FIXE

CLIENT AGREEMENT

Last Modified: September 28, 2023

This Fixe Client Agreement (this “Agreement“) is a binding contract between you (“Client,” “you,” or “your“) and Fixe, Inc. (“Fixe,” “we,” or “us“). This Agreement governs your access to and use of the Services and the Platform.

YOU AGREE TO THIS AGREEMENT WHEN YOU AGREE TO A SETUP FORM THAT INCORPORATES THIS AGREEMENT OR IN ANY OTHER WAY FIRST PAY FOR OR USE ANY FIXE SERVICE OR PRODUCT THAT IS SUBJECT TO THIS AGREEMENT (THE “EFFECTIVE DATE“). BY AGREEING TO THIS AGREEMENT, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND AND ACCEPT IT AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO IT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION (AND IN SUCH CASE, “YOU” IN THIS AGREEMENT MEANS THAT ORGANIZATION).

THIS AGREEMENT CONTAINS PROVISIONS THAT CAUSE THE AGREEMENT TO RENEW, AND AUTHORIZE FIXE TO WITHDRAW PAYMENTS FROM CLIENT’S BANK ACCOUNT, AUTOMATICALLY UNTIL THIS AGREEMENT IS TERMINATED.

THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE THAT LIMITS YOUR ABILITY TO SEEK RELIEF BEFORE A JUDGE OR JURY.

DEFINITIONS

“Agreement” means this Client Agreement together with Client’s Setup Form.

“Authorized Users” means Client’s employees, agents, directors, subcontractors and other agents (i) who Client authorizes to access and use the Services and Platform under the rights granted to Client hereunder and (ii) for whom access to the Services and Platform has been purchased hereunder.

“Client” means the company or other legal entity agreeing to this Agreement.

“Client Data” means information, data, and other content, in any form, that is submitted, posted, or otherwise transmitted by or on behalf of Client or any other Authorized User through the Services or the Platform.

“Client Systems” means any and all hardware, software or other systems that Client owns, leases or controls.

“Documentation” means Fixe’s manuals, handbooks, and guides relating to the Platform provided by Fixe to Client in any medium.

“Fixe Marks” means any and all trademarks, service marks, logos or other branding owned or controlled by Fixe relating to the Services, the Platform or Fixe. “Fixe Marks” does not include any Intellectual Property of any third party.

“Intellectual Property” means copyrights, patents, trademarks, trade secrets, and trade dress.

“Platform” means the proprietary cloud-based software application(s) developed by Fixe that Fixe shall make available to Client in connection with the Services together with the content therein.

“Primary User” has the meaning provided in the “Client’s Responsibilities” section below.

“Services” means the professional services that Fixe shall provide to Client pursuant to this Agreement, including any Services expressly identified in Client’s Setup Form. “Services” does not include the Platform.

“Setup Form” means a written agreement between and executed by Fixe and Client, whether titled “Setup Form” or otherwise, that expressly incorporates this Agreement and specifies financial terms, termination-related terms or other terms regarding the Services to be provided hereunder.

“Start Date” means the Start Date identified in the Setup Form.

“Third-Party Materials” means information, content or other material that is created by, provided by, originating in or owned by a third party and made available to Client through the Platform or Services.

“User Data” means data, information and other materials submitted or made available to Fixe (i) by Client relating to Authorized Users or (ii) by Authorized Users.

OVERVIEW

Scope of Services. Fixe will provide Client the Services described in the “Services” below throughout the Term in accordance with this Agreement.

Platform. Some aspects of some Services require Client to use the Platform. All use of the Platform by Client and its Authorized Users is subject to this Agreement.

Third–Party Materials. Some elements of the Platform and Services incorporate Third-Party Materials. To the extent that the Platform or Services display Third-Party Materials, Client’s and Authorized Users’ use of them is subject to those services’ own licenses or other agreements.

Fixe’s Privacy Policy. Client acknowledges that Fixe will collect, receive, use and share Client Data, User Data and other personal data in the manners described in the Fixe Privacy Policy available at https://www.getmyfixe.com/privacy-policy, as amended and updated from time to time.

Client System Requirements. To use and receive the Platform and the Services, Client should use any of the two most recent versions of the Google Chrome, Mozilla Firefox, Apple Safari or Microsoft Edge browsers. The Platform and/or Services may not function properly when accessed by other browsers or versions.

