These terms and conditions constitute the sole and entire agreement (“Agreement”) between Ceros, Inc. (“Ceros” or “we”) and you (the “User” or “you”) with respect to the use of the Ceros Platform (defined below), and supersede all prior or contemporaneous understandings, agreements, representations and warranties, and communications, both written and oral. By accessing or using any part of the Ceros Platform, you agree to become bound by this Agreement. If you do not agree to all of the terms and conditions described in this Agreement, then you may not access the Ceros Platform or use any of its features or functions.
“Ceros Platform” means an ASP computer system or platform called “Ceros”, wholly owned by Ceros, including all of its design and content creation, marketing and sales applications, tools, elements, and templates, and all improvements, enhancements, developments, and derivative works thereof (excluding the end user experiences built by Users using the Ceros Platform).
“Intellectual Property Rights” means copyrights, rights in the nature of copyright, trademarks, service marks, database rights, design rights, inventions, patents, applications or registrations or any of the foregoing, renewals and extensions of any of the foregoing, rights in respect of confidential information, and all other intellectual property and intangible rights of any description in any part of the world, whether now known or in the future created.
“Sensitive Information” means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.
“User Data” means all information that you submit or collect via the Ceros Platform.
“User Materials” means all materials that you provide or post, upload, input or submit for display through the Ceros Platform.
Ceros intends that designers be able to create and produce online content, magazines, microsites, infographics, e-books, and other interactive content experiences in the formats made available by the Ceros Platform for portfolio, personal and other non-commercial uses (the “Intended Purpose”). During the term of this Agreement, Ceros will provide the User access to and use of the Ceros Platform for the Intended Purpose, and for no other purpose, in accordance with this Agreement. Ceros reserves the right to determine, in its sole discretion, whether any particular use falls within the Intended Purpose.
At any time, in its sole discretion, Ceros may modify, update or discontinue all or any part of the Ceros Platform, including by adding or deleting features and functions. Any new features and/or functions shall be subject to the terms and conditions of this Agreement. In addition, Ceros reserves the right, at any time, in its sole discretion, to modify or replace any part of this Agreement. The User is obligated to review this Agreement periodically for changes, and the continued use of or access to the Ceros Platform following the posting of any changes to this Agreement constitutes acceptance of those changes.
At any time, with or without cause or notice and in its sole discretion, Ceros may terminate the User’s use of all or any part of the Ceros Platform and this Agreement. A User may terminate this Agreement by ceasing use of the Ceros Platform. Any provisions of this Agreement which by their nature extend beyond the termination of this Agreement, shall survive the termination of this Agreement for any reason, and shall bind Ceros, the User and their respective representatives, heirs, successors, and assigns.
User and Ceros shall each comply with all applicable laws and regulations with respect to the use of the Ceros Platform. Ceros may suspend or terminate User’s access to the Ceros Platform, in its sole discretion, for: (i) use of the Ceros Platform in a way that violates applicable laws and regulations or this Agreement, or (ii) any instance of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
By using the Ceros Platform, you agree to the following conditions of use:
7.1 You shall use it solely for the Intended Purpose, during the term of this Agreement, and in accordance with all limitations and requirements set out in this Agreement, and shall be solely responsible for all activity associated with your account, including, without limitation any posted data, text, links, video files, photos, or any other content (collectively, the “User Content”).
7.2 You represent and warrant that all User Content that you post to the Ceros Platform shall be your wholly original material (except for material that you are using with the permission of its owner), and does not infringe any copyright, trademark or other rights of any third party including without limitation any rights of privacy or publicity.
7.3 You will not use the Ceros Platform to collect, manage or process Sensitive Information, and we will have no liability of any kind if you breach this requirement.
7.4 You shall be solely responsible for keeping a duplicate copy of all User Content; we do not accept any responsibility or liability for the loss of your User Content.
7.5 You shall not share your password with any third party or publicly disclose it, or permit any third party to access the Ceros Platform using your User information.
7.6 You shall notify us immediately of any breach of security or unauthorized use of your account.
7.7 Although we will not be liable for your losses caused by unauthorized use of your account, you may be liable for the losses incurred by us due to unauthorized use.
7.8 You shall not attempt to hack, destabilize or adapt the Ceros Platform or its source code, or transmit worms, viruses or any code of a destructive nature to the Ceros Platform or its users.
7.9 You shall not, without our prior express written permission, use any high volume automated means (including but not limited to robots, spiders and scripts) to access the Ceros Platform.
