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This Terms of Service Agreement (this “Agreement”) is between rfrd, Inc. dba WELL DONE, a Delaware corporation (“WELL DONE”) and the party accepting this Agreement (“Customer”) and governs Customer’s access to and use of the Platform. This Agreement is effective as of the date of Customer’s acceptance of this Agreement (the “Effective Date”). CUSTOMER ACCEPTS THIS AGREEMENT BY: (1) CLICKING A BOX INDICATING ACCEPTANCE; (2) EXECUTING AN ORDER (AS DEFINED BELOW) THAT REFERENCES THIS AGREEMENT; OR (3) OTHERWISE ACCESSING THE PLATFORM. 

ANY INDIVIDUAL AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.

NOTWITHSTANDING THE FOREGOING, IF THE PARTIES HAVE OTHERWISE AGREED TO A SEPARATE WRITTEN AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF EACH PARTY GOVERNING THE SERVICES AND CUSTOMER’S ACCESS TO AND USE OF THE PLATFORM (THE “SERVICES AGREEMENT”), SUCH SERVICES AGREEMENT APPLIES AND THIS AGREEMENT WILL BE OF NO FORCE OR EFFECT.

1. DEFINITIONS.

1.1 “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of 50% or more of the outstanding voting securities (but only for as long as such entity meets these requirements).

1.2 “Benefit” means a benefit with monetary value made available by Customer to its Users based on the User completing a task.

1.3 “Content” means content, data, and information that is owned by WELL DONE or any of its licensors that is provided or made available by WELL DONE through use of the Platform or as part of or in connection with WELL DONE’s provision of Hosted Services. Content does not include Customer Data.

1.4 “Customer Data” means the electronic data and information input into the Platform by or on behalf of Customer. Customer Data does not include Usage Data or Aggregated Data.

‍1.5 “Documentation” means any user materials, instructions, and specifications made available by WELL DONE to Customer for the Hosted Services.

‍1.6 “Order” means any order setting forth the terms and conditions relating to the Hosted Services and Customer’s access to the Platform agreed to by the parties (including, but not limited to, Customer’s selection of Platform access made by Customer through the Platform). Each Order is incorporated by reference into this Agreement.

‍1.7 “Platform” means the platform utilized by WELL DONE to provide the Hosted Services to Customer under this Agreement. The Platform does not include Customer’s connectivity equipment, internet and network connections, hardware, software and other equipment as may be necessary for Customer and its Users to connect to and obtain access to the Platform or to utilize the Hosted Services.

1.8 “Hosted Services” means WELL DONE’s proprietary software as a service offering as set forth in the applicable Order and made available through remote access by WELL DONE to Customer and Users as part of the Platform, including any modified, updated, or enhanced versions that may become part of the Hosted Services.

1.9 “Usage Data” means any content, data, or information that is collected or produced by the Platform in connection with use of the Hosted Services that does not identify Customer or its Users, and may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Platform.

1.10 “Users” means Customer’s employees, independent contractors, and other individuals who are authorized by Customer to use the Hosted Services on behalf of Customer.‍

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2. HOSTED SERVICES.

2.1 Provision of Hosted Services. Subject to the terms and conditions of this Agreement, WELL DONE shall provide the Customer and its Users with access to and use of the Hosted Services during the Term (defined below).

2.2 Resources. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for its Users to connect to and access the Platform.

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3. GRANT OF RIGHTS.

3. 1 Access Rights; Customer’s Use of the Platform. Subject to the terms and conditions of this Agreement, WELL DONE hereby grants to Customer, during the Term, a non-exclusive, non-transferable (except as permitted by Section 11.3), non-sublicensable right to access and use the Hosted Services for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and the terms and conditions of this Agreement and subject to the usage limitations set forth in the applicable Order (the “Usage Limitations”). WELL DONE and its licensors reserve all rights in and to the Platform and the Hosted Services not expressly granted to Customer under this Agreement.

