The MAINSAIL™ platform/service is operated by Project Mainsail, LLC, a Florida limited liability company (“Company”). This Terms of Service (the “Agreement”) states the terms and conditions under which you may use, access or browse the MAINSAIL platform and related applications, software, tools and databases (together as “MAINSAIL”). By using MAINSAIL, the entity/organization designated in the registration Order Form (“Client” or “you” or “your”) agrees to be bound by this Agreement. The Data Protection Agreement (the “DPA”) available at [link] is incorporated into this Agreement. The DPA governs the Processing of Personal Data in connection with the Services. In the event of a conflict between the DPA and this Agreement, the DPA controls for data protection matters. If you object to anything in this Agreement, the Privacy Notice, DPA or any other policy or agreement referred to in this Agreement, you should discontinue use of MAINSAIL immediately.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 19. BY ACCEPTING, YOU AGREE TO RESOLVE DISPUTES BY INDIVIDUAL ARBITRATION.
ACCEPTANCE OF TERMS OF SERVICE AGREEMENT
a. Acceptance. This Agreement sets out the legally binding terms of Client’s use of the MAINSAIL platform and/or Company’s related services. This Agreement may include other Company policies referenced herein and any notices regarding MAINSAIL. By accessing MAINSAIL and/or clicking the “Accept & Continue” button, you accept this Agreement and agree to the terms, conditions and notices contained or referenced herein.
b. Modification. This Agreement and any other policies referenced by this Agreement may be modified by Company at its sole discretion from time to time. Such modifications shall be effective upon posting on Company’s website, and your use of MAINSAIL after such posting will constitute acceptance by you of such changes. Please consult this Agreement and the referenced policies regularly. This Agreement was last updated on [DATE].
c. Access and Retention. This Agreement shall be accessible in the MAINSAIL platform. A link to this Agreement can also be found on the Company homepage (currently located at ____________). Please print a copy of this document for your records. To retain an electronic copy of this Agreement, you may save it into any word processing program.
d. Requirements for Use/Parental Consent. You must be at least 18 years of age, or have parental consent, to register, access, and/or create a profile with MAINSAIL or use MAINSAIL services. By agreeing to this Agreement, you represent and warrant that: (a) you have the right, authority and capacity to enter into this Agreement on behalf of the entity/organization designated in the registration Order Form; (b) all registration information submitted is truthful and accurate; and (c) Client’s use of MAINSAIL services does not violate any applicable law or regulation.
1. Subscription/License. Subject to the terms and conditions of this Agreement, Company hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license to access and use MAINSAIL during the subscription term (the “Term”). The applicable subscription plans, associated Charges and initial subscription term will be selected by the Client during the Client’s registration with MAINSAIL or through an Order Form. Subscription plans and their associated Charges are available upon request. By agreeing to grant such license, Company does not obligate itself to provide or maintain MAINSAIL in its present form. Company may upgrade, modify, change or enhance MAINSAIL in its sole discretion. Company may also change which third party service provider it uses in connection with MAINSAIL and its services, at Company’s sole discretion.
2. Third Party Access, Services and Integrations to MAINSAIL.
(A) Third Party Use. During the Term, Client may market to, and allow, its own customers (“Customers”) the ability to access and use certain designated portions of the MAINSAIL platform.
(B) Client Solely Responsible For Customer Use and Access. Any transaction between Client and its Customers shall be strictly between Client and the Customer. Client may create for the Customer a terms of use or agreement to reflect the foregoing. Client agrees to be responsible for all the acts and omissions of the Customers who are granted access under this section as if they were Client’s own acts or omissions, and Client agrees to indemnify Company against any damages it incurs resulting from such access.
(C) Client Interface Customization. Company may customize the Client’s interface with Client’s identifying graphics and/or text information. Client shall not upload any obscene or pornographic content to the Client interface. The resulting Client interface will present identity and contact information exclusive to Client.
(D) Site Identity. In order to separate out identities of involved parties, no Company promotional and identifying material such as homepage text, brand identity, trade name, trademark, and graphics, may be copied without prior specific written approval. However, Company may place a notice on the Client interface that it is a Company powered site.
