Therapist Service Agreement
This Service Provider Agreement (this "Agreement") is entered into between TruZen Inc., a Delaware corporation ("TruZen") and entity or person (the "Service Provider") (independently a "Party" and collectively the "Parties"). This Agreement shall be effective as of the date the Service Provider selects "Accept" (the "Effective Date").
A. The Service Provider provides spa services ("Services").
B. TruZen provides an online marketplace that enables independent providers of spa services using the Platform (as defined below) to seek, receive, and fulfill requests for appointments from a TruZen user (a "Client").
C. The Service Provider desires to work with TruZen for the purposes of accessing and using the Platform to provide and market their spa services to a Client.
D. The Service Provider acknowledges and agrees that TruZen is a technology service provider that does not provide spa services or facilities.
Given the recitals above, and in consideration of the mutual promises and covenants herein, the Parties agree as follows:
1) Use of the Platform.
a) Platform. The "Platform" means TruZen's online marketplace and related services licensed by TruZen to the Service Provider that enables spa service providers to seek, receive, and fulfill requests for spa services by Clients; such platform services include access to the TruZen app and TruZen's software, websites, payment services, and related support services systems, as may be updated or modified from time to time. Included in the definition of "Services", TruZen offers the following features for its Service:
- i) Quick Book -- means TruZen matching a Client's request to book spa services and the Service Provider's availability and provided Services.
c) Provision of Services. When the Platform is active, a Client may request Services which may appear in the Service Provider's Directory Services and Truzen will match the potential Client with the Service Provider based upon the Service Provider's availability and the Directory Service as described in Section 2. As between TruZen and the Service Provider, the Service Provider acknowledges and agrees that:
- i) The Service Provider is solely responsible for determining the most effective, efficient, and safe manner to perform the Services;
- ii) The Service Provider shall not provide Services to any Client under the age of 18; and
- iii) The Service Provider shall provide all equipment, tools, and other materials at the Service Provider's own expense that are necessary to perform the Services.
- d) Disclosure of Information. The Service Provider acknowledges and agrees that once the Service Provider has accepted a Client's request for Services, the Platform may provide certain information about the Service Provider to a Client, including but not limited to, the Service Provider's name and address. The Service Provider shall not contact a Client for any reason except for the purpose of fulfilling the Services.
- e) Privilege to Use Platform. TruZen retains the right to, at any time and at TruZen's sole discretion, deactivate or otherwise restrict the Service Provider from accessing or using the Platform in the event of a violation of this Agreement, the Service Provider's disparagement of TruZen, the Service Provider's act or omission that causes or may cause harm to TruZen's brand, reputation, or business as determined in TruZen's sole discretion, or for any other reason at TruZen's reasonable discretion. TruZen reserves the right to deactivate the Service Provider's Login ID for any reason at its sole discretion. Subject to change from time to time, Service Provider's privilege to use the Platform shall be governed by TruZen's cancellation policies that can be found here.
2) Client and Service Provider Matching.
- a) Matching Process. Truzen provides its Platform as a matching service between the Client's parameters and a Service Provider's Directory Services and availability. The Service Provider authorizes TruZen to match the Service Provider with a Client based on factors such as the Service Provider and Client location, the scheduling availability, the Services provided, the Client preferences, and platform efficiency, and to cancel an existing match and rematch based on the same considerations. Any decision by a Service Provider to offer or accept a Client is a decision made in the Service Provider's sole discretion and vice versa for the Client. Each Service provided by a Service Provider to a Client shall constitute a separate agreement as described in Section 3.
- b) Client Parameters. The Client shall have the option to set a variety of parameters in regard to the Client's request for services. TruZen reserves the right to add, remove, or change the options provided to Clients. Possible Client parameters include, but are not limited to, gender, date and time for Services to be provided, and where the Client will be traveling from and the estimated driving time.
3) Service Provider and Client Relationship.
