Terms of Service - The Shed App Setup

The Shed App Terms of Service and Payment Processing Agreement

(“Terms”)

Last updated: August 8, 2024

These Terms are between you (the “ Customer ”) and The Shed App LLC (the “ Company ”) and constitutes a legal agreement that governs your use of the Service, and any other website, software, service, mobile application, or product offered by the Company to which these Terms are referenced. If you do not agree to any of the following terms, please do not use the Service. If you have a written agreement with us, the terms in that agreement will apply to your use of the Service and supersede the terms in these Terms with respect to any provisions in conflict. Company and Customer are each referred to herein as a “ Party ” and collectively the “ Parties ”. Terms particular to payment processing appear in Section 4.3 below.

BY ACCEPTING THIS AGREEMENT BY USE OR ACCESS OF THE SERVICE, OR BY OTHERWISE CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING OUR PRIVACY POLICY, WHICH IS INCORPORATED HEREIN BY REFERENCE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

THESE TERMS MAY BE MODIFIED OR AMENDED BY THE COMPANY IN ITS SOLE AND ABSOLUTE DISCRETION AT ANY TIME. Changes will be effective immediately, provided the Company will make good faith efforts to provide a minimum of thirty (30) days prior notice prior to any material change. Continued use of the Service thereafter shall be deemed consent to and acceptance of these Terms as revised. If you do not agree to any change(s) your sole remedy is to terminate this Agreement and cease using and accessing the Service.

