Terms of Service

1. SERVICES.

1.1 General.

This Agreement applies to all Adaptive Services provided by Adaptive, including your use of the Adaptive Services to manage cashflow, bookkeeping, vendor compliance, and budgeting which is made available through integration with certain third-party products or services. The Parties understand that certain third-party products or services may be subject to additional terms and conditions, as further defined herein.

1.2 Services Orders.

Adaptive agrees to provide User access to the Adaptive Services and provide all other services necessary for productive use of such Adaptive Services including integration, management, technical support, maintenance, and professional services as agreed upon between the Parties (“Services Order”). Each Service Order incorporates this Agreement in its entirety. If any term or provision in any Service Order modifies or conflicts with the terms or conditions contained in this Agreement, this Agreement shall control. Provisions in the Service Order that are in addition to or different from any terms and conditions in this Agreement shall not become part of this Agreement.

2. LICENSE.

2.1 Licensed Uses and Restrictions.

Subject to the terms and conditions of this Agreement (including the payment of all applicable fees), Adaptive hereby grants you a worldwide (except as limited below), non-exclusive, non-sublicensable license to use the Adaptive Services as permitted under the terms of this Agreement. This Agreement defines the legal use of the Adaptive Services, all Updates, revisions, substitutions, and any copies of the Adaptive Services. All rights not expressly granted to you are reserved by Adaptive.

1. Subject to the restrictions set forth in this Agreement, you may use the Adaptive Services and any Updates provided by Adaptive solely to interface with Adaptive’s Platform and any Adaptive Services ordered by you. Your license to the Adaptive Services under this Agreement continues until it is terminated by either Party. Adaptive may make changes, or upgrades to all or any portion of any Adaptive Services at any time for any reason.
2. You will use the Adaptive Services in compliance with all Applicable Laws.
3. Adaptive shall provide Updates at no additional charge to User. Adaptive shall provide User with notice prior to implementing any Update, and User shall not make any Update that decreases the security, and/or functions of the Adaptive Services.
4. You shall NOT:
5. Use or otherwise access Adaptive Services until you have received approval from Adaptive which shall not be unreasonably withheld.
6. Use the Adaptive Services in any manner or for any purpose that violates any law or regulation, promotes illegal activities, violates any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement.
7. Modify, adapt, alter, translate or create derivative works from any Adaptive Services.
8. Copy, distribute, publicly display, transmit, sell, lease, share, transfer, sublicense, or otherwise exploit the Adaptive Services, or access.
9. Intentionally use the Adaptive Services in a manner that materially degrades the Adaptive Service.
10. Otherwise exercise rights to the Adaptive Services except as expressly allowed by this Agreement.
11. Reverse engineer or attempt to reconstruct, identify or discover any underlying ideas. underlying user interface techniques or algorithms related to the Adaptive Services.
12. Remove, obscure or alter any Adaptive’s (or any of its partner’s) copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Adaptive Services.

2.2 Ownership and Relationship of Parties.

The Adaptive 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. Adaptive’s rights apply to the Adaptive Services and all output and executables of the Adaptive 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. Adaptive (or its partners and vendors) owns all rights, title, and interest in and to the Adaptive Services. This Agreement grants you no right, title, or interest in any intellectual property owned or licensed by Adaptive or any third party, including (but not limited to) the Adaptive Services and Adaptive trademarks.

3. YOUR ADAPTIVE ACCOUNT.

3.1 Access.

Access to the Adaptive Services are only available to registered users who have expressly agreed to the terms and conditions of this Agreement. To access the Adaptive Services, you will be asked to provide certain registration details, and in some cases access to billing and reporting information. It is a condition of your use of the Adaptive Services that all the information you provide to the Company is correct, current, and complete. You agree that all information you provide to register with the Adaptive Services or otherwise is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

You are solely responsible for maintaining the confidentiality of your account information, as well as any and all activities that occur under your account. You must immediately notify us of any unauthorized use of your account and any other such security breach. We will not be liable for any loss that may occur as a result of someone else using your account or password, with or without your knowledge. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

Adaptive has the right to disable any user name, password or other identifier, whether chosen by you or provided by Adaptive, in appropriate circumstances, as determined by Adaptive, and may, with or without prior notice, suspend, terminate, or delete your account if activities occur on that account which would or might constitute a violation of this Agreement or an infringement or violation of the rights of any third party, or of any applicable laws or regulations.

