This service agreement (The “Agreement”) is between Downstream Systems, Inc. (“Downstream”), and [Authorized User](“Customer”). Downstream and Customer are sometimes referred to together as the “Parties” and individually as a “Party.” Other terms used in this Agreement are defined in the Service Details.
General. Downstream owns and operates the Downstream online marketplace platform, in each case, that connects Suppliers and Customers for purchasing of Supplier Products and Services. Downstream provides the Downstream online marketplace (the "Downstream Marketplace") using web-based technology that allows Customers to place orders for products and services provided through independent contractors ("Supplier"), or for drop-off disposal for Customers at a Supplier’s location. Additionally, Downstream provides Customers management services described in section 2, if requested and agreed upon by the parties. Downstream also provides and online platform using web-based technology that allows Suppliers to receive orders placed through the Downstream Marketplace by Customers, in order to fulfill such orders (the "Supplier App"). The Downstream Marketplace and Downstream Supplier App shall hereinafter be referred to collectively as the "Platform". Downstream Marketplace permits customers to view and search for product and service offerings of Suppliers and/or place orders for products or services from Suppliers which Suppliers receive through the Supplier App; the Downstream software notifies Suppliers that an opportunity is available; after a Supplier communicates its acceptance of the opportunity, the Downstream software facilitates the Supplier’s completion of the task for the Customer. Note: Downstream is not a supplier, waste hauler, waste collector, waste processor, or labor service; it is an online marketing and connection platform. As such, Downstream is relieved of any and all liability due to the action or inaction of any supplier. Customers legal recourse is limited to Supplier(s) and Customer hereby forever releases Downstream from any and all liability and claimed damages related to the use of these services. Further, Customer agrees to indemnify and hold harmless Downstream from any liability, losses, and damages related to the use of these services.
Management Services.
Agency. If agreed, Customer authorizes Downstream as an agent to manage waste and job site services on its behalf as described in this agreement. As of the effective date, customer authorizes downstream, at Downstream’s sole discretion, to (i) manage the current waste service provider (the “incumbent provider”) pursuant to the incumbent provider’s Service Agreement (the “incumbent agreement”), or (ii) to terminate the incumbent agreement and remove (and if necessary, to sign on customer’s behalf a written authorization to remove) any incumbent provider’s equipment from customer’s location(s).
Suppliers. Customer agrees to deliver to Downstream’s Suppliers all Waste and Recycling Materials, in accordance with this Agreement. Downstream shall select the Supplier(s) to provide Customer with the Collection Services. The Supplier(s) selected shall be at Downstream’s sole discretion.Downstream shall require all Suppliers to be properly insured (unless the Supplier is the Incumbent Provider, in which case the Incumbent Agreement shall determine the insurance requirements). All Suppliers and their respective employees are independent contractors, and not employees, of Downstream and solely liable for any losses and damages claimed by Customer. Customer hereby forever releases Downstream from any and all liability and claimed damages related to the use of these services. Further, Customer agrees to indemnify and hold harmless Downstream from any liability, losses, and damages related to the use of these services.
Incumbent Providers. In the event Downstream elects to manage the Incumbent Provider in accordance with Section 2(a)(i) above, such Incumbent Provider shall be deemed a Supplier for purposes of this Agreement. Customer represents and warrants that it has authority to, and hereby does transfer, assign, convey and deliver to Downstream all of Customer’s right, title and interest in, to and under the Incumbent Agreement. From and after the Effective Date, Downstream may assume, perform and discharge the Incumbent Agreement as though Downstreamwere named Customer therein, throughout the term of the Incumbent Agreement and any extensions, renewals, modifications or amendments thereto. Customer represents and warrants that the execution and performance by Customer of this Agreement does not and will not violate or conflict or result in a breach of the Incumbent Agreement or any of the terms,
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conditions, duties or obligation to which Customer is bound to any third party. In the event the Management Services are inconsistent with the waste and recycling management services specified in the Incumbent Agreement, Downstream shall only be required to perform the lesser of such two services.
c. Single Point of Contact. Downstream will act as the single point of contact between Customer and the Suppliers. In providing the Management Services, Downstream will make the arrangements necessary for the provision of the Collection Services, including without limitation, scheduling and routing, using Downstream’s network of Suppliers. The Customer agrees to contact Downstream, and not a specific Supplier, regarding any billing, service or other issues during the Agreement Term. Downstream will provide Customer with Customer Advocates to assess the timeliness and the efficiency of the Services.
