Description

By completing your purchase you become the “Subscriber” and agree to the following:

SUBSCRIBER AGREEMENT

 

THIS SUBSCRIBER AGREEMENT (this “Agreement”) and is entered into as of the       day of                                     , 20      (“Effective Date”), by and between The Good Couch LLC, a Colorado limited liability company, (“TGC”), and                                                                     (“Subscriber”).  TGC and Subscriber are sometimes referred to herein individually as a “Party” or collectively as the “Parties”.

 

WHEREAS, TGC has developed a system for sourcing and reselling used couches and similar furniture (collectively “Products”), including, but not limited to, software and a website for collecting and managing data regarding sources of used couches, best practices regarding resale of couches, product management, order management, lead generation and such other functions as TGC may add from time to time (collectively, the “Website”); and

 

WHEREAS, Subscriber desires to access the Website, on and subject to the terms and conditions set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises, covenants and undertakings cited herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1.                  Terms of Use.  On and subject to the terms and conditions set forth in this Agreement, TGC shall allow Subscriber to access to the Website in exchange for payment of the fees set forth in Section 4, below.  Each Party agrees that during the term of this Agreement it shall maintain (a) commercially reasonable safeguards against the unauthorized destruction or alteration of any information on its computer systems, (b) commercially available, network-based virus protection software to protect its data, software, and computer and telecommunications hardware, and (c) such other protections as are reasonably necessary to protect the Website and access thereto.  Subscriber shall cause all persons who use the Website on its behalf to agree to and comply with TGC’s Website Terms and Conditions (Subscriber) (in the form attached hereto as Exhibit A, subject to modification from time to time in TGC’s sole discretion, in accordance with the terms thereof), any terms and conditions generally applicable to users of the Website and any privacy policy or other policies posted on the Website and applicable to users of the Website.  TGC reserves the right to modify such terms, conditions and policies at any time in its sole discretion.  TGS further reserves the right to terminate access to the Website for any person who fails to agree to, or fails to comply with any such terms, conditions or policies.

 

2.                  Website; Service.

 

2.1              Website.  TGC will use commercially reasonable efforts to maintain the Website in accordance with the terms and conditions of this Agreement.  As of the Effective Date, the Website will include the functions set forth in the recitals to this Agreement as well as functions for Subscriber to sell Products to retail customers and for Subscriber to arrange pick-ups of Products to be resold by Subscriber.  TGC may modify or remove any Website function at TGC’s sole discretion upon not less than thirty (30) days’ prior written notice to Subscriber.   Any additional services outside of the standard Website functions may be provided by TGC to Subscriber subject to a mutually acceptable written agreement executed by TGC and Subscriber governing such additional services.  The Website may contain links to other sites and resources provided by third parties.  These links are provided for convenience only. TGC has no control over the content of those sites or resources, and accepts no responsibility for them or for any loss or damage that may arise from Subscriber’s use of them. If Subscriber decides to access any of the third-party websites linked to on the Website, Subscriber does so entirely at its own risk and subject to the terms and conditions for such websites.  TGC is not responsible for any errors on the Website.

 

2.2              Hardware and Software; Connectivity.  Subscriber is responsible, at its sole expense, for selecting, procuring, installing, configuring, testing, operating, maintaining, and supporting all of the following, to the extent required for Subscriber to connect to the Website: (a) hardware (e.g., computer systems), (b) software (e.g., operating systems, browsers, networking systems, telecommunications software, and third party software), and (c) Internet access, communication access lines and communications equipment (e.g., modems, routers or other access devices).

 

2.3              Backups. TGC is not responsible for the backup and storage of any data transformed, processed, stored, transmitted or received using the Website (collectively, “Data”), including, but not limited to any Data provided by Subscriber.  Subscriber shall be responsible for the adequate backup and storage of any Data provided or retrieved by Subscriber.  Similarly, Subscriber shall remain responsible for its own compliance with all Laws (as defined below) applicable to Subscriber’s use of any Data.  Subscriber shall not rely on TGC to satisfy Subscriber’s compliance with Laws relating to the maintenance, storage, and retention of such Data.  For purposes of this Agreement, the term “Laws” means all applicable laws, statutes, rules, regulations, decrees, ordinances, and all other legal requirements of any kind or nature issued by a governmental entity with appropriate jurisdiction that are applicable to and legally binding upon a Party (“Laws”).

 

2.4              Data.  All Data, including, but not limited to, Data uploaded to the Website by or on behalf of Subscriber (including, but not limited to, descriptions and images of Products) suppliers or customers shall become the property of TGC immediately upon being uploaded to the Website and may be used by TGC as it deems appropriate in its sole discretion.  Subscriber must comply with all Laws regarding data collection and maintenance of privacy and security of data, including obtaining the data owner’s consent where required by Law.  Subscriber acknowledges that the Data change rapidly and agrees that TGC shall have no liability for any claims, costs or other damages arising out of changes to any Data between the time Subscriber accesses Data using the Website and the time Subscriber makes use of such Data.  Subscriber further acknowledges that TGC is not able to, and does not, verify the accuracy, completeness or reliability of the Data and that TGC shall have no liability for any claims, costs or other damages arising out of any Data being inaccurate, incomplete or unreliable.  TGC cannot and does not assume any responsibility for Subscriber’s or any third party’s use or misuse of Data.  Without limiting the generality of the foregoing, TGC is not responsible for (a) the accuracy, reliability, timeliness, or completeness of any Data; or (b) the results that may be obtained from the use of the Website.