Definitions. Capitalized terms used in this Agreement shall have the meaning set forth in this Section 1 or as otherwise defined in this Agreement.
1. “ Agreement ” means collectively, these Terms, together with any Order(s) or other agreements referencing these Terms between Customer and the Company.
2. “ Aggregated Statistics ” means data and information related to or arising from Customer’s use of the Service that is used by the Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service.
3. “ Authorized User ” means Customer and its employees, consultants, contractors, and agents who are authorized by Customer to access and use the Service under the rights granted to Customer pursuant to this Agreement.
4. “ Customer Data ” means, other than Aggregated Statistics, Personal Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Service.
5. “ Confidential Information ” means, with respect to the Company, all information which the Company protects against unrestricted disclosure to others, including but not limited to: (a) the Service and Documentation, including without limitation the following information regarding the Service: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Service; (ii) benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications, file formats; and (iii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Service; (b) the research and development or investigations of the Company; (c) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, marketing plans, forecasts and strategies; and (d) any information about or concerning any third party (which information was provided to the Company subject to an applicable confidentiality obligation to such third party). With respect to Customer, “Confidential Information” means all information which Customer protects against unrestricted disclosure to others and which (1) if in tangible form, Customer clearly identifies as confidential or proprietary at the time of disclosure; and (2) if in intangible form (including disclosure made orally or visually), Customer identifies as confidential at the time of disclosure, summarizes the Confidential Information in writing, and delivers such summary within thirty (30) calendar days of any such disclosure.
6. “ Documentation ” means any user manuals and training materials, but not advertising or promotional materials, provided by the Company for use with the Service.
7. “ Intellectual Property ” means all copyrights, trademarks, trade name, service marks, logo, corporate name trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure, or any other proprietary rights or other intellectual property rights (including, without limitation, any know-how, trade secret, trade right, formula, conditional or proprietary report or information, customer or membership list, any marketing data, and any computer program, software, database or data right), and license or other contract relating to any of the foregoing, and any goodwill associated with any business owning, holding or using any of the foregoing.
8. “ Order ” means any order form executed by the Company and Customer for Professional Services and/or the Service.
9. “ Person ” means any natural person or business entity or any government or political subdivision, or any agency, department or instrumentality thereof.
10. “ Personal Data ” means any data relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
11. “ Service ” means The Shed App platform made available at https://app.theshedapp.com, including and any other website, software, service, mobile application, or product offered by the Company to which these Terms are referenced.
12. “ Third Party Products ” means any third-party products, software, and services provided with or incorporated into the Service, including without limitation our payment processors.
13. “ Work Product ” means any content, technology or other subject matter of any nature whatsoever that is conceived, created, developed or otherwise provided or made available by the Company in providing Professional Services to Customer, including without limitation any Documentation, training materials, works of authorship, know-how, or any invention, device, process, method, development, design, specifications, technique, apparatus, reports, schematic or technical information (whether patentable or not), documentation, software or enhancements, improvements, alterations, interfaces, work flows, best practices, and customized feature of the Service developed for Customer or at Customer’s request or suggestion and any other deliverable of any kind provided by the Company to Customer pursuant to this Agreement.
Service Use and Access.
1. Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, the Company hereby grants Customer a non-exclusive, non-transferable right to access and use the Service during the term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use.
2. API Use. Provided that Customer has been authorized by the Company in writing to build custom application code authorized to be developed using the Company’s APIs in accordance with the documentation accompanying such API (“ Custom Code ”) (which authorization may be withdrawn by the Company at any time upon written notice to Customer), Customer may use the API to create Custom Code solely as set forth in this Agreement. While the Company currently does not charge for use of the API, the Company reserves the right to charge a fee for the use of the API in the future. Should the Company implement a fee for the API, prior written notice will be given to Customers who are currently using the API.
3. Documentation. Subject to the terms and conditions contained in this Agreement, the Company hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use any supporting Documentation, during the term solely for the purposes in connection with its use of the Service and in accordance with these Terms.
4. Use Restrictions. Customer shall not use the Service for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Service or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or Documentation other than to Authorized Users; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service, in whole or in part; (iv) remove any proprietary notices from the Service or Documentation; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) allow any Person other than Authorized Users to access or use the Service; or (vii) use or access the Service or Documentation for purposes of creating or marketing a similar or competitive solution with the Service, whether directly or indirectly. Customer acknowledges that the Service may contain self-reporting technology by which the Company may receive information deemed relevant by the Company to providing improving the Service, monitoring compliance, and any other purposes as determined by the Company in its reasonable discretion. Customer shall not tamper with or attempt to disable such self-reporting technology.