Software Platform. During the Agreement Term, Customer will have access to Downstream’s customer software. Downstream Marketplace uses service data provided by and collected from Customer during Customer’s use of the Management Services (the “Service Data”). Customer agrees to be bound by and follow the Terms of Service on Downstream’s website, www.trydownstream.io, and any terms associated with the Software Platform.
License to Use Software Platform. Subject to Customer’s compliance with this Agreement, during the Agreement Term Downstream grants Customer a limited, non- exclusive, non- sublicensable, revocable, non-transferrable license to: (i) access and use the Software Platform solely in connection withCustomer’s use and Downstream’s provision of the Management Services; and (ii) access any content, information and related materials that may be made available through the Software Platform. The Software Platform, including all graphics, logos and articles, and all rights associated with the Software Platform are and shall remain Downstream’s and Downstream’s licensors property and are protected by copyright and other intellectual property laws. The only rights and licenses Customer receives in connection with the Software Platform are the rights expressly granted in this Agreement. Downstream is not responsible for any third-party content, information and other materials that is available through the Software Platform.
License to Use Service Data. To the extent that Customer has any rights in or to the Service Data, Customer unconditionally grants Downstream a worldwide, perpetual, irrevocable, royalty-free, fully paid, exclusive, sublicensable and transferrable right and license to use, commercially exploit, publish, reproduce, adapt, create derivative works, publicly display, publicly perform and otherwise use all Service Data.
Restrictions. Customer may not: (A) remove any copyright, trademark or other proprietary notices from any portion of the Software Platform; (B) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Software Platform except as expressly permitted by Downstream; (C) decompile, reverse engineer or disassemble the Software Platform except as may be permitted by applicable law;
(D) link to, mirror or frame any portion of the Software Platform; (E) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying or otherwise data mining any portion of the Software Platform or unduly burdening or hindering the operation and/or functionality of any aspect of the Software Platform; or (F) attempt to gain unauthorized access to or impair any aspect of the Software Platform or its related systems or networks to which Customer does not have access, including other customers’ accounts or information; (G) compete with Downstream in the market or business model contemplated by this agreement.
Exclusivity. Customer shall make Downstream its exclusive provider of waste and job site management services during the Agreement Term consistent with Section 2 (c) above.
Title to Waste Materials. Title to Waste Materials shall, at the time of collection, transfer directly from Customer to the Suppliers identified by Downstream, provided further, that at
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Downstream’s option, title to approved Recyclable Materials shall, at the time of collection, pass directly from Customer to Downstream. Notwithstanding anything to the contrary in this Agreement, title to and liability for Prohibited Materials shall at all times remain with Customer, and Downstream shall not be deemed to own, generate, possess or control, and shall not be liable to Customer or any third party regarding any (i) Prohibited Materials, or (ii) Waste Materials for which Downstream has not expressly accepted title in writing. Customer agrees to hold harmless and indemnify Downstream for any liability and damages, including attorney fees, that result from a breach of this agreement.
3. Pricing. Customer agrees to pay the fees set forth herein in accordance with the payment terms of Downstream’s invoice. If Customer fails to pay Downstream the amounts due and owing pursuant to this Agreement when due or Downstream’s automatic deduction from Customer’s account for Monthly Service Fees is returned for any reason, in addition to all other remedies available under this Agreement or at law, Downstream reserves the right to automatically process payment pursuant to the payment method on file. If this payment method fails, Downstream shall charge Customer a late fee of four percent (4%) of Customer’s outstanding balance due monthly or the maximum amount chargeable by law, whichever is less, until payment is received by Downstream. In addition to the foregoing, Downstream reserves the right to either (i) withhold the Management Services until all amounts due are paid in full or (ii) terminate this Agreement in accordance with Section 4.
Pricing Adjustment. Because disposal, processing and fuel costs are a significant portion of the costs of the services provided, Downstream may increase the schedule of charges proportionately to reflect any increase in such costs, plus an appropriate mark-up. Downstream may also adjust the schedule of charges based on other factors, including, without limitation, increases in landfill fees, the Consumer Price Index, the Transportation Index and/or other similar benchmark indices. Where the schedule of charges includes disposal as a component of the charges, disposal will mean the posted gate rate for the disposal at the disposal facility that Supplier(s) utilize plus an appropriate mark-up. Customer and Downstream agree that the schedule of charges is based upon the estimated average Waste weight. If customer Waste exceeds the average Waste weight agreed to herein, Downstream may increase the schedule of charges proportionately to reflect the additional average Waste weight. Subject to customer approval, the fees may be adjusted for other reasons.
