1. In consideration of (and subject to) payment of the required fees (the “Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Factory will use reasonable commercial efforts to provide Customer the selected Services in accordance with the General Service Level Support Terms located at www.factory.ai/sla  As part of the registration process, Customer will identify an administrative username and password for Customer’s Factory account (the “Account”).  Customer may use the administrative username and password to create standard users (each with a user password) up to the maximum number selected.  Factory reserves the right to refuse registration of, or cancel passwords it deems inadequate to protect the security of the services. Consistent with Factory’s then current practices and procedures, Factory will maintain and enforce commercially reasonable administrative, technical, and physical safeguards designed to reasonably protect the Service(s) from access by unauthorized third parties and malicious activity. More information regarding Factory’s privacy policy at www.factory.ai/privacy-policy and data processing agreement at www.factory.ai/data-processing-agreement.

2.1 This is a contract for Services and the applicable hosted software will be installed, accessed and maintained only by or for Factory and no license is granted thereto.  Subject to all terms of this Agreement, Factory hereby grants to Customer, for the Term (as defined below), a non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free license to use, reproduce and distribute internally within Customer’s business, and for Customer’s internal use only (and only in accordance with any applicable documentation), the documentation and data provided to Customer by Factory (the “Customer Data”).  Customer will not (and will not allow any third party to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; use the Services or any underlying software for timesharing or service bureau purposes or otherwise for the benefit of a third party; publish the Customer Data without the prior written consent of Factory; or remove any proprietary notices or labels. In connection with providing the Services, Customer hereby grants to Factory a non-exclusive, non-sublicensable, non-transferable, non- assignable, royalty free license to Customer’s codebase via GitHub, Gitlab, and/or Bitbucket, as well as to Customer’s Jira, Linear, and/or Slack accounts (collectively, the Customer Code and Accounts”). Factory will not (and will not allow any third party to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Customer Code and Accounts (or any underlying software, documentation or data related to the Customer Code and Accounts); modify, translate, or create derivative works based on the Customer Code and Accounts; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Customer Code and Accounts; use the Customer Code and Accounts for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

2.2 Customer represents, covenants, and warrants that Customer will  access and use the Services only in compliance with Factory’s standard access and security policies then in effect. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store.

2.3 Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Factory’s published policies then in effect.  Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure.

3.2 The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed.  In the performance of the Services, Factory is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed. Notwithstanding the foregoing, in no event shall Factory use any Customer Code and Accounts or other data provided by Customer to train AI models without Customer’s prior written consent.

4.1 Customer will pay the Fees indicated for the Services selected. The Fees for any renewal term shall be at Factory’s then standard rates currently in effect.

4.2 Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Factory’s net income.

5.1 Subject to earlier termination as provided below, this Agreement is for the initial Service Term selected by Customer (the “Initial Service Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (each, a “Renewal Term” and together with the Initial Service Term, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then current Term.

5.2 In addition to any other remedies it may have, Factory may also terminate this Agreement upon ten (10) days’ notice if Customer materially breaches any provision of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice.  If this Agreement is terminated as a result of a material breach by Customer, Customer will pay in full all remaining Fees payable through the remainder of the Term. 

5.3 Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer hereunder.

5.4 The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”),  9 (“Miscellaneous”) and 11 (Dispute Resolution) shall survive termination. 

6.1 Factory agrees, at its own expense, to indemnify, defend and hold harmless Customer against any suit, claim, or proceeding brought by a third party against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, U.S. trademark or U.S. patent, provided that Customer (i) promptly notifies Factory in writing of any such suit, claim or proceeding, (ii) allows Factory, at Factory’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Factory all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Factory’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Factory, (y) made in whole or in part in accordance to Customer specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Factory’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.

6.2 Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Factory against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2.1 to 2.3, or otherwise from Customer’s use of Services excluded from Factory’s aforementioned indemnity obligations in the second to last sentence of Section 6.1, above.

FACTORY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  THE SERVICES ARE PROVIDED “AS IS” AND FACTORY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO FACTORY FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF  LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF FACTORY, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY FACTORY, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT. 

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Factory’s prior written consent.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Factory in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  The parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in addition to any other relief to which the owner of such Proprietary Information may be entitled.   This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. 

In connection with the Agreement, Customer grants Factory a nonexclusive, worldwide, royalty-free right to Factory for the duration of the Term (or as otherwise mutually agreed between the parties) to use Customer’s name, company name, logo(s), and app logo(s) and app Icon(s), as well as any written comments Customer provides to Factory or otherwise make publicly available concerning Customer’s use of the Service(s), in Factory’s marketing and press materials.

PLEASE READ THIS SECTION CAREFULLY. IT IMPACTS THE RIGHTS THAT CUSTOMER MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH INDIVIDUAL ARBITRATION INSTEAD OF TRIAL COURTS AND CLASS ACTIONS.  THIS SECTION SURVIVES ANY EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT.

11.1 Informal Dispute Resolution. As a condition precedent which must be satisfied prior to initiating any arbitration or other action against the other party, both Customer and Factory agree to the following dispute resolution procedure: In the event of any controversy, claim, action or dispute arising out of or related to the Service(s), or the breach, enforcement, interpretation, or validity of the Agreement (“Claim”), the party asserting the Claim must first try in good faith to settle such Claim by providing written notice, by first class or registered mail, to the other party describing the facts and circumstances (including any supporting documentation) of the Claim. The party asserting the Claim must allow the receiving party 30 days in which to respond to or settle the Claim.

11.2 Arbitration. To the extent the parties cannot resolve a Claim through the informal dispute resolution procedure set forth above, and except as otherwise expressly set forth herein, all Claims must be resolved through binding individual arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. A printed version of the Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of the Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. Use of the Service(s) is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. Each party agrees it shall bring any dispute against the other in its respective individual capacity and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, each party agrees that disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator shall not have the power to vary these provisions. If any part of this provision is ruled to be unenforceable, then the balance of this provision shall remain in full effect and construed and enforced as if the portion ruled unenforceable were not contained herein.

11.3 Notice. For purposes of this Section, notices must be sent as follows:

• 11.3.1 If to Factory, to legal@factory.ai.
• 11.3.2 If to Customer, the email address listed in its Account.

All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.