Yembo - Legal - SaaS Agreement

1. ORDER FORM; PAYMENT.

(a) Order Form. The subscription pricing for the Services (as defined below), the pricing terms (collectively, the “Fees”), the period of time that Customer may use and access the Services (also referred to as the Term (as defined in the Order Form)) will be specified in an ordering document that references this Agreement executed by an authorized representative of Customer and Yembo (each, an “Order Form”). All Order Forms and terms therein shall be deemed incorporated herein. The initial Order Form is attached hereto as Exhibit A.

(b) Payment. The Order Form sets forth the applicable Service Plan and Optional Services (as defined in the Order Form) for Customer and Customer shall provide Yembo credit card or another payment instrument and related details (“Payment Information”). Customer represents and warrants to Yembo that any Payment Information provided is true and that Customer is authorized to use the Payment Information as payment for the Services. Customer will promptly update Customer’s Payment Information with any changes (for example, a change in billing address or credit card expiration date) that may occur. Customer hereby authorizes Yembo to bill Customer’s supplied payment instrument in the Payment Information in advance of use of the Services on a periodic basis in accordance with the terms of the Order Form until Customer terminates their account in accordance with this Agreement, and Customer further agrees to pay any charges so incurred. Each month, Customer will be invoiced for: (i) the Service Plan and Optional Services specified in the Order Form based upon and in advance of the applicable Billing Period (as defined in the Order Form) for such Services as set forth in the Order Form; and (ii) Additional Estimates (as defined in the Order Form) for the prior month and outstanding Fees owed to Yembo from prior months (if any in each case). The cost of the Professional Services (as defined in Section 3) will be billed separately from and in addition to the Fees. Customer also hereby authorizes Yembo to bill Customer’s Payment Information for any and all costs and expenses set forth in this Section 1(b), including, without limitation, Additional Estimates and any Professional Services, promptly following Yembo’s invoicing of Customer (in addition to the Fees for the Service Plan and Optional Services in advance of the applicable Billing Period). If Customer dispute any charges you must let Yembo know in writing within sixty (60) days after the date that Yembo invoices Customer. Yembo reserves the right to change Yembo’s pricing by providing Customer notice at least 30 days before the change is to take effect. Customer’s continued use of the Services after the price change becomes effective constitutes Customer’s agreement to pay the changed amount. Customer’s failure to provide payment on a timely basis through inaccurate Payment Information or otherwise shall afford Yembo the right to terminate Customer’s access to the Services. All Fees are non-refundable and exclusive of applicable taxes. Customer is responsible for paying all taxes and government charges, and all reasonable expenses and attorney’s fees Yembo incurs collecting late amounts.

2. GRANT OF ACCESS; RESPONSIBILITY FOR MOVING CLIENTS.

a) Grant of Access. Subject to the terms, conditions and restrictions set forth in this Agreement, including payment of the Fees set forth above, Yembo hereby grants, and Customer hereby accepts, for the Term, a non-exclusive, non-transferable grant of access to use solely for the purposes of generating moving quotes for end users of Customer (i) the Yembo software infrastructure and any upgrades or updates thereto (the “SaaS”), on a “hosted” basis, in accordance with the Documentation (as defined below) and (ii) the operating manuals, user instructions, technical literature and all other related materials in the English language, in both eye-readable and machine-readable printable form, which may from time to time be supplied to Customer by Yembo to facilitate the use and application of the SaaS (the “Documentation”). Yembo shall retain all right, title and interest in and to the SaaS and its methodologies, processes, techniques, ideas, concepts, trade secrets and know-how (“Yembo Knowledge”), including, but not limited to, any software or methodologies, processes, techniques, ideas, concepts, trade secrets and know-how that Yembo may develop or supply in connection with this Agreement. For the avoidance of doubt, Customer shall have no right, title or interest in, to or under (and no right for compensation) with respect to any suggestions, comments or other feedback that Customer may provide to Yembo with respect to the SaaS. Customer shall not: (i) disassemble, reverse engineer, decompile or otherwise attempt to derive source code from the SaaS; (ii) modify, adapt, create derivative works based upon or translate the SaaS; (iii) assign, license or sublicense the SaaS or its grant of access to use the SaaS; (iv) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the SaaS in any form to any other party; (vi) use the SaaS to engage in any activity reasonably deemed by Yembo to be in conflict with the purpose of the SaaS, reputable business practices or the spirit or intent of this Agreement; or (v) use the SaaS or any of the Services for any unlawful purpose or in a manner that fails to comply with applicable local, state, and federal laws. Customer shall be solely responsible for providing and maintaining all hardware and software and other requirements for Customers’ use of the SaaS (including, but not limited to, Internet access and a compatible web browser). Customer shall be solely responsible for its account and passwords related to the SaaS, as well as all activity through the SaaS. Customer shall immediately inform Yembo of any possible misuse of Customer’s account and passwords or any security incident related to the SaaS. Yembo shall use commercially reasonable efforts to create and maintain, where appropriate, firewalls, encryption technology, user authentication systems and access control mechanisms to control access to information maintained by Yembo related to Customer’s account and passwords.

