Terms of service.

Terms of Service

Last Updated: January [●], 2025 (see here for any prior versions)

FounderIQ, LLC (“FoundersIQ”, “we”, “us”, or “our”) offers and facilitates professional consulting services relating to tax, accounting, CFO consulting, sales, fundraising services, book-keeping, and valuation and other related services that may be implemented from time to time (the “Services”). In connection with these Services, FounderIsQ owns the websites, applications, cloud software services, software tools, automated forms and other technologies developed by or for us and any other online services in which this Agreement (as defined below) is displayed (collectively, the “Platforms”).

These Terms of Service, together with any SOW (as defined below), and all other terms and conditions agreed to in writing by you and us regarding the provision of the Services and the Platforms (collectively, the “Agreement”) constitute a legally binding contract between FoundersIQ and you (the “User”, “you”, or “your”) with respect to your use of the Services and the Platforms. It is important that you carefully read and understand the terms and conditions of this Agreement and our Privacy Policy. 

By accessing, using, or downloading (as applicable) the Services and the Platforms, you are indicating that you have read and understand this Agreement and that you agree to be bound by this Agreement and the Privacy Policy (the “Acceptance”). If you do not agree to the terms and conditions of this Agreement or the Privacy Policy, then you must not access or use the Platforms or the Services.

SECTION 16 OF THIS AGREEMENT CONTAINS IMPORTANT PROVISIONS FOR RESOLVING DISPUTES THROUGH MANDATORY ARBITRATION AND A CLASS ACTION WAIVER

1. Use of Services.

You may use our Services and Platforms only if you can legally form a binding contract with us, and only in accordance with this Agreement and all applicable laws, including all local, state, national, and international laws, rules, and regulations. You can't use our Services and/or Platforms if it would be prohibited by U.S. sanctions or the laws of your jurisdiction.

2. Scope of Services.

The applicable Services and Platforms provided to you by FoundersIQ shall be set forth in accordance with one or more Statements of Work that are agreed to by you and us in writing (“SOW(s)”). 

FoundersIQ will perform the Services and Platforms, as applicable, in accordance with the requirements and deadlines in the applicable SOW(s) as agreed to by you and us and at the request of, and under the direction of, your management. Your management is responsible for all management decisions and performing all management functions, including (i) setting policies or accepting policy recommendations; (ii) evaluating the reasonableness of underlying assumptions and the adequacy and results of the Services and Platforms; and (iii) implementation of any findings or recommendations resulting from the Services and Platforms. We may act upon, and will not have liability for acting upon, instructions in any form (e.g., electronic, written, oral) so long as we reasonably believe that the instructions were actually given by you or on your behalf. You are responsible for the legality of your instructions to us. We are not obligated to identify or offer additional Services not otherwise agreed to in writing. We may at times offer additional Services that are governed by additional terms. If your SOW links to these terms, the additional provisions are incorporated by reference into this Agreement. 

You agree to maintain electronic versions of Quickbooks or a similar accounting software, payroll software, and online banking services as agreed to in an applicable SOW.  Further, you agree and understand that other Third-Party Services and software may be necessary for us to facilitate the Services, including, but not limited to: (i) bill pay tools (i.e. bill.com or similar); (ii) inventory tools (i.e. Fishbowl or similar; or (iii) expense reporting tools (i.e., Expensify or similar) (collectively, the “FinTech Software”). For any FinTech Software utilized in the business, You agree to grant us at least read only remote accountant access. If you do not already have an account with the necessary FinTech Software, you authorize us to create one for you. Your and our use of and FinTech Software will be governed by the applicable Terms of Service and Privacy Policy for such software, and by authorizing us to create an account for you, you agree to the underlying third-party’s Terms of Service and Privacy Policy. 

