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7/29/2019 PrintUI Terms of Service

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TERMS AND CONDITIONS

NIMBLEWARES PRINTUI.COM

WEB-TO-PRINT SERVICE

Definitions. As used in this Agreement:Company means the Company named in the Order Form.

"Content" means Templates, and any other creative elements,

trademarks, logos, content, data, and materials to augment

such Templates uploaded by Company on the Service.

"Term" means the period during which this Agreement is in

effect.

Nimbleware means Nimbleware Consulting LLC having an

office at 101 Cooper St., Santa Cruz, CA 95060.

"Order Form" means the initial on line order form for the

Service executed by the parties, and any subsequent order

forms executed by the parties from time to time and made a

part of this Agreement, specifying, among other things, the

Service tier selected (see Exhibit A), fees, the Term and othercharges as agreed to between the parties.

"Service" means Nimblewares hosted web to print service

that enables Company to upload Content and allow its Users

to make certain modifications and customizations to the

Content that may be printed as signs or similar documents tobe provided to such Users by Company.

Templates means document or signage templates designed

using Adobes InDesign tool.

"Users" means Companys personnel and its customers who

buy signage and related documents from Company who areprovided with access to the Services by Company.

Service.Implementation of Service. Nimbleware shall make the

Service available to Company for up to the number ofTemplates set forth in the Order Form, on the terms set forthin this Agreement, the Order Form, and any subsequent Order

Forms executed by the parties.

Professional Services. Company may requestNimbleware to provide certain professional services that are

ancillary to the Services, such as integration or customization(Professional Services). In such event, the parties will

enter into a Statement of Work (SOW) that sets forth the

scope and description of the Professional Services,

deliverables, parties responsibilities, completion dates, fees

and payment terms, and any other relevant information.

Use of the Service.Access. Nimbleware will provide Company with login

authentication procedures for accessing the Service. Company

is responsible for all activities that occur under Companys

User accounts. Company shall: (i) have sole responsibility fo

the accuracy, quality, integrity, legality, reliability, and

appropriateness of all Content; (ii) prevent unauthorized

access to, or use of, the Service and notify Nimbleware

promptly of any unauthorized use; and (iii) comply with al

applicable local, state, federal, and foreign laws in using theService.

Service Guidelines. Company shall use the Servicesolely for its Users as contemplated by this Agreement and

shall not resell or sublicense the Service to any third party

Company shall not: (i) transmit through or upload on the

Service unlawful, immoral, libelous, tortuous, infringingdefamatory, threatening, vulgar, or obscene material or

material harmful to minors; (ii) transmit or upload materia

containing software viruses or other harmful or deleterious

computer code, files, scripts, agents, or programs; (iii)

interfere with or disrupt the integrity or performance of the

Service or the data contained therein; (iv) attempt to gainunauthorized access to the Service, computer systems, or

networks related to the Service; or (v) harass or interfere with

another users use and enjoyment of the Service.

Privacy & Security. Company will establish and enforcecustomary privacy and security policies. Nimbleware does no

have access to and is not responsible for personally

identifiable information of Users. Any log-in information

provided by Company will be treated as Confidentia

Information of Company. To the extent Nimbleware post

privacy and security policies applicable to its usersNimbleware reserves the right to modify its privacy andsecurity policies in its reasonable discretion from time to time.

Publicity. Nimbleware and its affiliates shall be permittedto use Companys name and logo on the Nimbleware website

in testimonials, in press releases, and within marketing

materials. With Companys prior consent, Nimbleware mayissue press releases relating to this Agreement.

Fees & Payment.Fees. Company shall pay the monthly fees specified in

the attached Order Form attached (subject to change with 30

days notice). Company shall pay any additional fees as

indicated in any signed and approved additional Order Forms

and in any executed SOW. All fees are quoted in UnitedStates Dollars. Fees are non-refundable except as otherwise

specifically set forth in this Agreement.

Out-of Scope-Work. Any work outside the scope of theOrder Form or SOW performed by Nimbleware pursuant toCompanys request will be billed at Nimblewares standard

hourly rates in 15 minute-increments, unless otherwise se

forth in an executed Statement of Work.

Invoicing & Payment. Monthly service fees shall bepayable in advance before the first day of each month

Nimbleware shall invoice Company for Professional Services

in accordance with the terms of the relevant Order Form orSOW. Charges invoiced shall be payable thirty (30) days

from the invoice date unless otherwise specified. Al


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payments made under this Agreement shall be in United States

dollars. Company is solely responsible for pricing, payment

terms and collection as between Company and Users.

Overdue Payments. Any payment not received fromCompany by the due date may accrue, at Nimblewares

discretion, late charges at the rate of one and a half percent(1.5%) of the outstanding balance per month, or at the

maximum rate permitted by law, whichever is lower; from the

date such payment was due until the date paid.

