Remora Terms of Service Agreement
Last Updated: June 26th, 2023
- 1 - Definitions
- 2 - Use Rights And Restrictions
- 3 - Availability Of The Technology
- 4 - Support Guarantee and Expectations
- 5 - Intellectual Property Ownership
- 6 - Confidential Information
- 7 - Client Obligations
- 8 - Fees And Payment
- 9 - Notice
- 10 - Term And Termination
- 11 - Limitations Of Liability
- 12 - Indemnification
- 13 - Dispute Resolution
- 14 - Representations And Warranties
- 15 - General
Welcome to Remora.
This Terms of Services Agreement (“Agreement”) is a legal agreement between Remora, Inc. (“Remora”, “we”, “us”, or “our”) and the entity or person (“you”, “your”, or “user”) who registered with Remora to receive access to all or some combination of two-way hosted messaging, mobile applications, website hosting or provisioning, live chat tools, web health monitoring, inventory management, digital data stewardship, business management software, reporting, analytics services, and/or other technologies or services that may be offered by Remora (each, a “Service”, collectively, the “Technology”). This Agreement describes the terms of services and conditions that apply to your use access to and use of Remora’s Technology and the Remora Services.
If you are using a Remora Service on behalf of a company or other entity, then “Client“ or “you“ means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. This Agreement includes and hereby incorporates by reference any Subscription Documentation executed between you and Remora, as well as any policies or exhibits linked to or referenced therein.
Remora may modify all or any part of these Terms from time to time without notice to you; you should check back often so you are aware of your current rights and responsibilities. Your continued use of the Services after changes to the Terms have been published means you accept the updated Terms. If at any time the Terms are no longer acceptable to you, you should immediately stop all use of the Technology and the Services, and promptly notify Remora.
This Agreement governs all Remora Technology and Services and is a contract between you and Remora. By accessing, visiting, using, or accepting the Services, you agree to these Terms. Please read them carefully. If you do not accept these Terms, do not use Remora’s Technology or any of the Remora Services. If you do not understand any of the terms of this Agreement, please contact us before using the Services. You may not access Remora’s Technology or use any of the Services unless you agree to abide by all of the terms and conditions in this Agreement.
In consideration of the mutual covenants set forth herein, you and Remora agree as follows:
1 – DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, as used in this Agreement, the following terms shall have the following meanings:
- (a) “Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
- (b) “Client” means Remora’s customer.
- (c) “Client Data” means any personally identifiable information and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by a website visitor to Client.
- (d) “Confidential Information” means sensitive information about either party’s business affairs, plans, products, intellectual property, trade secrets, or proprietary information including but not limited to code, inventions, know-how, product plans, technical, financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
- (e) “Custom Work” means Client requests that include a substantial redesign of Client’s website or requires custom coding changes to Remora’s Technology. Banners, page requests, pricing updates, and simple website change requests that do not require custom coding shall not be considered Custom Work and will be subject to Remora’s Eight-Hour Service Guarantee.
- (f) “Customers” means Client’s Customers and prospects that have initiated communication with Client and consented to receive further communications from Client.
- (g) “Customer Data” means data related to the identity, characteristics, and activities of Customers, collected, or submitted to the Technology or captured by the Services.
- (h) “Feedback” means communications sent to Remora by Client suggesting changes to Remora’s Intellectual Property, including without limitation, new features or functionality relating thereto, or any comments, questions, or recommendations.
- (i) “Intellectual Property Rights” means copyrights, patents, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, trade dress, trade names, logos, together with all of the goodwill associated therewith, derivative works, and all other rights.
- (j) “Marketing” means unsolicited advertisements, telemarketing, or promotional messages.
- (k) “Technology” means any software, code, techniques, trade secrets and proprietary products or services developed by and/or owned by Remora.
- (l) “Services” means Remora’s work in provisioning the Remora Technology according to the software-as-a-service offering described in the applicable Subscription Documentation.
- (m) “Subscription Documentation” means any written or digital service, license, lease, or Technology access agreement to do business with Remora that is signed by you or legally agreed to by you.
- (n) “Support Request” means an email to [email protected] or a phone call to Remora by you requesting a website change or update including but not limited to “look and feel” updates, digital graphic creation and deployment such as banners, updates to staff pages, vehicle price updates, tracking code installation, creation of or placement changes of buttons, and most Third-Party integrations.
- (o) “Systems” means any network, computer or communications system, software application, or network or computing device.
- (p) “Territory” means the United States, unless otherwise expressly set forth in Client’s Subscription Documentation.
- (q) “Third-Party” means any company, person, or entity other than the parties bound by this Agreement.
- (r) “Third-Party Content” means content, data, or other materials that Client provides to Remora from its Third-Party data providers, including through Third-Party Products used by Client.
- (s) “Third-Party Products” means any Third-Party software or products integrated with Remora’s Services by Client request or by Remora of its own accord.
- (t) “Third-Party Resources” means Third-Party websites, search engines, or directories.
- (u) “Two-Way Communication Services” means Remora Technology intended to allow Client to be used to send transactional and/or informational electronic communication, including but not limited to text messages, emails, and chat messages only to Client’s own current Customers who have consented to the receipt of such communications and are provided with necessary notices in accordance with applicable law and regulations.
2 – Use Rights and Restrictions
2.1 Remora Services
Remora provides Client access to a proprietary multi-product business management platform (the “Technology”) that includes without limitation two-way hosted messaging tools, mobile phone applications, hosted websites, website editing tools, live chat and conversation management software, web stack health monitoring, customized reports, and inventory management tools. Additionally, certain Free Access Subscription or Beta Releases (as defined below), and any other services Remora may offer from time to time (together with the “Technology”, the “Service(s)“).