 

2.5              Website Protections.  Subscriber agrees that Subscriber will not:

 

• resell or mine any Data obtained through the Website;

 

• disassemble, decompile, reverse engineer, or modify any aspect of the Website;

 

• examine the Website with debugging, memory inspection, or disk inspection tools;

 

• use the Website for any unlawful or tortious purpose;

 

• bypass or breach any security device or protection used in the Website;

 

• use the Website in an abusive, obscene, offensive, harassing, inflammatory, discriminatory or otherwise objectionable manner;

 

• disable, circumvent, or interfere with the proper working of the Website or the security features the Website provides, or the features that limit copying or use of content on the Website;

 

• upload to the Website any viruses or files intended to harm the software or hardware of TGC or any third party;

 

• access the Website through the use of an automated system, including, but not limited to, robots, spiders, data mining, or similar methods;

 

• use the Website in any way that causes, or may cause, damage to the Website or impairment of the availability or accessibility of the Website; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;

 

• use the Website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software; or

 

• permit or assist any person to engage in any activity that Subscriber is prohibited from engaging in pursuant to this Agreement

 

2.6       Advertising.  At no additional cost to Subscriber, TGC shall provide such advertising services on behalf of Subscriber, in Subscriber’s Territory, as TGC reasonably deems necessary and appropriate.  TGC shall assign each Subscriber a geographic territory (each a “Territory”) which includes such Subscriber’s principal place of business.  Territories are non-exclusive and TGC may assign any number of Subscribers to each Territory.

 

3.                  Subscriber Operations.  Except as expressly set forth herein, TGC shall have no control or supervision over the manner in which Subscriber operates its business.  TGC grants to Supplier only those rights expressly stated herein.  TGC retains all other rights.

 

3.1       Operating Guidelines.  Subscriber agrees to conduct all purchases, sales and other interactions with suppliers and customers in strict compliance with the policies and procedures set forth in the Operating Guidelines attached hereto as Exhibit B.

 

3.2       Time and Attention.  Subscriber agrees to devote such time and attention to the operation of its business as may be reasonably necessary or appropriate to comply with this Agreement.

 

3.3       Complaints.  Subscriber shall promptly notify TGC of any complaints that Subscriber receives from any customer or supplier.

 

3.4       Records.  Subscriber shall maintain complete records of all purchases and sales of Products involving the Website, showing customer or supplier name, date of purchase or sale, Product(s) purchased or sold and prices paid or received.  Subscriber shall promptly upload all such records to the Website.

 

3.5       Reputation.  Subscriber acknowledges that the name and reputation of TGC constitute valuable assets of TGC.  Subscriber shall use its best efforts to maintain or enhance the reputation and acceptance of TGC’s name in all dealings with third parties.

 

3.6       Licenses; Permits.  Subscriber shall, at its expense, (a) obtain any licenses, permits and governmental approvals that may be necessary for the operation of its business, and (b) comply with any and all Laws applicable to Subscriber or the operation of its business.  Subscriber shall (i) prepare and file at its expense all reports required by any governmental body with jurisdiction over Subscriber, and (ii) pay all taxes and other similar charges imposed upon Subscriber as the same become due.

 

3.7       Pricing.  TGC shall set the prices for the services provided including, but not limited to pickup services and delivery services. Product pricing is dependent upon market demand and the subscriber’s discretion. TGC retains the right to remove any product based on price if the price is perceived at the sole discretion of TGC, to be harmful or damaging to the brand.

 

3.8       No Warranties.  Subscriber shall not provide any warranties to customers with respect to any Products purchased or sold using the Website.

 

3.9.      Waivers.  Subscriber must obtain a waiver from each person to whom Subscriber sells any Product(s) using the Website and from each person from whom Subscriber obtains any Product(s) using the Website.  Such waiver must contain a release of any potential claims against TGC and a consent to use of such person’s Data by TGC.

 

3.10     Use of Marks.  For purposes of this Agreement, the term “Marks” means any trademark, logo, product name, service mark or other commercial designation, whether or not registered, which TGC owns or has the right to use and sublicense.  Subscriber acknowledges that TGC is the exclusive owner or the authorized licensee of the Marks.  During the Term, TGC grants to Subscriber a royalty free, worldwide, non-exclusive, non-sublicensable license to use those Marks expressly designated by TGC as available for use by Subscriber (the “Licensed Marks”) solely for the purchase and sale of Products in strict compliance with the terms of this Agreement.  Subscriber will not have any license or right to use any Marks which are not Licensed Marks.  Subscriber will discontinue the display or use of any Licensed Marks or change the manner in which any Licensed Mark is displayed or used when requested to do so by TGC.  Subscriber will not use any Licensed Mark as part of the name under which the business of Subscriber is conducted without the prior written approval of TGC.

 

3.11     Non-Circumvention.  Subscriber agrees that, during the term of this Agreement, Subscriber shall not circumvent, avoid, evade or bypass, this Agreement in any way, or attempt to do any of the foregoing, or permit or assist any person to do any of the foregoing.

 

4.                  Payment.

 

4.1              Advertising Fees.  TGC agrees to pay for advertising and marketing each month in the subscriber’s territory equal to $200.00/ month during the entirety of the subscriber’s contract. Additional marketing and advertising may be requested and paid for entirely by the subscriber if approved by TGC.

 

4.2              Taxes. Subscriber will be solely responsible for any applicable sales, use, real, personal property, franchise or other like taxes based upon or measured by TGC’s fees or charges for providing the Website or any other good or service provided by TGC hereunder, excluding, however, taxes based upon TGC’s net income.  All fees and charges hereunder are net of any such taxes.

 

4.3              Invoices. Unless Subscriber provides a different contact via notice, TGC shall provide invoices to Subscriber at the address set forth in Section 12.14, below.

