AUTOSCALE SERVICES AGREEMENT
Last Updated: April 15, 2021
This is an agreement between Autoscale (an “Autoscale Party” and, together with its affiliates, “Autoscale,” “we” or “us”) and you (if registering as an individual) or the entity you represent (if registering as a business) (“you” or the “Company”). Any other Autoscale affiliate that we designate is also an Autoscale Party.
Structure of Agreement. This agreement (the “Agreement”) includes the body of the agreement below, all schedules to this agreement (“Schedules”), and all terms, rules and policies that we make available for participating in this program (such as the Content Policy), including on our Autoscale portal (together, the “Program Policies”). However, the terms in each Schedule only apply to you if you engage in the activity or use the Program Materials (defined in Section 3) to which the Schedule applies (for instance, the terms of the Autoscale Collab Program Schedule only apply to you if you participate in the Autoscale Collab program).
Autoscale Program. Our Autoscale program (the “Program”) allows you to design, have made, make available for sale, and promote Products, and to use related services that we make available. “Products” are any products you submit to have made, sold, distributed, or promoted through the Program. “Content” means all content you deliver to us relating to a Product, including Product Information (as defined in the Production & Distribution Schedule), media, art, logos, trademarks, trade names, models, design specifications, product instructions and notices, and other similar materials.
Program Materials. We may make available certain materials for use in connection with the Program, including templates, software, software development kits, application programing interfaces, documentation, and other materials for use in the design, production, and promotion of Products (collectively, the “Program Materials”). If you use any Program Materials, you are subject to and agree to comply with our Program Materials License Agreement (the “Program Materials License Agreement”), located here. Your use of certain Program Materials is also subject to the additional terms in any Schedules that apply to those Program Materials. In the event of a conflict between this Agreement and the Program Materials License Agreement, the Program Materials License Agreement will govern with respect to your use of the Program Materials.
Program Requirements. You and your Content must comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, or other requirements, now or in the future in effect, of any governmental authority (e.g., on a federal, state, or provincial level, as applicable) of competent jurisdiction (“Laws”). You will not take any action related to the Program that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of ours or any third party.
Our Operations. We have sole discretion to determine all features and operations of the Program and to change the Program from time to time. You acknowledge that we have no obligation to make, have made, offer for sale, distribute, or promote any Product, to permit you to use any Program Materials, or to continue any of the foregoing once begun.
Term and Termination; Suspension. The term of this Agreement (the “Term”) will begin on the date you click to accept it and will continue until you or we terminate it. We are entitled to terminate this Agreement and access to your Program account at our discretion with or without advance notice to you. You are entitled to terminate this Agreement at any time by giving us at least 30 days advance written notice. We may also suspend your participation in our Program at our discretion with or without notice to you. We are not obligated to return copies of any Content or other materials that you provide. The following provisions of this Agreement will survive termination of this Agreement: Sections 3, 4, 7 through 12, all your representations and warranties in this Agreement, and any other provisions that, by their nature, are intended to survive.
Representations and Warranties. You represent, warrant and covenant that:
You are at least the legal age of majority and that you are able to form a legally binding contract.
If you are a business or other legal entity, then: (a) you are duly organized, validly existing and in good standing under the Laws of the country in which your business is registered and that you are registering for the Program within such country; (b) you have all requisite right, power, and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by you or your affiliates to us is at all times accurate and complete; and (d) the individual applicant entering into this Agreement on the legal entity’s behalf represents that he or she has all necessary legal authority to bind the legal entity to this Agreement.
Before providing us with any Content, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement, and you will be solely responsible for and will pay any licensors or co-owners any royalties or other monies due to them related to such Content; and
None of the following will violate any Law; require us to obtain any license, authorization, or other permission from any governmental agency or other third party; contain any defamatory material; or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) your Content or the production, sale, distribution, or promotion of the Content or Products as authorized in this Agreement; or (iii) any marketing, advertising, or promotion by you or on your behalf in connection with any Content or Products.
