TERMS AND CONDITIONS – SUBSCRIPTION AGREEMENT
Last updated: February 24th, 2021.
Remarkable AS, organization number 917 352 836, (“Remarkable”) has developed and sells paper tablets for reading, writing and sketching. The tablet is connected to a software and a cloud service which allows users to automatically and securely back up their work as well as synchronize their work between different devices (such as computers, mobile phones etc.). In order to use the tablet the customer must enter into this subscription agreement which gives the customer access to the cloud service (the “Subscription Agreement”).
Remarkable’ s cloud based platform “Cloud Service” enables the Customer to upload documents and data created on the tablet and synchronize their work between different devices (or equivalent service developed by Remarkable in the future which offers the Customer corresponding features and functions).
References in the Subscription Agreement to “Customer” shall mean the entity or person stated as “user” in the online login portal available at Remarkable’s website.
The Customer acknowledges to have read and understood the Subscription Agreement. The Subscription Agreement constitutes a binding agreement when the Customer has accepted the Subscription Agreement through the ordering process of the Cloud Service, subject to confirmation by Remarkable as mentioned in clause 1 below.
Description of the service
The Cloud Service and its features are described in further detail on Remarkable’s website.
The Customer may order the Cloud Service using the ordering process on Remarkable’s website. All orders are subject to acceptance by Remarkable at its discretion.
Customer must be at least 18 years old (or the age of legal majority where you reside) to purchase a subscription and access and use the Cloud Services.
A standard subscription is provided free of charge upon the purchase of the paper tablet.
Remarkable may in the future offer an upgraded cloud service with additional features. Premium subscription is subject to a rolling subscription fee in addition to the price paid for the tablet. Remarkable reserves the right to change the subscription fees or applicable charges and to institute new charges and fees, upon thirty (30) days prior notice to the Customer (which may be sent by email). The Customer’s continued use of the Cloud Service after the end of the notice period of the changed subscription fee or charges or new charges or fees constitutes Customer’s consent to the new fees or the changed subscription fee or charges or new charges or fees.
WHEN CUSTOMER REGISTERS FOR A PAID PREMIUM SUBSCRIPTION, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT (A) REMARKABLE (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE CUSTOMER AT THE BEGINNING OF EVERY MONTH OR OTHER PERIODIC BASIS (AS SELECTED BY CUSTOMER VIA THE REMARKABLE WEBSITE) FOR CUSTOMER’S SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS CUSTOMER’S SUBSCRIPTION CONTINUES, AND (B) CUSTOMER’S SUBSCRIPTION IS CONTINUOUS UNTIL CUSTOMER CANCELS IT OR REMARKABLE SUSPENDS OR STOPS PROVIDING ACCESS TO THE CLOUD SERVICES IN ACCORDANCE WITH THIS AGREEMENT.
Subscription license and subscription period
The Customer is granted a limited, revocable, non-exclusive and non-transferable right to use the Cloud Service in accordance with the Subscription Agreement during the subscription period.
The Subscription Period starts running from the moment the Customer creates a customer profile on Remarkable’s website.
Unless otherwise specified in the ordering process, the subscription runs until terminated by either party, in accordance with section 4 below.
Termination of the subscription and duties upon termination
The Customer may terminate the Subscription Agreement at any time and without justification through the customer profile on Remarkable’s website.
For paid premium subscriptions, Customer may cancel its subscription at any time upon thirty (30) days’ prior notice by logging into Customer’s profile and following the instruction to cancel. Customer will be responsible for all charges (including applicable taxes and other charges) incurred with respect to fees processed prior to the cancellations of Customer’s paid rolling subscription. Customer will not receive a refund for any partial month or any renewal that occurs during the third day notice period.
From time to time, to the extent legally permitted, Remarkable may offer free or reduced rate promotional trials of certain paid premium subscriptions for specified periods of time without payment or for a reduced promotional price. If Remarkable offers Customer a free or promotional trial, the specific terms of the free or promotional trial will be provided in the marketing materials describing the particular trial, during the online registration process when the code for the trial is entered on the Remarkable operated websites.
ONCE THE FREE OR PROMOTIONAL TRIAL ENDS, CUSTOMER AUTHORIZES REMARKABLE (OR OUR THIRD PARTY PAYMENT PROCESSOR) TO BEGIN CHARGING CUSTOMER’S DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR CUSTOMER’S SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS THE SUBSCRIPTION CONTINUES, UNLESS CUSTOMER CANCELS THE SUBSCRIPTION PRIOR TO THE END OF THE FREE OR PROMOTIONAL TRIAL OR OTHERWISE CANCELS THE SUBSCRIPTION IN ACCORDANCE WITH THIS SECTION.
