General Terms and Conditions

1.Solution and Services

1.1 In exchange for your payment of Fees under clause 5, Marqo will provide you with the Solution and Services, whereby:

• (a) “Solution” refers to a tensor-based search and analytics engine that integrates with your applications, websites and workflows. This engine is distributed in the form of a fully managed, serverless cloud service (“Marqo Cloud”) which is accessible via an application programming interface (“API”) or via your console on Marqo's website at https://console.marqo.ai and https://cloud.marqo.ai (“Website”); and
• (b) “Service” refers to the following services: (i) maintenance of Marqo Cloud; (ii) on-call support services in relation to Marqo Cloud; and (iii) Bona Fide Services (as defined in Bona Fide Services).

1.2 Marqo's guidelines and description of the Solution and Services are further detailed in the documentation made available to you by Marqo at https://docs.marqo.ai/ and as updated by Marqo from time to time (“Documentation”).

2.Set up and installation

2.1 To install and access the Solution, you first need to create an account on the Website. This can be done through contacting the Marqo team or through signing up on the console directly.

2.2 You must fill in all the information marked as mandatory (including, but not limited to, your name, surname, and email address) or must otherwise provide Marqo access to the required data by using a Single-Sign-On provider. You warrant and guarantee that all the information you provide is true, correct, up-to-date and not misleading or deceptive in any way.

2.3 You are solely and entirely responsible for using your username and password to access your account and undertake to do everything to keep this information secret and not to disclose it in whatever form and for whatever reason.

2.4 Once your account is created, Marqo will email you to finalize your subscription to the Solution (“Subscription”).

3.Bona Fide Services

3.1 Marqo may (but is not obligated to) provide the following services to you free of charge on a good faith voluntary basis upon your ad hoc request subject to Marqo's agreement: (a) integration and testing of the Solution (each a “Bona Fide Service”).

3.2 To the extent that the Services include any Bona Fide Services, you agree that Marqo will not be liable for any Liability in connection with such Bona Fide Services. Marqo may refuse or cease to provide Bona Fide Services at any time for any reason (without liability) with reasonable prior notice to you.

4.Intellectual Property Rights

4.1 For the purposes of these General Terms, “Intellectual Property Rights” includes all current and future intellectual property rights throughout the world, whether registered or unregistered, including logos, trademarks, designs, patents, inventions, copyright and analogous rights, rights in databases, source code, object code, software, Confidential Information, trade secrets, processes, concepts, know-how and all other intellectual property rights.

4.2 You are solely responsible for any data, material and information that is provided, uploaded to the Solution or otherwise furnished by you (“Content”).

4.3 You will own and retain all Intellectual Property Rights to: (a) your Content; (b) any pre-existing technology, interfaces, algorithms, software source code and object code owned and provided by you; and (c) any modification or alteration of the items identified in paragraphs (a) and (b) above performed by Marqo at your request.

4.6 Marqo owns and retains all Intellectual Property Rights arising in connection with the Solution and the Documentation, excluding such rights to your Content. No such rights are transferred to you through the use of the Solution or the Services.

4.7 Marqo retains the rights to all machine learning models trained using the Solution and Services, including but not limited to any models trained by Marqo or via Marqo's embedding model training platform, Marqtune.

5.Fees and payment

5.1 Unless otherwise specified in writing by Marqo, the fees payable by you in connection to your access to and use of the Solution and Services (“Fees”) are set out at https://www.marqo.ai/pricing.

5.2 You must pay the Fees for the Subscription monthly.

5.3 Payment of Fees must be made through Stripe. You can access Stripe's own terms and conditions at https://stripe.com/au/legal.

5.5 You must make all payments for the Fees without any deduction for tax unless a tax deduction is required by law.

5.7 We reserve the right to pass on network ingress/egress costs from cloud providers for externally imposed traffic.

6.Acceptable use of the Solution and Services

6.1 You undertake, when using the Solution or receiving the Services, to comply with all applicable laws and regulations in force and not to infringe any third party rights or public order.

6.5 You must not and must not permit others to: (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource or disclose to any third party, or otherwise commercially exploit, any part of the Licence, Solution or Services; (b) in any way encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Licence, Solution or Services; and/or (c) make a financial gain from any action prohibited by clause 6.5(a) and (b).

7.Accessibility of the Solution

7.1 Marqo's role is limited to supply of the Solution and the Services. The output of the Solution will depend on the Content uploaded and Marqo does not accept any responsibility or liability as to the output.

7.2 Marqo will use reasonable endeavour to ensure that the Solution and the Services are accessible at all times but does not warrant, represent or guarantee this will be the case. Without prejudice to the foregoing, the Solution and/or Service may be unavailable due to: (a) a maintenance operation; (b) an urgent operation relating in particular to security; (c) a Force Majeure event; or (d) the malfunctioning of computer applications of Marqo's third-party partners.

7.4 Marqo does not guarantee that the Solution nor the Services will be totally free from errors, defects, or faults. Marqo will aim, where practical, to resolve any errors, defects, or faults you notify to it.

8.Breach

In the event of a breach of any provision of these General Terms or in the event of any breach of any laws and regulations by you, and you fail to remedy this breach within 30 days after being notified by Marqo to do so, Marqo reserves the right to: (a) immediately suspend your access to the Solution and/or the Services for a specified period; or (b) immediately terminate these General Terms; or (c) delete any copy of your Content that stored on Marqo's storage systems upon reasonable prior notice by Marqo and subject to any applicable retention or record-keeping obligations on Marqo.