Remora shall provide Client the services set forth on the applicable Subscription Documentation. Remora shall use reasonable diligence in the provisioning and customization of Client’s access to the Technology and Remora endeavors to deliver the Services to Client on or before the effective date on the applicable Subscription Documentation (the “Target Delivery Date”). Client acknowledges and agrees that this delivery date is a good faith estimate and Remora’s failure to deliver by such date shall not be a default under this Agreement. Remora shall provide the Services in accordance with the terms and subject to the conditions set forth in this Agreement.
Client will, from time to time, enter into a proposal, quote, purchase agreement, order form, statement of work, or otherwise click to accept or agree to an online registration form, which references this Agreement (“Subscription Documentation”) and details the Services ordered from Remora. Client may be provided the option to purchase certain Services as part of a package deal (with each being a seperate “Deal”), as detailed in the applicable Subscription Documentation. Remora has no obligation to provide anyone access to the Technology, provide any Services, or perform any tasks not specifically set forth in this Agreement, including any applicable Subscription Documentation.
2.2 Alteration of Subscription Documentation
Any amendments or modification to any existing Subscription Documentation must be agreed to in writing by the parties. Remora has no obligation to perform any Services under the amended Subscription Documentation until the parties have agreed to the effect of such changes on the applicable Fees.
2.3 Modification of the Services
Remora reserves the right to modify or discontinue the Services at any time, or to alter the offering of the Services temporarily or permanently. Remora also reserves the right to replace certain Services and Deals with functionally equivalent Services or Deals, at its sole discretion. In the event Remora makes any modification or alteration to the Services or the offering thereof that has a materially adverse effect on the functionality of the Services ordered under your Subscription Documentation, Client may terminate this Agreement and receive a pro-rated refund of pre-paid unused Fees for the remainder of Client’s Subscription Term.
2.4 License for Use of Services and Rights
Subject to all terms and conditions of this Agreement, Remora grants Client a subscription-based, non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the applicable Subscription Term and within the Territory to: (a) install and use an object code copy of any mobile application associated with the Services soley for Client’s business purposes; and (b) access and use the Services, designated on Client’s Subscription Documentation solely for Client’s business purposes, but only in accordance with this Agreement and the applicable Subscription Documentation.
Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense or provide access to the Technology to a third party (except Authorized Users as specifically authorized above); (b) incorporate the Remora Technology (or any portion thereof) into, or use it with or to provide, any site, product or service; (c) use the Technology (or any portion thereof) for time-sharing purposes or for a Third-Party’s benefit; (d) publicly disseminate information regarding the performance of the Technology (which is deemed Remora’s Confidential Information); (e) modify or create a derivative work of the Technology or any portion thereof; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public application programming interfaces (APIs) to any of the Technology or the Services; (g) break or circumvent any security measures or rate limits for Services; (h) distribute any portion of the Technology other than as specifically permitted above; (i) use the Technology or the Services in violation of the Acceptable Use Policy; or (j) remove or obscure any proprietary or other notices contained in the Remora Technology including in any reports or output obtained from the Remora Technology; or (k) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.6 Reservation of Rights
Remora reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any Third-Party any Intellectual Property Rights or other right, title, or interest in or to the Technology or any of Remora’s Intellectual Property.
2.7 Beta Releases and Free Access Subscriptions.
Subject to Client’s compliance with the terms of this Agreement, Remora may provide Client with certain Services for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta” or other early-stage Services, integrations, or features (“Beta Releases”) for the Subscription Term set forth in the applicable Subscription Documentation (if applicable). This Section and any relevant Additional Terms will apply to any Free Access Subscription or Beta Release and supersedes any contrary provision in this Agreement. Remora may use good faith efforts in its discretion to assist Client with Free Access Subscriptions or Beta Releases. Without limiting the other disclaimers and limitations in this Agreement, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH REMORA WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT THE CLIENT’S SOLE RISK. You may choose to use Beta Releases in your sole discretion. Remora makes no guarantees or promises with respect to the continued availability of any Free Access Subscriptions or Beta Releases or that future versions of a Beta Release will be released or will be available under the same terms. Remora may discontinue Beta Releases at any time, in our sole discretion, and decide not to make Beta Releases generally available. Notwithstanding anything to the contrary herein, Remora may terminate Client’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in Remora’s sole discretion, without liability.
2.8 Account Registration
Client will register for a Remora account in order to access or receive the Services. Account information must be accurate, current, and complete. Client agrees to keep its account information up to date so that Remora may send notices, statements, and other information by email and/or through Client’s account.
2.9 Eligibility and Use by Others
By agreeing to these Terms, Client warrants that it and its employees and contractors whom Client has authorized to access the Services on its behalf (“Authorized Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Technology or the Services; and (c) will comply with all applicable laws when using the Technology and the Services. Client may permit its Authorized Users to use the Technology provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement which may be communicated by posting to Remora’s website, or on a click-through basis to Authorized Users upon access to the Services.
2.10 Responsibility for Authorized Users
Client will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein. Client will be solely responsible for authorizing and creating user IDs, passwords, and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Provided, however, Remora may, in its sole discretion, suspend any Authorized User’s access to the Services. Client is solely responsible for ensuring that any user IDs, passwords, and other access credentials (such as API tokens) for the Technology are kept strictly confidential and not shared with any unauthorized person. Client shall protect and safeguard the confidentiality of the passwords and access to the Technology with at least the same degree of care as the Client would protect its own important passwords, but in no event with less than a commercially reasonable degree of care. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all laws applicable to Client. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords, or access credentials. Client must notify Remora within twenty-four (24) hours of any unauthorized use of its account. You are solely responsible for all use of the Technology and the Services. Remora will not be liable for any loss or damage arising from unauthorized use of Client's account.
