HomeMy WebLinkAboutBendable Labs Inc; 2023-12-13;PARTICIPATION SERVICES AGREEMENT
This PARTICIPATION SERVICES AGREEMENT (“Agreement”) is entered into as of [________, 2023]
(“Effective Date”) by and between Bendable Labs, Inc. a [_design and research consultancy__] with its place of
business at 328 North Mansfield Ave, Los Angeles, CA 90036, and [__________ _______________] (“Participant”),
a [___________] with its place of business at [______________________________________] (each a “party” and
together, the “parties”).
RECITALS
A. BENDABLE LABS, INC. operates a product named “Bendable” promoting “lifelong learning”. Bendable is
deployed by a library to end users in its community. Bendable can include virtual and physical elements, including
a digital lifelong learning SaaS platform and physical assets that can be used in library branches or other in-person
learning centers to promote use of Bendable.
B. Participant desires to deploy Bendable in its library service area. Participant desires to receive from BENDABLE
LABS, INC. certain consulting services, professional services, the Bendable platform and/or other deliverables
in furtherance of deploying Bendable in its community.
In consideration of the above, the mutual covenants and agreements set forth below, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, BENDABLE LABS, INC. and
Participant agree as follows:
1. Definitions
1.1 “Acceptable Use Policy” means BENDABLE LABS, INC.’s policy of acceptable and unacceptable uses of the
Services, as updated from time to time.
1.2 “Administrative Users” means Participant and/or Participant’s employees, subcontractors and/or agents who are
authorized by Participant to access and use the Subscription Services for administrative purposes, and who have
been supplied access credentials for such purpose.
1.3 “Affiliate” means any person or entity that Controls, is Controlled by, or is under common Control with a party.
“Control” (including its correlative form “Controlled”) means the power to direct the management and policies
of an entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
1.4 “Agreement” means this Agreement, including any exhibits, schedules, amendments and other related documents
incorporated by reference herein, Acceptable Use Policy, and any and all Ordering Documents hereto.
1.5 “Bendable” means the product operated by BENDABLE LABS, INC. to promote lifelong learning.
1.6 “Bendable Platform” means the Bendable digital lifelong learning SaaS platform, including software, hardware,
APIs, databases and network, and any enhancements, improvements, bug fixes, updates, upgrades, modifications
to and derivative works of any part thereof.
1.7 “Bendable Property” means: (i) the Bendable Platform; (ii) End User Data; (iii) BENDABLE LABS, INC.
and/or Bendable trademarks, service marks, trade names, designs, logos and slogans, and all goodwill associated
therewith, whether or not registered; (iv) Documentation; (v) Deliverables; (vi) copy, graphics, images, videos,
documents, content and/or other works of authorship, whether or not protected by copyright, associated with
Bendable; (vii) Bendable BENDABLE LABS, INC. Confidential Information; and (viii) any and all Intellectual
Property Rights relating to (i)-(vii).
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municipal corporation 1200 Carlsbad Village Drive, Carlsbad, CA 92008
City of Carlsbad
December 13
1.8 “Deliverables” means the results and proceeds of Professional Services expressly set forth in an Ordering
Document. Deliverables may include reports, documents, templates, posters and other Bendable-related assets.
1.9 “Documentation” means the user guides, training materials, white papers and/or other documentation associated
with Bendable provided or made available by BENDABLE LABS, INC. in connection with this Agreement, as
may be updated from time to time by BENDABLE LABS, INC.
1.10 “End User” means an individual that Participant allows to access and use the Bendable Platform.
1.11 “End User Data” means information from an End User that can personally identify such End User, directly or
indirectly, and other data that can be reasonably linked to such information by BENDABLE LABS, INC.
1.12 “Intellectual Property Rights” mean current and future worldwide rights under patent law, copyright law, trade
secret law, trademark law, moral rights law, and other similar rights.
1.13 “Ordering Document” means a mutually signed ordering document for Services provided by or through
BENDABLE LABS, INC., which incorporates by reference the terms of this Agreement. Ordering Documents
may include statements of work and software subscription orders.