Indemnity. You will indemnify, defend and hold us (including any respective officers, directors, employees, contractors and assigns) harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any claim relating to any Content, or from any breach of your representations, warranties or obligations set forth in this Agreement (individually, a “Claim,” and collectively, the “Claims”). You will not consent to the entry of a judgment or settle a Claim without our prior written consent, which may not be unreasonably withheld. You will use counsel reasonably satisfactory to us to defend each Claim. If we reasonably determine that a Claim might adversely affect us, we may take control of the defense at our expense (and without limiting your indemnification obligations). Your obligations under this Section 8 are independent of your other obligations under the Agreement.
Publicity and Confidentiality. You will: (a) protect and not disclose information made available by us that is identified as confidential or that reasonably should be considered confidential; (b) use this information only in connection with this Agreement; and (c) either destroy or return all such information to us promptly when the Agreement terminates (and, upon request, confirm such destruction in writing). This paragraph covers all confidential information regardless of when you receive it. Unless you have received our express written permission, you will not otherwise use any trademark, service mark, commercial symbol, or other proprietary right of ours, issue press releases or other publicity relating to us or this Agreement, or refer to us in promotional materials.
Disclaimers and Limitations of Liability. THE PROGRAM AND ANY PROGRAM MATERIALS ARE PROVIDED “AS IS.” WE WILL IN NO EVENT BE LIABLE FOR ANY LOSS OF DATA OR CONTENT, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, OR FOR ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN NO EVENT WILL OUR LIABILITY HEREUNDER EXCEED THE AMOUNT OF ROYALTIES (AS DEFINED IN THE DISTRIBUTION SCHEDULE) DUE AND PAYABLE TO YOU UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING SUCH CLAIM. WE SPECIFICALLY DISCLAIM, WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM OR PROGRAM MATERIALS, ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE AND AGREE THAT WE CANNOT ENSURE THAT CONTENT SUBMITTED BY OR ON BEHALF OF YOU WILL BE PROTECTED FROM THEFT OR MISUSE, AND WE WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY TECHNOLOGY OR PROCEDURE.
Agreement Changes. We reserve the right to change this Agreement at any time and at our sole discretion. Any changes will be effective upon the posting of such changes online, unless we specify a different effective date when we make a particular change. You are responsible for checking for Agreement updates. Your continued participation in the Program after changes to this Agreement take effect will constitute your acceptance of the changes. If you do not agree to a change, you must stop participating in the Program and terminate this Agreement.
General. This Agreement may not be amended except in writing signed by both parties or as provided in Section 11 above. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word “including” will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors. Each party will bear its own costs and expenses in performing this Agreement. We may use one or more subcontractors to exercise our rights and perform our obligations hereunder. We will be responsible for ensuring that our subcontractors comply with the applicable portions of this Agreement when performing for us or on our behalf. Our failure to enforce any provision of this Agreement will not constitute a waiver of our rights to subsequently enforce the provision. Each Autoscale Party is severally liable for its own obligations under this Agreement and is not jointly liable for the obligations of other Autoscale Parties. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without our prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as you give us written notice of any such assignment no later than ten business days before such assignment. Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROGRAM WILL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE THEN-APPLICABLE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND JUDGMENT ON THE ARBITRAL AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THE ARBITRATION WILL TAKE PLACE IN SEATTLE, WASHINGTON. THERE WILL BE THREE ARBITRATORS. THE FEES AND EXPENSES OF THE ARBITRATORS AND THE ADMINISTERING AUTHORITY, IF ANY, WILL BE PAID IN EQUAL PROPORTION BY THE PARTIES. YOU AND WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL. YOU OR WE MAY BRING SUIT IN COURT ON AN INDIVIDUAL BASIS ONLY, AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO APPLY FOR INJUNCTIVE REMEDIES. YOU MAY BRING ANY SUCH SUIT FOR INJUNCTIVE REMEDIES ONLY IN THE COURTS OF THE STATE OF WASHINGTON, USA. THE UNITED STATES FEDERAL ARBITRATION ACT, APPLICABLE UNITED STATES FEDERAL LAW, AND THE LAWS OF THE STATE OF WASHINGTON, USA, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS, WILL GOVERN THIS AGREEMENT AND ANY DISPUTE OF ANY SORT THAT MIGHT ARISE BETWEEN YOU AND AUTOSCALE RELATING TO THIS AGREEMENT OR THE PROGRAM. This Agreement and the Program Materials License Agreement constitute the entire agreement between the parties with respect to its subject matter, supersede any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and do not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by us via email, via a posting in the Program Policies, or via a message through your Program account, or (ii) by you via email to firstname.lastname@example.org with a cc via email to email@example.com, or to such other email or physical addresses as we may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.
