This is a contract between you (“Client,” “you” or “your”), and “ChromaDiverse, Inc” (“ChromaDiverse,” “we,” “our” or “us”). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms and conditions (collectively, the “Terms”) are so important that we cannot provide our products and services to you unless you agree to them. By using ChromaDiverse Services or receiving Consulting Services, you are agreeing to these terms. Also, for purposes of these Terms, “Client,” “you” and “your” mean the entity, organization or partnership on whose behalf you are placing Service Orders or using ChromaDiverse Services (or, if none, yourself individually).
The “Agreement” means the Terms and conditions herein, in addition to those set forth in the mutually agreed-upon service order(s) (each, a “Service Order”) that you place for our products and services. This Agreement applies to all aspects of the provision and use of the products and services provided by us. The version of this Agreement, effective on the date of first access or the Service Order date, whichever occurs first, is the version that applies to you; provided, however, ChromaDiverse may update these Terms at any time, at its discretion and without notice, by posting a copy thereof at https://ChromaDiverse.org/ClientTOS. Any such updates will only apply to future Service Orders accepted by you (including renewal Service Orders).
1.1 “Additional Materials” means all services, hardware, and software necessary to operate or use ChromaDiverse Services and not owned or provided by ChromaDiverse unless expressly agreed to under this Agreement.
1.2 “Client Data” means any data, content, works, and information provided or delivered by Client, and/or any User to
1.3 “Documentation” means the user manuals provided to Client with the ChromaDiverse Services in either electronic, online help files or hard copy format.
1.4 “ChromaDiverse Services” means, as applicable, the online service delivered by ChromaDiverse to Client using the ChromaDiverse Software, hosted by ChromaDiverse and as made available by ChromaDiverse, through the access methods described in this Agreement.
1.5 “ChromaDiverse Software” means the software program or programs identified in the Service Order, all Documentation, all components, data, and information procured or obtained by ChromaDiverse from a third party (other than Client Data), and any modified, updated or enhanced versions of such programs and Documentation that ChromaDiverse may provide to Client in connection with the ChromaDiverse Services.
1.6 “ChromaDiverse Site” includes all web pages that we operate and the hosting environment managed by ChromaDiverse where Client and Users may access and use the ChromaDiverse Services, however accessed (including mobile apps).
1.7 “Intellectual Property Rights” means all known or hereafter existing worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, know-how, moral rights, contract rights, and other proprietary rights.
1.8 “Users” means Client’s employees and contractors who are authorized by Client to use the ChromaDiverse Services on behalf of Client and have been supplied user identifications and passwords by ChromaDiverse for this purpose.
1.9 “Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
1.10 “Service Order” or “Service Order Form” means the subscription process by which you agree to subscribe to the ChromaDiverse Services, and/or purchase Consulting Services. The Service Order may be referred to as a “Statement of Work” if you are purchasing only Consulting Services.
1.11 “Sensitive Information” means (a) credit or debit card numbers; personal financial account numbers or wire instructions; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords or log-in credentials; racial or ethnic origin; physical or mental health condition or information; or other employment or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under European Data Protection Laws (as this term is defined in the DPA) as sensitive personal data (including special categories of
personal data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation).
1.12 “Billing Period” means the period for which you agree to prepay fees under an Service Order, which will be the same as or shorter than the Term as specified in the Service Order. For example, if you subscribe to the ChromaDiverse Service for a one (1) year Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
1.13 “Subscription Fee” means the amount you pay for the ChromaDiverse Service.
1.14 “Subscription Service” or “ChromaDiverse Service” means all of our web-based Digital Asset Management applications, tools and platforms that you have subscribed to by an Service Order or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via a designated URL, and any ancillary products and services that we provide to you.
1.15 “Subscription Term” means the initial term of your subscription to the applicable ChromaDiverse Service, as specified on your Service Order(s), and each subsequent renewal term (if any).