b) Responsibility for Moving Clients. CUSTOMER ACKNOWLEDGES AND AGREES THAT YEMBO DOES NOT HAVE ANY RELATIONSHIP WITH ANY MOVING CLIENT AND, THEREFORE, CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT ANY INTERACTION WITH ANY MOVING CLIENT, AS IT RELATES TO THE SERVICES, COMPLIES WITH ALL APPLICABLE LOCAL, STATE, AND FEDERAL LAWS, INCLUDING THE TELEPHONE CONSUMER PROTECTION ACT (“TCPA”), THE FEDERAL TRADE COMMISSION’S NATIONAL DO NOT CALL REGISTRY, CAN-SPAM ACT, TELEMARKETING REGULATIONS, AND STATE AND FEDERAL LAWS GOVERNING RECORDING PHONE CALLS. For purposes of this Agreement, a “Moving Client” shall mean an end-user client for Customer where Customer provides moving services for client’s household goods. Prior to using the Services, Customer must ensure that any such use is permitted in Customer’s jurisdiction.

3. SERVICES.

(a) Standard Services. Customer shall receive maintenance, hosting and support services for the SaaS and additional functionalities and features through the SaaS consistent with the Yembo standard features more fully described at www.yembo.ai/plans (collectively, the “Standard Services”). The cost of the Standard Services is included in the Fees associated with the Service Plan.

(b) Professional Services. If Yembo is asked to provide professional services (including, but not limited to, project management, marketing, training, customization, custom modification, strategic consulting, systems integration or other services) to Customer (the “Professional Services”), then the pricing and other terms for the Professional Services shall be set forth and described in Exhibit B. The cost of the Professional Services will be billed separately from and in addition to the Fees.

(c) Optional Services. Customer may elect, in its sole discretion, to receive the optional services as more fully set forth and described in the Order Form (the “Optional Services”), the terms of which are incorporated by reference into this Agreement. The cost of the Optional Services will be billed separately from and in addition to the Fees.

The “Services” shall mean, collectively, access to use the SaaS, the Standard Services, the Professional Services and the Optional Services and all or any modifications thereto. Yembo reserves the right to alter the Services at any time and certain features of the Services may not be available in your jurisdiction depending on your location. All rights, title and interest in and to the Services and its components will remain with and belong exclusively to Yembo. The Services are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in this Agreement, Yembo, its suppliers and licensors own all right, title and interest in and to the Services, including all associated intellectual property rights.

Customer acknowledges and agrees that the Services may require Customer or, on Customer’s behalf, Yembo to obtain third party software, hardware, equipment or services that are not provided or manufactured by Yembo and that is subject to open source or commercial license terms with a party other than Yembo (the “Third Party Products and Services”). The Third Party Products and Services are provided “as is” without any warranty, express, implied or otherwise. As a user of the Services, Yembo may obtain phone numbers on behalf of Customer which shall be associated with Customer’s account and such phone number shall be considered a Third Party Product and Service as part of this Agreement. In the event that Customer either downgrades or terminates the Services, Customer will forfeit any phone numbers associated with the Customer’s account. Customer understands that there is no guarantee that these numbers will remain for Customer’s use during the Term or following the expiration or termination of this Agreement.