PRODUCTION AND DISTRIBUTION SCHEDULE
The terms of this Schedule apply if you submit any Product for production through the Program.
Production of Products. You may request the production of certain Products that use, incorporate, or are based on your Content. For each Product you request to have produced, we will deduct our costs and fees. The Cost of Goods and Autoscale Fees for a Product may change from time to time, including after you have authorized its production, based on our production and fulfillment costs or other factors.
Royalties. For each sale of a Product by Autoscale, the responsible Autoscale Party will pay you a royalty (“Royalty”) as described on the Autoscale Royalties page. Taxes and any separately stated fees or charges are excluded from the list price when calculating Royalties. A Royalty is due only for sales for which we have received final payment from or on behalf of an end user. If a Product is purchased using a credit card or bank account deduction mechanism, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. A Royalty is due only on the sale by Autoscale of a Product.
Pricing and Sales. Autoscale will be the seller of record for the Products. Autoscale has sole discretion to determine price, availability, distribution channels, and terms of sale for the Products. We are responsible for and have sole discretion related to processing payments, collecting payments, addressing requests for refunds, and providing customer service related to our obligations, and we will have sole ownership and control of all sales and other data we obtain from customers in connection with the Program.
Product Information. For every Product, you will provide the following information: name of the Product, your name, list price, product description, icon/image, and any other information related to the Products that we require (together, “Required Product Information”). “Product Information” includes the Required Product Information and any other information and content related to your Content and/or to you, such as all metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with you or a particular Product. You are responsible for providing accurate Product Information, and will not make any false, inaccurate, or misleading claims or statements regarding any Content or Product or otherwise mislead customers regarding any Content or Product. If any Product Information is inaccurate or needs to be updated or modified, you will promptly provide us with corrections, updates, or modifications.
Grants of Rights.
Production; Design; Distribution. You hereby grant Autoscale a nonexclusive, perpetual, irrevocable (subject to Section 6 of the Agreement), royalty-free, worldwide, right and license to make, have made, sell, import, reproduce, distribute, create derivative works of, and use the Content for purposes of designing, distributing, and producing Products.
Promotion. You hereby grant Autoscale on a nonexclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, distribute, reformat, modify, create derivative works of, promote, advertise, transmit, publicly display, and publicly perform the Content, in all forms of media, for the marketing, sale, and distribution of the Products and in connection with the Program.
Additional Rights. In addition, we may exercise any ancillary rights relating to your Content and the Products that are reasonably necessary to effect the intent of the grants of rights contained in this Agreement. We may also sublicense our rights in Product Information under this Agreement to third parties operating products or services that allow for the discovery or purchase of Products, including via the Autoscale Associates program and similar programs. Nothing in this Agreement restricts us from exercising any right available to us under applicable law or any separate license.
Reservations of Rights. Subject to the rights granted in this Agreement and our ownership of the Program Materials, as between you and us, you retain all right, title and interest in and to Content that you submit to us. Subject to your rights in such Content, we retain all right, title and interest in and to the Program and all technology, content, information, services, trademarks and other intellectual property used in connection with it. Without limiting the foregoing, each of us recognizes that any uses of the other’s (or its affiliates’) brand features in connection with this Agreement, and goodwill associated with such uses, will inure solely to the party owning such brand features. If you provide suggestions, ideas, or other feedback to us about the Program, we will be free to exercise all rights in such feedback without restriction and without compensating you.