1.14 “Participant” means the library, city, county, state or other governmental entity that has entered into this
Agreement with BENDABLE LABS, INC.
1.15 “Participant Data” means the data, information and/or content provided, collected or generated by Participant
and/or End Users in connection with the Services under this Agreement, excluding End User Data.
1.16 “Participant Marks” means Participant’s trade names, trademarks, service marks and logos.
1.17 “Professional Services” means consulting, training, implementation or other professional services that
BENDABLE LABS, INC. may perform or provide, as described in an Ordering Document.
1.18 “Services” means Subscription Services, Professional Services and Deliverables.
1.19 “Subscription Services” means the Bendable Platform and any other subscription-based service that is provided
directly by BENDABLE LABS, INC., as described in an Ordering Document.
1.20 “Updates” means bug fixes, patches, error corrections, modifications or revisions to the Subscription Services
that enhance existing performance. Updates exclude Upgrades.
1.21 “Upgrades” means new products, features, functionality or enhancements to the Subscription Services for which
BENDABLE LABS, INC. generally charges its customers a separate fee in addition to existing Subscription
Services fees.
2 Services
2.1 Cooperation. Participant shall familiarize themselves with the Bendable implementation activities described in
the Scope of Services and agree to collaborate with BENDABLE LABS, INC. in a timely manner so as to meet
the requirements of the project timeline.
2.2 Responsibility for Results. Participant acknowledges that it alone is responsible for the results obtained from its
use of the Services (including any Subscription Services) and participation in Bendable, including the usefulness,
completeness, accuracy and content of such results.
2.3 Maintaining Bendable’s standards of quality. During the term of this Agreement, Participant agrees to maintain
their instance of Bendable in a way that adheres to the brand and style guidelines provided in Documentation and
Training sessions. BENDABLE LABS, INC. will provide editorial and technical services to support Participant’s
reasonable attempt to adhere to these standards of quality. Participant shall commit and deploy sufficient staff,
resources and funding to successfully activate and support Bendable in its community.
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3 Subscription Services
3.1 Access to Subscription Services. Subject to the terms and conditions of this Agreement, BENDABLE LABS,
INC. hereby grants to Participant a non-exclusive, royalty-free, fully paid, non-sublicensable, non-transferable,
worldwide, right and license to access and use the Subscription Services solely in providing access to lifelong
learning to End Users during the subscription term.
3.2 Usage Restrictions. Participant will not, and will not permit any Administrative User or End User to: (i) license,
sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the
Subscription Services or make the Subscription Services available to any third party, other than as expressly
permitted hereunder; (ii) use the Subscription Services to violate any applicable law, rule or regulation; (iii) use
the Subscription Services to knowingly send, store, publish, post, upload or otherwise transmit any viruses, Trojan
horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage,
detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or
property of another; (iv) intentionally interfere with or disrupt the integrity or performance of the Subscription
Services; (v) attempt to gain unauthorized access to the Subscription Services or its related systems or networks;
(vi) use or knowingly permit others to use any security testing tools in order to probe, scan or attempt to penetrate
or ascertain the security of the Subscription Services, except as expressly permitted hereunder; (vii) access the
Subscription Services for the purpose of building a competitive product or service; or (viii) copy, translate, create
a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or
any part thereof or otherwise attempt to discover any source code or modify the Subscription Services.
3.3 Environment. BENDABLE LABS, INC. will provide Participant online access to and use of the Subscription
Services via the Internet. The Subscription Services will be hosted on a server that is maintained by BENDABLE
LABS, INC. or its designated third party supplier or data center.
3.4 Subscription Services Changes. Access is limited to the version of the Subscription Services in BENDABLE
LABS, INC.’s production environment. BENDABLE LABS, INC. may regularly update the Subscription
Services, and reserves the right to discontinue, add and/or substitute features at any time. Updates will be made
available to Participant at no additional charge. BENDABLE LABS, INC. may make new applications, features
or functionality for the Subscription Services available from time to time, the use of which may be subject to
specific terms and conditions.
