Koastie, LLC Terms of Service
This Terms of Service (“Agreement”) is made and entered into as of [DATE] (“Effective Date”), by and between Koastie, LLC, a Florida limited liability corporation having an address at 23110 State Road 54, PMB 197, Lutz, Florida 33549, email: notices@koastie.com, (“Koastie”) and (ii) [ORGANIZATION] a [STATE] [RESIDENT, OR CORPORATION OR LIMITED LIABILITY COMPANY] having an address at [ADDRESS], email: [EMAIL] (“Customer”) (a/the “Party(ies)”).
Whereas, Koastie is engaged in the business of providing software as a service for the purpose of coordinating the rental and provision of beach equipment of various types to guests (“Services”), Koastie desires to supply such services to Customer, and Customer desires to obtain such services from Koastie, all in accordance herewith, Now, Therefore, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereby mutually agree to all of the provisions hereof.
1. License.
(a) Grant. Subject to the terms and conditions of this Agreement, Koastie hereby grants to Customer, for the Term of the Agreement, the right to access and use the Services and to permit certain designated individuals, including Customer’s employees and independent contractors (“Authorized Users”) to access and use the Services. Only Authorized Users will be permitted to access and use the Services.
(b) Reservation of Rights. Subject to the limited rights granted hereunder, as between Koastie and Customer, Koastie reserves all rights, title, and interest in and to the Services, including all related intellectual property rights therein. No rights are granted to Customer or Authorized Users hereunder other than as expressly set forth herein.
(c) Modifications. Koastie reserves the right to modify any and all aspects of the Services in its sole discretion, without notification to or approval from Customer.
(d) Scope. Customer will have no right to distribute any portion of Services in whole or in part or otherwise to operate Services as a service bureau to third parties. Nothing in this Agreement will obligate Koastie to continue providing access to any Service beyond the date when Koastie ceases providing the Services to Customers generally.
(e) Restrictions.
(i) Customer may not, and may not permit others to:a. reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code form of Services;
b. modify, translate, adapt, alter, or create derivative works of Services;
c. copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit Services;
d. distribute, sublicense, rent, lease, or loan Services to any third party or grant any third party access to or use of Services or any Services;
e. remove, alter, or obscure any proprietary notice that appears on Services;
f. use Services for the purposes of competing with Koastie;
g. publish or disclose the results of any benchmarking of Services, or use such results for any other software development activities;
h. use Services, or allow the transfer, transmission, export, or re-export of all or any part of Services, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction;
i. use Services in a manner that violates any applicable local, state, national, or international law or governmental regulation, policy, procedure, or ordinance, or any rights of a third party; or
j. use Services if this Agreement has been terminated by Koastie.
(ii) Customer represents, covenants, and warrants that Customer will use Services only in compliance with the terms of this Agreement and Koastie’s standard published policies then in effect, including without limitation the Privacy Policy, posted at https://koastie.com/privacy-policy/, which is incorporated herein by this reference, as well as all applicable laws and regulations.
2. Fees and Payment.
(a) Fees. Customer will pay such fees as specified on the relevant invoice provided by Koastie to Customer at the end of every month (“Fees”). Except as otherwise specified herein: (i) Customer shall take the steps necessary to integrate Customer’s choice of payment processor with the Services and shall directly collect all consumer payments for transactions through the Services, and Koastie shall take no responsibility for collecting such consumer payments; (ii) Fees shall be calculated to equal one (1) percent of the aggregate monetary value of all transactions facilitated by the Services each month; (iii) payment obligations are non-cancelable, and Fees paid are non-refundable; and (iv) Customer shall make payment to Koastie within thirty (30) days of the date specified on the invoice by ACH or by check. Customer shall reimburse Koastie for its reasonable, documented, out-of-pocket expenses in performing the Services. All fees for Services specified herein are exclusive of any U.S. federal, state, or local sales, excise, use, value-added, or other taxes and tariffs. Customer shall pay all taxes that, as per applicable law, accrue to the buyer or beneficiary of services of the type provided by Koastie to Customer hereunder.