 

5.                  Intellectual Property.  The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), are owned by TGC, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.  As between TGC and Subscriber, TGC or its suppliers retain all worldwide right, title, and interest in and to all worldwide intangible legal rights or interests evidenced by or embodied in (a) any idea, design, concept, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, trade secrets, and know-how; (b) any work of authorship, including any copyrights, moral rights or neighboring rights; (c) any trademark, service mark, trade dress, trade name, or other indicia of source or origin; and (d) any other similar rights in any way related to or arising out of the Website (the “Intellectual Property”). All rights in the Intellectual Property not expressly granted by TGC to Subscriber in this Agreement are reserved to TGC.  Except as expressly provided in this Agreement, no other rights or licenses are intended or conveyed hereby, whether by implication, estoppel, or otherwise.

 

6.                  Confidentiality and Protections.

 

6.1              Confidential Information.  “Confidential Information” means TGC’s non-public information, including, without limitation, trade secrets, customer, potential customer, supplier, potential supplier and contacts lists, methods of doing business, materials, inventions, discoveries, ideas, processes, know-how, competitive bid data, prices paid or received for goods or services purchased or sold, price lists, marketing information, business plans and strategies, product and service plans, developments, processes, designs, drawings, methods, techniques, the terms of this Agreement, any other information relating to the provision of services to clients, all information generated by TGC that is marked as “copyright,” “trademark,” “confidential,” “secret,” or “registered”, any other data that might be used to the detriment of TGC, and all notes, analyses, compilations, studies and other documents, whether prepared by Subscriber or others which contain or reflect such information.  Confidential Information does not include information that (A) at the time of disclosure by TGC to Subscriber was published or known publicly or was otherwise in the public domain, (B) after disclosure by TGC to Subscriber, is published or becomes publicly known or otherwise in the public domain other than as a result of a breach of this Agreement, or (C) was disclosed to Subscriber in good faith by a third party who was not under any obligation of confidence or secrecy to TGC at the time of such disclosure.  Any Confidential Information received or otherwise learned by Subscriber shall be treated by Subscriber as confidential and proprietary information of TGC and will be used by Subscriber solely in connection with Subscriber’s performance of Subscriber’s rights or obligations as set forth in this Agreement. Subscriber will not use in any way for its own account or for the account of any third party any Confidential Information. Subscriber will not disclose any Confidential Information to any person, other than to Subscriber’s employees whose duties justify their need to know and who have agreed in writing to maintain the confidentiality of such Confidential Information, unless TGC consents, in writing, to the disclosure.  Subscriber may disclose Confidential Information pursuant to a valid order issued by a court or government agency, provided, that Subscriber (a) gives prior written notice to TGC of such disclosure, and (b) provides TGC with the opportunity to oppose such disclosure. Any unauthorized copying, transfer, or use of any Confidential Information by Subscriber will cause irreparable injury to TGC that cannot be adequately compensated by monetary damages.  If Subscriber engages, or is reasonably suspected of engaging, causing, or permitting any person or entity to engage in any material breach of this Section 6.1, TGC shall be entitled, in addition to such other remedies, damages and relief as may be available under applicable law, to seek an injunction prohibiting any such act or specifically enforcing this section.  Upon termination of this Agreement, or at any time upon request of TGC, Subscriber shall return all Confidential Information in its possession to TGC and shall provide written verification of compliance with such requirement.

 

6.2              Reports of Third-Party Misappropriation.  Subscriber shall promptly report to TGC any attempt by any person to copy, reverse assemble, reverse compile or otherwise reverse engineer any part of the Website or to inappropriately access or use any Confidential Information.

 

7.                  Representations and Warranties.

 

7.1              Limitations.

 

(a)               Exclusions.  TGC’s representations and warranties do not extend to, and TGC shall not have any liability for, any (a) Data, hardware, or software supplied by Subscriber or a third party; (b) modification of the Website to conform with Subscriber’s specifications or requirements; (c) the use by Subscriber or any third party of Website other than in strict conformity with the terms and conditions of this Agreement; (d) communication times or errors between TGC’s and Subscriber’s systems, (e) changes to the Website reasonably required, in TGC’s sole discretion, to maintain compliance with Laws, or (f) similar circumstances not under the direct control of TGC to the extent the above events or conditions impact or impair the Website.

 

(b)               Representations and Warranties Solely For Benefit of Subscriber.  The representations and warranties given by TGC in this Agreement extend solely to Subscriber and to no third-party whatsoever.

 

(c)               Disclaimers.  SUBSCRIBER’S USE OF THE WEBSITE, THE DATA, THE WEBSITE’S CONTENT, AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE IS AT SUBSRIBER’S OWN RISK. THE WEBSITE, THE DATAT, THE WEBSITE’S CONTENT, AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.2, BELOW. NEITHER TGC NOR ANY PERSON ASSOCIATED WITH TGC MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER TGC NOR ANYONE ASSOCIATED WITH TGC REPRESENTS OR WARRANTS THAT THE WEBSITE, THE DATA, THE WEBSITE’S CONTENT, OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET SUBSCRIBER’S NEEDS OR EXPECTATIONS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE FULLEST EXTENT PROVIDED BY LAW, TGC HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.  The complex computer software, computer hardware, communication systems, and internet connectivity used to MAKE THE WEBSITE AVAILABLE rarely are free from defects or perform without interruption.  TGC does not warrant that the WEBSITE IS OR WIll be completely error-free or that the use or operation of the WEBSITE will be uninterrupted.

 

7.2              Representations and Warranties.  Each Party represents and warrants to the other Party that:

 

(a)               Non-Infringement. such Party has all rights or licenses necessary to use the hardware and software used by it in connection with the Website.