3.5 Participant Responsibilities. Participant shall: (a) access and use the Subscription Services in accordance with any
Acceptable Use Policy, this Agreement and all applicable laws, rules and regulations; (b) be responsible for any
Authorized User’s and End User’s compliance with any Acceptable Use Policy and this Agreement; (c) be
responsible for any consents and notices required to permit Participant's, Authorized User’s and End User’s use
and receipt of the Subscription Services; (d) be responsible for any consents and notices required for BENDABLE
LABS, INC.'s accessing, storing, and processing of all Participant Data; (e) be responsible for the accuracy,
quality and legality of Participant Data and the means by which Participant acquired Participant Data; and (f) use
commercially reasonable efforts to prevent unauthorized access to or use of Subscription Services and content,
and notify BENDABLE LABS, INC. promptly of any unauthorized access or use.
3.6 Administrative Users. Participant may specify one or more Administrative Users who will have the rights to
access Administrative User accounts. Administrative User accounts may include certain features and functionality
to manage Subscription Services. Participant is responsible for: (a) maintaining the confidentiality of login
credentials for Administrative Users accounts; (b) designating those individuals who are authorized to access the
Administrative User accounts; and (c) ensuring that all activities that occur in connection with the Administrative
User accounts comply with this Agreement and applicable laws, rules and regulations.
3.7 Resources. Participant shall be responsible for procuring, installing and maintaining, at Participant’s sole cost and
expense, all physical space, equipment, software and hardware at Participant’s site or related facilities, and shall
provide BENDABLE LABS, INC. with access to Participant’s facilities, systems and information as required by
BENDABLE LABS, INC. for purposes of deploying Bendable. Participant is solely responsible for obtaining and
maintaining at its own expense, all equipment needed to access the Subscription Services, including Internet
access and adequate bandwidth.
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3.8 End User Support. Participant will, at its own expense, provide and manage End User support for Subscription
Services. Participant will use commercially reasonable efforts to resolve support issues before escalating them to
BENDABLE LABS, INC. If Participant cannot resolve a support issue, then Participant may escalate the issue to
BENDABLE LABS, INC. in accordance with any support process and protocols BENDABLE LABS, INC. may
establish.
3.9 Third Party Providers. Participant may choose to include in or through Participant’s deployment of Subscription
Services certain products, services and/or content offered by third-party providers (each, a “Third Party
Provider”). Any relationship, exchange of data or other interaction between Participant and a Third Party
Provider, and/or any purchase, download or use by Participant (or any Authorized User or End User) of any
product or service offered by a Third Party Provider, is solely between Participant and such Third Party Provider,
and may require Participant (or any Authorized User or End User) to agree to a Third Party Provider’s terms and
conditions and/or obtain and pay for licenses thereto. Regardless of any recommendation by BENDABLE LABS,
INC. or use of any Third Party Provider’s products or services, BENDABLE LABS, INC. does not make any
representations, warranties or guarantees with respect to such Third Party Provider or any of its products or
services. Further, BENDABLE LABS, INC. cannot guarantee that use of such Third Party Provider’s products or
services will always be provided during the Term. While BENDABLE LABS, INC. may rely on data or
information provided or generated by such Third Party Provider’s products or services in the course of providing
the Services, Participant hereby acknowledges that BENDABLE LABS, INC. specifically does not warrant the
accuracy, reliability or completeness of any such data and information. Participant acknowledges and agrees that
BENDABLE LABS, INC. is not liable to Participant or any other party for any Third Party Provider and its
products and services. Accordingly, Participant hereby releases and holds harmless BENDABLE LABS, INC.
from and against any and all claims, losses, liability, damages, expenses, costs (including, but not limited to,
reasonable attorneys’ fees) and/or actions arising from any Third Party Provider and its products and services.