(b) Late Payments. If any undisputed amounts invoiced hereunder are not received by Koastie by the due date, then at Koastie’s discretion: (i) such charges may accrue interest at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If a bona fide good faith dispute exists regarding amounts due on an invoice, Customer will pay the undisputed items, promptly report the disputed items to Koastie, and work diligently to promptly resolve such dispute. Customer will pay the amount, if any, mutually agreed to be due with respect to any disputed items promptly after resolution of the dispute. Bank fees for returned checks shall be reimbursed by Customer.
(c) Suspension of Service. If any charge owing by Customer is thirty (30) days or more overdue or if Customer is in default of any other provision of this Agreement, Koastie may, without limiting its other rights and remedies, suspend Customer’s access to the Services until Customer is in compliance with its obligations or terminate this Agreement without notice, obligation, or liability to Customer.
3. Onboarding Customer Content; Non-Circumvention.
(a) Customer Content. Promptly following the execution of this Agreement, the Parties shall determine a mutually agreeable schedule and deadline for the set-up and onboarding of Customer’s inventory onto the Services. Customer shall provide Koastie with a sufficiently detailed inventory list for Koastie’s use in providing the Services, including without limitation the name, description, site location, and number of each piece of Customer’s rental equipment, and other pertinent information. In the event that Koastie develops any software specifically to provide Services to Customer, the rights thereto and therein shall be owned by and remain with Koastie in accordance with Section 4 hereof.
(b) Non-Circumvention. Customer agrees that Customer will not, and that Customer will prevent Authorized Users from taking steps to, circumvent the Services or attempt to solicit the targeted pool of consumers of Services, in any manner directly or indirectly, to the exclusion of Koastie and with the purpose to circumvent the involvement of Koastie to the detriment of Koastie’s business. Customer shall keep full, true, and accurate books of accounts based on good accounting principles and other records containing relevant information and data which may be necessary to ascertain and verify the remuneration payable to Koastie hereunder. During the Term hereof and for a period of two (2) years following the termination of the Agreement, Koastie shall have the right to audit, or have an agent, accountant, or other representative, audit such books, records, and supporting data upon thirty (30) days written notice to Koastie. Any audit shall be at Koastie’s expense, except that Customer shall reimburse Koastie for the cost of the audit in the event Koastie discovers an underpayment of five percent (5%) or more of the amount due.
4. Proprietary Rights.
(a) Ownership by Koastie. As between Koastie and Customer, Koastie exclusively owns all right, title, and interest in and to Services. Koastie will retain exclusive ownership of (including all intellectual property rights) any ideas, concepts, know-how, techniques, expertise, tools, methods, or other materials used in connection with performing Services: (i) that have been previously developed or are separately developed by Koastie; (ii) that represent an improvement, change, modification, or enhancement thereof; (iii) that are authored, created, invented, developed, or reduced to practice by Koastie in the course of its performance hereunder; or (iv) that are of general application and not unique or specific to Customer. In the event that any ownership rights thereto or therein vest initially in Customer, upon Koastie’s written request, Customer shall thereupon assign, and upon subsequent creation thereof automatically will assign, to Koastie, ownership thereof without further consideration. From time to time upon Koastie’s request and at Koastie’s expense, Customer will confirm such assignments by execution and delivery of written documentation in the form provided by Koastie.
(b) Suggestions. Koastie will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into Services or any Service any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Authorized Users, relating to the operation of Services, excluding Confidential Information (as defined herein) of Customer pertaining to its business.
