Last updated 09/15/2025

This Terms of Service and Software as a Service Agreement (the “Agreement“), last updated and effective as of July 1st, 2025 (the “Effective Date“), is by and between Nimbus808, LLC., a Limited Liability Corporation (LLC) with offices located at 808 134th St SW Suite 120, Everett, WA USA 98204 (“Provider“), and you the “User”, a Nimbus808 “Customer“.

WHEREAS, Customer desires to access Provider’s software-as-a-service (“SaaS) and Provider wishes to provide such SaaS to Customer, each on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. DEFINITIONS

“Affiliate” means any Person that directly or indirectly controls, is controlled by, or is under common control with the subject Person. “Control” means the ownership of at least fifty percent (50%) of the voting securities or other ownership interests of an entity, or the power to direct or cause the direction of the management and policies of the entity, whether through ownership, contract, or otherwise.

“Authorized Users” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer and subject to the restrictions set forth in this Agreement; and for whom access to the Services has been purchased hereunder.

“Claim” means any demand, cause of action, claim, legal action, arbitration, lawsuits, notice of violation, assertion, dispute, allegation, legal proceeding, request for relief, whether formal or informal, arising from law, contract, equity or otherwise. liability recognized under applicable law. Claims may be asserted through litigation, arbitration, administrative proceedings, or other dispute resolution mechanisms.

“Customer Data” means information, data, materials and other content, in any form or medium, that is accessed, collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services and any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including any specifications or directions provided by or on behalf of Customer or any Authorized User. For the avoidance of doubt, Customer Data does not include Output Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.

“Customer Systems” means the Customer’s information technology environment, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether owned or third party services operated or controlled by the Customer.

“Documentation” means any written, electronic or digital manuals, instructions, or other documents or materials the Provider provides or makes available to Customer that describe the functionality, components, features, or requirements or usage of the Services or Provider Materials, including any FAQs, aspect of the installation, configuration, integration, operation, support, or maintenance thereof.

“Intellectual Property Rights” means any and all patent, copyright, trademark, trade secret, moral rights, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world, whether registered or unregistered, granted, applied for, or otherwise now or hereafter in existence.

“Law” means any applicable statute, regulation, ordinance, rule, law, order, constitution, code, treaty, decree or judgment, or other legal requirement or legislative measure enacted by  any governmental authority, including local, state, federal, or international laws, as well as any judicial or administrative interpretations or decisions that govern the rights and obligations of the parties under this Agreement.

“Malicious Code” means any software, script, program, hardware, or other technology, device, or means, including any virus, worm, Trojan horse, logic bomb, ransomware, spyware, adware, keyloggers, malware, or other harmful code ore mechanisms, designed to permit unauthorized access to or prevent any Authorized User’s access to, or to exploit, destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) data, computer, software, firmware, hardware, system, or network; or (b) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby;. Malicious Code excludes any Provider Disabling Device.

“Output Data” means data and information that is generated, derived, or produced as a result of Processing of data related to Customer’s use of the Services excluding Personal Data. Provider may use or reproduce Output Data in any way, in its sole discretion, including aggregated with data from other customers to compile statistical and performance information related to the provision and operation of the Services for any purpose, including to improve products and the efficiency of services, develop new features, make business decisions, or enhance client deliverables, performance tracking, quality assurance and contract compliance.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental agency, unincorporated organization, trust, association, or other entity recognized by law as having the capacity to assume obligations and exercise legal rights.

“Personal Data” means any information that identifies or is capable of identifying a natural person, directly or indirectly, such as name, identification number, location data, online identifiers, or other characteristics specific to the individual’s physical, mental, economic, cultural, or social identity that Customer provides to Provider or that Provider creates for obtains on behalf of Customer under this Agreement. For purposes of this Agreement, Customer’s business contact information is not by itself Personal Data.

“Process” means the access, collection, storage, organization, retrieval, use, alteration, disclosure, transmission, archiving, deletion or other action or operation or set of operations.

“Provider Disabling Device” means any technical mechanism or action initiated by Provider or its designee to temporarily or permanently restrict, suspend, or deactivate any Authorized User’s access to or functionality of the Services.

“Provider Materials” means any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems, including Services, any Specifications, Documentation, Provider Systems, Output Data and Output and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

“Provider Systems” means the information technology environment used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether owned or third party services operated or controlled by the Customer.. 

“Sensitive Personal Data” means Personal Data that must be treated with heighted security under any Law, including racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic or biometric data, health and health insurance information, sexual orientation, or criminal convictions, government-issued identification number, including Social Security number, driver’s license number, or state-issued identification number financial account number, credit report information, or credit, debit, or other payment cardholder information, personal identification number, or password that permits access to the individual’s financial account;

“Services” means the SaaS product described in Exhibit A.

