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:

1. (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”). For the avoidance of doubt, any reference to the “Solution” to the extent that it relates to Marqo Cloud is also a reference to the API and Website; and

2. (b) “Service” refers to the following services:

3. i. maintenance of Marqo Cloud;

4. ii. on-call support services in relation to Marqo Cloud; and

5. 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

1.1 In exchange for your payment of Fees under clause 5, Marqo will provide you with the Solution2.1 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. and Services, whereby:

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. You agree to update this information from time to time (including in the event of modification) so that it at all times remains true, correct, up-to-date and not misleading or deceptive.

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, without limiting anything else in these General Terms, Marqo will not be liable for any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, actions, proceeding or judgement (whether direct or indirect, present, unascertained, future or contingent and whether involving a third party, a party to these General Terms or otherwise) however arising (whether under statute, contract, equity, tort including negligence, indemnity or otherwise) (“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 as defined in Article 2 of the convention establishing the World Intellectual Property Organisation on 14 July 1967 as amended from time to time.

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 For avoidance of doubt and without limiting anything else in these General Terms, you will own and retain all Intellectual Property Rights to:

1. (a) your Content;

2. (b) any pre-existing technology, interfaces, algorithms, software source code and object code owned and provided by you; and

3. (c) any modification or alteration of the items identified in paragraphs (a) and (b) above performed by Marqo at your request (and agreed by Marqo), except where such modification or alteration involves the modification or alteration of the Solution or any data, material, information, technology, interfaces, algorithms, software source code and object code owned by Marqo or is specified to be assigned to Marqo under these General Terms (where, in such circumstances, that will remain the property of Marqo).

4.4 You grant to Marqo and its subcontractors a non-exclusive, worldwide, free and transferable licence to host, cache, copy, display, reproduce and distribute the Content for the purpose of supplying the Solution and the Services, which shall automatically terminate upon termination of these General Terms unless it is necessary for Marqo to continue hosting and processing the Content, including in the context of implementing reversibility operations, in order to defend against any liability claims and/or to comply with rules imposed by laws and regulations.

4.5 You represent, warrant and guarantee that:

1. (a) you have all the rights and authorizations necessary to use the Content and to grant Marqo and its subcontractors a licence under in accordance with this clause 4;

2. (b) by creating, installing, downloading or transmitting the Content through the Solution, you have not and will not infringe any third parties’ rights with respect to the Content;

3. (c) the Content does not infringe on public order, good morals, third-party rights, legislative or regulatory provisions; and
   

4. (d) hosting and processing the Content is in no way likely to cause Marqo to incur civil or criminal liability.
   

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. In particular, you acknowledge that Marqo shall own and retain all Intellectual Property Rights in the systems, structures, databases, logos, brands, and contents of any nature (text, images, visuals, music, logos, brands, databases, etc.) operated by Marqo within the Solution.

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. You have a non-sublicensable, and strictly personal right to use these models exclusively within the Marqo Cloud environment in accordance with the General Terms and the Documentation, and under the conditions and within limits set out in these General Terms (“Licence”).

4.8 Marqo grants you, for the duration of these General Terms, a non-exclusive, non-transferable, non-sublicensable and strictly personal right to use the Solution in accordance with the Licence. You acknowledge that your access to, and use of, the Solution will be limited by the type and tier of licence selected, and paid for, by you in accordance with the General Terms. Details of such limits to your access to, or use of, the Solution are as specified in Schedule 1 or otherwise specified by us from time to time.

4.9 You agree not to use the Solution for purposes other than its original function, and particularly you agree not to:

1. (a) translate, adapt, arrange or modify the Solution, export it or merge it with other software;

2. (b) decompile or reverse engineer the Solution;

3. (c) copy, reproduce, represent or use the Solution for purposes not expressly provided for in these General Terms; or
   

4. (d) use the Solution for purposes of comparative analysis or development of a competing product.
   

4.10 This Licence is subject to your payment of all Fees due in connection with your Subscription in accordance with these General Terms, as well as ongoing compliance with these General Terms and Documentation.

4.11 You acknowledge and agree that you will comply with all the technical requirements necessary to access and use the Solution. These technical requirements may change in future as the technology used in the Solution is developed.

