Terms of Service Agreement

This Terms of Service (“Agreement”) is an attachment to the Order Form, and incorporated herewith, is made and entered into effective as of the date of the Order Form by and between Linarc Inc., a Delaware corporation (“Linarc,” “we,” “us,” or “our”) and you (the “Subscriber” or “you”). Linarc and Subscriber may be referred to herein individually as a “Party” and collectively as the “Parties.”

‍1. SERVICES. 

1.1 General. The terms and conditions of this Agreement apply to all Linarc Platform Services provided by Linarc, including your use of the Linarc Platform Services program to manage construction projects, complete tasks, deliver progress updates in real-time to everyone who needs to view, and collaborate on projects; and provide all other services necessary for productive use of such Linarc Platform Services including integration, management, technical support, maintenance, and professional services. By executing the Order Form and by using Linarc Platform Services, you are agreeing to be bound by this Agreement.

1.2 Services Orders. The Linarc Platform Services to be provided by Linarc under this Agreement will be set forth in one or more Order Forms executed by the Parties from time to time during the Term. The Parties shall negotiate and sign each Order Form separately. Each Order Form shall set out a description of the applicable Linarc Platform Services to be provided by Linarc, the costs associated with such Linarc Platform Services, the period of time the Subscriber will have access to the particular Linarc Platform Services and any Additional Terms associated with a particular Linarc Platform Services ordered. Each Order Form shall be attached to this Agreement and incorporated in this Agreement by reference.

1.3 Availability. Subject to the terms of this Agreement, Linarc will use commercially reasonable efforts to provide Subscriber and its Authorized Users the services listed on the Order Form in accordance with the terms and conditions hereof and Exhibit B], including to host, manage, operate, and maintain the Linarc Platform Services for remote electronic access and use by Subscriber and its Authorized Users 24 hours per day, seven days per week, every day of the year during the term of this Agreement, except for: 

1. Scheduled downtime;  
2. Service downtime or degradation due to a Force Majeure Event; 
3. Any other circumstances beyond Linarc’s reasonable control, including Subscriber’s or any Authorized User’s misuse of the Linarc Platform Services or use of the Linarc Platform Services other than in compliance with the express terms of this Agreement; and 
4. Any suspension or termination of Subscribers or any Authorized Users’ access to or use of the Linarc Platform Services as permitted by this Agreement.

2. USE OF LICENSED SERVICES

2.1 Licensed Uses and Restrictions. Subject to the terms and conditions of this Agreement (including the payment of all applicable fees), Linarc hereby grants you a worldwide (except as limited below), non-exclusive, non-sublicensable license to use the Linarc Platform Services to access and use the Linarc Platform Services within the United States (or any other location specified in the Order Form) and to permit Authorized Users to access and use the Linarc Platform Services. All rights not expressly granted to you are reserved by Linarc. 

1. Subject to the restrictions set forth in this Agreement, you may use the Linarc Platform Services and any Updates provided by Linarc (in its sole discretion) solely to interface with Linarc’s platform and any Linarc Platform Services ordered by you as set forth on an Order Form.  

2. The license granted to Subscriber hereunder is solely for Subscriber’s internal business purposes and is limited to the access, display, and use of the Service by only an Authorized User.  Subscriber shall have no right pursuant to this Agreement to access, use, display, or distribute the Linarc Platform Services, in whole or in part, beyond the Authorized Users within the company and Sub-contractors. Subscriber is responsible for all activities that occur under Subscriber’s and any Authorized User’s accounts. Subscriber will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all use of the Linarc Platform Services by Subscriber and any Authorized User; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Linarc Platform Services, and notify Linarc promptly after becoming aware of any such unauthorized access or use; and (c) comply with all applicable local, state, federal, and foreign laws in using the Service. 

3. You shall NOT:

1. Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Linarc Platform Services;
2. Modify, translate, adapt, alter, or create derivative works from the Linarc Platform Services;
3. Copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit the Linarc Platform Services;
4. Distribute, sublicense, rent, lease, loan or grant any third-party access to or use of the Linarc Platform Services to any third party;
5. Harvest, collect, gather, or assemble information or data regarding other subscribers;
6. Transmit through or post on the Linarc Platform Services unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors;
7. Transmit material containing software viruses or other harmful or deleterious computer codes, files, scripts, agents, or programs;
8. Interfere with or disrupt the integrity or performance of Linarc Platform Services or the data contained therein;
9. Attempt to gain unauthorized access to the Linarc Platform Services, computer systems, or networks related to the Linarc Platform Services; or
10. Harass or interfere with another subscriber or end-user’s use and enjoyment of the Linarc Platform Services.

Linarc reserves the right to immediately suspend access to Linarc Platform Services if you breach any terms of this Agreement. 

2.2 Integration. The Linarc Platform Services shall include the Linarc Web Application and Mobile Apps available on the Apple App Store & Google Play Store to enable the Linarc Platform Services to be provided as defined in the Order Form. Authorized Users must agree to Linarc’s terms of use and specific ToSA (for all Services) prior to being provided access to the Linarc Platform Services. 