Suspension of Service. If Companys account isoverdue, in addition to any of its other rights or remedies,

Nimbleware reserves the right to suspend the Service provided

to Company, without prior notice or liability to the Company,

until such amounts are paid in full.

Taxes. Nimblewares fees are exclusive of all local, state,federal, and foreign taxes, levies, or duties of any nature

("Taxes"), and Company is responsible for payment of all

Taxes, excluding only United States taxes based onNimblewares income. If Nimbleware has the legal obligation

to pay or collect taxes for which Company is responsible

pursuant to this Section 4.6, the appropriate amount shall beinvoiced to and paid by Company, unless Company providesNimbleware with a valid tax exemption certificate authorized

by the appropriate taxing authority.

Billing and Contact Information. Company shallensure that Company maintains complete, accurate, and up-to-

date Company billing and contact information via the onlineCompany account section of the Service at all times.

Proprietary Rights.Reservation of Rights. Nimbleware owns all rights, title

of interest in and to (i) the Nimbleware trademarks, servicemarks, logos, domain names, the product names and other

branding elements associated with the Service; (ii) audio and

visual information, documents, software, and other works of

authorship, and other technology, hardware, products,

processes, algorithms, user interfaces, know-how and other

trade secrets, techniques, designs, inventions, and othertangible or intangible technical material or information used to

provide the Services, and/or conceived or developed under or

in connection with any SOW (collectively "Nimbleware

Technology"), and all intellectual property rights therein("Nimbleware IP Rights"). Other than as expressly set forth

in this Agreement, no license or other rights in the

Nimbleware IP Rights are granted to the Company, and allsuch rights are hereby expressly reserved.

License Grant. Company grants to Nimbleware a non-exclusive, non-sublicenseable, non-transferable license to use,

copy, store, modify, and display the Content solely to the

extent necessary to provide the Service and only during the

Term.

Restrictions. Company shall not (i) modify, copy ormake derivative works based on the Nimbleware Technology;or (ii) disassemble, reverse engineer, or decompile any of the

Nimbleware Technology. Company shall not resell or

sublicense any of the Nimbleware Technology or Services

without written consent from Nimbleware.

Content. As between Nimbleware and Company, alContent uploaded by Company to the Service remains the sole

property of Company. Notwithstanding anything to thecontrary, Nimbleware may use statistics based on Company

usage as aggregated with Nimblewares other customers data

for marketing purposes. Company acknowledges tha

Nimbleware may have templates and content similar to the

Content and nothing in this Agreement restricts Nimblewares

rights to independently develop or fully exploit such templatesand content.

Suggestions, Ideas and Feedback. Nimbleware shalhave the unrestricted right and license to use or act upon any

suggestions, ideas, enhancement requests, feedbackrecommendations, or other information provided by Company

or any other party relating to the Service to the extent it doesnot constitute Confidential Information of Company.

Confidentiality.Definition of Confidential Information. As used herein

"Confidential Information" means all information of a party

("Disclosing Party") which the Disclosing Party designates in

writing as being confidential when it discloses such

information to the other party ("Receiving Party"), including

without limitation the terms and conditions of this Agreement

the Nimbleware Technology, the Service, business andmarketing plans, technology and technical information

product designs, and business processes (whether in tangibleor intangible form, in written or in machine readable form, or

disclosed orally or visually). Confidential Information shal

not include any information that: (i) is or becomes generally

known to the public without the Receiving Party's breach ofany obligation owed to the Disclosing Party; (ii) was

independently developed by the Receiving Party without the

Receiving Party's breach of any obligation owed to the

Disclosing Party; or (iii) is received from a third party who

obtained such Confidential Information without any thirdparty's breach of any obligation owed to the Disclosing Party.

Protection. Each party will not disclose the other partysConfidential Information, or use the other partys Confidentiainformation for any purpose other than to perform its

obligations or exercise its rights under this Agreement, and

will protect the confidentiality of the Confidential Information

of the other party in the same manner that it protects theconfidentiality of its own proprietary and confidentia

information of like kind, but in no event shall either party

exercise less than reasonable care in protecting such

Confidential Information.

Compelled Disclosure. If the Receiving Party iscompelled by law to disclose Confidential Information of the

Disclosing Party, it shall provide the Disclosing Party withprior written notice of such compelled disclosure and

reasonable assistance (at Disclosing Party's cost) if the

Disclosing Party wishes to contest the disclosure.


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6.4 Remedies. If the Receiving Party discloses or uses (or

threatens to disclose or use) any Confidential Information of

the Disclosing Party in breach of this Section 6, the Disclosing

Party shall have the right, in addition to any other remedies

available to it, to seek injunctive relief to enjoin such acts, it

being specifically acknowledged by the parties that any otheravailable remedies are inadequate.