SERVICES

Included Services. Subject to the “Exclusions” section below and this Agreement’s other provisions, Fixe shall:

• integrate “End of Day” point of sales data with financial software.
• track and pay Client’s vendor bills on Client’s behalf.
• capture and record all sales tax liabilities, timely file Client’s sales taxes with appropriate agencies, and process payments on Client’s behalf.
• reconcile Client’s bank and credit card accounts against monthly bank and credit card statements.
• track loans, lines of credit and equipment finance agreements based upon monthly loan or equipment finance statements.
• provide internal company financial reports for Client including profit and loss, balance sheet and flash reports. These include weekly flash reports, monthly P&L reports, month over month P&L reports and monthly balance sheets.
• process payroll through a third-party payroll service approved by Client.
• prepare and issue Form 1099s to Client’s vendors and contractors.
• provide year-end communications with Client and Client’s accountant(s). By February 15 of each year, Fixe will provide Client with the reports included in the Services and, if requested by Client, hold a phone call of up to 30 minutes in length to discuss them. Fixe does not review or approve materials provided by the Client’s accountant.

Exclusions. Unless the parties agree otherwise in writing, Fixe shall not:

• prepare credit applications (assist Client with onboarding or gathering information from new vendors of Client).
• respond to or assist Client with responding to workers compensation audits.
• prepare any reports other than those reports described in the “Included Services” section.
• review or provide other services relating to Client Data more than sixty days old.
• prepare or make any federal, state or municipal tax filings on Client’s behalf (for example, excise taxes, franchise taxes, property taxes) other than those described in the “Included Services” section.
• pay any government license fees (for example, for business licenses).

Optional Services. If the parties separately agree in writing, Fixe shall provide Client with additional professional services (“Optional Services”) not described in the “Included Services” section above. Optional Services may include assisting Client with audits, providing reports not included in this Agreement or any other services, and may entail separate fees. This Agreement applies to any Optional Services except as the parties otherwise agree in writing.

CLIENT’S RESPONSIBILITIES

Throughout the Term, Client shall maintain at least one Primary User. Primary Users shall include any Authorized Users that Client designates as Primary Users either at Client’s initial signup for the Platform or later. Fixe shall be entitled to rely on, and shall incur no liability to Client for any reliance on, written communications from any Primary User to Fixe regarding the services provided hereunder.

Throughout the Term, Client shall promptly and fully cooperate with Fixe’s reasonable requests for assistance to enable Fixe to perform its own obligations under this Agreement. In particular, Client shall:

1. 1. • ensure that Primary Users respond promptly to Fixe’s requests for instructions, information, or approvals required by Fixe to provide the Services.
      • provide Fixe with access to Client’s point of sale system, employees, contractors, and vendors, accounting and financial information.
      • ensure that at all times during the Term Fixe has access to Client’s bank and credit card transactions and is an authorized payroll service user.
      • provide Fixe with (a) electronic copies of vendor bills promptly after Client receives them from vendors, (b) new-employee information for payroll processing no later than one week before the next scheduled pay date, (c) employee time cards no later than 36 hours after each payroll period end date, in order for Fixe to initiate and prepare payroll preview, and (d) W-9 forms and any other information requested by Fixe relating to any vendor, contractor or landlord to whom Client wishes Fixe to issue a Form 1099. Fixe shall provide Client with a year-end payee report to review and confirm to Fixe which payees shall receive a Form 1099.
      • inform Fixe in writing of any expenses in financial reports, whether made by check, debit, credit card or otherwise, that are of a personal nature or which should otherwise be treated as draws or distributions rather than business expenses or other business-related transactions. Fixe cannot independently confirm the personal nature of any expenses in Client’s financial reports and will treat all such transactions as business-related unless Client informs Fixe otherwise.
      • approve Client vendor payments promptly upon submission by Fixe.
      • preview payroll reports and approve payroll for processing promptly upon submission by Fixe, in order for Fixe timely to run payroll.
      • take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Fixe’s provision of the Services.
      • retain all originals or copies of documents, including canceled checks and other data that form the basis of Client’s income, expenses and deductions.

Fixe does not warrant that it will retain any Client Data or User Data for any period of time. Client shall maintain its copies of any Client Data or User Data that it provides to or receives from Fixe.

THE PLATFORM

Platform Use. During the Term, subject to and conditioned on Client’s compliance with this Agreement including payment of any fees, Fixe grants Client and each Authorized User a non-exclusive, non-transferable right to access and use the Platform (the “Use Right”). Fixe will provide Client the necessary passwords and materials to allow Client and the Authorized Users to use the Platform.

