Last Modified: Jul 23, 2020
THIS Cereblis SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) IS BY AND BETWEEN Cereblis INC., WITH BUSINESS OFFICES LOCATED AT 4320, WINFIELD ROAD, SUITE 200, WARRENVILLE, IL 60555, (“Cereblis”), AND YOU (THE “CUSTOMER”). THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE OF ELECTRONIC ACCEPTANCE BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT (“EFFECTIVE DATE”). EACH OF Cereblis AND SUBSCRIBER IS A “PARTY” AND TOGETHER THEY ARE THE “PARTIES.”
THIS AGREEMENT GOVERNS ANY FREE TRIAL PERIODS FOR Cereblis SERVICES AND ANY USAGE THEREAFTER BY CUSTOMER AND USERS, WHETHER PAID OR NOT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, DURING ANY TRIAL PERIOD, THE SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
WHEREAS, Cereblis has developed and maintains a software-as-a-service (“SaaS”) internet-based solution that allows End-Users to manage certain customer relationships and perform certain business processes. These Services are provided by Cereblis under the trade names identified in an applicable Order and as described on Cereblis’s Site.
WHEREAS, Cereblis agrees to provide such Services to Subscriber pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the Parties hereto, for good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
In addition to the capitalized terms defined throughout this Agreement, the following terms when used herein shall have the respective meanings assigned to them below:
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
1.2. “Control,” for purposes of this definition, means director indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3. “Agreement” means this Master Subscription Agreement and any exhibits, schedules and addenda hereto.
1.4. “Beta Services” means Cereblis services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
1.5. “Content” means information obtained by Cereblis from publicly available sources or its third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.
1.6. “Customer” means the customer named above together with its Affiliates which have signed Order Forms.
1.7. “Customer Data” means electronic data and information submitted by or for Customer to the SFDC Platform.
1.8. “Professional Services” shall mean any live support, consulting, training, or development services or other services as specifically described and priced in the applicable Order.
1.9. “Documentation” means the applicable Service’s documentation, and its usage guides and policies, as updated from time to time, accessible via login to the applicable Service.
1.10. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.11. “Order” shall mean either: (i) any specific sales quotations or orders as agreed to electronically by way of a click-to-agree or in writing and signed by the Parties from time to time; or (ii) as set forth in the applicable Cereblis payment summary screen. Each Order is hereby incorporated by reference into this Agreement. If there are any inconsistencies or conflicts between this Agreement and an Order, the inconsistent or conflicting terms of the Order shall govern.
1.12. “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered between Customer and Cereblis or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.13. “Services” means the software installed as a managed package on Customer’s unique instance of the SFDC Platform and made available online by SFDC via https://appexchange.salesforce.com/. “Services” excludes Content.
1.14. “SFDC” means Salesforce.com.
1.15. “SFDC Platform” means Customer’s unique instance of the online platform provided by SFDC on which the Services are installed as a managed package.
1.16. “User” means an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Cereblis without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Cereblis at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
1.17 “Server” shall mean the server(s), whether virtual, physical, or otherwise, on which Cereblis has the Software installed for Subscriber’s use.
2.1. Provision of Services. Cereblis will (a) make the Services and Content available to Customer pursuant to this Agreement and the applicable Order Forms, (b) provide applicable Cereblis standard support for the Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Cereblis shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Cereblis’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Cereblis employees), Internet hosting or other third-party service provider failure or delay, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Cereblis’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
2.2. Interaction with Cereblis Services. The Services operate as a managed packaged installed in Customer’s instance of the SFDC Platform. Customer acknowledges and agrees that Customer Data used in conjunction with such Services will not be stored in or accessed by the Services, but rather will be stored and will persist solely in the SFDC Platform or other systems controlled by Customer. Accordingly, Cereblis shall not be responsible for failure to store, delete, correct, or destroy Customer Data or for any damage or loss to Customer Data.
2.3. Cereblis Personnel. Cereblis will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Cereblis’s obligations under this Agreement, except as otherwise specified in this Agreement.
2.4. Beta Services. From time to time, Cereblis may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or noting its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Cereblis reservation of rights and Customer obligations concerning the Services, and use of Content, shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Cereblis may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Cereblis will have no liability for any harm or damage arising out of or in connection with a Beta Service.
2.5. Changes. No change to the Services shall be implemented unless it has been approved in writing signed by an authorized representative of each Party (each, a “Change Order Amendment”). Upon Subscriber’s and Cereblis’s execution of the Change Order Amendment, the Change Order Amendment shall be incorporated into and become part of the applicable Order.
