Terms of Use
PLEASE READ THIS SOFTWARE-AS-A-SERVICE PLATFORM TRIAL AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE USING THE PLATFORM (AS DEFINED BELOW). BY CLICKING “I ACCEPT,” COMPLETING YOUR PURCHASE, OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “I ACCEPT” AND DO NOT USE THE PLATFORM.
This Agreement is between Remix Labs LLC (“Remix Labs”) and the individual or entity accepting this Agreement (“Customer”) and is effective on the date Customer clicks “I Accept” or otherwise indicates acceptance of this Agreement (the “Effective Date”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement. If you do not have such authority, or if you do not agree with the terms of this Agreement, you must not accept this Agreement and may not purchase or use the Platform.
This Agreement covers the provision by Remix Labs to Customer of a trial of the Platform in order for Customer to evaluate the Platform and determine if Customer desires to enter into a separate agreement with Remix Labs to purchase a subscription to the Platform from Remix Labs.
In consideration of the promises and the mutual covenants and agreements contained in this Agreement and other good and valuable consideration given by each party hereto to the other, the receipt and sufficiency of which is hereby acknowledged by each of the parties, the parties agree as follows:
1. Access to and use of the Platform
(a) Subject to and conditioned on Customer’s compliance with the terms of this Agreement, Remix Labs grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license, during the term of this Agreement, to access and use the Remix Labs software-as-a-service platform made available by Remix Labs to Customer (the “Platform”) for purposes of evaluating the Platform.
(b) Customer and the employees on Customer’s core decision-making team (the “Authorized Users”) are permitted to access and use the Platform. Customer shall ensure that the Authorized Users comply with this Agreement. Customer is fully liable and responsible for the acts and omissions of the Authorized Users, as if done by Customer, and any breach of this Agreement by an Authorized User will be a breach of this Agreement by Customer.
(c) Customer and the Authorized Users may be required to register for access to the Platform. Customer agrees to provide, and to ensure that the Authorized Users provide, complete and accurate registration information, and to keep that information current. Customer and the Authorized Users are responsible for maintaining the confidentiality and security of any user names, passwords or other access credentials or mechanisms Customer and the Authorized Users use to access the Platform (the “Access Credentials”). Customer agrees that it is solely responsible for use of the Access Credentials and for all transactions and activities occurring under or through the use of the Access Credentials. Customer agrees to notify Remix Labs
immediately if Customer suspects or becomes aware that any Access Credential has been lost, stolen or compromised and of any unauthorized access to or use of the Platform.
(d) Remix Labs may change all or any portion of the Platform or suspend Customer’s or any Authorized User’s access to the Platform, in Remix Labs’s sole and absolute discretion at any time without notice to Customer.
(e) Remix Labs does not guarantee that the Platform will be available or accessible to Customer or its Authorized Users. Customer acknowledges that the Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance or because of other causes beyond Remix Labs’s control.
(f) Customer shall not, and shall ensure that the Authorized Users do not, (i) decompose, decompile, recompile, reverse engineer, disassemble or otherwise deconstruct or attempt to discover the source code, object code or underlying structure of all or any portion of the Platform; (ii) publish, broadcast, display, retransmit, reproduce, copy, repackage, frame, sell, license, lease, assign, transfer, commercially exploit, modify, create any derivative of or otherwise redistribute all or any portion of the Platform; (iii) remove any copyright, trademark or other proprietary notice or legend contained on (or printed from) the Platform; (iv) allow any person or entity to access or use the Platform other than the Authorized Users; (v) interfere with or disrupt the integrity or performance of the Platform; (vi) bypass any measures Remix Labs may use to prevent or restrict access to the Platform or otherwise attempt to gain unauthorized access to, or perform security testing on, the Platform or its related systems or networks; (vii) copy the Platform or any part, feature, function, or user interface thereof; (viii) frame or mirror any part of the Platform; or (ix) access the Platform or monitor the Platform’s availability, performance or functionality in order to build a competitive product or service, or for any other benchmarking or competitive purpose.
