CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE SERVICE. DO NOT ACCESS OR OTHERWISE USE THE SERVICE IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. ACCESSING OR OTHERWISE USING ANY PART OF THE SERVICE INDICATES ACCEPTANCE AND AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. SERVICES

1.1 Performance. Subject to the terms and conditions of this End User License Agreement (the “Agreement”), Scribl, Inc. (“Scribl”) provides you (the “User” together with Scribl, the “Parties” and each a “Party”) with a non-exclusive, revocable and non-transferable right to access to the Scribl’s smartphone-enabled sketch application (the “Service”) for the purpose of participating in engagement exercises during in-person and virtual meetings.   

1.2 Proprietary Rights. User acknowledges Scribl’s proprietary rights in the Service and associated documentation and shall protect the proprietary nature thereof. If User suggests any new features, functionality or performance for the Service that Scribl subsequently incorporates into the Service (or any other software or service), User hereby acknowledges that (i) Scribl shall own, and has all rights to use, such suggestions and the Service (or any other service) incorporating such new features, functionality, or performance shall be the sole and exclusive property of Scribl; and (ii) all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Scribl. User hereby irrevocably assigns to Scribl any and all such suggestions. User shall not disassemble, decompile, reverse engineer, modify, transcribe, store, translate, sell, resell, lease, or otherwise transfer or distribute the Service or its associated documentation, in whole or in part, without prior authorization in writing from Scribl. In the event of any breach of this Section 1.3, User agrees that Scribl will suffer irreparable harm and shall therefore be entitled to obtain injunctive relief against User.

1.3 Third-Party Software; Subcontracting. To the extent that the Service incorporates any third-party software licensed by Scribl, then, in addition to the terms set forth herein, User must comply with any additional terms, restrictions, or limitations applicable to such third-party software. Additionally, User acknowledges that Scribl shall have the right to subcontract performance of its hosting services, in which event the service terms provided by any third-party hosting provider (including, without limitation, any service levels) will be incorporated herein by reference.

2. DATA RIGHTS

2.1 User Content. (a) User generated content (“User Content”) means any content, material, data and information that User creates, uploads to, or transmits through the Service, or that is extracted from User’s profile, including, without limitation, text, images, stories, photos, sound, music, drawings, sketches and game questions. 

(b) By posting any User Content on, through or in connection with the Service, User hereby grants to Scribl a perpetual, irrevocable, non-exclusive, fully-paid and royalty-free, sublicensable, transferable, worldwide license to use, modify, excerpt, adapt, store, translate, sub-license, create derivative works and compilations based upon, publicly perform, publicly display, reproduce, and distribute such User Content, in whole or in part, on, through or in connection with the Service or in connection with any commercialization, distribution, or syndication thereof on and through all media formats now known or hereafter devised, for any and all purposes including, but not limited to, promotional, marketing, research, trade or commercial purposes. Scribl’s use of such User Content shall not require any further notice to User and such use shall be without the requirement of any permission from or payment to User or to any other person or entity. Scribl may remove any User Content at its sole discretion at any time. User Content is not confidential.

(c) If User Content that User creates and publishes reproduces User’s name, likeness, image, and/or voice (collectively, “Image”), User acknowledge and agree that Scribl has the right to use User’s Image as part of the Service pursuant to the broad license stated above. If the User Content User publishes on the Service features the Image of any person other than User, then User represents and warrants that User has received permission from the relevant person for the use of his/her Image by Scribl in accordance with the terms of this Agreement, and User indemnifies Scribl for any losses which Scribl may incur pursuant to the Indemnification provision of this Agreement.

(d) User represents and warrants that: (i) User owns the User Content posted by user on, through or in connection with the Service, or otherwise has the right to grant the license set forth in this Section, and (ii) the posting of User Content by User on, through or in connection with the Service does not violate the privacy rights, publicity rights, intellectual property rights, contract rights or any other rights of any person or entity. User agrees to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any User Content posted by User on or through the Service.

2.3 Data Collection. Scribl shall have the right to utilize data capture, syndication and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally identifiable data or information (including, without limitation, User Information) resulting from User’s access and use of the Service (“Blind Data”). To the extent that any Blind Data is collected by Scribl, such Blind Data shall be solely owned by Scribl and may be used by Scribl for any lawful business purpose without a duty of accounting to User, including, without limitation, providing User with the opportunity for User to benchmark itself against its peers, provided that the Blind Data is used only in an aggregated form, without specifically identifying the source of the Blind Data. Without assuming any obligations or liabilities of User, Scribl agrees to use commercially reasonable efforts to comply with the applicable U.S. laws and regulations respecting the dissemination and use such Blind Data.  