The Service Provider acknowledges and agrees that providing the Services to a Client creates a direct business relationship between the Service Provider and that Client. Truzen solely enables Clients to arrange and schedule Services from the Services Provider through its matching services. TruZen is not responsible or liable for the actions or inaction of a Client in relation to the Service Provider's activities. The Service Provider shall have the sole responsibility for any obligations or liabilities to a Client or third parties that arise from the Service Provider's provision of the Services. The Service Provider shall be solely responsible for taking such precautions as may be reasonable and proper regarding any acts or omissions of a Client or third party.
4) TruZen and Service Provider Relationship.
The Service Provider acknowledges and agrees that this Agreement creates an independent contractor relationship that is an arms-length business relationship between TruZen and the Service Provider. This Agreement does not create an employment relationship with the Service Provider. TruZen does not, and shall not be deemed to, direct or control the Service Provider generally or the Service Provider's performance of the Services, including in connection with the Service Provider's provision of Services to a Client or any acts or omissions while providing Services, or the types of Services the Service Provider supplies. The Service Provider retains the right to determine when and for how long the Service Provider utilizes the Platform. The Service Provider retains the option via the Platform to accept or to decline or ignore Client's requests for Services, or to cancel an accepted request for Services, subject to TruZen's then-current cancellation policies. For the sake of clarity, the Service Provider acknowledges and understands that the Service Provider retains the complete right to (i) use other software applications in addition to the Platform; (ii) use other marketing or business means to attract business; and (iii) engage in any other occupation or business.
5) Professional and Platform Requirements.
a) Professional Requirements.
i) If the Service Provider is an individual, the Service Provider shall always:
- (1) Hold and maintain a valid and appropriate license or similar qualifications with the appropriate level of certification to provide the Services;
- (2) Hold and maintain all licenses, permits, insurance, approvals, and authority applicable to the Service Provider that are necessary to provide Services;
- (3) Possess the appropriate and current level of training, expertise, and experience to provide Services in a professional manger with due skill, care, and diligence; and
- (4) Maintain high standards of professionalism, service, and courtesy.
ii) If the Service Provider is an entity, the Service Provider shall. always:
- (1) Be duly organized, validly existing and in good standing under the laws of the State of Washington and have all requisite power and authority to execute and deliver this Agreement and to perform the Service Provider's obligations hereunder;
- (2) Hold and maintain a valid and appropriate license or similar qualifications with the appropriate level of certification to provide the Services;
- (3) Require its sub-contractors, employees, or agents to hold and maintain a valid and appropriate license or similar qualifications with the appropriate level of certification to provide the Services;
- (4) Hold and maintain all licenses, permits, insurance, approvals, and authority applicable to the Service Provider that are necessary to provide Services;
- (5) Require its sub-contractors, employees, or agents to hold and maintain all licenses, permits, insurance, approvals, and authority applicable to the sub-contractors, employees, or agents that are necessary to provide Services;
- (6) Possess the appropriate and current level of training, expertise, and experience to provide Services in a professional manger with due skill, care, and diligence;
- (7) Require its sub-contractors, employees, or agents to possess the appropriate and current level of training, expertise, and experience to provide Services in a professional manger with due skill, care, and diligence; and
- (8) Maintain high standards of professionalism, service, and courtesy.
b) Platform Requirements: The Service Provider shall always maintain and update with TruZen the below information:
- i) Full legal name;
- ii) A current profile picture;
- iii) Phone Number;
- iv) Address; and
- v) Date of birth, if applicable.
- c) Documentation for Individuals. This Section is applicable to all Service Providers who are individuals. To ensure compliance with all the above requirements in Section 4(a), the Service Provider shall provide TruZen with copies of all such licenses, permits, insurance policies, approvals, authority, registrations, and certifications prior to any provision of Services. Thereafter, the Service Provider shall submit to TruZen copies of such licenses, permits, insurance policies, approvals, authority, registrations, and certifications as they are renewed. The Service Provider shall submit to TruZen copies of any revocations, warnings, suspensions, or negative evidence regarding such licenses, permits, insurance policies, approvals, authority, registrations, and certifications. TruZen shall, upon request, be entitled to review such licenses, permits, insurance policies, approvals, authority, registrations, and certifications from time to time, and the Service Provider's failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement.