3.10 Future Functionality. Participant agrees that the commitments entered into under this Agreement are not
contingent on the delivery of any future features, functionality or other capability, or dependent on any oral or
written public comments made by BENDABLE LABS, INC. regarding future features, functionality or other
capability.
3.11 Compliance with Law/Order. BENDABLE LABS, INC. reserves the right to use or disclose information,
including Participant Data or Participant’s Confidential Information, if required by law or if BENDABLE LABS,
INC. reasonably believes that use or disclosure is necessary to protect BENDABLE LABS, INC.’s rights and/or
to comply with a judicial proceeding, court order, or legal process.
4 Proprietary Rights
4.1 Bendable Property. BENDABLE LABS, INC. is and shall be the sole and exclusive owner of all Bendable
Property, including all Intellectual Property Rights thereto. Except as expressly set forth in this Agreement, this
Agreement does not grant to Participant (or any other party) any rights, implied or otherwise, to any Bendable
Property. Any use of Bendable Property by Participant, as permitted under this Agreement, will inure to the
benefit of BENDABLE LABS, INC.
4.2 Participant Data; Participant Marks. As between BENDABLE LABS, INC. and Participant, Participant owns all
right, title and interest in and to all Participant Data and Participant Marks. Participant represents that it has valid
title or license to all Participant Data and Participant Marks, and it has all rights necessary to grant BENDABLE
LABS, INC. the rights set forth in this Agreement. Participant hereby represents and warrants that Participant
Data will not contain any content that is obscene, libelous, slanderous or otherwise defamatory, false or
misleading or that violates any copyright, right of privacy or publicity or other right of any person or party.
BENDABLE LABS, INC. reserves the right to remove Participant Data containing any information that
BENDABLE LABS, INC. determines in its sole discretion are unlawful, offensive, threatening, libelous,
defamatory, pornographic, obscene or otherwise objectionable or that violate any party's intellectual property or
this Agreement. Participant grants BENDABLE LABS, INC. and its Affiliates a worldwide, non-exclusive,
royalty-free, fully paid, sublicensable, transferable license to use, host, copy, distribute, perform, transmit, display
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and prepare derivative works of Participant Data and Participant Marks in order to provide the Services and/or in
connection with Participant’s participation in Bendable.
4.3 Aggregate Data. Notwithstanding anything to the contrary, BENDABLE LABS, INC. shall have the right to
collect and analyze data and other information relating to the provision, use and performance of various aspects
of the Services and related systems and technologies (including, information concerning Participant Data and data
derived therefrom), and BENDABLE LABS, INC. will be free (during and after the term hereof) to (i) use such
information and data to improve and enhance the Services, for other development, diagnostic and corrective
purposes in connection with the Services and other BENDABLE LABS, INC. offerings, and for any other lawful
purpose, and (ii) disclose such Participant data in aggregate or other de-identified form in connection with its
business and any other lawful purpose.
4.4 Feedback. If Participant, Authorized Users or End Users provide BENDABLE LABS, INC. or its Affiliates with
any suggestions, enhancement requests, recommendations, input or other feedback relating to any of the Services
or, in general, Bendable (“Feedback”), Participant, on behalf of itself, Authorized Users and/or End Users, as
applicable, shall and hereby does grant to BENDABLE LABS, INC. and its Affiliates a worldwide, royalty-free,
fully paid, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to adapt, modify, create
derivative works of, copy, offer to sell, sell, perform, display, distribute, import, and otherwise use the Feedback
for any purpose, including commercial uses, and/or incorporate Feedback into Bendable, the Services, and/or any
other product or service.
4.5 Potential Infringement. If BENDABLE LABS, INC. reasonably believes any of the Services infringe a third
party's Intellectual Property Rights, then BENDABLE LABS, INC. may, as determined by BENDABLE LABS,
INC., take one or more of the following actions: (a) obtain the right for Participant, at BENDABLE LABS, INC.'s
expense, to continue using the impacted Services; (b) provide a non-infringing functionally equivalent
replacement; (c) attempt to modify the impacted Services so that they no longer infringe; and/or (d) if none of the
foregoing are commercially reasonable, terminate provision of the impacted Services.
