PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCESSING AND/OR USING THE CETU PLATFORM(DEFINED BELOW). BY SIGNING THIS CETU SERVICE AGREEMENT (“AGREEMENT”), OR CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON, OR BY ACCESSING AND/OR USING THE CETUPLATFORM, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, ON BEHALF OF YOURSELF OR YOUR ORGANIZATION (“YOU” OR “CUSTOMER”), ARE ENTERING INTO A LEGAL AGREEMENT WITH CETU LTD.,(“COMPANY” OR ”CETU”), AND UNDERSTAND AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT (THE DATE OF SUCH OCCURRENCE BEING THE“EFFECTIVE DATE”). TO THE EXTENT THAT YOU AGREE TO THIS AGREEMENT BY CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON, YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW. COMPANY AND CUSTOMER MAY BE COLLECTIVELY REFERRED TO HEREIN AS THE “PARTIES”, AND EACH INDIVIDUALLY AS A “PARTY”.
1. License
1.1. Subject to the terms and conditions of this Agreement, CeTu shall provide Customer with the CeTu Platform (the "CeTu Platform")
1.2. During the Term and subject to Customer’s compliance with the terms and conditions of this Agreement, CeTu grants Customer a non-exclusive,non-transferable, non-sublicensable, limited, revocable right for Customer employees, agents, representatives,and contractors who are permitted access to the CeTu Platform ("Authorized Users") to access the CeTu Platform, for Customer’s internal business use, according to CeTu's documentation ("Documentation"). Your license to the CeTu Platform shall be also limited to the terms designated in the Order Form. “Order Form”means CeTu’s then current order form that you entered into with CeTu with respect to the CeTu Platform. You may only use the CeTu Platform in accordance with the Documentation, subject to the use limitations indicated in the Order Form, this Agreement and applicable laws.
1.3. In order to access the CeTu Platform, Customer is required to set up an administrative account with Company, by submitting the information requested in the CeTu Platform (“Account”), and Customer or User will need to set up a separate sub-account for each User(each, a “User Account”, and references herein to the “Account” shall be deemed to include all such User Accounts if applicable). Customer warrants that all information submitted during the registration process is,and will thereafter remain, complete and accurate.Customer shall be responsible and liable for all activities that occur under or in the Account. Customer will require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer will ensure that all Users comply with the terms of this Agreement at all times and shall be fully responsible and liable for any breach of this Agreement by a User. Unauthorized accessor use of the CeTu Platform must be immediately reported by Customer to the Company
2. Customer’s Obligations. Customer hereby undertakes to:
2.1. install the CeTu Platform in accordance with the Documentation and instructions provided by CeTu.Customer acknowledges that if Customer does not provide accurate and up-to-date data, the usage of the CeTu Platform, including technical support, may be negatively impacted, or may not be possible at all;
2.2. use the CeTu Platform, and all related software and Documentation in compliance with all applicable laws and regulations, including but not limited to applicable data security and privacy laws; and
2.3. manage and secure all data and login credentials used by Authorized Users in connection with their use of the CeTu Platform and protect the same against unauthorized use or disclosure.
3. Fees. Your use of the CeTu Platform is subject toup-front payment in full of the license fees set forth in the Order Form. You acknowledge that the license fee duringany Renewal Term (as defined below) will, unless set forth in the Order Form, be determined by CeTu’s then-current license fees. . Fees shall be payable on a quarterly basis, within 30 days of issuance of the applicable invoice. Payment of Fees shall be made by wire transfer to the account designated by CeTu. All amounts payable under this Agreement are exclusive of all sales,use, value-added, withholding, and other direct or indirect taxes, charges, levies, duties and/or governmental charges, except for taxes based upon Company's net income.
4. Intellectual Property Rights; Confidentiality
4.1. All intellectual property rights in the CeTu Platform, Documentation, and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with CeTu. Customer shall
(i) not attempt to infiltrate, hack, reverse engineer, decompile,or disassemble the CeTu Platform, or any part thereof for any purpose or use it to build a competitive service or product;
(ii) not represent that it possesses any proprietary interest in CeTu Platform, Documentation or any part or derivative thereof;
(iii) not directly or indirectly, take any action to contest CeTu's intellectual property rights or infringe them in any way;
(iv) except as specifically permitted in writing by CeTu, not use the name, trademarks, trade-names, and logos of CeTu;
(v) except as specifically permitted herein, not copy any part or content of the CeTu Platform, reports or documentation other than for Customer’s own internal business purposes;
(vi) not copy any features, functionsor graphics of the CeTu Platform or use it to build a competitive product or service; and
(vii) not remove the copyright, trademark and other proprietary notices contained on or in the CeTu Platform, products, servicesor documentation. All intellectual property rights in the data stored on Customer Clusters and in any modifications, enhancements and derivatives thereof(collectively, “Customer IPR”) lie exclusively with Customer or its licensors. Customer shall take no action,directly or indirectly, to register CeTu trademarks (or the irvariation), domain names, or copyrights in its own name and shall provide commercially reasonable assistance to CeTu to prevent the occurrence of such activity by any third parties.