- d) Documentation for Entities. This Section is applicable to all Service Providers who are entities. To ensure compliance with all the above requirements in Section 4(a), the Service Provider shall require all of its sub-contractors, employees, or agents maintain all such licenses, permits, insurance policies, approvals, authority, registrations, and certifications necessary to provide Services on behalf of the Service Provider. The Service Provider's failure to require all of its sub-contractors, employees, or agents maintain any of the foregoing shall constitute a material breach of this Agreement.
- e) Reporting Client Complaints. TruZen, in its sole discretion, may report any Client complaints about the Service Provider or the Service Provider's sub-contractors, employees, or agents to the appropriate authorities, regulators, or law enforcement. If TruZen decides to report a complaint, TruZen shall provide the Service Provider with notice that such report is being made.
6) Non-Discrimination Policy.
a) The Service Provider shall not:
- i) Decline a Client based on age, disability, race, color, ethnicity, national origin, religion, sexual orientation, gender identity, or marital status;
- ii) Impose any different terms or conditions based on age, disability, race, color, ethnicity, national origin, religion, sexual orientation, gender identity, or marital status; or
- iii) Post any listing or make any statement that discourages or indicates a preference for or against any Client on account of age, disability, race, color, ethnicity, national origin, religion, sexual orientation, gender identity, or marital status.
Nothing in this policy prevents the Service Provider from turning down a Client based on a characteristic that is not protected under the civil rights laws, closely associated with a protected class, or not listed above in Section 6(a).
- b) Non-Compliance with Non-Discrimination Policy. If a listing, review, or request contains language contrary to this non-discrimination policy, the Service Provider will be asked to remove the language and affirm the Service Provider's understanding and intent to comply with this policy and its underlying principles. TruZen may also, in its sole discretion, take steps up to and including suspending or removing the Service Provider from the Platform. If the Service Provider improperly rejects a Client on the basis of protected class, or uses language demonstrating that the Service Provider's actions were motivated by factors prohibited by this policy, TruZen will take steps to enforce this policy, up to and including suspending or removing the Service Provider from the Platform.
- a) Rating Requests. The Service Provider acknowledges and agrees that (i) after receiving Services, a Client will be prompted by the Platform to provide a rating of the Service Provider and the Service Provider's Services and, optionally, to provide comments about the Service Provider and the Service Provider's Services; and (ii) after providing Services, the Service Provider will be prompted by the Platform to provide a rating of a Client and, optionally, to provide comments about a Client.
- b) Sharing Rating. TruZen reserves the right to use, share, and display the Service Provider and a Client's ratings and comments in any manner in connection with TruZen's business. TruZen reserves the right to provide and display a Service Provider's overall and per Client ratings and Client comments. The Service Provider acknowledges and agrees that each Client rating, the Services Provider's acceptance and cancellation rates, and the Service Provider's response rates will be included in TruZen's calculation of the Service Provider's overall rating. The Service Provider acknowledges and agrees that TruZen is a distributor (without any obligation to verify) and not a publisher of the Service Provider or a Client's ratings and comments, provided that TruZen reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, including an individual's name or other personal information, or violate any privacy laws, other applicable laws, or TruZen's content policies.
8) Payment Terms.
- a) Quick Book Fees. TruZen offers the Quick Book Services for a flat rate to be determined by TruZen (the "Service Fees"). The Service Fees are subject to change with notice to the Service Provider. TruZen reserves the right to set a separate price for the Client that is different than the Service Fees paid out to the Service Provider. The Service Provider agrees that the Service Fees are the only guaranteed payment the Service Provider will receive in connection with the Quick Book Service. TruZen shall pass on any gratuity provided by the Client minus any payment service provider's processing fees. If the Service Provider is an entity, the Service Provider shall be fully responsible for ensuring all payments are distributed to its sub-contractors, employees, or agents for work or services provided.