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. You guarantee that you have the necessary authorizations to use this payment method and you undertake to take all necessary measures to ensure that the automatic debiting of the Fees can be made.

5.4 You expressly accept that if Marqo does not receive full payment of the Fees from you by such due date specified in these General Terms or as otherwise specified by Marqo, and you do not pay outstanding Fees within 30 days of Marqo notifying you to do so and without limiting anything else in these General Terms, Marqo will be entitled to (without prejudice to any other right or remedy available to Marqo under the General Terms or at law, and without any liability to Marqo whatsoever):

1. (a) suspend your Licence (whether temporarily or permanently) and your access to the Solution until full payment of all sums due;

2. (b) charge interest on the outstanding amount calculated at the monthly rate of 2% calculated daily on the basis of a 365-day year or the maximum amount permitted by law;

3. (c) recover debt collection costs from you; or

4. (d) terminate these General Terms with you under clause 8.

5.5 You must make all payments for the Fees without any deduction for tax unless a tax deduction is required by law. If you are required to make a tax deduction by law, the amount due will be increased to the amount that (after making the tax deduction) upon deduction of the amount attributable to tax equals the amount which would have been due if no tax deduction had been required.

5.6 Unless otherwise stated in writing by Marqo:

1. (a) all Fees are exclusive of any applicable taxes (such as GST and VAT);

2. (b) all Fees are payable in the official currency of the United States of America.

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. You are solely responsible for correctly accomplishing all the administrative, fiscal and social security formalities and all payments of contributions, taxes, or duties of any kind, where applicable, in relation to your use of the Solution or receipt of the Services.

6.2 You accept that the implementation of the Solution requires you to be connected to the Internet and that the quality of the Solution depends directly on this connection, for which you alone are responsible.

6.3 You undertake to provide us with all the information necessary for the correct performance of the Solution and the Services.

6.5 You must not and must not permit others to:

1. (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;

2. (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

3. (c) make a financial gain from any action prohibited by clause 6.5(a) and (b) of these General Terms.

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:

1. (a) a maintenance operation;

2. (b) an urgent operation relating in particular to security;

3. (c) an event or circumstance outside a party’s reasonable control including, but not limited to, fire, storm, flood, lightning, earthquake, natural disaster, explosion, war (whether declared or not), terrorism, invasion, rebellion, sabotage, epidemic, blockade, embargo, riot, disturbance, lockout, labour dispute, labour shortage or other labour disturbance, an act, delay or omission by a government agency (including, but not limited to, the creation or amendment of laws and regulations, the grant, delay in granting or refusal to grant any approvals, consents, licences, permits or authorities) or the failure of a public utility or Marqo’s supplier(s) (“Force Majeure”); or

4. (d) the malfunctioning of computer applications of Marqo’s third-party partners.

7.3 Marqo will aim to restore the availability of the Solution or the Services (as applicable) as soon as is reasonably practical after the problem causing the unavailability has been resolved.

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.

7.5 Marqo is not responsible for:

1. (a) your use of the Solution or receipt of the Services in a manner that does not comply with its purpose or its Documentation;

2. (b) unauthorized access to the Solution or receipt of the Services by a third-party caused by you, including through your negligence;

3. (c) your failure to fulfill your obligations under these General Terms;

4. (d) your implementation of any software package, software or operating system not compatible with the Solution;

5. (e) your implementation, integration or installation of the Solution within your own systems (even with Marqo’s assistance under Bona Fide Services);

6. (g) for difficulties or impossibilities in accessing the Solution or the Services, the origin of which is external to it including malfunctioning of your computer equipment or applications or disruptions in the telecommunications network.

7. (h) your refusal to collaborate with Marqo in the resolution of the anomalies and in particular to answer questions and requests for information;

8. (j) any Liability arising in connection with a Force Majeure event.

9. Marqo is not bound to maintain the Solution or the Services (as applicable) in any of the above circumstances.

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:

1. (a) immediately suspend your access to the Solution and/or the Services for a specified period; or

2. (b) immediately terminate these General Terms; or

3. (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 in accordance with these General Terms.

