Terms of Service

Last updated: April 19, 2023

These Terms of Service (“Terms”) define your rights and our rights in relation to the use of the Services (as defined below) provided by Remarkly Corporation (“Remarkly”, “we”, “us”, “the Company”) through the website at Remarkly.io (the “Remarkly Website”). Remarkly and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

By accessing or using the Services or any part thereof, you (“you”, “user,” or “Customer”) and your Affiliates agree to be bound by, and access the Services in accordance with, these Terms and all terms, guidelines and policies incorporated by reference in these Terms, Remarkly’s Privacy Policy, available at remarkly.io/privacy-policy (collectively, the “Agreement”). If you do not agree to this Agreement, you may not use, access, or submit information to the Services.

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY AFFECT YOUR LEGAL RIGHTS. THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. EXCEPT WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND REMARKLY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-⁠WIDE ARBITRATION.

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1. Definitions

“Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.

“Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Remarkly’s Confidential Information shall include the Remarkly Property and the terms of all Order Forms. Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

“Customer Property” means any content (including text, images, illustrations, charts, tables and other materials) supplied by Customer to Remarkly, either directly through the Service or indirectly through the integration with a Third Party Product.

“Documentation” means all documentation and other instructional material made available by Remarkly regarding the use of the Services.

“Services” means the software services and platform provided by Remarkly, including (i) the web and other user interfaces, applications, and software provided to Users, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.

“Third-Party Service” means any software, software-as-a-service, data sources, content, websites or other products or services not provided by Remarkly that form a part of, are integrated with the Services.

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2. Services

Subject to the payment of all applicable fees for the applicable subscription period and your compliance with the Agreement, Remarkly hereby grants you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to access and use the Services only for your own internal use, and only in a manner that complies with all legal requirements that apply to you or your use of the Services, including the Remarkly Privacy Policy. Remarkly may revoke this license at any time, in its sole discretion.

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3. Creating an Account

If you sign up for an account on the Services, you agree to (a) provide accurate, current and complete information as may be prompted by account setup forms on the Services (“Registration Data”); (b) maintain the security of your password and account information; (c) maintain and promptly update your Registration Data, and any other information you provide to Remarkly, and keep it accurate, current and complete. You are responsible for keeping your information confidential and for all activity on your Remarkly account, and for all charges related to your Remarkly account no matter if such activity or charges were done or incurred by you personally.

The Services are not intended for, and should not be used by, anyone under the age of thirteen. If you are under the age of thirteen you should immediately cease using the Services.

You agree to notify us immediately at support@Remarkly.io if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account.

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4. Security and Data Privacy

Remarkly Security. Remarkly will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) secure the Services and Customer Property against accidental or unlawful loss, access, or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access, and (c) minimize security risks, including through risk assessment and regular testing.
Privacy. We collect certain data and information about you in connection with your use of the Services and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy, which you acknowledge. We are always striving to improve the Services. In order to do so, we use analytics techniques to better understand how our Services are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.
Subpoenas. Nothing in these Terms prevents us from disclosing your data to the extent required by law, subpoenas or court orders, but we will use commercially reasonable efforts to notify you when permitted to do so. Remarkly strives to balance your privacy rights with other legal requirements.

5. Fees, Charges and other Payments

You agree to pay all fees and charges applicable to your use of the Services as such are set forth within the Services as updated from time to time.

We partner with Stripe, Inc. (“Stripe”) to process and manage payments. By using our Services you agree to provide Stripe accurate, current, complete and authorized information about yourself and your business, and your credit, debit or other payment card data. By providing Stripe with your payment information, you agree that Remarkly is authorized to immediately and automatically charge you for all fees and charges due and payable to Remarkly hereunder and that no additional notice or consent is required. This foregoing permission shall be irrevocable while there are any outstanding amounts you owe to us. You agree to immediately update your payment details in Stripe if there is any change in your billing address or the credit card used for payment hereunder. Stripe has its own terms and conditions; please review those before using Stripe to access or use the Services.

We reserve the right to suspend or terminate your account and the Services provided to you for any reason, including if any fees or charges remain unpaid. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, and you agree to bear and be responsible for the payment of all such charges, excluding taxes based upon Remarkly’s net income. We reserve the right to change the fees and other charges from time to time, by notifying you via email or through the Services.

