This Subscription Agreement (“Agreement”) is entered into by and between the customer identified below (“Customer”) and Delux Cleaning Supply, Inc. d/b/a PowerWash.com d/b/a PowerWash Academy (”PWA”). Customer and PWA may be jointly referred to in this Agreement as the “Parties,” or either one or them as a “Party.”
Term. This Agreement will remain in force for a period of time (“Term”) consisting of the Initial Term and any Additional Terms as set forth below:
(a) Initial Term. The Initial Term of this Agreement shall be a period of one year beginning on the date this Agreement is entered into by Customer.
(b) Additional Terms. Upon expiration of the Initial Term, this Agreement shall automatically renew for an additional period of one year (an “Additional Term”) unless Customer delivers written notice of cancellation to PWA at least 30 days before the end of the Initial Term. Upon expiration of any Additional Term, this Agreement shall automatically renew for another Additional Term of one year unless Customer delivers written notice of cancellation to PWA at least 30 days before the end of the current Additional Term.
(c) Termination. If Customer gives timely written notice of termination before the end of the Initial Term in accordance with paragraph (b) above, this Agreement shall terminate upon the end of the Initial Term. Otherwise, this Agreement shall terminate upon the end of the last Additional Term, following timely written notifice of termination by Customer in accordance with paragraph (b) above. Customer may not terminate this Agreement except as provided in this paragraph (c). However, PWA may terminate this Agreement at any time, with or without notice, if Customer fails to timely make a payment due to PWA or if Customer breaches any of Customer’s obligations under this Agreement, and upon such termination PWA shall be entitled to retain any amounts already paid to PWA, in addition to any other damages or remedies to which PWA may be entitled. If PWA terminates this Agreement, the Term ends immediately upon PWA’s termination of this Agreement.
(a) Fee; Amount. During the Term, Customer shall pay to PWA a monthly fee for each month of the Term (which may or may not correspond to a calendar month). During the Initial Term, the amount of the Monthly Fee will be $197.00 per month. The Monthly Fee during any Additional Term shall be PWA’s current monthly fee amount in effect at the start of the Additional Term, subject to PWA’s right to change the amount of the fee during any Additional Term. In addition, after the Initial Term, PWA may change the Monthly Fee during any Additional Term upon written notice to Customer; following such written notice, all services will be billed and paid for at the new Monthly Fee.
(b) Credit Card Payment. Customer shall arrange to pay all Monthly Fees, and any other amounts due to PWA, by credit card. Customer shall provide PWA with valid credit card information for a credit card (“Customer Card”) to be used to pay the Monthly Fee and all other amounts owed to PWA, along with any other information needed to make charges to the Customer Card. Customer shall timely update that information to ensure that PWA has the ability to charge the Customer Card at all times for amounts owed to PWA. Customer authorizes PWA to make charges to the Customer Card to pay all Monthly Fees and all other amounts owed by Customer to PWA; this authorization may not be revoked. Customer represents and warrants that Customer has all necessary right and authority to authorize PWA to make charges to any credit card provided by Customer. This paragraph does not limit PWA’s right to collect amounts due from Customer in any other manner permitted by law.
(c) Fees Due Until Termination. The Customer may terminate this Agreement only as expressly provided in this Agreement. Customer shall pay all Monthly Fees for each month until the Term ends in accordance with this Agreement.
Access to Online Training Materials. During the Term, PWA agrees to make PWA’s online training materials (as defined below, “Training Materials”) available to Customer’s Authorized Users, subject to the terms, conditions, and limitations set forth in this Agreement. Customer agrees to timely make all payments due under this Agreement and to comply with the other terms and conditions of this Agreement.
Access Limited to Authorized Users. Only Authorized Users may access or use the Training Materials, and only Authorized Users may access or use any services provided by PWA. Customer shall not permit any persons other than Authorized Users to access or use the Training Materials or any services provided by PWA. In this Agreement, “Authorized Users” means bona fide current employees of Customer.
(a) Definition. In this Agreement, “Training Materials” means all text, audio or video material, images, diagrams, media, or other content provided by or made available by PWA to Customer or its Authorized Users, including without limitation: (i) video or audio recordings or files; (ii) instructional or training materials; and (iii).manuals, webinars, and ebooks. “Training Materials” also includes any such materials labeled “PowerWash University”, “PWU” or associated with “Power Wash University.”
(b) Ownership. All Training Materials shall remain the property of PWA at all times, including without limitation all copies or printouts of any Training Materials.