2.11 Use by Customers
Any person that is a customer of Client, or that is a potential customer of Client (“Customer(s)”) who accesses and/or uses the Services, including via Client’s website, are subject to the Acceptable Use Policy and such other terms as may be provided by Remora from time to time, which includes Remora’s right to remove or disable access to any Customer that violates our Acceptable Use Policy.
2.12 Documentation License
Subject to the terms and conditions contained in this Agreement, Remora hereby grants to Client a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term and solely for Client’s internal business purposes in connection with its use of the Services.
Remora is under no obligation to monitor the content of the Technology (or any server used in connection with the Services). However, Client understands and agrees that Remora may monitor and analyze Client Data or Customer Data (including but not limited to texts, messages, chats, etc.) to improve the Technology, or the Services; to improve Client’s experience using the Remora Technology, or the Services; to customize the Services and communicate with Client; to ensure compliance with the Acceptable Use Policy; and/or to make the Services, or the Technology more helpful or useful to Client and other users.
Remora agrees to maintain technical, and organizational measures designed, in its discretion, to secure its systems from unauthorized access, use or disclosure. Remora takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section 2.14.
Remora does not provide an archiving service. During the Subscription Term, Client acknowledges that Remora may delete Client Data no longer in active use. Remora expressly disclaims all other obligations with respect to storage.
3 – Availability of the Technology
Subject to the terms of this Agreement and any scheduled maintenance and unavailability caused by: (a) actions or omissions of Client; (b) failures, errors or defects in the facilities, hardware, software, or network of Client; or (c) circumstances that constitute a force majeure event or an event that is beyond Remora’s reasonable control, the Services will be available for access and use 99.9% of the time during of the applicable Subscription Term. In the event that Remora breaches the terms of this Section 3, Remora agrees to provide one free month of Services and access to the Technology in the form of a credit equal to the amount normally billed to client as referenced on the related Subscription Documentation or the most recent invoice, whichever is less. Client waives any and all claims against Remora for violation of this Section 3 and further acknowledges that its sole remedy and Remora’s sole liability for breach of this Section 3 is provided solely in this Section 3.
4 – Support Guarantee and Expectations
4.1 Support Expectations
Remora makes available web-based support through the Services, by phone, and by email. Any support services are subject to this Agreement. Remora may also provide onboarding, deployment, and other services under this Agreement. The scope, pricing and other terms for these additional services will be set forth in the applicable Subscription Documentation. Remora’s ability to provision Remora’s Technology and deliver the Services will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Services.
4.2 Remora’s Guarantee
Subject to the terms and conditions provided for herein, Remora guarantees that Client’s Support Requests will be completed within eight (8) business hours of receipt (the “Eight-Hour Service Guarantee”). Remora’s business hours are typically 9 AM to 6 PM (EST), Monday through Friday. However, Remora reserves the right to alter and amend these hours and/or close the office for holidays or for any other reason. Regardless of the reason Remora’s offices may be closed, including any office closures after normal business hours, the Eight-Hour Service Guarantee provided for herein shall be tolled until Remora re-opens for business. Additionally, Remora guarantees that all requests will be received, completed, and delivered by American citizens employed by Remora.
In the event that Client revises or alters any previously submitted Support Request, Client agrees that, upon submission of any such request for revision or alteration to a previously submitted Support Request, the original or previous Support Request will be deemed abandoned and Remora shall have eight (8) business hour from when the revision or alteration is requested by the Client.
In the event that a Support Request related to the Technology’s involvement or integration with Third-Parties, Remora will communicate with the Client and the Third-Party in good faith and endeavor to complete the request consistent with Remora’s Eight-Hour Service Guarantee. However, the Eight-Hour Service Guarantee shall be tolled due to any delays caused by a Third-Party, and Remora will not be held responsible for the time that the related Third-Party takes to complete the provisioning, customizations, or modifications to the Third-Party Products that may be required to complete Client’s request.
In the event that Client submits a Service Request that requires Remora to perform work that requires Remora to write custom code or make substantial modifications to the Technology (“Custom Work”), Remora will communicate in good faith with the Client regarding the expected time required to complete the Custom Work. Remora’s notification to Client that any Service Request shall be considered “Custom Work” shall constitute a completed Support Request. Thereafter, any such Custom Work shall not be subject to Remora’s Eight Hour Service Guarantee. However, Remora will endeavor to complete all Custom Work tickets within the time frame given to Client in the response to Clients initial request.
In the event of a breach, Remora agrees to provide one free month of Services and access to the Technology in the form of a credit equal to the amount normally billed to client as referenced on the related Subscription Documentation or the most recent invoice, whichever is less.
5 – Intellectual Property Ownership
5.1 Intellectual Property Ownership
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not),trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Remora in the course of performing the Services, except for any Confidential Information of Client, is owned exclusively by Remora and the ownership shall remain with Remora during and following the termination of this Agreement. Remora will have the exclusive rights in making any derivative works from any of its work, practices, coding, or programming arising out of the Services.
Client shall retain all its Intellectual Property Rights in any text, images or other components Client owns and delivers to Remora for use on the website that is developed under this Agreement. Both parties acknowledge and agree that, except as specifically set forth in this Agreement, neither party shall acquire under this Agreement any rights of use or ownership with respect to any trade names, trade dress, trademarks, service marks, commercial symbols, copyrightable material, designs, logos and/or any other intellectual property of the other party or its licensors, and all such intellectual property shall remain the property of its respective owner.
