This Reclaim Customer Agreement (this “Agreement”) is entered into by and between Reclaim.ai, Inc., a Delaware corporation (“Reclaim”), and Customer.  “Customer” means the company or other legal entity that entered into an Order Form (as defined below) referencing these Terms and Conditions.  This Agreement applies to Customer’s use of the Reclaim Product (as defined below).  You represent that you have the authority to bind Customer to the terms of this Agreement.  If you do not agree to the terms of this Agreement, or if you are not authorized to accept this Agreement on behalf of your organization or entity, do not access or use any of the Reclaim Products. 

Background
Reclaim has developed and makes available a SaaS-based product and service designed to help users align their calendar to their priorities, automatically synchronize the user’s personal and work calendars, defend their time with automated time blocking, as well as augment the appearance of their calendar to make it easier to see how the user is spending time at a glance (the “Reclaim Product”).  Subscriptions to Reclaim Products may be ordered by Customer pursuant to one or more ordering documents entered into between Customer and Reclaim or online orders made by Customer that set forth the specific Reclaim Product and pricing thereof, and the applicable subscription term thereof (“Order Form”). These Terms and Conditions and such Order Forms, which are hereby incorporated into, supplement and form a part of this Agreement, represent the parties' entire understanding regarding the Reclaim Product and shall control over any different or additional terms of any purchase order or other non-Reclaim ordering document, and no terms included in any such purchase order or other non- Reclaim ordering document shall apply to the Reclaim Product. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form shall control.

1.1 The following terms, when used in this Agreement will have the following meanings:

“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists.  For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.

“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Reclaim for the Reclaim Product.

“Non-Reclaim Product” means a third party or Customer web-based, mobile, offline or other software application that integrates with the Reclaim Product (other than third party data hosting services used by Reclaim).  For clarity, the Reclaim Product excludes Non-Reclaim Products.

“Order Form” means an order form, quote or other similar document that sets forth the specific Reclaim Product and pricing therefore, permitted number of users and subscription term, and that references this Agreement and is mutually executed by the parties.  

2.1 Provision of Reclaim Product. Subject to the terms and conditions of this Agreement, Reclaim will make the Reclaim Product available to Customer pursuant to this Agreement and the applicable Order Form and hereby grants Customer a non-exclusive right to access and use the Reclaim Product for its internal business purposes.

2.2 Data Security and Privacy.  Reclaim will use reasonable efforts to maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Reclaim Product (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, Reclaim will maintain the administrative, physical and technical safeguards to protect the security of Customer Data that are described in the Reclaim security page located at https://reclaim.ai/security. The Data Processing Addendum available at https://reclaim.ai/dpa (the “DPA”) shall govern Reclaim’s processing of any Customer Personal Data (as defined in the DPA) on behalf of Customer.

2.3 Customer Responsibilities.
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(a) Customer acknowledges that Reclaim’s provision of the Reclaim Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.

(b) Customer will (i) be responsible for all use of the Reclaim Product under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Reclaim Product and notify Reclaim promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Reclaim Product and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Reclaim Product, including as set forth in the Documentation.  Customer will be solely responsible for its failure to maintain such equipment, software and services, and Reclaim will have no liability for such failure.  

(c) Customer shall be responsible for the content of all communications sent by its users via the Reclaim Product.  Customer agrees that it will not use the Reclaim Product to communicate any message or material that (i) is libellous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutes or encourages conduct that could constitute a criminal offense.
2.4 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Reclaim and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.‍‍

3.1 Fees. Customer will pay Reclaim the fees set forth in the applicable Order Form.  Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer’s payment plan includes an ongoing subscription that is automatically renewed periodically, Customer hereby authorizes Reclaim to bill Customer’s payment instrument in advance on such periodic basis in accordance with the terms of the applicable Order Form until the expiration or termination of the applicable Order Form, and Customer further agrees to pay any and all charges so incurred.  If Customer requires an invoice for payment, Customer will pay all amounts due within thirty (30) days of the date of receipt of the applicable invoice, unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified, and if Reclaim has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Reclaim.  

3.2 Late Payment.  Reclaim may suspend access to the Reclaim Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.

3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Reclaim. Customer will not withhold any Taxes from any amounts due to Reclaim.

4.1 Proprietary Rights. As between the parties, Reclaim exclusively owns all right, title and interest in and to the Reclaim Product, System Data and Reclaim’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the Reclaim Product by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information. “System Data” means data collected by Reclaim regarding the Reclaim Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Reclaim Product.

4.2 Feedback.  Customer may from time to time provide Reclaim suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Reclaim Product.  Reclaim will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Reclaim will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

4.3 Machine Learning.  Customer acknowledges that a fundamental component of the Reclaim Product is the use of machine learning for the purpose of improving and providing Reclaim’s products and services.  Notwithstanding anything to the contrary, Customer agrees that Reclaim is hereby granted the right to use (during and after the term hereof) anonymized Customer Data to train its algorithms internally through machine learning techniques for such purpose.