3.1. Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services and access to Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2 License Grant. Subject to the terms and conditions of this Agreement, Cereblis hereby grants Subscriber a nonexclusive, nontransferable, worldwide license (“License”) to access and use the Services. All rights not expressly granted to Subscriber under the License are reserved by Cereblis. The License granted to Subscriber pursuant to this Agreement will permit use of the Services as set forth in the Order. Any Subscriber Affiliate may also be added by Subscriber as a registered End-User under this Agreement. SUBSCRIBER SHALL BE RESPONSIBLE FOR THE FAILURE OF ANY SUBSCRIBER AFFILIATE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
3.2. Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If Customer exceeds a contractual usage limit, Cereblis may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Cereblis’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Cereblis’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
3.3. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Cereblis promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations.
3.4. Usage Restrictions. Customer will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than Customer or Users, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Cereblis intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service or to benchmark with a non-Cereblis product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). Customer’s or a User’s intentional violation of the foregoing, or any use of the Services in breach of this Agreement, Documentation or Order Forms, by Customer or Users that in Cereblis’s judgment imminently threatens the security, integrity or availability of Cereblis’s services, may result in Cereblis’s immediate suspension of the Services. Cereblis will use commercially reasonable efforts under the circumstances to provide Customer with an opportunity to remedy such violation or threat prior to any such suspension.
3.5. Removal of Content. If Cereblis is required by any third party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, Cereblis may discontinue Customer’s access to such Content through the Services, and/or may notify Customer that it must discontinue all use of such Content, and to the extent not prohibited by law Customer will do so and promptly remove such Content from its systems. If Customer does not take required action in accordance with the above, Cereblis may disable the applicable Content, or Service until the potential violation is resolved. If requested by Cereblis, Customer shall confirm such deletion and discontinuance of use in writing and Cereblis shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable.
4.1. Professional Services. As mutually agreed by the Parties, and in conjunction with the Services, Cereblis may perform Professional Services, which may include implementation, training, or other consulting services. Such Professional Services shall be provided for a separate fee, which will be specified in an applicable Order Form or statement of work. Such Professional Services shall be provided in a manner that is consistent with applicable industry standards, and if such standards are not met (with a reasonable opportunity to cure following written notice from Subscriber), Subscriber’s sole remedy shall be the re-performance of such Professional Services.
5.1. Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Payment Methods. At a time mutually agreeable to the Parties, Cereblis agrees to submit invoices and/or accept payment by the following methods:
– Electronic Data Interchange (“EDI”)
– Electronic Funds Transfer
– Company Check
Prior to EDI transmission, Cereblis shall execute an EDI Trading Partner Agreement with Subscriber under terms and conditions acceptable to both Parties. Each Party shall bear its own costs, and provide its own appropriate equipment and software necessary to accomplish EDI capability.
5.3. Invoicing and Payment. Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Cereblis and notifying Cereblis of any changes to such information.
5.3. Overdue Charges. If any invoiced amount is not received by Cereblis by the due date, then without limiting Cereblis’s rights or remedies, those charges may accrue late interest at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
5.4. Suspension of Service. If any charge owing by Customer is 30 days or more overdue, Cereblis may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit and whose payment has been declined, Cereblis has given Customer at least 10 days’ prior notice that its account is overdue in accordance with the “Notices” section below.
5.5. Payment Disputes. Cereblis will not exercise its rights under the “Overdue Charges” or “Suspension of Service” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6. Taxes. Cereblis’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. Subscriber shall be financially responsible for all sales or services taxes that are assessed on the provision of the Services to Subscriber, excluding any withholding or export taxes or taxes based upon Cereblis’s income. To the extent Cereblis is required to collect such taxes under applicable law, Cereblis, to the extent legally or otherwise required, shall separately state the amount of tax due on its invoices to Subscriber. Subscriber and Cereblis shall cooperate to segregate the fees into: (i) those for taxable Services and (ii) those for nontaxable Services. The Parties shall reasonably cooperate with each other to more accurately determine each Party’s tax liability and to minimize such liability, to the extent legally permissible. In addition, Cereblis shall provide and make available to Subscriber any information regarding the computation of any such taxes as reasonably requested by Subscriber. Cereblis shall not pay any taxes based on the Services that Subscriber and Cereblis disagree on as to whether a tax is due without affording Subscriber a reasonable amount of time after being called upon by the taxing authority to pay such tax to dispute the payment of such tax, at Subscriber’s expense, in the appropriate legal forum.
