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Terms and conditions applicable to client’s use of FRIKINTech services

  1. Agreement. The FrikinTech Services proposal provided by FrikinTech, Inc. (“FrikinTech”) to the client identified on such proposal (“Client”), these Terms and Conditions, Client’s credit card authorization form, and the invoice(s) sent to Client by FrikinTech collectively constitute the entire binding agreement (the “Agreement”) by and between Client and FrikinTech (hereinafter, collectively, the “Parties”) relating to Client’s license, access, and use of the FrikinTech software services set forth on Client’s proposal (such FrikinTech software services, hereinafter, the “Services”). This Agreement supersedes all other agreements and understandings, whether written or oral, between the Parties relating to the license of the Services. Notwithstanding anything to the contrary, Client agrees to be bound by and accept the terms and conditions contained in this Agreement. No additions, conditions, amendments, alterations, or modifications by Client or any other person, whether oral or contained in any other documents submitted from Client to FrikinTech will be binding on FrikinTech, regardless of FrikinTech’s failure to object or FrikinTech’s provision of Services, unless otherwise agreed to in writing and signed by FrikinTech. These terms and conditions may be updated or amended from time to time by FrikinTech without notice to Client; a copy of such updated terms will be available for Client’s review at http://frikintech.com/terms-and-conditions. Client agrees to be bound by the most recent Terms and Conditions. THIS AGREEMENT WILL APPLY UNLESS CLIENT HAS A SEPARATE WRITTEN AGREEMENT WITH FRIKINTECH THAT EXPRESSLY REPLACES THIS AGREEMENT.

2. Fees; Payment; Taxes.

(a) Client hereby agrees to pay the Fees (comprised of the monthly fees and the upfront implementation fees) in the amounts set forth in the Proposal for the Term of the Proposal (the “Fees”). Except as otherwise expressly set forth herein, the Fees are based on the particular Services licensed, Client’s payment obligations are noncancelable, and no portion of the Fees is non-refundable.

(b) Client’s applicable upfront implementation fees will be billed upon FrikinTech’s receipt of the signed Proposal from Client and a credit card authorization form (which can be found at https://frikintech.com/support/credit-card-authorization/). Client’s applicable monthly recurring fees will be billed on the first of each month for that month’s Services (or portion thereof). If a credit card authorization is on file Fees will be charged automatically when due, and Client hereby grants FrikinTech permission to charge Client’s provided credit card accordingly. If Client requests and if FrikinTech agrees to another form of payment, Fees will be due upon Client’s receipt of the invoice. Client is responsible for providing complete and accurate billing and contact information to FrikinTech and notifying FrikinTech of any changes to such information.

(c) If Client fails to make applicable Fee payments when due, then in addition to FrikinTech’s other rights and remedies, FrikinTech will have the right, at its sole discretion to: (i) suspend the Services pending Client’s full payment of any outstanding fees, and/or (ii) immediately terminate the Agreement, upon which termination all outstanding Fees will be immediately due and payable. Unpaid amounts shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum amount chargeable by law, commencing thirty (30) days from when the payment was due and continuing until fully paid. Nothing contained herein will release Client from any previous obligations. Client will be liable to FrikinTech for all costs incurred by FrikinTech in its collection of any amounts owing by Client which are not paid when due, including collection agencies’ and attorneys’ fees and expenses, regardless of whether a lawsuit is commenced.

(d) Unless otherwise stated, the Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction. Client is responsible for paying all applicable taxes under this or any Agreement with FrikinTech.

3. Services. Subject to the terms of this Agreement, including, but not limited to, Client’s fulfillment of its payment and other obligations as set forth herein, FrikinTech: (i) grants Client the right to use the Services in accordance with the documentation during the Term; (ii) will make the Services available to Client through remote access over the Internet; (iii) will provide FrikinTech’s standard email and telephone support for the Services to Client during normal business hours Eastern Standard Time at no additional charge; and (iv) will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (x) planned downtime (of which FrikinTech will give electronic notice), (y) any unavailability caused by circumstances beyond FrikinTech’s reasonable control, including, without limitation, actions by Client that may impede access to or function of the Services, acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or other labor problems, internet or other hosted service disruptions involving hardware, software, or power systems, and denial of hosted service attacks, and (z) any unavailability caused by our suspension or termination of the Services pursuant to the terms of this Agreement.

