Terms of Service – Clients

Last Modified: September 13, 2024

These client and user Terms of Service are a contract that governs the use of the Crelate services. This Agreement is made between the person, entity, and/or organization that has completed and accepting an Ordering Document (the “Client”) and Crelate, Inc (“Crelate”).

Any reference to a Master SaaS or Services Agreement means this Agreement. We’ve attempted to keep these documents as readable as possible, but in some cases for legal reasons, some language is necessarily “legalese”.

By using our Service or receiving Professional Services, you are agreeing to these terms. These terms are bending as of the first day of your subscription or acceptance of An ordering document (the “Effective date”).

We do update these terms from time to time. If you have an active Crelate subscription, we will let you know when we update the terms via email (if you subscribe to receive email updates).

Definitions
– Affiliate(s) – means any entity under the control of a Party where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
– Authorized User(s) – means an employee or contractor of Client or its Affiliates who is authorized to access the Service.
– Crelate Code – means any code, software development kits (SDKs), application programing interfaces (APIs), other code or libraries provided by Crelate for deployment in furtherance of any ordering document executed pursuant to this Agreement.
– Client Content – means any data, content or other information of any type that is submitted to the Services by or on behalf of Client, including without limitation: data, content or other information submitted, uploaded, instructed to be used for or imported to the Services by Client (including from third party platforms).
– Client Public Content – means any Client Content that Client publishes to the world wide web, job boards, send via mass email or otherwise distribute to the public domain.
– Cure Period – means a period commencing on the date either party receives from the other written notice describing the breach or default and continuing for five (5) business days thereafter.
– Documentation – means any Crelate provided knowledge base content, help documentations, blog posts, training, or other materials describing the features, usage, and functionality of Crelate’s products or capabilities.
– Feedback – means comments, ideas, suggestions, or other feedback relating to any Crelate product or service, including, without limitation, integrations with Marketplace Partners (as defined in Additional Product Terms).
– Intellectual Property – include all valid copyrights, trademarks, patents, trade secrets, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country or other jurisdiction.
– Human Resources Data – means sensitive personal information that is legitimately necessary to lawfully carry out Client’s employment obligations.
– Partner Offering(s) – See Additional Product Terms.
– Personal Data – means any information provided or made available to Crelate, by or on behalf of Client, in connection with the Services and which relates to an identified or identifiable natural person (“data subject”). An identifiable natural person is one who can be identified, directly or indirectly, by reference to an identifier such as a name, an identification number, location data, or an online identifier. For the avoidance of doubt, Personal Data includes personally identifiable information.
– People – means Client’s current, past and potential users, candidates, referees, references, or customers.
– Professional Services – means consulting, training, development, project management, testing, or other professional services work completed by Crelate pursuant to a SOW.
– Purchase Form – means any agreement to purchase or procure software of Services from Crelate.
– Services – means Crelate’s proprietary software-as-a-service solution(s) including the app.crelate.com, app.crelatestaging.com, any successor domains or properties, the Crelate Connector, Crelate Chrome Extension, Crelate Outlook Addin or other Crelate products, Crelate Code and if applicable, those services and features covered by the Additional Product Terms, as described in the Purchase Form.
– Sensitive Personal Information – means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) not authorized or covered by a duly executed Business Associate Agreement with Crelate; (iii) genetic or biometric data; (iv) trade-union membership; (v) political opinions, religious or philosophical beliefs; or (iv) any other personal data of an EU citizen deemed to be in a “special category” (as identified in EU General Data Protection Regulation or any successor directive or regulation).
– Professional Services Statement of Work (“SOW”) – means an agreement between the parties for the purchase of Professional Services; including Change Orders (defined below).
– Work – means any code, documentation, diagrams, specifications, reports, or data produced in connection with a SOW.

