1. Access and Use

1.1. Our Services

We provide a software platform and various tools and professional services to help moving companies manage their day-to-day operations (the “Services”). We offer our Services in different packages (each, a “Package”), which may change from time to time. Currently, we offer three Package options but we may add other options in our discretion:

(a) Oncue Cloud;

(b) Oncue Lite; and

(c) Full Service (i.e., Oncue Flex, Growth, or Suite)

For the specific terms that are applicable to each Package, please visit oncue.co/service-terms (the “Service Specific Terms”). The Service Specific Terms are incorporated into this Agreement and made a part hereof.

1.2. License and Reservation of Rights

Use of the Services; Accounts. You may only view, download, print one copy of the materials from, and use the Services subject to the following conditions: (a) the Services and any materials may be used solely for Your moving business purposes; and (b) You may not modify or remove any copyright and other proprietary notices contained in any materials provided through the Services and on any copies of such materials. You may not (a) reproduce, republish, publicly display, perform, distribute, exploit, or otherwise use the materials or the Services for any public or commercial purpose (except as provided above) or prepare any modification or prepare derivative works based on the contents from the Services; (b) propagate any virus, worms, trojan horses, or other programming routine intended to damage any system or data; (c) access the Services for the purpose of building a competitive product or service or copying its features or user interface; or (d) use the Services, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Oncue ’s prior written consent. You may authorize third-parties (which may include Oncue Enterprises), as Your agent(s) to use the Services on Your behalf, subject to You being responsible to Oncue Enterprises for any such use by Your agents. You also agree that You will not use the Services for any unlawful purposes.

We reserve all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Oncue IP.

1.3. Suspension

Notwithstanding anything to the contrary in this Agreement, we may temporarily suspend your (and any of your Authorized Users’) access to any portion or all of the Services if: (i) we reasonably determine that (A) there is a threat or attack on any of the Oncue IP; (B) your (or any of our Authorized Users’) use of the Oncue IP disrupts or poses a security risk to the Oncue IP or to any of our vendors or any other mover; (C) you, or any Authorized User, are using the Oncue IP for fraudulent or illegal activities or in violation of our acceptable use policy located in Section 2.2 below (the “Acceptable Use Policy”); (D) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) our provision of the Services to you or any Authorized User is prohibited by applicable law; (ii) any vendor of ours has suspended or terminated our access to or use of any Third-Party Products (as defined in the Service Specific Terms) required to enable you to access the Services; or (iii) in accordance with Section 4.1 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). We will use commercially reasonable efforts to provide written notice of any Service Suspension to you and to provide updates regarding resumption of access to the Services following any Service Suspension. We will use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. We will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you or any Authorized User may incur as a result of a Service Suspension.

1.4. Service Changes

Oncue reserves the right at any time to modify or discontinue Services (or any part thereof) with or without notice (unless otherwise required by applicable law). Oncue shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Services.

1.5. Marketing Communications

(a) You agree that Oncue may send you marketing communications regarding the Services by email, mail, text messaging (as described below), or any other means permitted under applicable law. You may opt-out of receiving marketing communications from Oncue at any time.

(b) You expressly consent and agree that we can contact you using written, electronic, or verbal means, including by manual dialing, emails, leaving prerecorded/artificial voice messages or using an automatic telephone dialing system to call or text your mobile/cellular telephone number, as necessary to complete transactions requested by you and to service your account and as the law allows, even if those phone numbers are registered by you on any federal or state Do-Not-Call/Do-Not-email registry.

We offer you the chance to enroll to receive recurring SMS/text messages from us. You may enroll to receive text messages about account-related news and alerts and/or marketing and promotional offers for our products and services. By enrolling in our SMS/text messaging service, you agree to receive text messages from us to your mobile phone number provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such texts. You acknowledge and agree that the texts may be sent using an automatic telephone dialing system and that standard message and data rates apply. Consent is not required as a condition of purchase. We are not responsible for any delays upon sending or receiving text messages.

To unsubscribe from text messages at any time, reply STOP, STOPALL, UNSUBSCRIBE, CANCEL, END or QUIT to any text message you receive from us. You consent that following such a request to unsubscribe, you may receive one final text message from us confirming your request. To resubcribe, reply START, YES, or UNSTOP. For help, reply HELP or contact us at [email protected].

