PARTY DATA OR CLIENT DATA OR MATERIALS.  IN FURTHERANCE OF THE FOREGOING, CLIENT ACKNOWLEDGES AND AGREES THAT FIND YOUR GRIND HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED OR COLLATERAL, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO ANY MATTER ENUMERATED IN SUBPARTS (I)-(III) OF THIS SECTION 6.1, OR OTHERWISE ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.
    • 6.2 Find Your Grind Systems and Security Obligations. Find Your Grind will employ security measures in accordance with Find Your Grind’s Privacy Policy as amended from time to time (“Privacy Policy”).
    • 6.3 Data Breach Procedures. Find Your Grind maintains a data breach plan in accordance with the criteria set forth in Find Your Grind’s Privacy Policy and shall implement the procedures required under such data breach plan on the occurrence of a data breach.
    • 6.4 Prohibited Data. Client acknowledges that the Platform Services are not designed with security and access management for processing the following categories of information: (i) any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located (collectively, “Personal Information”); or (ii) any data other than the Client’s Personnel’s and Students’ data generated in the ordinary course of use of the Services (each of the foregoing, “Prohibited Data”). Client shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or process any Prohibited Data through, the Platform Services, Find Your Grind Systems or any Find Your Grind personnel. Client is solely responsible for reviewing all Client Data and shall ensure that no Client Data constitutes or contains any Prohibited Data.
    • 6.5 Client Control and Responsibility. Client has and will retain sole responsibility for: (i) all Client Data, including its content and use; (ii) all information, instructions and materials provided by or on behalf of Client or any Authorized User in connection with the Platform Services; (iii) Client’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third-party services (“Client Systems”); (d) the security and use of Client’s and its Authorized Users’ User Credentials; and (e) all access to and use of the Platform Services and Find Your Grind Materials directly or indirectly by or through the Client Systems or its or its Authorized Users’ User Credentials, with or without Client’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
    • 6.6 Access and Security. Client shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all User Credentials, protect against any unauthorized access to or use of the Platform Services, and to control the use of the Platform Services by all Authorized Users.
    • 6.7 Data Backup. The Platform Services do not replace the need for Client to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CLIENT DATA.
  7. LIMITATION ON LIABILITY.
    • 7.1. EXCEPT FOR BREACH OF EACH PARTY’S CONFIDENTIALITY OBLIGATIONS IN SECTION 4 OF THE AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT INCLUDING THE USE OF OR INABILITY TO USE FIND YOUR GRIND MATERIALS OR FOR ANY ERROR OR DEFECT IN FIND YOUR GRIND MATERIALS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT FIND YOUR GRIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. 
    • 7.2 EXCEPT FOR EACH PARTY’S CONFIDENTIALITY OBLIGATIONS, CLIENT’S PAYMENT OBLIGATIONS, AND EACH PARTY’S INDEMNITY OBLIGATIONS, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE LESSER OF THE FEES PAID BY CLIENT IN THE PRIOR 6 MONTHS AND ONE HUNDRED THOUSAND UNITED STATES DOLLARS ($100,000.00). THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
  8. INDEMNITY. 
    • 8.1 Find Your Grind Indemnity. Find Your Grind will indemnify, defend, protect, and hold Client and its directors and officers and successors and assigns harmless from  any and all damages, losses, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind (including reasonable attorney’s fees and costs, collectively, “Losses”) in connection with any finally adjudicated suit, action, settlement, or judgement brought by a third party (“Claims”) against Client to the extent that it arises from (i) the Platform Services, as provided by Find Your Grind to Client pursuant to this Agreement, infringes any Intellectual Property Rights of any third party; (ii) any violation by Find Your Grind of applicable Law; and (iii) any gross negligence or willful misconduct of Find Your Grind in connection with the delivery of the Platform Services to Client. 
