Cloud Services Agreement

This Cloud Services Agreement (“Agreement”) is between ReMatter Inc. (“ReMatter”) and Customer. This Agreement allows Customer to purchase access to certain of ReMatter’s services as specified under one or more Orders. Certain capitalized terms are defined in Exhibit A and others are defined contextually in this Agreement.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, USING (OR MAKING ANY PAYMENT FOR) ANY SERVICES, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU:
(A) AGREE TO THIS AGREEMENT ON BEHALF OF YOURSELF AS AN INDIVIDUAL, UNLESS YOU ARE USING THE SERVICES ON BEHALF OF AN ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY, IN WHICH CASE YOU AGREE TO THIS AGREEMENT ON BEHALF OF SUCH ENTITY FOR WHICH YOU ACT (“CUSTOMER”); AND
(B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY SERVICES.

1. Overview

ReMatter provides Services that Customer may use to help manage Customer’s recycling yard operations.

2. Services

2.1. Ordering Process

Services are purchased as stated in an Order in the manner established for each of the Services. Each Order will include the specific Services ordered by Customer, including, as applicable, the purchased Services, the applicable Facility, and the time period for which such Order applies.

2.2. Permitted Use

During a Subscription Term, subject to Customer’s compliance with the terms of this Agreement, Customer may access and use the Services only for its internal business purposes in accordance with the Documentation, this Agreement, and any limitations set forth in an Order. Subject to the terms and conditions of this Agreement, ReMatter hereby grants to Customer a non-exclusive, royalty-free, fully paid-up, non-sublicensable, non-transferable (except pursuant to Section 20.1 (Assignment)) license, during the Subscription Term, to: make calls to ReMatter’s application programming interfaces (“APIs”) solely as specified in the Documentation and in accordance with this Agreement. ReMatter reserves the right to monitor Customer’s use of the APIs and may restrict Customer’s access to the API or limit the volume of API calls in that Customer may make, including if Customer’s use exceeds ReMatter’s API call limits or has a negative impact on performance of the Services. ReMatter may, but has no obligation to, update, upgrade, or otherwise modify its APIs and features or functionality thereof. For avoidance of doubt, Customer’s right to use the APIs is subject to Section 2.6 (Restrictions).

2.3. Remote App

During the Subscription Term, subject to Customer’s compliance with the terms of this Agreement, the Documentation, and any limitations set forth in an Order, ReMatter grants Customer a limited, non-transferable, revocable, non-exclusive, non-sublicensable right and license for each User to: (a) download any Remote App onto a Supported Device; and (b) use the Remote App for the sole purpose of accessing and using the applicable Service. Users are responsible for installing all Updates that ReMatter makes available to the Remote App. Failure to install all Updates to the Remote App will void the Performance Warranty.

2.4. Users

Only Users, using the mechanisms designated by ReMatter (including, if applicable, API access keys) (“Log-in Credentials”), may access and use the Services. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by ReMatter’s breach of this Agreement). Customer will promptly notify ReMatter if it becomes aware of any compromise of any Log-in Credentials. ReMatter may Process Log-in Credentials in connection with ReMatter’s provision of the Services or for ReMatter’s internal business purposes.

2.5. Professional Services

Subject to Customer’s timely payment of all applicable Fees, ReMatter will use commercially reasonable efforts to provide to Customer the Professional Services, if any, set forth in each Order. Customer will own and retain, and ReMatter hereby assigns and agrees to assign, all right, title and interest, including all intellectual property and proprietary rights and moral rights, in and to the Deliverables created for the Customer under this Agreement; provided that such assignment excludes any and all rights, title and interest, including all intellectual property rights, in and to all ReMatter Technology, and nothing in this Agreement will preclude or restrict ReMatter from using or exploiting any concepts, ideas, techniques or know-how of or related to the ReMatter Technology, or otherwise arising in connection with ReMatter’s provision of the Services. If in the course of performing the Professional Services, ReMatter incorporates into any Deliverable any ReMatter Technology, ReMatter grants to Customer a nonexclusive, royalty free, perpetual, irrevocable, worldwide license to reproduce, manufacture, modify, distribute, use, import, and otherwise exploit the ReMatter Technology solely as part of or in connection with the Deliverable. Nothing in this Agreement or any Order or attachment to this Agreement will be understood to prevent ReMatter from developing similar work product or deliverables for other customers.