5.2 Ownership Acknowledgements and Updates
By accepting this Agreement, Client acknowledges that it is obtaining subscription-based access to the Technology only which includes a limited right to use the Services and irrespective of any use of the words "purchase", "sale" or similar terms, no ownership rights are transferred to Client under this Agreement and, except as expressly permitted by such limited right, Client may not make any use of the Technology or the Services. Client agrees that Remora exclusively retains all rights, title and interest (including all intellectual property rights) in and to all products, any and all related documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Technology), anything delivered as part of support, materials or other services, and any updates, modifications or derivative works of any of the foregoing and reserves any licenses not specifically granted herein. Furthermore, Remora exclusively owns and reserves all right, title, and interest in and to Remora’s Confidential Information and any data, in anonymized or aggregated form that does not identify you, any end users, or any natural person, generated or derived from the use or operation of the Services, including performance results. The Services are offered as an on-line, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Services or Technology and that Remora at its option may make updates, bug fixes, modifications, or improvements to the Technology or the Services from time-to-time.
We own the intellectual property rights in all software, designs, text, images, or other content available on the Remora websites and the Technology or we have obtained applicable rights to such text, images, software, or other content from applicable third parties who own the content. You may not redistribute or copy any part of the Remora websites or the Technology without our prior written consent. However, we give you permission to view, copy, and print material on the Remora websites and the Technology subject to the following conditions: You may use the material only for internal, informational, and noncommercial purposes. You may not alter the material and you must include our copyright notice on any copy of the material.
Without obtaining our prior written consent, you may not republish, redistribute, or otherwise make any copies, of the materials on the Remora websites or the Technology. No other use of the material within the Remora websites or the Technology is permitted without our prior written consent.
The Remora name, trademarks, logos, product and service names, designs, slogans, service marks, and all related names (the “marks”) are trademarks of Remora. You must strictly adhere to our brand guidelines whenever publishing Remora’s trade dress or marks in any way. Remora’s approved digital branded assets are available along with detailed instructions for use here: https://remora.com/brand-guidelines. All other names, logos, product and service names, designs, and slogans displayed on the Remora Technology, the Services, and the websites are the trademarks of their respective owners.
5.3 Client Data Rights
5.4 Feedback and Client Contributions
Remora does not accept or consider unsolicited ideas, including ideas for new promotions, new products or technologies, processes, materials, marketing plans or new product names (“contributions”). We do not want to create any misunderstandings or disputes if our products or strategies seem similar to ideas submitted to us. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Remora (collectively, "Feedback"), Client hereby grants Remora a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits Remora’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise. In connection with unsolicited contributions, you may submit to us, you agree that the contributions will not be confidential and that no fiduciary relationship is intended or created between you and us, and that you have no expectation of review, compensation, or consideration of any type. We are not responsible or liable to any Third-Party for the content or contributions provided by you.
If Client or any of its employees or contractors sends or transmits any communications or materials to Remora by mail, email, telephone, or otherwise, suggesting or recommending changes to the Technology, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Remora is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Client hereby assigns to Remora on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Remora is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Remora is not required to use any Feedback.
5.5 Aggregate Data.
Client agrees that Remora will have the right to generate usage data from Client use of the Services and may aggregate anonymized Client Data ("Aggregate Data"). Notwithstanding anything to the contrary herein, the parties agree that Aggregate Data is Remora Technology, which Remora may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Remora’s products and services and to create and distribute reports and other materials). Remora will not distribute Aggregate Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable laws.
6 – Confidential Information
6.1 Mutual Confidentiality
All non-public, confidential or proprietary information of either party (“Confidential Information”), including, but not limited to, this Agreement, the Terms and Conditions, information about such party’s business affairs, products, services, methodologies, confidential intellectual property, trade secrets, Third-Party confidential information, and other sensitive or proprietary information, disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Agreement, and whether or not marked, designated, or otherwise identified as “confidential,” is confidential, solely for use in performing this Agreement and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (b) is obtained by the Receiving Party on a non-confidential basis from a Third-Party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party’s disclosure hereunder; or (d) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction.
6.2 Survival of Confidentiality and Responsibilities
The Receiving Party shall be responsible for any breach of this Agreement caused by any of its employees, contractors, agents, or representatives. At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return, and shall require its representatives to return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information. Each party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of two (2) years, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret.
6.3 Obligation of Confidentiality
Except as otherwise expressly permitted in this Agreement, each party must: (a) hold in confidence and not disclose the other party’s Confidential Information to third parties; and (b) use the other party’s Confidential Information only as necessary to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, contractors, or subcontractors having a legitimate need to know, provided that such party remains responsible for any recipient’s compliance with the terms of this Section 5 (Confidential Information) and these recipients are bound to confidentiality obligations no less protective than this Section 5.
These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the receiving party; (b) was known by the receiving party prior to receipt of the Confidential Information; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
7 – CLIENT OBLIGATIONS
7.1 Client’s Responsibilities
Client shall provide Remora with the initial information, contextual copy, inventory data, vehicle images and content intended to be displayed or that is needed to complete the development and provisioning of the Technology and of the Services. Client shall be responsible for registering and renewing their domain name and phone numbers and paying all fees associated therewith, and Client shall be the owner of such domain names and phone numbers. Client shall respond promptly to any request by Remora for information or for approval of the Services. Client shall notify Remora of any changes to Client’s procedures affecting Remora’s obligations under this Agreement at least five (5) days before implementing such changes.