4.4 Product Improvement and Aggregated Statistics. Customer further agrees that Reclaim has the right to aggregate, collect and analyze Customer Data and other information relating to the performance of the Reclaim Product and shall be free (during and after the term hereof) to (i) use such data and other information to improve Reclaim’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.

5.1 Confidentiality.  Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.  Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

5.2 Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Reclaim Product; (b) attempt to probe, scan or test the vulnerability of the Reclaim Product, breach the security or authentication measures of the Reclaim Product without proper authorization or willfully render any part of the Reclaim Product unusable; (c) use or access the Reclaim Product to develop a product or service that is competitive with Reclaim’s products or Product or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Reclaim Product or otherwise offer the Reclaim Product on a standalone basis; or (e) otherwise use the Reclaim Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.

6.1 Reclaim.  Reclaim warrants that it will, consistent with prevailing industry standards, provide the Reclaim Product in a professional and workmanlike manner and the Reclaim Product will conform in all material respects with the Documentation.  For material breach of the foregoing express warranty, Customer’s exclusive remedy shall be the re-performance of the deficient Reclaim Product or, if Reclaim cannot re-perform such deficient Reclaim Product as warranted within thirty (30) days after receipt of written notice of the warranty breach, Customer shall be entitled to terminate the applicable Order Form and recover a pro-rata portion of the prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. 

6.2 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Reclaim to use the same as contemplated hereunder.

6.3 DISCLAIMERS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  RECLAIM IS NOT RESPONSIBLE OR LIABLE FOR ANY NON-RECLAIM PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.

6.4 BETA PRODUCTS.  FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH RECLAIM WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY RECLAIM. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. RECLAIM DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR RECLAIM MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.

7.1 Indemnity by Reclaim.  Reclaim will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Reclaim Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Reclaim) in connection with any such Claim; provided that (a) Customer will promptly notify Reclaim of such Claim, (b) Reclaim will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Reclaim may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Reclaim in connection therewith.  If the use of the Reclaim Product by Customer has become, or in Reclaim’s opinion is likely to become, the subject of any claim of infringement, Reclaim may at its option and expense (i) procure for Customer the right to continue using and receiving the Reclaim Product as set forth hereunder; (ii) replace or modify the Reclaim Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.  Reclaim will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Reclaim Product by Customer not in accordance with this Agreement; (C) modification of the Reclaim Product by or on behalf of Customer; (D) Customer Confidential Information or (E) the combination, operation or use of the Reclaim Product with other products or services where the Reclaim Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”).  This Section states Reclaim’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

7.2 Indemnification by Customer. Customer will defend Reclaim against any Claim made or brought against Reclaim by a third party arising from an Excluded Claim; provided that (a) Reclaim will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Reclaim’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Reclaim of all liability) and (c) Reclaim reasonably cooperates with Customer in connection therewith.

UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.

9.1 Term.  The term of this Agreement will commence on the date of the first Order Form entered into hereunder and continue until terminated as set forth below.  The initial term of each Order Form will begin on the effective date of such Order Form and will continue for the subscription term set forth therein.  Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Reclaim may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current term, and such modified pricing will become effective thereafter at the time of the renewal.

9.2 Termination.  Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. 

9.3 Survival. Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.

10.1 Publicity.  Customer agrees that Reclaim may refer to Customer’s name and trademarks in Reclaim’s marketing materials and website; however, Reclaim will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).

10.2 Assignment; Delegation.  Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement.  Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

10.3 Amendment; Waiver.  Reclaim reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. Any modifications to these Terms and Conditions shall become effective upon the date of Customer’s next renewal. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.  Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

10.4 Relationship.  Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

10.5 Unenforceability.  If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

10.6 Governing Law.  This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.7 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, overnight delivery, or email. Notices to Customer may be sent to the address listed in Customer’s account or on the applicable Order Form, or email address provided by Customer when Customer creates its Reclaim Product account. Notices to Reclaim must be sent to the following:

Reclaim.ai, Inc.
548 Market St
PMB 83627
San Francisco, California 94104-5401
Attn: Legal
Email: [email protected]

10.8 Entire Agreement.  This Agreement comprises the entire agreement between Customer and Reclaim with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).  No oral or written information or advice given by Reclaim, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

10.9 Force Majeure.  Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

10.10 Government Terms.  Reclaim provides the Reclaim Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Reclaim Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement.  All other use is prohibited and no rights than those provided in this Agreement are conferred. The Reclaim Product was developed fully at private expense.

10.11 Interpretation. For purposes hereof, “including” means “including without limitation”.