SOFTWARE SUBSCRIPTION AGREEMENT FOR GigTally, LLC

(Ver. 2022.1)

This Platform Software Subscription Agreement is a legal contract entered into by you, the Subscriber, and GigTally, LLC. All terms of this agreement are accepted by Subscriber upon the account creation at any level of a Subscriber account plan, by and between GigTally, LLC, and Subscriber.

 

Recitals. WHEREAS, GigTally, LLC  (“Company”) is engaged in the business of the development of computer- smart device related software systems and related products and has created and developed a software package called GigTally, (including GigTally.com, GigTally, LLC, etc., that is providing a Platform Software as a Service to manage jobs and which is described in greater detail in the attached Exhibit "A" (the "Software"); and

 

WHEREAS, YOU (“Subscriber”) desires to utilize such Platform Software on cloud based relational Job Management tools to manage the job and provide a connection point between Subscriber and Subscriber’s Talent, Agents, Team, Partner, Friend, Connection and/or Customers.

 

WHEREAS, Company and Subscriber believe it is in their mutual interest and desire to enter into an agreement whereby Subscriber would use Company Software on Subscriber’s Legally Accessed Computer and/or Smart Device pursuant to the terms and conditions hereinafter provided.

 

TERMS & CONDITIONS

 

IN ACCEPTANCE OF A SUBSCRIPTION PLAN AND USE OF SOFTWARE DESCRIBED HEREIN, the parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her electronic seal the day indicated. Electronic records (including signatures, confirmations, and authorizations), that are otherwise valid, shall be accepted under this Agreement.

 

Electronic Records (including Signatures or selected checkbox), that are otherwise valid, shall be accepted under this Subscription Agreement. Subscriber agrees to receive electronic records, which may be provided via a web browser or e-mail application connected to the internet.

 

In the event of any conflict between Subscriber and GigTally all terms and conditions stated herein the GigTally Platform Subscription Agreement, You, the Subscriber, agree to the provisions of this agreement and invoice shall control.

 

Subscribers’ account creation and acceptance of a subscription agreement is, without prejudice, an act of acceptance and agreement with all terms and conditions set forth herein.

 

Subscriber has read and understands, and has had the opportunity to review all terms and conditions of this contract, and hereby accepts all terms and conditions through the account creation, including for any level of Acceptance of a Subscription or Subscription services to GigTally.com.

EXCEPT AS EXPRESSLY STATED HEREIN, COMPANY MAKES NO WARRANTY, REPRESENTATION OR INDEMNITY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERY OR PERFORMANCE OF ANY SERVICE OR WORK PERFORMED UNDER THIS

AGREEMENT, ANY SERVICE ORDER, AMENDMENT, ADDENDUM AND/OR INVOICE SUBJECT TO THIS AGREEMENT, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR USE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. THE WARRANTIES SET FORTH IN THIS AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE BY COMPANY TO CUSTOMER WITH RESPECT TO THE SERVICES AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants of this Agreement, including the use and provision of the Company software and web portal, having acknowledged as given, received, or to receive, pursuant to hold a paid subscription or free account, pursuant to the affirmation of the parties hereto, the parties hereto agree as follows:

 

1. SUBSCRIBER.

 

Company  hereby grants to Subscriber, for the term of this Agreement, a nonexclusive, non-assignable, right and Subscription to “use”www.gigtally.com, to track and manage jobs on the Platform Software in connection with its business of job management accesses on the world wide web, ie. internet, accessed through Subscriber’s personal or business device at and through the website www.gigtally.com (the “Subscription”).

 

This Subscription is expressly limited to use devices the Subscriber has legal right or permission to use. No right or license is being conveyed to Subscriber to use the Software. Subscriber is prohibited from making any copies, archival or otherwise, of the Software. Subscriber is further prohibited from using the Software in any manner other than as described above and agrees the jobs managed are legal commerce, goods and/or services.

 

2. TERM.

 

This Agreement shall be effective as of the date of execution by both parties and shall extend and auto renew for the period until Subscriber ceases payment, or the subscription is terminated. This Agreement shall be automatically renewed upon the close of the payment cycle based on Subscriber’s plan choice unless Subscriber provides Company notice in writing of its intention not to renew the Agreement, said notice to cancel the auto renewal be provided at least 30 days prior to the auto renewal payment process date of the then in-effect Term.

 

3. COMPENSATION AND SUBSCRIPTION.

 

In consideration for the subscription plan granted hereunder and during the Initial Term of the Agreement and for each Extended Term, Subscriber agrees to pay to Company the Subscription Fee recited in Schedule A (the “Subscription Fee”) in accordance with the Fee Payment Schedule recited in Schedule A. In the event that Subscriber should add additional services, Subscriber agrees to pay Company an Additional Service Fee per Specialty Service. At the time of order, Subscriber agrees to pay Company the Subscription and Special Service Fees in the event that additional services are rendered. Subscriber further agrees to pay any Additional Service Fees recited upon special request.