Warranty Disclaimer.NIMBLEWARE MAKES NO WARRANTY OF ANY

KIND, WHETHER EXPRESS, IMPLIED, STATUTORY,

OR OTHERWISE. NIMBLEWARE HEREBY

SPECIFICALLY DISCLAIMS ALL IMPLIED

WARRANTIES, INCLUDING ANY WARRANTY OF

MERCHANTABILITY, NONINFRINGEMENT, OR

FITNESS FOR A PARTICULAR PURPOSE, TO THE

MAXIMUM EXTENT PERMITTED BY APPLICABLELAW.

Indemnification.Indemnification by Nimbleware. Subject to this

Agreement, Nimbleware shall defend, indemnify, and holdCompany harmless against any loss or damage (including

without limitation reasonable attorney's fees) incurred in

connection with claims, demands, suits, or proceedings

("Claims") made or brought against Company by a third party

alleging that Nimblewares proprietary software and

technology powering the Service infringes the copyright or

incorporates misappropriated trade secret of a third party;provided, that Company (a) promptly gives written notice of

the Claim to Nimbleware; (b) gives Nimbleware sole controlof the defense and settlement of the Claim (provided that

Nimbleware may not settle or defend any Claim unless it

unconditionally releases Company of all liability); and (c)

provides to Nimbleware, at Nimbleware's cost, all reasonableassistance. Nimbleware shall have no obligations to Company

under this Section 8.1 to the extent such Claims arise from

Content, Companys or its User's breach of this Agreement or

from the combination of the Service with any of Company's

products, services, hardware or business processes.

Indemnification by Company. Subject to thisAgreement, Company shall defend, indemnify, and hold

Nimbleware harmless against any loss or damage (includingwithout limitation reasonable attorney's fees) incurred in

connection with Claims made or brought against Nimbleware

by a third party (i) alleging that the Content or the use thereof

has caused harm to a third party or infringes the copyright orincorporates misappropriated trade secret of a third party, or

(ii) arising from Companys use of the Service (other than the

claim against which Nimbleware is obligated to indemnify

Company as set forth in Section 8.1); provided, that

Nimbleware (a) promptly gives written notice of the Claim to

Company; (b) gives Company sole control of the defense and

settlement of the Claim (provided that Company may notsettle or defend any Claim unless it unconditionally releases

Nimbleware of all liability); and (c) provides to Company, at

Company's cost, all reasonable assistance. Company shall

have no obligations to Nimbleware under this Section 8.2 to

the extent such Claims arise from Nimblewares breach of this

Agreement.

Limitation of Liability and Action.Limitation of Liability. IN NO EVENT SHALL

NIMBLEWARE HAVE ANY LIABILITY TO COMPANYFOR ANY LOST PROFITS, LOSS OF DATA, LOSS OFUSE, COSTS OF PROCUREMENT OF SUBSTITUTEGOODS OR SERVICES, OR FOR ANY INDIRECT

SPECIAL, INCIDENTAL, PUNITIVE, OR

CONSEQUENTIAL DAMAGES HOWEVER CAUSED

AND, WHETHER IN CONTRACT, TORT OR UNDER

ANY OTHER THEORY OF LIABILITY WHETHER OR

NOT NIMBLEWARE HAS BEEN ADVISED OF THE

POSSIBILITY OF SUCH DAMAGE. IN NO EVENT

SHALL NIMBLEWARES AGGREGATE LIABILITY

ARISING OUT OF OR RELATED TO THIS AGREEMENTWHETHER IN CONTRACT, TORT OR UNDER ANY

OTHER THEORY OF LIABILITY, EXCEED THE LESSEROF $1,000 OR THE AMOUNTS ACTUALLY PAID BY

AND DUE FROM COMPANY FOR THE SERVICE

DURING THE ONE (1) YEAR PERIOD IMMEDIATELY

PRECEDING THE DATE THE CAUSE OF ACTIONAROSE.

Limitation of Action. Except for actions for nonpayment or breach of either partys intellectual property rights

no action (regardless of form) arising out of this Agreemen

may be commenced by either party more than two (2) years

after the expiration of the Term.

Term & Termination. Term of Agreement. This Agreement commences

on the Effective Date and shall continue until terminated

pursuant to the terms of this Agreement.

Termination. Either party may terminate thisAgreement for any reason or no reason (i) upon thirty (30

days written notice to the other party; or (ii) if the other party

becomes the subject of a petition in bankruptcy or any

proceeding relating to insolvency, receivership, liquidation, orassignment for the benefit of creditors.

Outstanding Fees. Termination shall not relieveCompany of the obligation to pay any fees accrued or payable

to Nimbleware prior to the effective date of termination.