4.2. Customer hereby grants to CeTu a non-exclusive,non-sublicensable, revocable, non-transferable,royalty-free, worldwide license during the Term to use,reproduce, and prepare derivative works of all data provided to CeTu by Customer in connection with this Agreement solely to permit CeTu to perform the services to Customer as set forth in this Agreement, and to analyze anonymized data obtained through the CeTu Platform in order to provide Customer with analytics and reports, all subject to CeTu' compliance with applicable law and privacy regulations.
4.3. Customer hereby grants CeTu a non-exclusive,royalty-free, worldwide license to use Customer's testimonials, feedback, and conduct-related statements for any marketing, advertising, and promotional activities.This includes, but is not limited to, use on CeTu's website,social media platforms, print materials, and other marketing channels. Additionally, the Customer permits CeTu to use the Customer's logo, trademarks, and trade names in connection with such marketing activities. The Customer represents and warrants that it has the authority to grant such rights and that the use of the testimonials and logo will not infringe upon any third-party rights.
4.4. The receiving party agrees
(i) not to disclose the disclosing party’s Confidential Information to any third parties other than to its directors, employees, advisors, or consultants (collectively, its “Representatives”) on a “need to know” basis and provided that such Representatives are bound by confidentiality obligations not less restrictive than those contained herein;
(ii) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carryout its rights and responsibilities under this Agreement;
(iii) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care.Notwithstanding the foregoing, if the receiving party is required by legal process or applicable law, rule, or regulation to disclose any of the disclosing party’s Confidential Information, then prior to such disclosure, if legally allowed, receiving party will give prompt notice to the disclosing party so that it may seek a protective order or other appropriate relief. The confidentiality obligations hereunder shall expire five years from the date of termination or expiration of this Agreement (and with respect to trade secrets- in perpetuity) and shall supersede any previous confidentiality undertakings between the parties.
4.5. For the purposes hereof, "Confidential Information" means any proprietary or trade secret information disclosed by one party to the other which can be reasonably understood under the circumstances to be confidential, but excluding any information that:
(i)is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party;
(ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party;
(iii) the receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement;
(iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of or reference to the Confidential Information. For the avoidance of doubt, Customer IPR shall be deemed Customer Confidential Information.
5. Customer Data
5.1. As between the parties, Customer owns and retains all right, title and interest (including all Intellectual Property Rights) in and to any data or information that is provided by Customer, or allowed by Customer to be processed by CeTu or that originates, resides on, is otherwise processed through or derived from CeTuPlatform (or anyone operating on their behalf) and processed by CeTu in the provision of the CeTu Platform or its associated services (“Customer Data”). Customers hall be solely responsible and liable for the legality, reliability, integrity, accuracy and quality of all Customer Data. Customer hereby grants to CeTu a non-exclusive,worldwide, royalty-free, perpetual right to use Customer Data to the extent necessary to perform its obligations and provide the CeTu Platform under this Agreement orto improve the CeTu Platform. As the exclusive owner of the Customer Data, Customer represents, warrants and covenants that to the extent the Customer Data includes any personally identifiable information, Customer has provided all appropriate notices, received any and all required consents or permits, and/or have any and all ongoing legal bases, and has acted in compliance with any and all applicable privacy laws, to allow CeTu to use the Customer Data solely in order to perform the CeTuPlatform and its associated services on the Customer’s behalf. CeTu may however be required to disclose the Customer Data: (a) to satisfy any applicable law,regulation, legal process, subpoena or governmental request; or (b) to collect, store, transfer, and/or process the Customer Data through CeTu's affiliates, subsidiaries, third party service providers and vendors as reasonably necessary to provide the CeTu Platform and its associated services.
5.2. Customer shall implement and maintain appropriate administrative, physical, and technical measures to protect, and prevent the accidental loss or unauthorized access, use or disclosure of, Customer Data,(including, without limitation, encryption). To the extent that Customer needs a Data Processing Agreement,Customer shall send an email request to help@cetu.io, requesting CeTu’s Data Processing Agreement (“DPA”) and return it signed to CeTu as described therein.
5.3. Upon termination of this Agreement, and unless otherwise provided in the DPA, CeTu shall delete or return the Customer Data to Customer within sixty (60) days of such termination.
