C1st Business Software Terms and Conditions
This Business Software Purchasing Agreement (“Agreement”) is made and entered into as of the effective date stated on the first Business Software Order executed between C1st Technologies LCC (“C1st”) and the customer described in such order form (“You” or “Customer”), where that date is the “Effective Date.” YOU ARE RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM OR ACCESSING OR USING ANY SERVICES OF C1ST. BY (AS APPLICABLE) SIGNING AN ORDER FORM OR SIMILAR DOCUMENT OR ACCESSING OR USING SUCH SERVICES, YOU CONFIRM THAT YOU HAVE READ AND ACCEPTED THIS AGREEMENT. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, C1ST’S OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH YOU WITH RESPECT TO THE SERVICES IS EXPRESSLY LIMITED TO THIS AGREEMENT AND CONDITIONED ON YOUR ASSENT HERETO. The terms and conditions of this Agreement shall govern the Services to be provided by C1st under any order form submitted by You and accepted by You, as though the provisions of this Agreement were set forth in their entirety within such order form, and so that each order form and this Agreement shall be considered one, fully integrated document and agreement.
THE INDIVIDUAL SIGNING THE ORDER FORM REPRESENTS THAT HE OR SHE HAS THE POWER AND AUTHORITY TO BIND YOU TO THESE TERMS AND CONDITIONS.
SERVICE OVERVIEW
C1st offers Business Software solutions for sale or license. This Agreement governs Your purchase of or license to use (as applicable) Business Software licenses (“SAAS Services”), in each case, that are identified in an order form submitted by you to C1st. Collectively the SAAS Services are the “C1st Products & Services.” You agree that Your purchases and licenses are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by C1st regarding future functionality or features.
A. IF YOU PUCHASE A LICENSE FOR BUSINESS SOFTWARE, THE FOLLOWING SECTIONS APPLY
1. License Grant & Restrictions.
a. Payment for all Business Software. Subject to the terms of this Agreement, including payment of all applicable fees C1st hereby grants to You a non-sublicensable, non-transferable, non-exclusive, revocable license for You to access and use the specific services and feature sets of the SAAS Services specified in the applicable order form by up to the number of Users identified in that order form (a) at any locations identified in the order form, (b) subject to any limitations in the order form, (c) in accordance with the User Documentation, and (d) solely for Your internal business purposes (collectively, the “Subscription”). C1st and its licensors reserve all rights not expressly granted to You in this Agreement.
b. Restrictions. You shall not (i) license, sublicense, sell, resell, use as a service bureau, or otherwise use the SAAS Services for a third party’s benefit unless such use has been authorized by C1st; (ii) transfer, assign, distribute or otherwise commercially exploit or make the SAAS Services, or Content available to any third party not authorized by C1st; (iii) modify or make derivative works based upon the SAAS Services or the Content; (iv) reverse engineer or decompile the SAAS Services; (vi) interfere with or make use of the SAAS Services in any manner not consistent with the User Documentation, or (vii) access the SAAS Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
c. Transfer of Microsoft 365 Contracts. Notwithstanding any provision to the contrary within this or any other section of this Agreement, You acknowledge and agree that the transfer of Microsoft 365 contracts to another Cloud Solution Provider (CSP) partner during the committed term of any such contract is strictly prohibited. Any attempt to transfer such contracts without the express written consent of C1st Technologies, which may be withheld in its sole discretion, shall be void and may result in the termination of the Agreement and all associated licenses.
2. Your Responsibilities. You are responsible and liable for all activity occurring by Your Users and under Your User accounts. You shall: (i) use best efforts to prevent unauthorized access to, or use of, the SAAS Services, and will notify C1st promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to C1st immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Content that is known or suspected by You or Your Users; and (iii) not impersonate another Procurement user or provide false identity information to gain access to or use the SAAS Services. You will not attempt to or use Your access to the SAAS Services to knowingly interfere with or disrupt the integrity or performance of the SAAS Services or the data contained therein.
a. You shall not, directly or indirectly, send, submit, post, receive, or otherwise facilitate, or in any way use, or permit to be used, the C1st Products & Services to send, submit, post, receive or otherwise facilitate the transmission of any materials that are abusive, obscene, profane, sexually explicit, threatening, or materials containing blatant expressions of bigotry, racism, or hate.
