Terms of Service

Last updated August 14, 2019

These Terms of Service (together with any Service Orders, this “Agreement”) governs the use of all technology and services that a customer “Company” accesses and/or receives from Malomo, Inc. (“Malomo”). Company and Malomo are referred to individually as a “Party” and collectively as the “Parties.”

MALOMO RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TERMS OF SERVICE, THE PLATFORM AND/OR THE SERVICES AT ANY TIME WITH OR WITHOUT NOTICE INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS THAT DO NOT AFFECT THE PLATFORM AND THE SERVICES AS THEY ARE CURRENTLY BEING PROVIDED TO COMPANY. HOWEVER, CHANGES MADE TO THESE TERMS OF SERVICE WILL NOT APPLY TO COMPANY TO THE EXTENT THAT (I) THE CHANGES CONCERN MATTERS WHICH ARE THE SUBJECT OF AN ACTUAL DISPUTE BETWEEN COMPANY AND MALOMO AS OF THE DATE THE CHANGES TAKE EFFECT AND (II) MALOMO HAS ACTUAL NOTICE OF THE DISPUTE AS OF THE DATE THE CHANGES TAKE EFFECT. BY CONTINUING TO USE THE PLATFORM AND/OR THE SERVICES AFTER ANY SUCH CHANGES, COMPANY AGREES TO BE BOUND BY THE UPDATED TERMS OF SERVICE.

01

Definitions

Affiliate” means any company the majority of whose voting shares is now or hereafter, owned or controlled, directly or indirectly, by a Party, or by an entity which owns or controls a Party, as applicable.

Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes publicly available through no fault of the recipient.

Company Data” means any information or data which Company inputs into the Platform or provides to Malomo for inputting into the Platform.

Consumer” means an individual that Company invites to access the Platform by providing the individual with a link to the Platform.

Documentation” means the product documentation provided by Malomo under this Agreement.

Marks” means a Party’s corporate or trade name, trademarks, service marks, logos, domain names or other identification of such Party.

Platform” means Malomo's proprietary system through which retailers may provide consumers with an enhanced post-purchase experience, and all changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of Malomo, Company, or any third party.

02

Services

2.1 From time to time, the Parties may execute one or more service orders, substantially in the form attached to this Agreement, that describe the services and the deliverables Malomo will provide to Company (each a “Service Order”). Each Service Order will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein. A Service Order may be amended only by a written agreement executed by both Parties.

2.2 Malomo will perform the services and provide the deliverables described in each Service Order in accordance with the terms and conditions set forth in each Service Order and this Agreement. Should any conflict arise between the terms of the Service Order and this Agreement, the Service Order will control to the extent of the conflict.

2.3 Malomo will host, operate and maintain the Platform on servers operated and maintained by or at the direction of Malomo. Malomo will modify Company’s interface to the Platform to align with Company’s branding and Marks, provided that Malomo agrees to comply with Company’s Marks usage policies and ongoing instructions and supervision with respect to Company’s Marks.

2.4 Company will cooperate in providing accurate set-up and configuration Data, conforming with Malomo instructions as provided in the Documentation. Company will be responsible for obtaining and maintaining at Company’s expense all the necessary computer hardware, software, modems, connections to the Internet and other items required for Company to access the Platform.

03

Licenses

3.1 License to the Platform. Subject to the terms and conditions of this Agreement, Malomo grants to Company a limited, non-exclusive, non-transferable, worldwide license, without the right to sublicense, to use and permit Consumers to use the Platform solely for tracking and delivery of goods of Company and its Affiliates for the Term. Malomo reserves all rights to the Platform not otherwise expressly granted in this Section 3.

3.2 Platform License Restrictions. Company will not, and will not permit any third party to: (i) use the Platform except to the extent permitted in Section 3.1; (ii) modify or create any derivative work of any part of the Platform; or (iii) market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the Platform.