2.4 Privacy Policy. Scribl has reasonable security measures in place to protect personally identifiable information and sensitive data that is generated by User’s use of the Service and received by Scribl. While no computer system or server is completely secure, Scribl believes the measures it has implemented reduce security problems. Accordingly, Scribl’s then current Privacy Policy, which Scribl may update from time to time, is hereby incorporated into this Agreement by reference.

3. USER OBLIGATIONS

3.1 Assistance. User shall provide all reasonable assistance and cooperation requested by Scribl in connection with providing any support or troubleshooting assistance concerning the Service. Scribl reserves the right to assess additional fees for any delay caused, in whole or in part, by User. 

3.2 Hardware. User shall procure, install and maintain all equipment, internet connections and other hardware Scribl necessary for User to connect to and access the Service.  

3.3 Conduct. User agrees not to: (i) copy, decompile, reverse engineer, disassemble, attempt to derive the source code, modify or create derivative works of the Service or any Service related documentation; (ii) upload or distribute in any way files that contain viruses, trojans, worms, time bombs, logic bombs, corrupted files, or any other similar software or programs that may damage the operation of the Service or another's computer; (iii) use the Service for illegal purposes; (iv) interfere or disrupt networks connected to the Service; (v) upload, post, promote or transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature; or (vi) upload, promote, transmit or post any material that encourages conduct that could constitute a criminal offence or give rise to civil liability. Scribl may take whatever remedial action it determines in its sole discretion is appropriate if User violates these restrictions, including, but not limited to, immediate suspension or cancellation of the Service. 

3.4 Indemnification by User. User hereby irrevocably and unconditionally agrees, to the fullest extent permitted by law, to defend, indemnify, and hold harmless Scribl and its officers, directors, employees, and agents (the “Scribl Indemnitees”) from and against any and all claims, liabilities, losses, costs, damages, and/or expenses of any kind whatsoever (including reasonable attorney’s fees) that Scribl Indemnitees may incur directly or indirectly, wholly or partially arising from or in connection with (i) User’s non-compliance with law; and (ii) its use of the Service (other than for claims of infringement for which Scribl owes User an obligation of indemnification pursuant to Section 5.1 below). This Section shall survive the termination or expiration of this Agreement.

4. WARRANTY DISCLAIMER.

THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. SCRIBL MAKES NO REPRESENTATION OR WARRANTY (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ACCURACY MERCHANTABILITY, OR NONINFRINGEMENT. SCRIBL DOES NOT WARRANT THAT THE SERVICE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.

5. INFRINGEMENT AND INDEMNIFICATION

5.1 Infringement Indemnity. Scribl will defend and indemnify User against third-party claims that the Service used by User in accordance with this Agreement infringes or misappropriates the third-party’s intellectual property rights in the United States, provided that: (a) User agrees to notify Scribl promptly in writing of User’s knowledge of a claim; (b) Scribl has sole control of the defense and all related settlement negotiations; and (c) User shall provide Scribl with the assistance, information, and authority reasonably necessary to perform such defense. Scribl shall have no liability for any claim of infringement resulting from: (i) User’s alteration or modifications of the Service without Scribl’s prior written approval (ii) User Information; or (iii) the combination or use of the Service with software, data, or material not furnished by Scribl.

5.2 Mitigation/Termination. In the event that some or all of the Service is held or is reasonably believed by Scribl to infringe the rights of a third party, Scribl shall have the option, at its expense, to: (i) modify the Service to make it non-infringing; or (ii) obtain a license that permits User to continue using the Service. If neither of such options can be exercised by Scribl on a commercially reasonable basis and the infringing materials materially affect the Service or the ability of Scribl to meet its obligations under this Agreement, then Scribl may terminate this Agreement.

5.3 Exclusive Remedy. This Section 5 states Scribl’s entire liability and exclusive remedy for infringement of third-party intellectual property rights.

