Master Services Agreement
(Last Revised February 28, 2025)
This Master Services Agreement (“MSA” or “Agreement”) is entered into by Qubiqle, Inc. a Delaware Corporation (“Ottimate”) and Customer.
BY EXECUTING A PROPOSAL AS OF THE DATE OF EXECUTION OF AGREEMENT AND/OR BYACCESSING OR USING ANY OF THE SERVICES, INFORMATION, SOFTWARE AND FUNCTIONALITY, INCLUDING UPDATES AND NEW PRODUCT RELEASES BY OTTIMATE AS OF THE DATE OF SUCH USE,CUSTOMER AGREES TO THE TERMS OF SERVICE OF THIS AGREEMENT AND OF OTTIMATE’S PRIVACY POLICY (WHICH IS AVAILABLE HERE.) IF CUSTOMER IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT AND THE PRIVACY POLICY ON BEHALF OF THE CUSTOMER’S LEGAL ENTITY, CUSTOMER REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY. IF CUSTOMER DOES NOT AGREE WITH THIS AGREEMENT OR THE PRIVACY POLICY, CUSTOMER MUST NOT EXECUTE THE PROPOSAL.
In consideration of the mutual agreements below, and intending to be legally bound, the parties agree:
1. GENERAL TERMS
1.1. Customer hereby engages Ottimate to provide the Services as set forth in any executed proposal(s) under this Agreement (“Proposal”). Neither party shall be bound by any draft Proposal until such Proposal is executed by both parties. Except as otherwise provided herein, if any of the terms and/or conditions of this Agreement conflict with any of the terms and/or conditions of any Proposal, the terms and/or conditions of such Proposal will control solely with respect to the Services covered under such Proposal.
1.2. Through Customer’s use of Services, Customer may be asked by Ottimate to use certain third-party services (e.g. accounting software, inventory platforms, vendor pay services, etc.). Customer understands that Ottimate cannot control and is not responsible for Customer use of these third-party services. As such, between Customer and Ottimate, Customer’s use of such third-party services shall be at Customer’s sole and exclusive risk and may require Customer to accept such third parties’ terms of service.
2. CUSTOMER’S RIGHTS TO USE THE SERVICES
2.1. Subject to Customer’s acceptance and compliance with this Agreement, and unless otherwise expressly approved by Ottimate in writing and executed by an authorized agent of Ottimate, Ottimate grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, and revocable right and license to use and access the Services via the Internet and under the terms of this Agreement. Any new Services or product updates or improvements provided to Customer by Ottimate are subject to these same terms.
2.2. Customer shall not: (i) use nor allow any unauthorized third party to use the Services or content in any way that violates any law, regulation, or this Agreement, (ii) themselves nor allow any unauthorized third party to reproduce, distribute, share, sell, transfer, lend, or modify the Services in any manner, and (iii) attempt to reverse engineer, disassemble, or decompile any part of the Services and the software that makes up the Services.
2.3. Other than with respect to the limited rights granted herein, all right, title and interest in and to the Services and all underlying software, including all rights under the patent, copyright and trademark laws of the United States (“Intellectual Property Rights”) shall remain solely in Ottimate. Customer acknowledges that the software underlying the Services is confidential and proprietary to Ottimate and Customer shall not disclose such software to or permit access to the Services to any third party including, without limitation, any person, client, organization, governmental agency, non-profit organization, or other entity, or the employees or agents thereof, whether on a for-profit, loan, gratuitous, temporary, or other basis, whether through consulting, training, or other services provided by Customer, or in any other manner.
3. PAYMENT
The following terms apply to Customer’s use of the Services unless stated otherwise in the Proposal.
3.1. Payments will be billed to Customer in U.S. dollars.
3.2. Customer must pay electronically with a valid credit/debit card or ACH Payment via the Ottimate billing system. Such payment method will be auto-debited when due, unless otherwise stated in an applicable Proposal. In accordance with such requirement, Customer hereby authorizes Ottimate to automatically charge the Customer provided credit or debit card or ACH account for the fees (plus applicable sales tax) in advance or as set forth in the Proposal and without any further authorization from Customer. In addition to this, Ottimate reserves the right to charge an additional 3% on top of all credit card and debit card transactions.