Sales Tax, Use Tax, Fees and Surcharges. Customer will be responsible for any and all sales tax, use tax, fees, surcharges and other charges imposed in connection with services provided under or arising out of this Agreement including, without limitation, charges imposed for Waste collection, transportation and disposal. The fees and charges under the Agreement will, at Downstream option, be increased by the amount of these taxes, fees and surcharges, and customer will be responsible for paying such increased amount.
Incumbent Fees. In connection with this Agreement, Downstream, in its sole discretion, may choose to (i) pay to the Incumbent Provider the fees due under the Incumbent Agreement through the term of the Incumbent Agreement (the “Incumbent Recurring Fees”); or (ii) pay to the Incumbent Provider the fees necessary to terminate the Incumbent Agreement (the “Incumbent Cancellation Fees”; and together with the Incumbent Recurring Fees, the “Incumbent Fees”). Notwithstanding anything herein to the contrary, the Incumbent Fees shall not include (A) any charges deemed out-of-scope or unrelated to services or products under the Incumbent Agreement; or (B) past-due amounts owed under the Incumbent Agreement (collectively, the “Excluded Incumbent
Fees”). The Incumbent Fees are subject to repayment by Customer to Downstream in the event of certain early terminations of the Agreement by Customer as noted in Section 4(e) below. The estimated Incumbent Cancellation Fees (the “Estimated Incumbent Cancellation Fees”) shall be six (6) times the Customer’s last invoice amount under the Incumbent Agreement immediately preceding the Effective Date, provided, that, any Excluded Incumbent Fees included on such invoice will not be included in calculating the Estimated Incumbent Cancellation Fees. In the event the actual Incumbent Cancellation Fees to be paid by Downstream are greater than the Estimated Incumbent Cancellation Fees, Downstream may, in its sole discretion, either (1) choose to pay the Incumbent Cancellation Fees, (2) choose to pay the Incumbent Cancellation Fees and increase the Monthly Service Fees provided in the Service Details to compensate
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Downstream for such increase, or (3) terminate this Agreement in accordance with Section 4(b) with no liability to Downstream for such termination. In the event Downstream terminates the Incumbent Agreement (and therefore has elected in its sole discretion to pay the Incumbent Cancellation Fees), Downstream shall pay the Incumbent Cancellation Fees either to (y) the Incumbent Provider on Customer’s behalf, or (z) Customer.
4. Term and Termination.
Term. The initial term of this Agreement (the “Initial Term”) begins on the Agreement Effective Date and ends on the later of (i) last day of the Service Term;[or (ii) in the event Downstream elects to manage the Incumbent Provider in accordance with Section 2(a)(i) above, notwithstanding the Service Term specified in the Service Details, the anniversary determined by the number of initial months after termination or expiration of the Incumbent Agreement. Following the Initial Term, this Agreement shall extend for successive, automatically renewing additional monthly terms listed above (each, a “Renewal Term”) unless either Party notifies the other of their intention to not renew the Agreement, no later than 30 days prior to the end of the then-current term. The Initial Term and all Renewal Terms are collectively referred to as the “Agreement Term.”
Termination by Downstream. Downstream, in its sole discretion, may terminate this Agreement at any time by providing thirty (30) days’ prior written notice to Customer.
Termination for Material Breach. Either Party may terminate this Agreement upon written notice, without prejudice to any other right or remedy, if the other Party breaches this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching Party within 30 days after the breaching party’s receipt of written notice of the breach.
Termination for Event of Insolvency. Either Party may immediately terminate this Agreement, without prejudice to any other right or remedy,if the other Party (i) becomes insolvent, (ii) is generally unable to pay, or fails to pay its debts as they become due, (iii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) is appointed a trustee, receiver or custodian on account of such Party’s insolvency.