2.3 Ownership and Relationship of Parties. The Linarc Platform Services may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. Linarc’s rights apply to the Linarc Platform Services and all output and executables of the Linarc Platform Services. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this Agreement. Linarc (or its partners and vendors) owns all rights, title, and interest in and to the Linarc Platform Services. This Agreement grants you no right, title, or interest in any intellectual property owned or licensed by Linarc or any third party, including (but not limited to) the Linarc Platform Services and Linarc trademarks. 

3. ACCESS.

3.1 Requirements. Subscriber shall acquire, install, operate, and maintain at Subscriber’s expense all communications lines, equipment, software, services, and related technology necessary to receive, access, and use the Linarc Platform Services. Except as expressly stated herein or on an applicable Order Form, Subscriber is prohibited from and will have no right to: (i) allow any third party (which may include agents, contractors, affiliates, or other third-party representatives acting on behalf of Subscriber) to access and/or use the Linarc Platform Services; (ii) allow access to or use (including any Authorized User) of Linarc Platform Services outside of the Subscriber geo-locations, as specified in the Order Form.  

3.2  Delivery. Linarc shall use all reasonable efforts to electronically deliver the Linarc Platform Services, updates and new versions of the Linarc Platform Services and all documents and other materials prepared by Linarc for Subscriber in a manner which will not be construed as delivering tangible personal property. Linarc Platform is a cloud-based service. All configuration, setup and delivery will be digital. Linarc Mobile Apps can be downloaded by Authorised Users from the Apple App Store or Google Play Store directly. In the event of a sales and use tax audit by a governmental entity, both parties agree to cooperate with each other and with the taxing authority. 

3.3 Installation. Installation responsibilities, including setup & training, shall be indicated on the Order Form.

3.4 Training. Any training to be provided by Linarc shall be provided under the terms and conditions described in the applicable Order Form.

4.  FEES.

4.1 Fees. Subscriber will pay Linarc the fees for the Linarc Platform Service as set forth on the applicable Order Forms (“Fees”). All Fees owed by Subscriber in connection with this Agreement are exclusive of, and Subscriber shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Subscriber in connection with this Agreement, except for employment taxes and taxes based on Linarc’s income or gross receipts. Subscriber shall be solely responsible for its development, legal, regulatory, audit or examination fees associated with its activities performed in connection with the Linarc Platform Services.

4.2 Suspension. Linarc reserves the right (in addition to any other rights or remedies Linarc may have) to discontinue the Linarc Platform Services (or a given module) and suspend Subscriber’s access to the Linarc Platform Services (or a given module) if: (a) any Fees are undisputed and overdue more than thirty (30) days following receipt of notice that such amounts are past due, until such amounts are paid in full; or (b) if Linarc determines that there is a risk of fraud or a likely compliance violation with applicable laws, rules, regulations (including network rules). 

4.3 Fee Disputes. If Subscriber disputes any Fees owed under this Agreement, the Parties shall work in good faith to promptly resolve the dispute. Subscriber must promptly notify Linarc of any disputed Fees, but in no event later than thirty (30) days after it first learns of the Fees. Subscriber shall maintain complete, accurate and up-to-date Subscriber billing and other contact information within the Linarc Platform.

‍5. CONFIDENTIALITY.  

5.1 Confidential Information. Each Party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other Party (the “Receiving Party”) certain Confidential Information. The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party.    

5.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees and third party services providers of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

5.3 Exceptions. The Receiving Party’s obligations under this subsection shall not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (x) approved in writing by the Disclosing Party, (y) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (z) required by law, rule or regulation, an order ofr a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Additionally, Subscriber acknowledges and agrees that Linarc will, and may, handle data subject to the Linarc Privacy Policy attached (“Privacy Policy”).

5.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.

6.  OWNERSHIP AND DATA.

6.1 Linarc Platform and Technology. Subscriber acknowledges that Linarc retains all rights, title and interest in and to the Linarc Platform, and that the Linarc Platform is protected by intellectual property rights owned by or licensed to Linarc.  Other than as expressly set forth in this Agreement, no license or other rights in the Linarc Platform are granted to the Subscriber. Subscriber hereby grants Linarc a non-exclusive, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Linarc Platform Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Authorized Users, relating to the Linarc Platform Services. Linarc shall not identify the Subscriber as the source of any such feedback. In addition, nothing in this Agreement gives Subscriber or any User any rights to the information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions owned by any third-party service provider to Linarc.

6.2 Subscriber Data. Subscriber retains all rights, title and interest in and to the Subscriber Data. Subscriber hereby grants to Linarc a non-exclusive, worldwide, royalty-free and fully paid up license to: (a) access and use Subscriber Data to provide the Linarc Platform Services to Subscriber; and (b) use Subscriber Data on an aggregated and anonymized basis (the “Deidentified Data”) to improve and market the Linarc Platform Services and develop new data products; provided, that, the license grant in subpart (b) shall be perpetual and irrevocable and any use of such Deidentified Data shall be in compliance with all applicable laws including the Gramm-Leach-Bliley Act. Subscriber represents and warrants that it has all necessary rights to grant Linarc the foregoing licenses. Notwithstanding the foregoing, to the extent an applicable law, rule or regulation, requires Linarc to delete Personal Information upon request, Linarc shall comply with all such laws, rules and regulations even if such information is Subscriber Data. 

