Data Services Agreement

Data Services Agreement

This Data Services Agreement (this “Agreement”) is entered into by and between Niche Business Management Systems, LLC (dba Instapull), a Pennsylvania Company and __________________________ (the User and Company), the entity identified as the individual and company seeking to obtain data services from Instapull (“Company”). This Agreement is effective as of the day you check a box indicating your agreement with the terms of this Agreement (the “Effective Date”).

  1. DEFINITIONS

 

“Account Holder Authorization” means the form—available on the Instapull website, via an email sent to a Utility Account Customer on behalf of Company, or available elsewhere pursuant to Instapull’s sole discretion—that obtains Consent.

 

 “Affiliate” means entities that control, are controlled by, or are under common control with the subject entity. 

 

“Applicable Utility” means a Utility Account Customer’s (a) then-current provider of utility services or (b) then-current provider of utility service’s designated agent or vendor that manages the then-current provider of utility services data access program.

“Authorized Consent” means a written or digital record of the permissioning and credentialing by a Utility Account Customer to grant the Company access to their Utility Account Data. 

 

“Authorization Data” means data provided by a Utility Account Customer and Instapull in connection with the request and provision of Consent.

 

“Authorized Third Party” means any agents or representatives whom Utility Account Customer chooses to share their Utility Account Data through a supplied credential.   

 

“Company” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Form.

 

“Company User” means any person or business entity who is authorized by Customer to use a Service, for whom Customer has purchased Services.  

 

“Intellectual Property Rights” means all inventions, trade secrets, know-how, developments, improvements, results, data, designs, computer programs/software and other information in any form, patentable or unpatentable, patented or unpatented, copyrighted or uncopyrighted, copyrightable or not, which are conceived, created, written, developed, reduced to practice, acquired, owned or controlled by Instapull pursuant to this Agreement. 

 

“Order” means a document specifying the Services to be provided hereunder that is entered into between Customer and Instapull or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. An Order may be an SOW.

 

“Services” means the products and services that are ordered by Customer under an Order Form.

 

“Statement of Work” shall mean a statement of work specifying Professional Services to be provided by InstaPull.

 

“Utility Account Data” means Utility Account Customer’s meter data and other data obtained and/or accessed by Instapull from various Utility Providers and delivered to Client in a specified format and frequency. 

 

“Utility Account Customer” means the customer of record as identified by a provider or an agent who is authorized to act on behalf of the customer of record (same and Utility Account Customer).

 

  1. SERVICE DELIVERY

 

2.1. Service Delivery. During the Term, InstaPull will provide the Services pursuant to this Agreement and Orders which are incorporated into this Agreement by reference and subject to reasonable maintenance and any unavailability caused by circumstance beyond our reasonable control, including acts taken by third parties, including denial of service attack. Subject to the terms and conditions contained in this Agreement, InstaPull hereby agrees that during the applicable Term of the Agreement, Company may (i) use the Services internally (internal use includes use as part of the back end of an application owned and operated by the Client (the “Client Application”) made available to end users (“Company Users”)), and (ii) use the Customer, Utility Account Data, and other data provided via the Services solely in such Company Application for such use case.

2.2. Future Functionality.  InstaPull may in its discretion modify, enhance or otherwise change the Services from time to time during the Term of this Agreement, provided that it does not materially diminish the functionality thereof.

2.3. Support. Instapull will provide Company with online training materials and commercially reasonable access to remote training during its normal business hours during the Term. Instapull will provide base support levels unless otherwise outlined in the Order. Instapull’s base level of support, referred herein as “Base Level Support Services” are included in this Agreement as Appendix A. Company may contact Instapull for support at support@instapull.io.  Instapull reserves the right to change the contact information for support. 

2.4. Protection of Company Data. Instapull will maintain administrative, physical, and technical safeguards to protect Company Data.

 

  1. ACCESS AND USE OF SERVICES

 

3.1. Account Creation. Company shall identify a primary owner for its account. Company may create subaccounts which will allow access to the Services by Company’s Authorized Users. Company is responsible for all activities that occur under Company’s accounts, including all subaccounts. Company and its Company Users are responsible for maintaining the confidentiality of its logins, access tokens, and accounts and for all activities that occur under its accounts.