2. ACCESS GRANT AND OTHER RIGHTS.
2.1 Access. Subject to the terms and conditions of this Agreement, ChromaDiverse grants to Client during the Term (as defined below) a non-exclusive, non-transferable right to access and use the ChromaDiverse Services for which Client has paid the applicable fees, solely for the performance of Client’s internal business purposes in accordance with the Documentation, the user quotas and other limitations set forth in the Service Order, if any, and the other terms and conditions of this Agreement. ChromaDiverse will use commercially reasonable efforts to ensure that, if applicable, the ChromaDiverse Services are generally accessible through the ChromaDiverse Site over normal network connections, excepting downtime due to necessary maintenance and troubleshooting, in accordance with the terms and conditions of this Agreement.
2.2 Restrictions On Use. Client acknowledges that the ChromaDiverse Software and ChromaDiverse Service and the structure, organization, and source code thereof constitute valuable trade secrets of ChromaDiverse. Accordingly, except as expressly permitted in Section 2.1 or as otherwise authorized by ChromaDiverse in writing, Client will not, and will not permit their employees and third- party contractors to (a) modify, adapt, alter, translate, or create derivative works from the ChromaDiverse Software or ChromaDiverse Service; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the ChromaDiverse Software or ChromaDiverse Service to any third party, (c) reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code for the ChromaDiverse Software or ChromaDiverse Service; (d) otherwise use or copy the ChromaDiverse Software or ChromaDiverse Service except as expressly allowed under Section 2.1 above; or (e) interfere in any manner with the operation of the ChromaDiverse Service.
2.3 Additional Materials. Unless otherwise expressly agreed to by the parties, Client shall provide and obtain for itself all Additional Materials as instructed by ChromaDiverse. All use of Additional Materials will be subject to the terms and conditions required by the third-party licensors, vendors and/or providers of such Additional Materials (if any).
2.4 Client Data. Client hereby grants to ChromaDiverse a non-exclusive right and license to use the Client Data solely for the limited purpose of, and solely as necessary for, performing ChromaDiverse’s obligations hereunder for the benefit of Client. ChromaDiverse shall not use the Client Data for the benefit of any other Client of ChromaDiverse, or for any other purpose, without Client’s prior written approval. Subject to the rights granted in this Agreement, Client retains all right, title and interest in and to the Client Data, and ChromaDiverse acknowledges that it neither owns nor acquires any additional rights in and to the Client Data not expressly granted by this Agreement. Notwithstanding the foregoing, Client represents and warrants that it has the right to use the Client Data and provide the Client Data to ChromaDiverse.
2.5 Access Credentials. Each User will be assigned a unique user identification name and password for access to and use of the ChromaDiverse Service. Client shall be responsible for ensuring the security and confidentiality of its login credentials. Client’s access and use of the ChromaDiverse Service will be limited to the number of Users and types of transactions for which Client has paid the applicable Fees. Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the ChromaDiverse Service, and notify ChromaDiverse promptly of any such unauthorized use. If Client wishes to add additional Users, Client will submit a written support request for more Users to ChromaDiverse. Upon ChromaDiverse’s written approval of the terms of any such additional Service Order, ChromaDiverse shall make the ChromaDiverse Service available to the additional Users on the terms and conditions set forth in this Agreement.
2.6 Additional Features. You may subscribe to additional features of the ChromaDiverse Service by placing an additional Service Order or activating the additional features. This Agreement will apply to all additional Service Order(s) and all additional features that you order.
2.7 Acceptable Use. You will comply with our Acceptable Use Policy as described in our Service Level Agreement at https://chromadiverse.org/SLA.
2.8 Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the ChromaDiverse Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the ChromaDiverse Service; (iii) attempt to gain unauthorized access to the ChromaDiverse Service; (iv) access the ChromaDiverse Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the ChromaDiverse Service if you are legally prohibited from receiving or using the ChromaDiverse Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The ChromaDiverse Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (“FISMA”), so you may not use the ChromaDiverse Service where your communications would be subject to such laws. You may not use the ChromaDiverse Service in a way that would violate the Gramm-Leach-Bliley Act (“GLBA”).
You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by opening a support ticket.
2.9 No Sensitive Information. YOU ACKNOWLEDGE THAT THE CHROMADIVERSE SERVICE HAS NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY YOU AGREE NOT TO USE THE CHROMADIVERSE SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE CHROMADIVERSE SERVICE TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.