1. SERVICES AND USAGE

1.1 SaaS Service Grant of Access and Use. Subject to the terms herein, Crelate grants Client, solely for its own benefit (and for the benefit of People) the right to access and use Crelate Services. Each Service is provided on a subscription basis (“Subscription”) for a set term designated on the Purchase Form (each, a “Subscription Term”). Client will purchase and Crelate will provide the specific Services as specified in the applicable Purchase Form(s).
1.2 Subscription Level. Client’s use of the Services is limited to the Subscription Level. You may not attempt to exceed or circumvent the limits placed on your Subscription.
1.3 Excessive Usage. Crelate reserves the right to restrict, throttle, limit, or suspend access to any individual component of the Services or features, or all Services, if Client has exceeded applicable usage limits (if any) or if Crelate otherwise determines, in its sole discretion, that Client is using the applicable Service in a manner that has become excessive (e.g., substantially exceeds typical use projections or exceeds usage by similar-sized clients (where customer size is defined by number of seats), including, but not limited to, storage and bandwidth consumption) and/or negatively impacts the operability, integrity, or security of the Service until usage is reduced to reasonable levels, as determined by Crelate and/or such impact is resolved to Crelate’s satisfaction. We may change usage limits at any time, in our sole discretion, without notice.
1.4 General Restrictions. Client will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party other than the client properties; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Crelate); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services and/or on any reports or data printed from the Services (unless otherwise expressly permitted by Crelate in writing and in advance); (f) publicly disseminate information regarding the performance of the Services; (g) use the Services for competitive analysis purposes; or (h) otherwise violate Crelate’s Acceptable Use Policy.
1.5 Violation of Agreement. If, in Crelate’s sole discretion, we determine that you have violated this Agreement, we reserve the right to Terminate your account and make no commitments or warranties to preserve your Client Content. Unless, again in our sole discretion, the violation involves illegal behavior or behavior or use of the Services that could compromise other Subscribers, we will attempt, but do not guarantee, to notify you of the Termination of your account and provide you read-only access to the site for 30 days to copy your Client Content before we erase it.