2.6. Restrictions

Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense a Service to a third party (other than Users); (b) use a Service on behalf of, or to provide any product or service to, third parties; (c) use a Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to a Service, except to the extent expressly permitted by Law (and then only with prior notice to ReMatter); (e) modify or create derivative works of a Service or copy any element of a Service (other than authorized copies of the Remote App); (f) remove or obscure any proprietary notices in a Service; (g) publish benchmarks or performance information about a Service; (h) interfere with the operation of a Service, circumvent any access restrictions, or conduct any security or vulnerability test of a Service; (i) transmit any viruses or other harmful materials to a Service; (j) take any action that risks harm to others or to the security, availability, or integrity of a Service; or (k) access or use a Service in a manner that violates any Law. Additionally, Customer must not use a Service with Prohibited Data or for High Risk Activities. Customer acknowledges that the Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that ReMatter is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, ReMatter has no liability for Prohibited Data or use of a Service for High Risk Activities.

3. SLA and Support

During a Subscription Term, ReMatter will use commercially reasonable efforts to provide the applicable Services in accordance with the SLA and the Support Policy.

4. Upgrades

Unless stated otherwise in an Order, ReMatter will make Updates to Services as ReMatter makes them available to its customers of the applicable Services generally. Customer’s purchase of access to Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by ReMatter regarding future functionality or features of the Services. From time to time, ReMatter, in its sole discretion, may make available Upgrades under additional or different terms. Nothing in this Agreement obligates ReMatter to make Upgrades available to Customer as part of the Services or otherwise unless specifically included in an Order.

5. Data

5.1. Use of Customer Data

Customer grants ReMatter the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, and create derivative works from Customer Data only as necessary to:
(a) provide any Services and Support and Technical Services;
(b) derive or generate Usage Data;
(c) create and compile Aggregated Data; and
(d) as otherwise required by Laws or as agreed to in writing between the parties.

5.2. Data Protection Laws

Customer will not use the Services with any Customer Data that is subject to Data Protection Laws without first entering into a data processing addendum with ReMatter concerning the Processing of such Customer Data in accordance with such Data Protection Laws.

5.3. Privacy Policy

To the extent Personal Data as defined in ReMatter’s privacy policy at https://rematter.com/privacy (or such other URL or location as may be specified by ReMatter from time to time) (“Privacy Policy”) is uploaded, transmitted, submitted, provided, or processed in connection with Customer’s use of the Services, ReMatter will comply with the Privacy Policy.

5.4. Usage Data; Aggregated Data

ReMatter may Process Usage Data and Aggregated Data for internal business purposes, such as to:
(a) track use of Services for billing purposes;
(b) provide support for Services;
(c) monitor the performance and stability of the Services;
(d) prevent or address technical issues with the Services;
(e) improve Services, its other products and services, and develop new products and services; and
(f) for all other lawful business practices, such as analytics, benchmarking, and reports.

Customer will not interfere with the collection of Usage Data.

6. Customer Obligations

Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws and this Agreement when using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for ReMatter to Process Customer Data set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.

7. Suspension of Service

ReMatter may immediately suspend Customer’s access to any or all of the Services if:
(a) Customer breaches Section 2.6 (Restrictions) or Section 6 (Customer Obligations);
(b) any payments required under this Agreement are overdue by 30 days or more;
(c) changes to Laws or new Laws require that ReMatter suspend a Service or otherwise may impose additional liability on the part of ReMatter; or
(d) Customer’s actions risk harm to any of ReMatter’s other customers or the security, availability, or integrity of a Service.