3.2. Usage Restrictions. Company acknowledges and agrees that Instapull has no obligation to monitor or police the content of communications or data of transmitted through the Services, and that Instapull is not responsible for the content of any such communications or transmissions. Company will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Services are compiled or interpreted; (ii) modify the Platform Services, or create or offer any derivative product from any of the foregoing, except with the prior written consent of InstaPull; or (iii) assign, sublicense, sell, resell, lease, rent or otherwise make available, or pledge as security or otherwise encumber the Platform Services; (iv) sell or rent Utility Endpoint Data to marketers or any other third party; (v) access or use the Platform Services or Output for any unlawful purpose; (vi) use, disclose, or otherwise process any “personal data” other than in compliance with laws applicable to processing of such data; (vii) access or use the Platform Services for competitive evaluation, spying, creating a substitute or similar services to any of the Platform Services; (viii) scan or test (manually or in an automated fashion) the vulnerability of any InstaPull infrastructure without express prior written permission from InstaPull. InstaPull retains the right to perform rate limiting on API requests to ensure that all customers experience the same level of service.

3.3. Company Responsibilities. Company will (i) provide all equipment, operating systems, software, and network connectivity needed to use and access the Services; (ii) be responsible for Authorized Users’ compliance with this Agreement; (iii) be responsible for the legality of Company Data and supply Instapull only with Company Data for which it has all necessary rights and licenses; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Instapull promptly of any such unauthorized access or use; (v) use the Services, and require its Company Users to use the Services, only in accordance with applicable laws and government regulations; (vi) use Authorization Data and Utility Data in accordance with applicable laws, including the federal CAN-SPAM regulations and the Telephone Consumer Protection Act (the “TCPA”); and (vii) obtain Consent in accordance with the terms herein. Without limiting the foregoing, Company understands that the Consent obtained through the Services is not intended to suffice as consent as defined under various laws including, without limitation, the TCPA.

3.4. Consent. Company agrees that Instapull must have Consent before Instapull will access or deliver Utility Data to Company.

3.5. Privacy Policy. Before seeking Consent, Company will provide Utility Users with notice of their privacy practices with respect to how Company will use, share, or otherwise treat Authorization Data and Utility Data. The notice of privacy practices must comply with applicable law, and Company will comply with its notice of privacy practices.

3.6. Regulatory Requirements. Company is solely responsible for its compliance with all applicable laws, regulations, and duties imposed on the collection, use, and treatment of Utility Data. Company understands that Instapull has no obligation to inform Company of such laws, regulations, and duties.

 

  1. FEES, EXPENSES AND PAYMENTS

 

4.1. Fees. In consideration for the Services performed under this Agreement, Client will pay, without offset or deduction, all fees required by each particular Order. Unless otherwise set forth in an Order, Client agrees to pay fees (1) for Platform Services and (2) for Professional Services no later than 30 days after the date of an applicable invoice or upon execution of the applicable Order, as set forth in the Order. All fees shall be non-cancellable and non-refundable.

4.2. Taxes. Client will be responsible for payment of any applicable government imposed sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on InstaPull’s income or employment), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Client will make all required payments to InstaPull free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to InstaPull will be Client’s sole responsibility, and Client will, upon InstaPull’s request, provide InstaPull with official receipts issued by the appropriate taxing authorities, or such other evidence as InstaPull may reasonably request, to establish that such taxes have been paid.

4.3. Late Payments. Late Payments; Interest; Payment in Dollars. Any portion of any

amount payable hereunder that is not paid when due will accrue interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments to be made under this Agreement shall be made in the currency set forth in an applicable Order.

4.4. Invoice Disputes. If Client disputes in good faith any portion of an invoice or any other amount due under this Agreement, Client shall notify InstaPull within thirty (30) days after receipt of the invoice or from the payment due date with an explanation of the nature of the dispute. Unless a written notice of a dispute as to invoiced or due amounts is received by InstaPull within such thirty (30) day period, the invoice or amount due shall be deemed correct and payable in full by Client.

 

  1. PROPRIETARY RIGHTS AND LICENSES

 

5.1. Company License to Use the Services. During the Term and subject to Company and Company Users’ compliance with this Agreement, Company and Company Users have the limited right to access and use the Services for Company’s business purposes.

5.2. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Instapull reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Company hereunder other than as expressly set forth herein. Without limiting the foregoing, Company acknowledges that the structure, organization, and code used in conjunction with the Services are proprietary to Instapull and/or Instapull’s supplier(s), and that Instapull and/or its suppliers retain exclusive ownership of the Services, documentation, and any other Intellectual Property Rights relating to the Services, including all of Instapull’s modifications, enhancements, derivatives, and other software and materials relating to the Services.