6. LIMITATION OF LIABILITY

IN NO EVENT SHALL SCRIBL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, RELIANCE, CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS OR GOODWILL, BUSINESS INTERRUPTION OR INTERFERENCE, OR INABILITY TO USE OR INTERFERENCE WITH USE OF SERVICE) REGARDLESS OF WHETHER IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

7. TERM; TERMINATION 

7.1 Termination by Scribl. Scribl may terminate this Agreement at any time, with or without cause, upon notice to User.  

7.2 Effect of Termination.  Upon termination of the Agreement for any reason, User’s right to use the Service shall immediately cease. Termination of this Agreement shall not relieve either party of any obligation accrued prior to the termination date. Termination shall not affect the obligations of the Parties under Sections 1.3, 2.3, 3.4, 3.5, 4, 6, 7.3, and 8. 

8. MISCELLANEOUS

8.1 Relationship Between the Parties. This Agreement shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the Parties; nor will either Party hold itself out as an agent, partner, or joint venture party of the other party.  

8.2. Compliance with Law. Each Party shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement.

8.3. Notice. Whenever notice is required to be given to Scribl under this Agreement, such notice shall be in writing and shall be addressed to Scribl, Inc., 999 Main Street, Unit 111, Pawtucket, RI 02860, Attention: [Tobias Lederberg].  

8.4. Waiver. No waiver shall be implied from conduct or failure to enforce rights. No waiver shall be effective unless in a writing signed by both Parties.

8.5. Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.

8.6. Assignment. User may not assign or delegate any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Scribl. The sale of a controlling interest in User through a single transaction or a series of transactions shall be deemed an assignment hereunder for which Scribl’s consent is required. Scribl may assign and delegate this Agreement to successors in the event of a merger, acquisition or other change in control. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns. 

8.7. Governing Law. This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed in all respects according to the laws of the State of Rhode Island without regard to the conflict of law provisions thereof. 

8.8. Arbitration. (a) Please read this carefully. It affects your rights. Any dispute or claim relating in any way to your use of Scribl’s services will be resolved by binding arbitration, rather than court.

(b) This agreement to arbitrate is intended to be broadly interpreted, and expressly includes claims brought under any statute, regulation, or legal or equitable theory. Unless User and Scribl agree otherwise in writing, arbitration shall be administered by the American Arbitration Association’s Consumer Arbitration Rules in effect at the time of filing of the arbitration (the “AAA’s Rules”). However, just as a court would, the arbitrators must honor the terms and limitations in this Agreement, and can award damages and relief (including any attorneys’ fees) authorized by law and/or the AAA’s Rules. The arbitration decision and award is final and binding and judgment on the award may be entered in any court of competent jurisdiction. USER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, USER AND SCRIBL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN ANY CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING.

(c) THIS AGREEMENT DOES NOT ALLOW FOR CLASS ARBITRATIONS EVEN IF THE PROCEDURES OR RULES OF THE AAA WOULD. RATHER, USER AND SCRIBL ARE ONLY ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDUAL, BILATERAL BASIS. FURTHER, AND UNLESS USER AND SCRIBL AGREE OTHERWISE IN WRITING, THE ARBITRATOR(S) MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY’S CLAIMS WITH ANY OTHER PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR COLLECTIVE PROCEEDING.

(d) User and Scribl are each responsible for its respective costs relating to counsel, experts, and witnesses, as well as any other costs relating to the arbitration. The AAA’s Rules regarding costs and payment apply.

8.9 Force Majeure. Scribl shall not be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, war, insurrection, acts of terrorism, the elements, strikes or labor disputes, or other similar or dissimilar causes beyond Scribl’s control. User acknowledges that the performance of certain of Scribl’s obligations may require the cooperation of third parties designated by User and outside the control of Scribl. In the event such third parties fail to cooperate with Scribl in a manner that reasonably permits Scribl to perform its obligations, such failures shall be considered as causes beyond the control of Scribl for the purposes of this Section and shall not be the basis for a determination that Scribl is in breach of any of its obligations under this Agreement or is otherwise liable. Either Party may terminate at its option this Agreement if any such situation continues for thirty (30) days and prevents the continued performance of this Agreement by the other Party.

8.10 Entire Agreement. This Agreement shall constitute the complete agreement between the Parties with respect to User’s access and use of the Service and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. It is expressly agreed that any terms and conditions of any purchase order or similar instrument of User shall be superseded by the terms and conditions of this Agreement to the extent that such terms may be in conflict.