Where practicable, ReMatter will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, ReMatter will restore Customer’s access to the Service(s).

8. Customer Systems

Customer will provide and maintain all Customer Systems, and ReMatter will not have any liability for any claims related to such Customer Systems.

9. Third-Party Platforms

Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. ReMatter does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Services, Customer authorizes ReMatter to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.

10. Technical Services

Customer will give ReMatter timely access to Customer Materials reasonably needed for the Technical Services, and if Customer fails to do so, ReMatter’s obligation to provide Technical Services will be excused until access is provided. ReMatter will use Customer Materials only for purposes of providing Technical Services. Customer may use Technical Services deliverables only as part of its authorized use of the Services and, subject to the same terms as for the Services in Section 2 (Services) and Section 6 (Customer Obligations).

11. Commercial Terms

11.1. Subscription Term

Except as set forth in an Order, each Subscription Term will automatically renew for successive 12-month periods unless either party gives the other party notice of non-renewal at least 30 days before the current Subscription Term ends.

11.2. Fees and Taxes

Fees for the Services and Professional Services (as applicable) are described in each Order (“Fees”). Customer will reimburse ReMatter for reasonable travel and lodging expenses it incurs in providing Technical Services (“Expenses”). All Fees and Expenses will be paid in US dollars unless otherwise provided in an Order. Fees and Expenses are invoiced annually upfront at the start of the Subscription Term unless otherwise described on the schedule in the Order. Unless the Order provides otherwise, all Fees and Expenses are due within 10 days of the invoice date. Fees for renewal Subscription Terms are at ReMatter’s then-current rates, regardless of any discounted pricing in a prior Order.

Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees and Expenses are non-refundable except as may be set out in Section 12.3 (Warranty Remedy) and Section 16.4 (Mitigation).

For the avoidance of doubt, if Customer terminates this Agreement or otherwise cancels an Order, Customer is responsible for the entire amount owed during the applicable Subscription Term, even if following such termination or cancellation Customer will not be accessing or using the Service in the remaining months of the Subscription Term.

11.3. Payment Processing

ReMatter may contract with a third party to process any payments submitted for or through the Service (“Payment Processor”). By making any purchase for or through the Service, Customer authorizes ReMatter to share any of its information with the Payment Processor in order to process Customer’s payment.

ReMatter may use Stripe as its Payment Processor (https://stripe.com). In that case, Stripe will collect, use, and process Customer’s information, including payment information, in accordance with Stripe’s privacy policy (which may be accessed at https://stripe.com/privacy), and Stripe’s terms of service (which may be accessed at https://stripe.com/legal/consumer).

12. Warranties and Disclaimers

12.1. Mutual Warranties

Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth on the Order has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

12.2. ReMatter’s Limited Warranties

ReMatter warrants to Customer that:
(a) each of the Services will perform materially as described in its Documentation and ReMatter will not materially decrease the overall functionality of the Service (“Performance Warranty”) during a Subscription Term (“Performance Warranty Period”); and
(b) ReMatter will perform any Technical Services in a professional and workmanlike manner (“Technical Services Warranty”) during the period in which the Technical Services are performed (“Technical Services Warranty Period”).

The Performance Warranty and Technical Services Warranty are each referred to as a “Limited Warranty” and collectively as the “Limited Warranties.” The Performance Warranty Period and Technical Services Warranty Period are each referred to as a “Warranty Period.”

12.3. Warranty Remedy

If ReMatter breaches a Limited Warranty during the applicable Warranty Period and Customer makes a reasonably detailed warranty claim in the manner required by ReMatter within 30 days of discovering a breach of the Performance Warranty for the applicable Service(s) or of receipt of Technical Services, then ReMatter will use reasonable efforts to correct the non-conformity.

If ReMatter cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the affected Order as it relates to the non-conforming Service or Technical Services. ReMatter will then refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Subscription Term (for the Performance Warranty) or for the non-conforming Technical Services (for the Technical Services Warranty).