‍3.2 Restrictions on Use. Customer shall not (a) reproduce, display, download, modify, create derivative works of or distribute the Hosted Services, or attempt to reverse engineer, decompile, disassemble or access the source code for the Hosted Services or any component thereof; (b) use the Hosted Services, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Customer or Customer Affiliates; (c) permit any party, other than the then-currently authorized Users to independently access the Hosted Services; (d) use the Hosted Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; (e) exceed the Usage Limitations; (f) use the Hosted Services at any location for which Customer has not paid the applicable Fees (as defined below); or (g) use the Hosted Services to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

‍3.3 Users. Customer will be liable for the acts and omissions of all Customer Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement. Customer shall not, and shall not permit any User to, use the Platform, Hosted Services or Documentation except as expressly permitted under this Agreement. Customer is responsible for Users’ compliance with this Agreement.

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4. FEES AND PAYMENT TERMS.

4.1 Price. Customer shall pay WELL DONE the fees set forth in the applicable Order (“Fees”) in accordance with the terms of this Agreement. Fees are exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any Fees or any amounts owed to WELL DONE under this Agreement (excluding any taxes arising from WELL DONE’s income or any employment taxes).

4.2 Payment. Customer shall pay to WELL DONE all Fees within 30 days after Customer’s receipt of the applicable invoice for such Hosted Services. If Customer disagrees with any Fees set forth in an invoice, Customer must notify WELL DONE of the dispute within 30 days after receipt of such invoice. If WELL DONE does not receive notice of a dispute during such 30 day period, Customer will be deemed to have accepted the Fees set forth in the invoice. All payments received by WELL DONE are non-refundable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars.

4.3 Taxes on Rewards.  Customer is solely responsible and liable for reporting, collecting, and remitting any taxes, including, without limitation, any payroll taxes, assessed on the value of or provision of Benefits to Users (“Payroll Taxes”).

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5. TERM AND TERMINATION.

5.1 Term. This Agreement commences on the Effective Date and, unless terminated earlier in accordance with this Agreement, continues until all Orders have terminated (“Term”).

5.2 Order Term. The initial term of an Order begins on the date set forth in the Order and continues for the period set forth in the Order (the “Subscription Term”). If no Subscription Term is set forth in an Order, then the Subscription Term will be deemed to be one-year. Each Order will automatically renew for additional periods equal in length to the Subscription Term (each, a “Renewal Term”), unless a party gives the other party written notice of its intent to not renew at least 30 days prior to the end of the Subscription Term or the then-current Renewal Term.

5.3 Termination for Cause. A party may terminate this Agreement or an Order upon notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach.

5.4 Effects of Termination. Upon termination of this Agreement and all Orders: (a) all amounts owed to WELL DONE under this Agreement before such termination will be due and payable in accordance with Section 4; (b) Customer’s rights granted in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access and use of the Platform and return or erase, all copies of the Documentation in Customer’s possession or control; and (d) WELL DONE shall promptly return or erase all Customer Data, except that WELL DONE may retain Customer Data in WELL DONE’s archived backup files. Sections 4, 5.4, 6, 7.3, 8. 9, 10, and 11 survive expiration or termination of this Agreement.

5.5 Suspension. Notwithstanding anything to the contrary in this Agreement, WELL DONE may suspend Customer’s access to the Platform if WELL DONE determines that: (a) there is an attack on the Platform; (b) Customer’s or any of its Users’ use of the Platform poses a reasonable risk of harm or liability to WELL DONE and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer has breached Sections 3.2 or 10; (d) Customer’s or its Users’ use of the Platform violates applicable law; or (e) Customer has failed to pay any undisputed amounts owed under this Agreement when due and has failed to cure such late payment within 15 days after WELL DONE has provided Customer with written notice of such late payment. WELL DONE shall use commercially reasonable efforts to provide Customer with notice of such suspension. WELL DONE may suspend Customer’s access to the Platform until the situation giving rise to the suspension has been remedied to WELL DONE’s reasonable satisfaction. WELL DONE’s suspension of Customer’s access to the Platform will not relieve Customer of its payment obligations under this Agreement

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6. PROPRIETARY RIGHTS.