9.Personal data

You agree that Marqo may collect, store, use, process and disclose your personal information in accordance with our privacy policy as published at https://www.marqo.ai/privacy-policy from or otherwise provided by us from time to time.

10.Third parties

Marqo will under no circumstances be held responsible for the technical availability of the websites operated by third parties, which you would access via the Solution or the Services. Marqo bears no responsibility concerning the content, advertising, products, and/or services available on such websites, which may be governed by the relevant third party's conditions of use.

11.Term and Termination

11.1 Subject to your payment of the Fees and your compliance to these General Terms, the term of these General Terms will commence on the day your Subscription is finalised in accordance with instructions provided by Marqo. Your Subscription will be valid for 1 month and will automatically renew each month unless terminated by you or Marqo with at least 4 days' prior notice.

11.2 You may terminate these General Terms at any time directly through the Website or by writing to support@marqo.ai.

11.3 Marqo may terminate your Subscription or these General Terms: (a) for material breach by you in accordance with clause 8; or (b) if you take any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with your creditors; or (c) you suspend, or threaten to suspend, or cease or threaten to cease to carry on all or a substantial part of its business; or (d) you engage in, or knowingly assists another to commit, fraudulent or dishonest activity.

12.Confidentiality

12.1 For the purposes of these General Terms, “Confidential Information” of a party means any information regarding the terms of these General Terms, or the commercial arrangements between the parties; which is by its nature confidential or which is otherwise designated as confidential by that party; or which the receiving party knows, or ought to know, is confidential.

12.2 Each party agrees not to use or disclose Confidential Information received or disclosed to it by the other party in connection with these General Terms, save for such use or disclosure necessary and required to perform their respective obligations under these General Terms.

12.5 Marqo may use Customer's name and logo (“Customer Marks”) in its Customer list (including on Marqo's website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers.

13.Representation and warranties

13.1 You certify that you hold all the rights and authority necessary to agree to these General Terms in the name of the legal person you represent, if applicable.

13.2 To the extent permitted by law, the Solution and Services are provided on an “as is” basis, and you agree that you will make your own investigations into whether or not the Solution and the Services are fit for your purposes. Unless expressly set out in these General Terms, Marqo makes no warranties (whether express or implied) in connection with the Solution and the Services.

14.Liability

14.1 To the extent permitted by law, in no event shall Marqo be liable for: (a) any indirect or consequential loss of any kind; (b) any potential loss of business, loss of revenue, profits or anticipated savings; (c) any damage or loss which is not caused by a breach of its obligations under these General Terms; (d) disruptions or damage inherent in an electronic communications network; (e) any damage or loss arising in connection with loss of data or information; or (f) an impediment or limitation in the performance of the General Terms due to a Force Majeure event.

14.2 Subject to clause 14.1 above, Marqo's liability for all Liability in relation to, or otherwise in connection with, the Solution or the Services shall be limited to the amount paid by you during the last 12 months preceding the claim.

15.Complaint

For any complaint related to the use of the Solution and/or the Services, you may contact Marqo at the following address: support@marqo.ai. Marqo undertakes to do its best to respond to the complaints transmitted within a reasonable period in view of their nature and complexity.

16.Modification of the Fees and the General Terms

Marqo reserves the right to alter or modify the Solution, Services, Fees (or other prices) or these General Terms at any time provided that Marqo notifies you by email of such modification no later than 15 days prior to the change. If you do not accept such alteration or modification, you must immediately cease using, and unregister from, the Solution in accordance with clause 11.2 of the General Terms within the 15 days period mentioned above.

17.Your statutory rights

Certain legislation, including the Australian Consumer Law and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Services which cannot be excluded, restricted or modified (“Statutory Rights”). Nothing in these General Terms excludes your Statutory Rights as a consumer under the Australian Consumer Law where to do so would be unlawful.

18.Servers

The servers on which the Solution is hosted are located outside Australia. By using the Solution, you consent to your personal information being stored and processed outside Australia, where the laws may differ from those in Australia.

19.Notice

Any notice given under these General Terms must be in writing and may be given by email to the email address you provided upon registration. Marqo may give notice via the Website or by email to your registered address.

20.Dispute Resolution

If a dispute arises out of or relates to these General Terms, a party must not commence legal proceedings in respect of that dispute unless it has first attempted to resolve the dispute by negotiation, or the dispute involves urgent interlocutory relief.

21.Governing Law and Jurisdiction

These General Terms are governed by the laws of Victoria, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them.

22.Severance

If any provision of these General Terms is held to be invalid or unenforceable, that provision will be severed and the remaining provisions will continue in force.

23.Waiver

A waiver of any right under these General Terms will only be effective if it is in writing and it applies only to the party to whom it is addressed and to the specific circumstances for which it is given. It is not deemed to be a waiver of any subsequent breach or default.

24.Assignment

You may not assign or transfer any of your rights or obligations under these General Terms without the prior written consent of Marqo. Marqo may assign or transfer any of its rights and obligations under these General Terms without your consent.

25.Non-exclusivity

Nothing in these General Terms prevents Marqo from providing solutions and services to any other person, including solutions and services that are the same as or similar to the Solution and Services.

26.Relationship

Nothing in these General Terms constitutes a partnership, joint venture or agency relationship between the parties. Each party is acting as an independent contractor.

27.Entire agreement

These General Terms (together with the SLA and any separate agreement between the parties) constitute the entire agreement between the parties in relation to the subject matter of these General Terms, and supersede all prior representations, agreements, statements and understandings of the parties, whether verbal or in writing.