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This Wraps and Bids Service Provider Agreement ("Agreement") is a legal agreementbetween you ("Service Provider") and DataMantis LLC d/b/a Wraps and Bids, a Texas limitedliability company with its principal office located at 5900 Balcones Dr., Ste. 100, Austin, TX78731 ("Company"), governing Service Provider’s access to and use of the Wraps and Bidsplatform ("Platform"). By accessing or using the Platform, Service Provider agrees to bebound by the terms of this Agreement.
IF SERVICE PROVIDER DOES NOT AGREE TO THESE TERMS, SERVICE PROVIDER MAY NOTACCESS OR USE THE PLATFORM.
1.1 License Grant
Company grants Service Provider a limited, non-exclusive, non-transferable, revocablelicense to access and use the Platform for Service Provider’s internal business purposes inaccordance with this Agreement. Service Provider agrees to be bound by all agreementswhich constitute Company’s or Wraps and Bids’ Terms of Service, and Service Provideragrees that the “Terms of Service” means all agreements referenced herein and includes theTerms of Service, Privacy Policy, and Terms of Use (“TOU”).
Service Provider agrees that it will not do any of the following:
(a) sublicense, sell, rent, lease, or distribute access to the Platform;
(b) reverse-engineer, decompile, disassemble, or attempt to derive the source code of thePlatform, or otherwise attempt to discover the underlying ideas, algorithms, or proprietaryaspects of the Platform;
(c) make any derivative work from the Platform by any modification, attempt at enhancementor improvement, adaptation, or other means;
(d) use the Platform for any unlawful purpose;
(e) access or use the Platform in a manner that violates applicable laws, regulations,Company’s rights, or any third-party’s rights;
(f) use the Platform to create deceptive content, including but not limited to prompting orgenerating data which indicates factual occurrences which have not actually occurred(absent conspicuous marking, whether by disclaimer, watermark, or metadata);
(g) cause damage to the Platform, whether via malware, network interference, overloading,spamming, interfering with others’ use of the Platform, or otherwise; and
(h) use the Platform to create a competing product or service.
1.3 Content Acknowledgement
Service Provider acknowledges and agrees that Company may collect, store, and use dataabout or derived from Service Provider, or other users of the Platform, to the extent permittedby applicable law, including, but not limited to, the purposes of improving the Platform ormonitoring and maintaining it.
1.4 Nonexclusive Remedies
Service Provider’s violation of the restriction in this section shall entitle Company to take avariety of actions, including but not limited to restriction of Service Provider’s access to partor all the Platform.
2.1 Ownership
The Platform, including but not limited to all software, code, algorithms, text, graphics, logos,designs, Service Provider interfaces, and other content, is owned by Company and protectedby copyright, trademark, and other intellectual property laws.
2.2 Prohibited Uses
Service Provider may not reproduce, modify, adapt, distribute, or display any part of thePlatform without prior written permission from Company. Any unauthorized use constitutesa violation of applicable copyright laws and this Agreement.
2.3 Open-Source Components
Service Provider acknowledges and accepts that the Platform may include open-sourcecomponents and or licenses from third parties that govern the use of such components, and Service Provider agrees to fully comply and be bound to all such licenses, duties, and obligations related there to.
2.4 Service Provider Content
By accessing and/or interfacing with the Platform, Service Provider grants Company aperpetual, irrevocable, worldwide, non-exclusive, royalty-free, license to use, adapt, createderivative works, distribute, edit, incorporate, modify, publish, sublicense, transfer,translate, sublicense, date inputted into the Platform or derived therefrom. Company shallhave the right to utilize such data, in whatever form, for any legal purpose and in any form, whether presently existing or developed in the future. Service Provider waives all “moralrights” to such data.
2.5 Links
Service Provider acknowledges and agrees that through its use of the Platform or Company’s services, that it may be provided with access or links the third-party content or sites overwhich Company has no control and for which Company shall have no liability to ServiceProvider, and as such Service Provider, via its use of the Platform and/or services, waives and relieves Company of all liability with regard to Service Provider’s access to and use of any third-party site, materials, or data.
3.1 Account Security
Service Provider is responsible for maintaining the security its account, including itscredentials (i.e. username and password) and for all activities that occur under ServiceProvider’s account. Service Provider shall keep its account information up to date with Company. In the event that Service Provider becomes aware of, or suspects, any issuerelating to the integrity and security of its account that it will immediately provide notice to Company in writing. Service Provider is prohibited from sharing or disclosing its username and/or password for the Platform to any third-party.
