Customer: Terms of Service

Updated December 2, 2021

This Services Agreement is entered into between Observa, Inc., a Delaware corporation based in Seattle, Washington (“Observa,” “we,” “us”), and the company that is executing this Agreement (hereinafter “Customer”) with Observa and this Agreement shall govern the Services (as defined below) provided by Observa for the Customer as referenced herein.
The parties desire to enter into this Agreement whereby, Customer shall have access to the Observa Services to conduct retail merchandising and/or audit campaigns, in accordance with the terms and conditions of this Agreement. The services provided may include retail merchandising audits, communication with store employees about out of stock conditions or other merchandising matters, and interaction with products and/or promotional materials.

NOW, THEREFORE, the parties agree as follows:

This Agreement governs your use, including all use by your employees, officers, or agents, of our services, which include the services facilitated through the Observa Website, mobile apps, and other online areas owned or operated by us (“the Services”).

The term “Observer” means any member of the public registered to use the Services for the purposes of submitting information through the Services via our mobile apps.

TERM

This Agreement will continue in effect until services are terminated by you or by Observa, or if later, through the term of your continued use of the Services.

Observa reserves the right to modify or discontinue, temporarily or permanently, at its sole discretion, all or any part of the Services at any time.

Observa reserves the right to update and change this Agreement from time to time and you will be deemed to have accepted the changed provisions if you continue to use the Services for thirty (30) days after receiving notice of the changes. Observa will not be liable for any consequences of such changes, whether or not Observa has knowledge of the possibility thereof. You agree to monitor this Agreement for any changes.

Any new features that modify the Services, including the release of new tools and resources, shall be subject to this Agreement. Continued use of the Services after any such changes shall constitute your consent to and acceptance of such changes.

GRANT OF LICENSE AND PERMITTED USES

Observa grants you the right to access and use the Services solely with supported browsers through the Internet for the internal business purposes of the Customer. You will not use the Services for the benefit of third parties, or permit such use, except to the extent that you have a binding agreement with such third party that fully authorizes you to enter into this Agreement and to use the Services on behalf of or for the benefit of such third party. Upon Observa’s request, you agree to provide Observa with a copy of any such agreement. Nothing in this Agreement shall be construed to grant you any right to transfer or assign rights to access or use the Services. All rights not expressly granted to you are reserved by Observa and its licensors.

You shall not:
1) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way;
2) modify or make derivative works based upon the Services;
3) reverse-engineer or access the Services in order to
a) build a competitive product or service,
b) build a product using similar features, functions, or graphics of the Services, or
c) copy any features, functions, or graphics of the Services

You further acknowledge and agree that, as between the Parties, Observa owns all right, title, and interest in and to the Services, including all intellectual property rights therein.

RELATIONSHIP OF THE PARTIES

Observa provides the Services to you only for the purposes set forth in this Agreement. Nothing in this Agreement shall be construed to render you an employee, partner, agent of, or joint venturer of Observa.

FEES

Observa will only charge you fees for the Services transactions you authorize through your communication with Observa.

In the event Services paid for by you are not provided by Observa to your reasonable satisfaction, Observa shall refund all fees paid for the unsatisfactorily performed Services, provided that you request such refund within thirty (30) days of when the Services in question were initiated by you, including all relevant details concerning your dissatisfaction.

OBSERVA’S CONTROL OVER CONTENT

Observa reserves the right at any time, for the protection and benefit of all Customers, to remove from its site any Customer-generated content that it deems at its sole discretion to be either harmful or inappropriate without notification to nor consent from the Party originating the content.

PRIVACY AND CONFIDENTIALITY

The Observa Privacy Policy, is hereby incorporated by reference into this Agreement in its entirety. The Privacy Policy is posted on the Website and may be updated from time to time. You may view the Privacy Policy by clicking here http://www.Observanow.com/privacy-policy.

INFORMATION POSTED ON THE WEBSITE

You are solely responsible for information that you and your employees, officers and agents post through the Services. Observa claims no ownership or control over any information submitted, posted, or displayed by you on or through the Services. You retain all trademark and copyright rights and interests to and in any content you submit, post, or display on or through the Services.

LICENSE GRANT TO OBSERVA

By submitting, posting, or displaying information on or through the Services which are intended to be available to the members of the public, you grant Observa a worldwide, non-exclusive, royalty-free license to reproduce, adapt, modify, publish, and distribute such information through the Services for the purposes of providing the Services and for promoting the Services.

ACCURACY OF CONTENT

You are solely responsible for the accuracy of the information, promotions, offers, announcements, events, and other content that you post or transmit through the Services. You agree that in submitting content or otherwise using the Services that you will not impersonate any person, or submit any materials to Observa that are false, inaccurate, misleading, unlawful, or are otherwise in violation of your obligations under these this Agreement. You represent and warrant that you have all the rights, power, and authority necessary to grant the rights granted herein to any content submitted.