2.10. Security. ChromaDiverse implements security procedures to help protect your Client Data from security attacks. However, you understand that use of the ChromaDiverse Services necessarily involves transmission of your Client Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your Client Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Client Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
3. SUPPORT SERVICES AND UPTIME COMMITMENT.
3.1 Subject to the terms and conditions of this Agreement, ChromaDiverse will provide Client with those support and maintenance services and service uptime commitment for the ChromaDiverse Services as described in our Service Level Agreement at https://chromadiverse.org/SLA (collectively, “Support Services”).
3.2 Service Uptime Commitment. For the purposes of this ‘Service Uptime Commitment’ section, the following definitions shall apply:
“Level 1 (Urgent)” means a critical full outage/severe issue that constitutes a catastrophic problem that causes complete inability to use the Subscription Service, excluding Free Services, across a significant portion of the production environment (e.g. crash or hang), resulting in production downtime and where there is no workaround or solution to the problem.
“Excluded” means the following: (i) unavailability caused by circumstances beyond our reasonable control, including, without limitation, act of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or any other force majeure event or factors; (ii) any problems resulting from Client’s combining or merging the Subscription Service with any hardware or software not supplied by us or not identified by us in writing as compatible with the Subscription Service; (iii) interruptions or delays in providing the service resulting from telecommunications or internet service provider failures outside of our datacenter as measured by our third-party website availability monitoring provider; and (iv) any interruption or unavailability resulting from the misuse, improper use, alteration, or damage of the Subscription Service.
“Service Uptime” means (total hours in a calendar month – unscheduled maintenance which causes unavailability – Level 1 (Urgent) issue durations – scheduled maintenance – Excluded) / (Total hours in calendar month – scheduled maintenance – Excluded) X 100%.
We will use commercially reasonable efforts to meet a Service Uptime of 99.95% for our Subscription Service in a given calendar month. All availability calculations will be based on our system records. Notwithstanding anything to the contrary in this Agreement, as Client’s sole and exclusive remedy for failure to meet availability or support commitments, in the event there are two (2) or more consecutive calendar months during which the Service Uptime falls below 99.95% in a given calendar month, Client will be entitled to receive a credit equal to the pro-rated amount of fees applicable to the downtime as measured within two (2) or more consecutive calendar months during which the Service Uptime fell below 99.95%, which credit shall be applied against an invoice or charge for the following renewal Subscription Term, provided Client requests such credit within twenty (20) days of the end of the relevant calendar month.
4. PROPRIETARY RIGHTS.
The ChromaDiverse Services and ChromaDiverse Software, and all worldwide Intellectual Property Rights therein, are the exclusive property of ChromaDiverse and its suppliers. All rights in and to the ChromaDiverse Services and ChromaDiverse Software not expressly granted to Client in this Agreement are reserved by ChromaDiverse and its suppliers. Client will not remove, alter, or obscure any proprietary notices (including copyright notices) of ChromaDiverse or its suppliers on the ChromaDiverse Software or Documentation.
5. FEES AND PAYMENT.
5.1 Fees. Client will pay ChromaDiverse the ChromaDiverse Services fees in the amount and pursuant to the schedule set forth in the Service Order (“Fees”). All Fees are non-refundable, except as otherwise set out in this Agreement.
5.2 Payment. Unless otherwise expressly provided in this Agreement, Client will pay all invoices due on receipt. Fees exclude, and Client will make all payments of fees to ChromaDiverse free and clear of all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges. All prices and payments shall be in U.S. dollars.
5.3 Records and Reports. At all times during the Term, and for at least one (1) year after any termination of this Agreement, each party will maintain complete and accurate records of (i) Client’s usage of the ChromaDiverse Software and ChromaDiverse Services as reasonably necessary for verification of Client compliance with the terms and conditions of this Agreement, with respect to Client, and (ii) ChromaDiverse’s performance under this Agreement as reasonably necessary for verification of ChromaDiverse’s compliance with the terms and conditions of this Agreement, with respect to ChromaDiverse.
5.4 Audit Rights. Upon thirty 30 days’ prior notice ChromaDiverse will have the right to have an independent audit firm inspect Client’s records relating to Client’s use of the ChromaDiverse Software and ChromaDiverse Services solely in order to verify Client’s compliance with the terms and conditions of this Agreement. The audit will be performed during Client’s normal business hours. The costs of the audit will be paid by ChromaDiverse, unless the audit reveals that Client has (i) failed to comply with the terms and conditions of this Agreement, or (ii) underpaid the amounts owed to ChromaDiverse by five percent (5%) or more, in which case Client will reimburse ChromaDiverse for all reasonable out-of-pocket costs and expenses reasonably incurred by ChromaDiverse in connection with such audit. Client will promptly pay to ChromaDiverse any amounts shown by any such audit to be owing and due.