6.1 Customer Data. As between the parties, Customer owns all right, title, and interest in Customer Data, including all intellectual property rights therein.

‍6.2 Customer Data License Grant. Customer hereby grants to WELL DONE and its authorized representatives and contractors, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 11.3) license to use the Customer Data solely for the limited purpose of performing the Hosted Services for Customer and fulfilling its other obligations and exercising its rights under this Agreement.

‍6.3 The Hosted Services. All proprietary technology utilized by WELL DONE to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of WELL DONE. WELL DONE or its third party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Content and the Platform, including without limitation the Hosted Services, Documentation, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by WELL DONE in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by WELL DONE.

‍6.4 Aggregated Data. Notwithstanding anything in this Agreement to the contrary, WELL DONE may analyze Customer Data to create a de-identified and aggregated data set that does not identify Customer or its Users (collectively, “Aggregated Data”). WELL DONE retains ownership of all right, title, and interest in and to Aggregated Data. WELL DONE may use Aggregated Data for any lawful purpose, including, but not limited to, to improve, market, and provide the Hosted Services.

‍6.5 Usage Data. WELL DONE retains ownership of all right, title, and interest in and to the Usage Data. WELL DONE may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve WELL DONE’s services, systems, and algorithms.

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7. WARRANTY; DISCLAIMERS.

7.1 Hosted Services. WELL DONE warrants that the Hosted Services will perform materially in accordance with the Documentation and this Agreement. WELL DONE does not warrant that the Hosted Services will be completely error-free or uninterrupted. If Customer notifies WELL DONE of a reproducible error in the Hosted Services that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, WELL DONE shall, at its own expense and as its sole obligation and Customer’s exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if WELL DONE is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to WELL DONE and, WELL DONE shall refund the amounts paid by Customer for access to the Hosted Services for the period during which the Hosted Services was not usable by Customer. The warranties set forth in this Section 7.1 do not apply to any Third Party Offerings or cover any Error caused by: (i) Customer or its Users; (ii) use of the Hosted Services in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Hosted Services, or (iv) any equipment, software, or other material utilized by Customer in connection with the Hosted Services contrary to the provider’s instructions.

7.2 Right to Customer Data. Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by this Agreement; (b) provide WELL DONE with the Customer Data; and (c) grant WELL DONE the license in Section 6.2.

7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. AIRPLX MAKES NO WARRANTY THAT CUSTOMER’S USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER’S IMPLEMENTATION OF ANY PARKING PLAN PRODUCED THROUGH THE PLATFORM IS AT CUSTOMER’S SOLE RISK.

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8. INDEMNIFICATION.

8.1 Claims Against Customer. WELL DONE shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Hosted Services infringes any intellectual property rights of such third party (a “Customer Claim”), and WELL DONE shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying WELL DONE in writing of such Customer Claim; (b) giving WELL DONE sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at WELL DONE’s request and expense, assisting in such defense. In the event that the use of the is enjoined, WELL DONE shall, at its option and at its own expense either: (i) procure for Customer the right to continue using the Hosted Services; (ii) replace the Hosted Services with a non-infringing but functionally equivalent product; (iii) modify the Hosted Services so it becomes non-infringing; or (iv) terminate this Agreement and refund the amounts Customer paid for access to the Hosted Services that relate to the period during which Customer was not able to use the Hosted Services. Notwithstanding the foregoing, WELL DONE will have no obligation under this Section 8.1 with respect to any infringement claim based upon: (1) any use of the Hosted Services not in accordance with this Agreement; (2) any use of the Hosted Services in combination with products, equipment, software, or data that WELL DONE did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software or data; (3) any modification of the Hosted Services by any person other than WELL DONE or its authorized agents or subcontractors; or (4) any Third-Party Offering. This Section 8.1 states WELL DONE’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.