3.2 Account Requirements.

Adaptive shall provide User with all necessary Account Integration Requirements, including but not limited to functional and/or technical specifications relating to all available functions and features of Adaptive’s Services, in any document form and oral or written guidance from Adaptive’s personnel during the integration. Prior to making the User Account available, User will ensure that all Integration Requirements have been met and the User’s Use complies with all Applicable Law, rules, and regulations.

4. FEES.

4.1 Fees.

The Adaptive Services fees are posted on the Adaptive Platform. The Company reserves the right to modify its fee structure at any time and without advanced notice. Temporary or permanent modifications are effective as soon as they are published on the Adaptive Platform and are applicable to all subsequent transactions or for the duration of the change as listed.

By registering for the Adaptive Services, you authorize the Company to charge your billing method at any time for any fees due. In the event that your billing method is not valid or cannot be charged by the Company, you agree to provide a new billing method immediately upon request and pay all charges and fees incurred by the Company as a result of the failed charges.

4.2 Taxes.

You are solely liable for all the taxes, fees, and commissions resulting from use of the Adaptive Services. This Agreement does not create a joint venture, partnership, or principal-agent relationship between you and the Company, or any other users, and nothing in this Agreement may be used to imply such a relationship. You agree to indemnify, defend, and hold the Company harmless from any liability for, or assessment of, any claims or penalties with respect to such taxes, labor, or employment requirements, including any liability for, or assessment of taxes imposed on the Company by the relevant taxing authorities with respect to any fees paid to you as the result of using the Adaptive Services.

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, required by the PSP or by the order or 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.

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 Adaptive Platform and Technology.

User acknowledges that Adaptive retains all rights, title and interest in and to the Adaptive Services, and that the Adaptive Services are protected by intellectual property rights owned by or licensed to Adaptive. Other than as expressly set forth in this Agreement, no license or other rights in the Adaptive Services are granted to the User. In addition, nothing in this Agreement gives 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 Adaptive.

6.2 User Data.

User retains all rights, title and interest in and to the User Data. User hereby grants to Adaptive a non-exclusive, worldwide, royalty-free and fully paid up license to: (a) access and use User Data to provide the Adaptive Services to User; provided, that, the license grant shall be perpetual and irrevocable and any use of such User Data shall be in compliance with all Applicable Law. User represents and warrants that it has all necessary rights to grant Adaptive the foregoing licenses. Notwithstanding the foregoing, to the extent an Applicable Law requires Adaptive to delete Personal Information upon request, Adaptive shall comply with all such laws, rules and regulations even if such information is User Data. In the event Adaptive is required to delete User Data as a result of this provision, Adaptive will promptly notify User.

6.3 Data Privacy.

Each Party shall comply with all applicable privacy laws, rules and regulations. However, the User shall be responsible for obtaining the required consents from vendors and clients to allow Adaptive to process applicable payment Information.

6.4 Data Security.

1. Adaptive Obligations. Adaptive will maintain commercially reasonable administrative, technical, and physical controls to protect User Data stored in its servers from unauthorized access, accidental loss, or modification. Adaptive 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 User shall bear the costs of such efforts.
2. User 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 Law (the “Data Safeguards”). In addition, during the Term, User will maintain physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of all data processed and sent to Adaptive.
3. In the event User becomes aware of any loss or unauthorized access, disclosure or use of any User Data that resides on Adaptive’s systems or is in possession of User (“Security Breach”), User will (i) promptly notify Adaptive 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 Adaptive becomes aware of any loss or unauthorized access, disclosure or use of any User Data held by Adaptive (“Adaptive Security Breach”), Adaptive will (i) promptly notify User in writing of such Adaptive Security Breach, and (ii) take reasonable steps to identify the cause of such Adaptive Security Breach, minimize the harm associated therewith and prevent reoccurrence thereof. Any notification of any Adaptive Security Breach and subsequent communication about the Adaptive Security Breach will describe, to the extent known, details of the Adaptive 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 Law; 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 User Representations and Warranties.

User represents and warrants to Adaptive that: (a) User shall use the Adaptive Services in compliance with all laws, regulations, rules, orders of any governmental authority, Adaptive’s Account Integration Requirements, proper disclosures and agreements, and proper vendor and client consent; (b) except as otherwise disclosed in writing by User to Adaptive, neither User nor, to the knowledge of the User, any person directly or indirectly owning ten percent (10%) or more of the equity interests in User, any officer or director of the User or any person actively participating, or having the right to participate, in the control of User’s business is or has been subject to the following: (a) criminal conviction (except minor traffic offenses and other petty offenses); (b) administrative or enforcement proceedings commenced by any Regulatory Authority; and (c) to the Knowledge of User there is not a restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or unfair or deceptive practices on the part of User or any principal thereof; (c) to the Knowledge of User, except as otherwise disclosed in writing by User to Adaptive, there is no pending, or threatened, litigation or legal proceeding of any kind, including without limitation, any judicial, tax, administrative or arbitration proceeding, which if adversely determined could reasonably be expected to materially and adversely affect User’s business, continuing operation, or ability to perform its obligations under this Agreement and (d) any information which User provides to Adaptive during the due diligence process is accurate.

