This Mobile App Testing Agreement ("Agreement") is entered into as of the date the software was first used ("Effective Date") between Yembo, Inc., a Delaware corporation ("Yembo") and the user using the software (the "User"). Collectively, Yembo and the User shall be referred to as the "Parties" and individually as a "Party".
1.1 Yembo agrees to provide access to 3D scanning software (the "App") to User. User shall use the App to capture and upload 3D models of rooms in their home (the "Services").
1.2 The App requires certain models of hardware in order to function properly. User has access to one of these devices for use in performing the Services. Yembo will not provide a device to User in connection with the Services.
1.3 The Parties shall regularly communicate about all relevant matters with regard to the Services. Yembo shall inform the User about any unforeseen results, problems or difficulties with regard to the Services.
1.4 Unless otherwise agreed in writing, Yembo will not compensate User for performance of the Services.
In consideration of the Services performed by User, User grants to Yembo the ownership rights to the Deliverables and the Results (as defined and described in Section 4 of this Agreement). The Parties hereby acknowledge and agree that the consideration under this Agreement is consistent with the fair market value in arm's length transactions for a pilot program and that the consideration herein is in full compliance with all applicable laws, rules, and regulations.
"Confidential Information" shall mean any information, finances, operations, customers, vendors, technologies and other matters, disclosed by one Party to the other Party(ies) and designated as or reasonably expected to be, by the disclosing Party, confidential or proprietary (including, without limitation, the terms of this Agreement). Each Party shall maintain all of the other Parties' Confidential Information in strict confidence and shall protect such information with the same degree of care that such Party exercises with its own Confidential Information, but in no event less than a reasonable degree of care. A Party shall only use Confidential Information for the purposes of this Agreement and otherwise shall not use or disclose any Confidential Information of another Party in any manner without the express prior written consent of the Party that disclosed such Confidential Information. Access to and use of any Confidential Information shall be restricted to those representatives within a Party's organization with a "need to know" such Confidential Information who are subject to confidentiality obligations no less stringent than those applicable to such Party under this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information: (i) already known to or otherwise in the possession of a Party at the time of receipt from the other Party; (ii) publicly available or otherwise in the public domain prior to disclosure by a Party; (iii) rightfully obtained by a Party from any third party having a right to disclose such information without restriction and without breach of any confidentiality obligation by such third party, as evidenced by written records; (iv) developed by a Party independent of any disclosure hereunder, as evidenced by written records; or (v) disclosed pursuant to the order of a court or administrative body of competent jurisdiction or a government agency, provided that the Party receiving such order shall notify prior to such disclosure, the Party whose Confidential Information is sought under such order and shall cooperate with such Party in the event it elects to legally contest, request confidential treatment or otherwise avoid such disclosure. Except as otherwise provided herein, all of a Party's Confidential Information, and any copies or derivatives thereof, shall be and remain the property of such Party and shall be promptly returned or destroyed at the disclosing Party's direction; provided, however, that a Party may retain a copy for the sole purpose of verifying compliance with its obligations under this Agreement. This Section 3 shall survive any termination or expiration of this Agreement.
4.1 All deliverables provided by Yembo in connection with the App, including, without limitation, data, reports, pictures, 3D models, videos and other materials (the "Deliverables") shall be considered to be Confidential Information of Yembo and owned by Yembo. Yembo may use the Deliverables for any purpose without any further obligation to the User or its employees or collaborators, subject to the terms of this Agreement.
4.2 Intellectual property shall include without limitation all rights to and any interests in any patent, design, trade mark, copyright, know-how, trade secret and any other proprietary right or form of intellectual property (whether protectable by registration or not), customer list, specification, formula, device, drawing, design, system, process, logo or mark ("Intellectual Property"). The User acknowledges and agrees that Yembo owns certain inventions, processes, know-how, trade secrets and other Intellectual Property, including, without limitation, Yembo's proprietary data extraction, storage, tracking and management software system and its related methodology, formulas, analytical algorithms, analytical methods, procedures, reporting methods, methodology and techniques and computer technical expertise and software related to the Services that were or are independently developed by Yembo ("Yembo Intellectual Property"). Yembo shall be the owner of, and shall be entitled exclusively to use and commercially exploit at its sole discretion, all Intellectual Property conceived or reduced to practice by Yembo or its collaborators in the course of the activities under this Agreement related to the Services and Yembo Intellectual Property, including, without limitation, any enhancements, modifications or derivative works thereof (collectively, the "Results"). The User hereby assigns transfers and conveys all its rights in and to the Results to Yembo. The User and its collaborators shall, to the extent required, provide assistance and execute all documents that may be necessary for Yembo to obtain and secure Intellectual Property rights for Yembo in the Results.