3. Support & SLA. If You have paid C1st all applicable fees then due, C1st will provide you the level of Support Services you have purchased only to Your designated contact during Business Hours in the English language. To receive Support Services, You must email support@c1stservices.com. All Support Services are provided pursuant to any applicable terms of service as provided to You by C1st from time to time.
4. Term. The Subscription commences on the Effective Date and will continue for the period stated in the applicable order form, and if the order form does not state an initial term, then the initial term shall be one (1) year (“Initial Term”) in either case, from the Effective Date, unless terminated earlier pursuant to the procedures set forth in this Agreement. Upon the expiration of the Initial Term, and unless set forth to the contrary in the applicable order form, the term of this Subscription will automatically extend for successive terms of one (1) year at C1st’s then-current rates and fees, provided that either party may terminate this Agreement, effective upon the expiration of the Initial Term or the then-current extension period, by notifying the other party in writing at least sixty (60) calendar days prior to the expiration of the Initial Term or then-current extension term, as applicable
5. Suspension; Termination for Cause. If You are in breach of this Agreement, C1st may suspend Your access to and use of the SAAS Services until You have cured the breach. Additionally, either party may terminate this Agreement or the SAAS Services upon written notice if the other party materially breaches the Agreement and, if curable, does not cure such breach within thirty (30) days after written notice of such breach. Upon the termination of this Agreement for any reason: (a) any amounts owed to C1st by You under this Agreement before such termination will become immediately due and payable, and (b) C1st will terminate Your access to or use of the SAAS Services. The rights and duties of the parties under the following paragraphs of this Section B will survive the termination or expiration of this Agreement for any reason: 2, 5, 6, and 7. If the SAAS Services are terminated by You in accordance with this paragraph due to C1st’s uncured breach, C1st will refund You any prepaid fees for the Procurement covering the remainder of the term of all Order Forms after the effective date of termination. In no event will termination relieve You of Your obligation to pay any fees payable to C1st for the period prior to the effective date of termination.
6. Disclaimer of Warranties. C1ST AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SAAS SERVICES OR ANY CONTENT, AND THE SAAS SERVICES AND ALL CONTENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS, AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY C1ST AND ITS LICENSORS.
7. Mutual Indemnification
a. Your Indemnity. You shall indemnify and hold C1st, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of, or in connection with a claim arising from or related to Your use of the Procurement.
b. C1st’s Indemnity. If any action is instituted by a third party against You based upon a claim that the SAAS Services, as provided, infringes a United States patent, copyright or trademark, then C1st will defend such action at its own expense on behalf of You and will pay all damages attributable to such claim which are finally awarded against You or paid in settlement of such claim. C1st may, at its option and expense, and in addition to defending You as set forth in the previous sentence, as Your exclusive remedy hereunder: (a) procure for You the right to continue using the SAAS Services; (b) replace or modify the SAAS Services so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Your access to the SAAS Services and refund any amounts previously paid for the SAAS Services attributable to the remainder of the then-current term of this Agreement. C1st will have no liability to You for any infringement action that arises out of a breach of the terms and conditions of this Agreement by You or of the use of the SAAS Services (i) after it has been modified by You or a third party without C1st’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by C1st where the combination is the basis for the infringing activity. THIS PARAGRAPH SETS FORTH THE ENTIRE OBLIGATION OF C1st AND YOUR EXCLUSIVE REMEDY AGAINST C1st OR ANY OF ITS SUPPLIERS FOR ANY INFRINGEMENT CLAIM.
c. Procedure. A party seeking indemnification under this Section B(7) will (i) give written notice of the claim promptly to the other party; (ii) give the other party sole control of the defense and settlement of the claim; and (iii) provide to the other party all available information and assistance.
