This Services Agreement is made by and between yRuler Inc., a Delaware Corporation (hereafter, “yRuler,” “we,” “us,” or “our”) and the client (“CLIENT”) entering into the statement of work incorporating this Services Agreement by reference (“SOW”). This Services Agreement, along with all contemporaneously or subsequently executed SOW(s) and any other agreements or terms incorporated by reference (collectively, the “Agreement”), sets forth the terms and conditions pursuant to which yRuler shall provide various Services (defined below) to CLIENT. By accepting this Agreement through execution of a SOW, or by using the Services, CLIENT agrees to the terms of this Agreement.
A detailed description of the applicable Service, as well as related terms and pricing information, along with a statement of CLIENT’s internal business use for which the Service shall be used, shall be set forth in a mutually agreed upon written SOW. yRuler services currently include providing temporary use of online non-downloadable cloud computing software for measuring the size, scale, and proportion of consumer products as well as additional services that may be developed or offered by yRuler from time to time (collectively, the “Services”). The Service provided by yRuler is solely for CLIENT’s own internal business use as stated in the SOW (“internal business use”). Notwithstanding the foregoing, if CLIENT is an advertising agency or otherwise intends to utilize the Services on behalf of one of its customers (each being hereafter referred to as an “Advertiser”), then CLIENT may so utilize the Services on behalf of such Advertiser provided that such Advertiser is identified in the applicable SOW and further provided that the Service is used solely for the Advertiser identified in the SOW in accordance with the CLIENT’s internal business use.
This Agreement will commence upon the Effective Date set forth in the SOW and, unless terminated earlier as provided for below, shall remain in effect until all executed SOWs have expired or are terminated pursuant to the provisions of such SOWs (the “Term”). Upon termination, CLIENT will immediately cease all use of the Service and pay all fees that became due prior to termination. Termination will be in addition to, and will not prejudice, any of yRuler’s remedies at law or in equity. Any terms or provisions of this Agreement, including those affecting warranties, indemnities, limitation of liability, etc., which by their nature extend beyond the expiration or termination of this Agreement shall remain in effect and survive the termination or expiration hereof. In the event that either party believes that the other has materially breached any obligations under this Agreement, such party shall so notify the breaching party in writing. The breaching party shall have ten (10) days from the receipt of notice to cure the alleged breach and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured to the reasonable satisfaction of the non-breaching party within such ten (10) day period the non-breaching party shall have the right to immediately terminate this Agreement. Additionally, yRuler may terminate this Agreement upon thirty (30) days prior written notice to the CLIENT in the event that a third party will acquire all or substantially all of the shares or assets of yRuler, whether by way of a merger, a share transaction, an asset transaction, or otherwise. Additionally, either party shall have the right to terminate this Agreement immediately upon providing the other party with written notice if any change occurs in any applicable laws or regulations that would, in that party’s reasonable opinion, render the party’s performance hereunder illegal or otherwise subject to legal challenge.
Payment obligations for the Services shall be set forth in each applicable SOW. Unless set forth to the contrary in a SOW, invoices shall be paid upon receipt. In the event that CLIENT fails to timely pay any amount due hereunder, we reserve the right to terminate CLIENT’s access to the Service. Overdue amounts shall accrue interest at the lesser of 2% per month or the maximum rate permitted by law and CLIENT agrees to pay all expenses, costs and attorney fees incurred by yRuler in collecting any past due amounts. CLIENT is responsible for paying all taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever associated with its purchases hereunder, and yRuler shall list all applicable taxes on each invoice issued to the CLIENT. CLIENT shall not deduct any taxes from amounts due to yRuler hereunder. If the CLIENT is required to withhold any taxes on payment and remit them to the tax authorities, CLIENT shall gross up the payment such that following such deduction, yRuler shall be entitled to the price agreed. CLIENT and yRuler shall collaborate, and provide with all documents necessary in order to obtain any waivers to which yRuler may be entitled under the law with respect to such taxes, duties, charges, withholdings, and dues.