Early Cancellation Fees. This provision sets forth Customer’s obligations, including Customer’s obligations to pay Downstream certain fees and payments set forth in this Section 4(e) (“Early Cancellation Fees”), in the event of a termination of this Agreement by Customer for any reason prior to the end of the Initial Term or then-current Renewal Term (an “Early Customer Termination”). In the event of an Early Customer Termination for an agreement Term of one year or greater that occurs between the Effective Date and the date that is one-hundred and eighty (180) days after the date that Downstream’s [or the Supplier’s (excluding the Incumbent Provider)] equipment is dropped at the service address (the one-hundred and eightieth (180th) day after such equipment drop date, the “Transition Date”), Customer shall pay an Early Cancellation Fee equal to: (i) repayment of the Incumbent Recurring Fees or the Incumbent Cancellation Fees/Estimated Incumbent Cancellation Fees, as applicable; plus (ii) an amount equal to six (6) times the Monthly Service Fees then in effect. In the event of an Early Customer Termination that occurs after the Transition Date, Customer shall pay an Early Cancellation Fee equal to repayment of the Incumbent Recurring Fees or the Incumbent Cancellation Fees/Estimated Incumbent Cancellation Fees, as applicable. Termination of agreements with terms of one (1) year or less shall be assessed an early termination fee equal to the amount of the current term fees which are being cancelled. In addition, if Customer fails to provide Downstream with at least thirty (30) days prior written notice of termination, an amount that is equal to one month of Monthly Service Fees shall be added to the Early Cancellation Fees (i.e. in addition to the payments described in the three immediate preceding sentences). In addition to the foregoing, Customer shall (A) be responsible for removal fees and charges of any and all equipment owned and/or furnished by Downstream or the Supplier; (B) pay Downstream all amounts outstanding for prior Downstream services up through the date of termination; and (C) pay Downstream amounts due on all outstanding invoices. Customer must pay any Early Cancellation Fees within ten (10) days following the effective date of termination of the Agreement. Customer acknowledges and agrees that the Early Cancellation Fees are liquidated
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damages and that in the event of an Early Customer Termination (1) Downstream will incur considerable consequences and losses; (2) such consequences and losses would be difficult, if not impossible, to estimate; and (3) the Early Cancellation Fees are a reasonable pre-estimate of the consequences and losses that Downstream would incur in the event of an Early Customer Termination taking into consideration Downstream’s cost savings and the present value of accelerated payments. In the event of Early Customer Termination, Customer shall not be entitled to any refund of any payments made by Customer. Notwithstanding the foregoing, the Early Cancellation Fees shall not be payable if Customer ceases doing any business at the Service Address.
5. Customer Obligations regarding Environmental Laws and Prohibited Materials. In using the Management Services, Customer represents, warrantsand covenants to Downstream that: (i) Customer is providing and will provide only Accepted Materials for collection, (ii) Customer is not providing and will not provide Prohibited Materials for collection; and (iii) Customer is and will remain in compliance with all Environmental Laws. Customer acknowledges that Downstream from time to time may supplement, modify or otherwise change its customer policies with regard to what constitutes Acceptable Materials, Recyclable Materials and/or Prohibited Materials. Customer agrees to check Downstream’s website periodically at https://help.trydownstream.io/en/articles/7849472- customer-terms-of-service for any such changes and to comply with any such changes. For purposes of this Agreement, those changes shall be deemed effective and incorporated into this Agreement thirty (30) days after posting on Downstream’s website. As used in this Agreement, the following terms shall have the following meanings:
“Accepted Material” means non-hazardous solid waste and Recyclable Materials. Accepted Material specifically excludes Prohibited Materials.
“Alternative Material” as defined in this Agreement means used tires, construction and demolition (C&D) materials, and materials recognized as “universal waste” or as “special waste” under Environmental Law.
“Environmental Law” means all applicable federal, state and local laws and regulations and common law concerning solid or hazardous waste, toxic or hazardous substances or materials, pollution, or protection of human health and safety or the environment, including without limitation the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), and the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. § 6901 et seq.).
“Medical Waste” means any material or waste that is or potentially maybe infectious, biohazardous, biomedical, or any other “medical” or similar waste regulated under any Environmental Laws, including without
limitation: medical wastes requiring treatment prior to disposal, “red bag” medical waste, blood- soaked bandages, culture dishes and other glassware, discarded surgical gloves, discarded surgical instruments, discarded needles (e.g., medical sharps), cultures, stocks, swabs used to inoculate cultures, removed body organs, and discarded lancets. For avoidance of doubt, Medical Waste is a Prohibited Material under this Agreement.“Prohibited Material” means: (a) any Alternative Materials not expressly approved in writing by Downstream, and (b) any materials or substances that are hazardous, toxic, explosive, flammable, radioactive, infectious, or which cannot lawfully be disposed of in a “Subtitle D” landfill, including without limitation, (i) any material considered a “hazardous waste” under the Resource Conservation And Recovery Act (42 U.S.C. § 6901 etseq.), (ii) PCBs, (iii) asbestos, (iv) diesel fuel, gasoline, or other petroleum products or hydrocarbons, (v) Medical Waste, medications or pharmaceuticals, (vi) any other material or substance that is hazardous or toxic, and which would form the basis of any claim, under any Environmental Laws, and (vii) any waste and recycling materials contaminated by, mixed with or containing Prohibited Materials.
“Recyclable Material” means approved materials that can be recycled or recovered, and are not intended for disposal, provided further, however, such term specifically excludes Prohibited Materials.