5. Indemnification.
(a) Indemnification by Koastie. Subject to the provisions of this Agreement, Koastie will defend, indemnify, and hold Customer harmless against any loss, damage, or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party: (i) alleging that the use of Services as contemplated hereunder infringes any U.S. copyright or trademark; (ii) based on a breach by Koastie of its confidentiality obligations under this Agreement, provided that Customer: (a) promptly gives written notice of the Claim to Koastie, subject to the terms of Section 10(a) hereof; (b) gives Koastie, at Koastie’s expense, sole control of the defense and settlement of the Claim (provided that Koastie may not enter into any settlement or compromise for any Claim that would adversely affect Customer without Customer’s prior written consent); and (c) provides to Koastie, at Koastie’s cost, all reasonable assistance. If any Claim prevails, Koastie will, as applicable, promptly: (1) procure for Customer the right to continue using Services, as applicable; or (2) replace or modify Services to make it non-infringing without material adverse impact on the functionality of Services. If neither of the above remedies is commercially practicable, Koastie may terminate the Agreement. Koastie’s obligation to provide Services after notice of termination as set forth in the prior sentence will not apply if the provision thereof, in Koastie’s sole opinion, would cause Koastie to continue to incur damages for infringement. Further, Koastie will have no liability to indemnify, defend, or hold Customer harmless if the alleged infringement is based on Customer’s use of Services or Services other than in accordance with this Agreement or Claims resulting solely from Customer’s alteration of Services.
(b) Indemnification by Customer. Customer will defend Koastie against any Claim made or brought against Koastie by a third party alleging any act or omission of Customer constituting gross negligence or willful misconduct. Customer will indemnify Koastie for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Koastie in connection with any such Claim, provided that Koastie: (i) promptly gives Customer written notice of the Claim, subject to the terms of Section 10(a) hereof; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Koastie of all liability); and (iii) provides to Customer all reasonable assistance, at Customer’s cost.
(c) Exclusive Remedy. This Section 5 states the indemnifying Party’s sole liability and the indemnified Party’s exclusive remedy for any type of Claim described in this section.
6. Limitation of Liability.
OTHER THAN AS MAY BE SET FORTH HEREIN, KOASTIE AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY: (i) FOR ERROR, INTERRUPTION OF USE, LOSS, INACCURACY, CORRUPTION OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, BREACH OF PERSONALLY IDENTIFIABLE INFORMATION, OR LOSS OF BUSINESS; (ii) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; (iii) FOR ANY MATTER BEYOND KOASTIE’S REASONABLE CONTROL; OR (iv) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO KOASTIE FOR SERVICES OR SERVICES UNDER THIS AGREEMENT IN THE ONE (1) MONTH PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT KOASTIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Term; Early Termination.
(a) Term of Agreement. This Agreement commences on the Effective Date and continues for twelve (12) months (“Initial Term”) and will automatically renew on an annual basis each year thereafter, unless either Party provides written notice of non-renewal to the other Party no less than thirty (30) calendar days prior to the end of the relevant Term (Initial Term together with renewal terms, “Term”). Either party can terminate this Agreement without Cause by notifying the other Party in writing no less than (60) days prior to the intended termination date, subject to the terms of Section 10(a) hereof. Early termination fees will apply in the event of early termination hereof.
(b) Term of Services. Services shall commence on the Effective Date hereof and continue for the length of Term hereof. Subject to Section 2(a), the recurring pricing during any automatic renewal term will be the same as that during the immediately prior term unless Koastie has given Customer written notice of a pricing change, in which case the pricing change will be effective upon renewal and thereafter.
(c) Early Termination Fees In the event Customer terminates the Agreement without Cause more than sixty (60) days before the expiration of the Initial Term, Customer agrees to pay early termination fees in the amount of two thousand four hundred dollars ($2,400.00) no later than the effective date of termination hereof and in the manner set forth in for payments herein, to reimburse Koastie for Koastie’s time and materials expended during Customer’s onboarding process.
(d) Termination for Cause. A Party may terminate this Agreement for cause (“Cause”): (i) upon five (5) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; (ii) as provided for in this Agreement; or (iii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
(e) Return of Customer Data. Prior to the expiration of the Term, Customer may download, at no additional cost to Customer, file(s) of all such data that is collected, processed, or generated by, or stored with, Services (“Customer Data”). Customer Data shall be available for download. After expiration of the Term, Koastie will have no obligation to maintain or provide Customer Data and will thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