3.3. Unless otherwise stated in the Proposal, the Recurring Billing Start Date will begin on the date of registration for the services.
3.4. If Customer’s payment and registration information isn’t correct or complete, or if Customer does not notify Ottimate promptly when such information changes, Ottimate may suspend or terminate Customer’s account and prohibit its use of any of the Services.
3.5. Unless otherwise stated in the applicable Proposal, Ottimate will automatically renew Customer’s Services each contracted period at the then current payment rates unless these Services are terminated pursuant to this Agreement.
3.6. Unless otherwise stated in the applicable Proposal, each Document (i.e. an uploaded item that consists of one document, reflects one or part of one transaction and comprises of between 1 and 4 pages) shall be treated as a single billable Document. Each additional 1 through 4 pages reflecting the same transaction shall be treated as additional billable Documents. Duplicate pages reflecting the same transaction shall also be treated as additional billable Documents. For certain of Customer’s vendors, Ottimate may reach out to such vendors on the Customer’s behalf to provide Documents in a pdf format to ensure that Customer receives accuracy in the Services. If Customer applies a threshold to its account, any Documents uploaded beyond such threshold shall become additional billable Documents. For example, if Customer uploads 243 Documents, but has a threshold of only 200, then Customer will be billed at the standard rate for 43 Documents in addition to Customer’s standard monthly fee.
3.7. If Customer has a bona fide dispute in relation to any portion of the fees invoiced, Customer must pay all invoiced fees and shall provide notice to Ottimate in writing within thirty (30) days from the date of the invoice. Such notice shall set forth the details surrounding the dispute. The parties shall discuss the disputed fees within five (5) calendar days of the date of the notice. In the event the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to arbitration as described herein.
3.8. When the dispute is resolved, (a) if a payment is owed to Ottimate, such payment shall be made within ten (10) calendar days of the resolution of such dispute or (b) if an amount is owed to Customer, Ottimate, in its sole discretion, shall either (i) credit such amount to Customer’s account within twenty (20) calendar days of the resolution of such dispute (or within such other timeframe as mutually agreed upon by the parties in writing), or (ii) apply a prorated credit amount to Customer’s account for the remainder of the then-current term.
3.9. For avoidance of doubt, all negotiations pursuant to this Section 3.9 shall be treated as confidential compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration or litigation.
3.10. If Customer fails to make any payment when due then, in addition to all other remedies that may be available to Ottimate, Ottimate may charge interest on the past due amount at the rate of 1.50% per month calculated monthly and compounded monthly or, if lower, the highest rate permitted under applicable Law.
3.11. Customer shall reimburse Ottimate for all reasonable costs incurred by Ottimate in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees.
3.12. Notwithstanding any of the foregoing, Customer waives the right to dispute any fees not disputed within sixty (60) calendar days after the date of the applicable invoice.
3.13. Ottimate reserves the right to increase the contracted recurring fees outlined in the Proposal by 5% annually on the contract renewal date.
4. CONTENT
4.1. Customer is responsible for all documents, data, and personal information
(“Content”) uploaded or entered as part of Customer’s use of the Services. Ottimate is not responsible for the Content Customer uploads or enters. Customer agrees not to use nor permit any third party to use the Services to upload, distribute, or reproduce any of the following: Illegal, obscene, fraudulent, or pornographic Content; commercial solicitations of any kind: viruses, malware, or other harmful software or Content; and Content for which the copyright or intellectual property owner does not grant Customer permission.
4.2. Ottimate may use any feedback and Content that Customer provides Ottimate in any way, such as improving its Services to Customer and other Ottimate customers (but in an anonymized manner), offering new services and products, and for advertising purposes. As such, Customer hereby grants to Ottimate worldwide, non-exclusive, fully paid-up, perpetual license to use the Content in any manner reasonably necessary for the proper functionality and improvement of Ottimate’s services.