5.7. Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Cereblis regarding future functionality or features.
6.1. Cereblis Properties. The Services, Professional Services, and its Content (“Cereblis IP”) are owned or licensed by Cereblis and protected by U.S. and international copyright, trademark, service mark, trade secret, patent and/or other proprietary rights and laws. Except as expressly provided in this Agreement, nothing contained herein shall be construed as conferring to Subscriber any license or right under copyright or other intellectual property right law. No part of the Cereblis IP may be altered, copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, except as specifically provided in this Agreement. Subscriber shall not take any action that shall interfere with or diminish Cereblis’s right in any of the Cereblis IP. In the case of any custom reports, interfaces, or integration tables for User Data that are created by Cereblis for Subscriber, if any, Subscriber shall own the User Data within each report, interface, or integration table, but Cereblis shall retain ownership of any templates that it creates, even if created on a custom basis for Subscriber.
6.2. Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
6.3. License by Customer to Use Feedback. Customer grants to Cereblis and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Cereblis’s or its Affiliates’ services or Professional Services.
6.4. References to Subscriber. Upon the Effective Date of this Agreement, Cereblis may make references to Subscriber and Subscriber’s URL and may use Subscriber’s designated trademark and logo for the limited purpose of publishing it on Cereblis’s current list of subscribers located on the Cereblis Site. Cereblis may also respond to any inquiry regarding whether Subscriber is a licensee and user of the Services.
6.5. References to Subscriber. Upon the Effective Date of this Agreement, Cereblis may make references to Subscriber and Subscriber’s URL and may use Subscriber’s designated trademark and logo for the limited purpose of publishing it on Cereblis’s current list of subscribers located on the Cereblis Site. Cereblis may also respond to any inquiry regarding whether Subscriber is a licensee and user of the Services.
6.6. User Data. As between Cereblis and Subscriber, Subscriber shall, at all times, own or obtain the appropriate permissions to use the User Data and shall be responsible for the accuracy and adequacy of any and all User Data as well as establishing any required legal terms and conditions prior to the use of any User Data. Subscriber shall obtain all prior consents, internally or from relevant third parties, prior to uploading and using any User Data to the Services. Subscriber grants to Cereblis a non-exclusive, royalty-free, worldwide license during the Term to access and use the User Data for the purpose of delivering the Services, which may include the aggregation of such data in an anonymized manner for benchmarking and other purposes (while at all time protecting the confidentiality of such data in accordance with Section 7). Subscriber acknowledges that any use of User Data may involve transmissions over various networks and changes to conform and adapt to the technical requirements of those networks. Subscriber authorizes the aforementioned transmissions and changes.
6.7 Usage Data. Subscriber grants to Cereblis an irrevocable, royalty-free, worldwide license of unlimited duration to use, modify, and incorporate into its own support offering, product development, operational plans, and sales or marketing materials, any anonymous usage data acquired from Subscriber’s account and use of the Services.
6.8 No Storage of User Data by Cereblis. Subscriber acknowledges that all User Data that is used in conjunction with the Services is stored and persists on the SFDC platform or as otherwise designated by Subscriber. Subscriber, and not Cereblis, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use its own User Data, and Cereblis shall not be responsible or liable for the failure to store, delete, correct, or destroy or for any damage or loss of any User Data.
6.9. Third Party Services. In the event that Subscriber installs or enables a third party application or service for use in conjunction with the Services, Subscriber grants Cereblis permission to allow the provider of that third party application or service to access User Data as required for interoperation. Cereblis is not responsible for any modification, loss, usage, disclosure, transmission, or deletion of that User Data resulting from access by a third party application or service.
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Cereblis includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Limitation. Notwithstanding the provisions of this Section, Cereblis may disclose Subscriber’s Confidential Information, which includes personally identifying information and End-user activity: (i) in accordance with a judicial or other governmental subpoena, warrant or order; provided that Cereblis shall comply with any applicable protective order or equivalent and, unless prohibited by law, Cereblis will employ commercially reasonable efforts to provide Subscriber with prior written notice, so that Subscriber has an opportunity to intervene at its own expense and to protect the confidentiality of its information; (ii) to law enforcement officials and regulators if it reasonably suspects unlawful activity; and (iii) to other Parties that are identified by Subscriber for that purpose..
