Terms of Use

Exhibit A

TERMS OF SERVICE

1. Services Defined. 

1.1 Remarkably Inc. (“Provider”) agrees to provide the Services as detailed in the Order Form “Scope of Services” on a commercially reasonable manner. Defined business terms are included on the Order Form and referenced here accordingly. 

1.2 Services may include, but are not limited to: (i) Software as a service solution, a standard software licensed to Customer by Provider pursuant to standard end user license agreements (“Provider Software”); (ii) professional services provided to Customer (“Professional Services”) and related deliverable items e.g. reports, various analysis, etc. (collectively “Deliverables”); and (iii) upgrade services, support services, other implementation services, programming and application design and development, systems analysis and design, third-party program installation, conversion and implementation planning and installation evaluations.

1.3 Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

1.4 Customer shall not copy or use the Services except as expressly permitted in these Terms. Customer will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce any portion of the Services. Customer will not remove or alter any trademark, logo, copyright or other proprietary notices, symbols or labels on or accompanying the Services. The Services is proprietary property of Provider. In no event shall Customer use the Services for Customer’s product development or any other commercial purpose. 

2. Proprietary Rights. 

2.1 Intellectual Property Rights; Deliverables. For purposes of this Agreement, “Intellectual Property Rights” shall mean any and all proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including without limitation copyrights, neighboring rights and moral rights; trade secret; trademark; and patent and other industrial property rights, and all registrations, and applications thereof now or hereafter in force in any jurisdiction throughout the world. “Deliverables” shall mean work product, reports, dashboards, analysis, strategic analysis, etc. developed by Provider pursuant to the Scope of Services.  

2.2 Customer Intellectual Property. Customer shall own all right, title and interest in and to all data provided to Provider pursuant to this Agreement (collectively “Customer Data”). Notwithstanding anything to the contrary, Provider shall have the limited right to collect and analyze data and other information to use and perform various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Provider, will be free (during and after the term) to (i) use such non-identifiable information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No other rights or licenses are granted except as expressly set forth herein.   

2.3 Ownership of Deliverables. Provided that Customer is not in breach of this Agreement, Provider hereby assigns to Customer all rights, title and interest (including but not limited to patent, copyright, trade secret, or other intellectual property rights) in and to the Deliverables (i.e. reports) prepared by Provider utilizing Customer Data or other Customer proprietary information as contemplated by the scope of this Agreement.  

2.4 Provider Software Subscription. This is a subscription to a service. Subject to the limited right expressed under this Agreement, Provider reserves all rights, title and interest in and to the Services, including all related Intellectual Property Rights. Customer will explicitly not, directly or indirectly: reverse engineer, decompile, disassemble, copy, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the software solutions provided under this Agreement including modifying, translating, or creating derivative works based on the Services or any Provider Software (except to the extent expressly permitted by Provider or authorized within the Services). 

2.5 Third Party Software. Customer’s rights in third party software, if any, and other data, programs and other materials provided by third parties, regardless of whether or not obtained with the assistance of Provider, shall be as provided in the applicable third party license agreement, and Customer is solely responsible for compliance with such third party agreements and policies.

3. Confidentiality.

Each party acknowledges that it may receive or have access to Confidential Information, as defined herein, of the other party in the course of this Agreement. Each party agrees to maintain the confidentiality of the other party’s Confidential Information and agrees not to use it except in performing its obligations under this Agreement and not to disclose the Confidential Information to anyone except its employees, and advisors who need access to the Confidential Information to perform their obligations to Provider or the Customer and who have agreed in writing to the restrictions on use and disclosure of Confidential Information set forth herein. “Confidential Information” means any business or technical information of Provider or Customer that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary.


Confidential Information will not include any information that (a) is previously known to the receiving party without an obligation not to disclose such information or was previously in its possession; (b) is acquired by a receiving party from a third party which was not, to the receiving party’s knowledge, under an obligation not to disclose such information; or (c) which the receiving party can demonstrate was independently developed by or for the receiving party without reliance on any Confidential Information of the other party; or (d) becomes publicly known and made generally available, through no breach of this Agreement.


If either party receives a subpoena or other legal or judicial process requiring disclosure of the Confidential Information of the other party, it will, to the extent legally permitted, promptly notify the disclosing party. If requested by the disclosing party, and to the extent legally permitted, the receiving party will reasonably cooperate with the disclosing party (at the disclosing party’s expense) to oppose such disclosure.

4. Payment of Fees.

Customer shall pay to Provider the applicable fees in the time and manner detailed in the Order Form for the Services. Invoices shall be due within thirty (30) days unless otherwise agreed to in writing. Late payment shall be assessed interest at the rate of one percent and one-half percent (1.5%) per month on the balance due. Failure to pay amounts due may result in termination or suspension of Services at the discretion of the Provider. All expenses associated with collections (including reasonable attorney’s fees) shall be the responsibility of the Customer. 

5. Term and Termination.

5.1 This Agreement shall begin on the Effective Date and services shall commence on the Service Start Date. This Agreement shall automatically renew for consecutive periods unless terminated upon at least 30-days written notice prior to the end of the Initial or each renewal term. This Agreement may be terminated immediately by either party upon written notice to the other party of any material breach of a term or condition of this Agreement and such breach is not addressed (i.e. putting a plan in place) within fifteen days following written notice from the party specifying the breach. Customer acknowledges that it shall be responsible for Services fees through the actual termination date. Notwithstanding anything else herein, as of the notice date of termination for any reason, Provider shall have no obligation to provide any further Services hereunder.


