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Scoop Hybrid Workforce Terms of Service

EFFECTIVE AUGUST 4TH, 2021

Please read this Scoop Hybrid Workforce Terms of Service (the "Agreement") carefully as it governs and forms a contract between you ("Customer," "You" or "Your") and Scoop Technologies, Inc. (“Scoop”).

IF CUSTOMER REGISTERS FOR A FREE TRIAL OF WORKPLACE PLANNER SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. IF CUSTOMER REGISTERS FOR THE SCOOP COMMUTE PROGRAM THE TERMS OF THE SCOOP COMMUTE PROGRAM ADDENDUM ("COMMUTE ADDENDUM") WILL GOVERN PARTICIPATION IN THE SCOOP COMMUTE PROGRAM. THE COMMUTE ADDENDUM IS INCORPORATED INTO AND MADE A PART OF THIS AGREEMENT (see: Commute Program Addendum)

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BUTTON INDICATING YOUR ACCEPTANCE, AGREEING TO AN ORDER THAT REFERENCES THIS AGREEMENT, OR THROUGH ANY OTHER MANUAL OR ELECTRONIC ACT OF ACCEPTANCE, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE WORKPLACE PLANNER.

This Agreement was last updated on August 4, 2021. It is effective between Customer and Scoop as of the date of Customer's acceptance of this Agreement.

1. Definitions

“Affiliate(s)” means any person, firm, trust, partnership, corporation, company or other entity or combination thereof, which directly or indirectly, Controls the subject entity, is Controlled by the subject entity, or is under common Control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership of more than 50% of the voting interests of the subject entity.

“Aggregate Data” means all anonymous, aggregated content, data, statistics, and other information generated by the Workplace Planner which may include Customer Content, provided that no such information will directly identify and cannot reasonably be used to identify Customer or Customer’s Users.

“Customer Content” means all electronic data or information submitted by or on behalf of Customer to the Workplace Planner.

“Documentation” means Scoop’s then-current guides and manuals describing the use and operation of the Workplace Planner that Scoop makes generally available for the Workplace Planner.

"Hybrid Workforce Platform" or “Workplace Planner” means the generally available web-based, on-line, hosted software listed on an Order including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that Scoop releases to its customers generally.

“Malicious Code” means viruses, worms, time bombs, Trojan horses, malware, and other harmful or malicious code, files, scripts, agents or programs.

“Order” means the order for Customer’s purchase from Scoop that both parties sign, or otherwise agree to in an online ordering process.

“Subscription Term” means the period of time that Customer may use and access the Workplace Planner as set forth in the applicable Order.

“Users” means individuals who are authorized by Customer to use the Workplace Planner and who have been supplied user identifications and passwords by Customer (or by Scoop at Customer’s request).

2. Services

    2.1 Provision. Subject to the terms and conditions of this Agreement, Scoop shall provide to Customer during each Subscription Term a non-exclusive and nontransferable right to (a) access and use of the Workplace Planner via the internet, and (b) use of the Documentation. Customer’s purchase of subscription(s) for the Workplace Planner is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Scoop with respect to future functionality or features. Customer may participate in the Scoop Commute Program according to the terms of the Commute Addendum.

    2.2 Restrictions. The rights granted in Section 2.1 above are conditioned upon Customer’s compliance with the terms and conditions of this Agreement. Customer may use the Workplace Planner solely for Customer’s own internal business purposes, in compliance with applicable law. Customer shall not: (a) permit any third party to access the Workplace Planner except as permitted herein or in an Order, (b) license, sublicense, sell, resell, rent, lease, transfer, distribute, use the Workplace Planner for commercial time sharing, outsourcing or otherwise commercially exploit the Workplace Planner; (c) create derivative works based on the Workplace Planner; (d) modify, reverse engineer, translate, disassemble, or decompile the Workplace Planner, or cause or permit others to do so; (e) copy, frame, or mirror any content forming part of the Workplace Planner, other than on Customer’s own intranets or otherwise for Customer’s own internal business purposes; (f) access the Workplace Planner in order to (1) build a competitive product or service, or (2) copy any features, functions or graphics of the Workplace Planner; and (g) remove any title, trademark, copyright and/or restricted rights notices or labels from the Workplace Planner or Documentation.