IMPERMISSIBLE ACTS

You agree not to:
1) upload, post, email, transmit or otherwise make available any information, materials or other content that is illegal, harmful, threatening, abusive, harassing, defamatory, obscene, pornographic, offensive, invades another’s privacy, or promotes bigotry, racism, hatred, or harm against any individual or group;
2) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
3) upload, post, email, transmit or otherwise make available any information, materials or other content that infringes another’s rights, including any intellectual property rights;
4) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
5) use any manual or automated software, devices, or other processes to “crawl,” “spider” or “screen scrape” any web pages contained in the Website;
6) reverse engineer, decompile or disassemble any of the software used to provide the Website;
7) reproduce, duplicate or copy or exploit any other portion of the Website, without the express written permission of Observa;
8) interfere with or disrupt the Website, or any servers or networks connected to the Website, or disobey any requirements, procedures, policies, or regulations of networks connected to the Website;
9) obtain, collect, store, or modify the personal information about other users;
10) modify, adapt, or hack the Website or falsely imply that some other site is associated with the Website or Observa; or
11) use the Website for any illegal or unauthorized purpose.

VIOLATION OF AGREEMENT

Observa reserves the right to investigate and prosecute violations of any provision of this Agreement. Observa may involve and cooperate with law enforcement authorities in prosecuting those who violate this Agreement in any manner that might constitute a violation of applicable laws. You acknowledge that Observa has no obligation to pre-screen or monitor your access to or use of the Website or any information, materials or other content provided or made available by you through the Services, but has the right to do so.

INDEMNIFICATION

You agree to indemnify, defend, and hold Observa harmless from and against any and all losses, costs, expenses, damages, or other liabilities of any kind (including reasonable attorneys’ fees) incurred by Observa from and against any cause of action, claim, suit or proceeding brought by a third party against Observa arising out of, relating to or in connection with your products or services or otherwise resulting from your actions. You agree to hold harmless and indemnify Observa for any and all liability arising from your violation of any such statute, regulation, or common law.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT: EXCEPT AS OTHERWISE
PROVIDED HEREIN OR BY LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK. THE
SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, OBSERVA EXPRESSLY DISCLAIMS ALL
WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT OBSERVA SHALL NOT BE LIABLE
TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF
PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF OBSERVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i)
THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT
OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA,
INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED
OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OBSERVA SERVICES; (iii)
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA BY THIRD PERSONS; OR (iv) ANY OTHER MATTER RELATING TO OBSERVA SERVICES NOT INVOLVING OBSERVA’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY AMOUNT EXCEEDING THE FEES PAID HEREUNDER.

EXCLUSIONS AND LIMITATIONS

NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION,
WARRANTY, RIGHT, OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR
LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR
LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF
IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY,
ONLY THE ABOVE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

NOTICE

Any notices under this Agreement by either Party to the other may be effected by email. Notices to Observa shall be emailed to support@observanow.com. Notices to you will be sent to the email address provided by you in your Observa account profile.

ASSIGNMENT

Neither this Agreement nor any duties or obligations under this Agreement may be assigned by you without the prior written consent of Observa. Observa shall have the right to assign all of its rights and obligations hereunder, including but not limited to connection with a merger, sale or reorganization involving any of Observa’s assets or capital stock.

SEVERABILITY

If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

ALTERNATIVE DISPUTE RESOLUTION; FORUM SELECTION

Any dispute, controversy or claim arising out of or relating to this Agreement or the breach of this Agreement will be settled first by good faith negotiation between you and Observa. If the matter is not resolved through good faith negotiation, such disputes, controversies, or claims may then be submitted to mediation. Any matter not being settled by negotiation or mediation shall be fully and finally settled by arbitration under the rules of a recognized Alternative Dispute Resolution (“ADR”) group in King County, Washington by one arbitrator either mutually agreed upon by the Parties or chosen in accordance with the ADR rules, and the judgment upon award may be entered in any court having jurisdiction thereof.

ATTORNEYS’ FEES

If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees in addition to any other relief to which that Party may be entitled. The attorneys’ fees may be set by the court in the same action or in a separate action brought for that purpose.

GOVERNING LAW

This Agreement will be governed by and construed in accordance with the laws of the State of Washington, without regard for its conflict of law principles. To the extent any matter between the Parties is deemed not subject to the Alternative Dispute Resolutions provisions above, you and Observa agree to submit to the personal jurisdiction of the courts located within King County, Washington for the purpose of litigating all such claims or disputes.