2. Your Responsibilities.

2.1. General

You are responsible and liable for all uses of the Services by your Authorized Users and anyone using their accounts, whether or not such access or use is permitted by this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You will use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and will cause Authorized Users to comply with such provisions.

2.2. Acceptable Use Policy

Without limiting the other terms and conditions of this Agreement, you agree to use the Services strictly in accordance the Acceptable Use Policy described below. Oncue may suspend or terminate your access to the Services if we suspect that you have engaged in fraudulent activity in connection with the use of the Services. You agree not to engage in any of the following prohibited activities:

(a) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”;

(b) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the Oncue servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Oncue grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);

(c) transmitting spam, chain letters, or other unsolicited email;

(d) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services;

(e) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;

(f) uploading invalid data, viruses, worms, or other software agents through the Services;

(g) collecting or harvesting any personally identifiable information, including account names, from the Services;

(h) using the Services for any commercial solicitation purposes;

(i) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;

(j) interfering with the proper working of the Services;

(k) accessing any content on the Services through any technology or means other than those provided or authorized by the Services;

(l) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; or

(m) engaging in any unlawful or objectionable activities on the Services, as determined in our sole discretion.

3. Support

During the Subscription Period, we will use commercially reasonable efforts to provide you with basic support via our standard support channels during our normal business hours.

4. Fees and Payments

4.1. General

We may add new services for additional fees and charges, and may add or amend fees and charges for existing services, at any time, in our sole discretion. Any change to the pricing terms applicable to you shall become effective in the billing cycle following notice of such change to you as provided in this Agreement. You are required to keep a valid payment method and valid payment information on file with Oncue at all times.

4.2. Payment Processing

Payment processing services are provided by Stripe and are subject to the Stripe, Inc. Services Agreement (“Stripe Services Agreement”) available at https://stripe.com/us/legal. You acknowledge and understand that Stripe may retain processing fees. In the event a payment by you or one of your customers is charged-back, refunded or reversed, we, in our sole discretion, may either (a) reduce or set off against any amounts to be remitted or otherwise due to you hereunder by an amount equal to such chargeback, refund or reversal amount, or (b) if you have already received the amounts, invoice you for an amount equal to such chargeback, refund or reversal, and you agree to pay to us such invoiced amount within thirty (30) calendar days of the invoice date.

4.3. Payments by You

You will pay us the fees identified when you register for the Services (including any related credit card or other payment processing fees) without offset or deduction at the cadence identified (e.g., monthly or annually). Additional fees may be applicable if you elect to purchase any additional features or add-ons that are made available on the Services. Fees paid by you are non-refundable. All payments must be made in US dollars by ACH or line credit or debit card payment via the link provided in the applicable invoice to such account as we may specify in writing from time to time, or by another mutually agreed-upon payment method. If you fail to make any payment when due, and have not notified us in writing within ten (10) days of the payment becoming due and payable that the payment is subject to a good faith dispute, without limiting our other rights and remedies: (i) we may charge interest on the undisputed past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) you will reimburse us for all reasonable costs incurred by us in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, we may suspend your (and your Authorized Users’) access to any portion or all of the Services until such amounts are paid in full.

4.4. Payments to You

If your Package includes collection services, you agree that we (or any party designated by us) may collect customer payments owed to you for the limited purpose of accepting such funds, and you hereby appoint us as your payment collection agent solely for this limited purpose. If your Package does not include our collection services, customers make their payments directly to you. You agree that any customer payments through or in connection with the Services will be considered the same as customer payments made directly to you, and you will provide your customer(s) with services as if you received the payment directly from the customer. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account, including, without limitation, applicable tax information. Any third-party fees related to returned or cancelled payments due to a contact or payment information error or omission may be deducted from payments due to you.

Notwithstanding anything to the contrary in this Agreement, Oncue reserves the right to suspend the payments described in this Section if you fail to timely pay any undisputed amounts due to Oncue under Section 4.3 within thirty (30) days of the date such payment is due to Oncue under the Agreement, until any such amounts are paid in full.