5. HOSTING: AVAILABILITY OF SOFTWARE; UPDATES
5.1. Ottimate shall host the software and data underlying its Services on its computer servers or on servers hosted by third parties, and shall make the Services available to Customer via the Internet.
5.2. Customer acknowledge that access to the Services may be affected by certain mandatory actions by Ottimate, or by events beyond the control of Ottimate, including but not limited to: (i) malfunction or failure of computer hardware or software; (ii) periodic maintenance procedures or repairs which Ottimate may undertake from time-to-time; or (iii) causes beyond the control of Ottimate or which are not reasonably foreseeable by Ottimate, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures.
5.3. Ottimate shall provide, at no additional charge, updates, enhancements, bug fixes and other upgrades to the Services as they become commercially available.
6. NONDISCLOSURE AND CONFIDENTIALITY
6.1. Except for as otherwise provided in this Agreement, during the Term and for a period of one (1) year thereafter, both parties, including their employees, agents, and all other contractors, shall use commercially reasonable efforts, consistent with good business policy and no less than the same degree of care it uses with respect to its own confidential and proprietary information of like importance, to protect the confidentiality of: (a) all terms and conditions of this Agreement and Order Form; (b) Content, but only to the extent that such Content was treated as being confidential and proprietary by Customer, (c) rates that have yet to be released to the general public; (d) information that is reduced to writing and labeled as confidential or proprietary; and I information which, by the nature of the circumstances surrounding the disclosure or the content of the information, in good faith ought to be treated as proprietary and/or confidential (collectively “Confidential Information”).
6.2. Furthermore, both parties agree to use Confidential Information of the disclosing party only for the specific purposes related to performance of this Agreement, and to inform all of their employees and agents that have Access to the Confidential Information of the strictly confidential nature of the information and terms of this Agreement. All Confidential Information remains the exclusive property of the disclosing party and no license or other agreements to such Confidential Information is granted or implied hereby except as expressly provided herein. Upon the expiration or termination of this Agreement, any Confidential Information shall be returned to the disclosing party, or destroyed pursuant to the disclosing party’s reasonable instructions, and the non-disclosing party shall cease use of any Confidential Information.
7. TERM & TERMINATION
7.1. Agreement Term. The term of this Agreement shall commence on the Recurring Billing Start Date as set forth in the Proposal and shall continue thereafter until terminated in accordance with the terms and conditions set forth in the Proposal and herein.
7.2. Termination for Breach. If a party materially breaches this Agreement and/or any Proposal (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or the Proposal upon written notice to the Defaulting Party. Termination of Proposal and/or this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement or at law or in equity.
7.3. Termination for Insolvency or Dissolution. Either party may terminate this Agreement and/or Proposal immediately in the event the other party becomes Insolvent, ceases to do business, or otherwise terminates its business operations without a successor. “Insolvent” or “Insolvency” shall mean a party that makes an assignment for the benefit of creditors, has a receiver, trustee, custodian (or similar party) appointed or designated to administer its affairs or otherwise take control of its assets or business operations, becomes a debtor in a voluntary proceeding under any chapter of the United States Bankruptcy Code or any law or statutory scheme relating to insolvency, reorganization or liquidation, or an involuntary petition in bankruptcy, or other insolvency proceeding is filed against a party and is not dismissed within ninety (90) calendar days thereafter.
7.4. Termination for Convenience. This Agreement may be terminated by either party upon the expiration of a Term, provided the party has provided at least thirty (30) days’ written notice of termination prior to such expiration. Upon termination, Customer will pay all outstanding fees, charges and expenses owed through the entire term of this Agreement and/or the applicable Proposal as if such Agreement and/or Proposal had not been terminated. For the avoidance of doubt, any pre-paid fees are non-refundable.
7.5. Renewal. Except as set forth in an applicable Proposal, this agreement shall automatically renew for additional periods equivalent to the initial period (each, a “Renewal Term”) (the Initial Term and each Renewal Term collectively, the “Term”) until terminated in accordance with this Agreement or an applicable Proposal. In the event that Ottimate modifies its prices for a renewal period, it shall provide at least a thirty (30) day prior notice of such modification to Customer and Customer shall have the option to terminate the applicable Proposal before the Renewal Period commences by contacting Ottimate customer support. If Customer fails to terminate the applicable Proposal before the Renewal Term commences, such Renewal Term shall be effective by and between the parties.