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:

11.3 Marqo may terminate your Subscription or these General Terms:

1. (a) for material breach by you in accordance with clause 8; or

2. (b) if you take any step or action in connection with entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business;

3. (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

4. (d) you engage in, or knowingly assists another to commit, fraudulent or dishonest activity.

11.4 Upon termination of these General Terms:

1. (a) Marqo will invoice you for Fees in relation to the Solution and Services delivered to the date of termination and you shall pay such invoices as set out in clause 5;

2. (b) You must immediately cease use of the Solution and Services (as applicable);

3. (c) Any term of these General Terms which by their nature and the context in which they appear would reasonably be expected to survive termination of these General Terms will survive.

12.Confidentiality

12.1 For the purposes of these General Terms, “Confidential Information” of a party means any information:

1. (a) regarding the terms of these General Terms, or the commercial arrangements between the parties (with the exception of Customer Marks as described in clause 12.5 below);

2. (c) which is by its nature confidential or which is otherwise designated as confidential by that party; or

3. (d) which the receiving party knows, or ought to know, is confidential,

but does not include information that is:

1. (a) already in the public domain or enters the public domain through no fault of the receiving party;

2. (b) received from a third party without any obligations of confidentiality;

3. (c) used or disclosed with the prior written consent of the disclosing party;

4. (d) disclosed in compliance with a legal requirement; or

5. (e) independently developed by the receiving party, without reliance or use on the disclosing party’s confidential information.

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. Disclosure will be, in any event, only made to the receiving party's employees, officers, agents or contractors to whom it is necessary to do so and who are directly involved in performing the receiving party's obligations.

12.3 In making disclosure to persons as permitted under this clause 12, the receiving party will ensure that persons receiving the disclosing party's Confidential Information will comply with the same obligations regarding confidentiality as that of the receiving party.

12.4 Any Confidential Information held by a receiving party will be returned to the disclosing party or destroyed at the written request of the disclosing party.

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. Marqo shall use Customer Marks in accordance with Customer’s applicable branding guidelines and Marqo may not use Customer’s name in any other way without Customer’s prior written consent (with email consent deemed sufficient).

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 (including Schedule 2 to the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”) and subject to clauses 13.4 and 17.1 below:

1. (a) 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;

2. (c) which is by its nature confidential or which is otherwise designated as confidential by that party; or(b) unless expressly set out in these General Terms, Marqo makes no warranties (whether express or implied) in connection with the Solution and the Services; and

3. (c) Marqo expressly disclaims and excludes any warranties and guarantees in connection with the Solution and the Services, including in relation to the condition, quality, merchantability and fitness for a particular purpose of the Solution and the Services.

13.3 To the extent permitted by law (including the Australian Consumer Law) and subject to clauses 13.4 and 17 below, for the avoidance of doubt, Marqo does not make any representations, warranties or guarantees:

1. (a) that the Solution is free from any errors, defects, or faults;

2. (b) that access to the Solution will be uninterrupted or error-free. You are responsible for taking your own precautions against viruses, worm, trojan or other malicious code;

3. (c) that the data available or produced on the Solution is accurate, complete, reliable, current, error-free or suitable for any particular purpose. Such data is provided on an “as is” basis and you acknowledge and agree that you exercise absolute discretion in choosing how to use this data; or

4. (d) as to the Solution and Website’s availability or ability to meet your expectations.

13.4 Unless the Solution or the Services are ‘services of a kind ordinarily acquired for personal, domestic or household use or consumption’, as that expression is used in section 3 the Australian Consumer Law, the liability of Marqo for loss, however caused (including by the negligence of Marqo), suffered or incurred by you because of a failure to comply with a consumer guarantee applicable to these General Terms under the Australian Consumer Law is limited to Marqo (at its election):

1. (a) resupplying the Solution or Services; or

2. (b) paying the cost of having the Solution or Services supplied again.

14.Liability

13.1 You certi14.1 Despite any other clause in these General Terms, and to the extent permitted by law (including the Australian Consumer Law) and subject to clauses 13.4 and 17.1 above, in no event shall Marqo be liable for:fy 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.