4.5. Disputes

If you want to dispute any payment made by us hereunder, you must notify us in writing within thirty (30) days of such payment or from when you purport such payment would have been due, whichever is earlier. Failure to so notify us will result in your waiver of any claim relating to such disputed payment. Payment will be calculated solely based on records maintained by us, and no other measurements or statistics of any kind will be accepted by us or have any effect hereunder. You will have no audit rights hereunder. In cases where dispute resolution is required, Oncue will debit the disputed amount from your Stripe account balance to be held until the dispute is resolved. If your Oncue account does not have sufficient funds to cover the chargeback, we may charge this amount to your payment method on file. If you win the dispute, we will charge a $15 fee for handling and credit your Stripe balance the disputed amount. If you lose the dispute, we will charge a $15 fee for handling the dispute and the credit card processor will debit the move amount from your Stripe account balance.

4.6. Cancelling the Services; No Refunds

You may cancel your account at any time; however, there are no refunds for cancellation. Detailed cancellation policies can be found in the Specific Service Terms here: oncue.co/service-terms. In the event that we suspend or terminate your account or this Agreement, you understand and agree that you will receive no refund or exchange for any unused time on any portion of the Services, any content or data associated with your account, or for anything else. We may, in our sole discretion, issue refunds on your behalf, as applicable, for any transaction that occurred through the Services. You hereby authorize us to issue refunds and agree to comply with any refunds issued by us.

4.7. Taxes

All fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income. If we believe that we are obligated to obtain tax information related to you, and you not provide this information to us after we have requested it, we may withhold payments due to you until you provide this information or otherwise satisfy us that we are not required to obtain such tax information from you.

5. Confidential Information

5.1. Definition

From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Except for Personal Information (as defined below), Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.

5.2. Duty

The receiving Party may not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order must first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.

5.3. Return of Materials; Effects of Termination/Expiration

On the expiration or termination of the Agreement, the receiving Party may promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6. Personal Information

Our rights and obligations with respect to information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy (“Personal Information”) are set forth in our Privacy Policy, located at www.oncue.co/privacy.

7. Intellectual Property Ownership; Feedback

7.1. Oncue IP

You acknowledge that, as between you and Oncue, we own all right, title, and interest, including all intellectual property rights, in and to the Services, any documentation for the Services, and any and all intellectual property provided to you or any Authorized User in connection with the foregoing, as well as Aggregated Data (as defined in the Service Specific Terms) and any information, data, or other content derived from our provision of the Services (collectively, “Oncue IP”) and, with respect to Third-Party Products (as defined in the Service Specific Terms), the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.

7.2. Feedback

If you or any of your employees or contractors sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Oncue IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.

8. Warranty Disclaimer

THE ONCUE IP IS PROVIDED “AS IS” AND WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE MAKE NO WARRANTY OF ANY KIND THAT THE ONCUE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE, OR ERROR FREE. CERTAIN STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES AND/OR LIMITATIONS ON CERTAIN DAMAGES. IF ANY OF THESE LAWS APPLY TO YOU, SOME OF THE PROVISIONS IN THIS SECTION MAY NOT APPLY NOT YOU.

The Services may contain links to other websites, including to other goods sold or bought or parties referred through the use of the Services (“Third-Party Facilitator”). Any such links do not represent an endorsement, sponsorship, or approval of the material on and/or generally of such website. Without limiting the generality of the foregoing, please be aware that Third-Party Facilitator’s are solely responsible for any goods sold or purchased from or referral provided by them through the Services and for the delivery thereof.

9. Indemnification

9.1. Indemnification by Us

(a) We will indemnify, defend, and hold you harmless from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by you resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US copyrights or trade secrets; provided that you promptly notify us in writing of the claim, cooperate with us, and allow us sole authority to control the defense and settlement of such claim.

(b) If such a claim is made or appears possible, you agree to permit us, at our sole discretion: to (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for you to continue use. If we determine that neither alternative is reasonably commercially available, we may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to you.

(c) This Section 9.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by us or authorized by us in writing; (ii) modifications to the Services not made by us; (iii) Mover Data (as defined in the Service Specific Terms); or (iv) any Third-Party Products (as defined in the Service Specific Terms) or third-party services.