7.3. No Intellectual Property. THE RECEIVING PARTY ACQUIRES NO INTELLECTUAL PROPERTY RIGHTS FROM THE DISCLOSING PARTY UNDER THIS AGREEMENT, except for the restricted right to use disclosing Party’s Confidential Information for the express, limited purposes described above.
7.4. Destruction and Return of Confidential Information. Upon request of the disclosing Party or upon termination of this Agreement, all materials containing Confidential Information will be destroyed or returned to the disclosing Party and the receiving Party will retain no copies or reproductions of the Confidential Information unless required by law, except the receiving Party may retain one record copy, subject to the reasonable instructions of the disclosing Party with respect to such copy.
8.1. Representations. Each party represents that it has validly entered this Agreement and has the legal power to do so.
8.2. Cereblis Warranties. Cereblis warrants that during an applicable subscription term (a) the Services will perform materially in accordance with the applicable Documentation (b) it will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below. In addition to the warranties set forth above, Cereblis further warrants that Professional Services hereunder shall be provided in a manner consistent with applicable industry standards. In the event the Professional Services fail to meet this warranty, Cereblis shall, upon notice from Customer, re-perform the nonconforming Professional Services. If Cereblis re-performs the Professional Services and such Professional Services still fail to meet the warranty provided herein, Customer’s exclusive remedies for the nonconforming Professional Services shall be a refund of any fees paid for such Professional Services or in the event fees have yet to be paid, cancelation of the payment obligation related to the nonconforming Professional Services.
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9.1. Indemnification by Cereblis. Cereblis will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Cereblis in writing of, a Claim Against Customer, provided Customer (a) promptly gives Cereblis written notice of the Claim Against Customer, (b) gives Cereblis sole control of the defense and settlement of the Claim Against Customer (except that Cereblis may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Cereblis all reasonable assistance, at Cereblis’s expense. If Cereblis receives information about an infringement or misappropriation claim related to a Service, Cereblis may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Cereblis’s warranties under “Cereblis Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Content, or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
9.2. Indemnification by Customer. Customer will defend Cereblis against any claim, demand, suit or proceeding made or brought against Cereblis by a third party alleging that any Customer Data infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in breach of the Agreement, the Documentation, Order Form or applicable law(each a “Claim Against Cereblis”), and will indemnify Cereblis from any damages, attorney fees and costs finally awarded against Cereblis as a result of, or for any amounts paid by Cereblis under a settlement approved by Customer in writing of, a Claim Against Cereblis, provided Cereblis (a) promptly gives Customer written notice of the Claim Against Cereblis, (b) gives Customer sole control of the defense and settlement of the Claim Against Cereblis (except that Customer may not settle any Claim Against Cereblis unless it unconditionally releases Cereblis of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
9.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
10.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.
11.2. Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless Cereblis provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Cereblis’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re- pricing at renewal without regard to the prior term’s per-unit pricing.
11.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Suspension of Services. Any unauthorized access, use of passwords or Services, or other abuse or impermissible activity on Cereblis’s Site or in connection with Cereblis’s Services may result in immediate suspension or termination of End-User accounts with no refund and without limitation of any other available legal remedies. Cereblis may suspend Subscriber’s access to any Services until all overdue payments are paid in full. Delinquent invoices are subject to interest of one percent (1.0%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged for the remainder of the term for any delinquent accounts. Subscriber acknowledges and agrees that Cereblis has no obligation to retain User Data and that such User Data, if any, may be irretrievably deleted upon termination of this Agreement. With respect to any Services provided by Cereblis as an original equipment manufacturer (OEM) partner on a third-party platform, Subscriber acknowledges that (i) Subscriber’s access to the Services may be suspended due to non-payment by Subscriber to such third-party platform through which Cereblis Services are accessed or breach of Subscriber’s agreement with such third-party platform, and (ii) in the event such Subscriber’s relationship with the third-party platform through which Cereblis Services are accessed is terminated as a result of non-payment or other material breach of such Subscriber’s agreement with the third-party platform, such Subscriber’s License to the portion of the Services provided in conjunction with the third-party platform would also be terminated.
11.5. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, Cereblis will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Cereblis in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to Cereblis for the period prior to the effective date of termination.
