WhyFire, LLC & {businessName} - WhyFire Online Estimate Generator Service Contract

This Contract for Services is made effective as of the date on page one of the contract, by and between {businessName} of

{primaryBusiness}

and WhyFire, LLC ("WhyFire") of PO Box 6202, Beaverton, Oregon 97007.

1. DESCRIPTION OF SERVICES. Beginning on {date}, WhyFire will provide to {businessName} the following services (collectively, the "Services"):

• Selected Service Level: WhyFire Online Estimate Generator
• Base Tool: {baseTool}
• Add On Tools: {addons}

Any data, content, pricing information, product specifications, or materials provided by {businessName} to WhyFire for use in delivering the Services remains the sole property of {businessName}. WhyFire will not share such proprietary information with any other party without written permission from {businessName}.

2. PAYMENT. Payment shall be made to WhyFire, LLC, Beaverton, Oregon 97006. {businessName} agrees to pay WhyFire as follows:

Set Up Fee (amount listed above), plus Monthly Service Fee, ${finalFinal64} (USD) per month per retail showroom/location/market once WhyFire service is built out and ready for client use. 

At any point in time, with 30 days notice, if {businessName} has been using any Add On Tools, they can scale back their services to just the Base Tool listed above for ${total} (USD) per month.

At any point in time, with 30 days notice, {businessName} may choose to upgrade or downgrade their Service Level—this may be subject to a new service agreement.

The Set Up Fee (amount listed above) is non-refundable. The Monthly Service Fee may be refunded within the first 60 days of service if {businessName} is not happy with it.

WhyFire will begin billing the Monthly Service Fee as soon as the client's platform is built out and the initiation email has been sent to {businessName}. In the event that this is not on the first of the month, the monthly rate will be prorated based on the date the initiation email was sent to {businessName}.

WhyFire, LLC will process {businessName}'s credit card on file on the 1st of each month for that month's services.

If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 2 percent per year, or the maximum percentage allowed under applicable Oregon laws, whichever is less.

If payment is not received by no later than 10 days after the 1st of the month, services may be suspended and {businessName} may be subject to a late fee before resuming service.

{businessName} shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if {businessName} fails to pay for the Services when due, WhyFire has the option to treat such failure to pay as a material breach of this Contract, and may cancel this Contract and/or seek legal remedies.

3. TERM. This Contract may be terminated by either party upon 30 days prior written notice to the other party. An email notice by one party will suffice.

4. CONFIDENTIALITY. WhyFire, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of WhyFire, or divulge, disclose, or communicate in any manner, any information that is proprietary to {businessName}. WhyFire and its employees, agents, and representatives will protect such information and treat it as strictly confidential. Any oral or written waiver by {businessName} of these confidentiality obligations which allows WhyFire to disclose {businessName}'s confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences.

{businessName}, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of {businessName}, or divulge, disclose, or communicate in any manner, any information that is proprietary to WhyFire. {businessName} and its employees, agents, and representatives will protect such information and treat it as strictly confidential. Any oral or written waiver by WhyFire of these confidentiality obligations which allows {businessName} to disclose WhyFire's confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences.

5. REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 15 days from the effective date of such notice to cure the default(s). Unless waived in writing by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Contract.

6. DISPUTE RESOLUTION.

a. Informal Resolution: The parties will first attempt to resolve any dispute arising out of or relating to this Agreement through good faith negotiations within thirty (30) days of written notice of the dispute.

b. Binding Arbitration: If negotiations fail to resolve the dispute, the matter shall be resolved through binding arbitration as follows:

i. Selection of Arbitrator: Within fourteen (14) days of either party demanding arbitration, the parties shall mutually select and retain a single arbitrator who is either a retired judge or an attorney with at least fifteen (15) years of experience in commercial disputes. If the parties cannot agree on an arbitrator within fourteen (14) days, either party may petition the Multnomah County Circuit Court in Portland, Oregon to appoint an arbitrator.

ii. Cost of Arbitrator: The parties shall share the arbitrator's fees and costs equally, regardless of outcome. Each party shall pay its own attorney's fees and expenses, except that the arbitrator may award attorney's fees to the prevailing party.

iii. Location: The arbitration shall be conducted in Portland, Oregon, or remotely via video conference if both parties agree.

iv. Process: The arbitrator shall establish reasonable procedures and timelines for the arbitration, including limited document exchange and witness testimony as necessary. The arbitrator shall apply the substantive law of the State of Oregon.

v. Decision: The arbitrator shall issue a written decision within sixty (60) days of the final hearing. The arbitrator's decision shall be final and binding on both parties, with no right of appeal except as provided by Oregon law for arbitration awards.

vi. Enforcement: The arbitrator's decision may be entered as a judgment in any court of competent jurisdiction.

vii. Confidentiality: All arbitration proceedings, documents, testimony, and the arbitrator's decision shall remain confidential and shall not be disclosed to third parties except as required by law or to enforce the award.

c. Class Action Waiver: Each party agrees that any dispute shall be resolved on an individual basis only, and not as a class action or consolidated proceeding.

d. Equitable Relief Exception: Either party may seek temporary or preliminary injunctive relief in a court of competent jurisdiction to prevent immediate and irreparable harm, including but not limited to breaches of confidentiality or intellectual property rights.

7. ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties.

8. SEVERABILITY. If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.

9. AMENDMENT. This Contract may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment.

10. GOVERNING LAW. This Contract shall be construed in accordance with the laws of the State of Oregon.

11. NOTICE. Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.

12. DATA OWNERSHIP AND USE.

a. Customer Data Ownership: {businessName} retains ownership of all customer information, leads, estimates, configurations, website content, analytics data, and other business data ("Customer Data") entered into or generated through WhyFire Services. {businessName} shall have full access to export all Customer Data at any time during the term of this Agreement.

b. WhyFire's Right to Use and Commercialize > i. Data Products and Licensing: Creating, marketing, licensing, and selling industry reports, market intelligence products, benchmarking tools, predictive analytics, data visualizations, and any other data-driven products or services using aggregated and anonymized data.

ii. Analytics and Reporting: Creating industry trends, market forecasts, competitive analysis, benchmarks, and market intelligence using aggregated and anonymized data.

iii. Service Improvement: Improving WhyFire's platform, tools, features, and services based on usage patterns, customer behavior, and performance metrics.

iv. Marketing and Sales: Using aggregated statistics and anonymized insights for WhyFire's marketing materials, sales presentations, case studies, thought leadership content, and industry reports.

v. Product Development: Developing new products, services, features, and capabilities based on insights derived from Customer Data, including but not limited to AI/machine learning models, recommendation engines, and predictive tools.

vi. Third-Party Partnerships and Revenue Generation: Sharing, licensing, selling, or otherwise commercializing aggregated and anonymized data insights, reports, or analytics products to manufacturers, distributors, industry associations, research organizations, financial institutions, investors, or any other third parties through data licensing agreements, subscription products, one-time reports, API access, or any other commercial arrangement.

vii. Derivative Works: Creating and commercializing any derivative works, analyses, insights, or intellectual property based on aggregated Customer Data.

c. Revenue and Compensation: WhyFire has no obligation to share revenue, royalties, or any other compensation with {businessName} from the commercialization, licensing, or sale of aggregated and anonymized data products or services. All revenue generated from such activities is the sole property of WhyFire.

d. Data Upon Termination: Upon termination of this Agreement:

i. {businessName} shall have 60 days to export all Customer Data.

ii. After 60 days, WhyFire may delete {businessName}'s individual Customer Data from active systems, but WhyFire retains the right to maintain aggregated and anonymized data derived from {businessName}'s usage indefinitely.

iii. All of WhyFire's rights under Section 12(b) survive termination of this Agreement in perpetuity.

e. Anonymization and Aggregation: When WhyFire uses Customer Data for purposes outlined in Section 12(b), WhyFire will aggregate data from multiple sources and/or anonymize data such that individual businesses or customers cannot be reasonably identified, except where {businessName} has provided explicit written consent for identified use (such as in a case study, testimonial, or co-marketing arrangement).

f. Third-Party Sharing of Identifiable Data: WhyFire will not sell, license, or share {businessName}'s identifiable Customer Data (data that specifically identifies {businessName} or its individual customers) with third parties for their independent marketing or commercial purposes without {businessName}'s explicit written consent. However, WhyFire retains full rights to monetize, license, sell, and commercialize aggregated and anonymized data insights through any means and to any third parties without restriction or notification to {businessName}.

g. Security: WhyFire will implement commercially reasonable security measures to protect Customer Data from unauthorized access, use, or disclosure. However, {businessName} acknowledges that no system is completely secure and WhyFire cannot guarantee absolute security.

h. Analytics Access: {businessName} acknowledges that industry trends, benchmarks, competitive intelligence, and aggregated analytics provided through WhyFire Services may include data derived from other WhyFire customers, and {businessName} similarly contributes to these aggregate insights that may be provided to other customers or sold to third parties.

i. Compliance and Customer Consent: WhyFire will comply with applicable data protection laws in its use of Customer Data. {businessName} represents and warrants that they have obtained all necessary consents, authorizations, and permissions from their end customers for the collection, use, and processing of customer information through WhyFire's platform, including consent for WhyFire's use of such data as described in this Section 12.

j. Data Breach Notification: In the event of a data breach that compromises {businessName}'s identifiable Customer Data, WhyFire will notify {businessName} within 72 hours of discovery and will reasonably cooperate with {businessName} in any required notifications to affected parties.

k. Sublicensing: WhyFire may sublicense any of its rights under Section 12 to affiliates, subsidiaries, contractors, or third-party service providers as necessary to exercise its rights under this Agreement.

l. Acknowledgment: {businessName} acknowledges and agrees that the rights granted to WhyFire in this Section 12 are material consideration for WhyFire entering into this Agreement and providing Services at the rates specified herein. {businessName} further acknowledges that aggregated data insights and analytics are core to WhyFire's business model and value proposition.