(c) Use. Customer shall access and use the Training Materials only for the purpose of allowing Customer’s Authorized Users to be trained by PWA in accordance with this Agreement and any terms of service or rules established by PWA. Customer shall not access, use, disclose, copy, distribute, or share any Training Materials for any other purpose, or in any other manner not expressly authorized by this Agreement. Customer shall not permit any persons other than Authorized Users to access or use the Training Materials, and Customer shall not distribute, share, disclose, or provide any Training Materials to anyone other than Customer’s Authorized Users.
(d) Return by Authorized Users. Whenever a person ceases to be an Authorized User, whether through termination of employment by Customer or otherwise, Customer shall require that person to return all Training Materials, and copies of Training Materials, to the Customer. If an Authorized User leaves the employ of Customer for any reason, Customer shall require that person to return all Training Materials, and copies of Training Materials, to the Customer.
(e) No Use or Retention After Termination. Upon termination of this Agreement, Customer shall immediately destroy or delete all Training Materials or copies of Training Materials in the possession, custody, or control of Customer. Within 10 days after termination of this Agreement, Customer shall deliver to PWA (at PWA’s offices in Tarrant County, Texas) with a written confirmation, in a form reasonably acceptable to PWA, that Customer has destroyed or deleted all Training Materials, including copies of same, and that Customer no longer has any Training Materials or copies of same in Customers’ possession, custody, or control.
(f) Customer Responsibility and Indemnity. Customer shall be responsible for ensuring that Customer’s employees, agents, and Authorized Users comply with this Section 6, and do not access, use, disclose, retain, copy, distribute, or share any Training Materials except as expressly permitted by this Agreement. Customer shall indemnify and hold harmless PWA for all losses, damages, costs, and expenses (including without limitation attorneys’ fees incurred in enforcing PWA’s legal rights) that are caused in whole or part by any access, use, disclosure, retention, copying, distribution, or sharing any Training Materials by any current employee, agent, or Authorized User of Customer, including without limitation legal fees and litigation expenses incurred by PWA in enforcing its rights under this Agreement or its rights in the Training Materials, whether against Customer, any current or former Authorized Agent or employee of Customer, or any other person.
Limitations of Warranty.
(a) “As Is”. All Training Materials, and other goods and services sold or provided by PWA, are provided “AS IS” and “AS AVAILABLE” without warranties of any kind, and PWA hereby disclaims all warranties, express or implied, oral or written. Without limiting the foregoing, PWA EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY; (B) ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; AND (C) ANY WARRANTY OF NON-INFRINGEMENT.
(b) Interruptions of Service. PWA DOES NOT WARRANT THAT THE TRAINING MATERIALS, OR ANY RELATED WEB SITES, SOFTWARE, OR SERVICES WILL BE AVAILABLE AT ALL TIMES. Customer understands and agrees that there may be periods of time in which the Training Materials, or any related web sites, software, or services are unavailable for technical or other reasons, and neither PWA nor any PWA affiliates shall be liable for such downtime or unavailability, and the same shall not constitute a breach of any obligation on the part of PWA or any PWA Affiliates, and shall not affect Customer’s obligations, including without obligation Customer’s obligation to make Monthly Payments.
(c) Security Defects. Customer is solely responsible for the security of Customer’s computers, information technology, networks, and other property. PWA DOES NOT WARRANT THAT THE TRAINING MATERIALS, ANY WEB SITE OPERATED OR USED BY PWA, OR ANY CONTENT, SOFTWARE, APPS, OR SERVICES WILL BE FREE FROM MALWARE, BUGS, VIRUSES, OR OTHER SECURITY DEFECTS. PWA shall not be liable for damage or loss caused by malware, bugs, viruses, or other security defects.
(d) Affiliates and Personnel of PWA. Paragraphs (a), (b), and (c) above also apply to any entity affiliated with PWA and any officers, directors, managers, employees, or agents of PWA, and the liability and obligations of (and any alleged warranties made by) such entities and persons is limited to the same extent as PWA.
Limitations of Liability
(a) Excluded Damages. NEITHER PWA NOR ANY OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR AFFILIATES OF PWA SHALL BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF PROFITS OR REVENUES, OR LOSS OF BUSINESS, AND CUSTOMER WAIVES ANY RIGHT TO SEEK OR CLAIM SUCH DAMAGES.