4. Client’s Use of Services. (a) Client is solely responsible for Client’s and Client’s users’ use of the Services and compliance with this Agreement, and for providing those computer and other resources necessary to enable Client’s users to utilize the Services. Client will use commercially reasonable efforts to prevent unauthorized access to or use of Services, and Client will notify FrikinTech promptly of any such unauthorized access or use. Client will use the Services only for the purposes provided by FrikinTech and otherwise in accordance with applicable laws and regulations.

(b) Client represents, warrants, and covenants that Client will not engage in any of the following activities: (i) making the Services available to, or using the Services for the benefit of, anyone other than Client; (ii) selling, reselling, licensing, sublicensing, distributing, renting or leasing the Services; (iii) using the Services for any unlawful purpose; (iv) using the Services in violation of any third-party privacy rights; (v) interfering with or disrupting the integrity or performance of the Services or third-party data contained therein; (vi) attempting to gain unauthorized access to the Services or its related systems or networks; (vii) reverse engineering, reverse compiling, copying, translating, modifying or creating derivative works of the Services or any part, feature, function or user interface thereof; or (viii) using the Services in any way not expressly permitted under this Agreement.

(c) Client will create and maintain accurate records of all activities and events related to the Services to the extent necessary to ensure Client’s compliance with the terms of this Agreement (including, but not limited to, all Client users). Such records must be clear and readily available to FrikinTech upon FrikinTech’s written request. 

5. Term and Termination. (a) The term of this Agreement (the “Term”) will begin on the Effective Date outlined in the Proposal and continue on a month-to-month basis or as set forth on the Proposal. Unless otherwise expressly stated in the Proposal, either Party may terminate this Agreement for its convenience upon thirty (30) days’ prior written notice to the other Party.

(b) Either Party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately upon written notice to the other Party of a material breach that is incapable of cure; or (iii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

(c) Upon termination, Client’s access to the Services will terminate and Client shall immediately discontinue all use. Section 1; Section 2 (as to any outstanding Fees); Section 4(b); Section 5; Section 6(a); Sections 7 through 12; Sections 14 through 21; and all defined terms herein shall survive any termination hereof. FrikinTech will not refund any portion of the Fees for the current billing period if Client terminates the Agreement for convenience under Section 5(a), or if FrikinTech terminates the Agreement for cause under Section 5(b); however, Client will not be billed for any subsequent months following termination. If Client terminates the Agreement for demonstrated cause or if FrikinTech terminates the Agreement for convenience, FrikinTech will refund a pro-rated portion of the Fees paid for the current billing period.

6. Representations and Warranties. (a) Client hereby represents, warrants, and covenants that: (i) this Agreement has been duly authorized, executed and delivered and constitutes a legal, valid, and binding obligation, enforceable in accordance with its terms; (ii) the execution of this Agreement and the performance of its obligations under this Agreement shall not require any consent, vote, or approval that has not been obtained, or at the appropriate time shall not have been given or obtained; (iii) it has and will continue to have throughout the Term the full right and authority to be a Party to this Agreement and perform its obligations hereunder.

(b) FrikinTech hereby represents, warrants, and covenants that: (i) the Services will perform materially in accordance with the applicable documentation; and (ii) FrikinTech will not materially decrease the functionality of the Services during the Term. For any material breach of an above warranty, FrikinTech will use commercially reasonable efforts to cause the Services to function in accordance with the applicable documentation and/or to re-perform the Services. If FrikinTech notifies Client that FrikinTech is unable to remedy any material breach of this warranty, Client’s exclusive remedies are those described in Section 5(b).

