This Software as a Service (SaaS) Agreement ("Agreement") is entered into as of the first date User accepts the terms of this Agreement, as amended from time to time, to access the Platform, by and between Briar Creek Holdings, LLC dba Service Penguin, a Texas limited liability company with its principal place of business at 2401 Fountain View Dr., Ste. 312-2319, Houston, Texas ("Provider"), and the individual who has voluntarily chosen to access the Platform ("User").
As used in this Agreement, the following terms shall have the meanings set forth below:
1.1. “Platform” means the Service Penguin software, including all proprietary code, interfaces, features, modules, mobile applications, data storage systems, updates, and associated documentation provided by Provider.
1.2. “Confidential Information” means all non-public, sensitive, or proprietary information disclosed by Provider to User, in any form, including but not limited to business plans, customer information, software architecture, source code, system data, financial records, pricing, and trade secrets.
1.3. “Customer Relationship Management (CRM)” refers to features within the Platform used to manage customer data, sales processes, communications, service history, estimates, and customer support within the service industry.
1.4. “Service Industry” refers to businesses that provide services rather than goods, including but not limited to landscaping, HVAC, janitorial, pest control, pressure washing, pool maintenance, electrical, plumbing, painting, and other blue-collar or field service operations.
1.5. “End User” means any person, customer, or business entity that accesses or utilizes the Platform through a license or subscription, whether directly with Provider or through an authorized reseller.
1.6. “Lead” means a potential customer or business that has expressed interest in Service Penguin, whether generated by User, submitted through a referral, or otherwise tracked within the CRM functionality of the Platform.
1.7. “Referral” means the act of introducing or recommending a third party to Provider for the purpose of becoming a paying user of the Platform, subject to acceptance and approval by Provider.
1.8. “Reseller” means a third party, including User if authorized, who is permitted to promote and sell access to the Platform on a non-exclusive, independent basis under a separate Reseller Addendum.
1.9. “Beta Features” means any pre-release, experimental, or trial components of the Platform made available to User for testing or evaluation purposes.
1.10. “Usage Data” means anonymized or aggregate data related to the use and performance of the Platform by User or End Users, which may be collected and analyzed by Provider for performance optimization and product development.
Provider offers a subscription-based software platform that includes features such as customer relationship management (CRM), job scheduling, route optimization, invoicing, and payment processing ("Platform").
a. Subject to the terms of this Agreement, Provider grants User a non-exclusive, non-transferable, revocable right to access and use the Platform during the Term solely for User’s internal business purposes.
b. User shall not:
i. Reverse engineer, decompile, or attempt to derive the source code of the Platform;
ii. Use the Platform to provide services to third parties outside its ordinary business operations;
iii. Resell or sublicense the Platform without written consent;
iv. Publicly display, demonstrate, or share the Platform, including via screen sharing, live streaming, broadcasting, or any similar means, except as strictly necessary for internal training or business operations. Any such internal sharing must be restricted to User’s authorized personnel only.
c. Any attempt, whether successful or unsuccessful, to engage in conduct outlined in Section 3(b) is considered to be a material breach of this Agreement and subjects User to immediate termination of the Agreement and immediate termination of access to the Platform.
d. User acknowledges that this Agreement does not convey, transfer, or otherwise grant any ownership rights in the Platform to User.
e. Provider will provide User no less than twenty-four (24) hours’ notice of any planned maintenance exceeding two hours which will render the Platform unavailable for use.
a. User agrees to pay the agreed-upon monthly subscription fee as agreed upon with Provider. Payments are due each month on the Effective Date. The first payment is due upon execution of this Agreement.
b. Payments are due on a recurring basis as agreed at the time of registration. Failure to pay may result in suspension of access without notice.
c. Failure to pay the agreed-upon subscription price constitutes a breach of this Agreement.
a. Provider facilitates the collection of payments from User’s customers via integrated third-party payment gateways.
b. Provider shall remit collected funds to User, net of applicable fees, within ten (10) business days after payment fund verification.
c. Provider is not a money transmitter under Idaho Code §26-2901 et seq., or any other applicable federal or state law, and acts only as a software provider with incidental payment facilitation services. User affirms that it is the recipient of payments for services rendered and that Provider does not take possession, dominion, or control of funds beyond the time reasonably necessary to facilitate transactions.
d. Provider shall not be held liable for any delays or disruptions in payment timing due to unforeseen events, third-party processor issues, banking delays, or other circumstances beyond Provider's reasonable control.
e. User shall indemnify and hold harmless Provider and any of Provider’s employees, officers, agents, principals, successors, heirs, or any other individual or entity associated with Provider in the event a third-party claims fault, liability, damages, or a right to receive any monetary award (including attorney fees) as a result of 1) User’s use or activities within the Platform, 2) User’s breach of this Agreement – whether material or not, 3) any misrepresentation by User, or 4) violation of applicable state or federal laws, regulations, or codes in connection with User’s use of the Platform.
a. In the event a customer of User disputes a charge, User agrees to promptly and directly contact the customer to resolve the issue in good faith. User further agrees to notify Provider within three (3) business days of any payment dispute which User is aware of. Failure to notify Provider shall constitute a material breach of this Agreement.