5.5 Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Term. 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.
5.6 Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Term and each subsequent Billing Period, and other times during the Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Service Order.
5.7 Consulting Services. You may purchase Consulting Services by placing a Service Order with us. Unless we otherwise agree, the Consulting Services we provide will be delivered in English. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription.
All Consulting Services are performed remotely, unless you and we otherwise agree. For Consulting Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice. Consulting Services are billed for time and materials, unless specified otherwise in the Agreement. All fees for Consulting Services are non-refundable.
5.8. Service Limits and Overage Fees. We reserve the right to limit the manner in which any portion of the ChromaDiverse Service is used to protect the technical integrity of the ChromaDiverse Application. There may be various metrics-based limits (see below) associated with a particular ChromaDiverse Service. These limits are described in the services descriptions on our websites, in the Documentation, or defined in the Service Order.
An Overage (“Overage”) is defined as the difference between the allotment defined in the Service Order and the actual limited metric for a given month.
Limited metrics include:
Assets (“Asset” or “Assets”) are defined as a single indexed record managed by the ChromaDiverse Service, which is comprised of either an associated file, associated metadata, or both. An Asset may have no files associated with it, or it may have multiple associated files. In some cases, an Asset may exist purely as metadata. In other cases, an Asset record may have various versions (a historical recording of the file over time), and/or may have various “view” files (typically different variations of the main “master” Asset file. In both of these extremes however, there remains a single database and index record for that Asset. If you exceed the limit of 500 managed Assets per Gigabyte (GB) of Storage, then an equivalent Storage Overage may be assessed. For example, if your Service Order specifies a 250GB Storage plan, and if your Asset records exceed 125,000 Assets (250 times 500), then you would be charged for the next largest Storage plan—the cost of which will be defined either on the Service Order, or if not, then on ChromaDiverse’s then-current price sheet.
Storage (“Storage”) is defined as the aggregate sum of bytes stored by the ChromaDiverse Service on behalf of you, including Asset files, constituent Asset files (versions, attachments, etc), Asset proxies (thumbnails, previews, zoom files, etc), temporary session files, and others. Total Storage is reported within the ChromaDiverse Service, and any Overages are reported at least monthly via email. You agree to pay for Overages, the amount which is reported in the Service; or, if Overages are not defined on the Service Order, then you agree to pay percentage overage based on the current monthly equivalent SaaS fee defined on the Service Order. Overages are not charged in the case that the Storage exceeds the Storage allotment on the Service Order by less than 10% (ten percent), or is not sustained for more than a single month.
Users (“User” or “Users”) are defined as named user accounts with read-write privileges (all user accounts not of level “Consumer” or “Browser”) within the ChromaDiverse Application; additional Users may require additional fees.
Data Transfer (“Data Transfer”) is measured in Gigabytes (“GBs”) for each month. Unless specified differently on the Service Order, you understand that the ChromaDiverse Services include up to 500GBs of Data Transfer per month, and up to 500 managed Assets per Gigabyte (“GB”) of Storage. You agree to pay Data Transfer Overages at a rate of $250 per each 250GB of Data Transfer Overage per month (or any portion thereof). For example, if you transfer 900 GBs in a month, then the Overage would be 900 GBs minus the included 500 GBs, for a total Overage of 400 GBs. The Overage fee would then be 400 GBs divided by 250 GBs (rounding up), for a total of two (2) times $250, or $500 for that month’s Overage. Bandwidth (“Bandwidth”) is defined as the rate at which data is sent to or received between the ChromaDiverse Services and the Internet. Bandwidth is measured in terms of Megabits per second (Mb/s, often shortened to mbs or mbps). Bandwidth represents the number of bits per second of data sent between the ChromaDiverse Services and the Internet. On the other hand, Data Transfer is the number of bytes transferred between the ChromaDiverse Services and the Internet (both ingress and egress) during a single month.