You are responsible for any fines from any non-compliance or spamming. You must comply with all applicable local, state, national and international laws, and regulations when you use the Technology. Any attempt by anyone to damage, attack, disable, overburden, or impair the Technology is a violation of criminal and civil laws. We reserve the right to seek damages from anyone doing so to the fullest extent permitted by law.
You also will not post or transmit through the Remora websites, the Technology, or the Services, any material or content that violates or infringes in any way the rights of others, solicits, encourages or promotes the use of illegal substances or activities, threatening, abusive, harassing, defamatory, libelous, derogatory, invasive of privacy or publicity rights, vulgar, obscene, bigoted or hateful, profane, scandalous, pornographic, indecent or otherwise objectionable, gives rise to civil or criminal liability or otherwise violates any applicable law.
Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Remora, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions. Client understands that these Terms and Conditions are subject to change and that the most up to date version of these Terms and Conditions will be posted on the Remora website. It is the Client’s responsibility to review and understand the Terms and Conditions.
7.2 Regarding Third-Party Products
Remora may from time to time integrate its Services with Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Client does not agree to abide by the applicable terms for any such Third-Party Products, then Client should not install, request for Remora to install, or use such Third-Party Products.
7.3 Client Warranty
Client warrants and represents that it is in full compliance with all applicable state, federal, and international laws, rules and regulations and that Client will not use the Services in a manner that would violate or cause Remora to violate any obligation with respect to any such laws, rules or regulations, or amendments thereto, including but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, the CAN-SPAM Act, Do Not Call rules and prohibitions, and Canada's Anti-Spam Legislation ("CASL"). Client also warrants and represents that: (a) Client has sole ownership of any Client Data it provides to Remora, or otherwise has legal rights to provide such Client Data, and Client Data and Remora’s use thereof will not violate Third-Party rights, including intellectual property, privacy and publicity rights; (b) Remora’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, or regulation; (c) any Client Data Client and/or Client’s authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, and will only concern Client or the goods and/or services that Client provides; (d) Client is authorized to provide Remora with any Customer, Client or Authorized User information it provides in connection with the Services, including any personally identifying information; and (e) Client and/or Client’s authorized representative(s) will only use the Services for interaction with actual Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Services and notify Remora immediately. Additionally, if an integration is included in the Services Client orders, Client grants Remora the right to access Client’s Information or CRM system directly or through a Third-Party service for the purposes of fulfilling Remora’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting Remora such right. Remora will not be held liable for any consequences of false and/or inaccurate content published through the Technology by Client or its Authorized Users.
7.4 Intended Use of the Services
Client understands and agrees that the Services are intended to allow Client to send electronic communication, including but not limited to text messages, emails, and chat messages only to Client’s own current Customers who have consented to the receipt of such communications and are provided with necessary notices in accordance with applicable law and regulations. Client also understands and agrees that the Services are intended primarily to be used to send transactional and/or informational messages, not advertisements, marketing, telemarketing, or promotional messages, as such are defined in applicable laws, rules, and regulations (hereinafter, collectively “Marketing”), and that Client may use the Services to send Marketing messages only via Remora “Consent Campaigns”. Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable laws, prior to utilizing the Services; (b) obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant Remora the rights herein; and (c) send Marketing messages through the Technology only via Remora’s Consent Campaigns and only in compliance with all local, state, national and international laws, regulations and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable law and regulations and must not rely on the Services for any such compliance. Use of the Technology does not guarantee compliance with applicable law or regulation and Remora expressly disclaims any liability for Client’s non-compliance. Remora reserves the right to suspend or terminate Client’s access to the Services or the messaging feature if we believe, in our discretion, that Client has violated this Section 6.4.
8 – FEES AND PAYMENT
Unless otherwise specified on the applicable Subscription Documentation, the Services are provided on an ongoing, per license, subscription-basis including automatically recurring payments for periodic charges, according to the terms and conditions referenced in the Subscription Documentation ("Subscription"). Client agrees to pay to Remora the fees for the Subscription to the Services ("Subscription Fees"), all as set forth in the applicable Subscription Documentation (collectively, the "Fees"). Except as otherwise specified in the applicable Subscription Documentation, unless Client terminates a Free Access Subscription prior to the lapse of the Free Access Subscription term, such Services will convert to a paid Subscription and Client agrees to pay Remora the applicable Subscription Fees according to the terms of this Agreement. Unless otherwise specified in the applicable Subscription Documentation, payment for all Fees is due within thirty (30) days of the invoice date.
8.2 Payment of Fees
Unless otherwise specified in the applicable Subscription Documentation, all Subscription Fees will be paid annually in advance, and all references to currency set forth herein will mean U.S. dollars, with all payments hereunder to be made in U.S. dollars. Subscription Fees are non-refundable and non-creditable, except as expressly set forth in Sections 2.3 (Modification of the Services) and 9.3 (Termination for Cause). If the payment method selected on the applicable Subscription Documentation is credit card, ACH, or direct debit, Client authorizes Remora to charge the Subscription Fees automatically, on an auto-renew basis on your Subscription Start Date (as defined below) for each subsequent Subscription Term. For the avoidance of doubt, all additional Subscription Fees for additional Services accessed by Client will be billed when the Service is first accessed by Client and automatically, on an auto-renew basis on Client’s existing Subscription Start Date. The Subscription will continue unless and until you or Remora terminate your Subscription in accordance with Section 8. You must cancel your Subscription before it renews in order to avoid billing of the next periodic Subscription Fees to your account. Should Remora be unable to process/receive the Fees when due and owing, payment shall be considered overdue. Remora shall have the right to charge interest on all overdue amounts at the annual rate of 18%, compounded monthly, or the maximum lawful amounts, whichever is less. Additionally, after payment becomes overdue, Remora shall have the right to immediately suspend Client’s access to the Technology and/or seek to enforce Client’s payment obligations.