‍8.2 Claims Against WELL DONE. Customer shall defend, any claim, suit, or action against WELL DONE brought by a third party to the extent that such claim, suit, or action is based upon any one or more of the following: (i) Payroll Taxes, (ii) Customer’s violation of any applicable law, rule or regulation, or (iii) WELL DONE’s use of any Customer Data in accordance with this Agreement (each, an “WELL DONE Claim”) and Customer shall indemnify and hold WELL DONE harmless, from and against Losses that are specifically attributable to any WELL DONE Claim or those costs and damages agreed to in a settlement of any such WELL DONE Claim. The foregoing obligations are conditioned on WELL DONE: (a) promptly notifying Customer in writing of such WELL DONE Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 or otherwise with respect to any WELL DONE Claim to the extent based upon WELL DONE’s use of the Customer Data in violation of this Agreement.

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9. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO WELL DONE UNDER THIS AGREEMENT DURING THE SUBSCRIPTION TERM OR RENEWAL TERM, AS THE CASE MAY BE, DURING WHICH THE EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED. THE EXCLUSIONS AND LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 9 DO NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 8, OR TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTION 3.2.

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10. CONFIDENTIALITY.

10.1 Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. WELL DONE’s Confidential Information includes Hosted Services and Documentation. Customer’s Confidential Information includes Customer Data.

10.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 10. Recipient will be liable to the Discloser for any of its independent contractor’s acts or omissions, which, if performed by Recipient, would constitute a breach of this Section 10. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

10.3 Exceptions. Recipient shall have no confidentiality obligations under Section 10.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.

11. GENERAL

11.1 Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.

11.2 Subcontractors. WELL DONE may utilize subcontractors, subprocessors, and other third-party service providers (collectively, “Subcontractors”) in the performance of its obligations, provided that WELL DONE will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by WELL DONE, would constitute a breach of, or otherwise give rise to liability to WELL DONE under, this Agreement when they are performing for or on behalf of WELL DONE.

11.3 Assignment. Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that a party may assign this Agreement without consent from the other party to (a) an Affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect.

11.4 Force Majeure. Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control.

11.5 Notices.

‍If to WELL DONE. To be effective, notices to WELL DONE under this Agreement must be delivered in writing by courier, or certified or registered mail (postage prepaid and return receipt requested) at the address set forth below and will be effective upon receipt, except that e-mail may be used for routine communications (such as notice of non-renewal) and to obtain operational approvals and consents but may not be used for any other notices.
WELL DONE Inc.
Attention: Legal
13410 Braun Road
Golden, CO 80401

If to Customer: To be effective, notices to Customer under this Agreement must be delivered in writing by electronic mail at the email address that WELL DONE has on file for Customer and will be effective upon receipt. Customer may update its address on file by notifying WELL DONE of such address change in accordance with this Section 11.5.

11.6 Governing Law; Venue. The laws of the State of Colorado govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Denver, Colorado in any litigation arising out of this Agreement or the Hosted Services.

11.7 Remedies. Each party acknowledges that any actual or threatened breach of Sections 3.2 or 10 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.

11.8 Compliance with Laws. Each party shall comply with all laws, rules, and regulations, applicable to that party in connection with this Agreement.

11.9 Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.10 Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).

11.11 Modification. WELL DONE may modify this Agreement at any time, upon written notice to Customer. Any such modification will become effective with respect to the applicable Order upon the commencement of the Renewal Term for such Order following the date of such notice. If Customer does not agree to the modified Agreement, Customer may choose to not renew the then-current Subscription Term or Renewal Term (as applicable). Except as otherwise set forth in this Section, this Agreement may not otherwise be modified except by a written amendment signed by an authorized representative of each party.

11.12 Entire Agreement. This Agreement, including any Orders and any exhibits or attachments thereto, constitutes the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party will be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of the Agreement will govern unless the Order specifically overrides this Agreement.