4. License and Intellectual Property Rights.
a. CLIENT acknowledges and agrees that we claim all rights in all the Services provided by yRuler to CLIENT, including copyright, trademark, trade secrets, scale images, and all other intellectual property rights of whatever nature incorporated in the Services, and CLIENT further acknowledges and agrees that CLIENT obtains no rights in such Services other than as provided in the Agreement. Subject to CLIENT’s compliance with the Agreement, during the Term of the Agreement we grant to CLIENT a non-exclusive, nontransferable license, without the right to sublicense, to access and use the Service solely for your own (or if applicable, but subject to the restrictions set forth in Section 1, your Advertiser’s) internal business use, and, if relevant to the particular Service, to download and use, solely for the internal business use, the information, data, compilations and all other content made available to CLIENT from yRuler (all of which shall be deemed to be included as part of and within the definition of Service). Additionally, subject to CLIENT’s compliance with the Agreement, yRuler hereby grants to CLIENT a non-exclusive, non-transferable, irrevocable license to use any such information, data, compilations and all other content made available by yRuler to CLIENT in connection with the Services but solely for its own internal business use. CLIENT will not, and will not permit any person or entity under CLIENT’s direct or indirect control to, (a) re-circulate, republish, distribute or otherwise provide any third party with access to the Service, or (b) use the Service on a service bureau, time sharing or any similar basis, or (c) for the benefit of any third party other than an Advertiser as allowed for above.
b. The Service is owned by yRuler and is protected by copyright and other intellectual property rights. Other than the license granted under this Agreement, CLIENT obtains no rights in or to the Service, or any associated intellectual property rights. CLIENT agrees to comply with all copyright, confidentiality, and proprietary rights notices contained on or in any of the materials downloaded by CLIENT or provided in any medium by yRuler in connection with the Service. CLIENT shall not (i) alter, enhance or make derivative works of the Service, (ii) reverse engineer, reverse assemble or decompile the Service or any software or other components of the Service, (iii) analyze any data or information of the Service to develop or enhance any operation of CLIENT beyond CLIENT’s internal business use; (iv) use, or allow the use of, the Service in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (v) introduce into the Service any virus or other code or routine intended to disrupt or damage the Service.
c. CLIENT shall maintain the confidentiality of the Services and CLIENT's account information thereto, including any trade secrets, confidential or proprietary information embodied therein. CLIENT must notify yRuler immediately in the event of any known or suspected unauthorized disclosure or use of the Services through CLIENT's account, or of any trade secrets, confidential or proprietary information, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of confidential or proprietary information available through CLIENT's account on the Services. CLIENT is entirely responsible for any and all activities that occur on CLIENT’s website. CLIENT assumes full responsibility for any use or misuse of the Service by CLIENT’s personnel and any use beyond CLIENT’s internal business use, whether CLIENT has authorized CLIENT’s personnel to access or use the Service, and for ensuring that CLIENT’s personnel abide by and comply with this Agreement and all applicable regulations and provisions of law.
d. CLIENT hereby agrees that Tangiblee shall be the owner, upon creation, of all images created using the Tangiblee (the "Tangiblee Images"). CLIENT shall procure all consents and assignments necessary from its end users to perfect such rights. Tangiblee may retain Tangiblee Images and use Tangiblee Images on an anonymized basis for internal R&D including the improvement of its products and services. Tangiblee shall not use Tangiblee Images for demo, resale, marketing or any other purpose other than as expressly provided above. Images including the face of the end-user will be used by Tangiblee in accordance with applicable data protection legislation. Tangiblee Images may be retained by Tangiblee until the earlier of: (a) 12 months from the date the Tangiblee Image was generated, or (b) termination of the Agreement.
5. Disclaimers of Warranties.
The Service is provided “as is.” We make no warranty, express or implied, as to the availability, accuracy or completeness of any content or as to results to be attained by CLIENT or anyone else using the Service. We hereby disclaim all guaranties, representations and warranties (whether express or implied, oral or in writing, including the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and whether or not arising through a course of dealing), relating to the Service. The operation of the Service is not guaranteed to be error-free or uninterrupted. yRuler is not responsible for any inaccuracies in data that we provide to CLIENT or CLIENT’s customers.