4. PRIVACY AND CONFIDENTIALITY.

With respect to any information concerning the Fees, the Documentation, the Services or any information supplied in connection with this Agreement and designated by the delivering party as confidential, subject to the terms and conditions of this Agreement, each party agrees to protect such information in a reasonable and appropriate manner and to use, reproduce and disclose such information only to perform its obligations under this Agreement. This foregoing obligation shall not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) disclosed to a third party without restriction; (iv) independently developed; or (v) disclosed pursuant to legal requirement or order. Subject to the foregoing, Yembo may disclose Customer’s confidential information to its subcontractors or in connection with Yembo’s use of the Third Party Product and Services solely as necessary to effect the Services.

If Customer elects to use the Services to collect personal information from end users (for example, through use of certain features and functionalities included with the Standard Services), then Customer agrees to post a privacy policy and that privacy policy must provide notice to end users that Customer will collect personal information through the Services as described in Yembo’s Privacy Policy, found here. This can be done by displaying a prominent link to Yembo’s Privacy Policy within Customer’s privacy policy and including clear and plain language to describe such data collection. An example of such a description is provided below for reference purposes only:

We may use a third party service provider, Yembo Inc., to collect certain information from you solely for the purposes of generating a moving quote, including your name, email, phone number, address, property details, user preferences around the move (such as date of move and relevant items to be moved), IP address, user agent, referrer, and any other information you provide to us in freeform fields provided to you prior to the generation of a moving quote. We may also collect information through a video of your home that you voluntarily provide to us, as well as usage information related to your mobile device such as IP address and information collected through cookies. All information collected through Yembo is collected in compliance with Yembo’s privacy policy, linked here: https://yembo.ai/legal/consumer/privacy-policy

5. REPRESENTATIONS AND WARRANTIES.

(a) Yembo Warranties. Yembo warrants that, when properly used for the purpose and in the manner authorized by this Agreement, the SaaS will perform substantially in accordance with the specifications set forth in the Documentation. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5(a), THE SERVICES (INCLUDING ALL ASPECTS, FUNCTIONALITIES, BENEFITS AND MODIFICATIONS) ARE PROVIDED ON AN “AS IS” BASIS AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. YEMBO PROVIDES NO WARRANTY FOR THE THIRD PARTY PRODUCTS AND SERVICES. YEMBO DOES NOT MAKE ANY OTHER WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CUSTOMER ACKNOWLEDGES THAT YEMBO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY CUSTOMER FROM YEMBO OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Customer’s sole and exclusive remedy with respect to, and Yembo’s sole and exclusive obligation under, the foregoing warranty shall be, at Yembo’s sole discretion, for Yembo to (i) correct any failure of the affected Services to perform as warranted or (ii) terminate this Agreement and the grant of access herein and refund any applicable prepaid Fees for unused Estimates by Customer for future months.

(b) Customer Warranties. Customer warrants that Customer will comply with all applicable local, state, federal and international laws including TCPA, the Federal Trade Commission’s National Do Not Call Registry, CAN-SPAM Act and any telemarketing regulations in connection with its use of the SaaS and the Services (including the Third Party Products and Services). Without limiting the foregoing, Customer represents and warrants that Customer shall seek the appropriate consent for any e-mail and SMS and MMS communication through or in connection with the Services. Customer further represents and warrants that Customer owns all content provided to Yembo by or on behalf of Customer or has obtained all permissions, releases rights or licenses required to engage in Customer’s activities in connection with the Services and that the content provided to Yembo by or on behalf of Customer and activities in connection with the Services do not and will not violate, infringe or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does or will the content provided to Yembo by or on behalf of Customer contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing. Customer hereby grants Yembo a non-exclusive, perpetual, irrevocable, royalty-free, fully-paid sublicensable and transferable license to use modify, reproduce, distribute, display, publish and perform all content provided by or on behalf of Customer to Yembo for us in connection with the Services. You further agree that Yembo may remove such content at any time following termination of this Agreement.