6.3 Data Privacy. Each Party shall comply with all applicable privacy laws, rules and regulations. However, the Subscriber shall be responsible for obtaining the required consents from Authorized Users to allow Linarc to process Personal Information. Additionally, Subscriber hereby agrees to the terms regarding data sharing set forth in the Linarc Privacy Policy.

6.4 Data Security.

1. Linarc Obligations. Linarc will maintain commercially reasonable administrative, technical, and physical controls to protect Subscriber Data stored in its servers from unauthorized access, accidental loss, or modification. 

2. Subscriber will maintain throughout the Term (as defined below), reasonable and appropriate and industry-standard administrative, physical and technical measures designed to protect data against loss and unauthorized access, disclosure and use in compliance with all applicable laws (the “Data Safeguards”). In addition, during the Term, Subscriber will maintain physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of all data processed and sent to Linarc through the Linarc Platform Services.  

3. Linarc may, upon prior written notice to Subscriber, reasonably request Subscriber to maintain records containing information related to the Service and Subscriber’s use thereof. In addition, Linarc may implement and use, but is not required to, various software and tools to monitor Subscriber’s use of the Linarc Platform Services, as Linarc deems reasonably necessary, in order to determine Subscriber’s compliance with the terms of this Agreement.  

4. For the purpose of verifying compliance with this Agreement, Linarc (and Linarc's authorized representatives) shall have the right to observe the use made of the Service and the manner in which Authorized User accesses the Linarc Platform Services. If such audit or inspection pursuant to this Section indicate that Subscriber is not in compliance with this Agreement (including any Order Form), such as more Authorized Users accessing the Linarc Platform Services than permitted and/or purchased by Subscriber under an applicable Order Form, Subscriber shall pay Linarc the shortfall in Fees, retrospectively to the date the noncompliance first occurred (such as the date the number of Authorized Users first exceeded the permitted number as stated in the applicable Order Form). If such underpayment exceeds three percent (3%) of the Fees due during the relevant period, Subscriber shall reimburse Linarc for Linarc’s reasonable costs associated with such audit or inspection.           

5. In the event Subscriber becomes aware of any loss or unauthorized access, disclosure or use of any Subscriber Data held by Subscriber (“Security Breach”), Subscriber will (i) promptly notify Linarc in writing of such Security Breach, and (ii) take reasonable steps to identify the cause of such Security Breach, minimize the harm associated therewith and prevent reoccurrence thereof. Any notification of any Security Breach and subsequent communication about the Security Breach will describe, to the extent known, details of the Security Breach, including steps taken to mitigate the potential risks. In the event Linarc becomes aware of any loss or unauthorized access, disclosure or use of any Subscriber Data held by Linarc (“Linarc Security Breach”), Linarc will (i) promptly notify Subscriber in writing of such Linarc Security Breach, and (ii) take reasonable steps to identify the cause of such Linarc Security Breach, minimize the harm associated therewith and prevent reoccurrence thereof. Any notification of any Linarc Security Breach and subsequent communication about the Linarc Security Breach will describe, to the extent known, reasonable details of the Linarc Security Breach, including steps taken to mitigate the potential risks.

7. REPRESENTATIONS AND WARRANTIES.  

7.1 Mutual Representations and Warranties. Each Party warranties and represents to the other that: (a) It has the authority to enter into this Agreement, and its agreement and ability to perform the obligations hereunder do not violate any agreement or obligation between such Party and any third-party; (b) it has and will in the performance of its obligations under this Agreement comply with all applicable laws, rules and regulations, including, but not limited to, any network rules; and (c) when executed and delivered, this Agreement, its exhibits and addenda, will constitute the legal, valid, and binding obligation of each Party, enforceable in accordance with its terms.  

7.2  Subscriber Representations and Warranties. Subscriber represents and warrants to Linarc that Subscriber shall use the Linarc Platform Services in compliance with all laws, regulations, rules, orders of any governmental authority, Linarc’s Requirements, proper disclosures and agreements, marketing and collateral guidelines, and proper Authorized User consent. 

7.3  Linarc Representations and Warranties. Linarc represents and warrants to Subscriber that:  (a) the Linarc Platform Services shall conform in all materials respects with this Agreement and the Documentation; (b) the Linarc Platform Services shall be performed in compliance with applicable laws, rules and regulations; and (c) Linarc has agreements in place with third-party service providers necessary to provide the Linarc Platform Services to Subscriber and Authorized Users.

Linarc shall cooperate fully (and shall take commercially reasonable efforts to ensure full cooperation from its third party service providers) and engage in any commercially reasonable efforts to locate and prosecute the perpetrator of any program fraud and Subscriber shall bear the costs of such efforts.  

7.4  Warranty. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NO OTHER REPRESENTATIONS AND WARRANTIES ARE GIVEN BY LINARC OR SUBSCRIBER AND THE LINARCSERVICES, LINARC APPLICATION AND OTHER SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,”  WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, LINARC DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE. THIS DISCLAIMER OF WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN PARTICULAR, NO THIRD-PARTY SERVICE PROVIDER TO LINARC MAKES ANY WARRANTIES UNDER THIS AGREEMENT AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED.