6. Limitation of Liability; Exclusion of Certain Damages.
Except for liabilities resulting from either party’s willful misconduct, CLIENT’s violation of Section 4 of this Agreement or the indemnification obligations set forth below, each party’s liability hereunder shall not exceed the fees paid or payable by CLIENT hereunder within the one-year period immediately preceding the date that the alleged wrongful act first occurred. yRuler shall not be liable to CLIENT for any claims arising in connection with the use of the Service or by any errors, delays or failures of the Service. Additionally, except for liabilities arising from CLIENT’s violation of Section 4 of this Agreement or CLIENT’s payment obligation as to fees owed for Services provided hereunder, neither CLIENT nor yRuler shall be liable to one another for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses of any kind or any lost or imputed profits arising out of this Agreement or any agreed upon SOW or its termination, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Each party hereto waives any claims that these exclusions deprive such party of an adequate remedy.
a. CLIENT shall indemnify yRuler and it’s directors, officers, affiliates, employees and agents against any and all losses, damages, penalties, settlements, costs and expenses (including reasonable attorneys' fees), and defend yRuler in any suit, claim, or proceeding, brought by any third party or governmental agency, arising from or relating to (i) CLIENT’s breach of any provision of this Agreement or any applicable SOW (ii) CLIENT’s violation of any applicable law or regulation or (iii) any claim by a user of CLIENT’s website that the Services were inaccurate or misleading.
b. yRuler agrees to indemnify CLIENT and CLIENT’s directors, officers, affiliates, employees and agents against any and all losses, damages, penalties, settlements, costs and expenses (including reasonable attorneys' fees), and to defend CLIENT in any suit, claim, or proceeding, brought by any third party arising from yRuler’s infringement of such third party's intellectual property rights.
c. In consideration of the foregoing indemnification obligations, each party must provide the indemnifying party prompt notice of the assertion of any claim and permit the indemnifying party to assume the full control of the defense and/or settlement thereof. Notwithstanding the foregoing, an indemnifying party shall not enter into any settlement which would affect any rights of the other party without such party’s prior written consent.
d. Each Party agrees to provide reasonable information, recommendation and assistance in the defense and/or settlement of any such claim or action under this Section 7 at the indemnifying party's expense.
In connection with entering into and performing under this Agreement and each SOW, each party may receive or have access to commercially valuable technical and non‑technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including but not limited to, source code and documentation for software, trade secrets, data, compilations, categorizations, market insights, spreadsheets, methodologies, algorithms, know how, customer lists, pricing strategies, payment terms, the terms of this Agreement and each SOW, marketing and business plans, information concerning such party’s vendors, and such party’s contemplated plans, strategies and prospects (“Confidential Information”). In addition to the foregoing, each party recognizes that the other party may have received and in the future may receive confidential or proprietary information of a consumer, including gender, height, weight, and size ("Anonymous Consumer Information"). Any Anonymous Consumer Information disclosed by one party to the other party shall be deemed to be yRuler’s owned Information. Except as expressly and unambiguously allowed herein or in any executed SOW, all parties will hold in confidence and not disclose any Confidential Information and will similarly bind its employees. Notwithstanding the foregoing, yRuler may make CLIENT’s Confidential Information available to independent third parties engaged by yRuler to assist in providing the Services, provided that such third parties are bound to confidentiality provisions at least as restrictive as those set forth herein. Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement, any executed SOW or as may be required by law. If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party’s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing, Confidential Information shall not include, and neither party will be liable for disclosure of, any information received by the receiving party under this Agreement or any SOW if the information: (a) is or becomes generally available to or known to the public through no wrongful act of the receiving party; (b) was previously known by the receiving party through no wrongful act of receiving party; (c) was independently developed by the receiving party without reference to the Confidential Information; or (d) was lawfully disclosed to the receiving party by a third party under no obligation of confidentiality to the other party.
a. Entire Agreement. This Services Agreement and each executed SOW, together with any other agreements or terms incorporated by reference, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges and supersedes all prior discussions and writings between them with respect to the contents hereof and the Services provided by yRuler. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder shall remain in full force and effect and bind the parties according to its terms.
b. Waivers. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right hereunder shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.
c. Amendments. This Agreement may be subject to periodical revisions or amendments, from time to time with or without notice, at our sole discretion; we encourage CLIENT to review the Agreement regularly. The last revision will be reflected in the "Last Updated" heading. CLIENT's continued use of our Services following any such amendments will be considered as CLIENT's consent to the amended Agreement. At all times, the latest version of this Agreement shall be binding and prevail over any other version.