b. User shall be solely responsible for all chargebacks, refunds, and related costs associated with disputed transactions.
c. Provider reserves the right to withhold disputed funds from User's future payouts until the dispute is resolved or the chargeback is satisfied.
d. Repeated or excessive disputes or chargebacks may, at Provider's sole discretion, result in the suspension or termination of the User's ability to use Provider's payment collection functionality. Provider reserves the right to terminate the payment processing service at its sole discretion.
e. In the event of such suspension or termination, Provider may require that User provide and maintain its own third-party merchant account and associated access credentials (e.g., API keys). Provider will integrate the User's merchant account into the Platform. An additional monthly fee of $200 will be charged to maintain the integration and ensure proper functionality with the Platform. This fee will be billed along with the regular monthly subscription fee. If User’s chosen third-party merchant cannot be integrated into the Platform, Provider shall promptly notify User. User can either select a new third-party merchant or utilize the third-party merchant’s services off the Platform.
User agrees to:
a. Use the Platform in accordance with all applicable laws, including privacy and data protection statutes;
b. Maintain confidentiality of login credentials;
c. Obtain customer consents for payments and data processing as required by law;
d. Bear all tax liability for any and all taxes arising from User’s activities within and use of the Platform.
a. Platform Ownership
All intellectual property rights in and to the Platform, including but not limited to software, source code, design, features, and branding, are and shall remain the exclusive property of Provider.
b. Data Ownership
All data collected, generated, stored, or transmitted through the Platform—including customer information, job data, scheduling information, route analytics, payment records, and usage metrics—shall be deemed the property of Provider. Provider grants User a limited, non-exclusive license to access and use such data solely in connection with the services provided under this Agreement and in accordance with Provider’s Privacy Policy and applicable law.
c. User Responsibility
User is responsible for the accuracy and legality of all data it enters into the Platform and for obtaining any necessary consents from its customers or employees for the collection and processing of such data.
d. Data Retention & Access Post-Termination
Upon termination of this Agreement, Provider may retain data in accordance with its data retention policy or applicable law. Users may request access to their data within 30 days following termination; however, Provider is not obligated to retain data beyond that period.
a. This Agreement begins on the Effective Date and continues until terminated by either party with 30 days written notice. Provider may provide written notice via electronic mail to the email address Provider has on file for User. User may provide written notice via electronic mail to the Provider via the service request email address provided to User. The heading of any electronic mail providing termination notice must state in the Subject Line “Notice of Termination”.
b. Provider may suspend or terminate access immediately upon breach of this Agreement or non-payment.
The Platform is provided “as is.” Provider disclaims all warranties, express or implied, including any warranties of merchantability, fitness for a particular purpose, and non-infringement.
a. Disclaimer of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL PROVIDER OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUE, PROFITS, BUSINESS INTERRUPTION, GOODWILL, DATA, OR USE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. Cap on Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE TOTAL LIABILITY OF PROVIDER FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PLATFORM SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100) OR THE AMOUNT PAID BY USER TO PROVIDER IN THE THREE (3) MONTHS PRIOR TO THE CLAIM IN CONNECTION TO THE USE OF THE PLATFORM, WHICHEVER IS GREATER.
c. Exclusions. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES RESULTING FROM:
a. PROVIDER’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE;
b. USER’S RIGHT TO SEEK INJUNCTIVE RELIEF OR SPECIFIC PERFORMANCE FOR BREACH;
c. CLAIMS FOR WHICH LIQUIDATED DAMAGES ARE EXPRESSLY PROVIDED;
d. PROVIDER’S OBLIGATIONS TO INDEMNIFY UNDER A SEPARATE WRITTEN AGREEMENT (IF ANY).
d. Acknowledgement. USER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE ESSENTIAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES AND HAVE BEEN REFLECTED IN THE CONSIDERATION PROVIDED.
User agrees to indemnify, defend, and hold harmless Provider and its affiliates, officers, agents, and/or employees from and against any and all claims, liabilities, damages, losses, and expenses (including reasonable attorneys’ fees) arising out of or in any way connected with User's services, business operations, or use of the Platform, including but not limited to any third-party claims arising from data input, customer interactions, or payments facilitated through the Platform.
This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho, without regard to conflict of law principles. Venue for any disputes shall lie in the state or federal courts located in Ada County, Idaho.
a. Entire Agreement. This Agreement (including any Addenda) is the complete agreement and supersedes all prior understandings.
b. Amendments. No amendment shall be valid unless in writing and signed by both parties.
c. Severability. If any provision is held invalid by a court of competent jurisdiction, the remaining terms shall continue in effect.
d. Waiver. No failure to enforce any provision shall be deemed a waiver of future enforcement.
e. Independent Contractor. User is acting as an independent contractor. Nothing in this Agreement creates a joint venture, partnership, or employment relationship.
f. Force Majeure. Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement (other than payment obligations) if such failure or delay is caused by events beyond the reasonable control of the affected Party, including but not limited to acts of God, natural disasters, strikes, labor disputes, civil unrest, war, acts of terrorism, governmental actions, epidemic or pandemic events, internet outages, or failure of third-party hosting or payment infrastructure.