This Section sets forth Customer’s exclusive remedy and ReMatter’s entire liability for breach of the Limited Warranties. These warranties do not apply to:
(a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service;
(b) issues in or caused by Third-Party Platforms or other third-party systems;
(c) use of the applicable Service other than according to the Documentation; or
(d) Trials and Betas or other free or evaluation use.

12.4. Disclaimers

Except as expressly provided in Section 12.2 (ReMatter’s Limited Warranties), the Services, Support, Technical Services, and all other ReMatter services are provided “AS IS.” ReMatter, on its own behalf and on behalf of its suppliers and licensors, makes no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement.

ReMatter does not warrant that Customer’s use of the Services will be uninterrupted or error-free, that ReMatter will review Customer Data for accuracy, or that it will maintain Customer Data without loss. ReMatter is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside ReMatter’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.

13. Term and Termination

13.1. Term

The term of this Agreement (the “Term”) starts when Customer accepts this Agreement and continues until expiration or termination of all Subscription Terms.

13.2. Termination

Either party may terminate this Agreement (including any or all Orders) upon written notice to the other party if the non-terminating party:
(a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after receiving notice thereof from the terminating party;
(b) ceases operation without a successor; or
(c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

13.3. Effect of Termination

Upon the effective date of expiration or termination of this Agreement for any reason:
(a) all outstanding Orders and access to the Services will automatically terminate, including any licenses and other rights granted to any of ReMatter’s APIs (and, if applicable, Customer must uninstall the APIs);
(b) all outstanding payment obligations of Customer will become due and payable immediately.

Upon expiration or termination of an Order, Customer’s access to and ReMatter’s obligations to provide the Services, Support, and Technical Services described in the Order and any Software will cease. During a Subscription Term and for the 30-day period immediately following the date of expiration or earlier termination of the applicable Subscription Term, Customer may export data or information that Customer (including its Users) submits to the Services, including from Third-Party Platforms, from the applicable Service using the export features described in the applicable Documentation.

After that 30-day period, ReMatter will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.

13.4. Survival

The following Sections survive expiration or termination of this Agreement:

• 2.6 (Restrictions)
• 5.4 (Usage Data; Aggregated Data)
• 6 (Customer Obligations)
• 11.2 (Fees and Taxes)
• 12.4 (Disclaimers)
• 13.3 (Effect of Termination)
• 13.4 (Survival)
• 14 (Ownership)
• 15 (Limitations of Liability)
• 16 (Indemnification)
• 17 (Confidentiality)
• 20 (General Terms)
• Exhibit A (Definitions)

Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

14. Ownership

Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties:

• Customer retains all intellectual property rights and other rights in Customer Data and Customer Materials provided to ReMatter.
• Except for Customer’s use rights in this Agreement, ReMatter and its licensors retain all intellectual property rights and other rights in the Services (including all APIs), any Technical Services deliverables, Software, Documentation, Usage Data, ReMatter Technology, and ReMatter templates, formats, and dashboards, including any modifications or improvements to these items made by ReMatter.

If Customer or its Users provides ReMatter with feedback or suggestions regarding the Services or other ReMatter offerings, ReMatter may use the feedback or suggestions without restriction or obligation.

15. Limitations of Liability

15.1. Consequential Damages Waiver

Except for Excluded Claims, neither party (nor its suppliers or licensors) will have any liability arising out of or related to this Agreement for any:

• Loss of use
• Lost data
• Lost profits
• Failure of security mechanisms
• Interruption of business, or
• Any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.

15.2. Liability Cap

Except for Excluded Claims, each party’s (and its suppliers’ and licensors’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to ReMatter pursuant to this Agreement during the 3 months prior to the date on which the applicable claim giving rise to the liability arose.

15.3. Excluded Claims

“Excluded Claims” means:
(a) Claims for unpaid Fees to ReMatter under this Agreement;
(b) Customer’s breach of Sections 2.6 (Restrictions) or 6 (Customer Obligations);
(c) Either party’s breach of Section 17 (Confidentiality) (but excluding claims relating to Customer Data); or
(d) Amounts payable to third parties under the indemnifying party’s obligations in Section 16 (Indemnification).