5. The Company’s Rights. Customer acknowledges and agrees that, subject to the license grants contained in this Agreement, the Company and its licensors retain all right, title and interest in and to the Company’s Intellectual Property which were possessed, discovered or acquired by the Company prior to the execution of this Agreement (including, without limitation, the Service), and any improvements, modifications, advancements or derivatives thereof or thereto (including all Work Product), whether or not made in connection with any services hereunder and regardless of which Party made or contributed to such improvement, modification, advancement or derivative. There are no implied licenses under this Agreement; any rights not expressly granted to Customer hereunder are reserved by the Company, including the right to grant third-parties non-exclusive licenses in the Service and Work Product. Customer shall not contest the Company’s ownership of the Service or Work Product, nor shall Customer challenge the validity of the Company’s rights to the Service or Work Product.
6. Non-Exclusivity. The rights granted under this Agreement are non-exclusive. Nothing in this Agreement shall be construed to prevent or restrict the Company in any manner from using or granting licenses to others for the use of the Service or Work Product.
7. Suspension. Notwithstanding anything to the contrary in this Agreement, the Company may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Service if: (i) the Company reasonably determines, in its sole discretion, that (A) there is a threat or attack on any of the its Intellectual Property; (B) Customer’s or any Authorized User’s use of the Company Intellectual Property disrupts or poses a security risk to the Company Intellectual Property or to any other Person; (C) Customer, or any Authorized User, is using the Company Intellectual Property for fraudulent or illegal activities or otherwise in breach of these Terms; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) the Company’s provision of the Service to Customer or any Authorized User is prohibited by applicable law; or (ii) any vendor of the Company has suspended or terminated the Company’s access to or use of any third-party services or products required to enable Customer to access the Service (any such suspension a “ Service Suspension ”). The Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. The Company shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. The Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. The Company reserves the right to include as part of the Service access restriction devices and methods designed to prohibit unauthorized access to its Intellectual Property rights in the Service. Such methods may include the ability for the Company to access and pull data from the Service as reasonably necessary to determine Customer’s compliance with this Agreement.
8. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, the Company may monitor Customer’s use of the Service and collect and compile Aggregated Statistics. As between the Company and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by the Company. Customer acknowledges that the Company may compile Aggregated Statistics based on Customer Data input into the Service. Customer agrees that the Company may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer, Authorized Users or either of their Confidential Information, including without limitation, any Personal Data.
9. Changes to Service. The Company reserves the right to: (i) withdraw or amend the Service, and any other service or material it provides on or through the Service, in its sole discretion without notice; and (ii) to discontinue offering the Service in its sole discretion without any liability. The Company will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, the Company may restrict access to some parts of the Service, or the entire Service, to users.
10. Service Level Agreement; Support Service. Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide the Service to Customer in accordance with the Service Level Agreement attached hereto as Exhibit A. Subject to the terms of this Agreement, the Company will use commercially reasonable efforts to provide Customer with reasonable technical support services in accordance with its standard practice set forth on Exhibit A.
Professional Services.
1. Implementation and Professional Services. Customer may be required to purchase implementation services with the initial purchase of any Service, as set forth on an Order (“ Implementation Service ”). During the term of this Agreement, the Company agrees to perform the certain professional services described in an Order, or separate Statement of Work, mutually agreed upon and executed in writing by both Parties (collectively with Implementation Services, the “ Professional Services ”). Each Order or Statement of Work shall be appended to and become part of this Agreement. The Company will rely on the specific instruction, information and/or other software or product provided by Customer. The Parties will work diligently to reach a mutually acceptable performance schedule in accordance with Customer’s schedule, business needs and equipment availability. The Company is not responsible for default or delays caused by Customer’s failure to provide accurate instructions, information, access to facilities or suitable product or application environment. Customer is responsible for providing all equipment, utilities and telecommunications facilities necessary for the operation of the Service.
2. Intellectual Property Rights . Except as may expressly indicated on an Order or Statement of Work mutually executed between the Parties and notwithstanding anything herein to the contrary, the Company shall retain all right, title and interest in and to any Work Product, including all Intellectual Property rights therein. The Company hereby grants Customer a non-exclusive, royalty-free, perpetual, without the right of sublicense, license to use Work Product in the course of Customer’s internal business operations.
3. Access to Customer Facilities. The Company’s obligations under this Section 3 are conditioned on Customer providing the Company with the necessary access to Customer’s facilities and computer systems (including remote access). The Company will comply with and cause its personnel to comply with Customer’s reasonable security regulations, working hours and policies while working on Customer’s premises.
4. Subcontracting. The Company may delegate any of its obligations under these Terms to third-party subcontractors but will remain primarily responsible for the performance of all of its obligations set forth herein; provided, however, that it is acknowledged that Company does not independently provide payment processing services, and can make those services available only through a third party payment processor. Accordingly, if payment processing services through a third-party payment processor are discontinued for any reason, the Company does not commit itself to provide payment processing services, but may at its option make efforts to find a replacement payment services provider.