We may prepare deliverables (for example, excerpts, models, budgets, confirmations, etc.) for you resulting from the Services and your use of the Platforms, FinTech Software or other Third-Party Services (as defined below). In preparing deliverables, you agree that we (a) do not have an obligation to independently verify the accuracy or completeness of any facts provided by you or any third party, and (b) do not undertake to update the deliverable if any facts change, unless an SOW expressly states otherwise. If you elect to present any deliverable to any third party, such presentation must be made solely by you and not by or on behalf of us, and you agree to remove any references to us from the deliverable and/or from the presentation.

3. Your Obligations.

We need and rely on information from you. Our provision of the Services requires that you provide us access to corporate, financial and related information, information technology systems or services, and/or input from you. You agree to timely provide all such information, access and input and reasonably cooperate with us in our provision of the Services. You agree to provide good faith assumptions and accurate and complete representations, information and data, and you agree that we may assume you have done so without further investigation or verification. You agree that late or insufficient information, access or input from you may cause delay in the performance of the Services, inability to provide the Services, or increase in the amount of our fees. 

For the avoidance of doubt, if our performance of the Services is prevented or delayed by any act or omission by you or your agents, vendors, consultants, or employees, we will not be in breach of our obligations or otherwise liable for any related costs, charges, or losses incurred by you.

4.Modifications.

We reserve the right in our sole discretion to revise and update the terms of this Agreement from time to time. Any and all such modifications are effective immediately upon posting and apply to all access to and continued use of the Platforms and Services. If we make material changes to this Agreement, we will notify you through posting notice on the Platforms. The date that this Agreement was last revised is identified at the top of this Agreement. You agree to periodically review this Agreement in order to be aware of any such modifications, and your continued use shall be your acceptance of these modifications.

We reserve the right to suspend your use and access to the Platforms and Services at any time if we are notified of a potential breach or compromise of one of our, or a provider Entities’, Platforms and Services.

     5.Data Collection and Account Information.

FoundersIQ will use Customer Data (as defined below) as described in the Agreement and/or in the Privacy Policy, as updated from time to time, and for the business purposes described therein. By entering into this Agreement and utilizing any Services and accessing the Platforms, you expressly consent to such use, including the use of Customer Data in Third-Party Services required for the provision of our Services and Platforms, and the sharing of Customer Data across various Services for which you may utilize or access (e.g., bookkeeping data for tax preparation services).

To improve our Services and Platforms, and provide additional offerings in the future, You agree that we may perform benchmarking studies on an aggregated basis across all or a subset of our customers, which will not contain any identifying information that can be attributed to you or any of your users, customers, vendors, employees or representatives. You consent to our use of Customer Data for the purpose of developing and/or performing such benchmarking studies.

If you provide us with login credentials (for example, an account name or number, password, answers to security questions (collectively, “Login Credentials”)) or we use the Login Credentials to create an account for you in accordance with Section 2 hereof, you (a) give us permission and a limited power of attorney to use the Login Credentials to login to, or create an integration with, the Platforms, FinTech Software and other Third-Party Services, and access, transfer, reformat, and manipulate your account on your behalf in performance of the Agreement; and (b) represent to us that you have the authority to give us this permission. You consent to our use of Login Credentials to provide the Services and Platforms and perform our rights and obligations under the Agreement. We will maintain Login Credentials in encrypted form, and we will only use them pursuant to the Agreement or as otherwise directed by you.

6. Fees and Payment. 

a. Fees. The fees for the Services and Platforms provided under this Agreement shall be as outlined an applicable SOW. The parties agree that the fees specified in the SOW will be binding and govern the compensation due for Services rendered, unless otherwise agreed to by both Parties in writing. In the event of any inconsistency between this Agreement and an SOW, the terms set forth in the SOW will prevail with respect to the applicable fees. All fees are due and payable in accordance with the payment terms set forth in this Agreement, unless otherwise agreed in writing. 