8.  TERM AND TERMINATION.  

8.1 Term. The term of this Agreement will commence on the Effective Date and continue for an initial term as indicated in the Order Form (the “Initial Term”). This Agreement will automatically renew for successive one (1) year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either Party provides no less than ninety (90) days written notice of its intent to terminate this Agreement prior to the end of the then-current term.

8.2 Termination. This Agreement may be terminated by either Party: (a) in the event of material breach by the other Party and, to the extent that such breach can be cured, fails to cure such breach within thirty (30) days after receipt of notice by the other Party; (b) upon direction from any regulatory authority to either Party to cease or materially limit the performance of the rights or obligations under this Agreement or the inability to obtain any required regulatory approvals; (c) in the event of an adverse change in applicable law (or a new adverse interpretation or enforcement policy with respect to existing applicable law) or an adverse regulatory action (including conclusion of regulatory proceeding, investigation, or inquiry) regarding the application of any applicable laws that prohibits, materially impairs or renders commercially impracticable a Party’s ability to perform its obligations as contemplated by this Agreement, or a Party has been advised by legal counsel that there is a material risk that its continued performance under this Agreement would violate applicable laws (collectively, “Adverse Change”). In addition, Linarc may terminate this Agreement (i) immediately in the case of fraud, false, or untrue representation or warranty; (ii) Linarc may terminate the agreement without previous notice if Subscriber fails to pay the Fees on time two months within any twelve month period; (iii)  Linarc may terminate the agreement without previous notice if Subscriber fails to replenish the reserve account after 5 business days’ notice; or (iv) Linarc may terminate the agreement if, in its reasonable discretion, or a regulatory authority, determines Subscriber may be subject to undue risk of privacy or security breach, circumventing of any terms, agreements, legal or regulatory requirements, fraud, illegal activity or money laundering, unmitigated credit risk, or in the case Linarc would not be able to provide services to an ultimate beneficial owner of Subscriber (“Undue Burdens”). In such cases, Linarc may, with notice, terminate the Subscriber, suspend entirely or partially the Linarc Platform Services provided to you until Linarc or the regulatory authority has had a reasonable opportunity to investigate or resolve such event or activity. If Linarc, at its sole reasonable discretion, determines that Subscriber represents an Undue Burden, Linarc may terminate the agreement immediately. 

9. LIMITATION OF LIABILITY AND INDEMNIFICATION.  

9.1  Limitation of Liability. EXCEPT FOR BREACHES OF CONFIDENTIALITY OR A PARTY’S BREACH OF THE DATA SECURITY OBLIGATIONS OR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, IN NO EVENT WILL EITHER PARTY (OR LINARC’S SUPPLIERS AND SUBCONTRACTORS) BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (I) THIS AGREEMENT, (II) A DEPOSIT AGREEMENT, OR (III) YOUR USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER LINARC OR SUBSCRIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, IN NO EVENT WILL EITHER PARTY’S LIABILITY EXCEED THE FEES LINARC HAS RECEIVED FROM SUBSCRIBER DURING THE PRECEDING TWELVE (12) MONTHS. THIS LIMITATION OF LIABILITY SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. THE PARTIES AGREE THAT THE LIMITATION OF LIABILITY PROVIDED HEREIN SHALL NOT APPLY TO DIRECT DAMAGES RELATED TO (I) ANY AMOUNTS OWED IN FEES DUE LINARC UNDER THIS AGREEMENT, (II) ANY AMOUNTS OWED TO AUTHORIZED USERS, OR (III) FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES. IN ADDITION, ANY LIMITATION OF LIABILITY PROVISION THAT LINARC HAS AGREED TO WITH A THIRD-PARTY SERVICE PROVIDER FOR THE SERVICES UNDER THIS AGREEMENT SHALL ALSO APPLY TO THE SUBSCRIBER.

9.2 Indemnification. 

a. By Linarc.  If any action is instituted by a third party against Subscriber based upon a claim that the Linarc Platform Services or Linarc Platform, as delivered, infringe or misappropriate any third party’s intellectual property rights, Linarc shall defend such action at its own expense on behalf of Subscriber and shall pay all damages attributable to such third party claim which are finally awarded against Subscriber or paid in settlement. If the Linarc Platform Services or Linarc Platform is enjoined or, in Linarc’s determination is likely to be enjoined, Linarc shall, at its option and expense (a) procure for Subscriber the right to continue using the Linarc Platform Services, (b) replace or modify the Linarc Platform or Linarc Platform Services so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Subscriber’s access to the Linarc Platform Services and refund any amounts previously paid for the Linarc Platform Services attributable to the remainder of the then-current term. This Section sets forth the entire obligation of Linarc and the exclusive remedy of Subscriber against Linarc for any claim that the Linarc Platform Services infringes or misappropriates a third party’s intellectual property rights.

b. By Subscriber. If any action is instituted by a third party against Linarc relating to (a) Subscriber’s breach of Section 6 of this Agreement, (b) Subscriber’s use of the Linarc Platform Services in violation of any applicable laws, rules or regulations or this Agreement (c) Subscriber Data or (d) any Security Breach caused by Subscriber, Subscriber will defend such action at its own expense on behalf of Linarc and shall pay all damages attributable to such claim including, but not limited to, remediation expenses and fines, penalties and assessments imposed by networks or regulatory authorities. This subsection states the sole and exclusive remedy of Linarc and the entire liability of Subscriber for the claims and actions described herein.

c. Procedure. Any Party that is seeking to be indemnified under the provision of this Section 9 must (a) promptly notify the other Party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim.  