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6. Third Party Services and Platforms

The Services may depend upon, interact with, support integrations with or enable access to Third-Party Services, which may in each case be accompanied by separate terms of use. In order for the Services to communicate with, access or receive relevant information from such Third-Party Services, you may be required to input information and login credentials. By enabling use of the Services requiring Third-Party Services, you authorize Remarkly to access your accounts with such Third-Party Services for the purposes described in these Terms. You are solely responsible for complying with any relevant terms and conditions of the Third-Party Services and maintaining appropriate accounts in good standing with the providers of the Third-Party Services. YOU ACKNOWLEDGE AND AGREE THAT REMARKLY HAS NO RESPONSIBILITY OR LIABILITY FOR ANY THIRD-PARTY SERVICES OR ANY USER DATA EXPORTED TO A THIRD-PARTY SERVICE.

Remarkly does not guarantee that the Services will maintain integrations with any Third-Party Services and Remarkly may disable or deactivate integrations of the Services with any Third-Party Services at any time for any reason. If Remarkly’s deactivation of an integration will materially impact the Services provided, Remarkly will notify users of such deactivation. For clarity, these Terms govern users’ use of and access to the Services, even if accessed through an integration with a Third-Party Services. WE DO NOT ENDORSE, AND HEREBY DISCLAIM ALL LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON ARISING OUT OF YOUR USE OF ANY THIRD-PARTY SERVICE. You hereby release and forever discharge Remarkly and its Affiliates (including but not limited to our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other users or any Third-Party Links). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

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7. Restrictions

a. Acceptable Use. You must comply with the following rules regarding acceptable use of the Services. You may not:

access, tamper with, or use non-public areas of the Services, Remarkly’s computer systems, or the technical delivery systems of Remarkly’s providers;
probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
access or search the Services by any means other than by using the interfaces provided for your authorized use by Remarkly (for example, “scraping”);
attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or
interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Services.

b. Misuse of the Services. You may not utilize the Services to carry out, promote or support:

any unlawful or fraudulent activities;
the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
the publishing, posting or storing of other people’s or entities’ private information, private or personal information without their express authorization and permission;
the sending of unsolicited communications, promotions advertisements, or spam;
the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer;
any renting, leasing, distributing, sublicensing, or otherwise providing access to the Services to a third party; or the use the Services for competitive analysis or to build competitive products.

c. User Content Standards Within the Services. You may not store, manage or post any User Content on the Services that:

violates any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
is deceptive, fraudulent, illegal, which, if we become aware of, we will remove and report to law enforcement;
contains viruses, bots, worms, or similar harmful materials; or
contains any information that you do not have a right to make access or use under law or any contractual or fiduciary duty.

d. Violations of this Section. In addition to any other remedies that may be available to us, Remarkly reserves the right, but is not obligated to, to take any remedial action it deems necessary, including immediately suspending or terminating your account or your access to the Services, upon notice and without liability on Remarkly should you fail to abide by the rules in this Section or if, in Remarkly’s sole discretion, such action is necessary to prevent harm to yourself or others or disruption of the Services for other users

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8. Intellectual Property Ownership

a. Customer Property. As between Customer and Remarkly, Customer retains all rights, title, and interest in and to the Customer Property, including all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to the Customer Property. Except as expressly set out in this Agreement, no right, title, or license under any Customer Property is granted to Remarkly or implied hereby, and for any Customer Property that is licensed to Remarkly, no title or ownership rights are transferred to Remarkly with such license.

Customer hereby grants Remarkly a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement or to ), and royalty-free license to access and use the Customer Property made available to Remarkly or any of its Affiliates, solely as necessary for Remarkly to (i) provide the Services to Customer pursuant to this Agreement, and (ii) train the artificial intelligence models developed by Remarkly, provided, however, that such Customer Property used for this purpose must be aggregated and de-identified so that it cannot identify Customer or its users. Additionally, Customer grants Remarkly a non-exclusive, revocable license to use Customer’s trademarks and logos to identify Customer as a subscriber of the Services and to use Customer’s trademarks and logos in promotional demonstrations of the Services; provided that, Customer may revoke such consent at any time in its sole discretion.

b. Remarkly Property. As between Remarkly and Customer, Remarkly retains all right, title, and interest in and to the Remarkly Property, including all patent, copyright, trade secret, trademark, or other intellectual property rights embodied in or related to the Remarkly Property. Except as expressly set out in this Agreement, no right, title, or license under any Remarkly Property is granted to Customer or implied hereby, and for any Remarkly Property that is licensed to Customer, no title or ownership rights are transferred to Customer with such license.