Customer Responsibilities.

General. Customer is responsible and liable for all uses of the Service and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Service and shall cause Authorized Users to comply with such provisions. Customer acknowledges that each Authorized User account is personal to such Authorized User and agrees not to provide any other person with access to the Service or portions of it using any Authorized User’s username, password, or other security information. The Company will treat all actions through an Authorized User’s account as if conducted by such Authorized User, whether or not such user had knowledge of the unauthorized use of his or her account. Customer agrees to notify the Company immediately of any unauthorized access to or use of any username or password or any other breach of security.
Third Party Products. The Company may from time to time make Third Party Products available to Customer, which Third Party Products may be embedded within the Service or separate from the Service, including without limitation, embedded payment processing services, such as credit card, debit card, ACH, and other payment processing services, as may be offed from time-to-time. For purposes of this Agreement, such Third Party Products are subject to their own terms and conditions and the applicable flow through provisions, including without limitation, the terms and conditions applicable to payment processing services, made available at https://setup.theshedapp.com/tsa-payments-tos. Customer hereby agrees to comply with any such Third Party Product end user license agreement or other terms provided by the Company, which may be amended from time to time.

Payment Processing Agreement- Terms and Conditions. Customer acknowledges that payment processing services are not provided directly by the Company and are instead provided by a third party. If Customer accepts payment processing services as a Third Party Product under this Agreement (“ Processing Services”), then Customer agrees to Processing Terms and Conditions available at https://setup.theshedapp.com/tsa-payments-tos, which may be amended at time on notice. In addition, the following terms and conditions shall apply to Customer’s use of payment processing services:

General Description of Processing Services. Processing Services are provided by a Third-Party Product via integration into the Company’s technological interface, enabling Customer to accept payment cards. For purposes of the Processing Terms and Conditions hyperlinked above and any other matter related to the Processing Services, the Company is the same as the “Platform” and the Customer is the same as the “Merchant.”
Obligation to Review Transaction Records. Customer is responsible for promptly reviewing its transaction records, as well as any bank statements reflecting settlement of transaction proceeds. It is Customer’s responsibility to promptly report any problem or discrepancy of any kind (including, without limitation, overpayment, underpayments, fee disputes, and/or transaction disputes) in writing within 30 days after such records or statements are first made available to Customer. Customer’s failure to timely report any issues to the Company in accordance with this paragraph will result in Customer’s permanent and irrevocable waiver of the issue and a complete release of the Company and the payment processing provider for any liability associated with the unreported issue and of any duty to investigate or otherwise address the issue.
Disclaimer of Warranty as to Payment Processing Services. Customer acknowledges that the availability of Processing Services depends on the willingness of the payment processor to provide its services to you. The Company makes no representation or warranty regarding the payment processor’s willingness to provide those Processing Services to you. The payment processing provider may decline to offer Customer its services, or discontinue Customer’s access to Processing Services, at any time. Customer understands and agrees that the Company does not control the payment processor’s decision-making and shall have no liability for any failure or refusal of any payment processor to provide Processing Services to you, or for any disruption in the Processing Services. Customer’s use of the Processing Services may be terminated as set forth in the terms of service hyperlinked above. Customer must also notify the Company in writing if Customer elects to discontinue use of the Processing Services.
Accurate Information; Consent to Access Information. Customer agrees to provide the Company and the payment processor with accurate information about Customer’s business, including, without limitation, identification of its beneficial owners. Customer further agrees that both the Company and payment processor may access for any lawful purpose-- including specifically the provision of the Company and payment processor’s respective services—information flowing through Customer and payment processor’s technology systems.
Lawful use; Data Security. Customer agrees to use the Processing Services in accordance with any applicable to laws or rules promulgated by the payment networks (e.g. Visa, Mastercard, American Express, Discover). Customer also agrees to present only bona fide transactions for processing, and not to use any services under this Agreement (regardless of by whom they are provided) for any unlawful purpose. Customer further understands and agrees that it is responsible for the security of payment card data and agrees to comply with the Payment Card Industry Data Security Standards as well as any applicable law governing such data.

Fees. Fees for Processing Services will be charged to you by the Company and are set forth.

Processing Fees	Amount
Card Volume Rate	3.10%
ACH Volume Rate	1.00% up to $50
Transaction Per Item Fee (Card and ACH)	$0.30
Refund Per Item Fee (Card and ACH)	$0.50
Chargeback and ACH Return Fee	$25.00
Dispute Fee (Card and ACH)	$25.00
Deposit Fee	$0.40