Remarkable may not terminate the Subscription Agreement during the 30-day refund period pursuant to the terms and conditions for purchase of the tablet, unless; 1) Remarkable offers another solution with similar capabilities, or 2) the Customer is in material breach of the Subscription Agreement pursuant to clause 10 below.
On the expiry of the return period, the Subscription Agreement may be terminated by Remarkable with three month’s prior notice (current + three months), without stating any reason.
Upon termination of the Subscription Agreement, whether by Remarkable or the Customer, the Customer will lose access to the Cloud Service. The Customer must ensure to download all data that the Customer wishes to retain from the Cloud Service before the subscription period expires.
Remarkable provides a standard file format for such data export through the Cloud Service. Remarkable will upon the Customer’s consent keep the data stored in the Cloud Service after the termination of the Subscription Agreement.
Payment and Billing for Premium Subscriptions
By providing a payment method that Remarkable accepts, Customer represents and warrants that Customer is authorized to use the designated payment method and that Customer permits Remarkable (or our third party payment processor) to charge Customer’s payment method for the total amount of Customer’s Subscription or other purchase (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, Customer’s order or subscription may be suspended or cancelled. Customer must resolve any problem Remarkable encounters in order to proceed with Customer’s order. In the event Customer wants to change or update payment information associated with Customer’s account, Customer can do so by logging into Customer’s account profile and editing the payment information. Customer acknowledges that the amount billed may vary due to promotional offers, changes to your Subscription or changes in applicable taxes or other charges, and Customer authorizes Remarkable (or our third party payment processor) to charge Customer’s payment method for the corresponding amount.
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. Premium subscriptions and the Cloud Services are subject to availability and Remarkable reserves the right to impose any limits or reject part or all of an order, or discontinue offering certain subscriptions or services without prior notice, even if Customer has already placed an order.
Customer is responsible for any sales, duty or other governmental taxes or fees due with respect to Customer’s purchase of a subscription or other products. Remarkable will collect applicable sales tax if it determines that Remarkable has a duty to collect sales tax. Remarkable will present any taxes that it is required to collect at checkout, but note that actual taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates.
Information about the platform, hardware and software requirements for the Cloud Service is available here (“Technical Requirements”).
The Technical Requirements may be updated by Remarkable without prior notice. Remarkable shall, however, notify the Customer at least 60 days in advance if Remarkable will stop supporting previously supported Technical Requirements.
Amendments to Technical Requirements shall not affect the Customer’s use of the Cloud Service, but if the Customer fails to meet the Technical Requirements, subsequent updates and extensions to the service may become unavailable to the Customer.
The Customer shall be responsible for obtaining and maintaining all hardware, software, third party services and other equipment needed for the access and use of the Cloud Service, and is responsible for all charges and expenses related thereto, including internet access. Remarkable reserves the right to cancel access to the Cloud Service in the event Customer’s failure to maintain and update own hardware or software should represent a security risk for Remarkable.
Service levels and planned downtime
It should be noted that the provisions of this clause 7 applies unless mandatory consumer protection legislation prescribes a better solution for the Customer.
The Cloud Service is provided “as is” and as a standardized service to anyone who has a valid subscription. The Cloud Service shall, however, fulfill the quality and accessibility requirements generally associated with this type of service. A subscription gives the Customer a right to use the Cloud Service as is at all times, and the Customer’s use is not conditional or tied to a specific version or functionality. Remarkable shall not be responsible for ensuring that the service fits the purpose for which the Customer uses the Cloud Service. Remarkable reserves the right to make improvements, add, modify or remove functionality. Remarkable may, however, not remove functionality which in Remarkable’s view is to be regarded as key features of the Cloud Service.
The Customer acknowledges that the Cloud Service will not always be completely free of errors and that the improvement of the Cloud Service is a continuous process. The Customer is further aware that successful use of the Cloud Service is dependent on equipment and factors that the Customer itself is responsible for (such as adequate internet connection) or which is outside of Remarkable’ s control. Remarkable is not liable for any discontinuance or disruption of the operation of the Cloud Service caused by a default in any third party service or by the Customer’s own circumstances which is necessary to access the service, including errors in internet connections, browsers, operating systems or other third party software. Third party software and operating system updates etc. may influence the usability of the Cloud Service, and Remarkable has no responsibility in this regard. Remarkable will however always use its best efforts to accommodate and develop the Cloud Service on the basis of updates etc. relating to hardware and software supported by Remarkable in accordance with the Technical Requirements specified above.
