The Order Form is an agreement between the Customer and Ceros, subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the Order Form and each exhibit or schedule attached hereto or incorporated herein by reference, the “Agreement”). This Agreement constitutes the sole and entire agreement of the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter hereof. The Agreement expressly limits Customer’s acceptance to the terms of the Agreement. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Customer’s general terms and conditions of sale or any other document issued by Customer in connection with this Agreement.
- Definitions. Capitalized terms not otherwise specified on the Order Form or in this Agreement have the following meanings:
“Ceros,” “we” or “us” means (i) Ceros, Inc., a Delaware corporation if the Customer is located in North or South America and (ii) Ceros Crowd Fusion, Ltd. in any other case.
“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 and elements, and all improvements, enhancements, developments, and derivative works thereof (excluding the end user experiences built by Users using the Ceros Platform).
“Commencement Date” means the Subscription Commencement Date indicated on the Order Form.
“Customer Data” means all information that you submit or collect via the Subscription Service.
“Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
“Initial Term” means the initial term of this Agreement specified on the Order Form.
“Intended Purpose” means the production, publication and hosting of online magazines, brochures, catalogues, and other interactive content experiences in the format dictated by the requirements of 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.
“Order Form” means the Order form executed by Ceros and Customer, including any subsequent agreed amendment, revision or replacement, detailing the Subscription Service and additional features for which you have subscribed.
“Renewal Term” means a renewal term equal to the greater of (i) 12 months and (ii) the duration of the Initial Term, unless otherwise specified in an Order Form.
“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.
“Subscription Fee” means: (i) for the Initial Term, the aggregate fees set forth on the Order Form; and (ii) for any Renewal Term, such aggregate fees, as may be adjusted on a pro rata basis to account for variation in the duration of any Renewal Term, as described in Section 4.2, and/or pursuant to an Order Form.
“Subscription Service” means our web-based design and content creation, marketing and sales applications, tools and platform that you have subscribed to by an Order Form, and developed, operated, and maintained by us within the Ceros Platform.
“Term” means the term of this Agreement, including each Renewal Term.
“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service.
“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“You” or “Customer” means the person or entity identified in the applicable billing statement or Order Form as the customer.
- The Subscription Service
2.1 Access. During the Term, we will provide you access to and use of the Ceros Platform for the Intended Purpose, and for no other purpose, in accordance with this Agreement.
2.2 Limits. Limits will apply to the number of Users, as specified in the Order Form. We will monitor or audit remotely the number of Users in the Subscription Service. This information is also accessible to you in the Admin Section of your Ceros Account. Use in excess of the specified number of Users may result in an increase in the applicable Subscription Fee, if agreed to by the parties, or in the restriction of Customer’s use of the Ceros Platform, in our discretion.
2.3 Modifications. We may modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. We will not make changes to the Subscription Service that materially reduce the functionality of the Subscription Service provided to you during the Term.
2.4 Additional Features. You may subscribe to additional features of the Subscription Service by agreeing to a new Order Form.
- Customer Support
3.1 Support is included in your Subscription Fee. Ceros’ obligations with respect to the level of support is set forth in the Service Level Agreement attached to your Order Form, or is available at www.ceros.com/service-level-agreement/.
3.2 Our goal is to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance. We strive to achieve no less than 99.995% uptime for all published experiences, although there is always the possibility of something happening outside our control.
- Fees and Payments
4.1 Subscription Fees. The Subscription Fee is payable by you, and fully earned by us, on the Commencement Date and the first day of each Renewal Term thereafter, for so long as this Agreement continues. Where a price change applies to you, we will charge or invoice you under the new price structure from the date upon which you have signed and returned a revised Order Form, at which point we will implement the change.
4.2 We reserve the right to increase the Subscription Fee with effect from the end of the Initial Term or any Renewal Term, provided that such increases will not exceed the greater of (i) 3% per year or (ii) the increase in the Consumer Price Index for Urban areas as reported by the US Bureau of Labor Statistics during the relevant period.