Financial Terms.
1. Fees. Customer’s monthly subscription fee for the Service is based on the Customer’s applicable Tier as set forth in the Customer account (the “Fees”). Any fees for Professional Services will be set forth in an Order or applicable Statement of Work. Fees payable for the Service will start upon the Customer’s subscription date and will be due on the same day for each month thereafter, or the last day of such month to the extent applicable, until termination of Customer’s subscription to the Service. Customer’s initial payment shall be the Tier 1 pricing set forth in the Customer’s account. The monthly subscription Fee shall automatically increase in the subsequent billing cycle to the next applicable Tier in the event that the aggregated submitted orders processed using the Service the prior month exceed the Max Monthly Revenue for such Tier as indicated in the Customer’s account. Customer shall make all payments hereunder in U.S. dollars on or before the due date. The Fees under this Agreement are from time to time subject to market increases (“Fee Increase”) upon ninety (90) days’ prior notice to Customer (“Fee Increase Notice”), but in no event will there be more than 1 Fee Increase per year. The Fee Increase Notice will include an updated Fee schedule and will be effective upon the effective date set forth in the Fee Increase Notice (“Fee Increase Effective Date” If Customer does not accept the Fee Increase, Customer’s sole remedy shall be to cease use of the Service by giving written notice to the Company of Customer’s rejection of such Fee Increase (“Rejection Notice” Upon the Company’s receipt of a Rejection Notice, this Agreement shall terminate with no further penalty to Customer as of the Fee Increase Effective Date, provided that Customer has no outstanding amounts due hereunder and is not in breach of this Agreement. Customer’s continued use of the Service shall be deemed acceptance to such Fee Increase if no timely Rejection Notice is received and it is Customer’s sole responsibility to ensure that Customer’s contact information is updated with the Company for Fee Increase Notices.
2. Default Fees. If Customer fails to make any payment when due, without limiting the Company’s other rights and remedies, and such failure continues for five (5) days or more, the Company may suspend Customer’s and its Authorized Users’ access to any portion or all of the Service until such amounts are paid in full. Fees and expenses not paid when due will accrue interest from the date due until paid at an annual rate equal to 1.5% per month, or the highest rate permissible under applicable law, whichever is less. The Company will, in addition to any other remedy available to it, be entitled to its cost of collections, including attorneys’ fees, if an amount due remains outstanding for more than 60 days.
3. Expenses. Customer will reimburse the Company monthly in arrears for its reasonable documented travel, telephone and other actual out-of-pocket expenses that Customer has pre-approved in writing relating to Professional Services. The Company will maintain complete and accurate records related to such expenses and, upon Customer’s request, will submit copies of such records.
4. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer 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 Customer hereunder, other than any taxes imposed on the Company’s income.
Confidentiality.
1. Use Confidential Information. Confidential Information of the disclosing Party shall not be reproduced by the receiving Party in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each Party: (i) shall take commercially reasonable steps to keep all Confidential Information strictly confidential; and (ii) shall not disclose any Confidential Information of the other to any Person other than its bona fide individuals whose access is necessary to enable it to exercise its rights or otherwise perform its obligations hereunder. Confidential Information of either Party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder. Each Party shall destroy or return the Confidential Information of the other Party upon request.
2. Exceptions. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (i) is independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (ii) has become generally available to the public without breach of this Agreement by the receiving Party; (iii) at the time of disclosure, was known to the receiving Party free of restriction; (iv) the receiving Party develops independently without any use of or reference to the Confidential Information of the disclosing Party; or (v) is required to be disclosed to governmental agencies having regulatory authority or other authority of the receiving Party, or is required by a court order to be disclosed or to provide such Confidential Information, provided that receiving Party shall use its best efforts, to the extent permitted by law to do so, to promptly give disclosing Party written prior notice to any disclosure under this clause (v) so that disclosing Party can seek a protective order.