“Third-Party Materials” means content, software, tools, technology, materials, information, or intellectual property images, audio, video, or any other form or medium, including any open-source or other software, documents, datasets, content, specifications, products, equipment, or components of or relating to the Services provider by third party vendors.

2. SERVICES

2.1 Services Subscription Rights. Provider hereby grants Customer a limited non-exclusive, non-transferable (except in compliance with Section 14.8) right to access and use the Services, subject to and conditioned on Customer’s and its Authorized Users’ compliance with the payment and other terms and conditions of this Agreement, solely during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. The total number of Authorized Users will not exceed the number set forth in the Customer’s selected plan, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.

2.2 Documentation License. Provider hereby grants to Customer a limited non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14.8) license to use the Documentation solely during the Term solely for Customer’s internal business purposes in connection with its use of the Services and in accordance with the terms of this Agreement. The Provider shall not reproduce, distribute, sublicense, modify, or create derivative works of the Documentation, except as expressly authorized in writing by the Provider. All rights not expressly granted to the Customer under this license are reserved by the Provider.

2.3 Materials and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

  • (a) Customer solely controls the operation, management and maintenance of, and access to and use of, the Customer Systems, and is solely responsible for all access to and use of the Provider Materials by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) results obtained from any use of the Services or Provider Materials; and (ii) conclusions, decisions, or actions based on such use; and
  • (b) Provider solely controls the operation, provision, management and maintenance of the Provider Materials.

2.4 Provider IP Rights.  Provider shall own all right, title, and interest in and to the Services and the Provider Materials.  Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. The right, title and interest in and to Third-Party Materials shall be owned by the respective rights holder.

2.5 Customer Owner. Customer shall appoint and maintain within its organization an “Owner” to serve as such party’s primary point of contact for communications with Provider.  The Owner shall be responsible for providing all consents and approvals on behalf of Customer and shall have decision-making authority regarding matters relating to this Agreement. Customer shall use commercially reasonable efforts to maintain the same Owner throughout the Term. If Customer’s Owner ceases to be employed by Customer or Customer otherwise wishes to replace its Owner, Customer shall provide written notice to Provider and promptly designate a new Owner.

2.6 Changes. Provider reserves the right to revise or update the Services and Provider Materials that it deems necessary or useful, in its sole discretion, to: (a) maintain or improve: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; (b) to comply with applicable Law; or (c) address any issues. The Provider will make reasonable efforts to notify the Customer of any material revisions or updates, including changes to pricing, functionality, or availability of features.  Without limiting the foregoing, either party must request any other revision to the Services, including scope, Specifications, requirements, software or hardware environment revisions or any other aspect of Customer’s order under Exhibit A or an order document, to the other party in writing. Provider shall not be obligated to perform tasks related to revisions until Customer and Provider agree in writing to the proposed revision in an amendment to the applicable order document and/or Exhibit A, including, at a minimum a description of the scope of the Services or terms and conditions to be added or revised, and the adjustment of the Fees or additional fees to be paid Provider for any additional Services. In the event Provider performs the Services added or revisions as requested by Customer without any prior written mutual agreement, Customer shall pay Provider for such Services so added or revised.  

2.7 Subcontractors. Provider may engage third parties to perform Services in its discretion (each, a “Subcontractor“).

2.8 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Provider Materials, without any obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its discretion, that: (i) issues, threats, or vulnerabilities could potentially compromise the confidentiality, integrity, or availability of systems, data, or services; (ii) Customer or any Authorized User has failed to pay Fees when due or to comply with any other term of this Agreement, (iii) Customer has accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of any Specifications; (iv) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (v) this Agreement expires or is terminated. This Section 2.8 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement. Provider will provide reasonable notice to the Customer prior to using the disabling device, unless immediate action is necessary to protect the service, data, or security of the system or to comply with Law. Access will be restored once the issue leading to the disabling is resolved.

3. SERVICE USAGE AND RESTRICTIONS. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

3.1 copy, modify, or create derivative works or improvements of the Services or Provider Materials;

3.2  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;

3.3 engage in any conduct that restricts or inhibits anyone’s use or enjoyment of the Service or Provider’s Materials;

3.4 input, upload, transmit, introduce or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Malicious Code;

3.5 reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part or to attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services.

3.6 delete, alter, remove, or obscure any copyright, trademark, patent or other Intellectual property or proprietary rights notices, Specifications, Documentation, disclaimers, or warranties from any Services or Provider Materials, including any copy thereof;

3.7 bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User;

3.8 overburden, damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider’s provision of services to any third party, in whole or in part;

3.9 access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law (including, any laws regarding the export of data or software to and from the US or other countries);

3.10 access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is, as determined by Provider, adverse to the Provider’s business or may expose Provider to liability; or

3.11 otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under this Section 3.