    • 8.2 Client Indemnity.      Client will indemnify, defend, protect, and hold harmless Find Your Grind and its affiliates, investors, directors and officers, and their successors and assigns from any Losses (including any regulatory investigation claims or third party subpoena costs) arising from any Claims to the extent that it is based upon or arises from (i) any Client data, materials, or content as provided by or on behalf of Client to Find Your Grind infringing any Intellectual Property Rights or other rights of any third party or applicable data privacy laws, rules, or regulations (including any self-regulatory rules), including, without limitation, to the extent that any such alleged infringement results or arises from Client’s combination or integration of any Find Your Grind Materials with any other materials, products, or services; (ii) Client’s products or services; (iii) use of misuse of Find Your Grind Materials, including, without limitation, (1) any breach of the rights licensed by Find Your Grind hereunder, or (2) any use of Find Your Grind Materials in any location for which Client does not have all applicable authorization; (iv) any violation by Client of any applicable federal, state or local laws, rules, or regulations; and (v) Client’s other acts or omissions.
    • 8.3 Indemnity Procedure. The indemnifying party’s obligations under this Section 8 are contingent upon: (i) the indemnified party providing the indemnifying party with prompt written notice of such claim; (ii) the indemnified party providing reasonable cooperation to the indemnifying party, at the indemnifying p arty’s expense, in the defense and settlement of such claim; and (iii) the indemnifying party having sole authority to defend or settle such claim.
    • 8.4 Exceptions and Exclusions. Find Your Grind’s obligation to indemnify Client pursuant to Section 8.1 will not apply to the extent any claim results from or is based on: (i) any combination, operation or use of the Platform Services with any product, system, device, method or data not provided by Find Your Grind, if such claim would have been avoided but for such combination, operation or use; (ii) modification of Find Your Grind Materials by anyone other than Find Your Grind, if a claim would have been avoided but for such modification; (iii) Client’s use of Find Your Grind Materials other than in compliance with this Agreement; or (iv) any open source or third party applications or components. If Client’s use of the Platform Services is, or in Find Your Grind’s opinion is likely to be, enjoined due to the type of claim specified in Section 8, then Find Your Grind may at its sole option and expense: (a) replace or modify the Platform Services to make them non-infringing and of equivalent functionality; (b) procure for Client the right to continue using the Platform Services under the terms of this Agreement; or (c) terminate Client’s rights and Find Your Grind’s obligation under this Agreement with respect to such Platform Services and refund to Client a pro-rata portion of the Fees paid for such Platform Services for the time Client is unable to use the Platform Services.  THE PROVISIONS OF THIS SECTION 8 SET FORTH FIND YOUR GRIND’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO FIND YOUR GRIND’S INDEMNITY OBLIGATIONS AND/OR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
  9. TERM AND TERMINATION.
    • 9.1 Term.  This Agreement commences on the Effective Date and, unless earlier terminated as provided in Section 9.2, will continue in effect for the duration set forth in the Service Order (“Initial Term”). This Agreement will automatically renew for subsequent periods of the same duration as the Initial Term (each, a “Renewal Term”), unless either party provides written notice of non-renewal at least thirty (30) days before the end of the Initial Term or the Renewal Term then in effect, (the Initial Term and the Renewal Term collectively, the “Term”). The Fees payable during any Renewal Term will be increased according to Find Your Grind’s then posted fee schedule as of the date of commencement of the Renewal Term.
    • 9.2 Termination.  Find Your Grind may terminate this Agreement immediately upon written notice to Client in the event that (i) Find Your Grind discontinues the Platform Services or access to any of the Data or Reports (in which case Client will be entitled to a refund of any pre-paid fees); or (ii) Client fails to pay the Fees in a timely manner and does not cure such non-payment within ten (10) days of written notice by Find Your Grind or (iii) Client breaches Sections 2 or 4, or infringes or otherwise violates Find Your Grind’s Intellectual Property Rights in and to Find Your Grind Materials. In addition, either party may terminate this Agreement upon notice if the other party materially breaches this Agreement and fails to cure such breach within ten (10) business days following written notice specifying the breach, to the extent such breach is reasonably curable.  Further, either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (1) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (2) 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; (3) makes or seeks to make a general assignment for the benefit of its creditors; or (4) 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.