5 Confidentiality
5.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party
(“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as
confidential or that reasonably should be understood to be confidential given the nature of the information and
the circumstances of disclosure. Without limitation, Confidential Information of BENDABLE LABS, INC.
includes marketing plans, technology and technical information, product plans and designs, and business
processes disclosed by BENDABLE LABS, INC. Confidential Information does not include any information that
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any
obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed
to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to or use
of the Disclosing Party's Confidential Information.
5.2 Protection of Confidential Information. The Receiving Party will: (i) protect the Disclosing Party's Confidential
Information with the same standard of care it uses to protect its own Confidential Information, but at a minimum,
reasonable care; and (ii) limit access to Confidential Information of the Disclosing Party to its and its Affiliates'
employees and contractors who need access for purposes consistent with this Agreement and who have agreed in
writing to keep it confidential.
5.3 Required Disclosure. The Receiving Party may disclose the Disclosing Party's Confidential Information when
and to the extent required by law, regulation or court order, but only after it, if legally permissible: (i) uses
commercially reasonable efforts to notify the Disclosing Party; and (ii) gives the Disclosing Party an opportunity
to challenge the disclosure.
5.4 Equitable Relief. The parties agree that any unauthorized disclosure of Confidential Information may cause
immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing
Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable
relief without the necessity of showing actual monetary damages.
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6 Warranties; Disclaimers
6.1 Warranties. Each party represents and warrants that it has validly entered into this Agreement and has the legal
authority to do so. BENDABLE LABS, INC. represents and warrants that BENDABLE LABS, INC. will comply
with all laws, rules and regulations applicable to its provision of Services to Participant. Participant represents
and warrants that: (a) Participant will comply with all laws, rules and regulations applicable to (i) Participant’s
use of Services, (ii) Participant’s provision of Services to End Users, and (iii) Participant’s deployment of, and
participation in, Bendable; and (b) Participant’s use of the Services will not infringe, or constitute an infringement
or misappropriation of, any third party Intellectual Property Rights or other proprietary rights.
6.2 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY
MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
USE OR NONINFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
BENDABLE, THE BENDABLE PLATFORM AND OTHER SERVICES ARE PROVIDED TO
PARTICIPANT “AS IS”, WITHOUT ANY REPRESENTATIONS AND WARRANTIES. BENDABLE LABS,
INC. MAKES NO WARRANTY THAT BENDABLE, THE BENDABLE PLATFORM AND ANY OTHER
SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, BENDABLE LABS, INC.
DOES NOT MAINTAIN OR CONTROL THIRD-PARTY CONTENT AND SERVICES THAT MAY BE
INTERCONNECTED WITH OR MADE AVAILABLE AS PART OF THE BENDABLE PLATFORM, AND
BENDABLE LABS, INC. IS NOT RESPONSIBLE FOR THE AVAILABILITY, COMPLETENESS,
TIMELINESS, FACTUAL ACCURACY, OR NON-INFRINGEMENT OF SUCH CONTENT AND
SERVICES.
7. Indemnification
7.1 Mutual Indemnification. Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the
other party (the “Indemnified Party”), affiliates, and each of their respective officers, directors, employees,
shareholders, agents, officials, volunteers, successors and assigns, from and against any damages, liabilities,
costs and expenses (including reasonable attorney’s fees) arising from or in connection with any breach of this
agreement by the Indemnifying Party or its representatives, except to the extent that such claims, damages,
losses, liabilities, judgments, settlements, costs and expenses are caused by the negligence or intentional
misconduct of the Indemnified Party. The Indemnified Party shall promptly notify the Indemnifying Party of
any such claim and reasonably cooperate with the Indemnifying Party in defense of such claims at the
Indemnifying Party’s expense.
8. Limitation of Liability
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL
BENDABLE LABS, INC.’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY,
EXCEED THE AMOUNTS PAID OR PAYABLE BY PARTICIPANT IN THE TWELVE (12) MONTHS
PRECEDING THE INCIDENT THAT GAVE RISE TO THE CLAIM.