1. (a) any indirect or consequential loss of any kind;

2. (b) any potential loss of business, loss of revenue, profits or anticipated savings (whether direct or indirect);

3. (c) any damage or loss which is not caused by a breach of its obligations under these General Terms;

4. (d) disruptions or damage inherent in an electronic communications network;

5. (e) any damage or loss arising in connection with loss of data or information (including Content), including where such loss is wholly or partly caused by factors beyond our reasonable control;

6. (f) an impediment or limitation in the performance of the General Terms or any obligation incumbent on Marqo hereunder due to a Force Majeure event;


7. (g) the Content;

8. (h) contamination by viruses or other harmful elements of the Solution, or malicious intrusion by third-parties into the system or piracy of the Solution;

9. (i) an alleged fault resulting from the incorrect application of the recommendations and advice given in the course of the Solution and/or by the Documentation;

10. (j) damage or loss of your own making;

11. (k) any circumstance set out in clauses 7, 13.2 and 13.3.

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 Solution is currently hosted on servers provided by Amazon Web Services (“AWS”). You agree to comply with the applicable terms and policies of AWS.

19.Notice

19.1 Unless specified otherwise, any notice required to be given under these General Terms must be in writing and, if provided to us, either:

1. (a) sent to support@marqo.ai;

2. (b) sent to such email address recorded on your Account; or

3. (c) provided to us using such other methods specified on our Website.

19.2 A notice given in accordance with this clause 19 will be deemed to have been delivered 24 hours after the email is sent.

20.Dispute Resolution

20.1 If a dispute arises in relation to these General Terms, the party raising the dispute (“Disputing Party”) may give the other party a written notice adequately identifying the matters in dispute (“Dispute Notice”).

20.2 Within 10 days of the Disputing Party giving a Dispute Notice, the parties involved in the dispute must meet informally and attempt to resolve the dispute. If a resolution is not achieved within 10 days from the informal meeting, the Disputing Party may give the other party written notice requiring the dispute to be referred to mediation (“Mediation Notice”).

20.3 If a Mediation Notice is given, the parties will appoint a mediator in writing, or if the parties cannot agree on a mediator within 7 days of the Mediation Notice being served, a mediator will be appointed by the Chair of Resolution Institute or the Chair’s designated representative. The parties or their nominated representatives must attend any arranged mediation to attempt to resolve the dispute and unless otherwise agreed by the parties, the Resolution Institute Mediation Rules will apply to the mediation.

20.4 The costs of mediation will be shared equally by the parties unless otherwise agreed in writing.

20.5 If the dispute identified in the Mediation Notice is not resolved within 14 days of appointment of the mediator, either party may seek mediation again pursuant to this clause 20, with the parties agreeing that the mediator will make a binding resolution.

20.6 No party may commence litigation unless they have first complied with this clause 20, except where the party is seeking urgent interlocutory relief.

20.7 Notwithstanding the existence of a dispute, each party must continue to perform its obligations under these General Terms.

20.8 This clause 20 survives the termination or expiry of these General Terms.

21.Governing Law and Jurisdiction

These General Terms are governed by, and must be construed according to, the laws of the State of Victoria, Australia. You agree to submit to the exclusive jurisdictions of the courts in that State.

22.Severance

If any provision or part of these General Terms is held to be invalid or unenforceable, such provision or part will be deemed deleted from these General Terms and, to the extent permitted by law, replaced by a valid and enforceable provision which so far as possible achieves the parties’ intent in agreeing to the original provision. The remaining provisions of these General Terms shall continue in full force and in effect.

23.Waiver

A failure or delay by Marqo to exercise a power or right under these General Terms does not operate as a waiver of that power or right, and the exercise of a power or right by us does not preclude our future ability to exercise that or any other power or right.

24.Assignment

You must not, without Marqo’s prior written consent (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these General Terms.

25.Non-exclusivity

These General Terms, and the relationship between the parties contemplated by it, are not intended to be exclusive.

26.Relationship

Nothing in these General Terms is intended to create or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in these General Terms. Neither Marqo nor you will have, nor represent that it has, any authority to make any commitments of this kind on the other party's behalf.

27.Entire agreement

These General Terms constitute the entire agreement between the parties in respect of the subject matter of these General Terms and supersedes and replaces any prior written or oral agreements, representations or understandings. The parties confirm that they have not relied on any representation that is not expressly incorporated into these General Terms.