5.2 Immediately upon termination, Customer shall pay Provider immediately upon receipt of invoice for all Services provided or performed, and expenses incurred up until the effective date of termination. Each party shall return to the other all property in each party’s possession or control, including all Confidential Information. 

6. Representations and Warranties.

6.1 Each party represents and warrants to the other party that (i) it has the right to enter into this Agreement and perform its obligations hereunder; (ii) it is organized under the laws of its jurisdiction in a corporate or equivalent form; (iii) to the best of its knowledge there are no claims, actions or proceedings against it (including without limitation bankruptcy, dissolution, liquidation, or any assignments for the benefit of creditors) that would impair its ability to honor all legal obligations hereunder; (iv) the person executing this Agreement on its behalf has been authorized to do so; and (v) the Agreement constitutes its valid, legal and binding obligations enforceable in accordance with its terms. 


6.2 Customer represents and warrants further to Provider that:

     (a) all information and materials provided by Customer under this Agreement do not and will not (i) use or include any confidential or proprietary information or trade secrets of any third party, unless Customer has received a written license from the owner thereof to use as contemplated hereunder; and (ii) does not violate the rights of any third party in any jurisdiction, including but not limited to copyright, trade secret, trademarks, publicity, privacy, patents or other rights;

     (b) Customer has completed and received all authorizations, approvals and appropriations necessary for Provider to perform its obligations under this Agreement; and

     (c) Customer will only use the Services and deliverables in compliance with applicable laws and regulations, including but not limited to strict compliance with the Federal Fair Housing Act.  

     Customer hereby agrees to indemnify and hold harmless Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an actual or alleged violation of this representations provided herein or otherwise from Customer’s use of deliverables. 


6.3 Customer acknowledges that Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Provider or by third-party providers, or because of other causes beyond Provider’s reasonable control, Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. NOTWITHSTANDING THE FOREGOING, Provider does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. 

7. Limitations of Liability and Indemnity.

7.1 IT IS UNDERSTOOD THAT THE SERVICES ARE PROVIDED “AS-IS”. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR – WITHOUT LIMITATION – ANY LOSS OF USE; INTERRUPTION OF BUSINESS; OR ANY DIRECT; INDIRECT; SPECIAL; INCIDENTAL; EXEMPLARY OR PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT; TORT (INCLUDING NEGLIGENCE); STRICT PRODUCT LIABILITY OR OTHERWISE; WHETHER ARISING OUT OF THE USE OR INABILITY TO USE THE PLATFORM (INCLUDING BUT NOT LIMITED TO LOSS OR UNCONSENTED TO DISCLOSURE OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY CUSTOMER OR THIRD PARTIES OR A FAILURE OF THE PLATFORM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL EXCEED THE FEE RECEIVED BY PROVIDER FROM CUSTOMER FOR THE APPLICABLE ORDER FORM IN THE TWELVE MONTHS PRECEDING THE DATE OF THE CLAIM.


7.2 Provider shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Provider is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Provider will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Provider, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Provider, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Customer to be infringing, Provider may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

8. General Terms.

8.1 Independent Relationship.  The parties to this Agreement are separate independent entities and nothing in this agreement shall be construed to form a joint venture, or employer/employee relationship.

8.2 Assignment. Neither party may assign this Agreement or any rights or obligations hereunder whether by operation of contract, law or otherwise except with written consent of Provider, which shall not unreasonably withheld. Notwithstanding the forgoing, either party may assign this Agreement with notice to the other party, in the event of an acquisition, merger, or other transfer of substantially all of its assets.

8.3 Publicity. Provider may use Customer’s name and logo in promoting Provider’s services as a part of Provider’s website, marketing material. Provider agrees to use Customer’s branding guidelines, if any.

8.4 Governing Law. This Agreement and the rights and obligations of the parties under it are governed by and interpreted in accordance with the laws of the State of Washington. At the option of the Provider, venue for any action with respect to this Agreement shall lie in King County in the State of Washington, and Customer hereby submits to the venue and jurisdiction of the Superior Court of King County.  

8.5 Dispute Resolution. Any and all claims, disputes, controversies, or disagreements of any kind whatsoever arising out of or in connection with this Agreement (“claims“) between Provider and Customer involving the construction or application of any of the terms, provisions or conditions of this Agreement shall, on the written request of either party served on the other, be submitted to arbitration, and such arbitration shall comply with and be governed by the Commercial Arbitration Rules of the American Arbitration Association then existing, and shall be conducted in King County in the State of Washington. Notwithstanding this agreement to arbitrate, Customer acknowledges and agrees that the Provider shall have the right to seek through judicial process, preliminary injunctive relief to preserve the status quo or prevent irreparable injury before the matter can be heard in arbitration.

8.6 Entire Agreement. This Agreement represents the entire agreement between the Parties relating to the subject matter of this Agreement, supersedes and terminates all prior purchase orders, agreements, understandings, representations, and warranties applicable to the subject matter of this Agreement, and may only be amended by mutual written agreement. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable for any reason, then the remainder of this Agreement shall nevertheless remain in full force and effect.

8.7 Notices. All notices and requests in connection with this Agreement will be given or made upon the respective parties in writing. If faxed, the notice will be deemed given as of the business day following the day the notice is faxed, provided a hard copy acknowledgment of successful faxed notice transmission is retained. Notice may also be given by mail, postage pre-paid, certified or registered with return receipt requested, e-mail or personal delivery. If mailed, e-mailed or delivered, notice will be deemed to be given on the business day following the day it is received by the recipient.

8.8 Survival. The terms of sections 2, 3, 6, and 7 shall survive the term of this Agreement.

Last Updated: July 10, 2019