4. CUSTOMER OBLIGATIONS

4.1 Customer Systems and Cooperation.

Customer shall at all times during the Term: ensure that the Customer Systems used to access or utilize the Services meet any minimum requirements necessary for the proper use of the Provider’s services in accordance with the Documentation and any Specifications, and that such systems are properly configured, in good repair, secure, and compatible with the Provider’s services. Provider is not responsible for any performance issues, security vulnerabilities, or service disruptions caused by deficiencies in the Customer Systems.

Customer shall provide Provider with access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Accessible Requirements and any Specifications, and shall cooperate with Provider as reasonably necessary to enable the delivery, maintenance, and support of the Services, including providing timely access to information, personnel, and systems as required for troubleshooting, integration, or compliance purposes.

4.2 Customer Failure or Delay.

Provider shall not be responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, failure to cooperate, or failure to perform any of its obligations under this Agreement (each, a “Customer Fault”).

4.3 Notice of Prohibited Activity.

If Customer becomes aware of any actual or suspected activity prohibited by Section 3 or by this Section 4, Customer shall, and shall cause its Authorized Users to, immediately:

  • (a) notify Provider of such actual or threatened activity in writing, including a detailed description of the issue, relevant facts, affected systems, and actions taken by Customer to mitigate risks; and
  • (b) take all reasonable measures within their control that are necessary to stop or prevent such activity and to mitigate its effects, including disabling access to affected users, discontinuing unauthorized use of the Services, and permanently deleting or erasing any data or content involved in such unauthorized activity.

4.4 Content Restrictions.

Customer and its Authorized Users shall not upload, store, transmit, or otherwise make available through the Services any content, including but not limited to images, text, videos, or data, that:

  • (i) is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, pornographic, invasive of another’s privacy, hateful, or otherwise objectionable;
  • (ii) infringes, misappropriates, or otherwise violates the intellectual property rights, privacy rights, or other rights of any third party;
  • (iii) violates any applicable law, regulation, or third-party agreement, including without limitation those related to intellectual property, privacy, child protection, or content moderation;
  • (iv) contains any viruses, malware, or other harmful code; or
  • (v) otherwise violates this Agreement or any Acceptable Use Policy (if applicable).

4.5 Provider Rights Regarding Content.

Provider reserves the right, but not the obligation, to review, monitor, moderate, or remove any Customer Data or content uploaded or stored using the Services if, in Provider’s sole discretion, such content:

  • (i) violates this Agreement or any Provider policy;
  • (ii) is subject to a complaint or takedown request by a third party;
  • (iii) poses a legal, reputational, or operational risk to Provider; or
  • (iv) is otherwise objectionable or unlawful.

4.6 Compliance with Law.

Customer shall comply with all applicable laws and regulations in connection with its use of the Services and Provider Materials, including but not limited to laws governing intellectual property, data protection, privacy, content regulation, and export control.

5. SERVICE LEVELS AND CREDITS

5.1 Scheduled Maintenance. Provider will use commercially reasonable efforts to (a) schedule downtime for routine maintenance of the Services between the hours of 9 p.m. and 4 a.m., Pacific Time; and (b) give Customer at least 72 hours prior notice of all scheduled outages of the Services (“Scheduled Maintenance“).

5.2 Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Services Available at least Ninety-Nine percent (99%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Month“), excluding unavailability as a result of any of the Excusable Downtime described below in this Section 5.1 (the “Accessible Requirement“). “Service Level Failure” means a material failure of the Services to meet the Accessible Requirement. The state in which the services are accessible and operational for use by the Customer, excluding periods of scheduled maintenance, emergency maintenance, or downtime caused by factors beyond the Provider’s reasonable control, as defined in the applicable service level agreement (SLA).  “Accessible” means the Services are available and operational, in material accordance with the Specifications, for access and use by Customer and its Authorized Users. The Services shall not be considered un-Accessible and no Service Level Failure shall be deemed to occur in connection with any failure to meet the Accessible Requirement or impaired ability of Customer or its Authorized Users to access or use the Services if such lack of Accessibility, failure or impairment is due, in whole or in part, to any (a) Scheduled Maintenance or emergency maintenance required to address security vulnerabilities, critical bugs, or other urgent issues; (b) Force Majeure events; (c) third-party vendors, hosting providers, internet service providers, or external integrations outside Provider’s control; (d) Authorized User’s or Customer’s Internet connectivity or deficiencies, misconfigurations, interruption, outage, or other problem or failures with any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to this Agreement; (e) act or omission by Customer or any Authorized User/access to or use of the Services by Customer or any Authorized User, that does not strictly comply with this Agreement and any Specifications or any unauthorized actions by the Customer or an Authorized User, including misuse, unapproved modifications, or violations of the Agreement; (f) cybersecurity incidents, such as denial-of-service attacks or other malicious activities, despite reasonable security measures; (g) cause requiring the Provider to suspend or restrict service to comply with applicable Laws; (h) Customer Fault; (e) or (i) disabling, suspension, or termination of the Services pursuant to Section 2.8.