 

(b)               No Conflicts. such Party is not a party to or bound by any confidentiality, noncompetition, nonsolicitation, employment, consulting or other agreement or restriction that could conflict with, or be violated by, the performance of such Party’s obligations under this Agreement.

(c)               Licenses; Permits.  such Party, and each of its employees, holds all permits, licenses, registrations and qualifications, and has received such training, as is reasonably necessary for such Party, or such employee, to perform its obligations hereunder.

(d)               Due Organization.  such Party it is duly organized, validly existing, and in good standing under the Laws of the jurisdiction in which it is organized, it has the full power to enter into this Agreement and to perform its obligations hereunder, and the performance by it of its obligations under this Agreement has been duly authorized by all necessary corporate or other entity actions and will not violate any provision of any corporate charter, bylaws or other governing document of such Party.

(e)               No Bankruptcy.  such Party is not currently the subject of a voluntary or involuntary petition in bankruptcy, does not currently contemplate filing any such voluntary petition, and is not aware of any basis for the filing of an involuntary petition.

(f)                Authority to Sign. such Party’s signatory hereto is authorized to execute this Agreement on such Party’s behalf.

 

8.                  Limitation on Remedies.  NOTWITHSTANDING ANYGHING IN THIS AGREEMENT TO THE CONTRARY, tgc shall not be liable to subscriber for any costs of cover or for indirect, special, incidental, or consequential damages of any kind, even if SUBSCRIBER has been advised of the possibility of such damages.  These exclusions shall apply despite any failure of essential purpose of any limited warranty or remedy.

 

9.                  Limitation of Liability.  NOTWITHSTANDING ANYGHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL TGC’S TOTAL LIABILITY TO SUBSCRIBER FOR ANY DAMAGES WHATSOEVER EXCEED THE AGREGATE AMOUNT OF FEES PAID BY SUBSCRIBER PURSUANT TO THIS AGREEMENT PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH DAMAGES. THE LIMITATIONS IN THIS AGREEMENT SHALL APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY.

 

10.              Indemnification.

 

10.1     Indemnification by Subscriber.  Subscriber shall indemnify, defend and hold TGC and its independent contractors, agents, members, managers, officers, shareholders, directors and employees harmless from and against any and all claims, liabilities, losses, damages, expenses (including reasonable attorneys’ fees) (collectively, “Claims”) directly or indirectly arising from or growing out of (i) a breach of any representation, warranty, covenant or agreement made by Subscriber in, or in connection with, this Agreement; (ii) Subscriber’s use of the Website or the Data, except when the same shall arise due to the gross negligence or willful misconduct of TGC; or (iii) the gross negligence or willful misconduct of Subscriber or any of its contractors, agents, members, managers, officers, shareholders, directors or employees.

 

10.2     Indemnification by TGC.  TGC shall indemnify, defend and hold Subscriber and its contractors, agents, members, managers, officers, shareholders, directors and employees harmless from and against any and all Claims arising from or growing out of TGC’s gross negligence or willful misconduct.

 

11.              Term; Termination.

 

11.1          Term.  The “Term” of this Agreement shall commence on the Effective Date and shall continue until this Agreement is terminated in accordance with this Section 11.

 

11.2          Terminations for Cause.  Either Party may terminate this Agreement at any time upon notice to the other Party if:

 

(a)        the other Party is in breach of any representation, warranty, condition or covenant of this Agreement and (i) fails to cure that breach within thirty (30) days (or, in the case of a breach involving the nonpayment of fees by Subscriber, five (5) days) of receiving notice from the non-breaching Party which specifies such breach and demands cure thereof, or, if a non-monetary breach cannot reasonably be cured within such thirty-day period, the breaching Party fails to commence cure of such breach during such thirty-day period or fails to pursue such cure to its completion; or

 

(b)        the other Party (i) becomes insolvent; (ii) fails to pay its debts in the ordinary course of business as they mature; (iii) admits in writing its insolvency or inability to pay its debts as they mature; or (iv) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or composition or general assignment for the benefit of creditors; provided that if such condition is involuntary it has not been dismissed with prejudice within thirty (30) days after it begins.

 

11.3          Termination for Convenience.  Either Party may terminate this agreement with or without cause upon not less than thirty (30) days’ prior written notice to the other Party.

 

11.4          Effect on Rights; Survival.  Subscriber shall cease use of the Website and the Marks immediately upon the expiration or termination of this Agreement.  Termination of this Agreement by either Party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either Party from any obligations hereunder which arise prior to the date of termination of from liability for breach of such Party’s obligations under this Agreement.  Within thirty (30) days of any termination of this Agreement, Subscriber shall pay to TGC all undisputed sums then due and owing hereunder.  All provisions of this Agreement which by their nature should survive termination shall survive termination

 

12.              Miscellaneous.

 

12.1          Costs.  Each party shall be responsible for its own expenses and costs incurred in connection with the performance of its obligations under this Agreement.

 

12.2          Force Majeure.  If either Party is unable to perform its obligations under this Agreement (except for obligations to pay money, which shall not be affected hereby) due to circumstances beyond its reasonable control, including, but not limited to, acts of God, earthquakes, labor disputes and strikes, riots, war, actions or decrees of governmental bodies, communications or power failures, pandemic or epidemic, such obligations will be suspended so long as those circumstances persist, provided that the delaying Party notifies the other Party promptly of the delay and its causes, and uses commercially reasonable efforts to recommence performance as soon as practicable.