    2.3 Third Party Products and Services. Third parties might make products or services which are not a part of the Workplace Planner available that integrate with or relate to the Workplace Planner, including professional services or other software applications. If Customer acquires or uses those third-party products or services, it does so separately from this Agreement, and any exchange of data between Customer and those third parties is solely between Customer and the applicable third-party provider. To allow Customer to use Workplace Planner features designed to interoperate with optional third-party applications, Customer might be required to provide proof of access to those third-party applications and to grant Scoop access to Customer’s account on those third-party applications or grant those applications access to Customer Content. Scoop may cease providing these features without entitling Customer to any refund, credit, or other compensation if, for example, the provider of a third-party application ceases to make the application available for interoperation with the corresponding Workplace Planner features on reasonable terms.

   2.4 Free Trial.

       (a) Scoop might offer access to the Workplace Planner on a free trial basis. If Customer registers for a free trial, Scoop may make the Workplace Planner available to Customer free of charge until the earlier of (1) the end of the free trial period for which Customer registered, (2) the beginning of a Subscription Term of a subscription ordered by Customer for Workplace Planner, or (3) termination by Scoop in its sole discretion. You will be charged the full amount of your subscription price on expiry of the free trial, unless you cancel at least 72 hours before the end of your free trial by emailing account@takescoop.com.

       (b) ALL CUSTOMER CONTENT SUBMITTED DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING THE WARRANTY, LIMITATION OF LIABILITY, AND INDEMNITY SECTIONS BELOW, DURING THE FREE TRIAL THE WORKPLACE PLANNER IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY. SCOOP HAS NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE WORKPLACE PLANNER FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE SCOOP’S LIABILITY WITH RESPECT TO THE WORKPLACE PLANNER PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, SCOOP AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (1) CUSTOMER’S USE OF THE WORKPLACE PLANNER DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, OR (2) CUSTOMER’S USE OF THE WORKPLACE PLANNER DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER IS FULLY LIABLE UNDER THIS AGREEMENT TO SCOOP AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE WORKPLACE PLANNER DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE WORKPLACE PLANNER DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE WORKPLACE PLANNER BEFORE MAKING A PURCHASE.

3. Use of Service

    3.1 Scoop’s Responsibilities.

        (a) Scoop shall use commercially reasonable efforts to make the Workplace Planner available via the internet 24 hours a day, 7 days a week, except for: (1) planned downtime (of which Scoop shall give advance electronic notice as provided in the Documentation), and (2) any unavailability caused by circumstances beyond Scoop’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, epidemic, pandemic, act of terror, strike or other labor problem (other than one involving Scoop’s employees), general unavailability of Internet service or infrastructure, failures of non-Scoop products or services, or denial of service attacks.

        (b) Scoop shall routinely backup (not less frequently than once-per-day) all Customer Content and use industry standard security measures to maintain Users’ login information (e.g., User IDs and passwords) for the Workplace Planner in confidence. With respect to all storage, backup, and archival media containing Customer Content, Scoop shall (1) physically store it in a secure area (2) logically separate it from any other customer’s data and (3) protect it by industry standard encryption methods.

    3.2 Customer’s Responsibilities. Customer is responsible for Users’ compliance with this Agreement and for Customer Content. Customer shall not (1) use the Workplace Planner to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (2) use the Workplace Planner to store or transmit Malicious Code, (3) interfere with or disrupt the integrity or performance of the Workplace Planner, or third party data contained therein, or (4) attempt to gain unauthorized access to the Workplace Planner or its related systems or networks. Any conduct by Customer that in Scoop’s discretion restricts or inhibits any of Scoop’s other customers from using or enjoying the Workplace Planner is expressly prohibited. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Workplace Planner, and notify Scoop promptly of any such unauthorized access or use. Customer is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Workplace Planner and all charges related thereto.

    3.3 Users. Customer may designate its employees, consultants, contractors and agents, Affiliates, or third parties with whom Customer transact business as a User. User subscriptions are for designated individuals and Customer shall not share a User subscription with more than one individual, but Customer may reassign a User subscription to a new individual replacing a former User who no longer requires ongoing use of the Workplace Planner.

    3.4 Data Security. Scoop will use commercially reasonable efforts to comply with industry standard security measures with respect to personnel, facilities, hardware and software, storage and networks, access controls, monitoring and logging, vulnerability and breach detection, incident response, encryption, and other organizational and technical measures necessary to protect against unauthorized or accidental access, loss, alteration, disclosure, or destruction of sensitive data in its possession, as well as with all applicable data privacy and security laws, regulations, and standards.