Scope of Use Right. The Use Right includes the rights to view and transfer Client Data to the Platform; to export data, materials and information from the Platform to Client Systems; and to make copies of the foregoing and permanently store them on Client Systems. The Use Right excludes the conduct set forth in the “Restrictions on Use” section below.

Restrictions on Use. Except as this Agreement expressly permits, the Use Right excludes the rights to, and Client and each Authorized User shall not:

1. 1. • sell, resell, license, sublicense, distribute, rent or lease any part of the Platform, or disclose it to any third parties without compensation.
      • use the Platform to store, use or transmit material in violation of third-party privacy or Intellectual Property rights.
      • use the Platform to store or transmit code, files, scripts, agents or programs intended to do harm (including, for example, viruses, worms, time bombs and Trojan horses) or disable, impair or conduct penetration tests or scans of any hardware, software or other systems that Fixe owns, leases or controls.
      • interfere with or disrupt the Platform’s integrity or performance.
      • gain unauthorized access to the Platform, permit direct or indirect access to or use of the Platform in a way that circumvents a contractual usage limit, or access or use any Fixe Intellectual Property.
      • modify, copy, or create derivative works based on the Platform or any part of it.
      • frame or mirror any part of the Platform, other than framing on Client’s own intranets or otherwise for Client’s own internal business purposes.
      • remove or modify any attributions, proprietary marks or notices appearing in the Platform, including Fixe Marks or any other attributions, property marks or notices of Third-Party Services or relating to Third-Party Materials.
      • disassemble, reverse engineer, or decompile any part of the Platform, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Platform, (3) copy any ideas, features, functions or graphics of the Platform, or (4) determine whether the Platform is within the scope of any patent.

Suspension. Fixe may temporarily suspend Client’s and any Authorized User’s access to any part or all of the Platform:

1. 1. • if Fixe reasonably determines that (1) there is a threat or attack on the Platform; (2) Client’s or that Authorized User’s use of the Platform disrupts or poses a security risk to the Platform or to any other customer or vendor of Fixe; (3) Client, or that Authorized User, uses the Platform for fraudulent or illegal activities; (4) Client becomes the subject of any bankruptcy, liquidation, dissolution, or similar proceeding; or (5) Fixe’s provision of the Platform to Client or that Authorized User is prohibited by applicable law.
      • if any vendor of Fixe has suspended or terminated Fixe’s access to or use of any third-party services or products required to enable Client to access the Platform.
      • on receipt of a court order or law enforcement request directing such suspension.

Fixe will use commercially reasonable efforts to (a) provide Client with prior written notice of any suspension described in this “Suspension” section (a “Service Suspension”) and (b) reinstate Client’s access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Fixe will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.

Modification and Discontinuance. Fixe may modify the Platform at any time during the Term, with or without prior notice to Client or Authorized Users, and Fixe will not be liable to Client or to any third party for any such modification that does not materially degrade the Platform during the Term. Fixe may perform repairs or maintenance or remotely patch or upgrade the Platform, which may temporarily degrade the quality of the Platform or result in a partial or complete outage of the Platform. Fixe may also discontinue the inclusion of some or all Third-Party Services in the Platform to the extent that their respective owners or publishers discontinue them or stop making them available to Fixe.

Updates. Fixe may from time to time in its sole discretion provide updates, upgrades, bug fixes, patches, other error corrections, and/or new features in or relating to the Platform (collectively, including related documentation, “Updates”). Updates may modify or delete certain features and functionality. Fixe has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

Availability. During the Term, Fixe will use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, 365 days a year, except for: (a) planned downtime, of which Fixe will make commercially reasonable efforts to give Client advance electronic notice; (b) downtime resulting from downtime of Fixe’s hosting provider or of any other Third-Party Services; and (c) force majeure events.

Subscription. Access to the Platform is purchased as a subscription. Depending on the extent to which Client chooses to use the Platform during the Term, Client’s actual use of the Platform may not make full use of all aspects of the Platform in a particular month or year.

TERM AND TERMINATION

Term. The period of this Agreement’s effectiveness (the “Term”) begins on the Start Date or on any earlier date on which Client first uses the Services or the Platform.

Initial and Renewal Terms. Unless Client’s Setup Form specifies otherwise, the “Initial Term” is one year and each “Renewal Term” is one year.