7.3 Adaptive Representations and Warranties.

Adaptive represents and warrants to User that: (a) the Adaptive Services shall conform in all materials respects with this Agreement and the Documentation; (b) the Adaptive Services shall be performed in compliance with Applicable Law; and (c) Adaptive has agreements in place with third-party service providers to provide the Adaptive Services to User.

7.4 Warranty.

EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NO OTHER REPRESENTATIONS AND WARRANTIES ARE GIVEN BY ADAPTIVE OR USER AND THE ADAPTIVE SERVICES, 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, NEITHER PARTY MAKES 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 ADAPTIVE 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 date of User registration and shall be deemed renewed automatically for successive one (1) month terms unless either Party provides the other Party with written notice of its intent to not renew at least thirty (30) days prior to the expiration of the then-current term.

8.2 Termination for Material Breach.

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) User has breached the Account Integration Requirements; or (d) in the event of a Regulatory Authority (via a conclusion of regulatory proceeding, investigation, or inquiry) rules that the Applicable Law that prohibits a Party’s ability to perform its obligations as contemplated by this Agreement (each a, “Adverse Change”). Adaptive may terminate this Agreement immediately if: (a) User fails to pay the Fees within ten (10) days of a payment deadline on three (3) separate occasions within any twelve-month period; or (b) User materially breaches this Agreement.

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 THE PSP OR ADAPTIVE’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 ADAPTIVE OR USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACHES OF CONFIDENTIALITY, A PARTY’S BREACH OF THE DATA SECURITY OBLIGATIONS OR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, IN NO EVENT WILL EITHER PARTY’S (OR THE PSP’S) LIABILITY EXCEED THE FEES ADAPTIVE HAS RECEIVED FROM USER 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 FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY OR ITS EMPLOYEES. IN ADDITION, ANY LIMITATION OF LIABILITY PROVISION WHICH ADAPTIVE HAS AGREED TO WITH THE PSP FOR THE SERVICES UNDER THIS AGREEMENT SHALL ALSO APPLY TO THE USER. NOTWITHSTANDING THE FOREGOING, EITHER PARTY’S LIABILITY FOR ANY BREACH OF ITS DATA SECURITY OBLIGATIONS, WHICH INCLUDES A PARTY’S INDEMNITY OBLIGATIONS RELATED THERETO, WILL BE LIMITED TO TWO TIMES THE FEES PAID BY USER TO ADAPTIVE DURING THE TWELVE (12) MONTHS PRECEDING THE FIRST EVENT TO GIVE RISE TO SUCH LIABILITY.