15.4. Nature of Claims and Failure of Essential Purpose

The waivers and limitations in this Section 15 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

16. Indemnification

16.1. Indemnification by ReMatter

ReMatter will defend Customer from and against any third-party claim to the extent alleging that a Service as operated by ReMatter, when used by Customer as permitted under the applicable Order, infringes or misappropriates a third party’s U.S. patent, copyright, trademark, or trade secret. ReMatter will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by ReMatter resulting from the claim.

16.2. Indemnification by Customer

Customer will defend ReMatter from and against any third-party claim to the extent resulting from:

• Customer Data
• Customer Materials, or
• Customer’s breach or alleged breach of Section 6 (Customer Obligations)

Customer will indemnify and hold harmless ReMatter against any damages and costs awarded against ReMatter (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.

16.3. Procedures

The indemnifying party’s obligations in this Section 16 are subject to it receiving:
(a) Prompt written notice of the claim;
(b) The exclusive right to control and direct the investigation, defense, and settlement of the claim; and
(c) All reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs.

The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services, when ReMatter is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

16.4. Mitigation

In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as ReMatter determines necessary to avoid material liability, ReMatter may at its option:
(a) Procure rights for Customer’s continued use of the applicable Service;
(b) Replace or modify the allegedly infringing portion of the applicable Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or
(c) Terminate the affected Order and refund to Customer any pre-paid, unused Fees for the terminated portion of the Subscription Term.

16.5. Exceptions

ReMatter’s obligations in this Section 16 do not apply to:
(a) Infringement or misappropriation resulting from Customer’s modification of Services or use of Services in combination with items not provided by ReMatter (including Third-Party Platforms);
(b) Infringement resulting from Software other than the most recent release;
(c) Unauthorized use of Services;
(d) If Customer settles or makes any admissions about a claim without ReMatter’s prior consent; or
(e) Trials and Betas or other free or evaluation use.

16.6. Exclusive Remedy

This Section 16 sets out Customer’s exclusive remedy and ReMatter’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.

17. Confidentiality

17.1. Definition

“Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is designated by the disclosing party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. ReMatter’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Services. Customer’s Confidential Information includes Customer Data.

17.2. Obligations

As Recipient, each party will:
(a) Hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 5.1 (Use of Customer Data); and
(b) Only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement.

Upon termination or expiration of this Agreement or at Discloser’s request, Recipient will delete all Confidential Information, except, in the case where ReMatter is the Recipient, ReMatter may retain the Customer’s Confidential Information to the extent required to continue to provide the Services.

Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for ReMatter, the subcontractors referenced in Section 20.9) (collectively, “Representatives”), provided Recipient remains responsible for its respective compliance with this Section 17 and such Representatives are bound to confidentiality obligations no less protective than this Section 17.

17.3. Exclusions

These confidentiality obligations do not apply to information that Recipient can document:
(a) Is or becomes public knowledge through no fault of the receiving party;
(b) It rightfully knew or possessed prior to receipt under this Agreement;
(c) It rightfully received from a third party without breach of confidentiality obligations; or
(d) It independently developed without using Confidential Information.

17.4. Remedies

Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 17.

17.5. Required Disclosures

Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

18. Trials and Betas

If Customer receives access to Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), then, unless otherwise set forth in the applicable Order, use is permitted only for the limited number of Users ReMatter specifies to Customer, and only for Customer’s internal evaluation during the period designated by ReMatter (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that ReMatter may never release, and their features and performance information are ReMatter’s Confidential Information.

Notwithstanding anything else in this Agreement, ReMatter provides no warranty, indemnity, SLA, or support for Trials and Betas, and its liability for Trials and Betas will not exceed USD $50.

19. Publicity

Neither party may publicly announce that the parties have entered into this Agreement, except with the other party’s prior consent or as required by Laws. However, ReMatter may include Customer and its trademarks in ReMatter’s customer lists and promotional materials but will cease further use at Customer’s written request.