(E) Services and Integrations. Client acknowledges that integrations are provided at Client’s election. Company is not responsible for acts or omissions of third-party providers, including their security, availability, or Processing of data. The parties may act as independent controllers for data exchanged with such providers as described in the DPA.
3. License Restrictions. MAINSAIL is intended solely for the internal business use of the Client. Company reserves all rights not expressly granted to Client. Client will not copy, export, transmit electronically, download electronically or in hard copy, post to a database or to the Internet, or otherwise reproduce in any fashion any portion of MAINSAIL, or its underlying content, software, tools, reports or databases or any substantial portion thereof, except as expressly authorized in this Agreement. Except as expressly authorized in this Agreement, Client shall not: (a) use, copy, reproduce, export, merge or transfer copies of MAINSAIL; (b) rent, lease, sublicense, distribute, transfer, copy, modify or timeshare MAINSAIL or any of Client’s rights under this Agreement; or (c) use MAINSAIL or any part of it after any expiration, termination, or cancellation of this Agreement or the license granted by this Agreement. You agree to prevent any unauthorized copying of MAINSAIL and its content, as applicable. You also agree not to transfer any access privileges to MAINSAIL or its materials/content to any third parties. As a condition of your use of MAINSAIL, you warrant to Company that you will not use MAINSAIL, as applicable, for any purpose that is unlawful or prohibited by this Agreement. You may not use MAINSAIL in any manner which could damage, disable, overburden, or impair MAINSAIL or interfere with any other party’s use and enjoyment of MAINSAIL, as applicable.
4. Password/Account Settings. When you create a profile/account and register with Company, you will also be asked to choose a password for purposes of accessing MAINSAIL and its respective services. Client agrees that the username and password are to be used only by Client or its designated employees. The use of the assigned username and password by other individuals is a violation of this Agreement. Client is responsible for maintaining the confidentiality of the username and password that you designate during the registration process, and you are fully responsible for all activities that occur under your username and password. You shall prevent unauthorized use of the Website using your password. You agree to (a) immediately notify Company of any unauthorized use of your username or password or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Company will not be liable for any loss or damage arising from your failure to comply with this provision. Client should not access its account from a public or shared computer so that others are not able to view or record a password or other confidential or personal information. All re-assignments of a password shall be void.
5. Charges/Payment Methods. Company charges fees for its subscriptions and services which shall be set forth in the registration Order Form (“Charges”). Client agrees to pay the corresponding Charges for the subscription and services ordered. Company reserves the right to change the Charges upon thirty (30) days notice. Unless otherwise expressly stated, all Charges are stated in United States dollars.
Company utilizes third party companies, such as Stripe, to handle credit card and payment transactions. Client is not responsible for such transactions. Therefore the burden of PCI-DSS Compliance rests solely on such third party companies. For clarity, Company does not store full payment card numbers. A processing fee will be assessed for any ACH rejection, and reasonable administrative fees may be assessed for chargebacks, returned payments, reactivations, or account reinstatement following payment failures. In the event of unsuccessful billing, Client may be notified and the account may be suspended until valid billing information is provided and all outstanding balances and applicable fees are paid.
Client must notify Company in writing of any good-faith fee dispute within thirty (30) days after the invoice due date, identifying the disputed amounts and the basis for the dispute in reasonable detail. Undisputed amounts remain due and payable. Client waives the right to dispute any charges not timely raised in accordance with this Section.
6. No Advice/Acceptance of Risks/Third Party Interactions. Client acknowledges its interactions with its customers through MAINSAIL are solely between Client and such customers. Company does not conduct any background checks on any users of MAINSAIL or verify the information contained on user profiles. Reliance on any opinion, information or materials is done at your own risk. The information provided on MAINSAIL is for reference use only, and does not constitute the rendering of sports, legal, medical, financial, or other professional advice or recommendations by Company. Company is not making recommendations with respect to individuals, products or services offered or with respect to any information you disclose or communications that you make on MAINSAIL. You also expressly acknowledge that you are subject to a variety of risks related to third party transactions and information that you post or share, which risks are beyond the control of Company, and you expressly acknowledge that Company is not liable or responsible for those risks, for which you have sole responsibility. You agree to take all necessary precautions in all interactions with third parties or any other users of MAINSAIL, particularly if you decide to communicate on or off MAINSAIL or meet in person, or if you decide to purchase products/services or send money to such individual/entity.
