Terms of Use

Overview

These Terms of Use (this "Agreement"), effective as of the date on which you click a button or check a box (or something similar) acknowledging your acceptance of this Agreement, you execute with Dreamerly an Order that incorporates this Agreement by reference, you register for a Services account, or you otherwise agree to the terms of this Agreement (the "Effective Date"), is by and between Tinai Private Limited, a Singapore company with a place of business at 1 Robinson Road, AIA Tower #17-00, SINGAPORE 048542 ("Dreamerly") and the entity on whose behalf the individual accepting this Agreement accepts this Agreement ("Customer"). The individual accepting this Agreement hereby represents and warrants that it is duly authorized by the entity on whose behalf it accepts this Agreement to so accept this Agreement.

1. CERTAIN DEFINITIONS

In addition to any other capitalized terms defined throughout the body of this Agreement, the following capitalized terms have the following definitions:

1.1 "Order" means: (i) a purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference; or (ii) if Customer registered for the Services through Company's online ordering process, the results of such online ordering process

1.2 "Platform" means Dreamerly's proprietary hosted software platform for subscription tracking and related analytics.

1.3 "Dreamerly Checkout" means Dreamerly's proprietary service offering that facilitates the processing of payments for Customer's subscription-based products and services.

1.4 "Services" means the services selected by Customer in an Order, which may include the Platform, Dreamerly Checkout, and other services made available by Dreamerly from time to time. 1.5 "Usage Limitations" means the usage limitations set forth in this Agreement and the Order, including without limitation any limitations on the number of Authorized Users (if any), and the applicable product, pricing, and support tiers agreed upon by the parties.

2. SERVICES AND SUPPORT

2.1 Provision of Services. Subject to the terms of this Agreement, Dreamerly will use commercially reasonable efforts to provide Customer the Services selected by Customer in an Order. The Platform includes access to all features provided by Dreamerly including the maximum amount of tracked revenue every month communicated to Customer in an Order.

2.2 Relationship with payment services providers. With respect to other Services offered by Dreamerly under this Agreement, payment processing-related services may be provided by other third-party payment processors (such as Google Inc., Apple Inc., or their respective affiliates). For purposes of clarity, Dreamerly is not a party to Customer's agreements with other third-party payment processors, Customer acknowledges that its information may be processed by such third parties in accordance with their respective privacy policies or notices, as applicable, and Dreamerly makes no representations or warranties of any kind with respect such third parties or their respective product or service offerings. Further, the payment processing-related services provided by those companies are not included in the definition of Services. Customer will at all times comply with the Connected Account Agreement or the Customer's agreement(s) with such other companies, as applicable.

3. RESTRICTIONS AND RESPONSIBILITIES

3.1 General Restrictions. Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, or documentation related to the Services ("Software"); (ii) modify, translate, or create derivative works which are directly competitive to Dreamerly's offerings and which are based on the Services or Software (except to the extent expressly permitted by Dreamerly or authorized within the Services); (iii) use the Services or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove any proprietary notices or labels; or (v) use the Services other than as set forth in Dreamerly's then-current product documentation for the applicable Service(s) (the "Documentation") and in accordance with the Usage Limitations (if any).

3.2 Export Controls and Government Customers. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are "commercial items" and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

3.3 Policy Compliance; Monitoring. Customer represents, covenants and warrants that Customer will use the Services only in compliance with Dreamerly's standard published policies then in effect and all applicable laws and regulations. Although Dreamerly has no obligation to monitor Customer's use of the Services, Dreamerly may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. 3.4 Customer Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.

4. CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1 Confidentiality. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the

Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Dreamerly includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Dreamerly to enable the provision of the Services, including, to the extent applicable, Connected Account Data ("Customer Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. On the expiration or termination of the Agreement, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each party's obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

4.2 Customer Data. Customer shall own all rights, title, and interest in and to the Customer Data.

4.3 Aggregated and Anonymized Data. Notwithstanding anything to the contrary, Dreamerly shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Dreamerly will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Dreamerly offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4.4 Proprietary Rights. Dreamerly shall own and retain all right, title, and interest in and to (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Implementation Services or support, (c) aggregated and/or de-identified data prepared pursuant to Section 4.3, and (d) all intellectual property rights related to any of the foregoing. 4.5 Publicity. Customer grants Dreamerly permission to use any name or logo of Customer or its applications in any marketing materials of the Dreamerly.