    3.5 Personal Information, California. Customer may submit to the Workplace Planner information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person who is a resident of California, or with their household (“Personal Info”), and all such information shall be deemed Confidential Information. Scoop shall not retain, use, or disclose the Personal Info for any purpose other than for the specific purpose of providing Workplace Planner specified in this Agreement. Scoop shall not further collect, sell, or use the Personal Info except as necessary to provide the Workplace Planner specified in this Agreement. Scoop shall delete the Personal Info from its records upon request by Customer, unless it is otherwise necessary to retain such information under applicable law. The provision of Personal Info is not a component of the exchange of consideration in this Agreement, and therefore the provision of Personal Info is not a sale of such information. Scoop shall not sell the Personal Info. Scoop hereby certifies that it understands the restrictions on the sale, retention, use, and disclosure of Personal Info herein and as set forth in applicable law, and will comply.

4. Fees

    4.1 Payment. Unless otherwise listed in an Order, Customer shall pay Scoop up front via credit card all applicable fees in U.S. Dollars in accordance with the terms listed on the Order.  Customer shall provide accurate payment information, and hereby authorize Scoop to charge such credit card for all fees set forth in the Order for the duration specified therein (and any renewal thereof). Scoop may bill: (1) in advance; (2) at the time of purchase; (3) shortly after purchase; or (4) if Customer has elected a subscription service, on a recurring basis. To the extent Scoop has not received Customer’s payment, in order to bring Customer’s account up to date, Scoop may bill Customer simultaneously for both past due and current amounts.  If Customer does not provide a notice of non-renewal, Scoop may automatically renew the Workplace Planner in accordance with Section 12 and charge Customer for the renewal fees. The subscription fees set forth in each Order hereunder are fixed during the Subscription Term of such Order, and are quoted in U.S. dollars. Customer may purchase an upgrade to its subscription tier during a Subscription Term at the rate specified in the applicable Order, prorated to the remainder of the Subscription Term. All fees are based on services purchased and not actual usage, payment obligations are non-cancelable, and fees paid are non-refundable. If Customer does not pay fees when due (and has not provided an accurate and authorized payment method for Scoop to charge), Scoop may add late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Customer shall reimburse Scoop for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by Scoop in the collection of overdue amounts.

    4.2 Taxes. If Scoop has the legal obligation to pay or collect taxes for which Customer is responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of Scoop’s performance under this Agreement, Scoop shall charge the appropriate amount to Customer. Customer shall pay all applicable taxes, unless Customer provides Scoop with a valid tax exemption certificate authorized by the appropriate taxing authority.

    4.3 Suspension of Services. If any amount owed by Customer is 30 days or more overdue, Scoop may, without limiting Scoop’s other rights and remedies, suspend access to the Workplace Planner until Customer pays such amounts owed. Scoop will not suspend access to the Workplace Planner to the extent the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute. Customer remains obligated to pay Scoop for all fees due that are not under reasonable and good faith dispute. The parties shall work together expeditiously and in good faith to resolve all fee disputes.

5. Intellectual Property Rights

    5.1 General. All right, title, and interest in and to the Workplace Planner, Aggregate Data, Scoop’s Confidential Information, and Documentation, including, without limitation, all modifications, enhancements, derivative works and intellectual property rights thereto shall belong solely to Scoop and/or its applicable suppliers.

    5.2 Reserved Rights. Scoop does not grant any rights in and to the Workplace Planner except as expressly written in this Agreement. Nothing in this Agreement shall limit in any way Scoop’s right to develop, use, license, create derivative works of, or otherwise exploit the Workplace Planner or to permit third parties to do so.

    5.3 Ownership of Customer Content. Customer exclusively owns all right, title and interest in and to Customer Content. In the event of termination or expiration of this Agreement or any applicable Order, and if legally permissible and requested by Customer within 30 days of such termination or expiration, Scoop will (1) return Customer Content, or (2) destroy or permanently erase Customer Content. After such 30-day period. Scoop will have no other further obligation to maintain or provide access to Customer Content.