7. Disclaimer; Limitation of Liabilities; Statute of Limitations. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED TO CLIENT “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTIES OF ANY KIND. FRIKINTECH EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ACCURACY. FRIKINTECH SHALL HAVE NO LIABILITY TO CLIENT, ITS AFFILIATES, OR ITS END CUSTOMERS, OR TO ANY OTHER THIRD PARTY, FOR ANY DAMAGES, INCLUDING DAMAGES RESULTING OR ALLEGED TO RESULT FROM ANY DEFECT, ERROR, OR OMISSION IN THE SERVICES, OR AS A RESULT OF ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. UNDER NO CIRCUMSTANCES WILL FRIKINTECH HAVE ANY LIABILITY TO CLIENT FOR, AND CLIENT HEREBY EXPRESSLY WAIVES, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY DESCRIPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING OUT OF WARRANTY OR CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FORESEEABLE BUSINESS LOSSES, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, RELIANCE DAMAGES, OR SIMILAR. CLIENT AGREES THAT UNDER NO CIRCUMSTANCES WILL FRIKINTECH’S LIABILITY UNDER THIS AGREEMENT FOR ANY CAUSE EXCEED THE TOTAL FEES PAID BY CLIENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE REMEDIES SET FORTH IN THIS AGREEMENT WILL APPLY EVEN IF SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.

NO CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CLIENT MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR REASONABLY OUGHT TO HAVE BEEN, DISCOVERED BY CLIENT.

8. Indemnity. To the fullest extent permitted by law, Client agrees to indemnify, defend, and hold harmless FrikinTech, including FrikinTech’s affiliates and their officers, directors, agents, employees, successors, and assigns, from and against any claim, demand, cause of action, debt, liability, loss, fine, damage, or expense (including reasonable attorneys’ or legal fees, expenses, and court costs) that relate to: (i) Client’s breach of this Agreement; (ii) Client’s gross negligence or willful misconduct; or (iii) Client’s failure to abide by all applicable laws, rules, regulations, and orders that affect the Services.
9. Essential Basis of the Bargain. Client acknowledges that FrikinTech has set its Fees and entered into the Agreement in reliance upon the limitations and exclusions of liability, the disclaimers of warranties, and Client’s indemnity obligations set forth herein, that the same form an essential basis of the bargain between the Parties, and THAT THE CONSIDERATION WOULD BE HIGHER IF FRIKINTECH WERE REQUIRED TO BEAR LIABILITY IN EXCESS OF THAT STATED HEREIN.
10. FrikinTech Intellectual Property Rights. (a) FrikinTech retains exclusive right, title, and interest (including all intellectual property rights and other rights) in and to the Services, including all ideas, concepts, designs, software, software code, inventions and works of authorship, and all intellectual property associated therewith, and – except for those limited usage rights as set forth in Section 3 – Client shall have no ownership in or license to the Services or any portion thereof, nor in the intellectual property associated therewith. Client shall not: (i) take any action that may interfere with any of FrikinTech’s rights in or to FrikinTech’s intellectual property rights; (ii) challenge any right, title or interest of FrikinTech’s in or to FrikinTech’s intellectual property rights; (iii) make any claim or take any action adverse to FrikinTech’s ownership of FrikinTech’s intellectual property rights; (iv) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Services.

(b) Regarding notifications and reports that FrikinTech provides to Client as part of the Services, FrikinTech grants to Client a nonexclusive, non-assignable, non-transferrable license to use such notifications and reports solely in accordance with the terms and conditions of the applicable Services documentation and this Agreement.