 

Subscription orders are not binding upon Company until payments are authorized by and received from  PayPay, credit card issuer or other financial institution as agreed. Terms of payment are within Company’s sole discretion. Invoices are due and payable within the time period noted on the invoice, measured from the date of the invoice. Company may invoice parts of an order separately. Subscriber is responsible for sales and applicable taxes associated with the subscription.

●  Fees. Subscriber will pay Company the Fees specified during the Subscription purchase process. If Subscriber orders additional products or services, the fees for such additional products or services will be charged at the then-current pricing for such additional products or services and will commence on the applicable purchase or order date therefore. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.

●  Taxes. Other than net income taxes imposed on Company, Subscriber will bear all taxes, duties, and other governmental charges (“Taxes”) resulting from Subscriber’s purchase or use of the Service.

●  Refunds. In the event of cancellation of a Subscription, Subscriber is not entitled to any refunds or credits for partial month of access to the Service or for any Subscription downgrades.

●  Payment Terms. Subscriber will pay all amounts due for the Initial Subscription Period at the time of purchase unless otherwise indicated on the sign up/enrollment form or Company-provided invoice (if any). Subscriptions will automatically renew until Subscriber cancels the Subscription. Fees for each Renewal Subscription Period will be automatically charged to Subscriber’s payment method. SUBSCRIBER REPRESENTS AND WARRANTS THAT SUBSCRIBER HAS THE LEGAL RIGHT TO USE ANY PAYPAL ACCOUNT, CREDIT CARD(S), AND/OR OTHER FINANCIAL INSTITUTION OR METHOD, UTILIZED IN CONNECTION WITH ANY TRANSACTION HEREUNDER. By submitting such information, Subscriber grants Company or any third party collecting that information on Company’s behalf the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by Subscriber. Verification of information may be required prior to the acknowledgment or completion of any transaction.

4. INTELLECTUAL PROPERTY AND CONFIDENTIALITY.

 

Company will retain exclusive interest in and ownership of its intellectual property rights in and to the Software Platform and expressly reserves all rights not expressly granted under this agreement. Subscriber recognizes that the Platform Software is the proprietary and confidential property of Company. Accordingly, Subscriber shall not, without the prior express written consent of Company, during the term of this Agreement and surviving thereafter, disclose or reveal to any third party or utilize for its own benefit other than pursuant to this Agreement, any Software provided by Company, provided that such information was not previously known to the general public. Subscriber further agrees to take all reasonable precautions to preserve the confidentiality of Company's Software and shall assume responsibility that its employees, sub-agents, partners, talent, customers and assignees will similarly preserve this information against third parties. Subscriber shall take no steps in attempting to reverse engineer the Software. The provisions of this clause shall survive termination of this Agreement.

 

Trademarks

 

Any Trademarks used in or inconnection with the Site are trademarks of Company, or their respective owners. Nothing constrained on the Site should be construed as granting, by implication or otherwise without the written permission of Company or third party owner.

 

5. LEGAL DISCLAIMER

 

Company maintains this site, www.gigtally.com, (the "Site") for your information, education, and communication. Please feel free to browse the Site. If you are browsing this Site as a non-commercial consumer, you may download material displayed on the Site for your non-commercial, personal use only. If you are browsing this Site as an employee/agent/member of any business or organization, you may download material displayed on the Site only for non-commercial purposes within your business or organization. This permission is specifically conditioned on Company retaining all copyright and other proprietary notices contained on the materials.

 

Additionally, you may not distribute or transmit (except, within your business or organization), modify, reuse, report, or use the contents of the Site for public or commercial purposes, including the text, images, audio, and video without GIGTALLY's written permission.

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL GIGTALLY, INC. BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE MATERIALS ON THIS SITE, EVEN IF GIGTALLY, INC. OR AN GIGTALLY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF MATERIALS FROM THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

6. USE, TRAINING, AND ACCEPTANCE.

 

Company shall provide access to Software on Cloud servers in accordance with the subscriber selected subscription plan. At the time of such access, Company shall provide Subscription with appropriate instruction for the Software reasonably acceptable to Subscriber. At the time of Access of the Software Platform and for no additional consideration, Company shall provide instructional tools and resources to Paid Subscriber to use the Software Platform. If the training tools are not available or satisfactory, Subscriber shall send in a support ticket to request additional clarification or place a support ticket for a software fix.