Ownership
(a) As between Customer and Remix Labs, Remix Labs owns all rights, title and interest in and to the Platform, including, but not limited to, all software and documentation related thereto and intellectual property rights therein. Nothing in this Agreement conveys or shall be construed to convey any ownership interest in any Platform or any intellectual property rights in or to the Platform. Remix Labs reserves all rights not expressly granted in this Agreement.
(b) As between Customer and Remix Labs, Customer owns all rights, title and interest in and to all information and data provided or made available by or on behalf of Customer and the Authorized Users that is processed by Remix Labs or the Platform (collectively, the “Customer Data”). Customer grants Remix Labs a non-exclusive license to access, use, store, modify, manipulate, display and otherwise process the Customer Data (i) during the term of this Agreement to the extent necessary to provide the Platform or otherwise perform Remix Labs’s obligations under this Agreement; and (ii) during and after the term of this Agreement for Remix Labs’s internal business purposes, including, but not limited to, supporting, developing, improving, and modifying the Platform and other services and for using, developing or training artificial intelligence and machine learning models and applications. Customer acknowledges and agrees that Remix Labs is not obliged to back up or save any Customer Data; Customer is responsible for the backup of the Customer Data and relevant information and business processes related to Customer’s use of the Platform.
(c) Customer agrees to provide feedback regarding the Platform and to participate in discussions arranged or requested by Remix Labs pertaining to the Platform, including, but not limited to, chats, calls and other communications channels. Customer grants to Remix Labs a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Platform any suggestions, enhancement request, recommendations, corrections, or other feedback provided by Customer or the Authorized Users relating to the Platform.
(d) Remix Labs will provide Customer with access to and use of the Platform during the term of this Agreement on a free trial basis.
3. Security and Privacy
(a) Customer shall implement and maintain reasonably necessary security precautions, consistent with then-current standards in the industry, to prevent unauthorized access to, use of or distribution of the Platform and breaches of this Agreement.
(b) Remix Labs shall implement and maintain appropriate administrative, technical, and physical safeguards designed to ensure the security, confidentiality, and integrity of the Customer Data and the Platform.
(c) To the extent that Remix Labs processes information that identifies or could reasonably be used to identify an individual (“Personal Information”) on behalf of Customer in the course of providing the Platform, the following shall apply:
(i) Each party shall comply with all applicable laws and regulations relating to the processing of Personal Information (“Privacy Laws”). Customer represents and warrants to Remix Labs that it has established all rights under applicable law for Remix Labs to process Personal Information to provide the Platform and comply with this Agreement. Customer shall provide to Remix Labs only the minimum Personal Information required for Customer to utilize the Platform in accordance with this Agreement and shall ensure that any such Personal Information is securely transferred to Remix Labs.
(ii) To the extent that each of the following obligations are required by Privacy Laws, Remix Labs shall: (A) shall process Personal Information received from Client only as reasonably related to the Platform and this Agreement and to comply with applicable law; (B) to the extent that it processes Personal Information on behalf of Customer which is within scope of Californian Privacy Laws, only process such Personal Information within the direct business relationship between the parties and Remix Labs shall not otherwise retain, use, disclose, combine, share or sell such Personal Information except as permitted pursuant to Privacy Laws; (C) ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality; (D) only engage another processor of personal data subject to the substantially equivalent data protection obligations as set out this section and Remix Labs shall remain fully liable for such other processor’s performance of such data protection obligations and Customer generally authorizes the use of other processors on this basis provided that Remix Labs shall inform Customer of any new processors, thereby giving Customer the opportunity to object to such changes; (E) take reasonable security measures designed to protect against security incidents involving Personal Information; (F) transfer Personal Information out of the EU and/or the UK subject to implementing with Customer appropriate safeguards in accordance with Privacy Laws, for example by agreement of standard contractual clauses; (G) without undue delay notify Customer (where permitted by applicable law) if it: (y) becomes aware of a security incident involving Personal Information which is notifiable to Customer under Privacy Laws or which materially compromises the security, confidentiality or integrity of such Personal Information and has the potential to cause identity theft or financial harm to individuals whose Personal Information was affected; or (z) receives a request from an individual or regulator, in each case in relation to the personal data that it processes as a processor on behalf of Customer; (H) provide reasonable cooperation to Customer, at Customer’s cost, to assist Customer to respond to individuals exercising their rights under Privacy Laws and to reasonably assist Customer to comply with its obligations in relation to data protection impact assessments and prior consultations where required by Privacy Laws; (I) at the written request of Customer, delete or return all Personal Information to Customer after the end of the provision of the Platform relating to processing, and delete existing copies unless applicable law requires otherwise, subject to retention in accordance with usual back-up practices; and (J) make available to Customer all information reasonably necessary to demonstrate compliance with Privacy Laws and allow for and contribute to audits, including inspections, at Customer’s cost, conducted by Customer or another auditor mandated by Customer (provided such auditor is not a competitor of Remix Labs) solely by providing Customer with, upon reasonable request: (x) a summary of its information security and privacy policies applicable to the Platform; (y) any client-releasable summaries of audits report performed by a qualified third-party auditor within twelve (12) months of Customer’s audit request; and (z) cooperation in responding to reasonable inquiries from Customer related to the results of such summary information.