10. GENERAL TERMS.  

10.1  Notice and Electronic Communication. To the fullest extent permitted by law and this Agreement, notices and other communications (collectively, “Communications”) from one Party to the other regarding this Agreement may be provided electronically, and each Party consents and agrees to receive those Communications in an electronic form and is fully responsible to communicate any change in such Party’s email address. All Communications in electronic format will be considered to be “in writing,” and to have been received no later than twenty-four (24) hours after posting or dissemination. A Party’s consent to receive Communications electronically is valid until revoked upon proper notice.

1. Notice to Linarc: Subscriber may give notice to Linarc by emailing Linarc at support@linarc.com
2. Notice to Subscriber: Linarc may give notice to Subscriber by emailing Subscriber at the e-mail address indicated in the Order Form

‍10.2 Disputes and Governing Law.  

a.   Informal Resolution. In the event of any dispute, controversy or claim arising out of or relating to this Agreement or the construction, interpretation, performance, breach, termination, enforceability or validity thereof (hereinafter, a “Dispute”), the Party raising such Dispute shall notify the other promptly. The Parties shall cooperate and attempt in good faith to resolve any Dispute promptly by negotiating between persons who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for administration and performance of the provisions or obligations of this Agreement that are the subject of the Dispute. In addition, to the extent the Cardholder Agreement covers the rules regarding a dispute, then the terms of the Cardholder Agreement you agreed to with the Bank shall control arbitration and not the terms of this Agreement.

b. Arbitration. Any Dispute which cannot otherwise be resolved as provided in paragraph (a) above – including any dispute as to the scope or validity of this arbitration provision – shall be resolved by arbitration conducted in accordance with JAMS’s shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration, and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. The arbitration tribunal shall consist of a single arbitrator with expertise in the technology industries, or, if the arbitral demand or any counterclaim asserts claims in excess of TEN MILLION DOLLARS (US$10 million), a panel of three arbitrators. In the case of a single arbitrator, such arbitrator may be appointed by agreement of the Parties within fourteen (14) days of receipt of the arbitral demand. Failing such agreement, the arbitrator shall be appointed pursuant to the procedure set out in the JAMS Rules. In the case of a three-arbitrator panel, one shall be appointed by each Party and the third by the two other arbitrators, with any failure to agree addressed as prescribed in the JAMS Rules. The place of arbitration shall be Beverly Hills, California, unless the Parties agree to another location. The arbitral award shall be final and binding. The Parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waive.

c. Judicial Recourse. Notwithstanding the provision of paragraph (b) above, each Party retains the right to seek judicial assistance:  (i) to compel arbitration, (ii) to obtain interim measures of protection until the arbitrator(s) can be empaneled and determine whether and in what form such measures should be continued, and (iii) to enforce any decision of the arbitrator, including the final award. The Parties submit to the exclusive jurisdiction of the state and federal courts located in the California, for purposes of clauses (i) and (ii) of this paragraph but may seek relief in any court that otherwise may possess jurisdiction over the Parties with respect to clause (iii).

d. Governing Law. This Agreement will be governed by and construed in accordance with U.S. federal law and the laws of the State of California, without regard to its conflicts or choice of laws principles.   

10.3 Complete Understanding. This Agreement, Order Form, EULA, Privacy Policy, and the exhibits and addendum attached hereto (as modified by the Parties from time to time) is the entire understanding and agreement of the Parties and supersedes any and all previous and contemporaneous understandings. Only a writing signed by both Parties may modify it. In addition, a regulatory authority may require the Parties to modify the terms of this Agreement at any time. 

10.4 Severability. In the event that any provision of this Agreement is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. 

10.5 Waiver. No waiver of any right under, or breach of, this Agreement will be effective unless in writing and signed by an authorized representative of the Party against whom the waiver is sought to be enforced. No delay or failure by either Party to exercise any right under this Agreement, and no partial exercise of any right under this Agreement, will constitute a waiver of that right or any other right. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 

10.6 Independent Contractors. The Parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. 

10.7 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. 

10.8 Force Majeure. Neither Party will have any liability if it is unable to perform, in whole or in part, as a consequence of an act of God or public enemies, public acts, fire, explosion, accident, labor disputes/strikes, floods, embargo, war, terrorism, nuclear disaster, riot, major pandemic, failure of public utilities, communication links or facilities or any other cause not within the reasonable control of such Party and not caused by such Party’s negligence or fault (each a “Force Majeure Event”); provided, however, that either Party may terminate this Agreement if the other Party remains unable to perform due to a Force Majeure Event for more than thirty (30) consecutive business days.

10.9 Assignment. Neither Party may assign any rights or obligations arising under this Agreement, without the prior written consent of the other which shall not be unreasonably withheld; except that either Party may assign this Agreement with prior written notice to the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subscriber agrees that Linarc may subcontract certain aspects of the Linarc Platform Services to qualified third parties, provided that any such subcontracting arrangement will not relieve Linarc of any of its obligations hereunder.