5.3 Service Level Failures Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of Fifty percent (50%) of the monthly Fees for the Services due for the Service Month THAT the Service Level Failure occurred (each a “Service Credit“), subject to the following:

  • (a) Customer must reports the Service Failure to Provider immediately on becoming aware of it; and requests such Service Credit in writing within thirty (30) days of the Service Level Failure; and
  • (b) in no event will a Service Level Credit for any Service Month exceed One-Hundred percent (100%) percent of the total Fees that would be payable for that Service Month if no Service Level Failure had occurred. Any Service Credit payable to Customer under this Agreement shall be issued to Customer in the calendar month following the Service Month in which the Service Level Failure occurred. This Section 5.3 sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure. Customer may send Provider an email at support@nimbus808.com for any customer support issues.

6. SECURITY

6.1 Customer Security Obligations. The Customers agrees to comply with all security requirements set forth in this Agreement, Provider’s Data Security Policy as amended from time to time, a current copy, which is set forth in Exhibit B, if any, and any other applicable security policies or guidelines provided by the Provider.

6.2 Customer Control and Responsibility. Customer shall be solely responsible for: (a) all Customer Data, including its content, accuracy and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; and (d) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

6.3 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to maintain the security of its account credentials, restrict access to Authorized Users, control the content, use, uploading or other provision of Customer Data for Processing and ensure that its use of the Services complies with applicable security requirements. The Customer must implement appropriate safeguards to prevent unauthorized access, data breaches, or misuse of the Services.

7. FEES AND PAYMENT

7.1 Fees and Expenses. Customer shall agree to pay Provider the fees set forth in Exhibit A (“Fees“) in accordance with this Section 7.  Fees are non-refundable except as expressly stated otherwise in this Agreement. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services (“Expenses“).

7.2 Fee Increases. Provider may increase Fees after the Initial Term by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of a Renewal Term, and Exhibit A shall be deemed amended accordingly.

7.3 Taxes. All Fees payable under the Agreement are exclusive of any taxes or other government charges. Customer shall pay any and all sales, use, excise or other taxes, duties and charges, except for taxes assessed on the income of Provider.

7.4 Payment. Customer agrees to provide Provider with valid and updated credit card information and hereby authorizes Provider to charge the Fees to such credit card.  The Fees shall be charged annually prior to the commencement of each year of the Initial Term and any Renewal Term or in accordance with any different billing frequency stated in the applicable order form.  Provider shall issue an invoice for Expenses incurred.  Customer shall pay invoices within thirty (30) days after the date of the applicable invoice. Customer shall pay all Expenses in US dollars by [electronic transfer,] [ACH] or [credit card]. Customer shall make payments to the address or account as Provider may specify in writing from time to time.

7.5 Late Payment. If Customer fails to pay any Fees when due, the Provider may charge interest on the overdue amount at a rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower. The Provider reserves the right to suspend or terminate access to the Services if payment is not received Fifteen (15) days of the due date until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person. Any costs incurred by the Provider in collecting overdue payments, including attorney’s fees, court costs, and collection agency fees shall be the responsibility of the Customer.

7.6 No Deductions or Setoffs. Each payment to be made by Customer under this Agreement shall be made without any set-off, counterclaim, reduction, recoupment, debit, withholding or diminution (except for Service Credits issued pursuant to Section 5.3 or any deduction or withholding of tax as may be required by applicable Law).

8. CONFIDENTIALITY

8.1 Confidential Information. Each party may disclose (the “Disclosing Party”) or make available Confidential Information to the other party (the “Receiving Party“) in connection with this Agreement. Subject to Section 8.2, “Confidential Information” means any information of a non‑public, confidential or proprietary nature, whether of a commercial, financial or technical nature, including but not limited to software models, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and all information that a reasonable person would consider to be confidential, in each case whether or not marked, designated, or otherwise identified as “confidential”, “private” or similar, in any form or medium (whether oral, written, electronic, or other). Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the terms of this Agreement are confidential.

