This Agreement sets forth the terms and conditions under which Hark agrees to provide, and Customer agrees to obtain, access to Hark’s proprietary customer support platform for intake of returns and other product-based support requests (the “Service”).
1. CONSTRUCTION. Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, including the initial order set forth in Exhibit A, and any subsequent order agreed to by the parties (each, an “Order”).
2. SOFTWARE AS A SERVICE.
2.1 Access. Commencing on the Effective Date of this Agreement, Hark shall make available to Customer the Service, as set forth an applicable Order as hosted by Hark for use by Customer within the use limitations set forth in the Order.
2.2 Rights to the Service. Subject to the terms and conditions of this Agreement, Hark hereby grants Customer a non-exclusive, non-transferable, worldwide right during the Term to access the Service and permit the number of individual users specified in the Order to use the Service solely for Customer’s internal purposes up to the limits set forth in the applicable Order (“Authorized Users”). Your Service package may be priced based on a maximum number of customer support requests that are entitled to process during each calendar month. Each discrete customer service request processed through the Service is referred to in the Service as a “Hark.”
2.3 Updates. At no charge to Customer, Hark shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement.
2.4 Restrictions and Conditions. Customer shall not, directly, indirectly or through its Authorized Users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) "frame," "mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) allow access to the Service by multiple individuals impersonating a single end user; (d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Hark technologies, services, systems or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with the Hark online products and services; (f) circumvent or disable any security features or functionality associated with Service; or (g) use the Service in any manner prohibited by law. All rights not expressly granted to Customer are reserved by Hark, its suppliers and licensor.
2.5 Consumer Content. The Service is used for the intake of information from Customer’s consumer customers regarding returns and consumer support inquiries. The Service specifically enables the consumer to upload videos and other supporting information regarding Customer’s products and services. These consumers provide this information to Hark with the expectation that it only be used by Customer for the purpose of handing the consumer’s support request and to address Customer’s quality control issues. Customer agrees that it will only use videos and other content provided by consumers through the Service (“Consumer Content”) for Customer’s internal support purposes, for internal training, and for Customer’s limited external use with its manufacturers to address quality control issues. Customer will not publish the Consumer Content or provide it to any third party without first binding that third party to a non-disclosure agreement that prohibits the publications of the Consumer Content, or use for purposes other than authorized above.
3.1 Confidentiality. Each party agrees that, without the express consent of the other party, none of its employees or agents will disclose to any third party any information or material that the other party designates as confidential (including without limitation the terms and conditions of this Agreement) unless such information or material (a) is or becomes publicly known through no wrongful act of the receiving party, (b) is received from a third party without restriction and without breach of any confidentiality obligation to the other party, (c) is independently developed by the receiving party, or (d) is required by law to be disclosed (provided that the other party is given advance notice of, and an opportunity to, contest any such requirement).
3.2 Customer Content. As between the parties, Customer owns all rights, title and interest in and to all content and other data submitted by Customer or its Authorized Users to the Service (“Customer Content”). Customer shall have sole responsibility for the legality, reliability, accuracy and quality of Customer Content. Customer hereby grants to Hark a non-exclusive, royalty-free, worldwide license to use, copy, store, modify, distribute, transfer and display the Customer Content solely for the purpose of providing the Service to Customer, and for the limited purposes described in this Section. Notwithstanding the foregoing, Hark may use aggregated and anonymized Customer Content for any purpose, provided that such usage data will not include, or be reversable to expose, the identity of Customer, its Authorized Users or any other person. If requested by Customer within thirty (30) days of the expiration or termination of this Agreement, Hark shall make available to Customer all Customer Content stored within the Service at the time of expiration or termination. Thirty (30) days after termination, Hark shall have no further obligation to Customer and may, at its option, permanently delete or destroy the Service and all information and materials contained therein.
4. SERVICES. Additional support services, including custom configuration, consulting, training and system integration, may be separately purchased from Hark under the terms of an addendum to this Agreement. For clarity, Hark has no obligation to support Customer’s own technology, internal infrastructure, provide free training, or provide consulting on customer created content or third-party technologies and services unless agreed to in writing via an approved sales agreement and or statement of work.
5. CUSTOMER OBLIGATIONS.
5.1 Fees and Payment Terms. In consideration of the rights granted herein, Customer shall pay Hark for the total amount of Harks processed per calendar month (“Fees”). Fee per hark shall be $1.50 unless supplemental order form executed.
(a) Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Customer shall be solely responsible for the payment of any Sales Taxes. In the event Hark is required to pay Sales Taxes on Customer’s behalf, Customer shall promptly reimburse Hark for all amounts paid.