The Customer is responsible for backing up the content in the Cloud Service, and Remarkable encourages the Customer to do so in order to avoid loss of data. Remarkable shall under no circumstance be liable to the Customer for loss of data. EXCEPT TO THE EXTENT PROHIBITED BY LAW, REMARKABLE AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
You agree to defend, indemnify and hold harmless Remarkable and our affiliates, independent contractors and service providers, and each of our respective directors, officers, employees and agents (collectively, “Remarkable Parties”) from and against all third-party claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) caused by, arising out of or related to (a) your purchase or use of, or inability to use, the Cloud Services; (b) your violation of this Subscription Agreement or any other applicable terms, policies, warnings or instructions provided by Remarkable or a third party in relation to the Cloud Service, (c) any personal data or other data or content related to Customer or other users which Customer provides, uploads or inputs into the Cloud Service, or (d) your violation of any applicable law or any rights of any third party related to your use of the Cloud Service.
Remarkable will process the personal data in accordance with Remarkable’s Privacy Protection Statement.
For further information on Remarkable’ s processing of personal data, including information about your rights as registered, please refer to Remarkable’ s Privacy Protection Statement, which is available at www.remarkable.com/legal.
Customer’s use of the Cloud Service and Indemnity
The Customer shall not use the Cloud Service in any way which violates any laws, infringes anyone’s rights or damages or interferes with the Cloud Service or any features on the Cloud Service.
The Customer shall ensure that the Customer’s log-in details, passwords, and equivalent obtained by the Customer in conjunction with registration are stored and used in a secure manner and cannot be accessed or used by third parties. The Customer agrees to notify Remarkable immediately of any unauthorized use of the above information or any other breach of security.
Remarkable has no obligation to monitor the Customer’s use of the Cloud Service in order to ensure compliance with the terms of this Subscription Agreement or applicable law. However, Remarkable reserves the right at all times to edit, refuse to post or to remove and delete any information or data, in whole or in part, if Remarkable reasonably suspects that there might be a breach of the Subscription Agreement or state or federal law in the United States of America.
The Customer owns and is responsible for all data, information and material of any kind uploaded to the Cloud Service by the Customer, including personal data. Where applicable, the Customer is responsible for obtaining the appropriate authorizations for processing personal data. The Customer is also required to obtain the consent of the people involved where applicable. The Customer is fully responsible for ensuring that the data or information he or she uploads to the Cloud Service can be legally uploaded, that the data is legal and that the data does not violate third party rights, such as privacy rights, publishing rights, copyright, contractual rights, intellectual property rights or other rights.
The Customer undertakes to indemnify Remarkable for any third party claims arising as a result of the Customer’s use of the Cloud Service in breach of the Subscription Agreement.
Termination for default
It should be noted that the provisions of this clause 11 applies unless mandatory consumer protection legislation prescribes a better solution for the Customer. Mandatory consumer protection law complements the provisions of this Subscription Agreement.
Remarkable may terminate this Subscription Agreement with immediate effect if the Customer is in material breach of any provisions of the Subscription Agreement. Material breach includes but is not limited to (i) use the Cloud Service as part of any crime or illegal behavior (including without limitation all kinds of fraud), (ii) use of the Cloud Service in a manner that may result in losses or the risk of loss for Remarkable or any third party, (iii) attempts by the Customer to amend the Cloud Service or to use any other software or hardware other than Remarkable’ s Software or hardware linked to the Cloud Service or (iv) payment default lasting more than 20 days, provided Remarkable has provided the Customer with at least one payment reminder (which may be sent by e-mail).
Without limiting the Customer’s rights under clause 4 the Customer shall be entitled to terminate the Subscription Agreement with immediate effect if Remarkable is in material breach of the Subscription Agreement.
Limitation of liability
It should be noted that the provisions of this clause 11 applies unless mandatory consumer protection legislation prescribes a better solution for the Customer.