7. Intellectual Property Ownership. Company owns and retains all right, title and interest in and to the following (collectively, “Company Property”): (i) the MAINSAIL platform and other applications, tools, software, database(s), technology, content, documentation, and information provided by Company in connection with MAINSAIL (excluding the third party databases and Client Data as defined below); (ii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Company during its performance under this Agreement; (iii) the mark “MAINSAIL” and other Website graphics, logos, page headers, button icons, scripts, and service names; and (iv) all worldwide patent, copyright, trade secret, trademark and other intellectual property rights in and to the property described in clauses (i), (ii) and (iii) above (collectively, “Company Property”). Except as otherwise expressly authorized herein or by Company in writing, the non-exclusive use rights set forth in this Agreement is the entirety of Client’s rights in connection with the Company Property. This Agreement is not a sale of Company Property or any portion, copy or derivative work thereof. Accordingly, all rights in the Company Property are hereby expressly reserved. Company shall be entitled to use, license, sell, assign, transfer, and/or otherwise provide rights relating to the Company Property to any third party for any purpose free from any claim of Client. MAINSAIL is protected by U.S. copyright laws and international treaty, and the unauthorized reproduction or distribution thereof is subject to civil and criminal penalties. Except as otherwise expressly authorized herein or by Company in writing, Client shall not directly or indirectly (and shall not permit any unauthorized party to) do any of the following: (i) access, use, sell, distribute, sublicense, sublease, broadcast, or commercially exploit any Company Property or any rights under this Agreement, including without limitation any access or use of any Company Property on a service bureau basis or for any Client processing services beyond the scope specified in this Agreement (such as any unauthorized parties on a rental or sharing basis); (ii) copy, modify, or prepare derivative works based on Company Property; (iii) reverse engineer, decompile, disassemble, or attempt to derive source code from any Company Property; (iv) remove, obscure, or alter any intellectual property right or confidentiality notices, copyright notices or legends appearing in or on any aspect of any Company Property; (v) bypass or breach any security device or protection used for or contained in any Company IP; (vi) use any Company Property in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any party or that violates any applicable laws; or (vii) use any Company Property for purposes of competitive analysis of the Company Property; developing, using or providing a competing application or service; or any other purpose that is to Company’s detriment or commercial disadvantage.
Client grants Company a perpetual, irrevocable, worldwide, royalty-free license to use and incorporate into its products and services any suggestions, enhancement requests, recommendations, or other feedback provided by Client or Permitted Users, without restriction or obligation.
8. Client Data. As between Company and Client, Client shall own all rights, title and interests in and to the Client Data. “Client Data” means data provided by/for Client or collected by the Services at Client’s direction, including Personal Data; expressly excludes Usage Data, Company Property, and Company-created de-identified/aggregated data. Notwithstanding the foregoing, Company exclusively owns (i) Usage Data; and (ii) any and all de-identified, anonymized, or aggregated data derived from Client Data or the use of the Services, provided such data cannot reasonably be used to identify Client or an individual. “Usage Data” means all information reflecting the access or use of the Service by or on behalf of Client or any Customer, including any end user profile-, visit-, session-, impression-, click through-, or click stream-data, and any statistical or other analysis, information, or data based on or derived from any of the foregoing/technical information and metrics about Client’s and its Customers’ access to or use of the Service. For the avoidance of doubt, Usage Data is and shall remain the exclusive property of Company, and Company may use, process, and disclose Usage Data for any business or commercial purpose, provided that such Usage Data is anonymized and aggregated so that neither Client nor any individual is identified or identifiable.
Client grants Company a royalty-free, non-exclusive, worldwide license to Process Client Data solely to provide, maintain, secure, support, and improve MAINSAIL and the Services, including creation of de-identified or aggregated data, which Company may use for any lawful purpose, provided it does not identify Client or any individual; to comply with law; and to prevent or address service, security, support, or technical issues. For CCPA-covered data, Company acts as a Service Provider and will not Sell or Share Personal Data, as detailed in the DPA. Client shall retain sole responsibility for the accuracy, quality, security, integrity, reliability, and appropriateness of all Client Data. Client further represents and warrants that it has obtained all necessary consents and authorizations required by applicable law to provide such Client Data to Company for the purposes contemplated by this Agreement. Client will not use the Services to collect or Process Personal Data in violation of applicable laws. Client will not upload special categories of data, precise geolocation, biometric templates, health records, or children’s data under age 13, unless expressly permitted by the Agreement and the DPA.
