The Pebble Plan Partner Service Agreement:

PARTNER SERVICES AGREEMENT

 

ACCEPTANCE.   By using the Website or Services in any manner, you are bound by the general Terms of Service for the pebbleplan.com website & web-app, as well as the Incorporated Terms identified below (collectively, the “Terms”). If you do not agree to the Terms, then do not use the Website or Services. If you are accepting these Terms on behalf of a company, organization, government, or other legal entity, you represent and warrant that (a) you are authorized to do so, (b) the entity agrees to be legally bound by the Terms, and (c) neither you nor the entity are barred from using the Services or accepting the Terms under the laws of the applicable jurisdiction.

 

 

THIS AGREEMENT (Agreement), is effective as of the date & time your account was requested via the Pebble Plan Site. 

 

PARTIES:  This agreement is between VIIIXV, LLC, a Texas limited liability company, doing business as Pebble Plan (Pebble Plan) and the organization requesting services and establishing an account with Pebble Plan (Client). In this Agreement, Pebble Plan and Client may be referred to individually as a Party and collectively as the Parties.

 

Recitals

 

  1. Pebble Plan is in the business of helping entrepreneurs build and prepare a business plan for to obtain financing, and launch or grow their businesses (collectively, the Services).

 

  1.  Client is in the business of providing one or more of the following services to or in support of entrepreneurs and/or small businesses: banking, financing, incentives, coaching/consulting, technical assistance, governance, compliance assistance, community engagement (Business) and desires to hire Pebble Plan to provide Services for Client as set forth in this Agreement.

 

 

Agreement

 

Now, therefore, for good and valuable consideration, the receipt of which is acknowledged, and for the mutual promises and covenants contained in this Agreement, the Parties agree as follows.

 

  1. Services. During the Term of this Agreement, Pebble Plan will perform Services for Client and Client agrees to use Pebble Plan for the Services. Pebble Plan will enable Client to access the Services via a website hosted by Pebble Plan or its third-party designee.   Pebble Plan will make commercially reasonable efforts to maintain availability of the Services, but Client agrees that Pebble Plan shall not be responsible for any downtime of the Services or IT Systems.

 

  1. Term. The Term of this Agreement will begin on the Effective Date and will continue for 1 year and will automatically renew indefinitely for additional successive one-year terms unless Pebble Plan provides written notice of termination of services at least 30 days prior to the end of the then-current term, or Client cancels their service via the website or written communication to Pebble Plan 30 or more days prior to the end of the then-current term or as otherwise set forth in this Agreement.

 

  1. Fees, Expenses and Billing.

 

  1. The fees for the Services will be set forth on the website order form.

 

  1. Pebble Plan will send Client an invoice each year for the upcoming year’s services containing reasonable detail the fees owed for the Services to be performed. Client will pay such invoice within 60 days after the renewal of service, regardless of when the invoice is received.

 

  1. To the extent Client does not timely pay an invoice, Pebble Plan may charge Client late fees equal to the lesser of $25 or 5% per month compounded monthly or the maximum non-usurious interest rate permitted under applicable law.

 

  1. Restrictions on Use. Client shall not

 

  1. use the Services or the IT Systems in any way that violates the terms of this Agreement, any Statement of Work, or applicable law;

 

  1. modify, copy, or create any derivate works based on, or reverse engineer or decompile, the Services or IT Systems;

 

  1. attempt to license, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise share Client’s access to the Services or IT Systems to any third party, except that such access may be shared as permitted under this Agreement with Client’s employees;

 

  1. use Client’s access to the Services or IT Systems for any benchmarking or competitive purpose or to build or design any commercially available product or service;

 

  1. interfere with or disrupt performance of the Services or IT Systems or the data contained therein;

 

  1. attempt to gain access to the Services, IT Systems, or Pebble Plan’s related systems or networks in a manner not set forth in this Agreement;

 

  1. use Client’s access to the Services or IT Systems to send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including, without limitation, material that violates privacy, confidentiality, Intellectual Property Rights or other rights of third parties; or

 

  1. access the Services or IT Systems for the benefit of, or any purpose if Client is, a competitor of Pebble Plan.

 

Client shall be liable for the acts and omissions of all Client-authorized users relating to this Agreement. Pebble Plan may alter, suspend, or discontinue all or a portion of Client’s access to the Services or IT Systems if Pebble Plan reasonably suspects that (i) Client’s access to the Services may be causing harm to Pebble Plan or others, or (ii) such suspension is necessary to comply with a law or a request from law enforcement or to prevent, remediate, or mitigate an actual or potential security incident. Client will reimburse Pebble Plan for all costs incurred in enforcing the use restrictions in this Section, including, without limitation, attorneys’ fees, legal costs, and court or arbitration costs.