5. PAYMENT OF FEES

5.1 Fees. Customer will pay Dreamerly the then applicable fees described in the Order for the Services in accordance with the terms therein (the "Fees"). If Customer's use of the Services exceeds the Usage Limitations or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Dreamerly reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Dreamerly has billed Customer incorrectly, Customer must contact Dreamerly no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Dreamerly's customer support department.

5.2 Payment Terms. Dreamerly may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Dreamerly thirty (30) days after receipt of the invoice by the Customer and including electronic receipt via email. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all direct taxes associated with Services other than applicable federal, state, and local taxes in the U.S. and in other countries and territories based on Dreamerly's income.

6. TERM AND TERMINATION

6.1 Term. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the "Term"), unless either party provides the other party with notice of non renewal at least thirty (30) days prior to the end of the then-current term.

6.2 Termination. Dreamerly may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues for more than ten (10) calendar days after Dreamerly's delivery of written notice thereof; or (ii) breaches Sections 2.2, 2.4, or 3. Further, either party may terminate this Agreement, effective on written notice to the other party if the other party: (a) materially breaches this Agreement and such breach (x) is incapable of cure or (y) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching party provides the other party with written notice of such breach; (b) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (c) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 6.3 Effects of Termination; Survival. In the case of termination by Dreamerly for a Customer's an uncured material breach, Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Dreamerly will make all Customer Data available to Customer for electronic retrieval for a period of sixty (60) days, but thereafter Dreamerly will delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. LIMITED WARRANTY AND DISCLAIMER

Dreamerly shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Dreamerly or by third-party providers, or because of other causes beyond Dreamerly's reasonable control, but Dreamerly shall use commercially reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. HOWEVER,

DREAMERLY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED "AS IS" AND DREAMERLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. INDEMNITY

Customer will defend or settle, at Customer's option, any claim, suit, action, or proceeding brought by a third party (each a "Third Party Claim") against Dreamerly or its affiliates, or its or their respective directors, officers, employees, contractors, successors, or assigns (the "Dreamerly Indemnitees") relating to: (i) Customer's actual or alleged breach of Sections 2 or 3; (ii) Customer's actual or alleged violation of Auto-Renewal Laws or any other applicable law, rule, or regulation; (iii) the content of any Customer Data; or (iv) Customer's use of the Services other than as authorized under this Agreement, and will indemnify Dreamerly and the Dreamerly Indemnitees from and against any and all losses, liabilities, damages, settlement amounts, costs, and expenses (including reasonable attorneys' fees and court costs) incurred by Dreamerly, awarded against Dreamerly by a court of competent jurisdiction, or agreed-to in a mutually approved settlement, in connection with any such Third Party Claim.

9. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, DREAMERLY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (I) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (II) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (III) FOR ANY MATTER BEYOND DREAMERLY'S REASONABLE CONTROL; OR (IV) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO DREAMERLY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT DREAMERLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by Customer except with Dreamerly's prior written consent. Dreamerly may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers must be in a writing signed by both parties, except as otherwise provided herein. Dreamerly may change this Agreement (except for any Orders) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. Dreamerly will provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer's Services account or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Services after the effective date of the revised Agreement, such access and use will constitute Customer's acceptance of the revised Agreement beginning at the next renewal period or, if Customer enters into a new Order with Dreamerly, as of the date of execution of such Order. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Dreamerly in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover commercially reasonable costs and attorneys' fees. All notices under this Agreement must be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed, if transmitted by email to hello@dreamerly.com; the day after it is sent, if sent for the next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Any written notice that is delivered in a non-email format must be accompanied by a contemporaneous copy sent via email to hello@dreamerly.com. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Customer otherwise agrees to reasonably cooperate with Dreamerly to serve as a reference account upon request.

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