d. Assignment. CLIENT may not assign this Agreement or any SOW, in whole or in part, without our prior written consent. We expressly reserve our right to assign or transfer this Agreement and to delegate any of our obligations hereunder at our sole discretion. Subject to the foregoing, this Agreement and any applicable SOW will be binding on and enforceable by the parties and their respective successors and permitted assigns.
e. Notice. Any notice, communication or statement relating to this Agreement or any SOW shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon written confirmation of receipt when sent by email; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service, to each party at the address set forth in the SOW or to such other address as any party hereto may designate to the other.
f. Governing Law and Jurisdiction; Attorney Fees. The rights and obligations of the parties under this Agreement and each executed SOW shall be governed by and construed under the laws of the State of Delaware without reference to conflict of law principles. Each party consents to the exclusive personal jurisdiction of the state and federal courts located in Cook County, Illinois. In any legal proceeding relating to a dispute arising out of or relating to this Agreement or any SOW, the prevailing party shall be entitled to an award of legal fees and costs.
g. Relationship. The relationshipof yRuler and CLIENT established pursuant to this Agreement and each executedSOW is that of independent contractors and no joint venture, partnership,agency, franchise or employment relationship will be deemed to exist betweenthem.
h. Feedback. Any questions, comments, ideas or any type of communication that CLIENT desires with yRuler should be delivered by electronic mail (“Feedback”) using one of the following electronic mail addresses: firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com firstname.lastname@example.org. CLIENT agrees, understands, and acknowledges that such Feedback shall be the intellectual property of yRuler upon receipt, and CLIENT agrees, understands, acknowledges, and transfers to yRuler all rights to such Feedback for use by yRuler, including but not limited to incorporating such Feedback into any existing or non-existing product or service without any compensation to CLIENT. By submitting any Feedback, CLIENT agrees that such disclosure is gratuitous, unsolicited and without restriction and will not place yRuler under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to CLIENT, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. CLIENT further acknowledges and agrees that, by acceptance of any Feedback, yRuler does not waive any rights to use similar or related ideas previously known to yRuler, or developed by its employees, or obtained from sources other than Licensee.
i. Publicity. CLIENT retains all right, title, and interest in and to CLIENT trademarks, service marks, names and logos (hereinafter “CLIENT Marks”) and yRuler acknowledges that it neither owns nor acquires any rights in or to CLIENT Marks not expressly granted by this Agreement. All other rights in and to CLIENT Marks are expressly reserved by CLIENT. Subject to the terms and conditions of this Agreement, and effective only during the Term, CLIENT grants yRuler a non-exclusive and royalty-free license to use, only for the purpose of using CLIENT Marks on marketing and promotional materials, such as yRuler: website, landing pages, sales presentations, and brochures. Additionally, CLIENT allows yRuler to publish case studies with results (hereinafter "CLIENT Results") showcasing yRuler performance on Company’s websites, in relative percentages. yRuler acknowledges that (i) all use of CLIENT Marks and any goodwill accruing therefrom shall inure solely to the benefit of CLIENT, and (ii) CLIENT maintains high standards and reputation for quality symbolized by CLIENT Marks and CLIENT Results. Use of CLIENT Marks and CLIENT Results will be subject to additional guidelines provided by CLIENT to yRuler, which may be amended from time to time. CLIENT shall have the right to exercise quality control over yRuler’s use of CLIENT Marks and CLIENT Results to the extent necessary under applicable law to maintain the validity of CLIENT Marks and protect the goodwill associated therewith. Nothing in this Agreement shall be construed as a grant to yRuler, or any third party that may be working on yRuler’s behalf, any right to manufacture for sale any merchandise or offer any service bearing CLIENT’s name, likeness, portrait or picture other than for the purpose as stated hereunder. yRuler implementation on the Company’s website, mobile applications, desktop applications will include a ‘powered by’ logo of yRuler with a backlink to yRuler website as part of the Services.
j. Construction of Agreement. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.
k. Force Majeure. Neither yRuler or CLIENT will be liable for any failure to perform any obligation (other than payment obligations) due to causes beyond yRuler’s reasonable control, including the elements, acts of God, labor disputes, acts of terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, failure or erratic behavior of telecommunications or power systems, sabotage, armed hostilities and riots.