Remora’s Fees are exclusive of all taxes, and Client must pay any applicable taxes or levies, whether domestic or foreign, other than taxes based on the income of Remora. Client will make tax payments to Remora to the extent amounts are included on Remora’s invoices.
8.4 Fee Increases
Remora reserves the right to increase Fees for any Services, upon sixty (60) days’ prior written notice, effective on the start date of your subsequent Subscription Term.
9 – NOTICE
Any notice or communication to Remora under this Agreement must be in writing. Client must send any notices under this Agreement via postal mail to Remora Headquarters (3236 Beach Blvd., Jacksonville, FL 32207) or via email to [email protected] with "Attention Remora Legal Department" in the subject line. Remora may send notices to the e-mail addresses on Client’s account or, at Remora’s option, to Client’s last-known postal address. Remora may provide operational notices regarding the Services through conspicuous posting of such notice on Remora’s website or through the Technology. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. Remora is not responsible for any automatic filtering that Client, or its network provider may apply to email notifications.
10 – TERM AND TERMINATION
This Agreement is effective until the applicable Subscription Term for the Services has expired, or the Subscription is terminated as expressly permitted herein. Unless otherwise stated in Client’s Subscription Documentation, the initial term for any Subscription to the Services is twelve (12) months and will automatically renew for subsequent periods of equal duration (the "Subscription Term"), unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Client may give notice of non-renewal by sending an email to [email protected] If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Services ("Subscription Start Date"). By agreeing to any Subscription Documentation, Client is agreeing to pay applicable fees for the entire Subscription Term. Client cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.3 (Termination for Cause).
10.2 Suspension of Services
Remora may suspend Client’s access to the Services, remove Client Data, or disable Third-Party Products if it determines that; (a) Client’s account is overdue; or (b) Client has breached Section 2 (Use Rights; Restrictions) or 6 (Client Obligations); or (c) suspension is necessary to prevent harm or liability to other Clients or third parties or to preserve the security, stability, availability, or integrity of the Technology or the Services. Client will remain responsible for payment of Fees during any suspension period. Unless this Agreement has been terminated, Remora will cooperate with Client to restore access to the Services once it verifies that Client has resolved the condition requiring suspension. REMORA WILL HAVE NO LIABILITY FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF DATA OR PROFITS), OR ANY OTHER CONSEQUENCES THAT CLIENT OR ANY AUTHORIZED USER MAY INCUR AS A RESULT OF A SERVICE SUSPENSION.
10.3 Termination for Cause
Either party may terminate this Agreement, including any related Subscription Documentation, if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party. If Client terminates during the Subscription Term for any reason other than the foregoing, Client will be responsible for the Fees due for the entire Subscription Term. Remora may also terminate this Agreement or any related Subscription Documentation immediately if Client breaches Sections 2 (Use Rights; Restrictions) or 6 (Client Obligations), or for repeated violations of other Sections of this Agreement.
10.4 Effect of Termination
Upon any expiration or termination of this Agreement or any Subscription Documentation: (a) Client’s license rights will terminate and it must immediately cease use of the Technology and the Services and delete (or, at Remora’s request, return) all copies of Remora’s documentation, scripts, passwords or access codes and any other Confidential Information in Client’s possession, custody or control and (b) Client’s right to access any Client Data in the Technology will cease, and Remora may delete any such data in its possession at any time. If Remora terminates this Agreement for cause as provided in Section 9.3 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due immediately and must be promptly paid by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available.
Section 1 (Definitions), Section 2 (Access to the Technology; Use Rights and Restrictions), Section 4 (Intellectual Property Ownership), Section 5 (Confidential Information), Section 6 (Client Obligations), Section 10 (Disclaimers and Limitations of Liability), Section 11 (Indemnification), and Section 14 (General) shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or termination of this Agreement.
11 – LIMITATIONS OF LIABILITY
11.1 General Disclaimer
We use reasonable efforts to include accurate, complete, and current information on the Technology for information purposes. However, we do not warrant that the content or features on the Technology are accurate, complete, current, useful, uninterrupted, free of technical or typographical errors, that any errors will be corrected, or that your use of the Technology or the Services will provide any specific result. It is your responsibility to verify any information before relying on it. We reserve the right to make changes and updates to any content contained within the Technology without prior notice.
Access to, and use of, the Technology and the Services is at your own risk. We have provided links to certain Third-Party websites solely for your convenience, but we are not responsible for the content of any Third-Party websites and do not endorse those websites. If you navigate to a Third-Party website from any of the Remora websites or the Technology, we encourage you to review and become familiar with the Third-Party’s privacy policies and terms.
11.2 Limited Warranty
Remora warrants that it shall perform the Services in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services and in compliance with all applicable laws and shall devote adequate resources to meet its obligations under this Agreement. Remora (a) MAKES NO REPRESENTATIONS OR WARRANTIES EXCEPT FOR THOSE SET OUT ABOVE; AND (b) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES THAT THE TECHNOLOGY OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES OF NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CLIENT ACKNOWLEDGES THERE ARE INHERENT RISKS IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CLIENT PRIVACY AND PROPERTY, INCLUDING CONFIDENTIAL INFORMATION. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES SHALL BE DELIVERED BY REMORA AND ACCEPTED BY CLIENT “AS IS” AND “AS AVAILABLE.” REMORA MAKES NO WARRANTY OF ANY KIND THAT THE REMORA SERVICES OR TECHNOLOGY, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE.