11. Assignment. This Agreement binds Client regardless of any financing arrangements, subrogations or assumptions. Client may not assign its rights or delegate its obligations hereunder except with the prior written consent of FrikinTech (which consent may be withheld in its sole discretion). FrikinTech may assign this Agreement in its entirety in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, or the assets to which this Agreement relates. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
12. Independent Contractors. No provision of this Agreement will be deemed to create a partnership, joint venture, or other combination between FrikinTech and Client. Client and FrikinTech are independent contractors. Neither Party will make any warranties or representations or assume any obligations on the other Party’s behalf. Neither Party is or will claim to be a legal representative, partner, agent, or employee of the other Party. Each Party is responsible for the direction and compensation, and is liable for the actions of, its own employees and subcontractors.
13. Notices of Inquiry. Client shall immediately inform FrikinTech of any formal or informal inquiry of which it has actual knowledge relating to the Services supplied hereunder by any legal or regulatory agency of any local, state, or national authority.
14. Amendments. The Agreement may not be amended or modified except in writing by an authorized signatory of FrikinTech. No other purported additions, amendments, alterations, or modifications by Client or any other person, whether oral or written, shall be binding on FrikinTech, regardless of FrikinTech’s failure to object or FrikinTech’s provision of Services.
15. Governing Law and Venue. This Agreement and all disputes and matters relating hereto shall be construed in accordance with the laws of the State of Vermont, USA without giving effect to its conflicts of laws rules. Client hereby consents to the jurisdiction and venue of the state or federal courts in Chittenden County, Vermont, and hereby waives any objections based on inconvenient forum or conflicts of laws principles.
16. BINDING ARBITRATION. FrikinTech and Client agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. If any negotiation required by this Section 16 fails, then at the written request of either Party, any controversy, dispute or claim arising out of or relating to this Agreement or any breach hereof shall be finally settled by arbitration by a single arbitrator in Burlington, Vermont, pursuant to the Commercial Arbitration Rules then in effect of the American Arbitration Association. The award made in such arbitration shall be entered in any court having jurisdiction thereof solely for the purpose of applying for an order confirming, modifying, correcting or vacating the award.
17. Prohibition of Class and Representative Actions. EXCEPT WHERE PROHIBITED BY LAW, CLIENT MAY BRING CLAIMS PURSUANT TO THIS AGREEMENT TO ARBITRATE AGAINST FRIKINTECH ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR SHALL NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND SHALL NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.
18. Severability. If any provision of this Agreement shall be determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining provisions hereof and thereof shall be severable and enforceable in accordance with their terms, and all provisions shall remain enforceable in any other jurisdiction.

19. Notices. All notices under this Agreement will be in writing and delivered (i) personally, (ii) by registered or certified mail, postage prepaid, or (iii) by overnight courier service to the following addresses of the respective Parties.

If to Client: to the contact information provided on the Proposal or as subsequently provided in writing by the Client.

If to FrikinTech, Inc.: FrikinTech, Inc., 28 Walnut St, Suite 230, Williston, VT 05495, Attention: CFO.

The notice shall be effective as of (i) the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, (ii) five (5) days after the date of posting if the notice is transmitted by registered or certified mail.

20. Entire Agreement. Client and FrikinTech acknowledge that there have been no warranties, representations, covenants or understandings made by either Party to the other, except such as are expressly set forth in the Agreement. Without limiting the foregoing, Client acknowledges and agreesthat, in entering into this Agreement and this transaction: (1) it has relied solely on the terms and conditions of this Agreement; and (2) it has not relied on any oral or written statements by FrikinTech representatives or third parties, or on any statements included in any of FrikinTech’s written or electronic promotional materials (including its web site). This Agreement constitutes the entire understanding and obligation of Client and FrikinTech with respect to the subject matter of this Agreement and supersedes any prior agreements or understandings, whether oral or written.

 

THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE.  CLIENT UNDERSTANDS THAT, BY SIGNING THE AGREEMENT, NEITHER PARTY WILL BE ABLE TO BRING A LAWSUIT CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION PROVISION, UNLESS IT INVOLVES A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS.  INSTEAD, THE PARTIES AGREE TO SUBMIT ANY SUCH DISPUTE TO AN IMPARTIAL ARBITRATOR.