 

  1. Responsibility for Data. Client is exclusively responsible for its financial statements and the accuracy, quality and legality of all Client Data, including, without limitation, obtaining all required authorizations, permissions and consents necessary for Pebble Plan and its employees and contractors to access and use the Client Data in accordance with this Agreement. Pebble Plan shall not be responsible for (i) any Client Data utilized in offering the Services, or (ii) any judgments made (whether by Client or Pebble Plan) with respect to any inaccuracies, ambiguities or inconsistencies in any format containing Client Data. Client is responsible for the use of the output which it obtains from the Services. Although copies of Client’s Data may be stored within the IT Systems of Pebble Plan, Client shall retain the original documentation or copies thereof.

 

  1. Responsibility for Users and Authentication Credentials. Client shall (i) be responsible for safeguarding its user names and passwords, (ii) be responsible for the identification and authentication of its users and any access, whether or not authorized by Client, to the Services and IT Systems that results from the actions or omissions of Client or any of its personnel, and (iii) notify Pebble Plan promptly of any unauthorized access or use.

 

  1. Cooperation with Provision of Services. Client shall cooperate reasonably and in good faith with Pebble Plan in the execution of the Services by, without limitation, (i) attending and actively participating in scheduled meetings; (ii) promptly providing complete, accurate and timely information, data and responses as requested by Pebble Plan; and (iii) promptly completing any other tasks or approvals that are reasonably necessary to enable Pebble Plan to efficiently provide and complete the Services.

 

  1. Intellectual Property Ownership. Pebble Plan owns and reserves all right, title, and interest in and to the Services, IT Systems, and other Pebble Plan Intellectual Property Rights. No rights are granted to Client under this Agreement other than as expressly set forth in this Agreement. Under no circumstance will Client have the right to access the object code or source code for the Services. By submitting Client Feedback, Client assigns to Pebble Plan all right, title, and interest in and to such Client Feedback to Pebble Plan. Pebble Plan shall have no obligation to accept or incorporate Client Feedback, and Client shall have no obligation to provide Client Feedback.

 

  1. Client Data. Client agrees to allow Pebble Plan to collect Client Data and use Client Data for the purposes of providing the Services. As between Client and Pebble Plan, Client owns all Client Data. Nothing in this Agreement shall be construed as prohibiting Pebble Plan from utilizing the Client Data for purposes of Pebble Plan’s business, provided that Pebble Plan’s use of Client Data will not reveal the identity, whether directly or indirectly by a reasonably foreseeable method, of Client, any individual or any specific data entered by Client (or by Pebble Plan on behalf of another Client) into IT Systems of Pebble Plan. Client grants Pebble Plan a royalty-free, nonexclusive, nontransferable right to use Client Data and Client’s Intellectual Property Rights to the extent necessary for Pebble Plan to perform the Services requested by Client.

 

  1. Representations. Pebble Plan represents and warrants to Client that Pebble Plan will perform the Services in good and workmanlike manner and will not knowingly provide any Services that violate any intellectual property rights of any third party in existence at the time of delivery. SUBJECT TO THE PRECEDING SENTENCE, CLIENT ACKNOWLEDGES THAT PEBBLE PLAN IS PROVIDING THE SERVICES “AS IS” WITHOUT ANY OTHER WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, AND PEBBLE PLAN EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING ANY WARRANTY OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE, UNINTERRUPTED, OR ACHIEVE A CERTAIN RESULT. Client acknowledges that Pebble Plan is not providing any legal, accounting, or investment advice. Client has full discretion in choosing to rely on the Services and does so at its own risk.

 

  1. Termination. In addition to the termination right prior to a renewal term, either Party may terminate this Agreement upon violation of any term of this Agreement by a Party unless such violation is cured within 30 days after written notice of such violation. Upon termination, both Parties will fulfill any existing obligations existing as of the date of termination but any obligations to be performed after the effective date of termination will terminate. Notwithstanding the termination, Client will continue to be obligated to pay for any Services performed, expenses incurred, and taxes owed before such termination date, along with any interest owed on such amounts accruing both before and after the termination date.

 

  1. Independent Consultant. Pebble Plan is an independent consultant of Client and nothing in this Agreement will be deemed to constitute a partnership or joint venture between the Parties.