Automatic Renewals. The Initial Term shall renew automatically for successive Renewal Terms unless and until terminated earlier or extended as this Agreement provides.

Termination by Client for Cause. Client may terminate this Agreement immediately by notice to Fixe if Fixe (a) has failed to cure any material breach of this Agreement within 14 days after receiving notice of same from Fixe or (b) becomes insolvent, is liquidated or dissolved or if any proceedings are commenced by, for or against Fixe under any bankruptcy, insolvency, reorganization of debts or debtors’ relief law.

Termination by Client for Convenience. Client may also terminate this Agreement in writing for any reason (a) at least 60 days before the next renewal, if Client’s then-applicable Initial Term or Renewal Term is one year in duration; or (b) in all other cases, at the end of the next full calendar month after the effective date of Client’s notice of termination. For example, if Client in January gives notice of termination under this subsection, termination is effective at the end of February.

Termination by Fixe. Fixe may terminate this Agreement (a) immediately by notice to Client if Client has failed to cure any material breach of this Agreement (including any breach of a payment obligation) within 14 days after notice of same from Fixe or if Client becomes insolvent, is liquidated or dissolved or if any proceedings are commenced by, for or against Client under any bankruptcy, insolvency, reorganization of debts or debtors relief law; or (b) at any time for convenience with at least 60 days’ written notice to Client.

No Refunds. Except as expressly provided herein, Fixe will not be liable to Client for any refunds, discounts, credits or other reductions in fees.

Effects of Termination. Any termination of this Agreement will also simultaneously terminate all licenses and authorizations that it grants.

FEES AND PAYMENT

Fees. Client shall pay Fixe all fees due hereunder. The fee applicable throughout the Term shall be as shown in the Setup Form, subject to adjustment hereunder.

Fee Adjustments. Fixe may adjust the fee applicable to Client for any Renewal Term with at least 60 days’ written notice to Client if Client’s then-applicable Initial Term or Renewal Term is one year in duration and with at least 15 days’ written notice to Client in all other cases. Unless Client exercises its right under this Agreement to terminate for convenience, Client shall be deemed to have agreed to fees adjusted pursuant to this paragraph.

Additional Fees. In addition to the fees described in the preceding two paragraphs, Client shall reimburse Fixe for all NSF (nonsufficient funds) fees and other fees assessed by third parties that Fixe incurs on Client’s behalf (“Additional Fees”).

Manner of Fee Payment. Client’s first fee payment to Fixe hereunder shall be via any payment method specified in the Setup Form. All other payments to Fixe hereunder, including all payments for Additional Fees, shall be made by automatic withdrawal from Client’s bank account. Fixe shall withdraw payments for Additional Fees from Client’s bank account within seven business days after Fixe incurs them. By agreeing to this Agreement, Client hereby authorizes each withdrawal and payment by Fixe described in this paragraph.

Late Payments. All late payments shall bear interest at the lesser of the rate of one and one half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall also reimburse Fixe for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Fixe does not waive by the exercise of any rights hereunder), Fixe shall be entitled to suspend the provision of the Services and/or the Platform if Client fails to pay any amounts/fees when due hereunder and such failure continues for 10 days following written notice thereof.

Taxes. Each party will be responsible for its own taxes properly levied on it by virtue of its undertakings hereunder.

Future Functionality. Client’s entry into this Agreement is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Fixe regarding future functionality or features.

REPRESENTATIONS AND WARRANTIES

Each party warrants to the other that the warranting party:

1. • has the right, power and authority to enter into and perform its obligations under this Agreement and is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its organization.
   • is not an agency or other unit of any federal, state, county, municipal or other governmental entity in the United States of America or in any other country.
   • shall have in effect appropriate types and levels of insurance covering the warranting party for losses, damages or expenses arising out of a cybersecurity or data security incident, breach or event, including general commercial liability, errors and omissions, employer liability, and any worker’s compensation insurance required by law.
   • shall comply with all applicable laws in connection with its use of the Services and the Platform (including any export and re-export restrictions imposed by any U.S. or foreign law).
   • is not named on any U.S. government denied-party list.

Each party makes the warranties above at the time of this Agreement’s formation and at all times throughout the Term.

Additional Client Representations and Warranties. Client further warrants to Fixe that (a) Client has the full right, power and authority and all required authorizations, from Client personnel and from any other third parties, to grant the rights and licenses granted by Client hereunder and share with Fixe all Client Data that Client may share with Fixe and (b) all Client Data supplied to Fixe hereunder is accurate and complete to the best of Client’s knowledge.