5.3. License to Company Data. Company grants Instapull and its Affiliates (including its third party hosting providers acting on its behalf) a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform, and display Company Data (a) as reasonably necessary to provide the Services to Company Users and Utility Account Customers in accordance with this Agreement; (b) to prevent or address service or technical problems or at Company’s request in connection with customer support matters; or (c) as compelled by law in accordance with the Confidentiality section below or as expressly permitted in in writing by Company. Subject to the limited licenses granted herein, Instapull acquires no right, title or interest under this Agreement in or to Company Data. Notwithstanding anything to the contrary, Instapull may aggregate, anonymize, or otherwise de-identify any information collected from Company, Company Users in the course of this Agreement and use and disclose such information without restriction, provided that such aggregated, anonymous, or otherwise de-identified data does not individually identify Company (“Anonymized Data”) prior to disclosure to a third party, except that Instapull may disclose individually identifiable information to its third party contractors who are subject to confidentiality obligations, and Authorization Data, which can include Company Data, to Applicable Utilities if requested or purchased. Instapull retains all intellectual property rights in Anonymized Data. This Section 5.3 shall survive termination of this Agreement.

5.4. Feedback. If Company (including any Company User) sends Instapull any feedback or suggestions regarding the Services, Company grants Instapull and its Affiliates an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use or share any such feedback or suggestions for any purpose without any obligation or compensation to Company or any Company User.

5.5. Business Relationship. Company grants to Instapull and its Affiliates a worldwide, royalty-free license to use any of Company’s trademarks, brand names, and/or logos for the limited purpose of disclosing that Instapull provides services to Company. The license set forth in this Section 5.5 shall be valid only during the period of time in which Company has an active account and shall expire at the termination of this Agreement.

5.6. Remedies for Infringement Claims Related to the Services. If Instapull receives information about an infringement or misappropriation claim related to the Services, Instapull may in its discretion and at no cost to Company elect to: (a) modify the Services so that they no longer infringe or misappropriate, without breaching Instapull’s warranties under Section 8.2; (b) obtain a license for Company’s continued use of the Services in accordance with this Agreement; or (c) terminate Company’s account upon 30 days’ written notice and refund Company any money remaining in Company’s Fund. Notwithstanding any contrary provision in this Agreement, if Instapull provides any of the remedies set forth in this Section 5.6, Company agrees that such action satisfies Instapull’s obligations under this Agreement, and Company is not eligible for further relief.

 

  1. TERM AND TERMINATION

 

6.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Company’s account (including any subaccounts created under Company’s account) has been deactivated or otherwise terminated (the “Term”).

6.2. Termination for Convenience. Company has the right to terminate its account and this Agreement at any time by deactivating or terminating its account; provided, that any money remaining in the Fund is non-refundable and non-cancelable. Instapull reserves the right to terminate this Agreement at any time for convenience with thirty (30) days’ notice to Company (via email will suffice); provided, that, Instapull will refund Company any unused money remaining in the Fund.

6.3. Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, Instapull may terminate the Agreement immediately if Company (a) commits fraud in the collection or provision of Consent or (b) uses Instapull’s email communication tool for any purpose other than the collection of Consent.

6.4. Refund upon Termination for Cause. Upon any termination for cause by Company, Instapull will refund Company any unused money remaining in the Fund. Upon any termination for cause by Instapull, Company shall not be entitled to receive a refund of any unused money in the Fund.

6.5. Deletion of Data. Follow Following the Term, Instapull shall have no obligation to maintain or provide any Company Data.

6.6. Surviving Provisions. The rights and duties of the parties under Sections 1, 3.6, 4, 5.2, 5.3, 5.4, 6.5, 6.6, 7, 8.4, 9, 10, 11 and Schedule of Fees will survive the termination or expiration of this Agreement.

 

  1. CONFIDENTIALITY

 

7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as otherwise specifically provided in this Agreement, Company’s Confidential Information includes Company Data; Instapull’s Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, patents, copyrights, trade secrets or other intellectual property of any kind of nature, plans for future development and new product concepts, and strategies disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party who rightfully possess the information without confidential or proprietary restrictions, or (iv) was independently developed by the Receiving Party.

7.2. Protection of Confidential Information. Except as otherwise specifically provided in this Agreement, or with advanced written authorization by the Disclosing Party, each Party covenants and agrees that it will not use, or publish, communicate, divulge, or disclose to any person, firm, or corporation any Confidential Information of any other Party, except as necessary in the performance of the terms of this Agreement or as otherwise permitted by this Agreement. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). Liability for damages due to disclosure of the Confidential Information by any such third party shall be with the Party that disclosed the Confidential Information to the third party. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.