- b) Payment Service Provider. The Service Provider agrees to and accepts TruZen's choice of payment service providers for the purpose of accepting the Service Fee and, depending on the region, applicable taxes and fees on the Service Provider's behalf via the payment processing functionality facilitated by the Platform. TruZen reserves the right, in its sole discretion, to change its payment service providers. TruZen shall notify the Service Provider of material changes regarding TruZen's chosen payment service provider. TruZen initially shall coordinate with Stripe as its payment service provider. TruZen shall remit the Service Provider's Payment on a weekly basis as processed by the payment service provider, unless the service provider processes the Payment differently. "Payment" means the Service Provider's Service Fees plus Cancellation Fees minus the Platform Use Fees, if applicable. Payments to Service Providers are rounded to the nearest whole cent amount.
c) Fee Adjustment. In its reasonable discretion, TruZen reserves the right to:
- i) Adjust the Service Fee for Services (e.g. the Service Provider failed to properly end a particular instance of Service, technical error with the Platform); and
- ii) Cancel the Service Fee for a particular instance of Services (e.g. a Client is charged for Services that were not provided, in the event of a Client complaint, fraud, the Service Provider or a Client's misconduct, etc.).
- d) Platform Use Fee. In consideration for TruZen's providing the Platform for the Service Provider's use and benefit, the Service Provider agrees to pay TruZen a use fee on a per Service transaction basis calculated as a percentage of the Client Service Fee as provided to Service Provider via email or otherwise made available electronically by TruZen from time to time (the "Platform Use Fee"). In the event regulations applicable to the Service Provider's area require taxes to be calculated on the Client Service Fee, TruZen shall calculate the Platform Use Fee based on the Client Service Fee net of such taxes. TruZen reserves the right to change the Platform Use Fee at any time in TruZen's sole discretion and TruZen will provide the Service Provider with notice in the event of such change. The Service Provider's continued use after any changes to the Platform Use Fee shall constitute the Service Provider's consent to such change.
- e) Cancellation Charges. This Section applies to all bookings. The Service Provider agrees that a Client or the Service Provider may elect to cancel requests for Services that have been accepted by the Service Provider via the Platform up to 24 hours before the appointment. If the Service Provider cancels an accepted appointment request, Truzen reserves the right to restrict or suspend the Client appointment requests available to the Service Provider. If a Client cancels an accepted appointment request within 30 minutes of acceptance or if the cancellation is made more than 24 hours from the appointment, the Client will not be charged a cancellation fee otherwise TruZen may charge a Client a cancellation fee on the Service Provider's behalf. If charged, this cancellation fee shall be deemed a Service Fee for the cancelled Services for the purpose of remittance to the Service Provider hereunder ("Cancellation Fee"). The Parties acknowledge and agree that as between TruZen and the Service Provider, TruZen shall set the Cancellation Fee amount.
- f) Receipts. As part of the Services, TruZen provides the Service Provider a system for delivering receipts to a Client for Services rendered. Upon the completion of Services, TruZen shall prepare an applicable receipt and issue such receipt to a Client on the Service Provider's behalf. Such receipts are also provided to the Service Provider via email or the Platform. Receipts include the breakdown of amounts charged to a Client for the Services and may include specific information about the Service Provider, including the Service Provider's name, contact information, and license information. Any corrections to a Client's receipt for Services must be submitted to TruZen in writing within 3 days after the completion of the Services. Absent such notice, TruZen shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Service Fee.
- g) Taxes. The Service Provider shall (i) complete all tax registration obligations and calculate and remit all tax liabilities related to the Service Provider's Services as required by applicable law; and (ii) provide TruZen with all relevant tax information. The Service Provider shall be responsible for taxes on its own income arising from the Services.