Any additional costs or expenses not specified in an SOW must be approved in advance by both parties in writing, and any modification of fees must be approving in writing by both parties. For all FinTech Software identified, You agree that you will also be responsible for maintaining the FinTech Software and any associated fees for use of the FinTech Software required to perform the Services.

b. Payment. Unless otherwise specified in a SOW or agreed to in writing, FoundersIQ will invoice you on a monthly basis, and payment is due through an automatic ACH/debit to be set up as part of your account with us (the “Customer Account”). The Customer Account will be set up at the time a SOW is entered into and you authorize FoundersIQ to charge for the applicable Services and Platforms (as identified in an agreed to SOW) through the Customer Account, plus any reasonable processing fees that may be applied as described in more detail below.

You represent that the Customer Account is an account that is not primarily used for personal, familial or household purposes. By authorizing us to use ACH, you agree to the underlying rules and regulation that govern ACH payments (e.g. NACHA Operating Rules). Fees are exclusive of taxes, which you’re responsible for if applicable. You authorize FounderIQ and/or its payment processor to initiate entries to the Customer Account in order to pay amounts that you owe to us, and, if necessary, to initiate adjustments for any transactions credited or debited in error. We may immediately suspend provision of any or all Services and use of Platforms if your account is past due with respect to the payment of fees for any Services or any other amounts owed by you to us. You agree to pay any fees for Services owed by your Affiliates as and if applicable. Except to the extent expressly set forth in this Agreement, or an applicable SOW, all payments are non-refundable and non-creditable. “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

We reserve the right to request prepayment before starting the provision of any Services. In the case of nonpayment of any amount due and owed under the Agreement, in addition to such unpaid amounts you will reimburse us for all costs and fees incurred to collect the unpaid amounts. 

7. Term and Termination.

a. Term. This Agreement is effective on the date you sign an SOW or you otherwise acknowledge Acceptance of this Agreement and will continue, unless terminated earlier, for so long as there are outstanding SOWs (the “Term”). To the extent you have entered into this Agreement without an SOW, this Agreement will remain in effect for 12 months from the date of Acceptance.

b. Termination; Withdrawal. Either party may terminate the Agreement if the other party has materially breached the Agreement and the non-breaching party provides written notice to the breaching party of the breach and an opportunity to cure of at least 30 days. We may (i) withdraw from providing any or all of the Services at any time by providing notice of termination of the Agreement or specific Services to you via the contact information we have on file or (ii) suspend Services for non-payment of fees. In the event we terminate the Agreement or any Services for any reason other than your violation or breach of this Agreement by you, we will give you a refund of any prepaid fees for unelapsed months of the terminated Services. For the avoidance of doubt, you agree that we will not be obligated to issue a refund if our withdrawal is caused by your breach of the Agreement, including your failure to pay any fees when due or to timely provide information, systems access or input that we have reasonably requested for the provision of the Services. You may terminate this agreement without cause upon providing us at least 30 days prior written notice. In the event you terminate this Agreement without cause, we will not be obligated to provide a refund of any prepaid fees and you will be required to pay us a break up fee equal to the amounts of the next month’s payment had the Agreement not been terminated. 

You may stop using the Services and/or Platforms at any time without cause, however, in such event, we will not be obligated to provide a refund of any prepaid fees.

c. Effect of Termination or Expiration. After termination of the Agreement or any specific Services, any support or information production related to the terminated Services shall be at our sole discretion, and if we perform such support or information production you agree to reimburse us for our professional time at our then-current standard hourly rates. We do not guarantee the availability of any documents or information after such termination. You agree that it is your responsibility to retain and protect your records for possible future use, including potential examination by any government or regulatory agencies. Upon termination, we will not release any records or deliverables in our possession under payment is current. 

8. Intellectual Property. 

Subject to the limited rights expressly granted in this Agreement, as between the parties you retain all rights, title and interest, including all Intellectual Property Rights, in and to Customer Data. You grant us and our subcontractors a limited license to use the Customer Data to provide, protect and improve the Services and Platforms, and to perform our rights and obligations under this Agreement.

Subject to the limited rights expressly granted hereunder, as between the parties we own all rights, title and interest, including all Intellectual Property Rights, in and to our Platforms and other technology assets and software. We grant you a non-exclusive license to use our Platforms and other technology assets for the purpose of facilitating the provision of our Services to you during the term of this Agreement. All rights not expressly granted in this Agreement are reserved by us.