WELL DONE
Performance Incentives for Hourly Employees
© 2023 rfrd, Inc. dba WELL DONE
TERMS OF SERVICE

This Terms of Service Agreement (this “Agreement”) is between rfrd, Inc. dba WELL DONE, a Delaware corporation (“WELL DONE”) and the party accepting this Agreement (“Customer”) and governs Customer’s access to and use of the Platform. This Agreement is effective as of the date of Customer’s acceptance of this Agreement (the “Effective Date”). CUSTOMER ACCEPTS THIS AGREEMENT BY: (1) CLICKING A BOX INDICATING ACCEPTANCE; (2) EXECUTING AN ORDER (AS DEFINED BELOW) THAT REFERENCES THIS AGREEMENT; OR (3) OTHERWISE ACCESSING THE PLATFORM. 

ANY INDIVIDUAL AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.

NOTWITHSTANDING THE FOREGOING, IF THE PARTIES HAVE OTHERWISE AGREED TO A SEPARATE WRITTEN AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF EACH PARTY GOVERNING THE SERVICES AND CUSTOMER’S ACCESS TO AND USE OF THE PLATFORM (THE “SERVICES AGREEMENT”), SUCH SERVICES AGREEMENT APPLIES AND THIS AGREEMENT WILL BE OF NO FORCE OR EFFECT.

1. DEFINITIONS.

1.1 “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of 50% or more of the outstanding voting securities (but only for as long as such entity meets these requirements).

1.2 “Benefit” means a benefit with monetary value made available by Customer to its Users based on the User completing a task.

1.3 “Content” means content, data, and information that is owned by WELL DONE or any of its licensors that is provided or made available by WELL DONE through use of the Platform or as part of or in connection with WELL DONE’s provision of Hosted Services. Content does not include Customer Data.

1.4 “Customer Data” means the electronic data and information input into the Platform by or on behalf of Customer. Customer Data does not include Usage Data or Aggregated Data.

‍1.5 “Documentation” means any user materials, instructions, and specifications made available by WELL DONE to Customer for the Hosted Services.

‍1.6 “Order” means any order setting forth the terms and conditions relating to the Hosted Services and Customer’s access to the Platform agreed to by the parties (including, but not limited to, Customer’s selection of Platform access made by Customer through the Platform). Each Order is incorporated by reference into this Agreement.

‍1.7 “Platform” means the platform utilized by WELL DONE to provide the Hosted Services to Customer under this Agreement. The Platform does not include Customer’s connectivity equipment, internet and network connections, hardware, software and other equipment as may be necessary for Customer and its Users to connect to and obtain access to the Platform or to utilize the Hosted Services.

1.8 “Hosted Services” means WELL DONE’s proprietary software as a service offering as set forth in the applicable Order and made available through remote access by WELL DONE to Customer and Users as part of the Platform, including any modified, updated, or enhanced versions that may become part of the Hosted Services.

1.9 “Usage Data” means any content, data, or information that is collected or produced by the Platform in connection with use of the Hosted Services that does not identify Customer or its Users, and may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Platform.

1.10 “Users” means Customer’s employees, independent contractors, and other individuals who are authorized by Customer to use the Hosted Services on behalf of Customer.‍

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2. HOSTED SERVICES.

2.1 Provision of Hosted Services. Subject to the terms and conditions of this Agreement, WELL DONE shall provide the Customer and its Users with access to and use of the Hosted Services during the Term (defined below).

2.2 Resources. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for its Users to connect to and access the Platform.

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3. GRANT OF RIGHTS.

3. 1 Access Rights; Customer’s Use of the Platform. Subject to the terms and conditions of this Agreement, WELL DONE hereby grants to Customer, during the Term, a non-exclusive, non-transferable (except as permitted by Section 11.3), non-sublicensable right to access and use the Hosted Services for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and the terms and conditions of this Agreement and subject to the usage limitations set forth in the applicable Order (the “Usage Limitations”). WELL DONE and its licensors reserve all rights in and to the Platform and the Hosted Services not expressly granted to Customer under this Agreement.