4. Warranty and Disclaimers
(a) Customer represents and warrants that it has (i) full authority and all rights necessary to enter into and fully perform all of Customer’s obligations pursuant to this Agreement; (ii) Customer is not subject to any contractual or other obligation that would limit, prohibit or in any way conflict with Customer’s ability to perform its obligations under this Agreement, use the Platform or provide the Customer Data, including, but not limited to, any confidentiality or other obligations (fiduciary, contractual or otherwise) that Customer may owe to any other third party; and (iii) has all rights, licenses, consents, and authorizations necessary to provide the Customer Data and grant the rights and licenses granted in this Agreement.
(b) The Platform is provided “as is” and “as available” without warranty of any kind. Remix Labs expressly disclaims all representations and warranties, whether express, implied or statutory, with respect to the Platform, including, but not limited to, warranties of merchantability, fitness for a particular purpose and non-infringement and all warranties arising from course of performance, course of dealing and usage of trade or their equivalents under the laws of any jurisdiction. Without limiting the foregoing, Remix Labs cannot and does not guarantee or make any representation or warranty as to the accuracy, validity, sequence, timeliness, completeness, availability or continued availability of the Platform, or the results to be obtained by the use of the Platform, or that the Platform or the results to be obtained by the use of the Platform will be error-free. Nothing in the Platform is intended to be, and Customer should not consider anything in the Platform to be, investment, accounting, tax or legal advice.
(c) The Platform is not intended to be used as the sole basis for any investment or other decision and is based upon data provided by Customer and the Authorized Users, the accuracy or completeness of which it would not be reasonable or economically viable for Remix Labs to verify. Therefore, Customer agrees that Remix Labs is not liable for the inaccuracy, incompleteness, omission or other error in the Platform or any failure of the Platform to achieve any particular result
5. Limitation of Liability and Indemnification
(a) Remix Labs is not liable for any direct, indirect, incidental, special, punitive or consequential damages, however caused, arising out of the Platform or this Agreement, regardless of the form of the action or the basis of the claim, even if Remix Labs has been apprised of the possibilities of such damages, and whether or not such damages could have been foreseen or prevented.
(b) Customer shall defend Remix Labs against a third-party claim arising out of or resulting from Customer’s use of the Platform or breach of this Agreement and will pay the resulting damages finally awarded against Remix Labs by a court of competent jurisdiction or agreed to in a settlement in connection with any such claim. Customer shall control the defense or settlement of the claim; provided, however, that Customer may not settle any claim if it imposes any liability or obligation on Remix Labs without Remix Labs’s prior written consent.
Term and Termination
(a) This Agreement commences on the Effective Date and will remain in effect for three (3) months, unless earlier terminated in accordance with the terms of this Agreement. Following the termination or expiration of this Agreement, the parties may elect to enter into an agreement for ongoing commercial use of the Platform, subject to mutual agreement on pricing and other terms and conditions.
(b) Either party may terminate this Agreement at any time upon written notice to the other party or, in the case of Remix Labs, by terminating Customer’s access to the Platform.