8.2 Exclusions. The restrictions and obligations in this Section 8 shall not apply to the Disclosing Party’s Confidential Information, which:

  • (a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party (or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors (“Representatives’”) noncompliance with this Agreement;
  • (b) was received by the Receiving Party from a third party and not indirectly from the Disclosing Party in violation of any obligation of secrecy or non-use; or
  • (c) was in the possession of the Receiving Party prior to disclosure or was developed independently from such Confidential Information, as is shown by competent evidence.

8.3 Court Orders. If Confidential Information is required to be disclosed by the Receiving Party by virtue of an applicable Law or court order, the Receiving Party shall be allowed to do so, provided that it shall, without delay, inform the Disclosing Party in writing of receipt of such order or coming into existence of such duty and enable the Disclosing Party to reasonably to seek protection against such order or duty. The Receiving Party shall provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party, after providing the notice and assistance required under this Section 8.3, the Receiving Party remains required by Law or order to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose.

8.4 Protection of Confidential Information. As a condition to obtaining access to Confidential Information, the Receiving Party shall for five (5) years following expiration or termination of the Agreement not use Confidential Information of the Disclosing Party for purposes other than as required to perform its obligations under this Agreement. The Receiving Party shall treat the Disclosing Party’s Confidential Information with at least the same degree of care as it would use in respect of its own confidential information of like importance, but in any event a reasonable level of care. Except as may be permitted under Section 8.3, the Receiving Party shall not disclose Confidential Information to any third party to its Representatives only on a need-to-know basis. Prior to the disclosure of the Disclosing Party’s Confidential Information to such Representatives, the Receiving Party shall inform each such person of the confidential nature of the Confidential Information and shall expressly require that the person agrees to treat the Confidential Information as is provided in this Agreement. Notwithstanding due observance of these requirements, the Receiving Party shall be liable for any breach of the provisions of this Agreement by such person. The Receiving Party shall promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 8 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 Provider Materials. Provider shall own all right, title, and interest in and to the

Provider Materials, including any updates, modifications, or enhancements and all Intellectual Property Rights therein and, with respect to Third-Party Materials, the relevant third-party providers own all right, title, and interest in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Provider Materials or Third-Party Materials except as expressly set forth in Section 2.1 subject to Section 3.1. All rights in and to the Provider Materials not expressly granted to the Customer in this Agreement are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Output Data, including all Intellectual Property Rights relating thereto as mentioned and defined in Section 1.

9.2 Customer Data. Customer shall own all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to Section 9.3.

9.3 Consent to Use Customer Data. The Customer grants Provider and its Subcontractors the necessary irrevocable rights and permissions related to the Customer Data, as required to enforce this Agreement, exercise their respective rights, and fulfill their obligations under this Agreement.

10. REPRESENTATIONS AND WARRANTIES

10.1 General Representations and Warranties. Each party represents and warrants to the other 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, authority and capacity to enter into this Agreement and perform its obligations and grant the rights, licenses, consents, and authorizations it is required to grant under this Agreement;
  • (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary organizational action; and
  • (d) this Agreement constitutes a legal, valid, and binding obligation, enforceable against the parties according to its terms when executed and delivered.

10.2 Provider Representations and Warranties. Provider represents, warrants, and covenants to Customer that Provider and its personnel performing Services possess the required skill, experience, and qualifications and shall perform Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to ensure that the Services are performed in accordance with this Agreement. 

10.3 Customer Representations and Warranties. Customer represents, warrants, and covenants to Provider that Customer owns or has obtained all required rights and consents in connection with the Customer Data, and will continue to do so during the Term of this Agreement, ensuring that when provided to Provider and Processed under this Agreement, such Customer Data will not infringe upon, misappropriate, or violate any third party Intellectual Property Rights, privacy, or other rights, and will not violate any applicable Law.

10.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1 AND SECTION 10.2, THE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICE OR PROVIDER MATERIALS INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. THE SERVICE AND THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTY OF ANY KIND INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, WHILE PROVIDER WILL USE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THE AVAILABILITY AND UPTIME OF THE SERVICE, PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, ERROR-FREE, SECURE, FREE FROM MALICIOUS CODE, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES. WITHOUT LIMITING ANY OF THE FOREGOING, PROVIDER DOES NOT GUARANTEE THAT THE USE OF THE SERVICE OR PROVIDER MATERIALS WILL MEET THE CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS OR RESULT IN SPECIFIC BUSINESS OUTCOMES. THE CUSTOMER ACKNOWLEDGES THAT USE OF THE SERVICE IS AT ITS OWN RISK.  PROVIDER IS NOT RESPONSIBLE FOR ANY THIRD-PARTY MATERIALS, THIRD-PARTY SERVICES, PLATFORMS, OR CONTENT THAT MAY BE ACCESSED THROUGH THE SERVICE. ANY REPRESENTATION OR WARRANTY RELATING TO ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.  PROVIDER DISCLAIMS ANY WARRANTY OR LIABILITY FOR ANY ISSUES OR DAMAGES ARISING FROM ANY THIRD-PARTY INTERACTIONS.