    • 9.3 Effect of Termination.  Upon any termination or expiration of this Agreement: (i) the rights, licenses, consents and authorizations granted to Client under this Agreement will automatically terminate; (ii) Client will promptly deliver to Find Your Grind any accrued but unpaid Fees and expenses incurred or committed to be incurred by Find Your Grind with Client’s prior approval; and (iii) Client will immediately cease all use of, or access to, the Platform Services or any Find Your Grind Materials.
    • 9.4 Survival.  The provisions of Sections 2-8 (in accordance with its terms), 9.3, 10-12 will survive any termination or expiration of this Agreement.
  10. EXPORT AND FEDERAL AGENCY USERS.
    • 10.1 Export.  Client may not remove or export from the United States or allow the export or re-export of the Platform Services, Service Software, Find Your Grind Materials, or anything related thereto, or any direct product thereof.
    • 10.2 U.S. Federal Agency Users. The Platform Services were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements.
  11. Client represents and warrants to Find Your Grind that:
    • 11.1 it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
    • 11.2 it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
    • 11.3 the entry into, and acceptance of, this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and
    • 11.4 when accepted by Client’s representative, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
  12. GENERAL PROVISIONS.
    • 12.1 Entire Agreement.  This Agreement and the attached exhibits constitute the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersede any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter.  Find Your Grind may make changes to this Agreement, including, without limitation, the Fee, from time to time. Unless otherwise noted by Find Your Grind, material changes to the Agreement will become effective thirty (30) days after they are posted, except if the changes apply to updates or modifications to Platform Service functionality in which case they will be effective immediately. Find Your Grind will provide at least ninety (90) days’ advance notice for any modification to this Agreement which Find Your Grind reasonably determines is materially adverse to Client. If Client does not agree to the revised Agreement, Client may terminate this Agreement, and cease use of the Platform Services.
    • 12.2 Assignment.  Neither party shall assign this Agreement without the other party’s prior written consent except in the event of any merger, consolidation, or acquisition of all or substantially all of a party’s assets to which this agreement relates.   
    • 12.3 Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the State of California, USA (excluding its body of law controlling conflicts of law).  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Los Angeles County and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
    • 12.4 Severability.  If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect.
    • 12.5 Waiver.  The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default.
    • 12.6 Notices.  All notices to Client required or permitted under this Agreement will be in writing and sent by email or by notification in the Platform Services console, and in each instance will be deemed given upon receipt.  All notices to Find Your Grind required or permitted under this Agreement will be in writing and sent to the following addresses, as applicable:
      • If to Find Your Grind:
      • Find Your Grind, Inc
      • With a copy (which shall not constitute notice) to:
      • Wolf, Rifkin, Shapiro, Schulman and Rabkin, LLP
      • 11400 W. Olympic Blvd., 9th Floor
      • Los Angeles, CA 90064
      • Attn: Matthew E. Wolf, Esq.
      • Email: MEWolf@wrslawyers.com 
    • 12.7 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    • 12.8 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Sections 2, 4, 8, 9.3, or 10, would cause the other party 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 other party 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.
    • 12.9 Force Majeure. Except for Client’s payment obligations, if either party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials, governmental restrictions, regulation or controls, judicial orders, enemy or hostile governmental action, terrorist act, civil commotion, riot, fire, unicorn sighting, earthquake, or natural disaster, or other causes (except financial causes) beyond the reasonable control of the party obligated to perform, then that party’s performance shall be excused for a period equal to the period of such event.
    • 12.10 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
    • 12.11 Counterparts.  Any Service Order, or this Agreement, may be executed in counterparts, including electronic or electronically signed counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

LAST UPDATED: April 27, 2022