Exhibit A

Definitions

Definitions. As used in this Agreement, the following terms have the following meanings.

"Authorized Users" shall mean Subscriber's employees and independent contractors working for Subscriber in the ordinary course of Subscriber's business who: (i) agree to be bound by the EULA; and (ii) are specifically authorized by Subscriber to access the Linarc Platform Services.

 “Confidential Information” means all information regarding a Party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary. Subscriber Data is the Confidential Information of Subscriber. Confidential Information of Linarc includes information derived from or concerning the Linarc Platform Services, the Linarc Platform, the Documentation and the terms of this Agreement.

“Data Files” means the data provided by you to Linarc through the Linarc Platform Services. 

“Documentation” means any user manuals, handbooks, and online materials provided by Linarc to Subscriber that describe the features, functionality or operation of the Linarc Platform Services. 

“Linarc Platform” means the certain hosted software, technology, including hardware and associated Linarc Documentation, used by Linarc to deliver the Linarc Platform Services to Subscriber.

“Linarc Platform Services” means the on-line service delivered by Linarc to Subscriber using the Linarc Platform as described in an Order Form, including all improvements and modifications that Linarc makes generally available to its Subscribers generally.

“Integration Requirements” means the requirements for integrating Linarc Applications with 3rd Party Applications as specified by Linarc.

 “Personal Information” shall mean any personal information as defined under the California Consumer Privacy Act of 2018 and nonpublic personal information as defined in the Gramm-Leach-Bliley Act of 1999.

“Subscriber Data” means any information submitted by Subscriber through the Linarc Platform Services or provided by Subscriber to Linarc as part of the Linarc Platform Services, including Data Files.

Exhibit B

Terms of Service Availability

This Addendum governs the availability and service provided by Linarc. The Terms of Service Availability are subject to all terms and conditions of this Addendum, the Agreement and your Order Form. Capitalized terms not otherwise defined herein have the meaning assigned to them under the Agreement.  

1. Service Level Agreement. 

1.1. Uptime Level. Linarc Platform Services shall be available no less than 99.9% of the total number of minutes in any given calendar month (“Uptime Level”) as reasonably measured and monitored by Linarc, except during scheduled maintenance, including infrastructure maintenance.

“Scheduled Maintenance” means any scheduled outages or downtime for maintenance, upgrades, enhancements or changes to the Linarc Platform Services.

“Unscheduled Downtime” means total downtime in a specific month minus Scheduled Maintenance.

1.2. Support. Linarc shall provide Support to the Subscriber as defined in Table 1. 

1.2.1 Severity Level Definition: Notwithstanding anything to the contrary in this Agreement, the Parties agree to the Severity Level Definitions in Table 1. 

Table 1

1.2.2. Subscriber, at the time it reports an alert to Linarc, shall in good faith designate the Severity Level for such alert, using the definitions below. Linarc agrees not to modify such designation without first consulting with the Subscriber, provided however, that if an issue is determined that the root cause of an incident is outside the Linarc system or control, then Linarc may modify the designation of such incident; provided further, that Linarc shall notify Subscriber before modifying the designation.

1.2.3. Response time shall be measured from the moment an alert is discovered by or reported to Linarc and Linarc’s meaningful acknowledgment of the alert:  Updates will be posted on the status page every 2 hours for S1 and S2 and as needed.

2. Exclusions.‍

The Service Levels provided herein shall not apply under the following cases:  

2.1.1. During scheduled maintenance as previously informed by Linarc (Section 4)  

2.1.2. Events that occur due to a failure or omission of the Subscriber or a Subscriber’s third-party, including, but not limited, to Subscriber equipment, software or other technology and/or Subscriber’s third-party equipment, software or other technology;  

2.1.3. Services are suspended by Linarc as provided in the Agreement;  

2.1.4. Any event of Force Majeure as defined in the Agreement, and

2.1.6. Any failure to meet the Service Level due to the failure of third-party service providers who are outside of Linarc’s direct controls and PSP services.

2.1.7 Linarc uses AWS, GCP, and other cloud providers for its infrastructure. Any failure to meet the Service Level is due to the failure of these infrastructure providers, who are outside of Linarc’s direct controls and PSP services.

3. Maintenance. 

3.1 Notice. Linarc shall provide Subscriber with at least ten (7) days advance written notice of any Scheduled Maintenance. An e-mail or notification through Linarc’s platform of such Scheduled Maintenance shall be sufficient.

3.2 Scheduled Maintenance Hours. Scheduled Maintenance shall occur only during the hours starting on Friday at 5 pm (PST) and ending on Sunday at 5 pm (PST).

4.  Relationship to Agreement.

All terms and conditions of the Agreement shall remain in full force and effect. In the event of any conflict of this Addendum and the terms and conditions of the Agreement.

5. Business Hours and Response Time

Our headquarters and Customer Support are based in Beverly Hills, CA, USA.  Our Customer Support standard business hours are Monday – Friday, 09:00 – 17:00 US PST (Pacific Time). Our Standard Customer Support Service is closed during major US holidays including: 

6. Subscriber Support Contact Information

Chat Support: Available within the app

Support Email: support@linarc.com

Linarc Platform includes a built-in support chat. During regular business hours, users can request support through this feature. Support requests are queued and handled in the order received. Users can also leave support requests and ask for a response by email. 