We reserve the right to charge for additional Overage fees at the rates on our then-current price sheet. We may impose new, or may modify existing, storage limits for the ChromaDiverse Services at any time in our discretion, with or without notice to you. However, ChromaDiverse will not increase your fees during any current Term; fee increases will only be imposed in the next Term (assuming renewal).
6. WARRANTY; DISCLAIMER.
6.1 ChromaDiverse Warranty. ChromaDiverse warrants that (a) it will perform the Support Services in a professional and competent manner in accordance with industry standards, and (b) the ChromaDiverse Services will operate substantially as described in the then- current Documentation. ChromaDiverse will, at its own option and expense, and as its sole liability and Client’s exclusive remedy for any breach of the warranty under sub-section (a) above, re-perform the Support Services which gave rise to the breach or, at ChromaDiverse’s option, refund the fees paid by Client for the Support Services (as applicable) which gave rise to the breach; provided that Client shall notify ChromaDiverse in writing of the breach within thirty (30) days following performance of the defective ChromaDiverse Support Services, specifying the breach in reasonable detail. ChromaDiverse will, at its own option and expense, and as its sole obligation and Client’s exclusive remedy for any breach of the warranty under sub-section (b) above, correct any reproducible error that Client reports to ChromaDiverse in writing within thirty (30) days following performance of the defective ChromaDiverse Services, specifying the breach in reasonable detail, or, at ChromaDiverse’s option, refund the fees paid by Client for the ChromaDiverse Services which gave rise to the breach.
6.2 Disclaimers. CHROMADIVERSE DOES NOT WARRANT THAT CLIENT’S USE OF THE CHROMADIVERSE SOFTWARE OR CHROMADIVERSE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED OR FREE FROM UNAUTHORIZED ACCESS. THE EXPRESS WARRANTIES IN SECTIONS 6.1 AND 6.2 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE CHROMADIVERSE SOFTWARE AND CHROMADIVERSE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD- PARTY RIGHTS, WHICH ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, CLIENT RECOGNIZES THAT CHROMADIVERSE DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE CHROMADIVERSE SOFTWARE AND CHROMADIVERSE SERVICES. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET AND TELECOMMUNICATIONS SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. ACCORDINGLY, CHROMADIVERSE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
7.1 ChromaDiverse. ChromaDiverse will defend, at its own expense, and indemnify and hold harmless, Client, and its directors, officers, employees, contractors and agents, from and against any and all claims, liabilities, losses, damages, judgments, awards, costs (including, without limitation, legal fees and expenses), actions and/or other proceedings made, sustained, incurred, brought or prosecuted in any manner whatsoever relating to or arising from: (A) any infringement by the ChromaDiverse Software (as incorporated into the ChromaDiverse Services) of a third party’s U.S. Intellectual Property Rights; and (B) any property damage, personal injury or death to the extent caused by the negligence, willful misconduct, acts or omissions of ChromaDiverse or by its employees, contractors or agents; provided, however, ChromaDiverse shall have no indemnity obligations under this sub-section (B) to the extent any such damage, injury or death is caused by the negligence, willful misconduct, acts or omissions of Client, and its employees, contractors or agents. The foregoing obligations are conditioned on Client’s (a) notifying ChromaDiverse promptly in writing of such action, (b) giving ChromaDiverse sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at ChromaDiverse’s request and expense, assisting in such defense, providing that a failure or default under clauses (a)-(c) shall not excuse or relieve ChromaDiverse from any defense or indemnity to the extent ChromaDiverse’s defense is not materially prejudiced by such failure or default. If the ChromaDiverse Software or ChromaDiverse Services become, or in ChromaDiverse’s opinion are likely to become, the subject of an infringement claim, ChromaDiverse may, at its option and expense, without limiting the foregoing obligations of ChromaDiverse, either (i) procure for Client the right to continue using the ChromaDiverse Software as necessary for the use of the ChromaDiverse Services, or (ii) replace or modify the ChromaDiverse Software so that it become non-infringing; provided, however, if ChromaDiverse reasonably determines that the remedies under (i) or (ii) are not commercially practicable, ChromaDiverse may terminate this Agreement upon written notice to Client and refund Client the any pre-paid but unused Fees paid for such ChromaDiverse Software, as applicable. Notwithstanding the foregoing, ChromaDiverse will have no obligation under this Section 7 or otherwise to the extent of any infringement claim is based upon (a) any use of the ChromaDiverse Software or ChromaDiverse Services not in accordance with this Agreement and/or the Documentation and/or ChromaDiverse’s written instructions, or (b) any use of the ChromaDiverse Software or ChromaDiverse Services in combination with software or hardware not supplied by ChromaDiverse (other than the Additional Materials). THIS SECTION 7 STATES CHROMADIVERSE’S ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
7.2 Client. Client will defend, at its own expense, and indemnify and hold harmless, ChromaDiverse, and its directors, officers, employees, contractors and agents, from and against any and all claims, liabilities, losses, damages, judgments, awards, costs (including, without limitation, legal fees and expenses), actions and/or other proceedings made, sustained, incurred, brought or prosecuted in any manner whatsoever relating to or arising from: (a) any Client Data (e.g., the ownership thereof) or (b) Client’s breach of Section 2.2.