3.3 Limited Trademark License. Company grants Malomo a royalty-free, non-exclusive, non-transferable, non-sublicensable, limited-term license to use Company’s Marks solely for the purpose of modifying the appearance of Company’s interface to the Platform to incorporate Company’s branding and only as specifically authorized by, and subject to any restrictions stated in, this Agreement. The license in this paragraph is limited to the duration of this Agreement. The provisions of this paragraph do not convey any title or ownership interest in Company’s Marks to Malomo.

04

Company Data

As between Company and Malomo, Company will retain all ownership, right, and title (including all intellectual property rights) in and to Company Data and Company’s Marks. Company grants Malomo a limited, worldwide, non-transferable, non-exclusive, non-sublicensable, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the Company Data solely in order to enable Malomo to make the Platform available for Company’s use pursuant to this Agreement. Notwithstanding anything to the contrary, Malomo may also aggregate and anonymize data on the Platform and use and retain that data for product improvements and aggregated platform metrics.

05

Ownership of Platform

As between Company and Malomo, Malomo will own and retain all right, title and interest in and to the Platform, any changes, corrections, bug fixes, enhancements, customizations, updates and other modifications thereto, and all intellectual property rights therein, and as between the Parties all such rights will vest in and be assigned to Malomo including any modifications, derivations, enhancements, compilations or changes to or from any of the foregoing by or on behalf of Company in relation to Company’s use of the Platform. Nothing in this Agreement will confer on Company any right of ownership or interest in the Platform, or any intellectual property rights therein.

06

Warranties

6.1 Each Party warrants that: (a) it has full power and authority to enter into this Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services (including all applicable privacy laws and antibribery laws).

6.2 Malomo warrants to Company that during the Term, the Platform will operate substantially in accordance with the terms of the Documentation. The warranty in this paragraph will not apply to performance issues caused by (i) factors outside of Malomo's reasonable control; (ii) any improper actions or inactions of Company or any third parties under Company’s control; (iii) Company Data; (iv) Company’s operating environment or equipment; or (v) third party software requested by Company to be integrated with the Platform.

07

Term

Each Service Order will have an initial term as stated in the Service Order (the “Initial Term”), and will automatically renew for additional periods equal to the Initial Term unless a Party provides written notice of its intention not to renew at least thirty (30) days prior to expiration of the current term (any such renewal term a “Renewal Term,” and together with the Initial Term, the “Term”). These Terms of Service will remain in effect while any Service Orders is in effect. Should the Service Order expire prior to the expiration or termination of these Terms of Service and the Parties do not enter into a new Service Order within 180 days, this Agreement will automatically terminate.

08

Termination

Either party may terminate this Agreement for breach if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty days.

09

Effect of Termination

If the Agreement is terminated, then: (i) each Party will return or destroy all Confidential Information of the other Party upon request, (ii) Company’s license to use the Platform will immediately cease; (iii) all Fees owed by Company to Malomo will be immediately due; provided if Company terminates for cause, Malomo will refund to Company a pro-rata amount of any Fees paid up-front based on the remainder of the Term.

10

Confidentiality

The recipient will not disclose the other Party’s Confidential Information, except to its Affiliates, employees, agents or professional advisors (“Representatives”) who need to know it and who have agreed in writing to keep it confidential. Recipient will be responsible for any breach of this Section by its Representatives. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable law, judicial or governmental investigation or proceeding; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure.

11

Disclaimer; Limitation of Liability

11.1 EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 7 (WARRANTIES), MALOMO MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. MALOMO SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND IN ANY SO, THE PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS.