B. THE FOLLOWING SECTIONS ALSO APPLY
1. Users. You are responsible and liable for each of Your Users’ compliance with this Agreement. You shall not allow User credentials to be shared.
2. Ownership. C1st and its licensors own all rights, title and interest, including all related Intellectual Property Rights, in and to the C1st Products and Services and C1st Reserved Technology, including all enhancements, modifications or derivative works to the foregoing, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the C1st Products & Services. The C1st name, the C1st logo, and the product names associated with the C1st Products & Services are trademarks of C1st or third parties. All rights not expressly granted are hereby retained.
3. Orders, Fees, Billing, Renewal
a. Orders. You shall order the C1st Products & Services by completing and signing an order form. Each accepted, fully executed order form shall be deemed to become incorporated herein by reference as if attached and made an integral part of this Agreement. Any terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that You may provide to C1st or use in connection with the procurement of C1st Products & Services from C1st will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of C1st to object to such terms, provisions or conditions.
b. Fees. Fees for the C1st Products & Services are described in the applicable order form. The applicable order form will determine the fees for the first one (1) year of the parties’ contract, beginning on the execution date of the applicable order form. The fees in the applicable order form will automatically increase by three (3) percent for each subsequent year for which the applicable order form is in effect. C1st can modify the prices for any C1st Products & Services by providing You at least thirty (30) days’ prior notice. All fees due are payable in U.S. Dollars. C1st’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on C1st’s income. If C1st has the legal obligation to pay or collect taxes for which You are responsible, the appropriate amount shall be invoiced to and paid by You unless You provide C1st with a valid tax exemption certificate authorized by the appropriate taxing authority.
c. Billing; Payment. If you choose to pay by credit card, C1st will automatically charge Your credit card or other payment method accepted by C1st in advance for each month you use the Procurement or Software Services. You hereby authorize C1st to charge such credit card or other payment method accepted by C1st for all C1st Products and Services for the initial term and any renewal subscription term(s). Such fees shall be paid monthly in advance. You are responsible for providing complete and accurate billing and contact information and notifying C1st of any changes to such information. If you do not pay by credit card, C1st will invoice You, and You shall pay all invoiced amounts within thirty (30) days of Your receipt of the invoice. All payment obligations are non-cancelable and all amounts paid are nonrefundable, except as expressly set forth in the Agreement to the contrary. Customer hereby acknowledges and agrees that Customer will be fully liable and solely responsible for any and all third-party licensing fees incurred by C1st in connection with the provision of licenses to Customer under this Agreement.
D. Renewal. The Subscription commences on the Effective Date and will continue for the period stated in the applicable order form, and if the order form does not state an initial term, then the initial term shall be one (1) year (“Initial Term”) in either case, from the Effective Date, unless terminated earlier pursuant to the procedures set forth in this Agreement. Upon the expiration of the Initial Term, and unless set forth to the contrary in the applicable order form, the term of this Subscription will automatically extend for successive terms equal to the previous term You signed at C1st’s then-current rates and fees, provided that either party may terminate this Agreement, effective upon the expiration of the Initial Term or the then-current extension period, by notifying the other party in writing at least sixty (60) calendar days prior to the expiration of the Initial Term or then-current extension term, as applicable.
F. Payment Due Date. The Program Guide specifies the reporting and payment requirements for the Products. Payment terms will be as provided by C1ST’s credit department. C1st requires all Customers to complete their monthly payment on time. Therefore, C1st requires payment to be completed via ACH or Credit Card with applicable fees. In the situation where customer is approved to pay with Net 30, they are required to pay by payment due date. If Net 30 terms are not paid on time, C1st can cancel Net 30 payment terms and Customer will be required to pay by ACH or Credit Card by due date moving forward.