7.6. In lieu of termination of this Agreement, Ottimate may elect to suspend access to the Services while any uncured default remains outstanding, without waiving its right to thereafter terminate this Agreement.
8. DISCLAIMER OF WARRANTIES
8.1. CUSTOMER’S USE OF THE SERVICES AND ANY DELIVERABLES IS AT ITS SOLE RISK. THE SERVICES, MATERIALS AND DELIVERABLES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. OTTIMATE AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. OTTIMATE DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICES OR DELIVERABLES. ANY MATERIAL THAT CUSTOMER AND/OR ITS USERS ACCESS AND/OR OBTAINS THROUGH THE SERVICES IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTERS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE SERVICES. OTTIMATE DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE SERVICES AND DELIVERABLES WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
8.2. OTTIMATE AND ITS THIRD-PARTY AFFILIATES DISCLAIM ANY WARRANTIES THAT CUSTOMER’S USE OF THE SERVICES WILL ENSURE COMPLIANCE WITH ANY LEGAL REQUIREMENTS, LAWS, OR REGULATIONS.
9. LIMITATION OF LIABILITY
9.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND/OR ANY PROPOSAL, OTTIMATE AND ITS SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE AND/OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF OTTIMATE HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM USE OF THE SERVICES AND/OR DELIVERABLES. UNDER NO CIRCUMSTANCES WILL OTTIMATE OR ITS SUPPLIERS AND LICENSORS TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT CUSTOMER HAS PAID TO OTTIMATE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THIS SECTION IS FUNDAMENTAL AND THE SPECIFIC REQUIREMENTS HEREIN SHALL BE CONSIDERED THE BASIS OF THE BARGAIN BETWEEN CUSTOMER AND OTTIMATE, AND OTTIMATE WOULD NOT BE ABLE TO PROVIDE THE SERVICES OR PERFORM ITS OBLIGATIONS SET FORTH HEREIN WITHOUT CUSTOMER’S AGREEMENT TO SUCH TERMS.
10. INDEMNIFICATION OF OTTIMATE
10.1. Customer will indemnify, defend and hold Ottimate, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, contractors, subcontractors and assigns harmless from and against any costs, damages, expenses, losses, damages, demands and expenses, including reasonable attorney fees, and liabilities arising out of, and/or relating to, any claim (“Claim”) arising out of or related to (i) Customer’s acts and/or omissions, (ii) Customer’s use of the Services, and/or (iii) Ottimate’s use of the User Content constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property and/or proprietary right of any third party, and/or constitutes the unauthorized use and/or misappropriation of any trade secret of any third party. Ottimate may reasonably participate in such defense, at its sole expense.
10.2. Ottimate will indemnify, defend and hold Customer, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, contractors, subcontractors and assigns harmless from and against any costs, damages, expenses, losses, damages, demands and expenses, including reasonable attorney fees, and liabilities arising out of, and/or relating to, any third party claim (“Claim”) alleging that the services provided by Ottimate based on the Proposal results in the infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property and/or proprietary right of any third party, and/or constitutes the unauthorized use and/or misappropriation of any trade secret of any third party. Customer may reasonably participate in such defense, at its sole expense.
11. VENDOR PAY & SPEND MANAGEMENT SERVICES
11.1. Ottimate’s Vendor Pay Service (“Vendor Pay”) is an optional feature for Ottimate customers that allows them to generate and authorize the sending of bill payment checks, ACH (Automated Clearing House), Fast ACH and virtual credit card bill payments on the Ottimate site. Customer is exclusively and solely responsible for all payments generated, authorized, printed, and mailed as part of the Vendor Pay Service. Customer will use best efforts to exclusively use Ottimate’s virtual credit card in connection with Vendor Pay.
11.2. Ottimate’s Spend Management Service (“Spend Management”) is an optional feature for Ottimate customers that allows them to manage company expenses with pre-funded Ottimate credit cards for specific purposes on the Ottimate site. Customer is exclusively and solely responsible for all payments generated, authorized, and distributed as part of the Spend Management Service.