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Compliance with Laws. Subject to the limitations set forth in this Agreement, Downstream shall, and shall require its Suppliers to, comply with all local, state and federal laws, regulations and ordinances applicable to the performance of Management Services and Supplier Services and procure and maintain all licenses and permits required by government authorities. Customer shall be responsible for (i) properly identifying all Materials to be handled by Downstream and its Suppliers hereunder; and (ii) comply with allapplicable local, state and federal laws, regulations and ordinances related to the Management Services and Supplier Services, including all Environmental Laws.
Limited Warranty. THE MANAGEMENT SERVICES AND SUPPLIER SERVICES ARE PROVIDED “AS IS” ON AN “AS AVAILABLE” BASIS. DOWNSTREAM DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, DOWNSTREAM MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY OR AVAILABILITY OF THE MANAGEMENT SERVICES OR ANY COLLECTION SERVICES REQUESTED THROUGH THE MANAGEMENT SERVICES. DOWNSTREAM DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THE SUPPLIERS.
Limitation of Liability. Downstream shall not be liable for damages from any cause whatsoever, regardless of the form of action, whether in contract or in tort, including negligence, strict liability, personal injury, real or personal property damage or otherwise, arising from or relating in any manner to any action or failure to act on the part of a Supplier, except to the extent those damages arise solely out of Downstream’s provision of the Management Services or any management of the Supplier Services. IN NO EVENT SHALL DOWNSTREAM OR CUSTOMER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL DOWNSTREAM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE PROVISION OF THE MANAGEMENT SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO DOWNSTREAM PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Indemnification. Notwithstanding anything to the contrary in this Agreement, Customer shall defend, indemnify, and hold harmless Downstream and Downstream’s employees, agents, representatives, current or future parent, subsidiaries, commonly owned affiliates and advisors including without limitation Downstream (collectively, “Downstream Indemnitees”) from and against any and all liabilities arising from or relating to: (a) a breach of this Agreement by Customer or its employees, subcontractors or suppliers, including without limitation any breach or inaccuracy of any representation, covenant or warranty contained herein; (b) Prohibited Materials of or concerning Customer; (c) any violation by Customer or Customer’s employees, subcontractors or suppliers of, or liability under, any Environmental Laws or any other governmental laws, rules, ordinances, or regulations; (d) the Incumbent Providers and the Incumbent Agreements; (e) any performance under, management of, or termination by Downstream of the Incumbent Agreements (except if resulting from the gross negligence or intentional misconduct of Downstream); or (f) any bodily injury, including death, or damage to real property or tangible personal property arising out of any negligence or willful misconduct of Customer or Customer’s employees, subcontractors or suppliers. Customer agrees to promptly notify Downstream in writing of any matter covered above and do all things required to protect Downstream’s interests. Customer’s indemnity of Downstream shall survive the termination or expiration of this Agreement.
Confidential Information. Downstream and Customer acknowledge and agree that during the Agreement Term, either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”), non-public proprietary and confidential business information that is of value to its owner and is treated as confidential, which shall expressly include the pricing information of Downstream under this Agreement (“Confidential Information”). Confidential Information shall not include information that (i) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Section 9; (ii) is or becomes available to the Receiving Party on a non- confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in the Receiving Party’s possession prior to the Disclosing Party’s disclosure hereunder; or (iv) was or is independently developed by Receiving Party
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without using any Confidential Information. Except as otherwise expressly set forth in this Agreement, the Receiving Party shall hold in confidence and not disclose or use the Confidential Information or any portion of it. The Receiving Party shall protect and prevent the unauthorized use or disclosure of the Confidential Information using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own confidential information of a like nature. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party to afford the Disclosing Party the opportunity to seek a protective order or other remedy. The obligation to keep information confidential shall continue after the termination of this agreement indefinitely.
10. Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to any conflicts of laws of any other state. Any claims or actions arising out of or in connection with this agreement may only be brought in the State and Federal Courts within the state of Texas and of Denton County. Each party agrees and consents to the personal jurisdiction and venue of said courts.
11. Attorney Fees. Downstream is entitled to attorney fees, court costs, and general expenses where a court action at law or equity is brought by one of the parties to this agreement to enforce or interpret the provisions of this agreement where Downstream prevails.
12. Amendment. The terms of this Agreement may be amended, supplemented or modified at any time by Downstream.io its sole discretion, effective as follows: (a) Downstream will post the revised version of this Agreement on the Downstream website located at https://help.trydownstream.io/en/articles/7849472- customer-terms-of-service and update the “Last Updated” date set forth above.