Each party represents and warrants to the other that it has the authority, including any and all necessary consents, to grant the licenses above. For the purposes of this Agreement, “Intellectual Property Rights” means rights recognized by any jurisdiction with respect to intellectual work product, such as patent rights (including priority rights), design rights, copyrights (including moral rights), mask work rights, trade secret rights, trademarks, service marks, know-how and domain name rights and “Customer Data” means data provided by you or at your direction for the provision of the Services and the Platforms, and excerpts and reports of such data prepared as part of the Services for you. For the avoidance of doubt, industry knowledge, general inferences from Customer Data across customers (without identifying you), our Platforms and technology assets and our workpapers are not Customer Data. 

Notwithstanding the foregoing, if you provide us with feedback, ideas, requests, recommendations or suggestions about the Services or Platforms (“Feedback”), then we may use that information without obligation to you, and you grant FoundersIQ a non-exclusive, worldwide, perpetual, irrevocable license to use, reproduce, incorporate, disclose, and sublicense the Feedback for any purpose.

9. Third-Party Products and Services.

Any FinTech Software, or other third-party product or services that interoperates with the Services or the Platforms may be provided pursuant to the terms of the applicable third-party agreement. We assume no responsibility for, and specifically disclaim any liability or obligation with respect to, any Third-Party Service that is incorporated or delivered in any of our Services or Platforms under this Agreement. We do not endorse or make any representation, warranty or promise regarding, and do not assume any responsibility for, any Third-Party Service, regardless of whether it is described as “required,” “recommended” or the like and regardless of whether the Third-Party Service is included in an SOW. You should review applicable terms and policies, including privacy and data gathering practices, and should make whatever investigation you feel necessary or appropriate before obtaining any Third-Party Service. For the purposes of this Agreement, the “Third-Party Service” means any product (for example, software, cloud services), tool (for example, integration or development tools), or service (for example, implementation services) provided by a party other than us that is not acting on our behalf and for the avoidance of doubt includes any FinTech Software.

10. Confidentiality.

a. Confidential Information. “Recipient” is a party under this Agreement to whom the other party discloses its Confidential Information.  “Discloser” is a party to this Agreement who discloses its Confidential Information to the Recipient. “Confidential Information” means all confidential and other proprietary and unpublished information of the Discloser and its subsidiaries, affiliates and/or customers and suppliers, including without limitation methodologies, database information, marketing, operating and strategic and business plans, customer and supplier lists, customer information, financial information and results, products and services, pricing information and policies, plans, designs, technology, inventions, know-how, policies, personnel information, trade secrets, patentable technologies (whether applied for or not), unpublished trademarks and service marks, and other intellectual property and other confidential or specialized data and information of  Discloser, whether now existing or to be developed or created after the effective date of the Agreement. Information, regardless of source or medium, need not be marked or indicated as “Confidential Information” to be Confidential Information and all information provided by Discloser to Recipient is presumed to be Confidential Information.