8.2 Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (INCLUDING BUT NOT LIMITED
TO DAMAGES TO BUSINESS REPUTATION, DATA LOSS, INTERRUPTION OF BUSINESS, LOST
BUSINESS OR LOST PROFITS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE
SERVICES OR THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
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8.3 Exclusions to the Limitations of Liability. Notwithstanding anything to the contrary contained herein, no
limitations of liability in this Section 8 shall apply with respect to damages arising from a party’s gross negligence
or intentional misconduct, or arising from Participant’s obligations under Sections 5 and 7 of this Agreement.
9. Term and Termination
9.1 Term. This Agreement will commence on the Effective Date and will govern the relationship of BENDABLE
LABS, INC. and Participant for 12 months.
9.2 Termination for Convenience. Participant may request termination for convenience at any time upon thirty (30)
days’ prior written notice to BENDABLE LABS, INC. Participant must cease use of the applicable Services.
BENDABLE LABS, INC. may terminate this Agreement for convenience at any time upon thirty (30) days' prior
written notice to Participant.
9.3 Termination for Breach. Either Party may immediately terminate this Agreement if: (i) any breach of this
Agreement that is not cured by the breaching party within thirty (30) calendar days of receipt of a notice informing
the breaching party of the breach; or (ii) the other party ceases its business operations or becomes subject to
insolvency proceedings and the proceedings are not dismissed within 60 days.
9.4 Termination by BENDABLE LABS, INC. BENDABLE LABS, INC. may terminate this Agreement upon notice
to Participant in the event: (i) Participant has not made reasonable efforts to comply with Bendable’s standards
of quality; and/or (ii) BENDABLE LABS, INC. stops offering Bendable and/or any Services comprising
Bendable.
9.5 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement: (i) all rights and
licenses granted by BENDABLE LABS, INC. to Participant shall immediately terminate, and Participant shall
cease any further use of the Bendable Platform and any other Bendable Property; (ii) BENDABLE LABS, INC.
shall have no further obligation to provide Services; (iii) Participant’s access to the Bendable shall cease; (iv)
Participant shall return or, upon BENDABLE LABS, INC.’s request permanently delete/destroy, any Bendable
Property under Participant’s reasonable control, in compliance with any records retention policies or laws, and
certify in writing to BENDABLE LABS, INC. that it has done so.
9.6 Suspension of Services by BENDABLE LABS, INC. In addition to those conditions, rights, and remedies set
forth in this Agreement, BENDABLE LABS, INC. may suspend access to Services (by Participant, any
Administrative User or End User, or otherwise) under any Ordering Document:; (i) if Participant’s use of Services
violates the Agreement and/or any applicable law, rule or regulation; (ii) if use of the Services degrades
performance of the Services; (iii) to protect the Bendable Platform and/or any of the Services from unauthorized
access or use; and/or (iv) to protect BENDABLE LABS, INC. from any undue liability. If reasonable under the
circumstances, BENDABLE LABS, INC. may attempt to provide notice (which may be by email) of such
suspension and work in good faith with Participant to help Participant resolve the issue causing the suspension.
9.7 Survival. The terms contained in Sections 3, 4, 5, 7, 8, 9, and 10, and any other terms that either expressly or by
their nature should survive, shall survive any termination of this Agreement, and shall continue in full force and
effect.
10. General
10.1 Use of Service Providers. BENDABLE LABS, INC. may use the services of any service providers,
subcontractors, or other third parties to perform any Services covered under this Agreement.
10.2 Export Control Laws. The parties shall each comply with all United States and foreign export control laws and
regulations applicable to the exercise of its rights and/or provision of Services under this Agreement.
10.3 Publicity. Participant may not issue press releases or make any public statements relating to this Agreement
and/or Bendable without BENDABLE LABS, INC.’s prior written consent in each instance, which consent will
not be unreasonably withheld.