11.2 EXCEPT FOR FRAUD, WILLFUL MISCONDUCT, OR BREACH OF SECTION 11 (CONFIDENTIALITY): (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE; AND (B) NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID OR OWED BY COMPANY TO MALOMO UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

12

Indemnification

12.1 Malomo will defend Company from and against any claim by a third party alleging that the Platform when used as authorized under this Agreement infringes a U.S. or European Union patent, copyright, or trademark and shall indemnify and hold Company harmless from and against any damages and costs awarded against Company or agreed in settlement by Malomo (including reasonable attorneys’ fees) resulting from such claim, provided that Malomo shall have received from Company: (a) prompt written notice of such claim (but in any event notice in sufficient time for Malomo to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement of such claim; and (c) all reasonably necessary cooperation from Company. If Company’s use of the Platform is, or in the reasonable opinion of Malomo is likely to be enjoined, Malomo will, at its sole expense and option, do one of the following: (i) modify the Platform with substantially similar functionality (ii) procure the right for Company to continue to use the Platform; or (iii) if neither of the foregoing remedies is commercially feasible, terminate this Agreement; provided that in such case Malomo will promptly refund to Company any prepaid Fees pro rata based on the remainder of the Term. Malomo's obligations in this paragraph do not apply to, and Malomo will have no obligation to Company for, any claim that arises from (i) modifications to the Platform by anyone other than Malomo, (ii) modifications to the Platform based upon specifications furnished by Company, (iii) Company’s use of the Platform other than as specified in this Agreement or the Documentation, (iv) Company’s Data, or (v) use of the Platform in conjunction with third-Party software, hardware or data other than that approved by Malomo. THIS PARAGRAPH SETS FORTH MALOMO'S SOLE LIABILITY AND COMPANY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

12.2 Subject to this Section 13, Company shall defend Malomo from and against any claim by third parties to the extent arising from the Company Data and shall indemnify and hold Malomo harmless from and against any damages and costs awarded against Malomo or agreed in settlement by Company (including reasonable attorney’s fees) resulting from such claims, provided that Company shall have received from Malomo: (i) prompt written notice of such claim (but in any event notice in sufficient time for Company to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement of such claim; and (iii) all reasonably necessary cooperation from Malomo.

13

Miscellaneous

13.1 Assignment. Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may, without the consent of the other Party, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee will assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement will be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment will be null and void and constitute a breach of this Agreement.

13.2 Entire Agreement. This Agreement, together with its exhibits and amendments, and any Service Orders constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties.

13.3 Marketing Materials. Company agrees (i) that Malomo may identify Company as a customer and use Company’s logo on GoMalomo.com, in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile or case study for use by Malomo on GoMalomo.com for promotional purposes.

13.4 Restricted Rights. If Company is an agency, department or entity of the United States Government (“Government”), Company agrees, that (i) use, reproduction, release, modification or disclosure of the Platform, or any part thereof, including technical data, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies, (ii) the Platform is a commercial product, which was developed at private expense, and (iii) use of the Platform by any Government agency, department or other agency of the Government is further restricted as set forth in this Agreement.

13.5 Import and Export Requirements. Company acknowledges and agrees that the Platform is subject to export control laws and regulations. Company may not download or otherwise export or re-export the Platform or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, United States export control laws. None of the Platform or any underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into, or to a national or resident of, any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Company hereby agrees to the foregoing and warrants that Company is not located in, or under the control of, or a national or resident of any such country or on any such list.

13.6 Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (other than those limited to the affected Party), such Party’s performance will be excused and the time for performance will be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.

13.7 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the state of California without giving effect to its conflicts of law rules. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts of San Francisco County, California. The Parties agree to binding arbitration in San Francisco, California, to resolve all disputes concerning this Agreement. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.

13.8 Notices. All notices will be in writing and will be deemed to have been duly given when delivered by email to the address provided herein, in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the date the notice is sent when sent by verified facsimile, in each case to the respective Parties at the address first set forth hereto. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section.

13.9 Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party will hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.

13.10 Third Party Beneficiaries. No third party is a beneficiary of this Agreement entitled to enforce its terms directly.

13.11 Severability. If any provision of this Agreement is held invalid or unenforceable, it will be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.

13.12 Survival. The following Sections will survive expiration or termination of this Agreement: 5, 6, 10, 11, 12, 13, and 14.

13.13 No Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant will not be construed as a waiver of any succeeding breach of any other covenant.