9. Termination/Cancellation. Your subscription granted pursuant to Section 1 of this Agreement shall automatically terminate (i) upon expiration of the applicable Term, or (ii) in the event Client breaches any provision of this Agreement. Client may terminate or cancel the license granted by discontinuing use of MAINSAIL, as applicable, and providing written notice to Company. All Charges are non-refundable and non-cancellable, even if termination occurs prior to the expiration of the Term. If Company receives an authorized cancellation notice from you, you will be obligated to pay any outstanding dues owed to Company at such time. You agree that Company may, in its sole discretion, terminate or suspend your access to all or part of MAINSAIL with or without notice and for any suspected breach of this Agreement or any suspected fraudulent, abusive or illegal activity. Upon the expiration or termination of this Agreement for any reason, Client shall immediately cease all use of MAINSAIL, and Company may immediately deactivate or delete Client’s account and all related information and files and/or bar any further access to such files and MAINSAIL. Company will not be liable to Client or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by Company in connection with such termination or suspension.
If timely payment is not received for any reason following thirty (30) days from the then-current billing cycle, Company reserves the right to either suspend or terminate your access to Company’s services, including but not limited to MAINSAIL, and to terminate this Agreement. You agree that Company may charge all such unpaid balances to your credit card or other automated billing account, or otherwise bill you for such unpaid balance. Delinquent payments are subject to a late-payment charge of the greater of 1.5% of the outstanding balance, or the maximum amount allowed by law, whichever is higher. Company may also charge a $25 NSF fee for returned checks.
10. Service Availability. Company will use commercially reasonable efforts to enable MAINSAIL to be accessible, except for scheduled maintenance and required repairs, and except for any interruption due to causes beyond the reasonable control of, or not reasonably foreseeable by Company, including, but not limited to, any Force Majeure Event (as defined below). The foregoing undertaking shall not apply to the extent of any non-conformance caused by use of MAINSAIL contrary to Company’s instructions, or modification or alteration of MAINSAIL by any party other than Company. If MAINSAIL, as applicable, is in non-conformance with the foregoing undertaking, Company will, at its expense, use reasonable commercial endeavors to correct such non-conformance promptly, or provide Client with an alternative means of accomplishing the desired performance.
11. Limited Warranty. Company and Client each represent and warrant as follows: (i) it has the full power, capacity and authority to enter into and perform this Agreement and to make the grant of rights contained herein, including without limitation, the right to license any ancillary or third party programs licensed to Client under this Agreement; and (ii) there is no pending or threatened litigation that would have a material adverse impact on its performance under this Agreement.
Company represents and warrants that MAINSAIL does not contain any known virus or similar code that may destroy, modify, alter, or cause the destruction, modification or alteration, in whole or in part, of any of Client’s equipment, devices, software, or data. As Client’s sole and exclusive remedy for breach of the foregoing warranty, Company shall either correct the nonconformity or refund the applicable Charges. The warranty provided in this Section is solely for Client’s benefit and Client shall have no authority to extend the warranty to any third party. Company shall not be liable for failures caused by third party hardware, Client Data, misuse of MAINSAIL, or Client’s gross negligence or willful misconduct.