11.3 Available Remedy
Remora’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of the limited warranty is set out in this Section 11.3. If Remora cannot reperform the Services within a reasonable time (no more than 30 days) after Client’s written notice of such breach, Remora in its sole discretion as to amount, shall refund to Client a portion of the Fees previously paid by Client corresponding to the defective Services. Client acknowledges that Remora will not be responsible for Client’s failure to achieve any specific results, productivity, or any other measurable performance. Client acknowledges that Remora shall have no responsibility for any Third-Party disrupting, intruding in part or in whole on all or any part of the Services performed for Client’s website and Remora is not responsible for any lost files or any other loss that may occur in the operation of the Technology implemented under the terms this Agreement.
11.4 Services Disclaimer
Client acknowledges that many of the resources that Remora may employ pursuant to this Agreement are competitive in nature. Client further acknowledges that Remora’s past performance is not indicative of any future results Client may experience. Remora reserves the exclusive right, for the duration of the Term of this Agreement, to approve or disapprove any design or coding strategies, whether requested by Client or anyone presently employed by Client, that are considered by Remora to be detrimental to the Technology and/or the provision of Services by Remora under this Agreement.
11.5 Third-Party Resources Disclaimer
Remora accepts no responsibility for policies of Third-Party search engines, directories, or other web sites (collectively, “Third-Party Resources”) that Remora may submit to with respect to the classification or type of content it accepts, whether now or in the future. Client’s website or content may be excluded or banned from any Third-Party Resource at any time by action of a Third-Party Resource. CLIENT AGREES NOT TO HOLD REMORA RESPONSIBLE FOR ANY ALLEGED DAMAGE TO Client’s business, CLIENT’S WEBSITE, BRAND, DOMAIN, OR CONTENT OR ANY LIABILITY FROM ACTIONS TAKEN BY ANY THIRD-PARTY RESOURCE AS A RESULT OF THE IMPLEMENTATION OF THE SERVICES PERFORMED BY REMORA ACCORDING TO THE TERMS OF THIS AGREEMENT.
11.6 No Advice
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR REMORA ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE REMORA ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. REMORA DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY REMORA TO ITS CLIENT(S) DOES NOT CONSTITUTE LEGAL ADVICE. USE OF THE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.
11.7 Limitations of Liability
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL REMORA OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL REMORA’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CLIENT TO REMORA FOR THE APPLICABLE SERVICE(S) IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, REMORA’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 10 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 10 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY REMORA TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE). EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. FURTHERMORE, THE PARTIES AGREE THAT ANY DAMAGES FROM ANY BREACH BY REMORA WOULD BE DIFFICULT TO DETERMINE AND HAVE FURTHER AGREED THAT THESE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE REASONABLE UNDER THE CIRCUMSTANCES.
12 – INDEMNIFICATION
12.1 Indemnification by Client
Client will indemnify and hold harmless Remora and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the "Remora Entities") from and against any Third-Party claims and related costs, damages, liabilities and expenses arising from or pertaining to: (a) your unauthorized use of, or misuse of, the Services; (b) your violation of any applicable law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (c) any dispute or issue between you and any third party (including your Customers); (d) any demand, dispute or issue between you and your payment processor; (e) any Client Data; (f) Remora’s use, as contemplated in this Agreement, of any information provided to Remora by you or your Customers; (g) breach or alleged breach of this Agreement, including Client’s Warranties and Obligations; (h) any claim of a governmental entity or other party that you have violated any law, rule, or regulation. Client also agrees to defend the Remora Entities against these claims at Remora’s request, but Remora may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. In the event Remora retains counsel to defend against such claims, Client agrees to cooperate with our defense of any such claims and to reimburse Remora for any such expenses incurred, including all attorney’s fees and costs. Client must not settle any claim without Remora’s prior written consent if the settlement does not fully release Remora from liability or would require Remora to admit fault, pay any amounts or take or refrain from taking any action.
12.2 Indemnification by Remora.
Remora will indemnify and hold Client harmless from and against any Third-Party claims, damages, and liabilities arising from or pertaining to (a) Remora’s gross negligence or willful misconduct; or (b) Remora’s infringement, misappropriation, or violation of a Third-Party’s Intellectual Property Rights. Remora also agrees to defend Client against these claims at Client’s request, but Client may participate in any claim through counsel of its own choosing, and at its own cost, and the Parties will reasonably cooperate on any defense. Remora must not settle any claim without Client’s prior written consent if the settlement does not fully release Client from liability or would require Client to admit fault, pay any amounts or take or refrain from taking any action.
13 – DISPUTE RESOLUTION
If a dispute arises between the parties related to this Agreement, the Technology, or the Services provided there from, and the dispute cannot be settled through informal negotiations, the parties agree to resolve their dispute (referred to herein as "Claim(s)") as follows:
13.2 Governing Law and Submission to Jurisdiction
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the state or federal courts in Jacksonville or Duval County, Florida, and each party irrevocably: (a) submits to the exclusive jurisdiction of such courts; and (b) waives any objection to such courts based on venue or inconvenience. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
13.3 Equitable Relief
Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages, or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that maybe available at law, in equity, or otherwise. If any of the provisions of these Terms are held void or unenforceable, such provisions will be limited or eliminated to the minimum extent necessary and replaced with a valid provision that maintains the intent of these Terms so that these Terms shall remain in full force and effect and such holding will not impair the validity, legality, or enforceability of the remaining provisions. Our failure or neglect to enforce any of our rights under these Terms will not be construed as a waiver of that or any other rights we have. These Terms will not be construed to provide any rights or remedies on any third parties. Any disputes or claims under these Terms must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred.