(c) Without limiting Remix Labs’s rights in Section 1(d), upon termination or expiration of this Agreement, Customer’s right to access and use the Platform ceases and Remix Labs has the right to terminate Customer’s and all Authorized Users’ access to the Platform.
Confidentiality.
(a) Each party acknowledges that it may be exposed to or acquire non-public or proprietary information of the other party or its affiliates, including, but no limited to, any such information pertaining to a party’s products, services, business plans, strategies, forecasts and projections, operations, and finances (collectively, “Confidential Information”). Without limiting Remix Labs’s rights under Section 2, above, the receiving party shall not use or copy any Confidential Information of the disclosing party except to the limited extent necessary to perform the receiving party’s obligations or exercise the receiving party’s rights under this Agreement and the receiving party shall not disclose any Confidential Information of the disclosing party to any person or entity other than (i) to the receiving party’s and its affiliates’ employees, consultants, contractors, service providers and advisors who have a need to know the Confidential Information in order to perform the receiving party’s obligations or exercise the receiving party’s rights under this Agreement and who are subject to confidentiality obligations that are at least as protective of the Confidential Information as this Agreement; or (ii) as otherwise expressly permitted by this Agreement.
(b) The receiving party shall use the same measures that the receiving party uses to protect the receiving party’s own confidential information of a similar nature and proprietary information to protect the Confidential Information from use or disclosure in violation of this Agreement, but in no event less than commercially reasonable measures. The receiving party shall notify the disclosing party promptly upon discovery of any use
or disclosure of Confidential Information in violation of this Agreement and will cooperate with the disclosing party in every reasonable way to help the disclosing party regain possession of the Confidential Information and prevent its further use and disclosure in violation of this Agreement. The receiving party is liable and responsible for any use or disclosure of Confidential Information that would constitute a breach of this Agreement by any person or entity to whom or which the receiving party provides, or provides with access to, any Confidential Information, as if done by the receiving party.
(c) The restrictions on use and disclosure of Confidential Information set forth in this Agreement do not apply to information (i) in the public domain; (ii) made available to the receiving party or other sources not under an obligation of confidentiality with respect to such information; (iii) that receiving party can demonstrate was already in the receiving party’s possession and not subject to an obligation of confidentiality, and (iv) that the receiving party can demonstrate was independently developed by the receiving party without use of the disclosing party’s Confidential Information.
(d) The receiving party may disclose Confidential Information that is required to be disclosed in connection with legal or regulatory requirements or pursuant to legal process, in which case the receiving party shall notify the disclosing party in writing of such obligation reasonably in advance (if not legally prohibited from doing so).
(e) Upon termination or expiration of this Agreement, or at any other time at the request of the disclosing party, the receiving party shall return to the disclosing party or destroy and delete, as applicable, all Confidential Information and any copies thereof in the receiving party’s possession or control; provided, however, that (i) the receiving party may retain copies of Confidential Information for legal or regulatory compliance purposes and in accordance with the receiving party’s internal recordkeeping policies, which copies remain subject at all times to the provisions of this Section 7; and (ii) Remix Labs may retain copies of Customer Data to exercise its rights under Section 2.
Miscellaneous
(a) Customer agrees (i) that Remix Labs may identify Customer as a customer or user of the Platform across Remix Labs’s marketing materials, promotional presentations, customer lists, website, social media sites and other written and electronic materials (name and logo); and (ii) upon reasonable request, to provide input towards and/or participate in Remix Labs’s marketing and promotional activities.
(b) Customer may not assign or transfer this Agreement or any of Customer’s rights or obligations under this Agreement without Remix Labs’s prior written consent. Any assignment or transfer in violation of this Agreement is void.
(c) This Agreement and all claims arising out of or related to this Agreement are governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of New York. Each party must bring any claim or action in connection with this Agreement in the appropriate Federal or State court located in New York County, and the parties irrevocably consent to the exclusive jurisdiction of such court.
(d) Any provision of this Agreement, which, by its nature, would survive termination or expiration of this Agreement will survive any such termination or expiration, including those provisions concerning indemnification and limitation of liability.
(e) The failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder. If any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of this Agreement shall remain in full force and effect.
(f) This Agreement constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties with respect thereto.