11. INDEMNIFICATION

11.1 Provider Indemnification.

(a) Indemnity. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, claims, awards, costs, deficiencies, fines, diminution in value, suits, debts, obligations, interest, penalties, expenses, judgments or settlements of any nature or kind, including reasonable attorneys’ fees and disbursements, court costs, amounts paid in settlement, expenses of investigation and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) incurred by Customer resulting from any Claim by a third party (other than an Affiliate of Customer) that Customer’s or an Authorized User’s use of the Services in accordance with this Agreement (including any Specifications) infringes or misappropriates such third party’s valid US Intellectual Property Rights. The obligation in this Section 11.1(a) shall not apply if the alleged infringement arises from:

  • (i) any Customer Data, materials, or content provided by the Customer or Third-Party Materials;
  • (ii) any use of the Service by the Customer that is outside the scope of the permitted use as defined in this Agreement, including any unauthorized alterations or customizations made by the Customer;
  • (iii) access to or use of the Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer’s use in the Documentation;
  • (iv) the use of open-source software, free software, or other Software;
  • (v) modification of the Provider Materials other than with Provider’s written approval;
  • (vi) failure to timely implement any updates, patches, modifications, upgrades, replacements, or enhancements provided by the Provider, if such were made available by or on behalf of the Provider; or
  • (vii) act, omission, or other matter described in Section 11.2(a),

Section 11.2(b), Section 11.2(c), or Section 11.2(d), whether or not the same results in any Claim against or Losses by any Provider Indemnitee.

(b) Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:

  • (i) obtain a license or right for Customer to continue using the Services and Provider Materials without infringement of the third party rights;
  • (ii) modify or replace the infringing portion of the Services and Provider Materials, to seek to make them no longer-infringing the third-party intellectual property rights, while maintaining the material functionality of the Service, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable; or
  • (iii) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any part or feature thereof, [provided that if such termination occurs prior to the expiration of the Initial Term, subject to Customer’s compliance with its obligations set forth in Section 13.4, Customer will be entitled to a refund of half of the Fee paid for the annual subscription for such year].

(c) Sole Remedy. The Customer acknowledges and agrees that the remedies set forth in THIS SECTION 11 are the sole and exclusive remedies for any actual, threatened, or alleged claims related to intellectual property infringement, misappropriation or similar arising out of or in connection with the use of the Service or Provider Materials. Customer waives any other remedies, whether legal, equitable, or otherwise, for IP infringement. 

11.2 Customer Indemnification. 11.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Claim by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:

  • (a) Customer Data, including but not limited to any content, data, materials, or images uploaded, transmitted, or stored by Customer or any Authorized User that:
    •    – infringe, misappropriate, or otherwise violate any Intellectual Property Rights or privacy rights of any third party;
    •    – contain unlawful, offensive, abusive, harassing, threatening, obscene, defamatory, libelous, vulgar, or otherwise objectionable material;
    •    – violate any applicable law, regulation, or third-party agreement, including those related to child protection, pornography, privacy, export controls, and data protection; or
    •    – otherwise breach any Acceptable Use Policy or content standards established by Provider and made available to Customer;
  • (b) Provider’s Processing of Customer Data in accordance with this Agreement or Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User;
  • (c) Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement;
  • (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party acting on behalf of Customer or any Authorized User, in connection with this Agreement.

11.3 Indemnification Procedure. If a party (the “Indemnified Party“) receives notice of any claim, demand, suit, or proceeding that may give rise to an indemnification obligation under this Agreement, the Indemnified Party shall promptly notify the other party (the “Indemnifying Party“) in writing, specifying the nature of the claim and the basis for indemnification. The Indemnifying Party shall have the right to assume the defense of the claim at its own expense, with counsel reasonably acceptable to the Indemnified Party, and the Indemnified Party shall reasonably cooperate in the defense. If the Indemnifying Party does not assume the defense within Thirty [(30)] days, the Indemnified Party may assume the defense and the Indemnifying Party will reimburse the Indemnified Party for all reasonable costs incurred. The Indemnified Party shall not settle or compromise the claim without the Indemnifying Party’s prior written consent, and the Indemnifying Party shall be responsible for all costs, including attorney’s fees, in defending the claim. The Indemnified Party may participate in the defense with its own counsel at its own expense but may not settle the claim without the Indemnifying Party’s prior written consent, which will not be unreasonably withheld.