 

12.3          Assignment.  Neither party may assign, transfer, or otherwise delegate any of its rights, duties, or obligations under this Agreement in whole or in part to any individual, firm or corporation without the prior signed written consent of the other Party, which consent shall not be unreasonably withheld.  Any attempt to assign, transfer or otherwise delegate any of the rights, duties, or obligations under this Agreement in violation of the foregoing sentence shall be void.  No assignment shall release the assignor from any of its obligations under the Agreement unless the consent to such assignment so states.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

12.4          Nondisparagement.  At all times from and after the Effective Date, Subscriber shall not, and shall not permit any of its employees, representatives or agents to, (a) take any action that would result in harm to the reputation of TGC or (b) make, directly or indirectly, any statement (whether oral, written or electronic) to any person or organization or to the public or any third party criticizing or disparaging TGC’s business, TGC or any of TGC’s affiliates.  This Section shall not, however, prohibit Subscriber or any of its employees, representatives or agents from testifying truthfully as a witness in any court proceeding or governmental investigation.

 

12.5          Independent Contractors.  Nothing herein shall be construed to create a relationship between TGC and Subscriber in the nature of profit-sharing, company, joint venture, principal/agent, employment or any other relationship that might impose liability on TGC for Subscriber’s past, present or future debts, liabilities, obligations, acts or omissions. Neither Party shall be an agent of the other Party.  Neither Party shall represent to any third person or entity that it is authorized to enter into any contract for or on behalf of the other Party and neither Party shall attempt to enter into any contract for or on behalf of the other Party or otherwise attempt to bind the other Party in any manner whatsoever, and any such contract entered into shall be void.  Neither Party shall have any obligation to disclose to the other Party any business opportunities developed by it during the Term or thereafter or originated by a third party and brought to its attention during the Term or thereafter. Each Party shall be and remain solely responsible for wages, hours, workers’ compensation insurance, unemployment insurance, benefits and all other conditions of employment of its own personnel during the term of this Agreement.

 

12.6          No Waiver.  No action or omission by either Party shall be deemed to be a waiver of any of such Party’s rights or remedies under this Agreement unless such waiver is set forth in a written instrument signed by the waiving Party.  No waiver of any default or breach of any agreement or provision herein contained shall be deemed a waiver of any ongoing or continuing breach thereof, or of any other default or breach thereof or of any other agreement or provision herein contained.

 

12.7          Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado applicable to contracts to be performed entirely within such state.  The District Court of the City and County of Denver, State of Colorado, shall have exclusive jurisdiction, including in personam jurisdiction, and shall be the exclusive venue for any and all controversies and claims arising out of or relating to this Agreement.

 

12.8          Headings.  All captions, titles, headings, and divisions hereof are for purposes of convenience and reference only, and shall not be construed to limit or affect the interpretation of this Agreement.

 

12.9          Severability.  If any provision of this Agreement shall be held to be invalid or unenforceable for any reason: (i) such invalidity or unenforceability shall not affect any other provision of this Agreement, (ii) the remaining terms, covenants and conditions hereof shall remain in full force and effect and (iii) any court of competent jurisdiction may so modify the objectionable provision as to make it valid and enforceable.

 

12.10      Legal Representation and Construction of Agreement.  The Parties acknowledge that this Agreement was drafted by counsel for TGC.  The Parties have had the opportunity to retain independent legal and financial counsel with respect to the negotiation of this Agreement and have either done so or elected not to do so.  They have independently, separately, and freely negotiated each and every provision of this Agreement as if both Parties drafted it, and therefore waive any statutory or common-law presumption that would serve to have this document construed in favor of, or against, either Party.

 

12.11      Costs, Attorneys’ Fees, and Experts’ Fees.  In the event any obligation set forth in this Agreement must be enforced through litigation or otherwise, the prevailing party will be entitled to recover reasonable costs and expenses incurred in enforcing the obligation, including costs, reasonable attorneys’ fees and reasonable experts’ fees.

 

12.12      Counterparts; Electronic Signatures.  This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one instrument.  A facsimile or electronic signature on this Agreement shall be acceptable as and deemed to be an original signature.

 

12.13      No Restriction.  Nothing in this Agreement shall restrict TGC from providing any products or services, whether with or without charge, to any third-party, regardless of whether or not such third-party is affiliated with Subscriber.

 

12.14      Notices.  All notices and other communications to be sent by one Party to the other under this Agreement shall be in writing and shall be deemed to have been validly made, given, served and received (a) at the time sent, if given or served by delivery in person to the addressee, or if sent by email or facsimile before or during normal business hours in the recipient’s location, with delivery verification, (b) one (1) day after the date sent if sent by email or facsimile after normal business hours in the recipient’s location with delivery verification, (c) at the time of delivery if sent by an overnight courier delivery service, or (d) three (3) days after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed as set forth on the signature page hereto.  Either Party may change its address for notices by delivery of notice of its new address to the other Party in accordance with this Section 12.14.

 

12.15      Insurance.  Subscriber will supply its own insurance, including, but not limited to, liability and errors and omission insurance coverage, which insurance shall provide such coverage, be in such amounts and be issued by such insurance companies as are reasonable and appropriate for the operation of Subscriber’s business, as determined by TGC.  Subscriber will provide proof of such coverage to TGC upon request.

 

12.16      Entire Agreement; Modification.  This Agreement, including the Exhibits hereto (which are incorporated herein by this reference), constitutes the final and entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior written and oral agreements, understandings, or communications with respect to such subject matter.  This Agreement may not be modified except by a written instrument signed by duly authorized representatives of both Parties. The Parties understand and agree that no usage of trade or other regular practice or method of dealing between the Parties shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.

 

12.17      No Third-Party Beneficiaries.  This Agreement is made and entered into for the sole protection and benefit of the Parties, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement.