3.2 Compliance
Service Provider agrees to use the Platform in compliance with all applicable laws, rules, andregulations.
3.3 Infringement Acknowledgement
Company and Service Provider agree and acknowledge that in the event of a third-partyclaim that the Service Provider’s use of the Platform infringes on any third party’s intellectual property rights, that Service Provider, and not Company, will be responsible for all activityand costs related to investigation, defense, settlement, resolution, and payment on anyclaim of intellectual property infringement. Service Provider agrees to notify Company inwriting of any asserted claim relating to its use of the Platform.
3.4 Equipment
Service Provider is solely responsible for ensuring the compatibility of its own systems withthe Platform, including but not limited to hardware and software, internet access, browsers, electricity, and physical requirements.
3.5 Responsibility for Use of Platform and Platform-derived Data
Service Provider acknowledges and agrees that Company shall not be responsible forService Provider’s utilization of any data derived from the Platform or any interpretationthereof. No obligation or liability shall be imposed upon Company based upon data providedto Service Provider via the Platform, and Service Provider shall be solely responsible for anyconsequences arising out of Service Provider’s usage, or publication, of data generated fromthe Platform.
While the Company endeavors to provide accurate and reliable information through its Platform, SERVICE PROVIDER ACKNOWLEDGES THAT THE INFORMATION PROVIDED BYTHE COMPANY’S SERVICES MAY NOT ALWAYS BE ACCURATE, COMPLETE, OR UP TO DATE. The Company disclaims all liability for errors or omissions, for any reliance Service Provider places on the information provided through the Platform, and for any and all losses or damages resulting there from.
5.1 Subscription Fees
Service Provider’s access to the Platform may require payment of subscription fees, asoutlined in Service Provider’s order form or Terms of Service, which are incorporated here in, and may be updated by Company from time to time.
5.2 Payment Terms
Payments are due in accordance with the terms specified during Service Provider’s FeeAgreement. Failure to pay fees may result in suspension or termination of Service Provider’s access to the Platform.
Service Provider agrees to maintain the confidentiality of any non-public information disclosed by Company to Service Provider in connection with Service Provider’s access to,or use of, the Platform.
7.1 Termination by Company
Company may terminate this Agreement or suspend Service Provider’s access to thePlatform at any time if Service Provider violates its terms. Company retains the sole and absolute discretion to terminate this Agreement for any reason or no reason and restrict access to the Platform.
7.2 Effect of Termination
Upon termination, Service Provider must immediately cease using the Platform and Company may immediately suspend or terminate access to the Platform.
8.1 DISCLAIMER OF WARRANTIES
SERVICE PROVIDER ACKNOWLEDGES AND AGREES THAT THE PLATFORM IS PROVIDED "ASIS" AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ASTHEY ARE ALL DISCLAIMED BY COMPANY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ORTHAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. SERVICE PROVIDER’S ACCESS TO THE PLATFORM AND USE THEREOF ARE AT ITS SOLE RISK AND DISCRETION. COMPANY DISCLAIMS AND MAKES NO WARRANTY AS TO ACCESS TO THE PLATFORM, SERVICE PROVIDER’S UNINTTERRUPED USE THEREOF, OR DATA DERIVED THERE FROM.
8.2 LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY SHALL NOT BE LIABLE FORANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM, INCLUDING BUT NOT LIMITEDTO DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR DATA LOSS, EVEN IFADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE TOTAL LIABILITY OF THE COMPANY EXCEED THE AMOUNTS PAIDBY SERVICE PROVIDER TO THE COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THEEVENT GIVING RISE TO THE CLAIM.
8.3 INDEMNIFICATION
SERVICE PROVIDER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS COMPANY(INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS ANDPERMITTED ASSIGNS) FROM AND AGAINST ANY AND ALL LOSSES ARISING OUT OF OR INCONNECTION WITH ANY OF (I) THE INJURY OF OR DAMAGE TO ANY PERSON OR REAL ORTANGIBLE PERSONAL PROPERTY TO THE EXTENT SUCH INJURY OR DAMAGE ISPROXIMATELY CAUSED BY THE NEGLIGENCE, ACTIONS OR INACTIONS OF SERVICEPROVIDER OR SERVICE PROVIDER'S EMPLOYEES OR AGENTS, (II) SERVICE PROVIDER'SBREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN, (III) THE RELIABILITY ACCURACY OR LEGITIMACY OF DATA ENTERED INTO THE PLATFORM OR GENERATED BY IT(IV) THE SERVICE PROVIDER'S ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, AND (V) SERVICE PROVIDER'S WILLFUL MISCONDUCT, INTENTIONAL ACTIONS,NEGLIGENT ACTIONS, AND/OR BREACH OF THIS AGREEMENT.