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10.4 Government Entities. If Participant is the U.S. Government or any agency or instrumentality thereof (collectively,
“Government”), then any software provided pursuant to this Agreement is delivered with RESTRICTED
RIGHTS only. The use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR
52.227-19 Commercial Computer Software—Restricted Rights or DFAR 252.227-7013 Rights in Technical Data
and Computer Software.
10.5 Complete Agreement. This Agreement is the entire agreement between the parties relating to the subject matter
hereof and supersedes all prior or contemporaneous understandings, agreements and communications with respect
to the subject matter hereof. Notwithstanding any language to the contrary therein, no terms or conditions stated
in Participant’s invoice, purchase order or other similar documentation will be incorporated into or form any part
of this Agreement, and all such terms or conditions will be null and void. No modification, amendment, or waiver
of any provision of this Agreement will be effective unless in writing and signed by both parties.
10.6 Conflict. In the event of conflict or ambiguity between any of the provisions in this Agreement and the Terms of
Use, the terms of this Agreement will prevail.
10.7 Waiver; Severability. No failure or delay by either party to enforce any provision of this Agreement will
constitute a waiver of that provision or affect such party’s right to require the future performance thereof. If any
provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision will be
enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of this
Agreement will continue in full force and effect.
10.8 Force Majeure. No delay, failure or default in performance of any obligation of either party hereunder will
constitute a breach of this Agreement to the extent caused by Force Majeure. The term “Force Majeure” will be
defined to include acts of terrorism, fires, earthquakes, or other casualties or accidents, acts of God, severe weather
conditions, strikes or labor disputes, war or other violence, any law, order proclamation, regulation, ordinance,
demand or requirement of any governmental agency, civil unrest, global pandemics (such as COVID19, SARS,
etc.), or any other event beyond the reasonable control of a party.
10.9 Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the
other party’s express written consent, except that BENDABLE LABS, INC. may assign this Agreement, in whole
or in part, without Participant’s consent, to an Affiliate or a successor to all or substantially all of BENDABLE
LABS, INC.’s assets or business, through a sale or merger, to which this Agreement relates. This Agreement will
be binding upon and inure to the benefit of the respective successors and assigns of the parties. Any purported
assignment of rights or delegation of duties in violation of this Section is void.
10.10 No Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
10.11 Governing Law. This Agreement is governed by the laws of the State of California, without reference to its
conflict of law principles or to the U.N. Convention on Contracts for the International Sale of Goods. The parties
hereby irrevocably consent to the exclusive jurisdiction of the Federal and State courts located in San Diego,
California, in any action arising out of or relating to this Agreement.
10.12 Notices. Notices under the Agreement must be in writing and sent by (i) first class postage prepaid mail, (ii)
internationally recognized delivery service, or (iii) except for notices of termination or breach, email. Notices
must be sent to the following addresses:
To BENDABLE LABS, INC.: 328 North Mansfield Ave, Los Angeles, CA 90036, attn.: [Sarah
Zaner]; and
To Participant: at the address listed.
Notices will be deemed given upon confirmation of receipt, including by means of an automatic read receipt
for email notice, or three (3) business days after mailing, whichever is earlier.
DocuSign Envelope ID: 1EBDFB3E-BC0A-4207-B9CF-E627FE60BA94
10.13 All Available Remedies. If a dispute arises, then both Parties may resort to any and all available judicial
and/or regulatory remedies.
10.14 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed
an original, but all of which together will constitute one and the same instrument. Counterparts may be executed
and delivered by facsimile, pdf or other electronic signature and such documents will be treated as originals for
all purposes.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date.
Bendable Labs, Inc [______________________]
By: By:
Name: Name:
Title: Title:
Date: Date:
DocuSign Envelope ID: 1EBDFB3E-BC0A-4207-B9CF-E627FE60BA94
12/12/2023
Sarah Zaner
Co-president
12/13/2023
12/13/2023
David Graham
Chief Innovation Officer
12/13/2023