2. PROFESSIONAL SERVICES

2.1 Crelate may provide Professional Services for Client as the parties may agree from time to time pursuant to each Professional Services SOW entered into hereunder. A Professional Services SOW shall be executed by the parties and include a description of the Services, the compensation to be charged and paid for such Professional Services and such other matters as the parties consider appropriate. Each Professional Services SOW shall be considered a separate agreement between the parties thereto. Amendments to a Professional Services SOW (a “Change Order”) shall be made and entered into in the same manner as the original Professional Services SOW.
2.2 Expenses and Travel. Crelate is solely responsible for all reasonably foreseeable expenses incurred in connection with its performance of the Professional Services except for those expenses expressly authorized in a SOW or otherwise approved by Client in writing. Approved travel expenses shall be incurred in accordance with Client’s disclosed travel policies.
2.3 Necessary Access and Resources. Client agrees to provide, at no cost to Crelate, timely access to such data, facilities, resources, and documentation necessary to facilitate Crelate’s performance of the Services and will undertake such other tasks and responsibilities as may be set forth in the applicable SOW (collectively, “Client Responsibilities”). Crelate shall notify Client of any nonperformance of Client Responsibility that materially affects Crelate’s performance of the Services.
2.4 Change Orders. If in either party’s reasonable judgment there is a material change in the scope, duration, requirements, assumptions, or dependencies described in a SOW, the Parties shall negotiate a Change Order in good faith and on commercially reasonable terms which shall be memorialized in a mutually executed Change Order.
2.5 Crelate and Client agree to cooperate in good faith to achieve satisfactory fulfillment of the Professional Services in a timely and professional manner.
2.6 Crelate will perform the Professional Services through qualified employees and/or non-employee contractors or vendors of Crelate for the purposes completing Work.
2.7 Crelate will control the method and manner of performing all Work necessary for completion of Professional Services, including but not limited to the supervision and control and direction of qualified employees and/or non-employee contractors of Crelate (together “Professional Services Personnel”).
2.8 Professional Services Limited Warranty. Crelate represents and warrants that the Professional Services provided pursuant to the Agreement will be performed in a timely and professional manner by Crelate and its Professional Services Personnel, consistent with generally-accepted industry standards; provided that Client’s sole and exclusive remedy for any breach of this limited warranty will be, at Crelate’s option, re-performance of the Professional Services or return of the portion of the Fees paid to Crelate by Client for the nonconforming portion of the Professional Services.
2.9 Subscription Requirements. The parties hereby agree that some Professional Services to be completed pursuant to any SOW, have as a prerequisite active and good standing Client subscription to a Crelate Service and integration of Work with and into one or more Services, and therefore the Work may be rendered inoperative without an active subscription to a Service.
2.10 Termination of Professional Services. Upon termination or expiration of any SOW, Crelate shall immediately cease performing all related Professional Services, shall promptly invoice Client, and Client shall pay Crelate in accordance with this Agreement for all services rendered and expenses incurred prior to the effective date of such termination or expiration and any expenses necessarily and reasonably incurred by Crelate in terminating Client approved obligations to third Parties. Crelate shall refund to Client the unused portion of any prepaid amount.
2.11 Acceptance.
(a) Upon completion of each mutually agreed phase of Work or each SOW of Professional Services, Client shall have ten (10) calendar days (the “Acceptance Period”) in which to accept or reject such Professional Services and related Work, unless the SOW provides a different acceptance period (in each case, the “Acceptance Period”). If prior to expiration of the Acceptance Period Client provides Crelate written notice specifying in reasonable detail the manner in which the Professional Services do not materially conform to the SOW, then Crelate shall re-perform in accordance with 2.11 (a) and 2.11 (b). Acceptance shall be deemed to have occurred following expiration of the Acceptance Period absent a written rejection delivered prior thereto.
(b) Crelate shall have thirty (30) days, or such other period as otherwise agreed to or set forth in the SOW, to implement such changes as shall be reasonably required to bring the Professional Services or Work in material conformity with the SOW pursuant to Section 2.9 (Professional Services Limited Warranty). Crelate shall notify Client of all changes it made and submit the revised Professional Services and Work to Client for acceptance in accordance with Section 2.11.
(c) In the event the corrected Professional Services or Work do not conform materially to the SOW or to the warranties set forth in Client may, in its sole discretion: (a) accept the non-conforming Professional Services or Work at a discount negotiated between the Parties; (b) terminate the applicable SOW and receive a refund of unused amounts corresponding to the non-conforming Professional Services or Work for the relevant SOW.
2.12 Ownership of Work. PROFESSIONAL SERVICES ARE NOT WORK FOR HIRE. Crelate reserves the right to incorporate any techniques, feedback, skills, and/or procedures known or acquired from Professional Services performed under this Agreement into this or any future Professional Services, or products, including but not limited to Services. Any such techniques, know-how, ideas, systems, models, templates, tools, skills, or procedures remain the sole intellectual property of Crelate, and may be used in any contemporaneous or future professional services engagements for this or any other Client, without limitation. Crelate does not sell, assign, or transfer ownership of any Intellectual Property used or developed by Crelate in the performance of any services for the Client pursuant to this Agreement. Nothing contained herein or in any SOW hereunder shall be construed or interpreted as any such sale, transfer, conveyance or assignment of any right, title, or interest by Crelate in any of its Intellectual Property.
In consideration of Client’s full payment of fees pursuant to this Agreement, and applicable SOW(s), Crelate hereby grants Client a worldwide, perpetual, fully paid, royalty-free, and non-exclusive right and license to use any Work so long as Client has an active and good standing Subscription with Crelate.
2.13 Non-solicitation. Unless otherwise prohibited by State law, during the term of a SOW and for twelve (12) months thereafter, neither party shall solicit for employment or contractor relationship any employee of the other party who was engaged in or became known to the other as a result of the performance of such SOW, provided that the foregoing shall not prohibit engagements which result from general, non-targeted solicitations.

3. ACCELERATED ROADMAP PROGRAM

From time to time, and at Crelate’s sole discretion, Client may be invited to participate in Crelate’s Accelerated Roadmap Program (“ARP”). ARP is an invite-only program that offers qualified Clients the unique opportunity to have a voice in design and timing of new features that Crelate believes align with its long-term vision and may ensure Client’s requests get prioritized over other roadmap items. The scope of an ARP proposal will be provided via separate ARP SOW and will in all cases be governed by the following terms.
3.1 Scope and Timeline. While we value your feedback, the exact and final scope, timeline, design, and capabilities of the ARP items are at Crelate’s sole discretion and are subject to change, with or without notice.
3.2 Co-investment. Any co-investments provided by Crelate in connection with an ARP SOW is for, at Crelate’s sole discretion, the use of that agreed ARP item only, is non-transferable, has no cash value, and may not be used for any other purpose.
3.3 Ownership. ARP work is NOT provided as work for hire. Crelate retains all rights, including but not limited to Intellection Property rights, and no rights, warranties, or privileges are conferred, expressed, or inferred.
3.4 Fees and Payments. Fees for ARP work is governed by the same terms as Professional Services.

4. EARLY ADOPTER PROGRAM AND BETAS

Client may be invited to and participate in Early Access Programs (EAP) or other beta or preview offerings at Client’s sole discretion (together “Preview Offerings”). The use of Preview Offerings is subject to additional terms herein. Crelate, in its sole discretion, may offer Preview Offerings with or without charge. Crelate reserves the right to start charging and/or modify the pricing for a Preview Offerings upon prior written notice to Client. Preview Offerings may change or be discontinued at any time without notice and may not be maintained and/or ever made generally available. Preview Offerings are for Client’s internal testing and evaluation purposes only and are not subject to the same security measures specified in Crelate security policies. Crelate will have no liability arising out of or in connection with Preview Offerings and disclaims any warranty, indemnity, support, service level agreement, or other obligations with respect to its Preview Offerings. CLIENTS USES PREVIEW OFFERINGS “AS IS” AND AT ITS OWN RISK.

5. CLIENT OBLIGATIONS

5.1 Rights to Client Content. Client will retain all of Client’s Intellectual Property Rights in and to the Client Content provided to Crelate. Subject to the terms of this Agreement, Client hereby grants to Crelate a non-exclusive, worldwide, royalty-free right to store, access, use, and display the Client Content to provide and improve the Services and perform applicable Professional Services and Work for Client.
5.2 Authorized Users and Use. Client is responsible for any action taken under Client accounts using Client’s usernames, API keys, and passwords, and all Client Content posted using your Services, even if Client is not the one accessing the Service. Except as specifically provided for in this Agreement, you are responsible for protecting the confidentiality of any non-public authentication credentials (including passwords) and the confidentiality of your Client Content.
(a) If Client is given API keys or passwords to access the Services, Client will require that all Authorized Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs and related credentials are granted to individual, named persons, and sharing of user credentials is expressly prohibited.
(b) If any Authorized User who has access to a user ID is no longer an employee or contractor of Client, then Client will promptly disable such user ID and otherwise terminate such Authorized User’s access to the Service.
5.3 Client Content Storage. Crelate does not provide a data archiving service and Crelate does not guarantee or provide the ability to recover data deleted or overwritten by the action or inaction of Authorized Users or People. Crelate agrees only that it will not intentionally delete any Client Content from the Services prior to termination of Client’s applicable Subscription Term and expressly disclaims all other obligations with respect to storage.
5.4 Anonymized Data. Notwithstanding anything to the contrary herein, Client agrees that Crelate may use: certain technical and other data about Clients and People’s use of the Services; and/or Client Content, which, in all cases, is anonymized to remove any personal data of People (“Anonymized Data”) to analyze, improve, support and operate the Services during and after the term of this Agreement, and Client agrees that Crelate is permitted to anonymize Client Content to use for the aforementioned purposes.
5.5 Client Obligations to Crelate
(a) Client Content. Client is solely responsible for the accuracy, content, and legality of all Client Content. Client represents and warrants to Crelate that Client has all necessary rights, consents, and permissions to collect, share and use all Client Content as contemplated in this Agreement (including granting Client the rights under Section 5) and that no Client Content will violate or infringe: (i) any third party Intellectual Property Rights or, publicity, privacy, or other rights, (ii) any laws, or (iii) any terms of service, privacy or other policies and/or any other agreements governing the Client Properties or Client’s accounts with any third-party platforms. Client will be fully responsible for any Client Content submitted to the Services by any Authorized User or People as if it was submitted by Client.
(b) Compliance with Laws. Client agrees to comply with all applicable Laws when using the Services. Without limiting the generality of the foregoing, Client will not engage in any unsolicited advertising, marketing, or other activities, including, without limitation, any activities that, to the extent applicable, violate the Telephone Consumer Protection Act, CAN-SPAM Act or any other applicable anti-spam law or regulation.
(c) No Sensitive Personal Information. Crelate Services may be used to store Personally Data and Human Resources Data. Except as otherwise expressly agreed between the Parties in writing by entering into a business associate agreement for HIPAA data Client specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Client acknowledges that Crelate is not a payment card processor and that the Services are not PCI DSS compliant. Except for Crelate’s obligations under any business associate agreement entered into with Client, Client shall be responsible for any Sensitive Personal Information it submits to the Service, and Client acknowledges that Crelate is not subject to any additional obligations that may apply to any Sensitive Personal Information submitted to the Services.
(d) Indemnification by Client. Client will indemnify, defend, and hold harmless Crelate from and against any and all third party (including, without limitation, People) claims, costs, damages, losses, liabilities and expenses (including reasonable attorney fees and costs) arising from or relating to any Client Content, Client’s use of a Partner Offerings or Services; or breach or alleged breach by Client of Section 5.5 (Client Obligations). This indemnification obligation is subject to Client receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Client to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Crelate at Client’s expense. Notwithstanding the foregoing sentence, (a) Crelate may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Client will not settle any claim without Crelate’s prior written consent, unless the settlement fully and unconditionally releases Crelate and does not require Crelate to pay any amount, take any action, or admit any liability.

6. FEES AND PAYMENT

6.1 Fees. A Purchase Form, SOW, or Change Order (“Ordering Documents”) will set forth all fees for the Services and Professional Services (“Fees”). All Fees, invoices, and payments are stated in United States dollars.
(a) Subscription Fees. All Fees pursuant to a Purchase Form are billed in advance and are non-refundable. If Client terminates Purchase Form or this Agreement during the Subscription Term, no pro rata amount shall be credited to Client, nor refund given.
(b) Professional Service Fees. All Fees pursuant to a Professional Services SOW or Change Order are non-refundable except as expressly provided herein. Client agrees to pay Crelate for the Professional Services at the rates specified in the applicable SOW. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in the SOW. Time-and-material hours are record in quarter hour (15 minute) increments; rounded up to the nearest quarter hour. Any amount set forth in a time-and-materials SOW is solely a good-faith estimate for Client’s budgeting and Crelate’s resource-scheduling purposes and is not a guarantee that the work will be completed for that amount and the actual amount may be higher or lower. Crelate will update Client on the status of the Professional Services and the fees accrued at regular intervals.
6.2 Invoicing and Time to Pay. All invoices will set forth the Fees and be sent to Client in a manner mutually agreed in the Ordering Document.
(a) Subscription Invoices. Client must remit all net amounts due to Crelate under the applicable ordering document within 30 days following its receipt of the invoice.
(b) Professional Services Invoices. Client must remit all net amounts due to Crelate under the applicable ordering document within 10 days following its receipt of the invoice.
6.3 Recurring Payment Authorization. By providing Crelate with credit card, ACH, or other recurring payment method, Client hereby authorizes Crelate to automatically charge the Client’s recurring payment method during the Subscription Term for all fees accrued as the that date and in accordance with this Agreement and applicable Purchase Forms or Statements of Work. Client acknowledges and agrees that the amount billed and charged each month may vary depending on Client’s usage of the Services and may include adjustments to monthly subscription fee, upgrade fees, one-time service fees, additional usage charges, taxes and other fees as described herein.
6.4 Taxes. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Client will be responsible for paying all Taxes including but not limited to sales, use, value added, withhold or any other tax imposed by a federal, state, local or foreign governmental entity associated with Clients purchases and use of the Service or Professional Services, except for those taxes based on Crelate’s net income. If Client must deduct or withhold any tax, Client must pay the amount deducted or withheld as required by law and pay Crelate more so that Crelate receives payment in full as if there were no deduction or withholding.
6.5 Disputed Amounts. If Client in good faith disputes that an invoiced amount is owed, then Client shall (i) timely pay the undisputed amount of the invoice, (ii) before the due date for such payments, notify Crelate of the good faith dispute in writing, specifying in detail the nature of the dispute, and (iii) reasonably and in good faith cooperate diligently to resolve the dispute. All amounts not timely disputed will be considered final and not subject to dispute. Crelate, in its sole discretion, may see Client Content, Work or access to Services in the event of a dispute.
6.6 Foreign Transaction Fees. Client acknowledges that for certain payment methods, the provider/issuer may charge a foreign transaction fee or other charges. The Client is responsible for any foreign transaction fees.
6.7 Failure to pay. If you fail to pay Fees under the terms of Agreement, Crelate reserves the right in its sole discretion to notify Authorized Users and disable or limit access to Services until the balance is paid. Crelate reserves the right, and at Client’s expense, to immediately send any past due amount to collections and any 3rd party collection agency. Any past due balance may be charged interest at the lesser of 1.5% per month or the maximum rate allowed by the prevailing local or state law.

7. SUBSCRIPTION TERM RENEWAL AND CANCELLATION

7.1 Subscription Term. The initial Subscription Term is set forth in the Purchase Form. The Subscription Term will automatically renew for additional, successive twelve-month periods (each a “Renewal Term”) unless either party gives the other written notice of intent not to renew at least thirty (30) days prior to expiration of the initial Subscription Term or subsequent Renewal Term. Client will use the in-app cancellation request form found in Settings to submit a cancellation request.
(a) Client is responsible for backing up Client Content prior termination of this Agreement or cancellation.
(b) No credit or refunds are provided for early cancellation or reduction of usage of the Service.
(c) Unless otherwise stipulated in the Purchase Form, all Subscription Fees are paid up front on an annual basis at the start of the Subscription Term and any subsequent Renewal Terms.
7.2 Changes to your Subscription. You may upgrade Services or add additional Services during the Subscription Term. Added or upgraded Services will be billed immediately at a prorated amount through the end of the Subscription Term. A decrease or downgrade in Services will be removed at the end of a Subscription Term. Changing your Subscription may result in loss of access to Client Content and/or features, and it is Client’s responsibility to understand the limitations of your selected Subscription. Crelate will not be liable for any consequences of changing your Subscription Level.
7.3 Charges. All Fees under this Agreement and any Ordering Document will remain firm during the Subscription Term. On the start of any Renewal Term, an annual innovation price enhancement shall be applied; the annual innovation price enhancement shall be the greater of: (i) 7%; or (ii) the percentage increase in the prevailing US Client Price Index (CPI) over the previous twelve-month period. Any discounts, co-investments, or similar reductions in the original price, are one-time and do not renew. Crelate reserves the right to adjust pricing for any service plan and/or any Service(s) to the then-current list price upon the start of any renewal term.
7.4 Additional Usage Charges. In addition to the Subscription Fee, if Client uses any Services that are subject to additional usage charges and/or if Client’s actual usage exceeds Client’s contracted usage quantity, Client will be charged additional usage fees (calculated based on published pricing and/or applicable unit price set forth in the Purchase Form). Additional usage fees are due upon receipt and require a valid payment method to be on file and in good standing.
7.5 Discount Limitations. For Purchase Forms with any discounted fee, Crelate, in its sole discretion reserves the right to reduce, throttle, limit, or disable capabilities, including, but not limited to, features that either (a) allocate credit or cost-based usage limits (b) incurrent a direct cost to Crelate; or (c) are yet to be developed.

8. CONFIDENTIAL INFORMATION

Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Crelate Technology, performance information relating to any Service, discounts, and pricing, as well as the terms of this Agreement will be deemed Confidential Information of Crelate without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 8 (Confidential Information) and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 8 (Confidential Information). The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
The Receiving Party may make disclosures as required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in reasonable efforts to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to other lawful remedies.

9. SECURITY

Crelate agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access to Client Content or use of the Services, in accordance with Crelate’s published Security Policy, however, Crelate will have no responsibility for errors in transmission, Client actions or errors, unauthorized third-party access, or other causes beyond Crelate’s control.

10. OWNERSHIP

10.1 Crelate Technology. This is a subscription agreement for access to and use of the Services. Client acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement, no ownership rights are being conveyed to Client under this Agreement. Client agrees that Crelate or its suppliers retain all right, title and interest (including all Intellectual Property Rights) in and to the Services and all Documentation, integrations with the Services, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including any Feedback (collectively, “Crelate Technology”). Except as expressly set forth in this Agreement, no rights in any Crelate Technology are granted to Client.
10.2 Feedback. Client, from time to time, may submit Feedback to Crelate. Crelate may freely use or exploit Feedback in connection with the Services and Crelate Code. Client hereby grants to Crelate a perpetual, non-exclusive, transferable, irrevocable, worldwide, royalty-free license (with rights to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose and otherwise commercially exploit the Feedback.

11. LIMITED WARRANTY

11.1 Limited Warranty. Crelate warrants, for the Client’s benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Crelate’s sole liability (and Client’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Client, for Crelate to use commercially reasonable efforts to correct the reported material non-conformity, or if Crelate determines such remedy to be impracticable, either party may terminate the remaining Subscription Term and Client will receive as its sole remedy a refund of any fees Client has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 11.1 will not apply: (i) unless Client makes a claim within thirty (30) days of the date on which Client first noticed the non-conformity, (ii) if the error was caused by accident, misuse, abuse, unauthorized modifications or third-party hardware, software or services, or (iii) if Services are provided to Client to use on a discounted, no-charge, trial, beta or evaluation basis.
11.2 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 11.1, ALL SERVICES ARE PROVIDED “AS IS”. NEITHER CRELATE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, EFFICACY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CRELATE DOES NOT WARRANT THAT CLIENT’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES CRELATE WARRANT THAT IT WILL REVIEW THE CLIENT CONTENT FOR ACCURACY. CRELATE SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT FAILED TO BE SENT USING THE SERVICES. CRELATE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS, THIRD PARTY APPS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CRELATE. CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

12. LIMITATION OF LIABILITY

12.1 Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12.2 EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW) AND TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.3 EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW) AND TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO CRELATE UNDER THE AGREEMENT GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
12.4 Excluded Claims. “Excluded Claims” means any claim arising (a) from Client’s breach of Section 1.4 (General Restrictions); (b) under Section 5.5 (Client Obligations to Crelate) or 5.6 (Indemnification by Client); or (c) from a party’s breach of its obligations in Section 8 (Confidential Information); or (d) either party’s gross negligence, willful misconduct, or fraud.

13. INDEMNIFICATION

Crelate will defend Client from and against any claim by an unaffiliated third party alleging that a Service when used as authorized under this Agreement infringes any Intellectual Property Rights and will indemnify and hold harmless Client from and against any damages and costs finally awarded against Client or agreed in settlement by Crelate (including reasonable attorneys’ fees) resulting from such claim, provided that Crelate will have received from Client: (i) prompt written notice of such claim (but in any event notice in sufficient time for Crelate to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Crelate. If Client’s use of a Service is (or in Crelate’s opinion is likely to be) enjoined, if required by settlement or if Crelate determines such actions are reasonably necessary to avoid material liability, Crelate may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Client the right to continue using such Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Client the fees paid by Client for the portion of the Subscription Term that was paid by Client but not rendered by Crelate. The foregoing indemnification obligation of Crelate will not apply: (1) if such Service is modified by any party other than Crelate, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by Crelate, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized or negligent use of such Service; (4) to any action arising as a result of Client Content or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; (6) to any action arising from Client’s use of Partner Offerings or other third parties; or (7) if Client settles or makes any admissions with respect to a claim without Crelate’s prior written consent. THIS SECTION 13 SETS FORTH CRELATE’s AND ITS SUPPLIERS’ SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

14. PUBLICITY

Crelate may, upon Client’s prior written consent, use Client’s name to identify Client as a Crelate Client of the Services or Professional Services, included on Crelate’s public website. Crelate agrees that any such use shall be subject to Crelate complying with any written guidelines that Client may deliver to Crelate regarding the use of its name and shall not be deemed Client’s endorsement of the Services.

15. TERM AND TERMINATION

15.1 Term. This Agreement is effective as of the Effective Date and expires on the date of the last to expire Subscription Term under any Purchase Form or SOW, unless earlier terminated as set forth herein.
15.2 Termination. Either party may terminate this Agreement upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured subject to the Cure Period, or if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment to benefit creditors.
15.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, Client will immediately cease all use of and access to all Services (including any and all related Crelate Technology), disconnect any integrations with Services, and delete (or, at Crelate’s request, return) any and all copies of the Documentation, any Crelate passwords, API keys, or access codes and any other Crelate Confidential Information in its possession. Client acknowledges that following termination, it will have no further access to any Client Content input into any Service, and that Crelate may delete any such data as may have been stored by Crelate at any time. Except where an exclusive remedy is specified, the exercise by either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
15.4 Survival. Upon termination or expiration, all rights, and duties of the parties toward each other will cease except: 1.4 (General Restrictions), 5.3 (Storage of Client Content), 5.4 (Anonymized Data), 5.5 (Client Obligations), 5.6 (Indemnification by Client), 6 (Ownership), 7 (Fees and Payments), 9.2 (Warranty Disclaimer), 12 (Limitation of Liability), 13 (Indemnification), 14 (Confidential Information), 16 (Termination), and 17 (General Terms), which will survive any termination or expiration of this Agreement.

16. MISCELLANEOUS

16.1 Entire Agreement. This Agreement, along with any Purchase Forms or Statements of Work, is the entire agreement of the parties and supersedes any prior agreements between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the parties hereto. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
16.2 Limitations of Actions. NO ACTION, REGARDLESS OF FORM, ARISING FROM THIS AGREEMENT, MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO (2) YEARS AFTER DELIVERY OF THE PROFESSIONAL SERVICE OR SERVICE THAT WOULD BE THE SUBJECT MATTER OF SUCH ACTION, EXCEPT THAT PROCEEDINGS FOR NON-PAYMENT MAY BE BROUGHT UP TO TWO (2) YEARS AFTER THE DATE THE LAST PAYMENT WAS DUE.
16.3 Amendments and Waivers. Any term or provision of this Agreement may be amended, and the observance of any term, waived only by a writing signed by both parties hereto. No waiver of any default hereunder or any terms or conditions of this Agreement will be deemed to be a waiver of any other or subsequent default of any other term or condition but will apply solely to the instance to which such waiver is directed.
16.4 Governing Law. This Agreement shall be governed by the laws of the State of Idaho without reference to its conflicts of laws principles. Any dispute arising out of this Agreement shall be subject to the exclusive jurisdiction and venue of the courts of Ada County, Idaho.
16.5 Independent Contracts. It is expressly agreed that the parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
16.6 Notices. Any notice required or permitted to be given under this Agreement shall be delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested, to the address of the other party first set forth above, or to such other address as a party may designate by written notice in accordance with this Section 16.7, (iii) by overnight courier, (iv) by fax with confirming letter mailed under the conditions described in (ii); or (v) via email to the legal notice address described in the ordering document. Notice so given shall be deemed effective when received, or if not received by reason of fault of addressee, when delivered. Any notices or correspondence between the parties shall be forwarded to the addresses first set forth at the top of this Agreement, or to such other address as a party may request in a notice given pursuant to the terms of this Section 16.7.
16.7 Force Majeure. Crelate shall not be in breach of the Agreement to the extent any failure to perform or delay performing in accordance with the terms of the Agreement is caused by a Force Majeure Event. A “Force Majeure Event” means fire, flood, earthquake, pandemic, or other acts of God, acts of war, terrorism, riots, civil disorders, rebellions, or any other causes of a similar nature beyond the reasonable control of the affected party.
16.8 Assignment. Neither party may assign any of its rights or obligations under this agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in their entirety (including all Ordering Documents), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
16.9 Severability. The invalidity or unenforceability of any provision of this Agreement, or any terms thereof, will not affect the validity of this Agreement as a whole, which will at all times remain in full force and effect.
16.10 Electronic Signature. This document may be signed electronically, in one or more counterparts, each of which will be deemed an original, and all of which will constitute one instrument.
16.11 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.