    5.4 License to Scoop. Customer hereby grants, and shall grant, to Scoop a worldwide, royalty-free, non-exclusive, perpetual right to access, use, reproduce and prepare derivative works based on Customer Content for the purpose of providing the Workplace Planner, to improve or enhance the Workplace Planner, and to compile, use and disclose Aggregate Data. Customer is responsible for ensuring that it has obtained all necessary third-party consents and made all required disclosures to enable the foregoing grant.

    5.5 Suggestions. Customer or its representatives may provide Scoop with suggestions, enhancement requests, recommendations or other feedback relating to the Workplace Planner (“Feedback”). Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Scoop’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, or require Scoop to compensate or credit Customer or the individual providing such Feedback.

6. Branding

   6.1 Name. Scoop may use Customer’s name to identify Customer as a Scoop customer of the Service, including on Scoop’s public website and marketing material. Scoop agrees that any such use shall be subject to Scoop complying with any written guidelines that Customer may deliver to Scoop regarding the use of its name and shall not be deemed Customer’s endorsement of the Service.

   6.2 Logo. Scoop may use Customer’s logo to identify Customer as a Scoop customer of the Service, including on Scoop’s public website and marketing material. Scoop agrees that any such use shall be subject to Scoop complying with any written guidelines that Customer may deliver to Scoop regarding the use of its name and shall not be deemed Customer’s endorsement of the Service.

7. Confidentiality

    7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “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, including the terms and conditions of this Agreement. Scoop’s Confidential Information includes this Agreement, Aggregate Data, the Workplace Planner, business and marketing plans, technology, financial and technical information, product designs, and business processes. Customer’s Confidential Information includes Customer Content. Confidential Information (except for Customer Content) does not include any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (4) is received from a third party without breach of any obligation owed to the Disclosing Party.

    7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.

    7.3 Protection. The Receiving Party shall protect the confidentiality of the Disclosing Party’s Confidential Information it receives in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). Scoop shall notify Customer promptly in the event a security breach related to Customer Content.

    7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

    7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party may, in addition to any other remedies available to it, seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

8. Representations and Warranties

   8.1 Mutual Warranties. Each party represents and warrants that (a) it has the legal power to enter into this Agreement, and (b) it will not transmit to the other party any Malicious Code.

    8.2 Disclaimer. THE WORKPLACE PLANNER IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

9. Limitation of Liability

    9.1 Consequential Damages. NEITHER PARTY IS LIABLE FOR ANY LOST PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, OR THE WORKPLACE PLANNER, EVEN IF EITHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    9.2 Limitation of Liability. SCOOP’S AGGREGATE LIABILITY TO CUSTOMER FOR CLAIMS RELATING TO THIS AGREEMENT OR THE WORKPLACE PLANNER, WHETHER FOR BREACH OF CONTRACT OR IN TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO THE GREATER OF (a) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SCOOP HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY BEFORE THE CLAIM WHICH GAVE RISE TO THE LIABILITY OR (b) THE ANNUALIZED SUBSCRIPTION VALUE AT THE TIME OF SUCH CLAIM. THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. Mutual Indemnification

    10.1 Indemnification by Us.

        (a) Subject to this Agreement, Scoop shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Workplace Planner as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer (1) promptly gives written notice of the Claim to Scoop; (2) gives Scoop sole control of the defense and settlement of the Claim (provided that Scoop may not settle or defend any Claim unless Scoop unconditionally release Customer of all liability); and (3) provides to Scoop, at Scoop’s cost, all reasonable assistance.

        (b) In the event Scoop is required to indemnify Customer in accordance with Section 10.1, or if Scoop reasonably believes the Workplace Planner may infringe a third party's intellectual property rights, then Scoop may (1) modify the Workplace Planner so that it no longer infringes without materially adversely affecting its operation, or materially altering its capacity or performance, (2) obtain a license for Customer’s continued use of the Workplace Planner, and/or (3) remove the infringing component from the Workplace Planner without materially adversely affecting its operation, or materially altering its capacity or performance. If, despite Scoop’s commercially reasonable efforts to do so, the foregoing options are not reasonably practicable, then Scoop may terminate this Agreement, in which case Scoop shall issue to Customer a refund of all prepaid fees covering the remainder of the then-current Subscription Term(s) from the point in time when Customer were unable to make use of the Workplace Planner due to the third-party infringement claim.