3. Personal Data. Customer acknowledges that, except for limited Personal Data required to administer this Agreement (such as the Personal Data of Customer’s business contacts or Authorized Users) (the “ Business Contact Data ”), the Company does not require Personal Data to provide the Service. Customer shall limit disclosure of Personal Data to the Company and, except for Business Contact Data, only provide Personal Data to the Company with the prior written consent of the Company. Prior to any such authorized disclosure, the Parties shall agree in writing to the procedures surrounding the disclosure, including any encryption requirements and the mechanism of disclosure.
Representations and Warranties.
1. Mutual Warranties. Each Party represents to the other Party that such Party has the power and authority to enter into this Agreement and that such Party is not a party to any restrictions, agreements or understandings whatsoever which would prevent or make unlawful such Party’s acceptance of the terms set forth in this Agreement or such Party’s performance hereunder. Each Party further represents that such Party’s acceptance of the terms of this Agreement and the performance of such Party’s obligations hereunder do not and will not (with the passage of time) conflict with or constitute a breach or default of any contract, agreement or understanding, oral or written, to which such Party is a party or by which such Party is bound.
2. The Company Warranties. Professional Services performed by the Company will (i) be performed in a timely, competent, professional and workmanlike manner, (ii) substantially conform to the written specifications under the relevant Order/Statement of Work for 30 days from completion, or for such other warranty period as may be indicated in any accepted Order/Statement of Work, and (iii) be in compliance with all laws, rules and regulations applicable to the Company’s performance under this Agreement. EXCEPT AS SET FORTH IN SECTION 2.10, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND BY THE COMPANY, EITHER EXPRESS OR IMPLIED.
3. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES MADE BY THE COMPANY IN THIS SECTION 7, THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY WARRANTY OF ANY KIND (STATUTORY, EXPRESS OR IMPLIED), INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, RESULTS OR EFFORTS. THERE IS NO WARRANTY THAT ANY INFORMATION, THE COMPANY’S EFFORTS, THE SERVICE, PROFESSIONAL SERVICE OR THE DOCUMENTATION WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES. THE COMPANY DOES NOT WARRANT THAT THE SERVICE, DOCUMENTATION, OR PROFESSIONAL SERVICES IT PROVIDES ARE ERROR FREE, WILL FUNCTION WITHOUT INTERRUPTION, WILL MEET ANY SPECIFIC NEED THAT CUSTOMER HAS OR THAT ALL DEFECTS WILL BE CORRECTED. TO THE EXTENT THAT A PARTY MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. CUSTOMER HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT. FURTHER, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO ANY THIRD PARTY PRODUCTS MADE AVAILABLE TO CUSTOMER AS PART OF THIS AGREEMENT.
4. Remedies. THE FOLLOWING ARE THE PARTIES’ RESPECTIVE SOLE AND EXCLUSIVE OBLIGATIONS, AND SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY ACTION FOR BREACH OF LIMITED WARRANTY UNDER THIS AGREEMENT: (I) CUSTOMER’S REMEDY FOR NON-CONFORMING PROFESSIONAL SERVICES DISCOVERED DURING THE WARRANTY PERIOD SHALL BE THE RE-PERFORMANCE OF ANY DEFICIENT PROFESSIONAL SERVICES AT THE COMPANY’S EXPENSE; OR (II) IF THE COMPANY IS UNABLE TO REMEDY ANY DEFICIENT PROFESSIONAL SERVICES WITHIN 30 DAYS OF NOTICE OR SUCH ADDITIONAL TIME AS MAY BE AGREED UPON BY THE PARTIES, THE COMPANY WILL, AT ITS OPTION, PROVIDE A CREDIT OR REFUND OF ANY FEES PAID FOR THE SPECIFIC NON-CONFORMING PROFESSIONAL SERVICES.
5. Geographic Location. The Company provides the Service for use only by persons located in the United States and makes no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If Customer or an Authorized User accesses the Service from outside the United States, it does so on its own initiative and is responsible for compliance with local laws.
Liability Restrictions.
1. Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY WILL NOT BE LIABLE CUSTOMER FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION) ARISING UNDER THIS AGREEMENT (INCLUDING FOR SERVICES RENDERED BY A THIRD PARTY) REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AMOUNT OF DIRECT DAMAGES RECOVERABLE FROM THE COMPANY UNDER THIS AGREEMENT (INCLUDING FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATED TO A THIRD PARTY PRODUCT) IS LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SERVICE AND/OR PROFESSIONAL SERVICE PURCHASED UNDER THIS AGREEMENT DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICHEVER THE CASE MAY BE.