20. General Terms

20.1. Assignment

Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement to an affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

20.2. Governing Law, Jurisdiction and Venue

This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Santa Clara County, California, and both parties submit to the personal jurisdiction of those courts.

20.3. Attorneys’ Fees and Costs

The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

20.4. Notices

Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to, for the Customer, the address associated with Customer’s account, and for ReMatter, to 2042 Armacost Ave, Los Angeles, CA 90025. Notice will be deemed given:
(a) upon receipt if by personal delivery;
(b) upon receipt if by certified or registered U.S. mail (return receipt requested); or
(c) one day after dispatch if by a commercial overnight delivery service.

Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either party may update its address with notice to the other party. ReMatter may also send operational notices to Customer by email or through the Services.

20.5. Entire Agreement

This Agreement (which includes all Orders, exhibits, and the Policies) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

20.6. Amendments

Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by ReMatter. Nonetheless, with notice to Customer, ReMatter may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease ReMatter’s overall obligations during a Subscription Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by ReMatter; any of these Customer documents are for administrative purposes only and have no legal effect.

20.7. Waivers and Severability

Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

20.8. Force Majeure

Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster (“Force Majeure Events”).

20.9. Subcontractors

ReMatter may use subcontractors and permit them to exercise ReMatter’s rights, but ReMatter remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

20.10. Independent Contractors

The parties are independent contractors, not agents, partners, or joint venturers.

20.11. Export

Customer will comply with all relevant U.S. and foreign export and import Laws in using any Service. Customer:
(a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country;
(b) agrees not to access or use Services in violation of any U.S. export embargo, prohibition, or restriction; and
(c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.

20.12. Open Source

The Software may incorporate third-party open source software (“OSS”), as listed in the Documentation or otherwise disclosed by ReMatter in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.

20.13. Government End-Users

Elements of the Services are commercial computer software. If the User or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.

20.14. Notice Regarding Apple

This Section 20.14 only applies to the extent Customer uses ReMatter’s Remote App on an iOS device. Customer acknowledges that this Agreement is between Customer and ReMatter only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, Customer may notify Apple, and Apple will refund any applicable purchase price for the mobile application to Customer. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by Customer or any third party relating to the Service or Customer’s possession or use of the Service, including:
(a) product liability claims;
(b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or
(c) claims arising under consumer protection or similar legislation.

Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service, or Customer’s possession and use of the Service, infringe a third party’s intellectual property rights. Customer agrees to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of this Section 20.14, and upon Customer’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section against Customer as a third-party beneficiary. Customer hereby represents and warrants that Customer is not:
(i) located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and
(ii) listed on any U.S. Government list of prohibited or restricted parties.

20.15. Conflicts in Interpretation

If there are inconsistencies or conflicts between the terms of the body of this Agreement and the terms of any exhibits, attachments, addenda, Policies, and other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows:
(a) the terms contained in an Order;
(b) the terms contained in the body of this Agreement;
(c) the terms of the exhibits, attachments, addenda, and Policies to this Agreement; and
(d) the Documentation.

Exhibit A: Definitions

1.1 Aggregated Data

Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.

1.2 Confidential Information

As defined in Section 17.1.

1.3 Customer Data

Any data or information that:
(a) Customer (including its Users) submits to the Services, including from Third-Party Platforms; or
(b) Is Processed by ReMatter to provide the Services to Customer.

1.4 Customer Materials

Materials, systems, and other resources that Customer provides to ReMatter in connection with Technical Services.

1.5 Customer Systems

Customer’s hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Services, including Supported Devices.

1.6 Data Protection Laws

Includes the California Consumer Privacy Act of 2018 (CCPA), the General Data Protection Regulation (GDPR), and similar laws.

1.7 Deliverables

Works of authorship, inventions, designs, technology, and information conceived or made by ReMatter in the course of providing Professional Services, excluding ReMatter Technology.