c. Our Proprietary Rights. The Services are owned and operated by Remarkly and contain materials (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) which are derived in whole or in part from materials owned by Remarkly and its partners, as well as other sources, and are protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Services are also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Services. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by Remarkly and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Remarkly and such others. You agree to protect the proprietary rights of Remarkly and all others having rights in the Services during and after the term of these Terms and to comply with all written requests made by Remarkly or its suppliers and licensors (collectively, “Suppliers”) of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Services. You agree to notify Remarkly immediately upon becoming aware of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Services shall, as between you and Remarkly, at all times be and remain the sole and exclusive property of Remarkly. Any unauthorized use of any material contained on or through the Services may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO REMARKLY.

The Services, their “look and feel,” any and all related or underlying technology and any modifications or derivative works of the foregoing, including any performance information relating to the Services are and will be deemed Remarkly’s Confidential Information (“Remarkly Confidential Information”). Except as expressly authorized herein, you will (1) hold in confidence and not disclose any Remarkly Confidential Information to third parties and (2) not use Remarkly Confidential Information for any purpose other than fulfilling your obligations and exercising your rights under these Terms.

9. Confidentiality

‍Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party with Disclosing Party’s consent or to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this Agreement and who are bound by written agreements requiring the protection of such Confidential Information. This Section 9 shall supersede any non-disclosure agreement by and between Customer and Remarkly entered prior to the Effective Date that would purport to address the confidentiality of Confidential Information and such agreement shall have no further force or effect with respect to either Party’s Confidential Information.
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
Return of Confidential Information. At any time upon the request of the Disclosing Party, the Receiving Party will destroy all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, (x) Remarkly, as Receiving Party, shall not be required to delete any Customer Confidential Information that is licensed to Remarkly pursuant to Section 8 so long as it is aggregated and de-identified so that it cannot identify Customer or its Users; and (y) the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this Agreement, so long as it remains undeleted.
Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 9, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.

10. Warranties; Disclaimers

Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
Remarkly Warranties. Remarkly warrants to Customer that the Services purchased by Customer will, in all material respects, perform in accordance with the applicable portions of the Documentation. This warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Users, or arising from Customer’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported operating environment or manner, or that arises from Customer’s or any third party’s software or systems (including Third Party Products).
Customer Warranties. Customer warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party.
Disclaimers. ALL SERVICES, SUPPORT AND BETA VERSIONS ARE PROVIDED “AS IS,” AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, REMARKLY AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY THAT ARE NOT EXPRESSLY SET FORTH HEREIN. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE SERVICES, SUPPORT OR BETA VERSIONS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS OR BREACH OF SECURITY. YOU UNDERSTAND THAT YOUR USE OF THE SERVICES, SUPPORT AND BETA VERSIONS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE AND FULL PROOF, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD-PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
Beta Services. Remarkly may make Beta Services available to Customer at no charge, and Customer may choose to try such Beta Services at its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to Customer. Beta Services are not considered “Services” under this Agreement for purposes of Section 7 (Warranties; Disclaimer) and Sections 8(a) (Indemnification by Remarkly); however, all restrictions, Remarkly’s reservation of rights, Customer’s obligations concerning the Services, and Customer’s use of any Third Party Products shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date otherwise specified in writing by Remarkly. Remarkly may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Beta Services are provided “AS IS'' with no express or implied warranty and are outside the scope of Remarkly’s indemnification obligations.

11. LIMITATION OF LIABILITY

CONSEQUENTIAL DAMAGES WAIVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE, OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.
LIABILITY CAP. REMARKLY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
California Resident Waiver. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.

12. INDEMNITY

YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD REMARKLY AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING), HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, MADE BY ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICES, YOUR CONNECTION TO THE SERVICES, YOUR VIOLATION OF THE TERMS OR REMARKLY’S PRIVACY POLICY, YOUR VIOLATION OF AN APPLICABLE LAW, YOUR SUBMISSION, STORING, POSTING, MANAGING OR TRANSMISSION OF USER CONTENT OR FEEDBACK TO THE SERVICES, AND/OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER INDIVIDUAL OR ENTITY. YOUR INDEMNITY OBLIGATIONS PURSUANT TO THIS SECTION SHALL INCLUDE PAYMENT BY YOU OF ALL REASONABLE TIME CHARGES AND EXPENSES INCURRED BY US IN CONNECTION WITH ANY SUBPOENA, DISCOVERY DEMAND OR OTHER DIRECTIVE HAVING THE FORCE OF LAW OR GOVERNMENTAL INQUIRY, SERVED UPON US OR A RELATED ENTITY THAT ARISES OUT OF ANY LITIGATION, PROCEEDINGS OR INVESTIGATIONS INVOLVING YOU AND OR YOUR BUSINESS OR INDUSTRY. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF DISPUTES UNDER THIS SECTION, AND IN ANY EVENT YOU WILL COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.