 

  1. Indemnification & Release.  Each Party shall defend and indemnify the other, their successors, members, managers, officers, employees, agents, independent contractors, and representatives (collectively, the Indemnified Parties) from all losses, causes of action, claims, demands, liabilities, debts, judgments, costs, and expenses, including reasonable attorneys’ fees and other court costs, (collectively, the Losses), arising from or incurred in connection with this Agreement or any Statement of Work, including any Losses claimed or suffered by third-parties, to the extent such Losses are not due to the action or inaction of the Indemnified Parties’ negligence, gross negligence, or willful misconduct. CLIENT RELEASES PEBBLE PLAN, INCLUDING ANY MEMBER, MANAGER, EMPLOYEE, CONSULTANT, OR AGENT OF PEBBLE PLAN, FROM ANY LOSSES SUFFERED BY CLIENT AS A RESULT OF THE SERVICES PROVIDED BY PEBBLE PLAN EXCEPT TO THE EXTENT SUCH LOSSESS OCCUR AS A RESULT OF THE WILLFUL MISCONDUCT OR FRAUDULENT ACTIONS OF PEBBLE PLAN.

 

  1. Disclaimer of Certain Damages. Under no circumstances, shall Pebble Plan or any of its affiliates, employees, members, managers, officers, contractors, or agents have any liability whatsoever for (i) any damages of any kind arising out of errors in the entry of Client Data, or (ii) any consequential, indirect, incidental, punitive, special or exemplary damages, loss of Client’s profit or revenue, loss of use, loss of data or business interruption damages.

 

  1. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall the aggregate liability of Pebble Plan or any of its affiliates, employees, members, managers, officers, contractors, or agents, regardless of the cause and regardless of any other failure of any provision or undertaking in this Agreement, under contract, tort, or any other theory of liability (including claims alleging negligence or gross negligence), exceed an amount equal to the aggregate of the fees paid by Client to Pebble Plan in the previous six month period as of the date such cause of action arises, except to the extent arising from Pebble Plan’s willful misconduct or bad faith. In circumstances where any limitation of liability or indemnification provision in this Agreement is unavailable, the aggregate liability of Pebble Plan and its affiliates, employees, members, managers, officers, contractors, or agents for any claim shall not exceed an amount that is proportional to the relative fault that the conduct of Pebble Plan and its affiliates, employees, members, managers, officers, contractors, or agents bears to all other conduct giving rise to such claim.

 

  1. Confidentiality. Each party acknowledges that in the course of this Agreement, it may have access to and may be making use of, acquiring or adding to Confidential Information of the other party. Each party confirms that it will not, using at least the same degree of care as it employs in maintaining in confidence its own Confidential Information of a similar nature (but in no event less than a reasonable degree of care), disclose any such Confidential Information to a third party except with the prior written consent of the other party or as specifically provided in this Agreement. This Agreement imposes no confidentiality obligation upon the receiving party with respect to information that (i) was in the receiving party's possession before receipt from the disclosing party without an obligation to keep such information confidential; (ii) is or becomes available to the public through no fault of the receiving party; (iii) is received in good faith by the receiving party from a third party not subject to an obligation of confidentiality owed to the disclosing party and who discloses the Confidential Information without an obligation of confidentiality; or (iv) is disclosed as required by law or regulation, to respond to governmental inquiries, or in connection with litigation pertaining hereto, provided in each case that the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party’s cost, if the other party wishes to contest or otherwise limit the disclosure. If a party discloses (or threatens to disclose) any Confidential Information of the other party in breach of confidentiality protections in this section, the other party shall have the right, in addition to any other remedies available, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies may be inadequate. Client consents to Pebble Plan disclosing Client’s Confidential Information to contractors providing administrative, infrastructure and other support services to Pebble Plan, subcontractors providing services in connection with this Agreement, whether inside or outside of the United States, and actual or potential investors or acquirers.

 

  1. Dispute Resolution. The Parties agree to negotiate in good faith in an effort to resolve any dispute related to this Agreement that may arise. If the dispute the dispute cannot be resolved by negotiation, the parties will submit the dispute to mediation before resorting to litigation and will equally share the costs of a mutually acceptable mediator. This paragraph survives termination of this Agreement. This paragraph does not preclude a party from seeking equitable relief from a court of competent jurisdiction.

 

  1. Attorney’s Fees. If either Party retains an attorney to enforce this Agreement, the Party prevailing in litigation is entitled to recover reasonable attorney’s fees and other fees and court and other costs.

 

  1. Assignment. Neither Party may assign its rights or responsibilities in this Agreement without the prior written consent of the other Party, with such consent not to be unreasonably withheld, conditioned, or delayed.

 

  1. Notices. All notices under this Agreement must be in writing and will be considered delivered on the day of actual receipt, unless mailed by certified mail, postage prepaid, and return receipt requested, addressed to a Party at its address set forth below, or to such other address as notified by a Party, in which case such notices will be deemed to have been received three business days after the date of posting.