11.3. Ottimate shall not be liable or responsible in any way for the accuracy or validity of Customer’s banking information, including its account and routing numbers and who is authorized to access this information. Ottimate is not liable to Customer or any third-party, banking institution, or vendor for any unauthorized or incorrect payments generated, authorized, printed, or mailed as part of the Vendor Pay Service, nor any fees assessed to Customer, any vendors, or any bank due to unauthorized, incorrect, or returned payments.
11.4. Ottimate is not liable or responsible for verifying vendor addresses or ensuring delivery of any checks mailed out as part of the Vendor Pay Service. Please verify all addresses and vendor banking account information before initiating payments. Should Customer choose to use the Ottimate Balance Check feature to check Customer’s bank account balance, Customer authorizes Ottimate and its ACH payment partner (“ACH Partner”) to gather balance information from Customer’s bill pay bank account.
11.5. Positive Pay for Check Payments. Customer with Vendor Pay enabled for any location is expected to have Positive Pay turned on with their bank(s) for all check payments; Ottimate will facilitate the Positive Pay file in the Customer’s bank preferred format at no charge.
11.6. Using ACH Payments. In order to use the ACH or Fast ACH payment functionality(ies), Customer must open an “Access API” account provided by Ottimate’s ACH Partner, and Customer must accept the ACH Partner’s Terms of Service and Privacy Policy. Any funds held in the ACH Partner’s account are held by the ACH Partner’s financial institution partners as set out in the ACH Partner’s Terms of Service
11.7. Customer authorizes Ottimate to share Customer’s identity and account data with the ACH Partner for the purposes of opening and supporting Customer’s ACH Partner account, and Customer is and will be responsible for the accuracy and completeness of that data. Customer understands that Customer will access and manage its ACH Partner account through the Plate IQ application, and the ACH Partner account notifications will be sent by Ottimate, not the ACH Partner. Customer authorizes the ACH Partner to share its bank account number and routing number with Ottimate for the purpose of Ottimate’s provision of services to Customer, subject to Ottimate’s Privacy Policy.
11.8. Ottimate will provide customer support for Customer’s ACH Partner account activity, and can be reached at support@plateiq.com.
11.9. Vendor ACH Payment Information. Customer expressly (a) authorizes the ACH Partner to (i) originate credit transfers to Customer’s financial institution account and (ii) re-debit Customer’s financial institution account if there is a return and (b) agrees to provide Ottimate with Customer’s most recent financial statements and/or bank accounts as request by Ottimate.
11.10. Virtual Credit Card Cash Back. Customer is eligible to receive cash back on all Vendor Pay and Spend Management payments facilitated via Ottimate virtual credit cards. Cash back calculations will commence with associated virtual credit card activity once a recipient bank account is successfully set up and verified by the Customer within the Ottimate platform. Cash back is paid only to clients who remain an active Ottimate client in good standing on the cash back paid date.
11.11. Customer acknowledges that Customer’s timely provision of assistance, cooperation and complete and accurate information (“Cooperation”) is essential to the performance of payments services, and that Ottimate shall not be liable for any delay or deficiency in performing the Services if such delay or deficiency results from Customer’s failure to provide any Cooperation.
11.12. Ottimate reserves the right to pass through any taxes, fees and losses that are incurred outside normal payment processing. Such fees and losses include but are not limited to Customer business verification, checks cancellation, delayed checks due to deficiency in Customer Cooperation, ACH returns, international transactions fees, chargebacks and intentional fraudulent behavior on part of the Customer or Customer’s affiliates. Any Customer initiated payment disputes come with a $40.00 processing fee to cover incremental charges from 3rd party vendors.
11.13. International (i.e. non-USD) transactions will incur a 3.00% surcharge incremental to the transaction amount on both Ottimate’s Vendor Pay and Spend Management services
11.14. For use of Ottimate’s Spend service, a one-time deposit of $1,000 will be charged per location, to be refunded to Customer at contract termination minus any outstanding dues to Ottimate.