‍3.2 Restrictions on Use. Customer shall not (a) reproduce, display, download, modify, create derivative works of or distribute the Hosted Services, or attempt to reverse engineer, decompile, disassemble or access the source code for the Hosted Services or any component thereof; (b) use the Hosted Services, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Customer or Customer Affiliates; (c) permit any party, other than the then-currently authorized Users to independently access the Hosted Services; (d) use the Hosted Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; (e) exceed the Usage Limitations; (f) use the Hosted Services at any location for which Customer has not paid the applicable Fees (as defined below); or (g) use the Hosted Services to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

‍3.3 Users. Customer will be liable for the acts and omissions of all Customer Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement. Customer shall not, and shall not permit any User to, use the Platform, Hosted Services or Documentation except as expressly permitted under this Agreement. Customer is responsible for Users’ compliance with this Agreement.

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4. FEES AND PAYMENT TERMS.

4.1 Price. Customer shall pay WELL DONE the fees set forth in the applicable Order (“Fees”) in accordance with the terms of this Agreement. Fees are exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any Fees or any amounts owed to WELL DONE under this Agreement (excluding any taxes arising from WELL DONE’s income or any employment taxes).

4.2 Payment. Customer shall pay to WELL DONE all Fees within 30 days after Customer’s receipt of the applicable invoice for such Hosted Services. If Customer disagrees with any Fees set forth in an invoice, Customer must notify WELL DONE of the dispute within 30 days after receipt of such invoice. If WELL DONE does not receive notice of a dispute during such 30 day period, Customer will be deemed to have accepted the Fees set forth in the invoice. All payments received by WELL DONE are non-refundable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars.

4.3 Taxes on Rewards.  Customer is solely responsible and liable for reporting, collecting, and remitting any taxes, including, without limitation, any payroll taxes, assessed on the value of or provision of Benefits to Users (“Payroll Taxes”).

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5. TERM AND TERMINATION.

5.1 Term. This Agreement commences on the Effective Date and, unless terminated earlier in accordance with this Agreement, continues until all Orders have terminated (“Term”).

5.2 Order Term. The initial term of an Order begins on the date set forth in the Order and continues for the period set forth in the Order (the “Subscription Term”). If no Subscription Term is set forth in an Order, then the Subscription Term will be deemed to be one-year. Each Order will automatically renew for additional periods equal in length to the Subscription Term (each, a “Renewal Term”), unless a party gives the other party written notice of its intent to not renew at least 30 days prior to the end of the Subscription Term or the then-current Renewal Term.

5.3 Termination for Cause. A party may terminate this Agreement or an Order upon notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach.

5.4 Effects of Termination. Upon termination of this Agreement and all Orders: (a) all amounts owed to WELL DONE under this Agreement before such termination will be due and payable in accordance with Section 4; (b) Customer’s rights granted in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access and use of the Platform and return or erase, all copies of the Documentation in Customer’s possession or control; and (d) WELL DONE shall promptly return or erase all Customer Data, except that WELL DONE may retain Customer Data in WELL DONE’s archived backup files. Sections 4, 5.4, 6, 7.3, 8. 9, 10, and 11 survive expiration or termination of this Agreement.

5.5 Suspension. Notwithstanding anything to the contrary in this Agreement, WELL DONE may suspend Customer’s access to the Platform if WELL DONE determines that: (a) there is an attack on the Platform; (b) Customer’s or any of its Users’ use of the Platform poses a reasonable risk of harm or liability to WELL DONE and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer has breached Sections 3.2 or 10; (d) Customer’s or its Users’ use of the Platform violates applicable law; or (e) Customer has failed to pay any undisputed amounts owed under this Agreement when due and has failed to cure such late payment within 15 days after WELL DONE has provided Customer with written notice of such late payment. WELL DONE shall use commercially reasonable efforts to provide Customer with notice of such suspension. WELL DONE may suspend Customer’s access to the Platform until the situation giving rise to the suspension has been remedied to WELL DONE’s reasonable satisfaction. WELL DONE’s suspension of Customer’s access to the Platform will not relieve Customer of its payment obligations under this Agreement

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6. PROPRIETARY RIGHTS.