4.3 Payment by credit card. If you are paying by credit card or electronic funds transfer, you authorize us to charge your credit card or bank account for all fees payable at the beginning of the Term and any Renewal Term and any other amounts owing under this Agreement, from time to time. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
4.4 Payment against invoice. If you are paying by invoice, we will invoice you at the beginning of the Term and at the beginning of each subsequent Renewal Term; Subscription Fees are due and payable on the date of invoice, unless otherwise specified in the Order Form.
4.5 Payment Information. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. In the event that payment is not made in accordance with this Agreement, you will remain liable to make payment but we reserve the right to terminate or restrict the Subscription Service until payment is made.
4.6 Sales Tax. All fees are exclusive of any applicable sales taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service, including all sales, use, value-added, transfer, and telecommunications taxes. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state.
4.7 Late Payments. Customer shall pay interest on all late payments at the lesser of (i) 1.5% per month or (ii) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Ceros for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
5. Subscription Renewal
5.1 This Agreement will automatically renew for successive Renewal Terms at the end of the Initial Term and each Renewal Term until either party gives written notice of non-renewal, which must be sent no more than 60 days but no less than 30 days in advance of the end of the Initial Term or the then current Renewal Term, as applicable. Each Renewal Term is subject to this Agreement and to the renewal pricing provided for herein, unless otherwise specified in an Order Form.
5.2 Should you decide not to renew, you should send the notice of non-renewal by email to email@example.com.
6. Ceros Proprietary Rights
6.1 This is an Agreement for access to and use of the Subscription Service, solely during the Term, and you are not granted a license to any software by this Agreement. The Subscription Service is protected by intellectual property laws. By using the Ceros Platform you acknowledge and agree that Ceros is the owner of all Intellectual Property Rights relating to the Ceros Platform and any other materials provided or made available to you under this Agreement. Nothing in this Agreement shall transfer any ownership or proprietary interest in Ceros’ Intellectual Property Rights to you.
6.2 We retain all ownership rights in the Subscription Service. You agree not to copy, rent, lease, sell, distribute, alter, or create derivative works based on the Ceros Platform or the Subscription Service in whole or in part, by any means, except as expressly authorized in writing by us. Ceros and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission.
6.3 We encourage all customers to comment on the Subscription Service, 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 Subscription Service, without payment to you.
- Customer’s Proprietary Rights; Aggregation of Data.
7.1 As between you and us, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data.
7.2 We may monitor use of the Subscription Service by all of our customers 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 Customer Data and/or identify you.
7.3 We will maintain commercially reasonable administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in accordance with applicable regulatory requirements.
- Limitations on Use. By using the Ceros Platform, you agree to the following conditions of use:
8.1 You shall use it solely for the Intended Purpose, during the Term, 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”).
8.2 You represent and warrant that all User Content that you post to the Ceros Subscription Service 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.
8.3 You will not use the Subscription Service to collect, manage or process Sensitive Information, and we will have no liability of any kind if you breach this requirement.
8.4 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.
8.5 You shall not share your password with any third party or publicly disclose it, or permit any third party to access the Subscription Service using your User information.
8.6 You shall notify us immediately of any breach of security or unauthorized use of your account.
8.7 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.
8.8 You shall not use the Ceros Platform Service for any illegal or unauthorized purpose.
8.9 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.
8.10 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 Subscription Service.
8.11 You are solely responsible for obtaining and maintaining all equipment and services needed for access to and use of the Ceros Platform and for paying all charges related to them.
- Publicity. You grant us the right to add your name and company logo to our customer list and website, unless otherwise precluded by prior written agreement.
10.1 Ceros will indemnify, defend and hold Customer harmless against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Customer (and its officers, directors, employees, or agents by a third party to the extent that such Action is based upon or arises out of any infringement, misuse, or misappropriation of third party intellectual property by Ceros in the performance of this Agreement.
10.2 You will indemnify, defend and hold us harmless against any 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 Platform, or (ii) your use of Third-Party Products.