b. Rights and Restrictions with Respect to Confidential Information. Recipient agrees to treat all Confidential Information as confidential and as proprietary to Discloser for 3 years from the date of initial disclosure of the relevant Confidential Information, irrespective of the expiration or termination of this Agreement; provided, Confidential Information that rises to the level of a trade secret under applicable law shall be maintained in confidence for so long as it is maintained as a trade secret by the Discloser.  Except as explicitly authorized in writing by Discloser, Recipient agrees not to directly or indirectly disclose to, or discuss with anyone, or otherwise use in any manner any Confidential Information (orally or in writing, electronic or other medium) in whole or in part.  Recipient may disclose Confidential Information to its personnel or its affiliates (and in the case of FoundersIQ to it contractors and subcontractors) who have a need to know such information to facilitate the purpose of this Agreement, provided, that Recipient shall have first caused each such personnel or its affiliates to be bound by written confidentiality restrictions on not less strict terms as the Recipient is bound by in this Agreement.  Recipient shall remain liable for the actions or omissions of the relevant personnel or its affiliates that constitute a violation of this Agreement. The above restrictions shall not apply to Confidential Information (i) after such time as it becomes publicly known through no act, omission or fault of Recipient; or (ii) that is already known by Recipient at the time of disclosure, (iii) is independently developed by Recipient without use of the Confidential Information or (iv) that Recipient is legally required to disclose by statute, rule or regulation or in connection with any legal proceeding, provided that Recipient complies with the following: Recipient will immediately notify Discloser as soon as Recipient becomes aware that disclosure of Confidential Information may be required in connection with a legal proceeding in order to give Discloser a reasonable period of time to obtain a protective order or similar right to limit or prohibit the disclosure or use of the Confidential Information. As between the parties, all Confidential Information, whether written, or in electronic or other medium, belongs exclusively to the Discloser. Upon a party’s request, or upon termination of this Agreement, whichever occurs first, Recipient agrees to promptly deliver to Discloser all originals and copies of all such Confidential Information in its control or possession or destroy and if requested certify in writing to Discloser that it has destroyed all intangible forms of such Confidential Information; except that Recipient may retain a copy for archival purposes.  Any such archival copy will remain subject to the obligations of this paragraph.

11. Personnel Non-Solicitation and Unfair Competition.

We incur recruiting, training, education and other non-recoverable costs for the personnel assigned to provide the Services and Platforms to you. We are willing to incur such costs in reliance on your promises in this Section. You agree not to solicit for hire, directly or indirectly, on behalf of yourself or for any third party, any then-current employee or contractor of ours who has been made known to you in connection with the Services and Platforms (“Covered Personnel”) during the term of the Agreement and for one year thereafter. This Section does not prohibit you from soliciting or hiring any individual as a result of a general employment advertisement not specifically directed at Covered Personnel.

As a reasonable estimate of our personnel replacement costs and not as a penalty, you agree to pay us the following for any individual who has terminated their employment or contractor relationship with us as a result of your breach of this Section: (i) $75,000 for every accountant that is a Covered Personnel, (ii) $150,000 for every controller that is a Covered Personnel, (iii) $250,000 for any CFO that is a Covered Personnel, and (iv) $25,000 for every other individual that is Covered Personnel that is not included in (i)-(iii) hereof.

You agree not to use the Services or Platforms, or any materials or other deliverables provided by us to build a competitive product or service or to benchmark with a product or service not provided by us.

12. Disclaimer of Status.

You understand and agree that FoundersIQ is not a certified public accounting firm and does not itself provide any services that would require a license to practice public accounting, including, but not limited to, tax services or attestation services. You acknowledge that FoundersIQ is not a member of the American Institute of Certified Public Accountants (AICPA) and is not governed by any AICPA rules. You should seek the services of a duly licensed professional in connection with services requiring a license to practice public accounting. 

     13. Disclaimer of Warranties.

THE WARRANTIES STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY FOUNDERSIS. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, WE, OUR AFFILIATES, OUR THIRD-PARTY SERVICE PROVIDERS, AND OUR AND THEIR LICENSORS, SUPPLIERS AND DISTRIBUTORS (THE “PROVIDER ENTITIES”) MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES, OUR PLATFORMS, TECHNOLOGY ASSETS, OR OUR TOOLS. THE SERVICES, OUR PLATFORM AND OUR TOOLS (INCLUDING ANY TOOLS THAT ARE INTEGRATED WITH ANY OTHER APPLICATIONS) ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NO WARRANTY IS MADE THAT THE SERVICES, OUR PLATFORM, OUR TOOLS OR THE RESULTS OF THEIR USE WILL MEET YOUR NEEDS OR EXPECTATIONS, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THE RESULTS THEREFROM WILL BE ACCURATE OR RELIABLE, AND/OR WILL COMPLY WITH ANY LAW OR LEGAL REQUIREMENT. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. WE FULLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU UNDER APPLICABLE LAW, ANY IMPLIED WARRANTIES ARE STRICTLY LIMITED TO A PERIOD OF 60 DAYS FROM THE DATE OF YOUR EXECUTION OF THE SOW, OR DELIVERY OF THE SERVICE, WHICHEVER IS SOONER.