6.1 Customer Data. As between the parties, Customer owns all right, title, and interest in Customer Data, including all intellectual property rights therein.

‍6.2 Customer Data License Grant. Customer hereby grants to WELL DONE and its authorized representatives and contractors, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 11.3) license to use the Customer Data solely for the limited purpose of performing the Hosted Services for Customer and fulfilling its other obligations and exercising its rights under this Agreement.

‍6.3 The Hosted Services. All proprietary technology utilized by WELL DONE to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of WELL DONE. WELL DONE or its third party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Content and the Platform, including without limitation the Hosted Services, Documentation, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by WELL DONE in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by WELL DONE.

‍6.4 Aggregated Data. Notwithstanding anything in this Agreement to the contrary, WELL DONE may analyze Customer Data to create a de-identified and aggregated data set that does not identify Customer or its Users (collectively, “Aggregated Data”). WELL DONE retains ownership of all right, title, and interest in and to Aggregated Data. WELL DONE may use Aggregated Data for any lawful purpose, including, but not limited to, to improve, market, and provide the Hosted Services.

‍6.5 Usage Data. WELL DONE retains ownership of all right, title, and interest in and to the Usage Data. WELL DONE may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve WELL DONE’s services, systems, and algorithms.

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7. WARRANTY; DISCLAIMERS.

7.1 Hosted Services. WELL DONE warrants that the Hosted Services will perform materially in accordance with the Documentation and this Agreement. WELL DONE does not warrant that the Hosted Services will be completely error-free or uninterrupted. If Customer notifies WELL DONE of a reproducible error in the Hosted Services that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, WELL DONE shall, at its own expense and as its sole obligation and Customer’s exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if WELL DONE is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to WELL DONE and, WELL DONE shall refund the amounts paid by Customer for access to the Hosted Services for the period during which the Hosted Services was not usable by Customer. The warranties set forth in this Section 7.1 do not apply to any Third Party Offerings or cover any Error caused by: (i) Customer or its Users; (ii) use of the Hosted Services in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Hosted Services, or (iv) any equipment, software, or other material utilized by Customer in connection with the Hosted Services contrary to the provider’s instructions.

7.2 Right to Customer Data. Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by this Agreement; (b) provide WELL DONE with the Customer Data; and (c) grant WELL DONE the license in Section 6.2.

7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. AIRPLX MAKES NO WARRANTY THAT CUSTOMER’S USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER’S IMPLEMENTATION OF ANY PARKING PLAN PRODUCED THROUGH THE PLATFORM IS AT CUSTOMER’S SOLE RISK.

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8. INDEMNIFICATION.

8.1 Claims Against Customer. WELL DONE shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Hosted Services infringes any intellectual property rights of such third party (a “Customer Claim”), and WELL DONE shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying WELL DONE in writing of such Customer Claim; (b) giving WELL DONE sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at WELL DONE’s request and expense, assisting in such defense. In the event that the use of the is enjoined, WELL DONE shall, at its option and at its own expense either: (i) procure for Customer the right to continue using the Hosted Services; (ii) replace the Hosted Services with a non-infringing but functionally equivalent product; (iii) modify the Hosted Services so it becomes non-infringing; or (iv) terminate this Agreement and refund the amounts Customer paid for access to the Hosted Services that relate to the period during which Customer was not able to use the Hosted Services. Notwithstanding the foregoing, WELL DONE will have no obligation under this Section 8.1 with respect to any infringement claim based upon: (1) any use of the Hosted Services not in accordance with this Agreement; (2) any use of the Hosted Services in combination with products, equipment, software, or data that WELL DONE did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software or data; (3) any modification of the Hosted Services by any person other than WELL DONE or its authorized agents or subcontractors; or (4) any Third-Party Offering. This Section 8.1 states WELL DONE’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.