13. LIMITATION OF LIABILITY AND WARRANTIES.

a. "AS IS" Warranty: THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WHYFIRE DOES NOT GUARANTEE THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, SECURE, OR PRODUCE ANY SPECIFIC RESULTS INCLUDING INCREASED SALES OR LEAD GENERATION.

b. No Liability for Damages: WHYFIRE IS NOT LIABLE FOR ANY LOST PROFITS, LOST REVENUE, LOST DATA, LOST SALES, LOST CUSTOMERS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COST OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT OR USE OF THE SERVICES, EVEN IF WHYFIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

c. Liability Cap: WHYFIRE'S TOTAL AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT {businessName} PAID TO WHYFIRE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

d. Software Accuracy and Outputs: WhyFire does not guarantee the accuracy, completeness, or reliability of any estimates, calculations, configurations, content, or other outputs generated by the Services. {businessName} acknowledges that software may contain bugs or errors and is responsible for reviewing all outputs for accuracy before use or publication, particularly for high-value transactions or customer-facing materials. WhyFire has no liability for errors, miscalculations, incorrect information, or inaccuracies in any outputs generated by the Services.

e. System Availability: WhyFire will use commercially reasonable efforts to maintain the availability of the Services, but makes no guarantee of specific uptime percentages or service level commitments. WhyFire is not liable for service interruptions, downtime, system failures, slow performance, or failures caused by third-party service providers, internet connectivity issues, or any other cause.

f. Third-Party Services: WhyFire uses third-party services and infrastructure and may integrate with third-party APIs, databases, or data sources. WhyFire is not responsible for errors, failures, interruptions, data loss, or inaccuracies caused by third-party services or data, including product information provided by manufacturers or distributors.

g. User Errors: {businessName} acknowledges that errors may result from incorrect data entry, incomplete information, misconfiguration, insufficient training, or user mistakes. WhyFire is not liable for errors resulting from {businessName}'s use, misuse, or misconfiguration of the Services.

h. Beta Features: WhyFire may offer beta, preview, or experimental features that are provided "AS IS" with no warranties. {businessName} uses beta features at its own risk.

i. Client Responsibilities: {businessName} is solely responsible for: (i) the accuracy of content, pricing, product information, and materials provided to WhyFire; (ii) customer service and fulfillment related to services or products sold through the platform; (iii) compliance with applicable consumer protection laws; (iv) maintaining appropriate backups of Customer Data; and (v) adequately testing and reviewing outputs before use.

j. Duty to Mitigate: {businessName} agrees to take reasonable steps to mitigate damages resulting from errors, bugs, or service issues, including promptly notifying WhyFire of problems and implementing suggested workarounds.

k. Client Indemnification: {businessName} agrees to indemnify, defend, and hold harmless WhyFire, its officers, directors, employees, and agents from any claims, losses, damages, liabilities, costs, and expenses (including reasonable attorney's fees) arising from: (i) {businessName}'s use or misuse of the Services; (ii) {businessName}'s breach of this Agreement; (iii) {businessName}'s violation of any law or regulation; (iv) {businessName}'s provision of inaccurate information to WhyFire; (v) claims by {businessName}'s customers arising from estimates, pricing, configurations, content, or information provided by {businessName} using the Services; or (vi) {businessName}'s failure to review outputs before use.

l. Exceptions: The limitations in this Section 13 do not apply to: (i) either party's breach of confidentiality obligations under Section 4; (ii) either party's gross negligence or willful misconduct; (iii) either party's indemnification obligations; or (iv) violations of applicable law that cannot be limited by contract.

14. ELECTRONIC SIGNATURE CONSENT.

a. Consent to Electronic Transactions: By executing this Agreement electronically, both parties consent to conduct this transaction by electronic means and agree that electronic signatures, records, and contracts have the same legal force and effect as traditional paper documents and handwritten signatures.

b. Legal Framework: This Agreement is subject to the Electronic Signatures in Global and National Commerce Act (ESIGN, 15 U.S.C. § 7001) and applicable state electronic signature laws, including the Uniform Electronic Transactions Act (UETA).

c. Signature Confirmation: By typing their name in the signature field and checking the agreement box, {businessName}'s authorized representative acknowledges that this constitutes their legal electronic signature and binding acceptance of all terms and conditions in this Agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed electronically by their duly authorized representatives as of the date first above written. {primaryContact}, representative for {businessName}, and Tim Reed, President of WhyFire, LLC, effective as of {startDate}.

 

Service Provider:
WhyFire, LLC

 

By:    

Tim Reed

 

Service Recipient:
{businessName}