 

If to Pebble Plan:      Pebble Plan

                                    9913 River Rd.   Amarillo TX 79108  

                                                                                               

                                                                                               

 

 

If to Client:                Contact information provided when

account established                       

                                                                                               

                                                                                               

                                                                                               

 

 

  1. Construction of the Agreement. THIS AGREEMENT IS EXECUTED AND DELIVERED IN CONNECTION WITH A TRANSACTION NEGOTIATED AND CONSUMMATED IN POTTER COUNTY, TEXAS, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES AGREE THAT, WITH RESPECT TO ANY CONTROVERSIES, DISPUTES, OR CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PARTIES’ RELATIONSHIP CREATED BY THIS AGREEMENT, ANY ACTION SHALL BE BROUGHT, MAINTAINED, AND CONCLUDED EXCLUSIVELY IN THE DISTRICT COURTS OF POTTER COUNTY, TEXAS, OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, AMARILLO DIVISION. The paragraph headings throughout this Agreement are for convenience of reference only and the headings shall not be used to aid in the interpretation or construction of this Agreement. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, then the invalid, illegal, or unenforceable provision shall not affect any other provision of this Agreement, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained in this Agreement. The Parties agree that (a) each party and its counsel have had the opportunity to review and revise this Agreement, as well as, the attached exhibits, riders, or Statements of Work, and (b) the rule of construction that any ambiguity is to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendment, exhibit, rider, or Statement of Work hereto. When used in this Agreement, the singular number shall include the plural, the plural number shall include the singular, and the use of any gender shall include all other genders. No provision of this Agreement or any Statement of Work will be considered waived unless such waiver is in writing and signed by the Party that benefits from the enforcement of such provisions. In addition, any waiver or failure to enforce any such provision will not affect a Party’s rights to enforce such provision at a later time.

 

  1. Governmental Department. If Client is a U.S. federal government department or agency or contracting on behalf of such department or agency, all services described herein, including the provision of access to the Services, are “Commercial Items” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, and supporting Professional Services in accordance with paragraph (5) of the definition of “Commercial Item” in 48 C.F.R. §2.101. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, access to the Services are provided to Client with only those rights as provided under the terms and conditions of this Agreement and any applicable Statement of Work.

 

  1. Definitions. Unless otherwise defined in this Agreement, the following terms are defined as follows:

 

  1. Client Data means all business data and information entered into the IT Systems or provided by Client to Pebble Plan, whether such data is that of Client or that or a third-party and used for the benefit of Client.

 

  1. Client Feedback means suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the operation or functionality of the Services.

 

  1. Confidential Information means (i) information that is marked by the disclosing party as “confidential,” (ii) whether or not marked as “confidential,” information of a party of a special and unique nature and value relating to such matters as trade secrets, knowhow, systems, programs, developments, designs, procedures, manuals, products, financial statements or forecasts, confidential reports and communications, in each case whether such information is shared prior to or during the term of the Agreement, and (iii) with respect to Pebble Plan’s Confidential Information, the terms and conditions of this Agreement, any Statement of Work, or any drafts thereof, including without limitation all terms relating to pricing.

 

  1. Intellectual Property Rights means all common law, statutory and other intellectual property rights, including, without limitation, copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored, or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.

 

  1. IT Systems means the specific software-as-a-service application to which Client subscribes pursuant to the applicable Statement of Work and all information technology systems, computer databases, online portals, or other similar systems or processes of Pebble Plan.

 

  1. Survival. Notwithstanding anything in this Agreement to the contrary, the provisions of Sections 3, 4, 8, 13, 14, 15, 16, 17, 18, shall survive any termination or expiration of this Agreement.

 

  1. Entire Agreement. This Agreement, together with the attached exhibits, riders, and any Statement of Work, constitute the entire agreement of the Parties, and there are no oral representations, warranties, agreements, or promises pertaining to this Agreement or to any expressly mentioned exhibits and riders not incorporated in writing in this Agreement. To the extent the terms of any Statement of Work conflict with the terms of this Agreement, the Statement of Work will control with respect to the Services, otherwise, this Agreement will control. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall constitute one agreement. Execution of this Agreement by pdf/e-mail or other electronic transmission shall be binding on the Parties.

 

  1. Electronic Signature Accepted.

Client agrees that no additional signature is required to demonstrate their agreement with this Partner Service Agreement and that the electronic signature provided in establishing the account for purchase of services from Pebble Plan is sufficient.

 

Pebble Plan agrees that no additional signature is required to demonstrate it’s agreement to its responsibilities under the Partner Services Agreement and that the typed name of the company’s Manager below is sufficient

 

IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement as of the Effective Date. The Parties certify that they are a duly authorized representative of the respective entity and have read and agree to the foregoing terms of this Agreement.

 

 

 

 

PEBBLE PLAN:                                                         VIIIXC, LLC, a Texas limited liability company, doing business as Pebble Plan

 

By:  Tracy Shea, Manager

 

 

 

CLIENT:                                                                     As previously signed & agreed

 

 

 

Updated as of:  06/19/2022