7.3. Compelled Disclosure. In the event that the recipient of Confidential Information is requested or becomes legally compelled to disclose any Confidential Information of the other Party, it is agreed that the Receiving Party will provide the Disclosing Party with prompt written notice of such request(s) to enable the Disclosing Party, at its sole cost and expense, to seek a protective order or take other lawful steps to protect and preserve the confidential nature of the Confidential Information, and the Receiving Party will cooperate with such efforts by the Disclosing Party. Each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed.

7.4. Return or Destruction. As requested by the Disclosing Party during the Term, upon expiration or any termination of this Agreement, or completion of the obligations of the Receiving Party, as applicable, the Receiving Party shall (a) return or destroy, as the Disclosing Party may direct, and in the manner reasonably directed by the Disclosing Party, all material in any medium that contains, refers to, or relates to the Disclosing Party’s Confidential Information, and (b) retain no copies except one copy solely to the extent, if any, required compliance with record retention requirements under applicable law; provided, however, that no Party will be obligated to erase Confidential Information subject to a license granted herein or contained in an archived computer system backup made in accordance with such Party’s security and/or disaster recovery procedures, provided that such archived copy will (a) eventually be erased or destroyed in the ordinary course of such Party’s data processing procedures and (b) will remain fully subject to the obligations of confidentiality and security stated herein.

7.5. Misuse. In the event of any actual or suspected misuse, disclosure or loss of, or inability to account for, any Confidential Information of the Disclosing Party, the Receiving Party promptly shall notify the Disclosing Party within three business days and cooperate in all reasonable respects with the Disclosing Party to minimize the violation and any damage resulting therefrom.

 

  1. REPRESENTATIONS, WARRANTS AND DISCLAIMER

 

8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2. Instapull Warranties. Instapull warrants that it will use commercially reasonable efforts to provide Company with the Services in accordance with Section 2.1. For any breach of an above warranty, Company’s exclusive remedies are those described in Section 6.3 and Section 6.4.

8.3. Company Warranties. Company warrants that (a) at all times during the term of this Agreement, Company shall comply with all applicable federal, state, and local laws, and the terms of this Agreement and (b) Company’s use of the Services or execution of this Agreement does not and will not conflict with Company’s obligations to any third parties, including, without limitation, Company’s employees, agents, or independent contractors.

8.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND INSTAPULL EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY ACKNOWLEDGES THAT INSTAPULL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WITHOUT LIMITING THE FOREGOING, INSTAPULL DOES NOT WARRANT THE ACCURACY OF UTILITY DATA EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

 

  1. LIMITATION OF LIABILITY

 

9.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT OF USAGE FEES BY COMPANY HEREUNDER IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY.

9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

  1.   MUTUAL INDEMNIFICATION

 

10.1. Company Indemnification. Company shall defend Instapull and its Affiliates, and its and their respective officers, directors, employees and contractors, from and against any and all third party claims, actions and demands alleging Company’s use of the Services, in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (including, without limitation, Company’s failure to obtain Consent or Company’s violation of a Utility User’s privacy rights) (collectively, a “Claim Against Instapull”), and shall indemnify Instapull for any damages, attorney fees and costs finally awarded against Instapull as a result of, or for any amounts paid by Instapull under a court-approved settlement of, a Claim Against Instapull. For a Claim Against Instapull, Company controls the defense and settlement of the Claim Against Instapull and Instapull agrees to give Company all reasonable assistance, at Company’s expense. Company will not settle, compromise, or otherwise enter into any agreement regarding the disposition of any Claim Against Instapull without the prior written consent and approval of Instapull unless such settlement (a) is solely for a cash payment, (b) requires no admission of liability or wrongdoing on the part of Instapull, (c) imposes no affirmative obligation on Instapull, (d) imposes no restriction on Instapull’s business, (e) provides that the parties to such settlement shall keep the terms of the settlement confidential, and (f) provides for a full and complete release of Instapull. You shall reimburse Instapull upon demand for any losses incurred by Instapull that is subject to an indemnification obligation as set forth in this Section 10.1.