If all Support Service Desk agents are unavailable during regular business hours, messages will be returned within 1 business day of the message being left.

ONLINE PRIVACY POLICY AGREEMENT

Linarc Inc (Linarc) values its users' privacy. This Privacy Policy ("Policy") will help you understand how we collect and use personal information from those who visit our website or make use of our online facilities and services, and what we will and will not do with the information we collect. Our Policy has been designed and created to ensure those affiliated with Linarc Inc of our commitment and realization of our obligation not only to meet, but to exceed, most existing privacy standards.

We reserve the right to make changes to this Policy at any given time. If you want to make sure that you are up to date with the latest changes, we advise you to frequently visit this page. If at any point in time Linarc Inc decides to make use of any personally identifiable information on file, in a manner vastly different from that which was stated when this information was initially collected, the user or users shall be promptly notified by email. Users at that time shall have the option as to whether to permit the use of their information in this separate manner.

This Policy applies to Linarc Inc, and it governs any and all data collection and usage by us. Through the use of www.linarc.com, you are therefore consenting to the data collection procedures expressed in this Policy.

Please note that this Policy does not govern the collection and use of information by companies that Linarc Inc does not control, nor by individuals not employed or managed by us. If you visit a website that we mention or link to, be sure to review its privacy policy before providing the site with information. It is highly recommended and suggested that you review the privacy policies and statements of any website you choose to use or frequent to better understand the way in which websites garner, make use of and share the information collected.

Specifically, this Policy will inform you of the following

1. What personally identifiable information is collected from you through our website;

2. Why we collect personally identifiable information and the legal basis for such collection;

3. How we use the collected information and with whom it may be shared;

4. What choices are available to you regarding the use of your data; and

5. The security procedures in place to protect the misuse of your information.

Information We Collect

It is always up to you whether to disclose personally identifiable information to us, although if you elect not to do so, we reserve the right not to register you as a user or provide you with any products or services. This website collects various types of information, such as:

Information automatically collected when visiting our website, which may include cookies, third party tracking technologies and server logs.

In addition, Linarc Inc may have the occasion to collect non-personal anonymous demographic information, such as age, gender, household income, political affiliation, race and religion, as well as the type of browser you are using, IP address, or type of operating system, which will assist us in providing and maintaining superior quality service.

Linarc Inc may also deem it necessary, from time to time, to follow websites that our users may frequent to gleam what types of services and products may be the most popular to customers or the general public.

Why We Collect Information and For How Long

We are collecting your data for several reasons:

• To better understand your needs and provide you with the services you have requested;
• To fulfill our legitimate interest in improving our services and products;
• To send you promotional emails containing information we think you may like when we have your consent to do so;
• To contact you to fill out surveys or participate in other types of market research, when we have your consent to do so;
• To customize our website according to your online behavior and personal preferences.

The data we collect from you will be stored for no longer than necessary. The length of time we retain said information will be determined based upon the following criteria: the length of time your personal information remains relevant; the length of time it is reasonable to keep records to demonstrate that we have fulfilled our duties and obligations; any limitation periods within which claims might be made; any retention periods prescribed by law or recommended by regulators, professional bodies or associations; the type of contract we have with you, the existence of your consent, and our legitimate interest in keeping such information as stated in this Policy.

Use of Information Collected

Linarc Inc does not now, nor will it in the future, sell, rent or lease any of its customer lists and/or names to any third parties.

Linarc Inc may collect and may make use of personal information to assist in the operation of our website and to ensure delivery of the services you need and request. At times, we may find it necessary to use personally identifiable information as a means to keep you informed of other possible products and/or services that may be available to you from www.linarc.com Linarc Inc may also be in contact with you with regards to completing surveys and/or research questionnaires related to your opinion of current or potential future services that may be offered. Linarc Inc uses various third-party social media features including but not limited to Twitter, Linkedin, Facebook, TikTok and other interactive programs. These may collect your IP address and require cookies to work properly. These services are governed by the privacy policies of the providers and are not within Linarc Inc's control.

Disclosure of Information

Linarc Inc may not use or disclose the information provided by you except under the following circumstances:

• as necessary to provide services or products you have ordered;
• in other ways described in this Policy or to which you have otherwise consented;
• in the aggregate with other information in such a way so that your identity cannot
• reasonably be determined;
• as required by law, or in response to a subpoena or search warrant;
• to outside auditors who have agreed to keep the information confidential;
• as necessary to enforce the Terms of Service;
• as necessary to maintain, safeguard and preserve all the rights and property of Linarc Inc.

Non-Marketing Purposes

Linarc Inc greatly respects your privacy. We do maintain and reserve the right to contact you if needed for non-marketing purposes (such as bug alerts, security breaches, account issues, and/or changes in Linarc Inc products and services). In certain circumstances, we may use our website, newspapers, or other public means to post a notice.

Children under the age of 13

Linarc Inc's website is not directed to, and does not knowingly collect personal identifiable information from, children under the age of thirteen (13). If it is determined that such information has been inadvertently collected on anyone under the age of thirteen (13), we shall immediately take the necessary steps to ensure that such information is deleted from our system's database, or in the alternative, that verifiable parental consent is obtained for the use and storage of such information. Anyone under the age of thirteen (13) must seek and obtain parent or guardian permission to use this website.