9.2 Indemnification.

1. By Adaptive. If any action is instituted by a third party against User or its affiliates or its and their employees, directors, agents, representatives, successors and assigns (“User Indemnitees”) based upon all claims demands, or actions, liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) (collectively, “Claims”) that: (a) the Adaptive Service or Adaptive Platform, as delivered, infringes any third party’s intellectual property rights; (b) Adaptive’s provision of the Adaptive Services in violation of any Applicable Law, (c) Adaptive Security Breach; or (d) Adaptive’s gross negligence or willful misconduct, Adaptive shall indemnify, defend and hold harmless User Indemnitees against such Claims at its own expense on behalf of User and shall pay all damages attributable to such third party claim which are finally awarded against User or paid in settlement. If the Adaptive Service or Adaptive Platform is enjoined or, in Adaptive’s determination is likely to be enjoined, Adaptive shall, at its option and expense (a) procure for User the right to continue using the Adaptive Service, (b) replace or modify the Adaptive Platform or Adaptive Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and User’s access to the Adaptive Service and refund any amounts previously paid for the Adaptive Service attributable to the remainder of the then-current term. Adaptive shall not agree to any settlement or compromise affecting the financial or legal obligation of any User Indemnitee (including a settlement or compromise that (a) results in any admission of guilt on the part of the User Indemnitee; (b) imposes any obligation or liability on the User Indemnitee; or (c) has a judicially binding effect on the User Indemnitee) without the User Indemnitee’s prior written consent. This Section sets forth the entire obligation of Adaptive and the exclusive remedy of User against Adaptive for any claim that the Adaptive Service infringes a third party’s intellectual property rights.
2. By User. If any Claim is instituted by a third party against Adaptive or its affiliates or its and their employees, directors, agents, representatives, successors and assigns (“Adaptive Indemnitees”) relating to (a) User’s breach of Sections 6.3 and 6.4(b) of this Agreement, (b) User’s use of the Adaptive Services in violation of any Applicable Law or not in accordance with the Documentation, (c) a third party’s claim that Adaptive’s Services in accordance with this Agreement and any instructions provided by User misappropriate, violate, or infringe any third-party intellectual property right, or (d) any Security Breach, User will defend such action at its own expense on behalf of Adaptive 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 Adaptive and the entire liability of User for the claims and actions described herein. User shall not agree to any settlement or compromise affecting the financial or legal obligation of Adaptive Indemnitee (including a settlement or compromise that (a) results in any admission of guilt on the part of the Adaptive Indemnitee; (b) imposes any obligation or liability on the Adaptive Indemnitee; or (c) has a judicially binding effect on the Adaptive Indemnitee) without the Adaptive Indemnitee’s prior written consent.
3. 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 Claim, for which it is seeking an indemnity hereunder, and (b) give the Indemnifying Party the sole control over the defense of such Claim.

10. THIRD PARTY SOFTWARE AND SERVICES

The Adaptive Services provide you with access to and/or integration with third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, products or services (hereinafter “External Services”).

Adaptive does not have or maintain any control over External Services and is not and cannot be responsible for their content, operation or use. By linking or otherwise providing access to any External Services, Adaptive does not give any representation, warranty, or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by such External Services.

External Services have their own terms and conditions and/or privacy policy and may have different practices and requirements to those operated by Adaptive with respect to the Adaptive Services. You are solely responsible for reviewing any terms and conditions, privacy policy, or other terms governing your use of these External Services, which you use at your own risk. You are advised to make reasonable inquiries and investigations before entering into any transaction, financial or otherwise, and whether online or offline, with any third party related to any External Services.

You are solely responsible for taking the precautions necessary to protect yourself from fraud when using External Services, and to protect your computer systems from harmful or destructive content and material that may be included on or may emanate from any External Services.

Adaptive disclaims any and all responsibility or liability for any harm resulting from your use of External Services, and you hereby irrevocably waive any claim against Adaptive with respect to the content or operation of any External Services.

11. CARD MONITORING SERVICES

11.1 Generally.

The Adaptive Services may be integrated with and require you to enable certain Third-Party Card Monitoring Services. By using the Adaptive Services User authorizes Adaptive suppliers of such services, which may include Fidel API (“Card Monitoring Services Provider”) and any applicable card network provider (e.g., Visa, Mastercard, American Express, etc.) (each a “Card Network”) to monitor the transactions made with eligible payment cards that User enrolls or links through the Adaptive Service (each a “Card”). The data collected by Card Monitoring Services Providers may include User’s registered card identifier, merchant, transaction date/time, amount and other transaction elements (e.g., currency, Card Network, etc.). For the avoidance of doubt, the Card Monitoring Services Providers are External Services, as defined in Section 10 of this Agreement.

11.2 Transaction Monitoring.

By registering a Card in connection with Third Party Card Monitoring Services, User consents and authorizes Adaptive, Card Monitoring Services Providers, including Fidel API, and Card Networks to (a) share User’s Card information to activate the Third Party Card Monitoring Services; and (b) monitor and access transaction data on User’s Card(s) to provide the Adaptive Service and in order to enable User’s usage of real time transaction data for all transactions made on such a Card. User acknowledges it may opt-out of transaction monitoring on User’s payment card(s) at any time, by navigating to the Adaptive Service account menu to remove the Card(s).

11.3 Card Eligibility.

User acknowledges that not all Visa, MasterCard, and American Express cards are eligible for registration including Visa, Mastercard, and American Express Corporate cards; Visa, Mastercard, and American Express Purchasing cards; non-reloadable prepaid cards; government-administered prepaid cards (including EBT cards); healthcare including Heath Savings Account (HSA) or Flexible Spending Account (FSA) or Insurance prepaid cards; Visa Buxx; Visa-Mastercard-, and American Express-branded cards whose transactions are not processed through the Visa payment system, Mastercard payment system, and/or American Express payment system; and payments made through other payment methods (such as digital wallet or third-party payment applications, where you may choose your Visa or Mastercard card as a funding source but not present the card directly to the merchant). Additionally, certain transactions may not be eligible to be monitored through the Adaptive Service, including PIN-based purchases on debit cards, purchases initiated through identification technology that substitutes for a PIN, or transactions that are not processed or submitted through Card Network’s payment systems. If you register a debit card, your transaction must be processed as a ‘credit’ (i.e., signature) transaction to make sure the transaction can be monitored. Do not use a Personal Identification Number (PIN) when paying for your purchases with your enrolled card if you want the transaction to be available for view or action through the Adaptive Service.