        (c) Scoop is not liable for any Claim under Section 10.1 to the extent such liability is the result of (1) modifications to the Workplace Planner by anyone other than Scoop or Scoop’s agents (and where Scoop or Scoop’s agents made the modifications using requirements, documents, written specifications or other written materials submitted by Customer or Customer’s agents or representatives, Scoop is also not liable); (2) the use or combination of the Workplace Planner with any other item not provided by Scoop where in the absence of such use or combination, the Workplace Planner alone would not have given rise to the Claim; or (3) Customer’s continued use of an infringing version of the Workplace Planner when the then-current version of the Workplace Planner has been modified to be non-infringing.

    10.2 Indemnification by Customer.

        (a) Subject to this Agreement, Customer shall defend, indemnify and hold Scoop harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Scoop by a third party (1) alleging that Customer Content, or Customer’s use of the Workplace Planner in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; or (2) arising from Customer’s violation of applicable laws, including those regarding the collection and use of employee personal or health information.

        (b) Scoop shall (1) promptly give written notice of the Claim to Customer; (2) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Scoop of all liability); and (3) provide to Customer, at Customer’s cost, all reasonable assistance.

        (c) 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.

11. Access and Monitoring.

    11.1 Scoop may access Customer’s account and Customer Content as necessary to identify or resolve technical problems or respond to complaints about the Workplace Planner. Without limiting the foregoing and with two days prior written notice, Scoop may remove any material submitted to the Workplace Planner that Scoop finds to be in violation of the provisions hereof.

12. Term and Termination

    12.1 Term of Agreement. This Agreement terminates when all Subscription Terms expire or all Orders are otherwise terminated.

    12.2 Renewal. Each Order shall automatically renew for additional Subscription Terms of the same duration as the immediately preceding Subscription Term (but no less than 30 days), unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. To be valid, Customer’s notice of non-renewal must be delivered to Scoop Care at account@takescoop.com. For each automatic renewal, per-unit subscription pricing will increase by no more than 10% as compared to the prior term unless Scoop provides Customer with notice of different pricing at least 30 days prior to the applicable renewal. A new Order is not required unless additional or different services are ordered.

    12.3 Termination. A party may terminate this Agreement or any Order for cause (a) upon 30 days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period; (b) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (c) as otherwise provided herein.

    12.4 Effects of Termination. Upon any expiration or termination of this Agreement, and upon expiration of the Subscription Term if Customer does not renew in accordance with Section 12.2, the rights and licenses granted hereunder will automatically terminate, and Customer may not continue to use the Workplace Planner. If the Agreement is terminated based upon Scoop’s uncured material breach, Scoop shall refund to Customer any prepaid fees covering the remainder of Customer’s Subscription Term after the date of such termination. If the Agreement is terminated based on Customer’s uncured material breach, Customer shall pay any unpaid fees covering the remainder of the Subscription Term(s) of all Orders after the effective date of such termination. Termination of this Agreement shall not limit the parties from pursuing any other remedies available to it, including injunctive relief.

13. Miscellaneous

    13.1 General. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

    13.2 Severability. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.

    13.3 Assignment. Neither party may assign this Agreement in whole or in part without the other party’s prior written consent (which consent will not be unreasonably denied, delayed or conditioned), except to an affiliate or a successor in connection with a merger or sale of all or substantially all of a party’s assets or stock.

    13.4 Entire Agreement. This Agreement (including the Commute Addendum) represents the entire agreement between Customer and Scoop with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Scoop with respect thereto.

    13.5 Breach and Waiver; Amendment. Except as otherwise provided herein, this Agreement may be amended only by a writing signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order, the terms of the Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or in any other ordering documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms shall be null and void. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.

    13.6 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

    13.7 Federal Government End Use Provisions. Scoop provides the Workplace Planner, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Workplace Planner include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). In the event that a government agency may need rights not conveyed under these terms, it must negotiate with Scoop to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

    13.8 Governing Law. The laws of the State of California govern this Agreement, excluding its conflicts of law rules. The parties consent to the exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

    13.9 Notices. Scoop will provide notices under the agreement to Customer by sending an email to the email address Customer provided in the Order ("Notification Email Address"). Customer will provide notices under this Agreement to Scoop by sending an email to account@takescoop.com. Notice will be treated as received when the email is sent.  Customer is responsible for keeping its Notification Email Address current through the Term. The parties may use emails to satisfy written approvals and consent requirements under this Agreement.