11.6. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
12.1. Export Compliance. The Services that Cereblis makes available, and any derivatives thereof, may be subject to export laws of the United States and other jurisdictions. Each Party represents that it is not named on any US Department of Commerce Denied Person’s List or Entity List. The Cereblis Services, or any derivatives thereof, may not be exported to or used by: (i) any US embargoed countries; or (ii) anyone on the US Treasury Department’s list of Specially Designated Nationals or the US Department of Commerce Denied Person’s List or Entity List. Subscriber agrees to comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Subscriber’s customers or End-Users are located.
12.2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Cereblis and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, (3) the body of this Agreement, and (4) the Documentation.
12.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.5. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.6. Notices. Any demand, notice, or other communication required or permitted hereunder shall be effective if in writing and either (i) hand-delivered to the addressee; or (ii) deposited in the mail (registered or certified) or delivered to a private express company. Notices must be addressed as follows: (A) if to Cereblis, at the mailing address or email set forth in the “Contact Us” section of the Site; or (B) if to Subscriber, at the mailing address or email set forth in the Order. Email notice shall be effective upon confirmation of receipt by the receiving Party. Either Party may change its notice address by providing the other Party with notice of the change.
12.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Cereblis will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.10. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions. For any disputes that are not resolved by way of good faith negotiations and settlement, the Parties hereby consent to the exclusive venue and jurisdiction for actions concerning or relating to this Agreement in the federal or state courts of San Francisco, County of San Francisco, California.
12.11. Venue. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts.
12.12. Counterparts. This Agreement may be executed electronically, by facsimile and in counterparts.
12.13. Dispute Resolution; Equitable Relief. The Parties agree that, in the event of a dispute or alleged breach, they shall first work together in good faith to resolve the matter internally through negotiations and, if necessary, by escalating it to higher levels of management. The foregoing shall not apply to, and shall not prevent a Party from seeking immediate relief in the event of, disputes involving the confidentiality of data protection provisions of this Agreement or infringement of intellectual property rights (in which case either Party shall be free to seek available remedies in a court of competent jurisdiction in accordance with the Governing Law Section of this Agreement).
12.14. Controlling Document. Notwithstanding any inconsistent or additional terms and conditions which may be contained in a purchase order, invoice, voucher or other similar document issued by either Party, such document shall be for issuing Party’s internal purposes only and the terms and conditions of this Agreement shall prevail. Therefore, even if such document is acknowledged or accepted by the receiving Party and regardless of any statement to the contrary which may be contained therein, the inconsistent or additional terms and conditions of such purchase order, invoice, voucher or other similar document shall have no force or effect on this Agreement.
12.15. Interpretation; Construction. Unless the context of this Agreement clearly requires otherwise, (i) references to the plural include the singular, the singular the plural, the part the whole, (ii) references to any gender include all genders, (iii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iv) “including” has the inclusive meaning frequently identified with the phrase “but not limited to,” and (v) references to “hereunder” or “herein” relate to this Agreement.
13.1. Transacting through Reseller or Prime Contractor. If Customer procured access to the Services and Content through an authorized reseller or prime contractor (as applicable, “VAR”): (i) As applicable to the Services (including Support Services), Customer and VAR shall enter into an appropriate Order Form stating Customer’s name, address, Services subscription start and end dates, Services subscription fees and payment method, together with other necessary information that Cereblis may require to provision an account for Customer; (ii) Customer shall pay fees to VAR as agreed in such Order Form, and references to the Order Form, fees and subscription term in this Agreement shall refer to such terms in the Order Form with VAR; (iii) any refund under this Agreement shall be provided to VAR instead of Customer; and (iv) Customer and VAR may enter into separate terms and conditions concerning the provision of VAR or third party products or services other than the Services. Notwithstanding the foregoing, except as specifically set forth in this Section 13, all terms of this Agreement shall exclusively govern Customer’s use of the Services. Customer acknowledges that VAR is not authorized to make any warranties, representations, promises, or commitments concerning the Services, Support Services or Professional Services, as applicable, that are not authorized in writing by Cereblis, and Customer agrees that any such warranties, representations, promises, or commitments are not binding on or enforceable against Cereblis. Customer hereby unconditionally releases Cereblis from any and all liability in connection with warranties, representations or other commitments or statements made by VAR with respect to the Services, Support Services, or Professional Services, as applicable, that are inconsistent with this Agreement. Customer hereby authorizes Cereblis to provide VAR or its successor entity with access to Cereblis’s business information related to the procurement and use of the Services pursuant to this Agreement, including but not limited to User names and email addresses and support cases.
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