Royalty Payments and Reporting; Taxes
Payment Terms. Subject to the terms of this paragraph, we will pay you Royalties approximately 30 days after the end of the calendar month in which final payment for the applicable sale is made. At the time of payment, we will make available to you a report detailing sales of Products and corresponding Royalties. All payments will be made via check, Electronic Funds Transfer (“EFT”) or other methods we designate in the Program Policies. We are entitled to accrue and withhold payments, without interest, until the total amounts due to you (net of any tax withholding or deduction, as further described below) exceed the minimum payment thresholds set forth in the Program Policies. Depending on the country where you are located, we may require you to provide us with information for a valid bank account in your name for receiving EFT payments and, if you do not provide that information, we may withhold payments, without interest, until you do so and/or pay you via check and deduct a payment processing fee. You may not maintain any action or proceeding against us with respect to any report or payment unless you commence that action or suit within 6 months after the date the report or payment was due. If we pay you a Royalty on a sale and later issue a refund or credit to the customer for such sale (or receive a chargeback related to the sale), we may offset the amount of the Royalty we previously paid you against future Royalties or other amounts that would otherwise be payable to you under this Agreement, or require you to remit that amount to us. For any amounts that we determine you owe us, we may (a) charge any payment instrument you provide to us; (b) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (c) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (d) reverse any credits to your bank accounts; or (e) collect payment or reimbursement from you by any other lawful means. If we determine that your actions or performance may result in returns, chargebacks, claims, disputes, violations of this Agreement or the Program Policies, or other risks to Autoscale or third parties, then we may in our sole discretion withhold any payments to you for as long as we determine any related risks to Autoscale or third parties persist. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or if you are unable to demonstrate that you have all necessary rights to the Content you provide us for a Product, then we may in our sole discretion permanently withhold Royalties to you for any Products. If after we have terminated your Program account you open a new Program account without our express permission, we will not owe you any Royalties under the new Program account.
Taxes. Autoscale is responsible for collecting and remitting any taxes imposed on its sales of Products to customers. You are responsible for any income or other taxes due and payable resulting from any Autoscale payment to you. Accordingly, unless otherwise stated, the amounts due to you hereunder are inclusive of any taxes that may apply to such payments. Autoscale maintains the right, however, to deduct or withhold any applicable taxes that we may be legally obligated to deduct or withhold from amounts due from Autoscale or its affiliates, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you. You will provide Autoscale with any forms, documents or other certifications as may be requested by Autoscale to satisfy any information reporting or tax obligations with respect to this Agreement.
Marketing Limitations. You will not link to, or encourage, authorize, or direct others to link to, any online location where Products are available for sale from any website, application, or other service that is directed to children within the meaning of the Children’s Online Privacy Protection Act or any successor or similar law.
Product Availability; Withdrawal; Termination. We may determine in our discretion to make any Product available through our Program. We may stop any transaction, or take other actions as needed to restrict access to or availability of any Product or Content that does not comply with this Agreement. Any withdrawal of a Product does not relieve you of responsibility to perform other obligations under this Agreement. Subject to other terms of this Agreement, you may withdraw a Product from further sale through our Program as of a specified date by changing the availability of the Product on the Autoscale portal. We will use commercially reasonable efforts to stop selling the applicable Product within 10 business days after we receive such notice. You will immediately notify us if you unexpectedly lose the rights required under this Agreement or become aware of a third party claim related to these rights. If the Agreement is terminated, we will stop selling your Products as of the date the termination takes effect. Notwithstanding any withdrawal or termination, we may fulfill any customer orders placed prior to the withdrawal or termination. Any withdrawal does not limit our, or any third party’s, right to sell used Products.
Survival. Sections 4 through 6 and 8 of this Schedule and any other provisions that, by their nature, are intended to survive, will survive any termination of the Agreement.
AUTOSCALE ADVERTISING SCHEDULE
The terms of this Schedule apply to use of Autoscale Advertising in connection with the Program.
The Autoscale Advertising Agreement governs your use of Autoscale Advertising, a Service that allows you to advertise your Products. You accept the Autoscale Advertising Agreement, which may be updated from time to time by Autoscale in accordance with its terms. The Autoscale Advertising Agreement is available at http://legal.autoscale.ai.