14. Limitation of Liability.

THE CONSIDERATION WHICH WE ARE CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY THE PROVIDER ENTITIES OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL WE BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR AMOUNTS DUE TO US UNDER THIS AGREEMENT AND INDEMNITY OBLIGATIONS SET FORTH IN SECTION 15 BELOW, THE MAXIMUM LIABILITY OF EITHER PARTY TO ANY PERSON, FIRM OR CORPORATION ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF THE AMOUNT YOU PAID FOR THE NONCONFORMING SERVICES DURING THE SIX (6) MONTHS PRIOR TO SUCH CLAIM OR ONE HUNDRED US DOLLARS, WHICHEVER IS GREATER.

The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with the provision of the Service and that, were we to assume any further liability other than as set forth herein, such fees would have to be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you

15. Indemnification.

You shall defend, indemnify and hold harmless the Provider Entities and their employees, officers, directors, consultants, representatives and agents from and against all damages, losses, liabilities, claims, demands, actions, suits, judgments, settlements, costs and expenses, including all attorneys’ fees, that arise from or relate to: (a) your use of and/or our provision of the Services and Platforms (except to the extent arising directly from our willful misconduct or gross negligence), (b) your violation of the Agreement that injures any third party, (c) any content, information or materials provided by you, or (d) infringement by you, or any third party using your account or identity in the Services or our Platforms, of any Intellectual Property Right or other right of any third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to reasonably assist and cooperate with us in asserting any available defenses and/or defending any legal proceeding.

16. Disputes; Class Action Waiver.

YOU AND FOUNDERSIQ AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS:

MANDATORY ARBITRATION. You and FoundersIQ agree to resolve any claims arising out of or relating to this Agreement or our Services, regardless of when the claim arose, even if it was before this Agreement existed (a “Dispute”), through final and binding arbitration. You may opt out of arbitration within 30 days of Acceptance of this Agreement or of any updates to these arbitration terms within 30 days after the update has taken effect by sending an email to info@foundersiq.io. If you opt out of an update, the last set of agreed upon arbitration terms will apply. 

Informal Dispute Resolution. We would like to understand and try to address your concerns prior to formal legal action. Before either of us files a claim against the other, we both agree to try to resolve the Dispute informally. You agree to do so by sending an email to info@foundersiq.io. We will do so by sending you notice to the email address we have on file. If we are unable to resolve a Dispute within 60 days, either of us has the right to initiate arbitration. We also both agree to attend an individual settlement conference if either party requests one during this time. Any statute of limitations will be tolled during this informal resolution process.

Arbitration Forum. If we are unable to resolve the Dispute, either of us may commence arbitration with National Arbitration and Mediation (“NAM”) under its Comprehensive Dispute Resolution Rules and Procedures and/or Supplemental Rules for Mass Arbitration Filings, as applicable (available here). FoundersIQ will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous. The activities described in thia Agreement involve interstate commerce and the Federal Arbitration Act will govern the interpretation and enforcement of these arbitration terms and any arbitration. 

Arbitration Procedures. The arbitration will be conducted by videoconference, if possible, but if the arbitrator determines a hearing should be conducted in person, the location will be mutually agreed upon, in the county where you reside, or as determined by the arbitrator, unless the batch arbitration process applies. The arbitration will be conducted by a sole arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Delaware. The arbitrator will have exclusive authority to resolve any Dispute, except the state or federal courts of New Castle, Delaware have the authority to determine any Dispute about enforceability, validity of the class action waiver, or requests for public injunctive relief, as set out below. Any settlement offer amounts will not be disclosed to the arbitrator by either party until after the arbitrator determines the final award, if any. The arbitrator has the authority to grant motions dispositive of all or part of any Dispute.