 

During Subscribers subscription, Company agrees to provide additional private training to Subscriber’s team for an additional and agreed upon Specialty Service fee.

 

In the event that Subscriber fails to notify Company of any difficulties or problems with the Software Platform within 72 hours after access thereof, Subscriber shall be deemed to have accepted the Software Platform. Prior to acceptance of such Software, Company shall have the right to repair or replace the Software at its discretion. Upon acceptance of such Software, Company shall be under no obligation to repair or replace such Software except as provided for in the Warranties provision of this Agreement.

 

Subscriber, including but not limited to all of its employees/agents, hereby agrees to refrain from all illegal use, and/or any use of the Company’s property, including but not limited to the Software, in any manner that is threatening, harassing, racist, abusive, libelous, pornographic, vulgar, defamatory, obscene, indecent, or otherwise inappropriate, including any messages constituting or encouraging criminal conduct, or violating another’s legal rights, including but not limited to the Company.

 

 

7. WARRANTIES.

 

Company represents and warrants that, to Company’s knowledge, the Software does not infringe the intellectual property rights or other rights of any third party.

 

Company warrants that the Software will perform in accordance with the specifications provided to Subscriber, as determined by Company. THE WARRANTY PROVIDED FOR HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, THAT MAY ARISE EITHER BY AGREEMENT BETWEEN THE PARTIES OR BY OPERATION OF LAW, INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

In the event of a claim by Subscriber under this warranty, Company shall have the option to repair or update software. In the event that Company fails to repair or update the Software within a reasonable period, Subscriber’s sole recourse shall be to terminate the Agreement and Company's sole obligation shall be to return any Subscriber Fees paid by Subscriber during the period of Service Interruption. In no event shall Company be liable for any incidental, consequential, or punitive damages as a result of its performance or breach of this Agreement.

 

 

8. IMPROVEMENTS AND MAINTENANCE.

 

Company shall work to correct bug fixes and code corrections to correct Software malfunctions and defects in order to bring the Software into substantial conformity with its operating specifications, as determined by Company. Subscriber understands and accepts that these system adjustments, and time to implement them, are a natural part of doing digital business and any associated delays or temporary limits to data are therefore deemed reasonable. Company may, but will not be required to, provide these maintenance services if Subscriber has modified the Software, breached the agreement or is otherwise in default.

 

 

9. TERMINATION.

 

The following termination rights are in addition to the termination rights that may be provided elsewhere in the Agreement:

 

Right to Terminate Upon Notice. Either party may terminate this Agreement on 30 days' written notice to the other party in the event of a breach of any provision of this Agreement by the other party, provided that, during the 30-day period, the breaching party fails to cure such breach.

Subscriber Right to Terminate. Subscriber shall have the right to terminate this Agreement at any time on (One) months' written notice to Company for any reason. 

 

 

10. POST-TERMINATION RIGHTS.

 

Upon the expiration or termination of this Agreement, all rights granted to Subscriber under this Agreement shall forthwith terminate and immediately revert to Company and Subscriber shall discontinue all use of the Software and the like.

 

Upon expiration or termination of this Agreement, Subscriber shall be permitted to retain a free account permissions, so long as Subscriber has not breached the agreement.

 

 

11. INDEMNITY.

 

Subscriber (as an indemnifying party) agrees to indemnify Company (as an indemnified party) against all losses and expenses, including incurred attorneys fees, in connection with any proceeding arising out of Subscriber's unauthorized use, customization, modification, or other alterations to the Software, including claims that its customization, modification, or other alterations infringe a third party's Intellectual Property rights.

 

 

12. NOTICES.

 

Any notice required to be given pursuant to this Agreement shall be in writing and delivered by electronic notice or certified mail, return receipt requested, or delivered by a national overnight express service.

 

Either party may change the address to which notice or payment is to be sent by written notice to the other party pursuant to the provisions of this paragraph.

 

 

13. AGREEMENT BINDING ON AGENTS AND SUCCESSORS.

 

This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.

 

Subscriber acknowledges that it shall be responsible for all actions and liability on behalf of, or taken by, its agents, assigns, employees, authorized third-parties, andor any other person or entity working on, for, behalf of, or at the instruction of the Subscriber, not the the exclusion of any liability as to such a person or entity.

 

 

14. WAIVER.

 

No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.

 

 

15. SEVERABILITY.

 

If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.

 

 

16. ASSIGNABILITY.

 

The Subscription granted hereunder is personal to Subscriber and may not be assigned by any act of Subscriber or by operation of law unless in connection with a transfer of substantially all the assets of Subscriber or with the consent of Company.

 

 

17.  WAIVER

 

Waiver of breach of this Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the party waiving such provision.