 

12.18      Arbitration.  Except for the right of a Party to apply at any time to a court of competent jurisdiction for injunctive relief, which right is expressly reserved, any controversy or claim arising out of or relating to this Agreement or the Website shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereover.  The arbitration shall take place in Denver, Colorado before one (1) arbitrator.  The party initiating arbitration shall give notice thereof to the other party.  If the parties are unable to agree on one (1) arbitrator within thirty (30) days after the date of such arbitration notice, each party shall select one arbitrator within forty-five (45) days after the date of such arbitration notice, and such arbitrators shall jointly select an additional arbitrator within fifty (50) days after the date of such arbitration notice, which additional arbitrator shall conduct the arbitration.  Arbitration shall commence within thirty (30) days after the appointment of the arbitrator.  Each party shall bear its own costs and expenses associated with such arbitration and the parties shall equally split the arbitrator’s costs.  Any arbitration proceeding commenced under the provisions of these Terms and Conditions is a private proceeding and, except to the extent necessary for the enforcement of any award or decision entered into by the arbitrator, shall be held and maintained as a private and confidential proceeding.  No request or demand for arbitration shall be made after the date on which the applicable statute of limitations would expire.

 

IN WITNESS WHEREOF, TGC and Subscriber have executed this Agreement effective as of the date first above written.

 

 

 

TGC:

 

The Good Couch LLC,

a Colorado limited liability company

 

 

By:                                                                 
Name:                                                             
Title:                                                               

Address:                                                                                                                                 

 

 

 

 

SUBSCRIBER:

 

[Entity Name]

[state of formation and type]

 

 

By:                                                                 
Name:                                                             
Title:                                                               

Address:                                                                                                                                 

 

 

 

eXHIBIT A

 

WEBSITE Terms AND CONDITIONS (SUBSCRIBER)

 

Last modified: [DATE]

 

Acceptance of the Terms and Conditions

These Terms and Conditions are entered into by and between you (the user of the Website) and The Good Couch LLC, a Colorado limited liability company (“TGC”, “we” or “us”). The following Terms and Conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms and Conditions”), govern your access to and use of [website address] and any related websites, including any Data (as defined in the Subscriber Agreement), content, functionality, products and services offered on or through such websites (collectively, the “Website”).

 

Please read these Terms and Conditions carefully before you start to use the Website. By using the Website, you accept and agree to be bound and abide by these Terms and Conditions. If you do not agree to these Terms and Conditions, you must not access or use the Website.

The Website is offered and available only to designated users (as defined below) located in the United States. In addition, you may not use the Website if any applicable law or regulation prohibits it.  By using the Website, you represent and warrant that you meet the eligibility requirements set forth in these Terms and Conditions and the Subscriber Agreement. If you do not meet these requirements, you must not access or use the Website.

 

Your use of the Website is further subject to and governed by the terms of a Subscriber Agreement (the “Subscriber Agreement”) between TGC and the entity for which you are a designated user (such entity is referred to herein as the “Subscriber”).  You are responsible for obtaining a copy of the Subscriber Agreement from the Subscriber.  You are responsible for carefully reading and understanding all terms and conditions of the Subscriber Agreement.  You agree to comply with all terms and conditions of the Subscriber Agreement applicable to designated users.  In the event of any conflict between these Terms and Conditions and the terms of the Subscriber Agreement, the terms of the Subscriber Agreement will control.

 

A “designated user” means an employee, officer or owner of a Subscriber who is designated by the Subscriber as an individual who will have access to the Website.  Only designated users are permitted to access the Website.  Each designated user must be an individual person and must have his or her own unique username and unique password for accessing the Website.  You many not share your designated user username or password with any other person.  You must immediately stop accessing the Website and you must promptly notify TGC if you cease to be a designated user.

 

Changes to the Terms and Conditions

We may revise and update these Terms and Conditions from time to time in our sole discretion. All modifications and amendments will become effective thirty (30) days after the date of notification.  You agree that the date of notification is the earlier of (i) the date the new terms are posted on the Website, or (ii) the date the new terms are emailed or otherwise provided to you.  Your continued use of the Website following the date of notification for revised Terms and Conditions will be deemed to be your acceptance of and agreement to the changes. You are expected to check this page regularly so you are aware of any changes, as they are binding on you.

 

Accessing the Website and Account Security

Subject to the terms of the Subscriber Agreement, we reserve the right to withdraw or amend the Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time.

 

You are responsible for making all arrangements necessary for you to have access to the Website.

 

To access the Website you must provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete.

 

User Account

In order to access the Website you are required to create a user account (a “User Account”).  You are responsible for keeping your password for your User Account a secret. We are not responsible for your use of the Website, and by using the Website you take full responsibility for your actions relating to your use of the Website.  You agree to notify us immediately if you suspect or learn of any unauthorized use of your User Account.  You also agree that you will not use another person’s User Account or attempt to impersonate another user of the Website or any other third party.  You also agree that you will not permit any other person to use your User Account and you will not disclose your User Account password to any other person.

 

Use of Services

If you choose to use any of the services offered through the Website, you represent, warrant and agree that your use of the services is and will be in compliance with all applicable laws and regulations and with the Subscriber Agreement.  We are not responsible for any errors on the Website.

 

You are solely responsible for all OF YOUR use of SERVICES ACCESSED Through the Website.

 

You agree to not resell or mine any Data that you obtain through the Website.  You further agree to not (a) disassemble, decompile, reverse engineer, or modify any aspect of the Website, (b) examine the Website with debugging, memory inspection, or disk inspection tools, or (c) bypass or breach any security device or protection used in the Website.  You agree to not permit or assist any person to engage in any activity that you are prohibited from engaging in pursuant to these Terms and Conditions.

 

You agree to use the Website solely for reasonable business uses directly related to the business of the Subscriber.  We reserve the right to immediately suspend or terminate your access to the Website if we determine, in our sole discretion, that you are using, or have used, the Website for any use other than a reasonable business use.  No such suspension or termination shall modify or eliminate your obligations under these Terms and Conditions or the Subscriber Agreement.