10.3 A party seeking indemnification shall (i) provide written notice within 30 days of becoming aware of any such claim; (ii) give the indemnifying party sole control of the defense or settlement of such a claim; and (iii) provide the indemnifying party (at its expense) with any and all information and assistance reasonably requested to handle the defense or settlement of the claim. An indemnifying party shall not accept any settlement that (1) imposes an obligation on the indemnified party; (2) requires the indemnified party to make any admission; (3) imposes liability not covered by these indemnifications; or (4) places any restrictions on the indemnified party, in each case without prior written consent.
- Disclaimers; Limitations of Liability
11.1 We and our affiliates, agents or representatives make no representations about the suitability, reliability, availability, timeliness, security or accuracy of the Subscription Service. Application programming interfaces (APIs) may not be available at all times. To the extent permitted by law, the Subscription Service is provided “as is” without warranty or condition of any kind. Ceros disclaims all warranties and conditions of any kind with regard to the Subscription Service, including all implied warranties or conditions of merchantability, or fitness for a particular purpose. We disclaim all liability with respect to Third Party Products.
11.2 To the extent permitted by law, in no event shall either party be liable for any indirect, punitive, or consequential damages, including lost profits or business opportunities.
11.3 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 the aggregate liability of a party will be limited to the total amounts Customer has actually paid for the Subscription Service in the twelve month period preceding the event giving rise to a claim.
- Termination, Suspension and Expiration
12.1 Termination for Breach. Either party may terminate this Agreement for breach: (i) upon 30 days’ notice to the other party of a material breach of this Agreement, if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors.
12.2 Suspension for Prohibited Acts. We may suspend any User’s access to the Subscription Service, in our discretion, for: (i) use of the Subscription Service 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.
12.3 Suspension for Non-Payment. We may suspend your access to all or any part of the Subscription Service upon ten days’ notice to you of non-payment of any amount due. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
12.4 Suspension for Present Harm. If your website on, or use of, the Subscription Service: (i) is being subjected to or used to engage in denial of service attacks or other disruptive activity, (ii) is creating a security vulnerability for the Subscription Service or others, (iii) is consuming excessive bandwidth, or (iv) is causing harm to us or others, then we may immediately suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.
12.5 Effect of Termination or Expiration. Upon any termination or expiration of this Agreement, you will stop all use of the Subscription Service. If you properly terminate this Agreement for breach, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for breach, you will promptly pay all unpaid fees due through the end of the Term. Fees are otherwise non-refundable.
- Copyright Policy.
13.1 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.
13.2 If you believe that you have a claim of copyright infringement, please send us a written communication that includes the following information:
13.2.1 A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
13.2.2 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.
13.2.3 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.
13.2.4 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.
13.2.5 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.
13.2.6 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.
13.3 Our designated copyright agent for notice of alleged copyright infringement is:
Attn: Copyright Agent
151 W. 25th St., 2nd Floor
New York, NY 10001
13.4 Ceros reserves the right to remove Customer Data alleged to be infringing in our sole discretion, at any time and without prior notice, and without any liability to you.
14.1 Amendment and Waiver. Any provision of this Agreement may be modified, amended, or waived only if such modification, amendment or waiver is approved in writing by Ceros and Customer. 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.
14.2 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.
14.3 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.
14.4 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.
14.5 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
14.6 Compliance with Laws. Each party will comply with all applicable laws in the provision or use of the Subscription Service. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
14.7 If any part of this Agreement or an Order Form 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.
14.8 Notice will be sent to the contact address set forth in the most recent Order Form or applicable billing details (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your email address(es) on record in our account information for you.
14.9 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 merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law.
14.10 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.
14.11 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. The provisions of this Agreement which by their nature are intended to survive the termination, cancellation or expiration of this Agreement shall continue as valid and enforceable obligations of the parties, notwithstanding any such termination, cancellation or expiration, including without limitation the following sections: Ceros Proprietary Rights; Publicity; Indemnification; Disclaimers, Limitations of Liability; Termination, Suspension and Expiration; and General.