Remarkable shall only be liable for direct loss caused by Remarkable’s breach of the Subscription Agreement and shall not be liable for indirect loss, consequential, special, punitive or incidental damages arising from or related to your use of inability to use the Cloud Services unless caused intentionally or by gross negligence. For the purposes of this agreement, indirect loss means loss of profits, loss of reputation, loss of data, and other losses which, in accordance with New York law, are regarded as indirect losses.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY OF REMARKABLE OR ITS AFFILIATES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT EXCEED THE GREATER OF (1) THE COMPENSATION PAID BY CUSTOMER, IF ANY, TO REMARKABLE FOR SUCH CLOUD SERVICE FOR THE 30 DAYS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY OR (2) $100.
Remarkable shall not be responsible nor liable to the Customer for any failure or delay in performance due to circumstances beyond its reasonable control, including, without limitation, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, service outages resulting from equipment and/or software failure and/or telecommunications failures, power failures, network failures, failures of third party service providers (including providers of internet services and telecommunications). The performance of this Subscription Agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations under this Subscription Agreement.
Intellectual property rights
The Cloud Service and all associated copyrights, know-how, trade secrets, trademarks and other intellectual property rights belong to Remarkable and Remarkable’ s suppliers. The Subscription Agreement does not imply any right for the Customer beyond the limited rights of use expressly granted in clause 3 above.
Use of third parties
Remarkable may use sub-contractors to deliver the Cloud Service, including all support and maintenance services. To the extent a sub-contractor processes personal data for which the Customer is data controller, the Data Processing Agreement (Appendix 1) sets out requirements in this regard.
Remarkable reserves the right to amend and change the terms of this Subscription Agreement by using reasonable efforts to notify Customer of changes, unless the change is due to a legal obligation which requires a notice period. Customer’s continued use of the Cloud Services will confirm Customer’s acceptance of such changes. Remarkable encourages Customer to frequently review this Subscription Agreement and any other applicable policies and guidelines to ensure Customer understands the terms and conditions that apply to Customer’s use of the Cloud Service. If Customer does not agree to the amended terms, policies or guidelines, Customer must stop using the Cloud Service.
Notice shall be given by e-mail to the e-mail address in your profile, and shall be deemed given to the Customer on the day the e-mail is sent.
All notices pursuant to the Subscription Agreement must be given in writing through our Contact Form. All notices to the Customer shall be sent to the e-mail address provided by the Customer in the order form (or subsequently updated e-mail address).
Complaints and dispute resolution
If the Customer has questions relating to the Cloud Service or wishes to make a complaint, reMarkable may be reached through our Contact Form.
Please read the following clause carefully because it requires you to arbitrate certain disputes and claims with Remarkable and limits the manner in which you can seek relief from us.
Except for (a) any disputes regarding ownership or enforceability of intellectual property rights of a party; (b) any claim for injunctive relief; or (c) disputes in which either party seeks to bring an individual action in small claims court located in the county of your billing address, if the dispute meets the requirements to be heard in small claims court, you and Remarkable waive your rights to a jury trial and to have any dispute arising out of or related to this Subscription Agreement resolved in court. Instead, all disputes arising out of or relating to this Subscription Agreement will be resolved through confidential binding arbitration held in New York City, New York before and in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and Remarkable agree that any dispute arising out of or related to this Subscription Agreement is personal to you and Remarkable and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and Remarkable agree that this Subscription Agreement affect interstate commerce and that the enforceability of this clause will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Subscription Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Subscription Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and Remarkable agree that for any arbitration you initiate, you will pay the filing fee and Remarkable will pay the remaining JAMS fees and costs. For any arbitration initiated by Remarkable, Remarkable will pay all JAMS fees and costs. You and Remarkable agree that the state or federal courts of the State of New York in the United States sitting in the Southern District of New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim you may have arising out of or related to this Subscription Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred, which means that you and Remarkable will not have the right to assert the claim.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this clause by sending notice through our Contact Form. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with clause 19. If a Customer wants an additional copy of the Subscription Agreement that the customer has accepted, Remarkable will submit this to the Customer upon request.
This Subscription Agreement shall be governed by and construed in accordance with the laws of New York, U.S.A. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement. Subject to the dispute resolution clause 11, Customer agrees that any disputes shall be referred to and finally resolved by the state or federal courts located in the Southern District of New York, in the State of New York. The legal venue shall be the Southern District of New York, in the State of New York.
Organization number 917 352 836
Registered in the Register of Business Enterprises in Norway
Address: Biermanns gate 6, 0473 Oslo, Norway
Phone no.: 0047 23 65 24 40