13. Termination

Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 13(c).
Term of Subscriptions. Customer’s access to the purchased Services shall commence on the signup date and continue for the period specified on such subscription level at signup (the “Subscription Term”). At the expiration of each Subscription Term, the Subscription Term for all purchased Services will automatically renew for the same period as the renewing Subscription Term. Any introductory or temporary discount offered in a previous Subscription Term does not apply for a renewal Subscription Term.
Termination. Either Party may terminate this Agreement by providing written notice to the other Party in the event the other Party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to: (i) cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or (ii) if the breaching Party is incapable of curing such breach within thirty (30) days, provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan. In addition, a Party may terminate this Agreement by providing written notice to the other Party within the first thirty (30) days of a new subscription.
Effect of Termination. Expiration or termination of one subscription shall not affect any other subscription. In the event of termination of this Agreement, Customer shall cease all use of the Services.
Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1, 5, 8, 7, 9, 10, 11, 12, and 14. Termination or expiration of this Agreement shall not affect any obligation accrued or arising prior to such termination or expiration.

14. General Terms

Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties, and Remarkly will be considered an independent contractor when performing any Services hereunder.
Entire Understanding. This Agreement constitutes the entire agreement between the Parties as to its subject matter and supersedes all prior proposals, marketing materials, negotiations, and other written or oral communications between the Parties with respect to the subject matter of this Agreement.
Modification; Waiver. Except for Remarkly’s modification or update of the Documentation or the Service, or any policies as necessary to comply with applicable law, rules, and regulations, no modification of this Agreement, and no waiver of any breach of this Agreement or right under this Agreement, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties.
Governing Law; Venue. This Agreement will be governed by and construed in accordance with the applicable laws of the State of Delaware, without giving effect to its principles relating to conflicts of laws. In the event of any controversy or claim arising out of or relating to these Terms, the Parties will first attempt to resolve the controversy or claim with good faith negotiations in order to reach a solution satisfactory to both parties. If the Parties do not reach settlement within a period of sixty (60) days, the Parties hereto agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity hereof or thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by final and binding arbitration in Miami, Florida (except for an action for interim equitable relief otherwise permitted under this Agreement and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of Delaware. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final and binding. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 14, nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
Class Action Waiver. THE PARTIES HERETO AGREE THAT BY ENTERING INTO THIS AGREEMENT, EACH PARTY WAIVES ITS RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION AGAINST THE OTHER IN A COURT OR IN ARBITRATION. THE PARTIES FURTHER AGREE THAT EACH MAY BRING DISPUTES AGAINST EACH OTHER ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both parties agree otherwise, arbitration claims may not be joined or consolidated in the arbitration proceeding. In no event shall the arbitrator have authority to preside over any form of representative or class proceeding or to issue any relief that applies to any person or entity other than users individually. If this Class Action Waiver is found to be invalid or unenforceable in whole or in part, then the entirety of this Binding Arbitration section (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver.
Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party, which consent (1) may not be unreasonably withheld, and (2) will be deemed to have been given if the other Party fails to respond to the requesting Party’s written notice of intent to assign within fourteen (14) days of receipt of such notice; provided, however, a Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
Notices. You consent to receive all communications including notices, agreements, disclosures, or other information from Remarkly electronically. Remarkly may communicate by email or by posting to the Services. For support-related inquiries, you may email info@remarkly.io. Nothing in these Terms or otherwise limits Remarkly’s right to object to subpoenas, claims, or other demands.
Force Majeure. Except for the performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, pandemics, epidemics, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in Remarkly not being able to provide the Services for a period of more than thirty days, then either Party may terminate the Agreement upon written notice to the other Party.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
No Waiver. No waiver of any provision of these Terms will be binding unless in writing, no waiver of any provisions of these Terms will be deemed a further or continuing waiver of such provision or any other provision, and the failure of Remarkly to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Statute of Limitations. Except in relation to privacy related claims or if you are a resident of New Jersey, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services and/or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

If you have any questions about these Terms, please contact us at info@remarkly.io.