- a) License Grant. Subject to the terms and conditions of this Agreement, TruZen hereby grants the Service Provider a non-exclusive, non-transferable, non-sublicensable, non-assignable license, for use in the Service Provider's local geographic area during the term of this Agreement, to use the Platform solely for the purpose of providing Services to a Client and tracking resulting Service Fees. All rights not expressly granted to the Service Provider are reserved by TruZen.
- b) Restrictions. The Service Provider shall not and shall not allow any other party to (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise provide or make available to any other party the Platform in any way; (ii) modify or make derivative works based upon the Platform; (iii) improperly use the Platform, including creating Internet "links" to any part of the Platform, "framing" or "mirroring" any part of the Platform on any other websites or systems, or "scraping" or otherwise improperly obtaining data from the Platform; (iv) reverse engineer, decompile, modify, or disassemble the Platform, except as allowed under applicable law; or (v) send spam or otherwise duplicative or unsolicited messages. In addition, the Service Provider shall not and shall not allow any other party to, access or use the Platform to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Platform an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses, or worms or any program which may make multiple server requests per second, or unduly burden or hinder the operations or performance of the Platform; or (iv) attempt to gain unauthorized access to the Platform or its related systems or networks.
- c) Ownership. The Platform, including all intellectual property rights therein, are and shall remain (as between the Service Provider and TruZen) the property of TruZen or its respective licensors. Neither this Agreement nor the Service Provider's use of the Platform conveys or grants to the Service Provider any rights in or related to the Platform, except for the limited license granted above. Other than as specifically permitted by TruZen in connection with the Services, the Service Provider is not permitted to use or reference in any manner TruZen's company names, logos, products and service names, trademarks, service marks, copyrights, or other indica of ownership ("Marks and Names") for commercial purposes. The Service Provider shall not try to register or otherwise use or claim ownership in any of TruZen's Marks and Names, alone or in combination with other letters, punctuation, words, symbols, and/or designs, or in any confusingly similar mark, name, or title for any goods or services.
- a) Discloser of Service Provider Information. Subject to applicable law, TruZen may, but shall not be required to, provide to the Service Provider, a Client, an insurance company, relevant authorities, or regulatory agencies any information (including personal information and TruZen data) about the Service Provider provided hereunder if: (i) there is a complaint, dispute, or conflict including an accident between the Service Provider and a Client; (ii) it is necessary to enforce the terms of this Agreement; (iii) it is required, in TruZen's sole discretion, by applicable law or regulatory requirements (e.g. TruZen receives a subpoena, warrant, or other legal process for information); (iv) it is necessary, in TruZen's sole discretion to protect the safety, rights, property, or security of TruZen, the Platform, or any third party; to protect the safety of the public for any reason including the facilitation of insurance claims related to the Platform; to detect, prevent, or otherwise address fraud, security, or technical issues; to prevent or stop activity which TruZen, in its sole discretion, may consider to be or to pose a risk of being illegal, unethical, or legally actionable activity; or it is required or necessary, in TruZen's sole discretion, for insurance or other purposes related to the Service Provider's ability to qualify or remain requalified to use the Platform. The Service Provider agrees that TruZen may retain the Service Provider's personal information and data for legal, regulatory, safety, and other necessary purposes after this Agreement is terminated.
- b) Collection of Service Provider Information. TruZen may collect the Service Provider's personal data during the course of the Service Provider's application for, and use of, the Platform or may obtain information about the Service Provider from third parties. Such information may be stored, processed, transferred, and accessed by TruZen, third parties, and service providers for business purposes, including for marketing, lead generation, service development and improvement, analytics, industry and market research, and such other purposes consistent with TruZen's legitimate business needs. The Service Provider expressly consents to such use of personal data.
11) Non-solicitation of Clients.
During the Term of this Agreement and for 1 year after termination, the Service Provider shall not, directly or indirectly solicit, contact, or attempt to solicit or contact, for employment, engagement, or providing Services or conducting outside business with any Client that the Service Provider initially connected with via TruZen's Platform. The Service Provider shall not circumvent TruZen by independently attempting to communicate with and provide Services to the Client through alternative means after discovering the Client on the Platform. If the Service Provider is found to have breached this provision, TruZen reserves the right, in its sole discretion, to terminate this Agreement and remove or suspend for a period the Service Provider from TruZen's Platform. The Service Provider may contact a Client that the Service Provider had contact with or a business relationship with prior to or outside of the Service Provider's use of the Platform.