12. DISPUTES BETWEEN USER AND VENDORS AND CLIENTS

Adaptive provides useful tools to assist the User with certain third-party vendors and clients, such as invoice management and lien waiver exchange services.

Adaptive, including its employees and agents, does not offer any construction services, recommendations, or referrals. Adaptive is in no way involved in any agreements between users of the Adaptive Service or any representation of any user on the Adaptive Service. Adaptive is not responsible or liable for any acts or omissions of any user of the Adaptive Service, including any contractor, sub-contractor, client, property owner, property manager, or vendor.

You understand and agree that you use any Adaptive Service at your own risk, including signing any lien waivers, invoices, or other documentation exchanged and executed through the Adaptive Service. Any signatures obtained by you using the Adaptive Services are strictly between you and your client. Adaptive shall not be liable for any agreements or documents you sign or that any third-party vendor or client signs using the Adaptive Service.

Adaptive will not be responsible for any interaction between Users and third-party vendors or clients. Adaptive will not be responsible for any mediation, arbitration, facilitation between User and any vendor or client of User.

You acknowledge and agree that Adaptive is under no obligation to become involved in or impose resolution in any dispute between or among Users or any third-party vendor or client. Adaptive will not accept any financial responsibility nor pay any kind of legal fee to any such third party.

13. GENERAL TERMS.

13.1 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 Adaptive: User may give notice to Adaptive by emailing Adaptive at: support@adaptive.build.
2. Notice to User: Adaptive may give notice to User by emailing User at such email as provided by User at the time of registration.

13.2 Disputes and Governing Law.

1. 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.
2. 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, and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitration tribunal shall consist of a single arbitrator, or, if the arbitral demand or any counterclaim asserts claims in excess of ten million dollars ($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 New York, New York, 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 waived.
3. 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 New York, 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).
4. Governing Law. This Agreement will be governed by and construed in accordance with U.S. federal law and the laws of the State of New York without regard to its conflicts or choice of laws principles.

13.3 Complete Understanding.

This Agreement and the exhibits 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, any Regulatory Authority may require the Parties to modify the terms of this Agreement at any time. Changes to Agreements. Also, the PSP may, in its reasonable discretion, require this Agreement be modified to reflect changes in Applicable Law or in response to a Customer or prospective Customer complaint from any Regulatory Authority.

13.4 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.

13.5 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.

13.6 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.

13.7 Counterparts.

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

13.8 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.

13.9 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. User agrees that Adaptive may subcontract certain aspects of the Adaptive Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Adaptive of any of its obligations hereunder.

CONTACT INFORMATION

For questions or comments about this Agreement, please email us at support@adaptive.build.

ACKNOWLEDGEMENT

BY CLICKING THE “I AGREE” BUTTON” OR REGISTERING WITH THE ADAPTIVE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM.

Last Updated: May 29, 2024

Exhibit A

Additional Definitions

Additional Definitions. As used in this Agreement, and not otherwise defined, the following terms have the following meanings.

“Adaptive Platform” means the technology, including hardware, software and associated Adaptive technology, used by Adaptive to deliver the Adaptive Services to User.

“Authorized Users” means User’s employees and independent contractors working for User in the ordinary course of User’s business who: (i) agree to be bound by the terms of this Agreement; and (ii) are specifically authorized by User to access the Adaptive Services and identified on an applicable Service Order.

“Fees” shall mean the fees payable pursuant to Section 4 of the Adaptive Terms of Service.

“Personal Information” shall mean any information that is submitted to Adaptive by User that can readily identify a given individual as well as 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.

“User Data” means any information submitted by User through the Adaptive Service or provided by User to Adaptive as part of the Adaptive Service, including patient information.

“Updates” means any and all modifications, additions, or updates to the Adaptive Services, including those to correct bugs, deficiencies, or errors; to conform to regulatory or industry requirements; to perform required maintenance; or to incorporate product upgrades to improve operability or new functionalities, including any new version.