13.4 Individual Basis
YOU AND REMORA EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.
13.5 Waiver of Jury Trial
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN ARBITRATION, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY INRESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. We also both agree that you or Remora may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
14 – Representations and Warranties
14.1 Mutual Representations
Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation; (b) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (c) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will violate or conflict with or result in any breach of or default under any provision of any contract or agreement of any kind to which such party is a party or by which such party is bound or to which any property or asset of such party is subject; and (iv) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
14.2 Client Representations
Client represents to Remora and unconditionally covenants and guarantees that (a) it shall not accept or use the website or services to create a competitive product or permit a Third-Party to use the website to create a competitive product; and/or (b) reproduce, duplicate, copy, sell as a service to third party, or otherwise exploit any portion of the website or service without the express permission by Remora.
14.3 Independent Contractor Status
The parties intend that the relationship between them created under this Agreement is that of an independent contractor only. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other parties. Neither party is to be considered an agent or employee of the other party for any purpose whatsoever. The details of the method and manner for performance of the Services by Remora shall be under its own control, Client being interested only in the results thereof. Remora shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Remora shall be responsible for all state, federal and local taxes, social security, workers’ compensation insurance, disability insurance, and any other similar forms of payment, as well as all employment reporting, for Remora and any of Remora’s employees or agents. The provisions of this Section shall expressly survive the termination or expiration of this Agreement.
15 – GENERAL
15.1 Global Availability
We control the Technology and the Services from the United States. We make no representation that all products and services are available worldwide. We reserve the right to limit, in our sole discretion, the provision and quantity of any product or service to any person or geographic area. If you choose to access the Technology or the Services from outside of the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws. Those who choose to access the Technology from other locations do so at their own initiative and are responsible for compliance with local laws and any costs associated with access or use outside of the Territory. You may not use or export the Services in violation of U.S. export laws and regulations.
Unless expressly and specifically authorized in writing by the other party in advance, each party is prohibited from engaging in any of the following: (a) incurring any debt or obligation on behalf of the other party; (b) entering into any contract, arrangement, or transaction which binds the other party to any extent or creates any obligation on the other party; and/or (c) utilizing the other party’s name, credit, reputation, goodwill, resources, and/or assets for any purpose without the prior and explicit written approval of such party.
15.3 Use of Material for Promotional Purposes
Client grants Remora the right to use the work Remora produces in connection with the performance of the Services for Remora’s own promotional purposes and/or to cross-link it with other advertising developed by Remora. Client further grants Remora the right to use Client’s trade names and trademarks in Remora’s advertising and marketing materials and to list, reference or otherwise identify Client as a Client of Remora in Remora’s advertising and marketing materials.
15.4 Review of this Agreement; Advice of Counsel
Each party hereto confirms that such party has had the opportunity to read, review and consider all of the provisions of this Agreement, and to discuss this Agreement with whomever such party desired, including lawyers of such party’s own choosing, and if such party has not consulted with a lawyer, such party acknowledges having had the opportunity to have done so and that such party chose voluntarily and knowingly not to consult with a lawyer, with respect to this Agreement and all matters related thereto. The parties each confirm that they understand the provisions of this Agreement and its final and binding effect on them and that they are entering into this Agreement freely, voluntarily, and without duress or coercion.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement to affect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth inwriting and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party. Any attempt to transfer or assign this Agreement will be null and void.
15.8 No Third-Party Beneficiaries
No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.9 Force Majeure
In no event shall Remora be liable to Client, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond Remora’s reasonable control, including but not limited to acts of God, natural disaster, flood, fire, earthquake, hurricane, explosion, war, terrorism, invasion, riot or other civil unrest, pandemic, epidemic, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
The headings of the Sections of this Agreement are inserted for reference only and shall not constitute a part hereof or affect in any way the meaning of this Agreement. The headings are not intended as a re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.
15.11 Strict Construction
The language used in this Agreement shall be deemed to be in the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied.
15.12 Legal Fees
In the event of a dispute arising out of this Agreement, each party shall be responsible for all costs and expenses, including reasonable legal fees, incurred by such party.
15.13 Amendment and Modification; Periodic Updates
Remora reserves the right, at its sole discretion, to update, change, or replace any part of this Agreement by posting updates and changes to its website. It is Client’s responsibility to check Remora’s website (https://remora.com) periodically for changes. Client’s continued use of the Technology or access to the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
You agree that Remora may use subcontractors and may permit them to exercise the rights granted to Remora in order to provide the Technology and related Services under this Agreement.
Nothing in this Agreement prevents Remora from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Remora will use commercially reasonable efforts to notify Client where permitted to do so.
15.16 Counterparts; Electronic Transmission
This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. A reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by electronic transmission pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery will be considered valid, binding, and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.
15.17 Notice to California Residents
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
15.18 Sole Remedy
THIS AGREEMENT SETS FORTH CLIENT’S SOLE REMEDIES AND REMORA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY.
15.19 Further Assurances
Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments, and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
15.20 Entire Agreement
This Agreement benefits solely the parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any Third-Party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. This constitutes the sole and entire contract between you and Remora regarding your access to our Technology or use of our Services, and supersedes all prior and contemporaneous contracts, representations, and warranties, both written and oral.