User shall not (i) demonstrate, copy, sell, rent, lease, lend, sublicense, distribute, or otherwise transfer or provide access to the Ceros Platform to any third party; (ii) publish or otherwise disclose information relating to the performance, quality, or capability of the Ceros Platform to any third party; (iii) modify, reuse, disassemble, decompile, reverse engineer or otherwise translate any software contained within the Ceros Platform or any portion thereof; (iv) create derivative works based on the Ceros Platform; or (v) delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice placed by Ceros on or in the Ceros Platform.
9.1 Ceros owns and shall retain all right, title and interest in and to all Intellectual Property Rights embodied in and appertaining to the Ceros Platform, including, without limitation, all such rights in the software and content, together with all improvements, enhancements, developments, derivative works, and other modifications thereto. Nothing in this Agreement shall transfer any ownership or proprietary interest in Ceros’ Intellectual Property Rights to you.
9.2 We encourage Users to comment on the Ceros Platform, and provide suggestions for improving it. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Ceros Platform, without payment to you.
10.1 As between User and Ceros, User will own and retain all rights to the User Materials and User Data. This Agreement does not grant us any ownership rights to User Materials or User Data, provided that by uploading your User Materials to the Ceros Platform, you grant Ceros permission to use, display or distribute such User Materials on Ceros.com/inspire or affiliated sites.
10.2 We may monitor use of the Ceros Platform by all of our Users and use the data gathered in an aggregate and anonymous way. You agree that we may use and publish such information, provided that such information does not incorporate any User Data and/or identify you.
10.3 We will maintain commercially reasonable administrative, physical, and technical safeguards to protect User Data. You consent to the processing of User Data in accordance with applicable regulatory requirements.
Ceros represents and warrants to User that it holds all rights necessary to grant the rights set forth herein and to provide the Ceros Platform as contemplated by this Agreement. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE CEROS PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. CEROS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CEROS PLATFORM, AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
You will indemnify, defend and hold us harmless against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, or agents) by a third party to the extent that such Action is based upon or arises out of (i) your negligence or misconduct in the use of the Ceros Platform, (ii) your breach of this Agreement, or (iii) your use of third-party products.
To the extent permitted by law, in no event shall either Ceros or User be liable for any indirect, punitive, or consequential damages, including lost profits or business opportunities. If, notwithstanding the other terms of this Agreement, either party is determined to have any liability to the other party or any third party, the parties agree that, excluding claims for indemnification, the aggregate liability of a party will be limited to the greater of (i) $100 and (ii) the total amounts User has actually paid with respect to the Ceros Platform in the twelve month period preceding the event giving rise to a claim.
14.1 The Digital Millennium Copyright Act (DMCA) governs claims of copyright infringement against online service providers such as Ceros. We comply with all applicable laws, including the DMCA, and have policies in place to ensure that we respect the intellectual property rights of other people.
14.2 If you believe that you have a claim of copyright infringement, please send us a written communication that includes the following information:
14.2.1 A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
14.2.2 Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. 14.2.3 Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
14.2.4 Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
14.2.5 A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. 14.2.6 A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
14.3 Our designated copyright agent for notice of alleged copyright infringement is:
Ceros, Inc. Attn: Copyright Agent 151 W. 25th St., 2nd Floor New York, NY 10001
14.4 Ceros reserves the right to remove User Data alleged to be infringing in our sole discretion, at any time and without prior notice, and without any liability to you.
15.1 Waiver. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
15.2 Contracting Entity and Applicable Law. If you are located in North or South America, then this Agreement is governed by the laws of the State of Delaware, U.S.A. without reference to conflicts of law principles, and the parties consent to the exclusive jurisdiction and venue of the courts in the State of Delaware, U.S.A. for all disputes arising out of or relating to this Agreement. If you are located in any country outside North or South America, then this Agreement is governed by the laws of England without reference to conflicts of law principles, and the parties consent to the exclusive jurisdiction and venue of courts in London, England for all disputes arising out of or relating to this Agreement.
15.3 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
15.4 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one year after the cause of action has accrued.
15.5 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
15.6 Compliance. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
15.7 Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
15.8 Notices. We may give electronic notices by general notice via the Ceros Platform and may give electronic notices specific to you by email to your email address(es) on record in our account information for you.
15.9 Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of any merger, reorganization, sale of all or substantially all of our assets or change of control, or otherwise by operation of law.
15.10 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
15.11 Miscellaneous. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.