3. Limitation of Actions. In no event may any cause of action related to this Agreement by brought by the Customer more than 1 year after the occurrence of the event giving rise to liability. FURTHER, CUSTOMER AGREES THAT ANY ACTION IT BRINGS WILL BE ON AN INDIVIDUAL BASIS, AND EXPRESSLY WAIVES ITS RIGHT TO PROCEED ON A CLASS OR COLLECTIVE BASIS.
Indemnification. Customer shall indemnify, hold harmless, and, fully release the Company, its officers, directors, employees, affiliates and agents from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) resulting from any from any third-party claim, suit, action, or proceeding (collectively, “ Third-Party Claim ”) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on, arising from, or related to Customer’s or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Service in a manner not authorized by this Agreement; (iii) use of the Service in combination with data, software, hardware, equipment or technology not provided by the Company or authorized by the Company in writing; or (iv) modifications to the Service not made by the Company, provided that Customer may not settle any Third-Party Claim against the Company unless the Company consents to such settlement, and further provided that the Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Term and Termination.
1. Term. The term of this Agreement commences on the Customer’s subscription date to the Service and continues in successive monthly periods thereafter until terminated.
2. Termination for Convenience. Either Party may terminate this Agreement for any reason or no reason effective upon written notice. Customer shall be responsible for all Fees accrued up until the effective date of termination, including without limitation any fees or expenses incurred by the Company for Professional Services.
3. Effect of Termination. Upon the termination or expiration of this Agreement the following terms shall apply: (i) all licenses granted under this Agreement will immediately terminate; (ii) Customer must pay to the Company all fees and expenses accrued prior to the effective date of termination, including any and all Fees due hereunder; and (iii) Sections 1, 2.5, 2.6, 2.7, 2.9, 2.10, 3.2, 5.2, 5.3, 5.4, 6, 7.3, 7.4, 7.5, 8, 9, 10.3, 11, and 12 and any other provision of this Agreement that by its terms would survive shall survive the termination or expiration of this Agreement for any reason.
Intellectual Property Ownership; Feedback.
1. The Company Intellectual Property. Customer acknowledges that, as between Customer and the Company, the Company and its licensors own all right, title, and interest, including all intellectual property rights, in and to the Company Intellectual Property, including without limitation, Aggregated Statistics and Work Product.
2. Customer Data. The Company acknowledges that, as between the Company and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to the Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for the Company to provide the Service to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. For the avoidance of doubt, in no event will the Company sell any Customer Data to third parties or use such Customer Data for any other purposes than as set forth in this Agreement.
3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to the Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Service, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“ Feedback ”), the Company is free to use such Feedback without any other or limitation, restriction or payment between the Parties governing such Feedback.
General.
1. Governing Law; Venue and Jurisdiction. This Agreement shall be governed by the laws of the State of Arizona without regard for its choice of law provisions. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located within the State of Arizona, County of Maricopa for the purposes of any proceedings arising out of this Agreement.
2. Severability. The provisions of this Agreement are independent of and severable from each other. No provision shall be affected or rendered unenforceable by virtue of the fact that any one of more of the other provisions hereof may be unenforceable in whole or in part, unless the absence of such unenforceable provisions materially alters the right or obligations of either Party hereto. The Parties will endeavor in good faith negotiations to replace any unenforceable provision with a valid provision.
3. Equitable Relief. The Parties acknowledge and agree that it is impossible to measure in money the damages that will accrue to a party hereto by reason of the other party’s breach of Sections 4 or 6, and that such a breach will cause irreparable harm to the non-breaching party. In addition to any other right or remedy available at law or in equity, the non-breaching party may apply to any court of competent jurisdiction for specific performance or injunctive relief to enforce or prevent any breach of Sections 4 or 6 without posting a bond or other security.