9.1 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law principles.
9.2 Dispute Resolution
Any disputes arising under this Agreement shall be resolved through the dispute resolution procedures outlined in the TOU. Each party shall bear its own costs and attorney's fees,unless otherwise awarded based on the law.
10.1 Entire Agreement
This Agreement, with its incorporated Terms of Service materials, constitutes the entire agreement between Service Provider and Company regarding the Platform and supersedes all prior agreements.
10.2 Amendments
Company reserves the right to modify this Agreement at any time. Continued use of the Platform after changes are posted constitutes Service Provider’s acceptance of the modified terms.
10.3 Severability
If any provision of this Agreement is held to be invalid or unenforceable for any reason, theremaining provisions will continue in full force without being impaired or invalidated in anyway. Company and Service Provider agree to replace any invalid provision with a validprovision, which most closely approximates the intent and economic effect of the invalidprovision. Headings are used for convenience only and in no way define, limit, construe ordescribe the scope or extent of any section, or in any way affect this Agreement. Anapplicable authority determining the unenforceable aspect of the agreement shall ‘bluepencil’ such provision consistent with this paragraph.
10.4 No Waiver
Failure by the Company to enforce any provision of this Agreement shall not constitute awaiver of its rights under that provision or any other provision.
10.5 Force Majeure
Company shall not be responsible for any breach of this Agreement or otherwise be heldliable to Service Provider for any delay in performance, or non-performance, of itsobligations under this agreement which are caused by or due to, in whole or in part, acts ofGod, labor disputes, weather, riot, disaster, pandemic, governmental restrictions,emergencies, terrorism, or other occurrence outside the reasonable control of Company.
BY (1) ACCESSING THE PLATFORM, (2) SIGNING THIS AGREEMENT, OR (3) CLICKING ANAGREE BUTTON OR LINK REGARDING THIS AGREEMENT, SERVICE PROVIDERACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THIS AGREEMENT AND AGREESTO BE BOUND BY ITS TERMS.
This Wraps and Bids Service Provider Fee Agreement (“Fee Agreement”) is issued pursuantto the Wraps and Bids Service Provider Agreement (“Agreement”) between Service Provider(“Service Provider”) and DataMantis LLC d/b/a Wraps and Bids (“Wraps and Bids”). ThisFee Agreement is subject to the terms and conditions contained in the Agreement betweenthe parties and is made a part thereof. Any term not otherwise defined herein shall have themeaning specified in the Agreement. In the event of any conflict or inconsistency betweenthe terms of this Fee Agreement and the terms of the Agreement, the terms of this FeeAgreement shall govern and prevail, unless otherwise stated.
WHEREAS Service Provider and Wraps and Bids desire to further describe for one anotherthe scope of certain work under the Agreement and payment terms applicable thereto.
The Services performed pursuant to this Fee Agreement shall commence on ServiceProvider’s application approval date to join Wraps and Bids marketplace and shall continuethrough the term of the Agreement unless terminated prior in accordance with the terms ofthe Agreement or this Fee Agreement.
Platform Services consists of any of the following services:
During the Term of the Agreement and this Fee Agreement, and only so long as ServiceProvider is current on its obligations to Wraps and Bids (including payment), Wraps and Bidsagrees to provide the following to Service Provider:
Wraps and Bids will provide such Platform Services specifically outlined in the Fee Schedulebelow on an "as-is" and on an "as available” basis.
Service Provider represents and warrants to Wraps and Bids that:
It is capable of and will fully comply with the Agreement, Fee Agreement, and all applicable Terms of Service, Terms of Use, and obligations arising under policies of Wraps and Bids,including as they may be amended in Wraps and Bids’ sole and absolute discretion from timeto time.
Service Provider agrees to pay all fees called for by the Agreement (including, but not limited to this Fee Agreement) as well as the following:
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