10.4 Return of Content. Upon written request byCompany within thirty (30)days of the effective date oftermination, Nimbleware shall make available to Company a

copy of Company Content and related data stored as part of

the Service. After such thirty (30) day period, Nimbleware

shall have no obligation to store or provide access to anyContent.

10.5 Surviving Provisions. The following provisions shal

survive the termination or expiration of this Agreement for

any reason and shall remain in effect after any such


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termination or expiration: Sections 5 (excluding Section5.2),

6, 7.2, 8, 9, 10 and 11.

11. General Provisions.

11.1 Relationship of the Parties. This Agreement does not

create a partnership, franchise, joint venture, agency,fiduciary, or employment relationship between the parties.

11.2 No Benefit to Others. The representations, warranties,

covenants, and agreements contained in this Agreement are for

the sole benefit of the parties and their respective successors

and permitted assigns, and they are not to be construed as

conferring any rights on any other persons.

11.3 Notices. All notices under this Agreement shall be in

writing and shall be delivered to the addresses set forth in the

first paragraph of this Agreement by means evidenced by a

delivery receipt, by facsimile, or by email. Notice shall bedeemed to have been given upon: (i) personal delivery; (ii) the

second business day after mailing; (iii) 48 hours after sending

by confirmed facsimile; or (iv) 48 hours after sending byemail. Notices to Nimbleware shall be addressed to the

attention of its Chief Operations Officer, with a copy to itsChief Legal Officer or General Counsel.

11.4 Waiver and Cumulative Remedies. No failure or delay

by either party in exercising any right under this Agreement

shall constitute a waiver of that right. Other than as expressly

stated herein, the remedies provided herein are in addition to,

and not exclusive of, any other remedies of a party at law or inequity.

11.5 Severability. If any provision of this Agreement is heldby a court or arbitrator of competent jurisdiction to be contrary

to law, the provision shall be changed by the court or by the

arbitrator and interpreted so as best to accomplish theobjectives of the original provision to the fullest extentpermitted by law, and the remaining provisions of this

Agreement shall remain in effect, unless the modification or

severance of any provision has a material adverse effect on a

party, in which case such party may terminate this Agreement

by notice to the other party.

11.6 Assignment. Neither party may assign any of its rights

or obligations hereunder, whether by operation of law or

otherwise, without the prior express written consent of theother party. Notwithstanding the foregoing, either party may

assign this Agreement without consent of the other party in

connection with a merger, acquisition, corporatereorganization, or sale of all or substantially all of its assets.

Any attempt by a party to assign its rights or obligations under

this Agreement in breach of this Section 11.6 shall be void and

of no effect. Subject to the foregoing, this Agreement shal

bind and inure to the benefit of the parties, their respective

successors and permitted assigns.

11.7 Governing Law and Venue. This Agreement shall begoverned exclusively by, and construed exclusively in

accordance with, the laws of the United States and the State of

California, without regard to its conflict of laws provisions

The federal and state courts located in the Southern District o

California shall have jurisdiction to adjudicate any dispute

arising out of or relating to this Agreement. Each party herebyconsents to the jurisdiction of such courts and waives any righ

it may otherwise have to challenge the appropriateness of such

forums, whether on the basis of the doctrine of forum non

conveniens or otherwise.

11.8 Export Control Laws. Each party shall comply with

all United States and foreign export control laws or regulationsapplicable to its performance under this Agreement.

11.9 Entire Agreement and Construction. This Agreement

the initial Order Forms, any approved additional Order Formsand any SOWs constitute the entire agreement between theparties as to its subject matter, and supersede all previous and

contemporaneous agreements, proposals, or representations

written or oral, concerning the subject matter of this

Agreement. Except as contemplated to the contrary herein

with respect to Order Forms, no modification, amendment, or

waiver of any provision of this Agreement shall be effective

unless in writing and signed by the party against whom themodification, amendment, or waiver is to be asserted. In the

event of any conflict between the provisions in this Master

Services Agreement and any Order Form, or SOW the terms

of the Order Form or SOW shall prevail to the extent of any

inconsistency. Notwithstanding any language to the contrarytherein, no terms or conditions stated in a Company purchase

order or in any other Company order documentation shall be

incorporated into or form any part of this Agreement.

11.10 Force Majeure. Neither party will be deemed inbreach of this Agreement if the failure to perform is caused by

circumstances beyond its reasonable control, including

without limitation acts of God, acts of government, flood, fireearthquake, civil unrest, acts of terror, strikes or labor

problems, computer, internet, or telecommunications failures

delays or network intrusions, or denial of service attacks.


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EXHIBIT A SERVICE TIERS

A. Starter PlanLimited to less then 100 templates per hosted site (unique domain URL).

B. Premium PlanLimited to between 100 and 499 templates per hosted site (unique domain URL).

C. Unlimited PlanUnlimited number of templates up to a maximum of 3 hosted sites (unique domain URLs).

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