Exceptions. This section does not require informal dispute resolution or arbitration of the following claims: (i) individual claims brought in small claims court; and (ii) injunctive or other equitable relief to stop unauthorized use or abuse of the Services or intellectual property infringement or misappropriation.

CLASS AND JURY TRIAL WAIVERS. You and FoundersIQ agree that Disputes must be brought on an individual basis only, and may not be brought as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, and representative actions are prohibited. Only individual relief is available. The parties agree to sever and litigate in court any request for public injunctive relief after completing arbitration for the underlying claim and all other claims. This does not prevent either party from participating in a class-wide settlement. You and FoundersIQ knowingly and irrevocably waive any right to trial by jury in any action, proceeding, or counterclaim. 

Batch Arbitration. If 25 or more claimants represented by the same or similar counsel file demands for arbitration raising substantially similar Disputes within 90 days of each other, then you and FoundersIQ agree that NAM will administer them in batches of up to 50 claimants each (“Batch”), unless there are less than 50 claimants in total or after batching, which will comprise a single Batch. NAM will administer each Batch as a single consolidated arbitration with one arbitrator, one set of arbitration fees, and one hearing held by videoconference or in a location decided by the arbitrator for each Batch. If any part of this section is found to be invalid or unenforceable as to a particular claimant or Batch, it will be severed and arbitrated in individual proceedings.  

Severability. If any part of these arbitration terms is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow class arbitration, class action, or representative action, this entire dispute resolution section will be unenforceable in its entirety.

     17. Miscellaneous. 

a. Severability. If one or more of the provisions contained in the Agreement is held invalid, illegal or unenforceable in any respect by any court of competent jurisdiction, such holding will not impair the validity, legality, or enforceability of the remaining provisions.

b. Assignment. You may not assign the Agreement, or your rights or obligations under it (including any claim or right to sue for damages under the Agreement), in whole or in part and any such assignment is void. We may freely assign the Agreement, or our rights and obligations under it, in whole or in part.

c. Electronic Notices. We will communicate with you via the email associated we have on file. It is your responsibility to keep your Services account email address up to date so that you are able to receive electronic communications from us.

d. Entire Agreement; Amendments. The Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes any and all prior and contemporaneous agreements, discussions, negotiations, and offers. You acknowledge that in entering into the Agreement you have not relied on and will have no rights or remedies in respect of any statement, representation, assurance or warranty other than as expressly set out in the Agreement. Except as specifically stated otherwise in the Agreement, any amendment must be in writing, expressly state that it is amending the Agreement, and must be signed by both parties.

e. Conflict; Interpretation. In the event of an express conflict between these terms and any SOW, the SOW shall take precedence and govern. Headings are for information purposes only. The Agreement shall not be interpreted against the drafter.

f. No Employment, Partnership, or Agency Relationship. Each party is an independent contractor, and except as expressly set forth in the Agreement neither party has any authority to act on behalf of the other. Neither party will represent itself as agent, servant, franchisee, joint venturer, joint employer or legal partner of the other. You agree not to represent our personnel as, or request that our personnel act as, an employee, officer, agent or other representative of your entity. We are entering into the Agreement as principal and not as agent for any Affiliate, and claims under the Agreement may be brought only against us and not against any of our Affiliates.

g. No Publicity. Neither party shall make any public statement about the Agreement or the relationship of the parties governed by the Agreement that identifies the other party without the other party’s prior written consent, except that while you are a customer, we may use your name and logo in customer lists on an equal footing with other customers.

h. Waivers. A party’s failure or delay to exercise any right under the Agreement will not act as a waiver of such right. Rights may only be waived in writing signed by the waiving party.

i. Force Majeure. Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent performance of any obligations (other than the payment of money) under the Agreement is delayed or prevented by an act of God (e.g., a natural disaster, earthquake, accident or epidemic) or another event outside of reasonable control of the party seeking excuse of performance (e.g., acts of war, terrorism, government authority or by another third party outside the party’s control).