 

Intellectual Property Rights

The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), are owned by TGC, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

 

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of these Terms and Conditions, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials in your possession. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by TGC. Any use of the Website not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may violate copyright, trademark, and other laws.

 

Trademarks

TGC’s name, TGC’s logo, and all related names, logos, product and service names, service marks, trade names, designs, slogans, and other business identifiers are trademarks of TGC or its affiliates or licensors. You must not use such marks without the prior written permission of TGC. All other names, logos, product and service names, designs, and slogans on the Website are the trademarks of their respective owners.

 

Additional Conditions

You may use the Website only for lawful purposes and in accordance with these Terms and Conditions. In addition to any other requirements in these Terms and Conditions, by accessing or otherwise using the Website you agree:

 

• You will comply with these Terms and Conditions and all applicable laws and regulations associated with the use of the Website and any products and services obtained through the Website, and will not use the Website for any unlawful or tortious purpose.

 

• You will not act in an abusive, obscene, offensive, harassing, inflammatory, discriminatory or otherwise objectionable manner.

 

• You will not modify any portion of the Website. You will not disable, circumvent, or interfere with the proper working of the Website or the security features the Website provides, or the features that limit copying or use of content on the Website.  You will not upload to the Website any viruses or files intended to harm the software or hardware of TGC or any third party.

 

• You will not access the Website through the use of an automated system, including, but not limited to, robots, spiders, data mining, or similar methods.

 

• You must not use the Website in any way that causes, or may cause, damage to the Website or impairment of the availability or accessibility of the Website; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

 

• You must not use the Website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.

 

• You shall, at all times, comply with all laws applicable to you, including, but not limited to (a) laws governing the use or operation of the Website, (b) laws governing your gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of the Data, and (c) all applicable privacy and data protection laws.

 

• You agree to maintain, at all times, (a) any rights or licenses necessary to use the hardware and software used by you to access the Website, and (b) any rights or licenses necessary for you to provide to TGC, and license TGC’s use of, any and all Data, information, software, specifications, technical designs, and other materials you provide to TGC.

 

• You agree that you (and not TGC) undertake sole responsibility to verify the accuracy, reliability, timeliness, and completeness of Data and other content you access through the Website before using or relying upon such Data or content in any manner whatsoever.

 

• You agree to (a) maintain commercially reasonable safeguards against the destruction, loss, or alteration of Data, (b) maintain commercially available, network-based virus protection software to protect your data, software, and computer and telecommunications hardware, (c) employ and maintain commercially reasonable administrative, technical, organizational and physical security measures (including, but not limited to, password protection and encryption) consistent with or better than industry standards to prevent access to the Website by unauthorized persons, and (d) comply with information security policies and procedures that meet the standards of all applicable laws and regulations.

 

• You may not use any of the Data, any of TGC’s Intellectual Property or the Website, in any way that (a) infringes on or misappropriates TGC’s rights in the same, or (b) competes, directly or indirectly, with TGC.

 

Violations of these Terms and Conditions may be subject to additional remedies as set forth in Subscriber Agreement.

 

Monitoring and Enforcement; Termination

We have the right to:

 

• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.

 

• Terminate or suspend your access to all or any part of the Website in accordance with the terms of the Subscriber Agreement and these Terms and Conditions, including without limitation, for any violation of these Terms and Conditions.

 

While we reserve the right to approve all material before or after it is posted on the Website, we cannot ensure prompt removal of objectionable material. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any designated user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

 

Reliance on Information Posted

This Website is provided “as is” without any representations or warranties, express or implied, except for those expressly set forth in the Subscriber Agreement. We do not warrant the accuracy, completeness or usefulness of the Data, or whether it is up-to-date. Any reliance you place on the Data is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on the Data by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.  Except as required by the Subscriber Agreement, we are under no obligation to update the Website.

 

Links from the Website

The Website may contain links to other sites and resources provided by third parties.  These links are provided for your convenience only. We have no control over the content of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions for such websites.

 

Geographic Restrictions

The owner of the Website is based in the state of Colorado in the United States. We provide this Website for use only by persons located in the United States and you may not access this Website from outside the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries.

 

Disclaimer of Warranties

YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN THE SUBSCRIBER AGREEMENT. NEITHER TGC NOR ANY PERSON ASSOCIATED WITH TGC MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER TGC NOR ANYONE ASSOCIATED WITH TGC REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

 

EXCEPT AS EXPRESSLY SET FORTH IN THE SUBSCRIBER AGREEMENT, TO THE FULLEST EXTENT PROVIDED BY LAW, TGC HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

 

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

The complex computer software, computer hardware, communication systems, and internet connectivity used to MAKE THE WEBSITE AVAILABLE rarely are free from defects or perform without interruption.  TGC does not warrant that the WEBSITE IS OR WIll be completely error-free or that the use or operation of the WEBSITE will be uninterrupted.  YOU acknowledge (a) that YOU HAVE not relied on any representations or warranties, express or implied, except as EXPRESSLY set forth in thE Subscriber Agreement; and (B) that YOU HAVE read and understood ALL OF THE SUBSCRIBER AGREEMENT.

 

TGC is not responsible for the backup and storage of Data transmitted or received through the Website.  You will, at all times, be responsible for the adequate backup and storage of such Data.  Similarly, you will be responsible for your own compliance with any applicable laws relating to the maintenance, storage, and retention of Data and shall not rely on TGC to satisfy your compliance with such laws.