Unsubscribe or Opt-Out

All users and visitors to our website have the option to discontinue receiving communications from us by way of email or newsletters. To discontinue or unsubscribe from our website please send an email that you wish to unsubscribe to info@linarc.com. If you wish to unsubscribe or opt-out from any third-party websites, you must go to that specific website to unsubscribe or opt-out. Linarc Inc will continue to adhere to this Policy with respect to any personal information previously collected.

Links to Other Websites

Our website does contain links to affiliate and other websites. Linarc Inc does not claim nor accept responsibility for any privacy policies, practices and/or procedures of other such websites. Therefore, we encourage all users and visitors to be aware when they leave our website and to read the privacy statements of every website that collects personally identifiable information. This Privacy Policy Agreement applies only and solely to the information collected by our website.

Notice to European Union Users

Linarc Inc's operations are located primarily in the United States. If you provide information to us, the information will be transferred out of the European Union (EU) and sent to the United States. (The adequacy decision on the EU-US Privacy became operational on August 1, 2016. This framework protects the fundamental rights of anyone in the EU whose personal data is transferred to the United States for commercial purposes. It allows the free transfer of data to companies that are certified in the US under the Privacy Shield.) By providing personal information to us, you are consenting to its storage and use as described in this Policy.

Security

Linarc Inc takes precautions to protect your information. When you submit sensitive information via the website, your information is protected both online and offline. Wherever we collect sensitive information (e.g. credit card information), that information is encrypted and transmitted to us in a secure way. You can verify this by looking for a lock icon in the address bar and looking for "https" at the beginning of the address of the webpage.

While we use encryption to protect sensitive information transmitted online, we also protect your information offline. Only employees who need the information to perform a specific job (for example, billing or customer service) are granted access to personally identifiable information. The computers and servers in which we store personally identifiable information are kept in a secure environment. This is all done to prevent any loss, misuse, unauthorized access, disclosure or modification of the user's personal information under our control.

The company also uses Secure Socket Layer (SSL) for authentication and private communications to build users' trust and confidence in the internet and website use by providing simple and secure access and communication of credit card and personal information.

Acceptance of Terms

By viewing this webpage, you are hereby accepting the terms and conditions stipulated within the Privacy Policy Agreement. If you are not in agreement with our terms and conditions, then you should refrain from further use of our sites. In addition, your continued use of our website following the posting of any updates or changes to our terms and conditions shall mean that you agree and acceptance of such changes.

How to Contact Us

If you have any questions or concerns regarding the Privacy Policy Agreement related to our website, please feel free to contact us at the following email, telephone number, or mailing address.

Email: info@linarc.com

Mailing Address:
‍Linarc Inc
468 N Camden Dr
Beverly Hills, California
90210

GDPR Disclosure:

If you answered "yes" to the question Does your website comply with the General Data Protection Regulation ("GDPR")? then the Privacy Policy above includes language that is meant to account for such compliance. Nevertheless, in order to be fully compliant with GDPR regulations your company must fulfill other requirements such as: (i) doing an assessment of data processing activities to improve security; (ii) have a data processing agreement with any third party vendors; (iii) appoint a data protection officer for the company to monitor GDPR compliance; (iv) designate a representative based in the EU under certain circumstances; and (v) have a protocol in place to handle a potential data breach. For more details on how to make sure your company is fully compliant with GDPR, please visit the official website at https://gdpr.eu. FormSwift and its subsidiaries are in no way responsible for determining whether or not your company is in fact compliant with GDPR and takes no responsibility for the use you make of this Privacy Policy or for any potential liability your company may face in relation to any GDPR compliance issues.

COPPA Compliance Disclosure:

This Privacy Policy presumes that your website is not directed at children under the age of 13 and does not knowingly collect personal identifiable information from them or allow others to do the same through your site. If this is not true for your website or online service and you do collect such information (or allow others to do so), please be aware that you must be compliant with all COPPA regulations and guidelines in order to avoid violations which could lead to law enforcement actions, including civil penalties.

In order to be fully compliant with COPPA your website or online service must fulfill other requirements such as: (i) posting a privacy policy which describes not only your practices, but also the practices of any others collecting personal information on your site or service — for example, plug-ins or ad networks; (ii) include a prominent link to your privacy policy anywhere you collect personal information from children; (iii) include a description of parental rights (e.g. that you won't require a child to disclose more information than is reasonably necessary, that they can review their child's personal information, direct you to delete it, and refuse to allow any further collection or use of the child's information, and the procedures to exercise their rights); (iv) give parents "direct notice" of your information practices before collecting information from their children; and (v) obtain the parents' "verifiable consent" before collecting, using or disclosing personal information from a child.

For more information on the definition of these terms and how to make sure your website or online service is fully compliant with COPPA please visit https://www.ftc.gov/tips-advice/business-center/guidance/childrens-onlineprivacy-protection-rule-six-step-compliance. FormSwift and its subsidiaries are in no way responsible for determining whether or not your company is in fact compliant with COPPA and takes no responsibility for the use you make of this Privacy Policy or for any potential liability your company may face in relation to any COPPA compliance issues.