12. LIMITATIONS OF LIABILITY

12.1 INDIRECT DAMAGES. EXCEPT FOR PROVIDER’S OBLIGATIONS UNDER SECTION 11, IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, PUNITIVE, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, RELIANCE, PUNITIVE OR INCIDENTAL DAMAGES LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE, IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 5.3, LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, COST OF REPLACEMENT GOODS OR SERVICES; LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF WHETHER OR SUCH LOSSES OR DAMAGES WERE FORESEEABLE, SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12.2 DIRECT DAMAGES. EXCEPT FOR PROVIDER’S OBLIGATIONS UNDER SECTION 11, THE TOTAL AGGREGATE LIABILITY OF PROVIDER UNDER THIS AGREEMENT IS LIMITED TO THE FEE PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, FOR ANY AND ALL INJURIES, DAMAGES, CLAIMS, LOSSES, OR EXPENSES (INCLUDING ATTORNEY AND EXPERT FEES) ARISING OUT OF PROVIDER’S SERVICES OR THIS AGREEMENT, REGARDLESS OF CAUSE(S) OR THE THEORY OF LIABILITY, INCLUDING BREACH, ERROR, OMISSION OR NEGLIGENCE, OR OTHER RECOVERY. THIS PROVISION SURVIVES TERMINATION OR EXPIRATION OF THIS AGREEMENT AND APPLIES EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  

13. SUBSCIPTION TERM AND TERMINATION

13.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and, shall continue for one (1) year from the Effective Date (the “Initial Term“) unless terminated earlier pursuant any of the Agreement’s provisions.

13.2 Renewal Term. This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term“).

13.3 Termination. In addition to any other termination right set forth elsewhere in this Agreement:

  • (a) Provider may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any Fee, Expense or other amount when due hereunder, and such failure continues more than sixty (60) days after Provider’s delivery of written notice thereof;
  • (b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach is incapable of cure or with respect to a breach capable of cure, the other party fails to cure such breach within thirty (30) days after receipt of written notice of the breach from the non-breaching party; and
  • (c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due, the non-defaulting party may immediately terminate this Agreement.

13.4 Post Termination or Expiration. Upon expiration or termination of this Agreement for any reason, except as expressly otherwise provided in this Agreement:

  • (a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
  • (b) Provider shall immediately cease all use of any Customer Data and Customer’s Confidential Information and Customer shall immediately cease all use of any Services or Provider Materials and Provider may disable all Customer and Authorized User access to the Provider Materials;
  • (c) upon Customer’s written request, Provider shall promptly return to Customer, or securely destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information and permanently erase all Customer Data and Customer’s Confidential Information from all systems Provider directly or indirectly controls and certify to Customer in a signed written instrument that it has complied with the requirements of this Section 13.4(c), provided that, Provider may retain Customer Data to the extent required by applicable Law and may retain it in its archives, backups, and disaster recovery systems until such Customer Data is deleted in the ordinary course, and provided that, for clarity, Provider’s obligations under this Section 13.4(c) do not apply to any Output Data;
  • (d) Customer shall return to Provider, or at Provider’s written request securely destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider’s Confidential Information and permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls and certify to Provider in a signed written instrument that it has complied with the requirements of this Section 13.4(d); provided that, Customer may retain Provider Materials or Provider’s Confidential Information to the extent required by applicable Law and may retain it in its archives, backups, and disaster recovery systems until such Customer Data is deleted in the ordinary course;
  • (e) all information and materials retained in accordance with this Section 13, will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
  • (f) if Customer terminates this Agreement pursuant to Section 13.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination;
  • (g) if Provider terminates this Agreement pursuant to Section 13.3(a) or Section 13.3(b), on receipt of Provider’s invoice, all remaining Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees and Expenses.

13.5 Survival. The provisions in this Agreement that, by their nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.

14. FORCE MAJEURE.  If the performance of any of the covenants of this Agreement by either party shall be prevented, interrupted, delayed or suspended by any act of God, the acts or regulations of public authorities, labor difficulties, union strike, national strike, civil tumult, war, acts of terrorism, epidemic, pandemic, interruption or delay of public transportation services, accident, riots, quarantine, breakdown of communication facilities, web host, or internet service provider, natural catastrophes, changes in laws or regulations, fire, flood, earthquake, explosion, generalized lack of availability of raw materials or energy or any other cause beyond the reasonable control of a party (“Force Majeure”), and such Force Majeure affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more, either party may suspend this Agreement without any liability on either part and each shall be relieved of any and all of its obligations hereunder with respect to the period during which such performances are so prevented.  For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder. In the event of any failure or delay caused by a Force Majeure, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure.