12) Service Provider Representations and Warranties.
The Service Provider represents and warrants that:
- a) The Service Provider has full power and authority to enter into this Agreement and the Service Provider's obligations hereunder;
- b) The Service Provider has not entered into, and during the term will not enter into, any agreement that would prevent the Service Provider from complying with this Agreement; and
- c) The Service Provider will comply with all applicable laws in the Service Provider's performance of this Agreement, including holding and complying with all permits, licenses, insurance policies, registrations, and other governmental authorizations necessary to provide the Services.
- A) TRUZEN PROVIDES AND THE SERVICE PROVIDER ACCEPTS THE PLATFORM ON AN "AS IS" AND "AS AVAILABLE" BASIS. TRUZEN DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT THE SERVICE PROVIDER'S ACCESS TO OR USE OF THE PLATFORM (I) WILL BE UNINTERRUPTED OR ERROR FREE; OR (II) WILL RESULT IN ANY REQUEST FOR SERVICES. TRUZEN FUNCTIONS AS AN ONLINE MARKETPLACE AND RELATED SERVICE ONLY AND MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF A CLIENT WHO MAY REQUEST OR RECEIVE SERVICES FROM THE SERVICE PROVIDER, AND TRUZEN DOES NOT SCREEN OR OTHERWISE EVALUATE CLIENTS OR USERS. TRUZEN FURTHER DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BY USING THE PLATFORM, THE SERVICE PROVIDER ACKNOWLEDGES AND AGREES THAT THE SERVICE PROVIDER MAY BE INTRODUCED TO A THIRD-PARTY THAT MAY POSE HARM OR RISK TO THE SERVICE PROVIDER OR THIRD PARTIES. THE SERVICE PROVIDER IS ADVISED TO TAKE REASONABLE PRECAUTIONS WITH USE OF THE PLATFORM. TRUZEN EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF THE SERVICE PROVIDER, ANY CLIENT, OR OTHER THIRD PARTY.
- B) TRUZEN DOES NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE PLATFORM. THE SERVICE PROVIDER ACKNOWLEDGES AND AGREES THAT THE PLATFORM MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON. FURTHER, THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND TRUZEN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES, OR LOSSES RESULTING FROM SUCH PROBLEMS.
- C) IN NO EVENT SHALL TRUZEN'S AGGREGATE LIABILITY TO THE SERVICE PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO A BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EXCEED 2 TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.
The Service Provider shall indemnify, defend (at TruZen's option), and hold harmless TruZen and its respective officers, directors, employees, agents, successors, and assigns, from and against all liabilities, expenses (including legal fees and costs), damages, penalties, fines, social security contributions, and taxes arising out of or relating to: (a) the Service Provider's or Service Provider's sub-contractors, employees, or agents breach of the Service Provider's representations, warranties, or obligations under this Agreement; (b) a claim by a third party (including Clients, regulators, and governmental authorities) directly or indirectly related to the Service Provider's provision of the Services or use of the Platform; or (c) any negligent act, misconduct, or omission by the Service Provider or Service Provider's sub-contractors, employees, or agents in the performance of the Services resulting in bodily injury, illness or death, or for property damage, including loss of use.
15) Term and Termination.
- a) Term. This Agreement shall commence on the date accepted by the Service Provider and shall continue until terminated as set forth herein.
- b) Mutual Termination. Either Party may terminate this Agreement (a) without cause at any time upon 7 days prior written notice to the other Party; (b) immediately, without notice, for the other Party's material breach of this Agreement; (c) immediately, without notice, in the event of insolvency or bankruptcy of the other Party, or upon the other Party's filing or submission of request for suspension of payment (or similar action or even) against the terminating Party.