4. Attorneys’ Fees. The prevailing party in any action will be entitled to recover from the non-prevailing party its reasonable legal fees and expenses incurred in connection with the action.
5. Notices. All legal notices under this Agreement to the Company must be delivered in writing by courier, electronic facsimile, electronic mail, or by certified or registered mail (postage prepaid and return receipt requested) to The Shed App LLC, 1401 W Vista Ave, Phoenix, AZ 85021 Attention: Legal. Notice will be deemed effective upon the earlier of actual receipt by the intended recipient or upon delivery by courier; acknowledgement of receipt by electronic transmission or 5 days after deposit with the U.S. Postal Service. Customer agrees that the Company will provide notices and messages to it either within the Service or sent to the contact information in the Customer’s account. Customer is responsible for providing the Company with its most current e-mail address. If Customer has provided an invalid email, or such address is not capable of receiving notices, the Company’s dispatch of such email will nonetheless constitute effective notice.
6. Relationship of Parties. The Parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the Parties. Neither Party (nor any agent or employee of that party) is the representative of the other Party for any purpose and neither Party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
7. No Third-Party Beneficiaries. No Party will be deemed as a third-party beneficiary to this Agreement.
8. Assignment. Neither this Agreement nor any rights or obligations hereunder may be assigned or delegated by Customer without the prior written consent of the Company, which consent may not be unreasonably withheld.
9. Force Majeure. Except for any payment obligations hereunder, any delay in or failure of performance by either Party under this Agreement shall not be considered a breach of this Agreement and shall be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to fires, floods, epidemics, famines, earthquakes, hurricanes and other natural disasters or Acts of God; regulation or acts of any civilian or military authority or act of any self-regulatory authority; wars, terrorism, riots, civil unrest, sabotage, theft or, other criminal acts of third-parties.
10. Waiver and Modifications. All waivers must be in writing. Any waiver or failure to enforce a provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion. Except as otherwise set forth in these Terms, this Agreement may only be amended by a written document signed by both Parties.
11. Publicity. The Company may identify Customer as a customer in its marketing and promotional materials and may verbally disclose the fact that Customer is a customer in its discussions with potential customers.
12. Entire Agreement. The Privacy Policy and this Agreement, including all Orders and Statements of Work hereto, and the pricing set forth in the Customer account relating to the Fees payable hereunder constitutes the entire, final and exclusive agreement between the Parties regarding the subject matter hereof and supersedes all prior or contemporaneous, agreements, understandings and communications, whether, written and oral.
13. Counterparts. This Agreement may be signed in several counterparts, each of which shall constitute an original.
14. Exports. The Service utilizes software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Service or the underlying software or technology to, or make the Service or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service or the underlying software or technology available outside the U.S.

EXHIBIT A

Service Availability, Service Levels and Technical Support

Service Availability

The Service will be available 99% of the time measured monthly, excluding weekends, holidays and scheduled maintenance and downtime.

Customer Support

Customer support coverage parameters specific to the Service covered in this Agreement are as follows:

Telephone support: 9:00 A.M. to 5:00 P.M. (CST) Monday – Friday.
Emergency calls received out of office hours will be forwarded to a mobile phone; reasonable efforts will be made to answer and/or respond to the call; however, this cannot be guaranteed.
Email support: Monitored 9:00 A.M. to 5:00 P.M. (CST) Monday – Friday.
Emails received outside of office hours will be collected; however, no action can be guaranteed until the next working day.
Unless otherwise agreed to by the Company in writing, all customer support will be provided remotely.

Service Requests

In support the Service outlined in this Agreement, the Company will respond to Service related incidents and/or request submitted by the Customer with the following time frames based on applicable to the severity level, as determined in the Company’s sole discretion:

Within 0-8 hours (during business hours) for Service requests classified as High priority.
Within 48 hours for Service requests classified as Medium priority.
Within 5 business days for Service requests classified as Low priority.