If Customer fails to make any payments by the due date, C1ST may take any of the following actions:
i. C1ST will hold all pending orders, suspend further shipments or Customer access to Products under any agreement between C1ST and Customer until C1ST receives all payments due under this Agreement;
ii. C1ST will charge a past due amount equal to 10% of the past due bill in order to reinstate the Business Software subscription.
iii. C1ST will temporarily disable a Customer’s Subscription for non-payment, or as otherwise permitted under the Agreement or the Customer Agreement. C1ST will notify Customer of such a disablement as soon as commercially reasonable.
Billing for Monthly and Annual Business Software:
1. New Subscription Contracts
a. Subscriptions will begin on the date of provision and charges are incurred from the provision date. Customer will receive the first invoice on the first business day of the following month. Customer will be pre-billed for the upcoming month. Invoices may be delayed due to federal holidays, account issues, or system issues.
2. License Additions & Subtractions
a. Customer may add new licenses and the additions will be included on the invoice sent the following month for one month’s upfront charge. When Customer increases their software licenses count, C1st reserves the right to bill for the increased licensing starting the day the additional licensing is added, only up to the amount that the Customer is consuming, without requiring additional approval from the Customer. If the Customer desires to have a hard cap on the amount of licenses they would like to have billed, it is the responsibility of the Customer to provide C1st with such notice. If no such notice is provided, C1st will bill Customer according to growth of license consumption. If a cap is provided, and not all Customer users are protected as a result, C1st is not liable for any gap in licensing or protection of the Customer’s employees or devices that may result due to a potential licensing shortage,
b. Customer may choose to decrease the number of licenses and any decrease will be reflected on the following month’s invoice, if the contract supports the ability to reduce licenses. No refunds will be issued for time remaining on removed licenses.
3. Upgrades & downgrades
a. Customer may upgrade for paid monthly services and the upgrade will be reflected on the next month’s invoice
b. Customer may downgrade paid monthly services and charges will be based on the services that are active on the 1st billing date of the following month.
c. No credits will be given for licenses previously purchased
4. Cancellations
a. Customer can cancel any monthly/flex services at any time. C1ST will not issue partial credits for any licenses cancelled or modified.
b. To prevent billing on the 1st business day of the following month, Customer must cancel the licenses prior to the 17th of the current month. Customer’s failure to cancel by this time will incur one (1) month’s additional charges.
5. Customer hereby acknowledges and agrees that Customer will pay a twenty percent (20%) surcharge for monthly license subscriptions under this Agreement, as specifically provided for in the applicable order form.
Billing for Annual Monthly Business Software Services:
1. New Subscription Contracts
a. Subscriptions will begin on the date of provision and charges are incurred from the provision date. Customer will receive the first invoice on the first business day of the following month. Customer will be pre-billed for the upcoming month. Invoices may be delayed due to federal holidays, account issues, or system issues.
2. License Additions & Subtractions
a. Customer may add new licenses and the additions will be included on the invoice sent the following month for one month’s upfront charge.
b. No license reductions are allowed until the renewal date.
3. Upgrades & downgrades
a. Upgrades are allowed for yearly services until the renewal date.
b. No downgrades are allowed for yearly services until the renewal date.
4. Cancellations
a. No cancellations will be allowed. Customer is responsible for payment of the entire contract upon signing agreement.
Billing for Annual Business Software Services:
1. C1ST will invoice Customer up front for one full year of service based on the activation date of the service(s). Customer will be billed for 1-year services within 24 hours of order being placed
2. License additions & subtractions
a. Customer may add Licenses during the year and C1ST will invoice Customer on a pro-rated scale to the day plus additional months remaining
b. New license additions will share the same expiration date as originally purchased licenses. Additional licenses will have a prorated cost to coincide with the original expiration date.
c. No license reductions are allowed until the renewal date.
3. Upgrades & downgrades
a. Upgrades are allowed for yearly services until the renewal date.
b. No downgrades are allowed for yearly services until the renewal date.
4. Customer may not choose yearly and monthly services for the same line item, thus one billing scheme per line item.
5. Cancellations
a. No cancellations will be allowed. Customer is responsible for payment of the entire contract upon signing agreement.