(b) Exclusive Remedy. Customer’s sole and exclusive remedy for any claim or cause of action of any kind, whether in contract, tort, or otherwise, arising from or relating to the Training Materials, any related web sites or services, this Agreement, or any goods or services provided by PWA, or any transaction between Customer and PWA shall be a refund of the amount(s) paid by Customer to PWA under this Agreement. All other damages and remedies are expressly excluded. This limitation shall apply even if the exclusive remedy does not fully compensate Customer for all losses.
(c) Affiliates and Personnel of PWA. Paragraphs (a) and (b) above also apply to any entity affiliated with PWA and any officers, directors, managers, employees, or agents of PWA, and the liability and obligations of such entities and persons is limited to the same extent as PWA.
Terms of Service / Terms and Conditions. In addition to Customer’s obligations under this Agreement, Customer shall comply with and be bound by all terms of service, terms and conditions, and other rules relating to any web site or online service operated, used, or made available by PWA. Customer’s access to or use of the Training Materials or PWA’s services may be suspended if Customer or Customer’s Authorized Users fails to comply with this Agreement or with terms of service, terms and conditions, and other rules established by PWA, and such suspension shall not affect Customer’s obligation to make Monthly Payments.
Assignment. PWA may assign its rights and obligations under this Agreement to any affiliate or successor in interest of PWA. Customer may not assign any of Customer’s rights or obligations under this Agreement.
Governing Law; Venue; Jury Waiver. This Agreement and the rights and obligations of the Parties shall be governed exclusively by the laws of the State of Texas without regard to conflicts of law principles. Any legal proceeding arising out of or relating to this Agreement, the Training Materials, any goods or services provided by PWA, or any dispute between Customer and PWA (or any affiliate of PWA or officer, director, employee, or agent of PWA) (a “Related Proceeding”) shall be filed exclusively in the State District Courts of Tarrant County, Texas, and all Parties consent to the personal jurisdiction of those courts in any Related Proceeding. All Parties waive any right to remove a Related Proceeding from the state courts of Tarrant County, Texas to federal court. All Parties expressly waive any right to a trial by jury in any Related Proceeding, and consent to trial solely before the court.
Representations and Warranties. Each Party entered into this Agreement based solely on that Party’s own evaluation and assessment, and not based upon any statements, promises, representations, or warranties which are not expressly set forth in writing in this Agreement. No Party relied upon any statements, promises, representations, or warranties except for those statements, promises, representations and warranties expressly set forth in writing in this Agreement. All Parties hereby expressly disclaim reliance on any statements, promises, representations, statements, or warranties except for those statements, promises, representations, statements, and warranties expressly set forth in writing in this Agreement.
Counterparts and Signatures. This Agreement may be executed in multiple counterparts, each of which will be considered an original but all of which together constitute one and the same instrument. A faxed signature or electronic image of a signature will be as effective as an original signature.
Third-Party Beneficiaries. PWA’s affiliates and PWA’s officers, directors, managers, partners, employees, and agents may enforce the terms of this Agreement. Otherwise, there are not third-party beneficiaries of this Agreement.
Severability. The provisions of this Agreement are severable. If any provision in this Agreement is held to be invalid or unenforceable, the other provisions of this Agreement will remain binding and enforceable.
Amendment and Waiver. This Agreement may not be amended except through a written amendment signed by all Parties. None of the rights or obligations under this Agreement may be waived except through an express written waiver signed by an officer of PWA. Without limiting the foregoing, PWA’s failure to enforce, or to demand compliance with, any provision of this Agreement will not constitute a waiver of any of PWA’s rights or any of Customer’s obligations.
Construction Against Party. This Agreement has been freely negotiated between the Parties, and will not be construed against any Party on the ground that it was drafted by that Party. The doctrine of contra proferentem will not apply to this Agreement.
Attorneys’ Fees. In any Related Proceeding, PWA shall recover from Customer, in addition to any other amounts, all attorneys’ fees, all costs, and any other expenses of any kind, including expert fees, incurred by PWA in such proceeding, or incurred by PWA in enforcing this Agreement.
Entire Agreement. This written Agreement constitutes the entire agreement of the Parties, and supersedes all prior or contemporaneous agreements, understandings, or negotiations among the Parties whether oral or written. There are no other agreements, understandings, or promises between the Parties, except as set forth in writing in this Agreement.
By purchasing the product, the Customer (which is any party who has purchased this subscription through any Power Wash website) agrees to all of the terms of this Agreement.