15. EQUITABLE RELIEF. Each party understands and agrees that any breach of its obligations under Section 8 of this Agreement would cause significant and irreparable harm to the other party. Such harm would be difficult, if not impossible, to measure fully in monetary terms, and financial compensation alone would not suffice as a remedy. Accordingly, each party shall have the right to pursue immediate injunctive relief or other equitable remedies to enforce these provisions without the requirement to post a bond or other security. This remedy shall be in addition to the party’s right to seek monetary damages or any other legal recourse available under this Agreement. 

16. MISCELLANEOUS

16.1 Relationship of the Parties. The parties are independent contractors, and nothing in this Agreement shall be construed to create a partnership, joint venture, agency, employment or other fiduciary relationship. Neither party has the authority to represent, bind or obligate the other in any manner.

16.2 Further Assurances. Each party agrees, at its sole cost and expense, to execute and deliver any documents, and take any actions, reasonably necessary to carry out the intent and purpose of this Agreement upon the other party’s reasonable request.

16.3 Notices. All notices hereunder shall be sent certified mail, return receipt requested, or delivered by hand to the applicable address set forth below unless and until written notice, via registered mail, to the contrary is received by the applicable party.

If to Provider:

808 134th St SW Suite 120

Everett, WA 98204

If to Customer: Address associated with User Billing Account.

Notwithstanding the foregoing, all accounting statements and payments may be sent by regular mail. A notice given under this Agreement will be effective on the other party’s receipt of it, or if mailed, the earlier of the other party’s receipt of it and the fifth business day after mailing it.

16.4 Publicity. Neither party shall use the name, logo, or trademarks of the other party in any marketing, advertising, press release, or public announcement without prior written consent, which shall not be unreasonably withheld, delayed or conditioned. The Provider may, without Customer’s consent, identify the Customer as a customer in its marketing materials.

16.5 Interpretation. When a reference is made in this Agreement to an article or section, such reference shall be to an article or section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation. When a reference is made to an agreement, instrument, or other document it means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and when reference is made to a statute it means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

16.6. General. (a) This Agreement is the entire agreement of the parties and supersedes any prior agreements between them, whether written or oral, with respect to the subject matter hereof.  (b) If any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (i) this Agreement, excluding its exhibits, schedules, attachments, and appendices; (ii) the exhibits, schedules, attachments, and appendices to this Agreement; and (iii) any other documents incorporated herein by reference. (c) No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by duly authorized representatives of the parties hereto. (d) Any controversy or claim arising out of or relating to this Agreement or any breach thereof shall be settled by arbitration in accordance with the rules of the American Arbitration Association. The arbitrator(s) shall be experienced in performing arts and entertainment matters. If the arbitration is conducted in person, the place of the arbitration shall be in the county of Everett, WA.  The determination of the arbitrator in such proceeding shall be final, binding and non-appealable. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to reimbursement for costs and reasonable attorney’s fees. Nothing herein shall prevent a party from seeking any interim relief, decision, determinations, or award as necessary to preserve the status quo or to obtain equitable relief from a court of competent jurisdiction.  (e) This Agreement shall be governed by the internal substantive laws, but not the choice of law rules, of the State of Washington.  (f) The invalidity or unenforceability of any provision of this Agreement, or any terms thereof, shall not affect the validity of this Agreement as a whole, which shall at all times remain in full force and effect and if such provision is material to this Agreement the parties agree to negotiate a replacement in good faith. (g) The parties hereto stipulate and agree that the rule of construction to the effect that any ambiguities are to be or may be resolved against the drafting party shall not be employed in the interpretation of this Agreement to favor any party against another. (h) This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns. Nothing in this Agreement, express or implied, is intended to or shall confer any rights, benefits, or remedies upon any third party. (i) If any dispute arises under this Agreement and legal action is taken to enforce its terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, court costs, and other expenses incurred in connection with the dispute, in addition to any other relief to which it may be entitled. (j) This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

By:

Nimbus808, LLC

808 134th St SW, Suite 120

Everett, WA USA 98204

EXHIBIT A

SERVICES AND FEES

Each user email account for the platform can only be used by a single person and should not be shared between multiple individuals.

All monthly or annual fees are disclosed ahead of time at time of purchase and on invoices.

EXHIBIT B

DATA PROCESSING AND SECURITY POLICY

1. Privacy Policy. Provider’s Privacy Policy is located here: https://www.nimbus808.com/privacy-policy.  Nothing in this Agreement restricts Provider’s right to alter such privacy policy.

2. Customer’s Responsibilities. Customer agrees that Customer shall not provide any Personal Data to Provider except for any Personal Data automatically provided by Provider’s Systems as strictly necessary for Customer to receive the benefits of the Services intended under this Agreement.  Customer will comply fully with all applicable Laws relating to Personal Data.

3. The Data Processing Agreement (“DPA”) is handled in separate agreement document.