8. LIMITATION OF LIABILITY; WAIVER OF INJUNCTIVE RELIEF.
8.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL: (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING ANY LOSS OF DATA, PROFITS, REVENUE OR DATA USE) ARISING FROM OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) CHROMADIVERSE’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO CHROMADIVERSE UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY UNDER THIS SECTION 8 SHALL NOT APPLY TO (I) BREACH OF THE CONFIDENTIALITY OBLIGATIONS BELOW, (II) THIRD-PARTY CLAIMS, OR (III) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY.
8.2 CLIENT’S REMEDIES FOR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO AN ACTION AT LAW FOR MONEY DAMAGES, IF ANY. CLIENT SHALL NOT BE ENTITLED TO SEEK OR OBTAIN EQUITABLE RELIEF OF ANY KIND, AND UNDER NO CIRCUMSTANCES SHALL EITHER PARTY HAVE THE RIGHT TO INTERFERE WITH THE OWNERSHIP OR EXPLOITATION OF THE OTHER PARTY’S RIGHTS AS SET FORTH HEREIN.
9.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, customer, planning, and other confidential or proprietary information (“Confidential Information”). Any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party will be considered Confidential Information of the Disclosing Party. The ChromaDiverse Software, including without limitation any routines,
subroutines, directories, tools, programs, or any other technology included therein, shall be considered ChromaDiverse’s Confidential Information. The terms of this Agreement shall be considered Confidential Information.
9.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
9.3 Exceptions. The Receiving Party’s obligations under Section 9.2 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by order of a court of competent jurisdiction, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure or obtain a protective order.
9.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party; provided that the Receiving Party may keep one copy for its legal and archival purposes.
10. TERM AND TERMINATION
10.1 Term. This Agreement is effective during the initial subscription period set forth in the Service Order (the “Subscription Term”). The initial subscription period set forth in the Service Order will automatically renew for successive one-year periods (each, a “Renewal Term”) unless either party provides written notice to the other party of non-renewal of the Service Order not less than ninety (90) days prior to the start of the upcoming Renewal Term. The Subscription Term and Renewal Term are collectively referred to as the “Term”. The Term may be sooner terminated as set forth herein. Termination of the Agreement encompasses termination of the Service Order unless otherwise agreed in writing.
10.2 Early Cancellation. You may choose to cancel your subscription early at your convenience provided that you promptly pay all unpaid fees due through the end of the Term. ChromaDiverse will not provide any refunds of prepaid fees or unused fees.
10.3 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all ChromaDiverse Services: (i) upon thirty (30) days’ notice to the other party of a material breach 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, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Term.
10.4 Suspension for Prohibited Acts. We may suspend any User’s access to any or all ChromaDiverse Services without notice for: (i) use of the ChromaDiverse Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, or (ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review and delete any Client Data or Client Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty to prescreen, control, monitor or edit your Client Data or Client Materials.
10.5 Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the ChromaDiverse Services ten (10) days after such notice. We will not suspend the ChromaDiverse Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a ChromaDiverse Service is suspended for non-payment, we may charge a re-activation fee to reinstate the ChromaDiverse Service.