‍8.2 Claims Against WELL DONE. Customer shall defend, any claim, suit, or action against WELL DONE brought by a third party to the extent that such claim, suit, or action is based upon any one or more of the following: (i) Payroll Taxes, (ii) Customer’s violation of any applicable law, rule or regulation, or (iii) WELL DONE’s use of any Customer Data in accordance with this Agreement (each, an “WELL DONE Claim”) and Customer shall indemnify and hold WELL DONE harmless, from and against Losses that are specifically attributable to any WELL DONE Claim or those costs and damages agreed to in a settlement of any such WELL DONE Claim. The foregoing obligations are conditioned on WELL DONE: (a) promptly notifying Customer in writing of such WELL DONE Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 or otherwise with respect to any WELL DONE Claim to the extent based upon WELL DONE’s use of the Customer Data in violation of this Agreement.

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9. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO WELL DONE UNDER THIS AGREEMENT DURING THE SUBSCRIPTION TERM OR RENEWAL TERM, AS THE CASE MAY BE, DURING WHICH THE EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED. THE EXCLUSIONS AND LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 9 DO NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 8, OR TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTION 3.2.

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10. CONFIDENTIALITY.

10.1 Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. WELL DONE’s Confidential Information includes Hosted Services and Documentation. Customer’s Confidential Information includes Customer Data.

10.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 10. Recipient will be liable to the Discloser for any of its independent contractor’s acts or omissions, which, if performed by Recipient, would constitute a breach of this Section 10. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

10.3 Exceptions. Recipient shall have no confidentiality obligations under Section 10.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.

11. GENERAL

11.1 Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.

11.2 Subcontractors. WELL DONE may utilize subcontractors, subprocessors, and other third-party service providers (collectively, “Subcontractors”) in the performance of its obligations, provided that WELL DONE will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by WELL DONE, would constitute a breach of, or otherwise give rise to liability to WELL DONE under, this Agreement when they are performing for or on behalf of WELL DONE.

11.3 Assignment. Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that a party may assign this Agreement without consent from the other party to (a) an Affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect.

11.4 Force Majeure. Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control.

11.5 Notices.

‍If to WELL DONE. To be effective, notices to WELL DONE under this Agreement must be delivered in writing by courier, or certified or registered mail (postage prepaid and return receipt requested) at the address set forth below and will be effective upon receipt, except that e-mail may be used for routine communications (such as notice of non-renewal) and to obtain operational approvals and consents but may not be used for any other notices.
WELL DONE Inc.
Attention: Legal
13410 Braun Road
Golden, CO 80401

If to Customer: To be effective, notices to Customer under this Agreement must be delivered in writing by electronic mail at the email address that WELL DONE has on file for Customer and will be effective upon receipt. Customer may update its address on file by notifying WELL DONE of such address change in accordance with this Section 11.5.

11.6 Governing Law; Venue. The laws of the State of Colorado govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Denver, Colorado in any litigation arising out of this Agreement or the Hosted Services.

11.7 Remedies. Each party acknowledges that any actual or threatened breach of Sections 3.2 or 10 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.

11.8 Compliance with Laws. Each party shall comply with all laws, rules, and regulations, applicable to that party in connection with this Agreement.

11.9 Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.10 Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).

11.11 Modification. WELL DONE may modify this Agreement at any time, upon written notice to Customer. Any such modification will become effective with respect to the applicable Order upon the commencement of the Renewal Term for such Order following the date of such notice. If Customer does not agree to the modified Agreement, Customer may choose to not renew the then-current Subscription Term or Renewal Term (as applicable). Except as otherwise set forth in this Section, this Agreement may not otherwise be modified except by a written amendment signed by an authorized representative of each party.

11.12 Entire Agreement. This Agreement, including any Orders and any exhibits or attachments thereto, constitutes the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party will be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of the Agreement will govern unless the Order specifically overrides this Agreement.

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