4.3 Upon the request of a Party, after completion of the Services, or the early termination or expiration of this Agreement, a Party shall return to the other Party, all applicable Intellectual Property.
The User agrees to indemnify, defend and hold Yembo (including all its officers, directors, employees, contractors and agents) harmless from and against any and all third party claims, demands, causes of action, damages, liabilities, losses, costs and expenses, including attorneys' fees (collectively, the "Claims"), arising out of, incident to, or resulting directly or indirectly from the Services, except to the extent that such Claims were caused by the gross negligence or willful misconduct of Yembo. For the avoidance of doubt, due to the exploratory nature of Yembo's products and services, no liability shall be imputed to Yembo due to any results provided by Yembo to the User and the User shall indemnify Yembo for any and all Claims as a result of the User's use thereof.
6.1 This Agreement shall commence on the Effective Date and shall remain in force for thirty (30) days from the Effective Date unless earlier terminated in accordance with this Section 6. However, if any Work Order entered into during the term of this Agreement that require Services beyond termination, this Agreement shall remain in effect with respect to such work order until its termination or expiration.
6.2 Either Party may terminate this Agreement immediately at any time by written notice if the other Party: (a) is in breach of any of its obligations under this Agreement and fails or is unable to remedy such breach within five (5) days of receipt of notice in writing specifying the breach; or (b) enters into any scheme of arrangement or composition with, or assignment for the benefit of all or any class or creditors, is wound up or has a liquidator, provisional liquidator, receiver and manager or statutory or other official manager appointed over all or any part of its property.
6.3 Upon the expiry or termination of this Agreement, User shall uninstall the App and delete any related screenshots or recordings. Thereafter, neither Party shall have any further obligations under this Agreement.
6.4 Termination of this Agreement shall be without prejudice to any claim or right of action of either Party against the other Party for any prior breach of this Agreement. The provisions of Sections 2-4, 7 and 8 shall remain in force and effect notwithstanding the termination or expiration of this Agreement.
7.1 In performance of the Services, User hereby understands that the App collects video as well as 3D model data, and agrees to only capture and share spaces that they have permission to capture and the authority to share.
7.2 User is willing to share all recorded data in its raw form. Yembo makes no guarantee that private information captured will be blurred or removed. User assumes all responsibility for staging a scene in a way that any private information will not be recorded.
7.3 User acknowledges that Yembo intends to use the Deliverables collected through the Services for commercial research and development purposes.
7.4 User understands that Yembo may use the Deliverables collected through the Services in various forms, including but not limited to public demos or sales and marketing purposes.
7.5 User understands that Yembo may, at its sole discretion, release a public dataset containing Deliverables from the Services.
7.6 User will not use, or authorize others to use, the name, symbols, or marks of Yembo in any advertising or publicity material or make any form of representation or statement with regard to the Services.
8.1 Assignment. Neither Party may assign its rights and obligations under this Agreement without the other's written consent.
8.2 Applicable law, Venue. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California, without regard to the conflicts of law provisions.
8.3 Notices. Any notice required or authorized to be served hereunder shall be deemed to have been properly served if delivered by hand, or sent by registered or certified mail, or sent by facsimile transmission confirmed by registered or certified mail, to the Party to be served at the address specified by such Party. Notices sent by post shall be deemed to have been delivered within seven days after posting. Notices sent by facsimile shall be deemed to have been delivered within 24 hours of the time of transmission.
8.4 Entire Agreement. This Agreement represents the entire agreement and understanding between the Parties relating to the subject matter of this Agreement, and supersedes any prior documents or verbal consents or understandings (if any) given or made between the Parties. The terms of this Agreement may only be amended or modified in writing signed by authorized representatives of the Parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which, when taken together, shall constitute one and the same instrument.
8.5 Waivers. Neither Party shall be deemed to have waived its rights under this Agreement unless such waiver is in writing and signed by such Party. A waiver by a Party of a breach of any provision of this Agreement by the other Party shall not be deemed to be a waiver of any subsequent or continuing breach. Any delay or omission on the part of any Party in the exercise of its rights will not impair those rights nor will it constitute a waiver of those rights. All rights, remedies, obligations and liabilities arising from this Agreement shall be cumulative and shall not be a limitation of any other right, remedy, obligation or liability.
8.6 Force Majeure. Neither Party shall be liable to the other Party for any failure to perform any obligation on its part hereunder to the extent that such failure is due to circumstances beyond its control which could not have avoided by reasonable diligence. The affected Party shall notify the other Party as soon as practicable of the occurrence of any such circumstance, and the Parties shall meet to consider what steps, if any, can be taken to overcome any issues.
8.7 Severability. In the event any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary and the remainder of this Agreement shall remain in full force and effect.