Additional Fixe Representations and Warranties. Fixe further warrants to Client that (a) the Platform, when used by Client and its Authorized Users in accordance with this Agreement, shall not infringe upon any Intellectual Property rights or other rights of any third party and (b) Fixe shall provide the Services with appropriate skill, experience, and qualifications and in a timely and professional and workmanlike manner.

DISCLAIMERS

EXCEPT AS EXPRESSLY PROVIDED HEREIN, FIXE DISCLAIMS ALL WARRANTIES TO CLIENT, TO ALL AUTHORIZED USERS, AND TO ANY THIRD PARTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES AND THE PLATFORM, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

WITHOUT LIMITATION, FIXE DISCLAIMS ANY WARRANTY (A) THAT THE SERVICES OR PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE OR WILL PROTECT CLIENT SYSTEMS FROM THIRD-PARTY ATTACKS AND (B) REGARDING ANY THIRD-PARTY MATERIALS.

FIXE SHALL NOT BE OBLIGATED TO, AND CLIENT ACKNOWLEDGES THAT FIXE SHALL NOT, AUDIT, VERIFY OR ENSURE THE ACCURACY OR COMPLETENESS OF ANY CLIENT DATA.

FIXE MAY FROM TIME TO TIME NOTIFY CLIENT OF ANY ERRORS OR APPARENT ERRORS THAT FIXE DISCOVERS IN CLIENT DATA. HOWEVER, CLIENT SHALL NOT RELY ON FIXE OR THE SERVICES OR PLATFORM TO IDENTIFY OR NOTIFY CLIENT OF ERRORS, IRREGULARITIES, FRAUD, DEMARCATIONS OR ILLEGAL CONDUCT (THE FOREGOING TOGETHER, “PROBLEM CONTENT”) THAT CLIENT DATA CONTAINS OR REFLECTS OR APPEARS TO CONTAIN OR REFLECT.

THE DISCLAIMERS IN THIS “DISCLAIMERS” SECTION APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT.

LIMITATIONS OF LIABILITY

LIMITATION. EXCEPTING THE EXCLUSIONS IDENTIFIED BELOW, (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT AND (B) EACH PARTY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CLIENT DURING THE FINAL THREE MONTHS OF THIS AGREEMENT’S TERM.

WITHOUT LIMITATION, FIXE SHALL NOT BE LIABLE (A) TO CLIENT FOR ANY ACTIONS THAT FIXE TAKES IN RELIANCE ON CLIENT DATA OR FOR ANY FAILURE OF FIXE TO NOTIFY CLIENT OF ANY PROBLEM CONTENT IN ANY CLIENT DATA; OR (B) TO ANY THIRD PARTY FOR ANY LOSSES OR DAMAGES UNDER ANY THEORY OF LIABILITY.

THE LIMITATIONS IN THIS “LIMITATION” SECTION WILL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE, AND REGARDLESS OF THE PERSON BRINGING THE CLAIM.

EXCLUSIONS. THE LIMITATIONS IN THE “LIMITATION” SECTION ABOVE SHALL NOT APPLY TO EITHER PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS HEREUNDER OR DAMAGES ARISING FROM EITHER PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

ADDITIONAL PROVISIONS. THIS “LIMITATIONS OF LABILITY” SECTION IS INTENDED TO BE AS INCLUSIVE AS APPLICABLE LAW PERMITS.

INDEMNIFICATION

Fixe will indemnify, defend and hold harmless (collectively “indemnify” or “indemnification”) Client and Client’s officers, employees, directors, agents, independent contractors, licensors and suppliers (“Client Indemnitees”) from and against any third party claims, demands, actions and proceedings, and any resulting liabilities, damages, costs and expenses (including reasonable legal fees and expenses), brought against any Client Indemnitees, alleging that the Service violates any express warranty by Fixe in this Agreement. Such indemnification, however, excludes such claims which arise or result from (1) any use of the Service by Client or by any Authorized User that violates this Agreement; and/or (2) the combination, operation, or use of the Service in connection with a third-party product or service (the combination of which causes the claimed infringement).

Client will promptly notify Fixe in writing of any action, threat of suit or claim for arbitration that Client receives that may qualify for the indemnification provided herein. In such a case, the parties will confer in good faith regarding the appropriate course of conduct, and Fixe will have sole discretion regarding the disposition and any settlement of the matter.