10.6 Suspension for Present Harm. If your use of the ChromaDiverse Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the ChromaDiverse Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the ChromaDiverse Service. We will try to limit the suspension to the affected portion of the ChromaDiverse Service and promptly resolve the issues causing the suspension of the ChromaDiverse Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
10.7 Effects of Termination. Upon termination or expiration of this Agreement, any amounts owed to ChromaDiverse under this Agreement before such termination or expiration will be immediately due and payable, all access rights granted in this Agreement will immediately cease to exist, and Client must promptly discontinue all use of the ChromaDiverse Software and ChromaDiverse Services, and return to ChromaDiverse or destroy all copies of the ChromaDiverse Documentation and other ChromaDiverse Confidential Information in Client’s possession or control. Sections 1, 2.2, 2.4, 4, 6, 7, 8, 9, 10.7 and 11, together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.
11.1 No Publicity. Neither party shall make any public written or online references to the nature of this Agreement, to the other party or to the other party’s logos, trademarks or service marks without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, during the Term each party may accurately reference the other party as a customer, client or vendor (as applicable) in customer lists and marketing materials.
11.2. Compliance with Laws. Each party shall comply with all applicable laws and regulations (as applicable) concerning the provision and use of ChromaDiverse Services.
11.3 Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under the Agreement to any third party without the other party’s prior written consent, which consent will not be unreasonably withheld, conditioned or delayed; except that each party may assign this Agreement, without consent, to an affiliate or any successor to all or substantially all its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void.
11.4 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause that is beyond the reasonable control of such party.
11.5 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the Service Order and will be effective upon receipt or when delivery is refused. Either party may change its address by giving notice of the new address to the other party.
11.6 Governing Law. This Agreement will be governed by, and interpreted in accordance with, the laws of the State of California applicable to contracts wholly made and to be performed therein, without reference to its choice of laws rules. Each party irrevocably submits to the sole and exclusive jurisdiction of the state and federal courts situated in the City and County of San Francisco, State of California. Each party irrevocably consents to the exercise of personal jurisdiction over each of the parties by such courts and waives, to the fullest extent permitted by law, any objection to venue and any claim of forum non conveniens. The parties expressly exclude the application of the United Nations Convention on the International Sale of Goods.
11.7 Remedies. Except as provided in Sections 6 and 7, the parties’ rights and remedies under this Agreement are cumulative. Client acknowledges that the ChromaDiverse Software contains valuable trade secrets and proprietary information of ChromaDiverse, that any actual or threatened breach of Section 2 or Section 9 may constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that ChromaDiverse is entitled to seek injunctive relief in the event of any such actual or threatened breach. If any legal action is brought by either party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses from the non-prevailing party, in addition to any other relief it may receive, whether or not that action is prosecuted to judgment. All such attorneys’ fees and other costs and expenses incurred by a party in enforcing a judgment in its favor under this Agreement shall be recoverable separate from, and in addition to, any judgment amount. This attorneys’ fees obligation is intended to be severable from the other provisions of this Agreement and to survive and not be merged into any such judgment.
11.8 Waivers; Severability; Construction. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. The headings, titles and captions in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. The terms “include,” “includes,” and “including” mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively, and are to be construed as inclusive, not exclusive. The word “or” is not exclusive. Words denoting the singular have a comparable meaning when used in the plural, and vice-versa.
11.9 Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. This Agreement may be executed in counterparts, all of which taken together shall constitute one single agreement between the parties. Signatures may be delivered by facsimile or other electronic means of reproducing a signature (e.g., pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, such as www.docusign.com or the like), and such reproductions shall have the same effect as original signatures.
11.10 Independent Contractor; No Partnership or Joint Venture; No Third-Party Beneficiaries. It is understood that ChromaDiverse’s status hereunder is that of an independent contractor and that no person employed by ChromaDiverse in performing its obligation hereunder shall be deemed an employee of Client. ChromaDiverse shall assume all responsibility for the hiring and supervision, and the payment of wages, expenses and benefits to all personnel engaged by ChromaDiverse in providing products and services to Client hereunder. Nothing contained herein shall constitute a partnership between or joint venture by the parties or constitute either party the agent of the other. Neither party shall hold itself contrary to the terms of this section and neither party shall become liable for any representation, act or omission of the other contrary to the provision hereof. There are no third-party beneficiaries, actual or intended, under this Agreement.