1.8 Discloser

As defined in Section 17.1.

1.9 Documentation

The usage guidelines and technical documentation for the Services provided by ReMatter.

1.10 Excluded Claims

As defined in Section 15.3.

1.11 Expenses

As defined in Section 11.2.

1.12 Facility

The recycling facility specified in the applicable Order.

1.13 Fees

The fees described in Section 11.2.

1.14 Force Majeure Events

As defined in Section 20.8.

1.15 High Risk Activities

Activities where failure of a Service could lead to death, injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.

1.16 Laws

Relevant laws and regulations, including those related to data privacy, export control, and international communication.

1.17 Log-in Credentials

As defined in Section 2.4.

1.18 Order

An order form that describes the Services being purchased by Customer, referencing this Agreement.

1.19 OSS

As defined in Section 20.12.

1.20 Performance Warranty

As defined in Section 12.2(a).

1.21 Performance Warranty Period

As defined in Section 12.2(a).

1.22 Policies

The SLA and Support Policy.

1.23 Process

To collect, access, use, disclose, transfer, or otherwise process data.

1.24 Professional Services

Services specified in an Order, excluding Support.

1.25 Prohibited Data

Sensitive data such as protected health information (HIPAA), payment card information (PCI DSS), or personal data subject to other specific laws.

1.26 Recipient

As defined in Section 17.1.

1.27 ReMatter Technology

Any proprietary technology or intellectual property owned by ReMatter.

1.28 Remote App

ReMatter’s proprietary software used for accessing and using Services.

1.29 Service

The proprietary software-as-a-service platform offered by ReMatter, as specified in the applicable Order.

1.30 SLA

The Service Level Agreement for the Services.

1.31 Software

Any software or code required for the operation of the Services, including the Remote App.

1.32 Subscription Term

The period during which Customer’s subscription to the Services is effective, as identified in the applicable Order.

1.33 Support

The support provided for the Services under the Support Policy.

1.34 Support Policy

Support ReMatter provides for the Services during conventionally standard United States business hours.

1.35 Supported Device

A hardware device on which the Remote App can be installed and used.

1.36 Taxes

As defined in Section 11.2.

1.37 Technical Services

As defined in Section 20.14.

1.38 Technical Services Warranty

As defined in Section 12.2(b).

1.39 Technical Services Warranty Period

As defined in Section 12.2(b).

1.40 Term

As defined in Section 13.1.

1.41 Third-Party Platform

Any third-party platform, add-on, service, or product not provided by ReMatter that Customer elects to integrate or enable for use with any Service.

1.42 Trials and Betas

As defined in Section 18.

1.43 Updates

Modifications, bug fixes, or changes to the Services or Documentation provided by ReMatter without additional charge.

1.44 Upgrades

Enhancements, new features, or functionality of the Services made available for an additional fee.

1.45 Usage Data

Information generated from the use of the Services that does not identify individual Users or Customer, such as technical logs and aggregated analytics.

1.46 User

Any employee or contractor of Customer authorized to use the Services.

Exhibit B: Service Level Agreement

The terms of this Service Level Agreement (SLA) apply to the Services described in Orders.

A. Additional Defined Terms

• Emergency Maintenance: Critical changes to a Service that cannot wait for Scheduled Maintenance, such as security issues or technical problems that could affect service availability.
• Scheduled Maintenance: Regular maintenance to fix non-critical errors and implement updates to the Service.
• Uptime: The time a Service is available during each calendar month.

B. Target Uptime

ReMatter will use commercially reasonable efforts to meet or exceed an uptime of 99%.

C. Exclusions

Uptime calculations will exclude unavailability due to:

• Customer’s unauthorized use of a Service
• General internet problems
• Force Majeure Events or other factors outside ReMatter’s control
• Customer software, equipment, or infrastructure
• Third-Party Platforms or third-party systems or actions
• Scheduled and Emergency Maintenance
• Disabling or suspension of Service due to Customer’s breach