(b) All amounts shall be paid to Hark within thirty (30) days of receipt of an undisputed invoice. An invoice shall be deemed undisputed if, within such thirty (30) day period, Customer fails to notify Hark in writing of any disputed amounts.
(c) Fees not paid when due shall be subject to a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Hark further reserves (among other rights and remedies) the right to suspend access to the Service. Amounts payable to Hark shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Hark.
(d) All prices and other payment terms are confidential information of Hark and Customer agrees not to disclose such information to any third party throughout the Term and for three (3) years thereafter.
(e) Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the scope of the subscription cannot be decreased during the relevant subscription term.
5.2 Compliance with Laws. The Hark software and Service are of U.S. origin. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights.
6. TERM AND TERMINATION.
6.1 Term of Agreement. This Agreement shall begin on the Effective Date and shall continue for so long as Customer maintains an active Subscription to the Services or the Agreement is otherwise terminated in accordance with the terms herein.
6.2 Effect of Termination. Termination of this Agreement will automatically terminate all active Order Forms, but termination of a single Order Form will not result in termination of this Agreement or any other Order Forms. Upon the termination of this Agreement, or an Order Form, all rights and licenses granted by Hark Technologies, Inc. to Customer under this Agreement or the applicable Order Form will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
6.3 Termination. This Agreement and any Order Form may be terminated by either party upon notice if the other party (i) breaches any material term of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof, or (ii) ceases to function as a going concern or to conduct operations in the normal course of business, or (iii) has a petition filed by or against it under any bankruptcy or insolvency laws which petition has not been dismissed or set aside within sixty (60) days of filing. Termination is not an exclusive remedy for breach of this Agreement by either party. Unless otherwise specified in this Agreement, all other remedies will be available to the non-breaching party whether or not the non-breaching party terminates this Agreement for breach by the other party.
6.4 Post-Termination Obligations; Customer Data Retrieval. Upon any termination of this Agreement, Hark Technologies, Inc. will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days. After such period, Hark Technologies, Inc. may delete all Customer Data and Hark Technologies, Inc. will have no obligation to Customer to continue storing such Customer Data. If Customer terminates this Agreement for Hark Technologies, Inc.’s uncured material breach, Hark Technologies, Inc. will issue to Customer a pro rata refund of Subscription Fees for Services not provided. If this Agreement is terminated for any other reason, within ten (10) days after such termination, Customer will pay Hark Technologies, Inc. all remaining Subscription Fees owed through the end of the Subscription Term under any terminated Order Forms.
7.1 Customer. Customer shall indemnify and hold Hark, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under Section 2.5 of this Agreement (regarding misuse of Consumer Content). In the event Hark is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Customer agrees to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorney's fees.
7.2 Hark. Hark shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out a third-party claim that the Service infringes or misappropriates the intellectual property rights of any third party. Hark shall have no indemnification obligation, and Customer shall indemnify Hark pursuant to this Agreement, for claims of infringement arising from the combination of Service with any unique aspects of Customer’s business, for instance Customer’s content, products, services, hardware or business processes, or for any use of the Service or any Hark software not expressly authorized herein.
7.3 Process. A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.
8. WARRANTY/ LIABILITY/ TOTAL LIABILITY.
Mutual Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
8.1 Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY HARK, ITS SUPPLIERS AND ITS LICENSORS.
8.2 Limitation. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS OR VIOLATIONS BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S EXCLUSIVE REMEDY AND THE OTHER PARTY’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED, UP TO THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEEDING THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES.
8.3 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
8.4 Interpretation. The limitations in sections 8.3 and 8.4 are independent of each other. The limitation of damages set forth in section 8.3 shall survive any failure of essential purpose of the limited remedy in section 8.4.
9. NOTICES AND REQUESTS. Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement. All additional access licenses purchased by Customer during the Term shall be subject to the terms of this Agreement. For clarity, in no event shall any other term or provision of this Agreement be deemed modified, amended or altered as a result of such purchase and all other changes to this Agreement shall be governed by terms of Section 10, below.
10. ADDITIONAL TERMS. Neither party shall not be bound by any subsequent terms, conditions or other obligations included in any purchase order, receipt, acceptance, confirmation or other correspondence unless expressly assented to in writing by both parties. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement.
11. GENERAL. This Agreement shall be governed by New York law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, NY. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of Hark to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. All disclaimers, limitations, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this "General" section shall survive termination of this Agreement. If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect. This Agreement, together with it’s the following exhibits, comprises the entire agreement between Customer and Hark and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein: