This is a contract between you (“Community Partner,” “you” or “your”), and “ChromaDiverse, Inc.” (“ChromaDiverse,” “we,” “our” or “us”). It describes the services, products (hardware and software), and platforms (collectively, the “ChromaDiverse Services,” as defined in Section 1.7 below) that 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 any ChromaDiverse™ Services or receiving Consulting Services, you are agreeing to these Terms, which may be updated by us from time to time. Also, for purposes of these Terms, “Community Partner,” “you” and “your” mean the entity, organization or partnership on whose behalf you are placing Service Orders, posting content, or using ChromaDiverse Services (or, if none, yourself individually). Community Partner and ChromaDiverse are sometimes each individually referred to as a “party,” and collectively as the “parties.”
These Terms contain provisions that limit our liability to you and require individual arbitration of disputes rather than jury trials or class actions, as described more fully in Sections 8, 11.7 and 11.8, below. For California residents and EU data subjects, certain arbitration provisions may not apply or may be limited under applicable law. This “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, that ChromaDiverse may update these Terms at any time, at its discretion, with at least 30 days’ prior notice to you, by posting a copy thereof at https://chromadiverse.org/Community PartnerTOS and sending notification to your registered email address. Any such updates will only apply to future Service Orders accepted by you (including renewal Service Orders). If you do not agree to updated Terms, you may terminate this Agreement in accordance with Section 10. 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 “Alumni” means current and former staff and artists associated with a performing arts organization. 1.3 “Billing Period” means the period for which you agree to prepay fees under a 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 Services for a one (1) year Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months. 1.4 “CD CurtainConnect”™ means the stand-alone product/platform that integrates with CD DigitalVault and collects personal narratives from performing arts organization Alumni. Its focus is on the history/stories of Alumni of one or more performing arts organizations, and is offered as an additional feature at no additional cost to performing arts organizations that license a CD DigitalVault. CurtainConnect helps provide a more complete view of the organization’s history by highlighting the stories of those Alumni that made the organization successful. Alumni are invited to complete an intuitive online questionnaire and submit their personal media, including photos, videos, and documents to the CD CurtainConnect site. CD Alumni’s personal collections are then combined with the organization’s historical legacy materials found in the CD DigitalVault. This integration of personal and organizational information offers a comprehensive and engaging view of the artistic contributions made to the organization’s history. Ultimately, this process strengthens the bond between the company, its Alumni, and the public by providing richer, more complete historical insights. 1.5 “CD DigitalVault”™ means the stand-alone Cloud-based application allowing a partner to store digital assets (documents, photos, video, audio, programs and sales collateral) along with associated metadata. Its focus is on digital assets that tell a performing arts organization’s story. CurtainConnect helps provide more of a 360-degree view of the history by showing the Org and those that made the Org successful. 1.6 “CD SmartCapture”™ means the stand-alone cloud-based application that extracts metadata from scanned or digital Performance Programs or Playbills through AI-powered processing. The input is a scanned or digital copy of the performance program and the output are digital copy of the program onboarded to the CD DigitalVault or output to a generic file format that comes with associated metadata. This metadata identified and extracted from the Program includes, but is not limited to, the following (note this list of metadata may expand with future enhancements: (a) venue, city, state/province, country; (b) date of performance; (c) company staff; (d) board of directors; (e) board of advisors; (f) donors; and (g) performance information, such as title of work within the given performance, associated choreographer, stage, lighting, costume designer, composer, music title, musician(s), and artists (e.g., dancers, actors, performers, etc.). 1.7 “ChromaDiverse Services” means the online services, products and platforms delivered by ChromaDiverse to Community Partner, either collectively or individually, including without limitation CD DigitalVault, CD SmartCapture, and CD CurtainConnect, along with website/portal creation and hosting capabilities. As part of ChromaDiverse Services, we provide the technology necessary for performing arts organizations to create their own customized website/portal and, once created, host photos, videos, and other content provided by Community Partner for public viewing. (See also Section 2.11 “Service-Specific Additional Terms and Policies,” below.) 1.8 “ChromaDiverse Software” means the software program or programs identified in the Service Order, all Documentation, and any updates or enhancements provided by ChromaDiverse. 1.9 “ChromaDiverse Site” means all web pages and hosting environments managed by ChromaDiverse where Community Partner and Users access ChromaDiverse Services, including, without limitation, ChromaDiverse.org. 1.10 “Community Partner Data” means any data, content, works, and information provided or delivered by Community Partner and/or Users to ChromaDiverse, including Personal Data. Community Partner Data is processed in accordance with our Privacy Policy at https://chromadiverse.org/privacy/ and any Data Processing Agreements (“DPAs”) with third-party service providers. 1.11 “Consulting Services” means the professional services provided by us to you, which may include training services, installation, integration or other consulting services. 1.12 “Documentation” means the user manuals and technical documentation provided to Community Partner with ChromaDiverse Services. 1.13 “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. 1.14 “Personal Data” means any information relating to an identified or identifiable natural person as defined under applicable data protection laws, including without limitation the General Data Protection Regulation (“GDPR”), California Privacy Rights Act (“CPRA”), California Consumer Privacy Act (“CCPA”), and other applicable privacy laws. 1.15 “Sensitive Information” means 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; biometric data; genetic data; trade union membership; political opinions; religious or philosophical beliefs; sex life or sexual orientation; 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 any information defined as sensitive under applicable data protection laws. 1.16 “Service Order” means the subscription process or agreement by which you subscribe to 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. In the event there is no separate Service Order document executed by Community Partner, these Terms shall govern and control, provided Community Partner has checked the box at the end of these Terms acknowledging that they have read, understood, and agreed to be bound by these Terms. 1.17 “Subscription Fee” means the amount you pay for the ChromaDiverse Services. 1.18 “Subscription Service” (or “ChromaDiverse Services” in context) means all of our webbased Digital Asset Management applications, tools and platforms that you have subscribed to by a 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. 1.19 “Subscription Term” means the initial term of your subscription to the applicable ChromaDiverse Services, as specified on your Service Order(s), and each subsequent renewal term (if any). 1.20 “User” or “Users” means Community Partner’s employees and authorized contractors who use ChromaDiverse Services with proper credentials. Users not of level “Consumer” or “Browser” will be provided with named user accounts with read-write privileges within the ChromaDiverse Application. Additional Users may require additional fees. 2.1 Access Grant. Subject to the Terms of this Agreement, ChromaDiverse grants to Community Partner during the Term (as defined below) a non-exclusive, non-transferable right to access and use ChromaDiverse Services for which Community Partner has paid the applicable fees, solely for the performance of Community Partner’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 Terms of this Agreement. ChromaDiverse will use commercially reasonable efforts to ensure that, if applicable, 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 of this Agreement. 2.2 Usage Restrictions. Community Partner acknowledges that the ChromaDiverse Software and ChromaDiverse Services, 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, Community Partner 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 Services; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the ChromaDiverse Software or ChromaDiverse Services 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 Services, 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, Community Partner 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 Community Partner Data. Community Partner hereby grants to ChromaDiverse a nonexclusive right and license to use Community Partner Data solely for the limited purpose of, and solely as necessary for, performing ChromaDiverse’s obligations hereunder for the benefit of Community Partner. ChromaDiverse shall not use Community Partner Data for the benefit of any other Community Partner of ChromaDiverse, or for any other purpose, without Community Partner’s prior written approval; provided, however, that ChromaDiverse shall have the right, with Community Partner’s explicit consent obtained in accordance with applicable privacy laws, to use for marketing and/or promotional purposes any public-facing content hosted on any of ChromaDiverse Services, including, without limitation, email marketing and advertising, social media, fundraising, webinars, blogs, white papers, and the like, as long as photographer and/or rightsholder attribution is provided in connection with such marketing and/or promotions. For Personal Data contained in Community Partner Data, ChromaDiverse will act as a data processor on behalf of Community Partner (the data controller) and will process such Personal Data in accordance with Community Partner’s instructions, applicable privacy laws, and any DPAs. Subject to the rights granted in this Agreement, Community Partner retains all right, title and interest in and to Community Partner Data, and ChromaDiverse acknowledges that it neither owns nor acquires any additional rights in and to Community Partner Data not expressly granted by this Agreement. Community Partner represents and warrants that it has obtained all necessary consents and has the lawful basis to collect, use, and provide Community Partner Data to ChromaDiverse for the purposes set forth in this Agreement, including compliance with applicable privacy laws. Without waiving the foregoing, in the event that any of the rights to content hosted by ChromaDiverse remains those of a third party (e.g., a photographer, video company, or other third-party rights holder), we have the right (but not the obligation) to contact such rights holder(s) directly to obtain those rights. 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. Community Partner shall be responsible for ensuring the security and confidentiality of its login credentials. Community Partner’s access and use of the ChromaDiverse Services will be limited to the number of Users and types of transactions for which Community Partner has paid the applicable Fees. Community Partner 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. In the event of a security breach involving Personal Data, ChromaDiverse will notify Community Partner within 72 hours of becoming aware of the breach and will cooperate with Community Partner to fulfill any legal notification requirements. If Community Partner wishes to add additional Users, Community Partner 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 Services available to the additional Users on the Terms set forth in this Agreement. 2.6 Additional Features. You may subscribe to additional features of the ChromaDiverse Services 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 Services 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 Services 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 Services if you are legally prohibited from receiving or using the ChromaDiverse Services under the laws of the country in which you are resident or from which you access or use the Subscription Service. The ChromaDiverse Services 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 Services where your communications would be subject to such laws. You may not use the ChromaDiverse Services 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 SERVICES HAS NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION (AS DEFINED IN SECTION 1.15) AND ACCORDINGLY YOU AGREE NOT TO USE THE CHROMADIVERSE SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION WITHOUT PRIOR WRITTEN AGREEMENT AND APPROPRIATE SAFEGUARDS. WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE CHROMADIVERSE SERVICES TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION WITHOUT SUCH PRIOR AGREEMENT. 2.10 Security. ChromaDiverse implements security procedures to help protect your Community Partner Data from security attacks. However, you understand that use of ChromaDiverse Services necessarily involves transmission of your Community Partner Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your Community Partner Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Community Partner 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. ChromaDiverse maintains appropriate technical and organizational measures to protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access, as further described in our Privacy Policy and any DPAs. 2.11 Service-Specific Additional Terms and Policies. These Terms apply to all ChromaDiverse Services, now or hereafter provided. Next to each service listed below, we also list additional terms and policies that apply to that particular service. These Terms, additional terms, and policies define our relationship and mutual expectations as you use these services. In the event we launch a new service, we may update these Terms, additional terms, and/or policies accordingly. The following service-specific additional terms and policies are in addition to those provisions set forth in Section 1 above, and are hereby incorporated into and made a part of this Agreement: CD DigitalVault: CD SmartCapture: CD CurtainConnect: 3.1 Subject to the Terms of this Agreement, ChromaDiverse will provide Community Partner with those support and maintenance services and service uptime commitment for 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 Community Partner’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 DigitalVault 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 Community Partner’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, Community Partner 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 Community Partner requests such credit within twenty (20) days of the end of the relevant calendar month. All references to Service Uptime in this paragraph refer to the DigitalVault Subscription Service only. 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 ChromaDiverse Services and ChromaDiverse Software not expressly granted to Community Partner in this Agreement are reserved by ChromaDiverse and its suppliers. Community Partner will not remove, alter, or obscure any proprietary notices (including copyright notices) of ChromaDiverse or its suppliers on the ChromaDiverse Software or Documentation. 5.1 Fees. Community Partner will pay ChromaDiverse ChromaDiverse Services fees in the amount and pursuant to the schedule set forth in the Service Order (“Fees”). All Fees are nonrefundable, except as otherwise set out in this Agreement or required by applicable law. 5.2 Payment. Unless otherwise expressly provided in this Agreement, Community Partner will pay all invoices due on receipt. Fees exclude, and Community Partner 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 Audit Rights. Upon thirty (30) days’ prior notice ChromaDiverse will have the right to have an independent audit firm inspect Community Partner’s records relating to Community Partner’s use of the ChromaDiverse Software and ChromaDiverse Services solely in order to verify Community Partner’s compliance with the Terms of this Agreement. The audit will be performed during Community Partner’s normal business hours. The costs of the audit will be paid by ChromaDiverse, unless the audit reveals that Community Partner has (i) failed to comply with the Terms of this Agreement, or (ii) underpaid the amounts owed to ChromaDiverse by five percent (5%) or more, in which case Community Partner will reimburse ChromaDiverse for all reasonable out-of-pocket costs and expenses reasonably incurred by ChromaDiverse in connection with such audit. Community Partner will promptly pay to ChromaDiverse any amounts shown by any such audit to be owing and due. 5.4 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. 5.5 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. 5.6 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 nonrefundable. 5.7 Service Limits and Overage Fees. We reserve the right to limit the manner in which any portion of the ChromaDiverse Services 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 the following: 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. The service is offered based on the size of storage being purchased. If you exceed the limit of the number of Gigabyte (GB) of Storage purchased, then an equivalent Storage Overage may be assessed. For example, if your Service Order specifies a 200GB Storage plan, and if your Storage exceeds 200 GB, 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 Services 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. Data Transfer (“Data Transfer”) is measured in Gigabytes (“GBs”) for each month. Unless specified differently on the Service Order, you understand that ChromaDiverse Services include up to 500GBs of Data Transfer per month, and up to 500 managed Assets per Gigabyte (“GB”) of Storage. ChromaDiverse reserves the right to charge 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 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 ChromaDiverse Services and the Internet. On the other hand, Data Transfer is the number of bytes transferred between 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 ChromaDiverse Services at any time in our discretion, with thirty (30) days’ prior 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). 6.1 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) 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 Community Partner’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 Community Partner for the Support Services (as applicable) which gave rise to the breach; provided that Community Partner 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 Community Partner’s exclusive remedy for any breach of the warranty under sub-section (b) above, correct any reproducible error that Community Partner 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 Community Partner for ChromaDiverse Services which gave rise to the breach. 6.2 Disclaimers. CHROMADIVERSE DOES NOT WARRANT THAT COMMUNITY PARTNER’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, COMMUNITY PARTNER 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, Community Partner, 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 ChromaDiverse Services) of a third party’s U.S. Intellectual Property Rights; (B) any property damage, personal injury or death to the extent caused by the gross negligence or willful misconduct of ChromaDiverse; and (C) ChromaDiverse’s violation of applicable data protection laws, including without limitation the General Data Protection Regulation (GDPR), the California Privacy Rights Act (CPRA), and the California Consumer Privacy Act (CCPA), in its processing of Personal Data; provided, however, ChromaDiverse shall have no indemnity obligations under sub-sections (B) and (C) to the extent any such damage, injury, death, or violation is caused, in whole or in part, by the negligence, willful misconduct, acts or omissions of Community Partner, and its employees, contractors or agents. The foregoing obligations are conditioned on Community Partner’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) full cooperation and, at ChromaDiverse’s request, assisting in such defense. 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 Community Partner the right to continue using the ChromaDiverse Software as necessary for the use of ChromaDiverse Services, or (ii) replace or modify the ChromaDiverse Software so that it becomes non-infringing; provided, however, if ChromaDiverse determines in its sole discretion that the remedies under (i) or (ii) are not commercially practicable, ChromaDiverse may terminate this Agreement upon written notice to Community Partner and refund Community Partner 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, the Documentation, 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 COMMUNITY PARTNER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS. 7.2 Community Partner. Community Partner will defend, at its own expense, and indemnify and hold harmless, ChromaDiverse, including 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 Community Partner Data (e.g., the ownership thereof, or any violation of third-party rights therein); (b) Community Partner’s breach of Section 2.2; (c) Community Partner’s violation of applicable data protection laws, including without limitation GDPR, CPRA and CCPA, in its provision of Personal Data to ChromaDiverse or its instructions to ChromaDiverse regarding the processing of Personal Data; and (d) Community Partner’s failure to obtain necessary consents, provide required notices, or comply with legal obligations regarding the collection and transfer of Personal Data to ChromaDiverse. 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, (III) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, (IV) VIOLATIONS OF APPLICABLE DATA PROTECTION LAWS, INCLUDING WITHOUT LIMITATION GDPR, CPRA AND CCPA, (V) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (VI) DEATH OR PERSONAL INJURY. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW. 8.2 COMMUNITY PARTNER’S REMEDIES FOR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO AN ACTION AT LAW FOR MONEY DAMAGES, IF ANY. COMMUNITY PARTNER 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; PROVIDED, HOWEVER, THAT THIS SECTION SHALL NOT APPLY TO CLAIMS FOR INJUNCTIVE RELIEF RELATED TO VIOLATIONS OF DATA PROTECTION LAWS OR CONFIDENTIALITY OBLIGATIONS WHERE SUCH RELIEF IS PERMITTED OR REQUIRED BY LAW. 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. For the avoidance of doubt, Personal Data shall not be considered Confidential Information, but shall be governed by our Privacy Policy and any DPAs. 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, subject to continued confidentiality obligations. This section shall not apply to Personal Data, the retention and deletion of which is governed by our Privacy Policy and any DPAs. 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; provided, however, that in the event Community Partner is billed on a monthly basis (vs. annual), either party may terminate this Agreement by providing written notice to the other party of non-renewal of the Service Order not less than thirty (30) days prior to the start of the next calendar month. By way of example, if Community Partner terminates on Feb 15th (i.e., mid-month of a monthly term), they will be billed on Mar 1st for the entire month of March and the Agreement will terminate at the end of March. 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, except as may be required by applicable consumer protection laws. 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. ChromaDiverse may also terminate this Agreement immediately upon notice if Community Partner materially violates applicable data protection laws or fails to comply with data subject rights requests. 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 Services 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 Community Partner Data or Community Partner Materials that we determine in good faith violate these Terms, provided that, we have no duty to prescreen, control, monitor or edit your Community Partner Data or Community Partner Materials. Any suspension or deletion of Personal Data will be conducted in accordance with applicable data protection laws and our Privacy Policy. 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 ChromaDiverse Services ten (10) days after such notice. We will not suspend the ChromaDiverse Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a ChromaDiverse Services 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 Services 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 Services 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 Community Partner 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 Community Partner’s possession or control. Upon termination, ChromaDiverse will handle Personal Data in accordance with our Privacy Policy and any DPAs, including providing Community Partner with the opportunity to retrieve or delete Personal Data as required by applicable law. The parties acknowledge that certain data retention and deletion obligations under applicable data protection laws may continue beyond termination. Sections 1, 2.2, 2.4, 4, 6, 7, 8, 9, 10.7 and 11, together with any accrued payment obligations, shall survive expiration or termination of this Agreement for any reason. All of the Terms of this Agreement shall survive in full in case of an acquisition, merger, or sale of all or substantially all of ChromaDiverse’s assets, unless modified in accordance with Section 11.11 hereof. 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, Community Partner or vendor (as applicable) in customer lists and marketing materials, subject to applicable data protection laws regarding the disclosure of customer information. 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, including without limitation data protection laws such as GDPR, CPRA, CCPA, and other applicable privacy regulations. Community Partner acknowledges that certain features of ChromaDiverse Services may not be available in all jurisdictions due to local law requirements. 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 assignment involving the transfer of Personal Data must comply with applicable data protection laws. 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, including without limitation acts of God, natural disasters, government actions, cyberattacks, or other similar events. 11.5 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), by certified or registered mail, (postage prepaid and return receipt requested), or by email 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. Notices regarding data protection matters may also be sent to the contact information specified in our Privacy Policy. 11.6 Governing Law; Venue. 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. Notwithstanding the foregoing, data subjects may have the right to bring claims in the courts of their habitual residence under applicable data protection laws. 11.7 Arbitration. Any dispute arising from, or relating to, this Agreement or any of the ChromaDiverse Services shall be resolved at the request of any party through binding arbitration, except for disputes relating to data protection rights under GDPR, CPRA, CCPA, or other applicable data protection laws, which may be resolved in court as provided by such laws. Within fourteen (14) business days after demand for arbitration has been made by a party, the parties, or their counsel, shall meet to discuss the issues involved, to discuss a suitable arbitrator and arbitration procedure, and to agree on arbitration rules particularly tailored to the matter in dispute, with a view to the dispute’s prompt, efficient, and just resolution. On the failure of the parties to agree on arbitration rules and procedures within a reasonable time (not longer than thirty (30) days from the demand), the Commercial Arbitration Rules of the American Arbitration Association shall be applicable. Likewise, on the failure of the parties to agree on an arbitrator within a reasonable time (not longer than thirty (30) days from the demand), there shall be a panel comprised of one (1) arbitrator, to be appointed by the American Arbitration Association. At least thirty (30) days before the arbitration hearing, the parties shall allow each other reasonable written discovery, including the inspection and copying of documents and other tangible items relevant to the issues that are to be presented at the arbitration hearing. The arbitrator shall be empowered to decide any disputes regarding the scope of discovery. Fees for the arbitrator shall be divided equally between the parties, and the parties will be individually responsible for the payment of the fees. The prevailing party in any arbitration, proceeding or legal action arising out of, or in connection with, this Agreement or any of the ChromaDiverse Services shall be entitled to recover its reasonable attorneys’ fees and costs incurred in connection with such arbitration, proceeding or legal action. The arbitrator shall determine who the prevailing party is for this purpose. All attorneys’ fees and other expenses incurred by a party in enforcing a judgment in its favor under this Agreement or any of the ChromaDiverse Services 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. The award rendered by the arbitrator shall be final and binding on the parties. The arbitration shall be conducted in San Francisco County, California. The California State Superior Court located in San Francisco County, California shall have exclusive jurisdiction over disputes between the parties in connection with the arbitration and its enforcement. The parties consent to the jurisdiction and venue of the California State Superior Court located in San Francisco County, California. Notwithstanding the fact that the parties have agreed to have any disputes arising from, or related to, this Agreement resolved by binding arbitration, this arbitration provision shall not prevent the parties from seeking ancillary or equitable relief in connection therewith from the California State Superior Court, including specific performance. “NOTICE: BY USING ANY OF THE CHROMADIVERSE SERVICES, YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE CHROMADIVERSE SERVICES DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL, EXCEPT FOR DISPUTES RELATING TO DATA PROTECTION RIGHTS UNDER APPLICABLE DATA PROTECTION LAWS. BY USING ANY OF THE CHROMADIVERSE SERVICES, YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, AND IF YOU REFUSE TO SUBMIT TO ARBITRATION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.” 11.8 Class Action Waiver. Community Partner waives rights to participate in class actions or representative proceedings against ChromaDiverse, except where such waiver is prohibited by applicable law, including certain data protection laws. 11.9 Remedies. Except as provided in Sections 6 and 7, the parties’ rights and remedies under this Agreement are cumulative. Community Partner 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. 11.10 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 or portion thereof is declared or determined by a court of competent jurisdiction to be unenforceable, such provision or portion thereof 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 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, without limitation,” “includes, without limitation,” and “including, without limitation,” 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. 11.11 Entire Agreement; Counterparts. This Agreement, together with our Privacy Policy, 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 only be amended by a written document signed by both parties (e.g., an amended Master Services Agreement or new Service Order) or, where permitted, by Community Partner acknowledging its acceptance of, and explicit, affirmative consent to, such amendment via opt-in clickwrap (i.e., check-the-box) agreement, as set forth at the end of these Terms, except that ChromaDiverse may update its Privacy Policy and any DPAs in accordance with the terms thereof. 11.12 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 Community Partner. 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 Community Partner 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, except that data subjects may have certain rights under applicable data protection laws. 11.13 Data Protection and International Transfers. ChromaDiverse will process Personal Data in accordance with its Privacy Policy and any DPAs. Where Personal Data is transferred outside the jurisdiction where it was collected, such transfers will be made in compliance with applicable data protection laws, including through the use of appropriate safeguards such as Standard Contractual Clauses, adequacy decisions, or other legally recognized transfer mechanisms. 11.14 Consumer Rights. If Community Partner is a consumer (as defined under applicable consumer protection laws), certain provisions of this Agreement that limit liability or restrict rights may not apply to the extent prohibited by such laws. Nothing in this Agreement affects any statutory rights that cannot be waived or limited by contract. 11.15 Privacy and Data Collection. Our Privacy Policy describes who we are, what information we collect from you, how we process your information, who we share it with, and your rights under data protection laws. ChromaDiverse, Inc. Last updated: July 29, 2025Terms of Service – Community Partner
Important Notice:
1. DEFINITIONS
2. ACCESS GRANT AND OTHER RIGHTS
3. SUPPORT SERVICES AND UPTIME COMMITMENT
4. PROPRIETARY RIGHTS
5. FEES AND PAYMENT
6. WARRANTY; DISCLAIMER
7. INDEMNITY
8. LIMITATION OF LIABILITY; WAIVER OF INJUNCTIVE RELIEF
9. CONFIDENTIALITY
10. TERM AND TERMINATION
11. GENERAL
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