6. RISK ALLOCATION.

IN NO EVENT SHALL YEMBO BE LIABLE TO CUSTOMER FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNT EQUAL TO FEES THAT YEMBO RECEIVED UNDER THIS AGREEMENT DURING THE SIX-MONTH PERIOD PRECEDING A CLAIM (AS DEFINED BELOW) OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS OR BUSINESS OPPORTUNITY). THE FOREGOING LIMITATION IS INTENDED TO APPLY IN ALL CIRCUMSTANCES, REGARDLESS OF THE GROUNDS OR NATURE OF ANY CLAIM ASSERTED. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT YEMBO USES ARTIFICIAL INTELLIGENCE, MACHINE LEARNING AND OTHER TECHNOLOGY TO DETERMINE ROOM CONTENTS FOR MOVING QUOTE PURPOSES. YEMBO IS NOT LIABLE TO CUSTOMER IN ANY WAY IF YEMBO GENERATES AN AUTOMATED QUOTE OR QUOTES THAT IS/ARE INCONSISTENT WITH WHAT A HUMAN ESTIMATOR WOULD PROVIDE. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR OBTAINING ALL NECESSARY PERMISSIONS AND CONSENTS FROM THIRD PARTIES IN CONNECTION WITH PROVIDING AN ESTIMATE TO ANY THIRD PARTY AND CUSTOMER’S USE OF THE SERVICES (INCLUDING THE ‘INVITE TO YEMBO THROUGH SMS’ SERVICE MORE FULLY DESCRIBED IN THE ORDER FORM). CUSTOMER FURTHER UNDERSTANDS AND ACKNOWLEDGES THAT YEMBO SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY OR CLAIM ARISING FROM THE THIRD PARTY PRODUCTS AND SERVICES OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CONTENT PROVIDED BY CUSTOMER (OR ON CUSTOMER’S BEHALF) IN CONNECTION WITH THE SERVICES AND CUSTOMER’S USE OF ANY OF YEMBO’S E-MAIL OR SMS/MMS FEATURES. ANY ACTION BY CUSTOMER AGAINST YEMBO RELATED TO THIS AGREEMENT MUST BE BROUGHT WITHIN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ARISES.

7. INDEMNIFICATION.

To the maximum extent permitted by law, Customer agrees to defend, indemnify and hold harmless Yembo, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings (each, a “Claim”), as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from: (i) Customer’s breach of any representation, warranty, covenant, obligation or other term of this Agreement, (ii) any violation of any applicable laws in connection with Customer’s use of the Services, including the TCPA, the Federal Trade Commission’s National Do Not Call Registry, CAN-SPAM Act, and any telemarketing regulations (iii) use of the Third Party Products and Services and (iv) the Optional Services, including without limitation, any content provided by or on behalf of Customer in connection therewith.

8. TERMINATION.

Either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of the same. Notwithstanding the foregoing, Yembo reserves the right to suspend Customer’s use of the Services promptly in the event Customer breaches this Agreement until such time Customer cures such breach within the ten (10) day period required to prevent a termination of this Agreement. Either party may terminate this Agreement for any reason (or no reason) at any time upon thirty (30) days’ written notice. Notice of termination by Customer shall be made by accessing Customer’s account and clicking the account termination button within the account settings, or by email from Customer to Yembo at termination@yembo.ai. Notice of termination from Yembo shall be made by delivery of a termination notice to Customer to the e-mail address provided for Customer’s account or any other email address that Customer provides to Yembo. Upon termination or expiration, Customer will no longer have access to any Services. Any Fees received by Yembo shall be retained upon termination or expiry of the Agreement and Customer shall not be entitled to any refunds of amounts already paid. Any expiration or termination of this Agreement shall neither limit any party from pursuing any remedies available to it in connection with this Agreement nor relieve any party from accrued obligations hereunder (including Customer’s obligation to pay any accrued Fees). Sections 1, 4, 5, 6, 7, 8 and 9 shall survive any expiration or termination of this Agreement.

9. GENERAL.

Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control. Neither party may assign or delegate its rights or obligations pursuant to this Agreement without the prior written consent of the other party; provided, however, that either may assign this Agreement or any rights and obligations hereunder to any successor to that portion of such party’s business to which this Agreement relates, whether by sale of securities, sale of assets, merger, consolidation, reorganization or any other similar transaction. Any notices given pursuant to this Agreement shall be in writing and considered given when received. No term of this Agreement shall be deemed waived, and no breach of this Agreement shall be deemed excused, unless the waiver or consent is in writing signed by the party granting such waiver or consent. If any term or provision of this Agreement is determined to be illegal or unenforceable by a court of competent jurisdiction, then such term or provision shall be deemed stricken and all other terms and provisions shall remain in full force and effect. This Agreement does not make either party an agent or legal representative of the other party and does not create a partnership or joint venture. Both parties are independent contractors and principals for their own accounts. Unless the context otherwise requires, whenever the words "including," "include," or "includes" are used in this Agreement, each such word will be deemed to be followed by "without limitation." The laws of the State of California shall govern this Agreement without regard to conflict of laws principles. This Agreement, together with each Order Form and any other documents expressly incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof and supersede and replace any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter, including the terms and conditions contained on any Customer purchase order or invoice.