 

 

18. INTEGRATION.

 

This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict therewith.

 

 

19. MEDIATION & BINDING ARBITRATION

 

In the event a dispute arises from or relates to this Agreement, any Service Order, amendment or Addendum, any purported breach hereof or thereof, or any in connection with any services provided hereunder, whether based on contractual rights, statutory rights, or tort law, the Parties agree as a condition precedent to pursue any claims for damages that a party first submit the dispute to mediation by a Florida Supreme Court certified mediator. If, after thirty (30) days after the requesting party makes the request for mediation, the non-requesting party refuses through action or inaction to participate in the mediation process, the precondition

requirement to mediate shall be deemed waived. The exclusive venue to mediate any and all claims shall be Broward County, Florida. The prevailing Party shall be responsible to pay all costs and legal fees, including for mediation. In the event a dispute of any kind is not resolved through the mediation process, or if any Party refuses to participate in mediation, the Parties hereby agree to submit all disputes to binding Arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment of the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In the event of an arbitration, the arbitrator shall have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The prevailing Party shall be entitled to an award of attorneys’ fees, and reimbursement of any amounts paid related to mediation/arbitration proceeding. Notwithstanding any provision contained within the American Arbitration Rules to the contrary, any arbitration between the Parties shall be conducted by a sole arbitrator selected by the American Arbitration Association.

 

 

20. LIQUIDATED DAMAGES

 

“Liquidated Damages,” in the event Subscriber, including but not limited to all of its employees/agents, breaches the confidentiality, copyright clause,  and/or any other clause under this Agreement, or law, which causes harm to the Company, Subscriber hereby agrees that that damages suffered by the Company would be difficult to determine. In such an event, Subscriber agrees to compensate Company as follows, constituting Liquidated Damages: one million dollars ($1,000,00.00) per violation, including any and all legal fees.

 

 

21.  JURISDICTION AND VENUE

 

This Agreement, any Service Order, amendment or Addendum shall be governed by the laws of the State of Florida, without regard to any rules of conflict or choice of laws which require the application of laws of another jurisdiction, and Subscriber and Company consent and agree to jurisdiction and venue for any mediation and/or arbitration being exclusively in Fort Lauderdale, Broward County, Florida and the Parties hereto agree that such jurisdiction and venue is proper.

 

The parties consent to the jurisdiction of such courts, agree to accept service of process by [mail or electronic] and waive any jurisdictional or venue defenses otherwise available without reference to conflict of laws principles, subject to the mediation and arbitration clause contained herein.

SCHEDULE A

 

 

1. USER FEE.

 

During the Initial Term of this Agreement, the User Fee shall be based on the plan selected by the subscriber upon the initial account set up, and will adjust to Subscriber initiated plan change. In the event the Subscriber changes the account plan and email will be sent to confirm the change. Hereunto, the new or adjusted rate and fee schedule will apply. For each Extended Term, the User Fee shall be Extended based upon the current plan agreement.

 

2. ADDITIONAL USER FEE.

 

For every Specialty Service at Subscriber’s request(s) have an additional fee in addition to Subscriber Selected Payment Schedule, Subscriber shall pay Company an Additional Service Fee at the current market rate for the type of specialty service requested.

 

3. FEE PAYMENT SCHEDULE.

 

The User Fee and Installation Fee shall be payable as follows:

 

Based on Price of the Subscription Package Upon Marketed Rate upon Subscription Agreement at the Plan Level Selected; either: Talent Free, Startup, Gigworker, Agency, or Enterprise;

 

On a fee schedule of Free or Monthly.

 

Taxes and Fees may be included and are subject to national and state regulations.

 

Plan fees charted based on monthly rate	Talent	Startup	GigWorker	Agency	Enterprise
Monthly	FREE	$10.00	$25.00	$50.00	$100.00

 

 

TO SOFTWARE Subscriber AGREEMENT

 

A Subscription agreement is based on the package Subscriber Selected. Each level of Subscription provides access to different packages.

 

WHEREAS, Subscriber agrees to all terms and conditions listed in this Agreement. In the case, copyright infringement, malicious use, defamation, libel, slander, or Illegal Use include Subscriber on Free Talent Plan and all other Subscriber Plans are legally responsible for loss plus additional punitive damages equal to the direct current and future loss of no less than 10 years includes the full loss of revenue based upon the number of active and future predicted subscribers.

 

GigTally,(including GigTally.com, GigTally, LLC, et al) is a platform software as a service provider, providing varying levels of subscriptions on a cloud based relational job management software for various business types as a tool to manage independent jobs, talent, agent; as well as to provide a cloud based space to connect partnership(s) and team(s) with other GigTally subscribers with a connection to clients and business friends