12. WARRANTY DISCLAIMER. CLIENT ACCEPTS RESPONSIBILITY TO VERIFY THAT THE MAINSAIL PLATFORM AND SERVICES WILL MEET CLIENT’S SPECIFIC REQUIREMENTS AND PERFORM AS WARRANTED. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY DISCLAIMS ALL WARRANTIES, GUARANTIES, CONDITIONS OR REPRESENTATIONS OF ANY KIND (INCLUDING BUT NOT LIMITED TO EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION, SECURITY, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ALLEGED TO ARISE BY A CUSTOM OR USAGE IN A TRADE, OR BY COURSE OF DEALING. COMPANY DOES NOT WARRANT THAT THE PLATFORM WILL OPERATE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE. COMPANY HAS NO WARRANTY OBLIGATION FOR THIRD PARTY SOFTWARE EVEN IF COMPANY ASSISTED IN EVALUATING OR SELECTING IT. MAINSAIL, THE SERVICES AND USER DOCUMENTATION ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. CLIENT EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF MAINSAIL AND THE SERVICES IS AT CLIENT’S SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR COMPANY’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES CONTAINED IN THIS SECTION. COMPANY ACCEPTS NO RESPONSIBILITY FOR THE INTEGRITY OR SECURITY OF DATA RESIDING IN THE HOSTED ENVIRONMENT. COMPANY DOES NOT GUARANTEE THAT MAINSAIL WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE. COMPANY MAKES NO WARRANTY AS TO THE ADEQUACY OR CAPACITY OF ANY HARDWARE OR THIRD PARTY SOFTWARE TO ATTAIN SOME OR ALL OF THE PERFORMANCE OBJECTIVES OF CLIENT. MANY FACTORS, INCLUDING BUT NOT LIMITED TO THE TYPE OF NETWORK, THE AMOUNT OF TOTAL NETWORK TRAFFIC, AND THE TYPE AND PATTERN OF USAGE OF MAINSAIL ON THE NETWORK, WILL IMPACT THE PERFORMANCE OF MAINSAIL.
13. LIMITATIONS OF LIABILITY/MAXIMUM LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, REVENUE, BUSINESS INFORMATION OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOSS OR CORRUPTION OF DATA, COST OF COVER, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LIABLE FOR DIRECT DAMAGES CAUSED BY LATE DELIVERY, OR ANY OTHER CAUSE EXCEPT AS EXPRESSLY PROVIDED HEREIN. COMPANY SETS ITS CHARGES AND STANDARD RATES FOR SERVICES BASED ON THE ALLOCATION OF RISKS SET OUT IN THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. NOTWITHSTANDING THE FOREGOING, COMPANY SHALL NOT BE LIABLE FOR DEFECTS IN OR FAILURES OF THIRD PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, EQUIPMENT, HARDWARE AND/OR SOFTWARE, OR FOR DEFAULTS BY, OR DEFECTS IN SERVICES RENDERED BY, THIRD PARTIES. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
COMPANY’S TOTAL LIABILITY TO CLIENT WITH RESPECT TO MAINSAIL, THE SERVICES, PRODUCTS, OR ANY DAMAGES, LIABILITIES, LOSSES, OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID OR PAYABLE BY CLIENT TO COMPANY UNDER THE APPLICABLE SOW DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY, EVEN IF ANY TERM OF THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
14. Indemnity. You agree to indemnify and hold Company, its officers, directors, shareholders, partners, owners, managers, affiliates, subsidiaries, sponsors, advertisers, licensors, employees, agents, representatives and independent contractors, harmless from any loss, liability, damages, claim, actions, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of MAINSAIL in violation of this Agreement and/or arising from any use of MAINSAIL. Client will indemnify Company against third-party claims arising from Client Data (including, but not limited, to security incidents or data breaches), Client’s use of the Services in violation of law or this Agreement, and any disputes with Customers.
15. Support, Training, and Customizations. Company shall have no support, training or customization obligations hereunder.
16. Security. Protecting your personal information and business data is important to Company. Company will implement and maintain appropriate technical and organizational measures to protect Client Data as described in the DPA. Client acknowledges that no system is 100% secure and while Company uses security technology to secure your personal information, Company cannot guarantee that any electronic commerce is completely secure. Please also see Section 4 regarding security of your username and password. Security incidents will be handled in accordance with the DPA.
17. Use with Mobile Devices. Use of MAINSAIL may be available through a compatible mobile device using Internet access and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees for SMS messages, data plans, and general usage, as well as the terms of your agreement with your mobile device and telecommunications provider. Company MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO MAINSAIL OR THE COMPANY SYSTEM AT ANY TIME OR FROM ANY LOCATION; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH MAINSAIL.
18. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the substantive laws of Florida without giving effect to any choice or conflict of law provision or rule (whether of Florida or any other jurisdiction) that would cause the application of the substantive laws of any jurisdiction other than those of Florida.
19. Dispute Resolution. All controversies or claims arising out of or relating to this Agreement shall be resolved in accordance with the provisions of this Section. First, the disputing party shall give the other party written notice (the “Notice”) of the controversy or claim in accordance with the notice provision of this Agreement. The parties will attempt in good faith to resolve each controversy or claim within thirty (30) days from the delivery of the Notice by negotiations between senior executives of the parties who have settlement authority and who do not have direct responsibility for the administration of this Agreement. If the controversy or claim has not been resolved within thirty (30) days of delivery of the disputing party’s Notice, then the exclusive procedure for resolving the dispute shall be arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules before one arbitrator in Sarasota, Florida. The arbitration shall be confidential and is governed by the Federal Arbitration Act, 9 U.S.C., sec. 1, et seq., and in no event shall any Florida law concerning arbitration apply. The arbitrator shall be selected from the AAA’s large, complex case panel. Absent good cause or the parties’ agreement, the award shall be rendered within six months of the arbitrator’s selection. The arbitrator shall award reasonable attorneys’ fees and costs to the prevailing party. Judgment on the award rendered by the arbitrator may be entered only in the state or federal courts in Sarasota, Florida, which shall be the exclusive venue for any court action between the parties. Each party consents to personal jurisdiction and venue in those courts. Except as may be required by law, neither party nor the arbitrator may disclose the existence, contents, or results of anything related to the arbitration, including, but not limited to, pleadings, motions, briefs, discovery, depositions, hearings, or awards without all the parties’ prior written consent. Any dispute arising out of or in connection with this arbitration provision, including any question regarding its existence, validity, scope, or termination, shall be referred to and finally resolved by arbitration. If the resolution of any controversy or claim arising out of or related to this Agreement would be barred by the applicable statute of limitations if such resolution were to occur in court, then the resolution of such controversy or claim shall be barred from being resolved pursuant to arbitration. The only exceptions to the exclusive procedure of arbitration are that (i) either party may bring in the state or federal courts in Sarasota, Florida an action for injunctive relief pending arbitration; and (ii) neither party may submit to arbitration any dispute related to the validity, scope, enforceability, inventorship, or ownership of any patent, trademark, service mark, or copyright, and, instead, either Party may initiate such litigation in the state or federal courts of Sarasota, Florida or appropriate administrative agency.
20. Force Majeure. Company shall not be liable for failing to perform its obligations hereunder because of circumstances reasonably beyond its control. Such circumstances shall include (without limitation) any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, labor disputes, power failure, delays in transportation or deliveries of supplies or materials, acts of God, computer failure, hardware failure, telecommunications failure, software failure, cyber-attacks, cyber-hacks, cyber-crimes, or cyber-disruptions, failure of users to cooperate with the reasonable requests of Company, breach of this Agreement by users, and any other events reasonably beyond the control of Company (each a “Force Majeure Event”).
21. Entire Agreement. This Agreement contains the entire agreement between you and Company regarding the use of MAINSAIL. Any other policy statements as referenced herein (as modified by Company from time to time) is incorporated herein by reference and made a part of this Agreement.
22. Assignment. You may not assign your rights and obligations under this Agreement to any third party, and any purported attempt to do so will be null and void. Company may freely assign its rights and obligations under this Agreement.
23. Severability. If any part of this Agreement is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect.
24. Waiver. Any failure by Company to enforce or exercise any provision of this Agreement or related rights will not constitute a waiver of that right or provision.
25. Captions. The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
26. Privacy Notices. Please refer to our Privacy Notice and the Data Protection Agreement available at [link] and [link], which are incorporated by reference into this Agreement. In case of conflict, the DPA controls for Processing of Personal Data.
28. Notice. Company may give notice by means of a general notice through Company’s services, electronic mail to your email address on record in Company’s account information, or by written communication sent by first class mail to your address on record in Company’s account information. You may give notice to Company (such notice shall be deemed given when received by Company) at any time by any of the following: electronic mail to ____________________________; or by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Company at the following address: _______________________________________________________________________________________.
Please contact us with any questions regarding this Agreement.