 

TGC cannot and does not assume any responsibility for your or any third party’s use or misuse of Data or information transmitted, monitored, stored or received using the Website.  Without limiting the generality of the foregoing, TGC is not responsible for (a) the accuracy, reliability, timeliness, or completeness of your or any third party’s Data or other information provided or received through the Website; or (b) the results that may be obtained from the use of the Website.

 

You are solely responsible for all use of DATA OBTAINED through the Website.

 

Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL TGC, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF GOODWILL, AND LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

 

THE LAWS OF CERTAIN STATES AND COUNTRIES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

 

TGC’S LIAIBLITY IS FURTHER LIMITED BY THE TERMS AND CONDITIONS OF THE SUBSCRIBER AGREEMENT.

 

Reasonableness

By using this Website, you agree that the exclusions and limitations of liability set forth in these Terms and Conditions and the Subscriber Agreement are reasonable. If you do not think they are reasonable, you must not use this Website.

 

Indemnification

You agree to defend, indemnify, and hold harmless TGC, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to, directly or indirectly, (a) your violation of these Terms and Conditions or the Subscriber Agreement, or (b) your use of the Website, including, but not limited to, any use of the Website’s content, services, and products other than as expressly authorized in these Terms and Conditions or (c) your use of any Data, information or materials obtained from the Website.

 

You may have additional indemnification obligations under the Subscriber Agreement.

 

Governing Law and Jurisdiction; Costs and Attorneys’ Fees

All matters relating to the Website and these Terms and Conditions, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule.  Any legal suit, action, or proceeding arising out of, or related to, these Terms and Conditions or the Website, and which is not required to be submitted to arbitration as set forth below, shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, in each case located in the city of Denver. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

 

Except for our right to apply at any time to a court of competent jurisdiction for injunctive relief, which right is expressly reserved, any controversy or claim arising out of or relating to these Terms and Conditions or the Website shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereover.  The arbitration shall take place in Denver, Colorado before one (1) arbitrator.  The party initiating arbitration shall give notice thereof to the other party.  If the parties are unable to agree on one (1) arbitrator within thirty (30) days after the date of such arbitration notice, each party shall select one arbitrator within forty-five (45) days after the date of such arbitration notice, and such arbitrators shall jointly select an additional arbitrator within fifty (50) days after the date of such arbitration notice, which additional arbitrator shall conduct the arbitration.  Arbitration shall commence within thirty (30) days after the appointment of the arbitrator.  Each party shall bear its own costs and expenses associated with such arbitration and the parties shall equally split the arbitrator’s costs.  Any arbitration proceeding commenced under the provisions of these Terms and Conditions is a private proceeding and, except to the extent necessary for the enforcement of any award or decision entered into by the arbitrator, shall be held and maintained as a private and confidential proceeding.  No request or demand for arbitration shall be made after the date on which the applicable statute of limitations would expire.

 

Notwithstanding the foregoing, we shall be entitled to seek any remedy available at law or in equity necessary to preserve or protect our interests, or to ensure compliance with the obligations of these Terms and Conditions, including a temporary restraining order, preliminary and/or temporary injunctive relief and specific performance, until the arbitration award is rendered or the controversy is otherwise resolved, without having to arbitrate and without need to post any bond.  If we commence any such action or proceeding against you, the prevailing party shall be entitled to recover all reasonable costs and expenses, including without limitation reasonable attorneys’ fees.

 

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

 

Additional Terms

These Terms and Conditions, together with the Subscriber Agreement, which is incorporated herein by this reference, constitute the entire agreement between you and TGC and supersede any prior understandings or agreements, oral or written. All captions, titles, headings, and divisions in these Terms and Conditions are for purposes of convenience and reference only, and shall not be construed to limit or affect the interpretation of the Terms and Conditions. You may not assign or delegate any of your rights or obligations under these Terms and Conditions.  TGC may assign its rights and/or obligations under these Terms and Conditions at its sole discretion, without notice, and at any time. No waiver of any default or breach of any agreement or provision herein contained shall be deemed a waiver of any other default or breach thereof or of any other agreement or provision herein contained.  No action or omission of TGC shall be deemed to be a waiver of any of TGC’s rights under these Terms and Conditions unless such waiver is set forth in writing.  If any provision or portion of a provision of these Terms and Conditions is declared void and/or unenforceable, such provision or portion shall be deemed severed from these Terms and Conditions, which shall otherwise remain in full force and effect. The provisions of these Terms and Conditions shall inure to the benefit of, and be binding on, you and TGC and your and its successors, assigns, employees, legal representatives, heirs, distributees, and transferees, by operation of law, whether or not any such person shall become a party to these Terms and Conditions or have agreed in writing to join or be bound by the terms and conditions of these Terms and Conditions.

 

Your Comments and Concerns

This website is operated by The Good Couch LLC with its principal offices at 8475 W Colfax Avenue, Lakewood, Colorado 80215.

 

All feedback, comments and other communications relating to the Website should be directed to: [email address].

 

eXHIBIT B

 

Operating guidelines

 

When customer interactions have been initiated through or connected to TGC, the subscriber agrees to communicate and interact with the customer in compliance with the guidelines below and outlined in this agreement.

 

All customer pickup interactions as outlined on the most current version of TGC’s website.

 

All partial or complete refund requests completed in compliance with the guidelines listed on TGC’s website.

 

All sales and deliveries in compliance with the guidelines listed on TGC’s website.

 

IMPORTANT NOTE: The compliance listed above is only required when interactions have  been initiated through or connected to TGC. The subscriber has the right to conduct business in whatever manner they see fit when interacting with customers not connected to TGC. This agreement does not require that any portion of the subscriber’s business be conducted through TGC. The subscriber has the right to utilize the benefits of the subscription as much or as little as they see fit.