- c) TruZen Termination. TruZen may terminate this Agreement or deactivate the Service Provider's Login ID immediately, without notice, to the Service Provider in the event the Service Provider no longer qualifies, under applicable law or the standards and policies of TruZen, to provide Services or otherwise set forth in this Agreement.
- d) Effect of Termination. Upon termination of the Agreement, the Service Provider shall immediately delete and fully remove the Platform from the Service Provider's devices.
- a) Modification. If TruZen modifies the terms and conditions of this Agreement at any time, such modifications shall be binding on the Service Provider only upon the Service Provider's acceptance of the modified Agreement. TruZen reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. The Service Provider hereby acknowledges and agrees that, by using the Platform or any downloaded versions of the Platform, the Service Provider is bound by any future amendments and additions to information referenced at hyperlinks herein, or documents incorporated herein, including with respect the fee calculations. Continued use of the Platform after any such changes constitutes the Service Provider's consent to such changes.
- b) Supplemental Terms. Supplemental terms may apply to the Service Provider's use of the Platform, such as use policies or terms related to certain features and functionality, which may be modified from time to time ("Supplemental Terms"). The Service Provider may be presented with certain Supplemental Terms from time to time. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
- c) Assignment. Neither Party shall assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party; provided that TruZen may assign or transfer this Agreement or any or all of its rights or obligations under this Agreement from time to time without consent (a) to an affiliate or successor; or (b) to an acquirer of all or substantially all of TruZen's business, equity, or assets.
- d) Non-Waiver. No Party shall be deemed to have waived any provision of this Agreement or the exercise of any rights held under this Agreement unless such waiver is made expressly and in writing. Waiver by any Party of a breach or violation of any provision of this Agreement shall not constitute a waiver of any other subsequent breach or violation.
- e) Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
- f) Governing Law. This Agreement and the rights and obligations of the Parties hereto shall be governed by and construed in accordance with the laws of the State of Washington, without regard to its conflicts of laws' provisions. The Parties consent to the exclusive personal jurisdiction of the federal and state courts located in King County, Washington, as applicable, for any matter arising out of or relating to this Agreement.
- g) Dispute Resolution. The Parties shall first attempt to resolve any dispute arising out of or relating to this Agreement informally amongst themselves or through formal mediation. If the Parties cannot resolve a conflict amongst themselves, then the matter shall be resolved by binding arbitration. Arbitration will be before a single arbitrator that the Service Provider elects from a list of 3 arbitrators provided by TruZen. Arbitration will be performed under the rules adopted by the American Arbitration Association at the time a claim is filed with an arbitrator. Arbitration will take place in Seattle, Washington. An arbitration judgment may be entered into and enforced by a court of competent jurisdiction, which judgment shall include the costs and attorneys' fees for the prevailing Party at arbitration.
- h) Attorneys' Fees. If a Party seeks to enforce its rights under this Agreement through legal proceedings including arbitration, the non-prevailing Party shall pay all costs and expenses incurred by the prevailing Party, including, without limitation, attorneys' fees.
- i) Severability. If an adjudicator holds that any provision of this Agreement is illegal, invalid, or unenforceable then (1) that provision will be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and (2) this Agreement's remaining provisions shall not be affected.
- j) Headings. The section headings herein are for reference purposes only and shall not otherwise affect the meaning, construction, or interpretation of any provision of this Agreement.
- k) Notices. Any notice delivered by TruZen to the Service Provider under this Agreement will be delivered by email to the email address associated with Service Provider's account or by posting on the portal available to the Service Provider on the Platform and be effective the date TruZen emails or posts the notice. Any notice delivered by the Service Provider to TruZen under this Agreement will be delivered by contacting TruZen at email@example.com and be effective the date the Service Provider receives confirmation of TruZen's receipt.
- l) Entire Agreement. This Agreement, together with any other documents or exhibits incorporated herein by reference, constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous agreements concerning such subject matter, whether written or oral.
- m) Counterparts; Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.