11.15. Customer authorizes Ottimate to engage with the Customer’s vendors to determine each vendor’s acceptable payment method(s). Ottimate’s engagement with Customer’s vendors may include phone and email communication which may reference the Customer’s name and payment details as appropriate for Ottimate’s facilitation of the Vendor Pay Service. Unless otherwise specified in the Proposal, certain fees and terms will be determined by the Ottimate VendorPay Pricing Schedule and Terms.
12. GENERAL
12.1. California state law governs this Agreement without regards to its conflicts of laws provisions. Customer and Ottimate agree to resolve disputes or claims relating to the Services or the Agreement by binding arbitration on an individual basis, and that both parties are each waiving the right to file a lawsuit and the right to a jury trial. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such rules. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.
12.2. To begin arbitration, Customer shall send a letter requesting arbitration and describing its claim to Qubiqle Inc, in care of Ottimate’s registered agent, Incorporating Services, Ltd., 3500 S. Dupont Way, Wilmington, DE 19901. Payment of all administrative and arbitrator fees will be governed by JAMS rules.
12.3. All disputes and claims within the scope of this Agreement must be arbitrated on an individual basis and not as a plaintiff or class member on a class basis, nor can the claims or disputes of one user be arbitrated in conjunction with those of another user. Customer agrees to waive the right to participate in a class action.
12.4. Customer may not assign their rights under this Agreement to any other party without Ottimate’s express written consent; Ottimate may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties’ successors and permitted assigns.
12.5. Each Proposal and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed with the signature of an authorized representative of each party. This Agreement and each Proposal constitutes the entire agreement between Ottimate and Customer concerning the subject matter hereof. All attached exhibits and Proposals are incorporated into and made a part of this Agreement. Any prior agreements or representations, either written or oral, relating to the subject matter of this Agreement are of no force or effect. Notwithstanding anything herein to the contrary, Ottimate may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement will become effective upon Customer’s execution of a new or additional Proposal in which the new terms of this Agreement will be incorporated.
12.6. If any portion or portions of this Agreement is invalid, those portions(s) will be removed, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
12.7. The parties agree that a material breach of this Agreement adversely affecting Ottimate’s intellectual property rights in the Website Services or its Confidential Information may cause irreparable injury to Ottimate for which monetary damages would not be an adequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
12.8. It is understood and agreed that the relationship of Ottimate to Customer is and shall continue to be that of an independent contractor and neither Ottimate nor any of Ottimate’s employees shall be entitled to receive Customer employee benefits. Nothing in this Agreement will be construed to create an agency or employment relationship between Customer and Ottimate for any purpose or create obligations of such party to third parties. As an independent contractor, Ottimate agrees to be responsible for the payment of all taxes and withholdings specified by law, which may be due in regard to compensation paid by Customer.
12.9. All notices required under this Agreement shall be in writing and sent to the addresses and persons set forth in the Proposal, or to such other addresses as may be designated by a party in writing. All notices shall be deemed received when (i) delivered electronically (e.g. via electronic mail); (ii) delivered personally; (iii) sent by confirmed telex or facsimile (followed by the actual document); or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt.
12.10. Any provision of this Agreement and Proposal which, by its nature, would survive termination of this Agreement and Proposal will survive any such termination of this Agreement and/or Proposal.
12.11. Notwithstanding any other provision of this Agreement and/or any Proposal to the contrary, neither party is liable for any failure to perform, or delay in performing, any particular obligations under this Agreement where the failure or delay arises from any cause or causes beyond its reasonable control, including without limitation fire, flood, earthquake, elements of nature, acts of God, acts of war, terrorism, riots, civil disorders or rebellions (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement and the applicable Proposals by giving the other party written notice if the other party fails to perform those obligations for three (3) continuous months due to such Force Majeure Event. This Section does not apply to Article 10, or any obligation to pay money, or any obligation that is unaffected by the Force Majeure Event.
12.12. Customer acknowledges and agrees that the Services provided by Ottimate are not exclusive to Customer and that Ottimate may provide such Services to other entities.
12.13. The headings and titles of the Sections of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.