Exhibit A

Order Form

To be filled based on Customer's Plan selection

Invite to Yembo Through SMS Service: As part of the Standard Services, Yembo shall facilitate the functionality to provide the delivery of an “Invite to Yembo Through SMS” message to a Moving Client’s mobile phone. Customer shall provide and direct the timing, frequency and content of all such messages to the Moving Client. Customer or Yembo (on behalf of Customer in Yembo’s sole discretion) shall obtain the appropriate product and service from Twilio (https://go.twilio.com/sms) which shall be considered a Third Party Product and Service for purposes of this Agreement. Yembo shall facilitate the use of this Third Party Product and Service; provided, however, notwithstanding the foregoing, Customer shall be fully responsible for the use and content provided on the mobile phone number used in connection with this Service. AS A RESULT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY CLAIMS BROUGHT AGAINST CUSTOMER AND YEMBO IN CONNECTION WITH THIS SERVICE AND THE CONTENT PROVIDED IN CONNECTION THEREWITH.

Landing Page Services: Included with the Standard Services, Yembo shall provide a “landing page” URL to which Customer may direct potential end users for moving services of household goods. All content and branding for such landing page shall be provided by Customer or at Customer’s direction. AS A RESULT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY CLAIMS (AS DEFINED IN THE AGREEMENT) BROUGHT AGAINST CUSTOMER AND YEMBO IN CONNECTION WITH THIS OPTIONAL SERVICE AND THE CONTENT PROVIDED IN CONNECTION THEREWITH.

Furthermore, upon a Customer’s arrival to the “landing page” URL, a Moving Client shall be provided an “Invite to Yembo Through SMS” message to such Moving Client’s mobile phone. As is the case with this function as a Standard Service, Customer shall provide the content of all such messages to the Moving Client and Customer or Yembo (on behalf of Customer in Yembo’s sole discretion) shall obtain the appropriate product and service from Twilio (https://go.twilio.com/sms) which shall be considered a Third Party Product and Service for purposes of this Agreement. Yembo shall facilitate the use of this Third Party Product and Service; provided, however, notwithstanding the foregoing, Customer shall be fully responsible for the use and content provided on the mobile phone number used in connection with this Service. AS A RESULT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY CLAIMS BROUGHT AGAINST CUSTOMER AND YEMBO IN CONNECTION WITH THIS OPTIONAL SERVICE AND THE CONTENT PROVIDED IN CONNECTION THEREWITH.

Optional Services

Interactivity Package: At Customer’s election, Yembo shall provide access to the Interactivity Package listed under (https://yembo.ai/plans)

As part of the Interactivity Package, Yembo shall facilitate the functionality for Customer to “chat” with the Moving Client for any questions Customer may have and to provide a quote through SMS and MMS messages to a Moving Client’s mobile phone. Customer shall provide and direct the timing, frequency and content of all such messages to the Moving Client. Customer or Yembo (on behalf of Customer in Yembo’s sole discretion) shall obtain, on behalf of Customer, the appropriate product and service from Twilio (https://go.twilio.com/sms) which shall be considered a Third Party Product and Service for purposes of this Agreement. Yembo shall facilitate the use of this Third Party Product and Service; provided, however, notwithstanding the foregoing, Customer shall be fully responsible for the use of and content provided on the mobile phone number used in connection with this Optional Service. AS A RESULT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY CLAIMS BROUGHT AGAINST CUSTOMER AND YEMBO IN CONNECTION WITH THIS OPTIONAL SERVICE AND THE CONTENT PROVIDED IN CONNECTION THEREWITH.

Yembo, Inc. Software-As-A-Service Agreement