This indemnification is the sole and exclusive remedy available to Client with respect to any third-party Intellectual Property-related claims against any Client Indemnitee.

CONFIDENTIALITY

Fixe will not disclose Client Data to any third party, or use it for any other purpose, except as expressly described in this Agreement or in Fixe’s Privacy Policy. Fixe’s obligations under this Confidentiality section will not apply to the extent of any Client Data that is (a) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of Fixe, (b) subsequently disclosed to Fixe on a non-confidential basis by a third party not having a confidential relationship with Client that rightfully acquired such information, (c) communicated by Fixe to a third party with Client’s prior written consent, or (d) disclosed by Fixe pursuant to a subpoena, court order or request by law enforcement or otherwise required by law (in which case, to the extent Fixe may lawfully do so, Fixe will provide Client with written notice of such disclosure to afford Client the option to exercise any rights Client may have to challenge such disclosure).

ARBITRATION & DISPUTE RESOLUTION

Governing Law. The laws of Delaware, except for conflict-of-law rules, will apply to any dispute related to the Service, the Platform or this Agreement.

Arbitration. The parties will attempt to settle any dispute or claim by either of them relating to the Service, the Platform or this Agreement by good-faith consultation. If such consultation yields no satisfactory resolution of the dispute or claim, then either party may submit it to arbitration conducted by JAMS, a nationally recognized arbitration provider. The arbitration will be held in Los Angeles County, California. The award will be final and binding on the parties as from the date rendered, and will be the sole and exclusive remedy between the parties regarding any claims, counterclaims, issues, or accounting presented to the arbitral tribunal. Judgment upon any award of the arbitrator may be entered in any court having jurisdiction thereof. In the case of any dispute, the prevailing party to this Agreement will be entitled to recover reasonable attorneys’ fees and costs, including expert witness fees, from the other party.

ADDITIONAL PROVISIONS

Reservation of Rights. All right, title, and interest in the Intellectual Property in the Services, the Platform and the Fixe Marks will belong solely to Fixe or to the Third-Party Service that owns or licenses such Intellectual Property. Client will have no rights in the Services or the Platform except as this Agreement expressly grants.

Feedback. If Client or any Authorized User provides Fixe with comments or suggestions about Fixe, the Platform or the Services (“Feedback”), Client hereby grants Fixe a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license, without right of attribution, to copy and store any Feedback and use it to develop new products, improve or modify the Services or the Platform or any other Fixe offerings or as Fixe deems appropriate.

Nature of Relationship. Each party will act as an independent contractor with respect to this Agreement, and employees of one party will not be considered to be employees of the other. This Agreement creates no agency, partnership, joint venture, other joint relationship or fiduciary relationship. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other.

Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement except as this Agreement expressly provides.

Assignment. Client may not assign or transfer any of Client’s obligations, licenses or rights under this Agreement without Fixe’s prior written consent. Fixe may assign this Agreement without Client’s prior notice or consent.

Force Majeure. Neither party will be held liable for failure to perform any obligation of or delay in performance resulting from or contributing to any cause beyond that party’s reasonable control, including without limitation any act of God, act of civil or military authority, act of war or terrorism, act (including delay, failure to act, or priority) of any governmental authority, power outages, civil disturbance, insurrection or riot, sabotage, fire, severe weather conditions, earthquake, flood, strike, work stoppage or other labor difficulty, embargo, delay in transportation or embargoes. The affected party’s obligations will be suspended solely to the extent caused by the force majeure and so long as it lasts, and the time for performance of the affected obligation will be extended by the time of the delay that the force majeure causes.

Successors. This Agreement will bind and inure to the benefit of the parties and their heirs, administrators, successors, and assigns.

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain enforceable.

Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.

Entire Agreement. This Agreement is the entire understanding of the parties and supersedes all prior agreements between them concerning its subject matter. Any amendment must be in writing and expressly state that it is amending this Agreement.

Notices. Notices to Fixe under this Agreement are deemed accepted only when sent by email to notices@getmyfixe.com. Notices to Client are deemed accepted when sent by email to the email address of any current Primary User.

Survival. In addition to any other section that expressly provides for its survival, the sections herein titled Restrictions on Use, Reservation of Rights, Feedback, Confidentiality, No Refunds, Fees and Payment, Disclaimers, Limitations of Liability, Indemnification, Assignment, Successors, Severability, Waiver, Entire Agreement, Arbitration & Dispute Resolution and Notices shall survive this Agreement’s termination permanently.