6. Warranties; Disclaimer; Limitation of Liability
6.1. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, CETU PROVIDES THE CETU PLATFORM,AND DOCUMENTATION TO CUSTOMER ON AN “AS IS” AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OR REPRESENTATION OF ANY KIND, AND CETU EXPRESSLY DISCLAIMS ALL WARRANTIES - STATUTORY, EXPRESS,IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHENT ABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. CETU FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE CETU PLATFORM OR ANY RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
6.2. EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD, OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 8,AND TO THE MAXIMUM EXTENT PERMITTED BY LAW,EACH PARTY'S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO CETU DURING THE 12 MONTHS PRECEDING THE DATE THE LIABILITY FIRSTARISES. EXCEPT WITH RESPECT TO SECTION 8.2, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3. You represent, warrant and covenant that you are fully responsible and liable for any data and content(including without limitation, any URLs you input) you provide in or to the CeTu Platform or its associated services and that you have all necessary rights and permissions to access, provide and use such data and content. You represent, warrant and covenant that such data does not and will not contain any personal or sensitive data, any unlawful content or any data or content from third-party products or services without the necessary authorizations or rights.
7. Indemnification.
7.1. CeTu’s Indemnification. CeTu shall defend,indemnify and hold harmless Customer, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to any third-party claim that the CeTu Platformand/or Documentation infringes any third party intellectual property right. Indemnification hereunder shall be conditioned upon: (a) Customer notifying CeTu of the claim immediately upon becoming aware thereof, (b) Customer allowing CeTu to assume full control of the defense and settlement of such claim, and (c) Customer reasonably cooperating with CeTu in the defense and settlement of the claim.
7.2. Customer’s Indemnification. Customer agrees to defend, at its sole expense, fully indemnify and hold harmless CeTu from and against any third-party claim, action, allegation or suit brought against CeTu arising from or related to the Customer’s use of CeTu Platform or associated services, the Customer’s infringement, violation or breach of applicable laws, third party rights or the terms of this Agreement.
8. Term; Termination
8.1. Unless otherwise specified under the Order Form, this Agreement shall become effective on the earlier of:
(i) the date that you commence use of the CeTu Platform; or
(ii) the date that we receive payment of any applicable license fee, and shall continue until expiration of the license period as set out in the Order Form (the“Initial Term”). Thereafter, these Agreement shall automatically renew at the then current applicable license fees for successive license periods (each a “Renewal Term”, and together with the Initial Term, the “Term”)
.8.2. Either party may terminate this Agreement immediately by giving written notice to the other party if:
(i) the other party breaches a material provision of this Agreement and fails to cure the breach within seven days after being given written notice thereof;
(ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. In addition, you may terminate these Agreement at any time by providing us with thirty (30)days’ prior written notice. We may terminate these Agreement or suspend your use of the CeTu Platform at any time by providing you with prior written notice. Upon any such termination or suspension by either party, CeTu will cease providing the CeTu Platform, and the Customer will only be liable to pay for the CeTu Platform provided prior to such termination or suspension.
8.3. Upon termination of this Agreement, Customer will immediately cease use of the CeTu Platform, each party shall return to the other party or destroy (at disclosing party’s option) all of the other party's Confidential Information in its possession and any outstanding undisputed Fees shall become due and payable. Sections 4.1, 4.4, 4.5, 6 ,7 and 8.3 shall survive any expiration or termination of this Agreement.
9. Notices. All notices or other communications hereunder shall be in writing and given in person, by registered mail, by an overnight courier service that obtains a receipt to evidence delivery, or by email transmission with written confirmation of receipt, addressed to the address set forth in the Order or to such other address as any party here to may designate to the other in accordance with the aforesaid procedure. All notices and other communications delivered in person or by courier service shall be deemed to have been given upon delivery, those given by email transmission shall be deemed given on the business day following transmission, and those sent by registered mail shall be deemed given three calendar days after posting. Customer agrees that Company may also give Customer notices via his Account.
10. General. This Agreement and the Order Form constitutes the entire agreement between CeTu and Customer and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. In the event of any conflict or inconsistency between the Order Form and the Agreement, the terms set forth in the Order Form shall prevail. All amendments will be made only in writing. Neither party shall assign any of its rights and obligations under this Agreement, except with the other’s prior written consent, which shall not be unreasonably withheld; provided that such consent shall not be required in the event of a merger, acquisition or for assignment to a purchaser of all or substantially all of the assets or equity securities of either party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Any purported assignment contrary to this section shall be void. If any part of this Agreement is declared invalid or unenforceable for any reason, suchpart shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the parties, or if it cannot be so modified, then eliminated, and such eliminations hall not affect the validity of any remaining portion,which shall remain in force and effect. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance. This Agreement is governed by the laws of the State of New York, without regard to its conflict of laws principles. The parties agree that exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within the federal or state courts in New York, NY, USA.