10.2. Indemnification by Instapull. Instapull will defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Company”), and will indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of, or for amounts paid by Company under a court-approved settlement of, a Claim Against Company, provided Company (a) promptly give Instapull written notice of the Claim Against Company, (b) give Instapull sole control of the defense (including selection of attorneys) and settlement of the Claim Against Company (except that Instapull may not settle any Claim Against Company unless it releases Company of all liability), and (c) give Instapull necessary assistance, at Instapull’s expense. The above defense and indemnification obligations do not apply to the extent a Claim Against Company arises from (i) Company Data; (ii) Company’s negligence, misconduct, or breach of this Agreement; (iii) any modification, combination or development of the Services that is not performed by Instapull; or (iv) the use of any version of software other than the most current release made available by Instapull.

10.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

 

  1.   GENERAL PROVISIONS

 

11.1.   Notices. Except as otherwise set forth herein, all notices under this Agreement will be in writing addressed to (i) Instapull by email to support@Instapull.com or by mail to 524 Morris Lane, Berwyn PA 19312 and will be deemed to have been duly given (a) when received, if personally delivered; (b) the first business day after sending by email; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.

11.2.   Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the Commonwealth of Pennsylvania, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.

11.3.   Venue; Waiver of Jury Trial; Fees. The state and federal courts located in Chester Country, Pennsylvania shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

11.4.   Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of such party, which may include denial-of-service attacks, strikes, shortages, riots, fires, acts of God, war, terrorism, cyber-warfare, state-sponsored attacks, and governmental action.

11.5.   Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.6.    No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

11.7.    Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

11.8.    Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.9.    Construction. This Agreement has been prepared with the participation of each Party and will not be strictly construed against either Party. Each party acknowledges that it has consulted with or had the opportunity to consult with counsel of its choice, and that in executing this Agreement it has not relied upon any statements, representations or agreements other than those expressly contained herein.

11.10. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that such party assumes or is otherwise fully bound by all of the obligations of the assigning party under the Agreement. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Instapull will refund to Company any money remaining in its Fund. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. In the event of a merger, acquisition, corporate reorganization, or sale of all or substantially all of Instapull’s assets, the acquiring party will not acquire Authorization Data.

11.11.   Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Company and Instapull regarding Company’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Company’s purchase order or in any other of Company’s order documentation (excluding Order as defined herein) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, and (2) this Agreement. Notwithstanding any other provision of this Agreement, in no event shall any terms or conditions in this Agreement or any other document be agreed, accepted, waived or modified via a “Void Contracting Method.” A “Void Contracting Method” is one in which an agreement or acceptance purportedly takes place within or through products or services or an application, website, or portal operated by or for Instapull through Company action (such as electronic signature, checking a box, or clicking to accept) or inaction, even if Company is informed that such action or inaction will constitute agreement or acceptance. Any terms or conditions purportedly accepted or agreed via a Void Contracting Method shall be void and of no legal consequence.

11.12.   Headings. The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.

 

Each party represents and warrants that, on the date first written above, they are authorized to enter into this Agreement in entirety and duly bind their respective principals by their signature below:


EXECUTED as of the date first written above.

Pursuit Transformation Company Inc.

By: ________________________________

 

Title: _______________________________

 

Date signed: _________________________

 

Niche Business Management, LLC (dba Instapull.io)

 

 By: Kevin Johnson

Title: Member

 

Date signed: _________________________

 

Appendix A – Base Level Support Services 

Instapull’s Base Level Support Services include:  

 

  1. Service Availability
  • The service will be available 99.9% of the time in any given calendar month, excluding scheduled maintenance windows.  Scheduled maintenance will be notified 7 + days in advance.
  1. Response Time
  • Support inquiries will be responded to within 4 hours of receipt during normal business hours (Monday to Friday, 9:00 AM to 5:00 PM UTC).
  1. Resolution Time
  • Critical issues will be resolved within 24 hours of the initial report.
  • Major issues will be resolved within 48 hours of the initial report.
  • Minor issues will be resolved within 5 business days of the initial report.
  1. Performance
  • The application will maintain an average response time of less than 500 milliseconds for typical transactions.
  1. Security
  • The service will adhere to industry-standard security practices, including regular security audits and data encryption. Please see InstaPull Security Policies
  1. Data Backup
  • Customer data will be backed up daily, with backups retained for a minimum of 35 days.
  1. Customer Support
  • Customer support will be available via email and chat 24/7/365.
  • Phone support will be available during business hours (Monday to Friday, 9:00 AM to 6:00 PM EST).
  1. Reporting
  • Monthly reports can be provided detailing service uptime, response times, and any SLA breaches.
  •  
  1. Amendments
  • Any amendments to this SLA must be agreed upon in writing by both parties.