9.2. Indemnification by You

You may indemnify, hold harmless, and, at our option, defend us from and against any Losses resulting from any Third-Party Claim that the Mover Data (as defined in the Service Specific Terms), or any use of the Mover Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property or other rights and any Third-Party Claims based on your (or any of your Authorized Users’) (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; or (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by us or authorized by us in writing; in each case provided that you may not settle any Third-Party Claim against us unless we consent to such settlement, and further provided that we will have the right, at our option, to defend ourselves against any such Third-Party Claim or to participate in the defense thereof by counsel of our own choice.

9.3. Sole Remedy

THIS SECTION 9.3 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

10. Limitations of Liability

IN NO EVENT WILL WE BE LIABLE TO YOU OR ANYONE ELSE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

11. Subscription Period and Termination.

11.1. Subscription Period

The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period identified when you sign up for the Service (the “InitialSubscription Period”). This Agreement will automatically renew for additional successive terms equal to the length of the Initial Subscription Period unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Subscription Period” and together with the Initial Subscription Period, the “Subscription Period”).

11.2. Termination

In addition to any other express termination right set forth in this Agreement:

(a) We may terminate this Agreement, effective on written notice to you, if you: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after our delivery of written notice thereof; or (ii) breach any of your obligations under Section 1.2 or Section 5;

(b) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or

(c) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

11.3. Effect of Expiration or Termination

Upon expiration or earlier termination of this Agreement, you must immediately discontinue use of the Oncue IP and, without limiting your obligations under Section 5, you must delete, destroy, or return all copies of the Oncue IP and certify in writing to us that the Oncue IP has been deleted or destroyed. No expiration or termination will affect your obligation to pay all Fees that may have become due before such expiration or termination or entitle you to any refund.

11.4. Survival

This Section 11.4 and Sections 4, 5, 7, 8, 9, 10, 11.3, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

12. Miscellaneous

12.1. Entire Agreement

This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, any related exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.

12.2. Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

12.3. Force Majeure

In no event will either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

12.4. Amendment and Modification

We may change this Agreement from time to time at our discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. We will provide you with reasonable notice prior to any material amendments or modifications taking effect (as solely determined by Oncue), either by emailing the email address associated with your account on the Services or by another method reasonably designed to provide notice to you. If you access or use the Services after the effective date of the revised Agreement, such access and use will constitute your acceptance of the revised Agreement beginning at the next Renewal Subscription Period.

12.5. Waiver

No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.

12.6. Severability

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties must negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

12.7. Governing Law; Resolution

This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California.

You agree that any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be finally settled by binding arbitration in San Francisco County, California (“Arbitration”).  The Parties agree that Arbitration shall solely be governed by the Federal Arbitration Act. Arbitration shall be before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association and, where appropriate, the Supplementary Procedures for Consumer Related Disputes (“AAA Rules”). Arbitration fees and arbitrator compensation will be governed by the AAA Rules. The arbitrator’s decision shall be the final and binding for any and all matters arising under this Agreement. Without limiting the generality of the foregoing, You agree that under no circumstances will You ever be part of a class action against Oncue or its employees, contractors, shareholders, subsidiaries, affiliates, and officers. You agree that regardless of any statute or law to the contrary, any Dispute must be filed within one (1) year after such Dispute arose, after which point, it shall be barred.

12.8. Assignment

You may not assign any of your rights or delegate any of your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without our prior written consent. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

12.9. Equitable Relief

Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or Section 2.2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

12.10. Publicity

We may identify you as a user of the Services and may use your name, logo, and other trademarks in our mover list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom will inure to your sole and exclusive benefit). Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.

12.11. Restricted Period

During the period commencing on the Effective Date and ending one (1) year after Your last use of the Services (the “Restricted Period”), You agree to not hire or solicit, directly or indirectly, any employees or contractors of Oncue (collectively, “Personnel”). If You violate this Section, You shall owe and pay Oncue a fee equal to $40,000 for each such hire of Personnel within fifteen days of such hire; provided, further, that if You are still using the Services at the time of such breach of the preceding sentence, Oncue may immediately terminate Your use of the Services without any refund for prepaid services.

12.12. Authority

By accessing and/or using the Services, You represent and warrant that: (i) You are at least 18 years old; and (ii) You have the right and capacity to enter into this Agreement on behalf of Yourself or the entity You are entering into it on behalf of.