8. Confidentiality.
(a) Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limitation, Confidential Information of Customer will include Customer Data and Confidential Information of Koastie will include Services; and Confidential Information of each Party will include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) is or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is or was received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is or was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
(b) Protection of Confidential Information. The Receiving Party will: (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
(c) Protection of Customer Data. As between Koastie and Customer, Customer exclusively owns all rights, title, and interest in and to all Customer Data. Customer Data is deemed Confidential Information of Customer. Koastie will not access and will cause its Affiliates, agents, contractors, and representatives not to access, Authorized User accounts or the content therein, including Customer Data, except to respond to Customer’s service or technical problems or at Customer’s request. Without limiting the above, Koastie will use commercially reasonable efforts to maintain the security and integrity of Services and Customer Data. Koastie will not: (i) modify Customer Data; (ii) disclose Customer Data except as compelled by law in accordance with the “Compelled Disclosure” hereof; or (iii) access Customer Data except to provide Services and to prevent or address service or technical problems, or at Customer’s request in connection with customer support matters. Koastie will use commercially reasonable efforts (but not less rigorous than accepted industry standards) and enforce administrative, technical, and physical safeguards to: (i) reasonably protect and maintain the security and confidentiality of any Customer Data in its possession; (ii) safeguard such Customer Data from and against loss or theft or unauthorized access, use or disclosure; and (iii) comply in all material respects with applicable laws and regulations. In the event of an actual, threatened, or suspected breach in the security of any Customer Data in its possession, Koastie will take such steps as may be required by applicable law as reasonably necessary to prevent or halt such activity and will promptly notify Customer.
(d) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(e) Equitable Relief. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
9. Warranties; Disclaimers.
(a) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(b) Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
(ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
(iv) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
10. Miscellaneous.
(a) Notice. Except for notices of termination or an indemnifiable claim, all notices to a Party hereunder will be in writing, and will be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the first business day after sending by email. In the event of termination or request for indemnification, notice shall consist of an email and a written notice sent by certified mail return receipt. Notices will be sent to the addresses for each Party set forth above or to a different address which a Party may give written notice of pursuant to this Section from time to time.
(b) No Class Actions. Customer agrees to only resolve disputes with Koastie on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative actions.
(c) Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
(d) Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, without consent of the other Party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
(e) Survival. All provisions of this Agreement that by their nature should survive this Agreement’s termination shall survive.
(f) Digital and Electronic Execution; Copies and Delivery; Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument. The Parties agree that an original signature, either handwritten or digital, or a copy thereof, transmitted by fax or by PDF via email shall constitute an original signature under this Agreement. The Parties: (a) are agreeing that each may use electronic signatures to execute this Agreement; and (b) by doing so agree to being subject to the provisions of the United States E-SIGN Act (i.e., the Electronic Signatures in Global and National Commerce Act (enacted June 30, 2000 and codified at 15 U.S.C. ยง 7001 et seq.)).
(g) Waiver of Rights. All remedies available to either Party for breach of this Agreement are cumulative and nonexclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter.
(h) Injunctive Relief. Either Party will be entitled, in addition to any other rights available under this Agreement, to seek injunctive relief.
(i) Severability. If any provision of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent by any court of competent jurisdiction, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect and unchanged.
(j) Governing Law; Venue. This Agreement, as well as any and all disputes arising out of or related hereto, will be governed by and construed in accordance with the laws of the State of Florida, United States of America, without regard to any conflict or choice of law principles. Each of the Parties will submit to the jurisdiction of the competent courts of Florida located in Hillsborough County, Florida, in any actions or proceedings arising out of or relating to this Agreement.
(k) Force Majeure. Neither Party will be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including fire, weather, power outage, internet outage, or other casualty, acts of God, strike or labor dispute, war or other violence, or any law, order, or requirement of any governmental agency or authority. Performance time will be considered extended for a period of time equivalent to the time lost because of any such excused delay. If any such delay endures more than sixty (60) days, the Parties will meet and review in good faith the desirability and conditions of this Agreement.
(l) Entire Agreement. This Agreement and any other documents incorporated herein constitute the entire agreement between the Parties and supersede all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement (“Modification”) will be effective unless in writing and signed by the Party against whom the Modification is to be asserted. For the sake of clarity, SMS text messaging shall not be a valid method to effect any Modification. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of this Agreement will prevail.
Acceptance