Billing for Multi-Year Annual Monthly Business Software Services (36 Month Term):
1. New Subscription Contracts
a. Subscriptions will begin on the date of provision and charges are incurred from the provision date. Customer will receive the first invoice on the first business day of the following month. Customer will be pre-billed for the upcoming month. Invoices may be delayed due to federal holidays, account issues, or system issues.
2. License Additions & Subtractions
a. Customer may add new licenses and the additions will be included on the invoice sent the following month for one month’s upfront charge.
b. No license reductions are allowed until the renewal date.
3. Upgrades & downgrades
a. Upgrades are allowed for yearly services until the renewal date.
b. No downgrades are allowed for yearly services until the renewal date.
4. Cancellations
a. No cancellations will be allowed. Customer is responsible for payment of the entire contract upon signing agreement.
d. Non-Payment. In addition to any other rights granted to C1st herein, C1st reserves the right to suspend Your access to and use Business Software if You fail to pay any undisputed amount 30 days past invoice due date. In addition, if non-payment exceeds 30 days from invoice due date, invoice will be sent to collections and Your access to Business Software will be terminated.
4. Term; Termination; Suspension; Termination for Cause. This Agreement shall be in force and effect as long as there is an order form or statement of work in force or effect, unless C1st desires an earlier termination as allowed herein. If You are in breach of this Agreement, an order form, or any statement of work, C1st may suspend its performance (including Your access and use of C1st Products & Services) until You have cured the breach. Additionally, C1st may terminate this Agreement or any individual order form upon written notice if You materially breach the Agreement or an individual order form and, if curable, does not cure such breach within thirty (30) days after written notice of such breach. Upon the termination of this Agreement for any reason: (a) any amounts owed to C1st by You under this Agreement before such termination will become immediately due and payable, and (b) C1st will terminate Your access to or use of the Procurement or Software Services. The termination or expiration of any individual order form will not affect any other order form or statement of work then in effect. Upon termination of this Agreement, each order form or statement of work that is then in effect will continue in accordance with its terms and subject to the Agreement. The rights and duties of the parties under the following paragraphs of this Section D will survive the termination or expiration of this Agreement for any reason: 2, 4-10, 14, and 15. Additionally, all of Your payment obligations under this Agreement shall survive termination or expiration for any reason.
4.1 Renewal Termination. In the event that You decide not to renew Your Software renewal contract, You must notify C1st sixty (60) days ahead of Your renewal date of your intent to either not renew or cancel your Software renewal contract. Upon such notification, C1st will issue an invoice for the remainder of your contract balance, due immediately. If payment is not made by final invoice due date, or no such notice is given, then contract will immediately auto-renew for another annual term.
5. Indemnification. You shall release, defend, indemnify and hold harmless C1st (including its officers, directors, employees, affiliates, independent contractors, distributors, agents and successors) against any expense, loss, cost or liability (including, without limitation, interest, penalties, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (a) use or receipt of the C1st Products & Services by Customer and its agents, employees, and independent contractors; (b) Your negligence or Your actions (or any failure to act) hereunder; (c) any breach by You of Your obligations hereunder; (d) Your or Your business operation’s violation or alleged violation of applicable law, rule, or regulation; or (e) C1st’s provision of C1st Products & Services to You other than to the extent the liability arises from C1st’s gross negligence, intentional misconduct, or material breach of the Agreement.
6. Warranty. Representations & Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that: (a) You shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your business operations and the use of the Procurement, including those related to data privacy such as the Health Insurance Portability and Accountability Act of 1996 (as amended), and (b) You own or have obtained all rights, consents, permissions, or licenses necessary to allow the Procurement access to, or possession, manipulation, processing, or use of Your Data.
7. Disclaimer
a. EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN THIS AGREEMENT, ALL C1ST PRODUCTS & SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. C1ST PROVIDES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH RESPECT TO DOCUMENTATION, C1ST PRODUCTS & SERVICES, OR OTHER INFORMATION OR DATA PROVIDED UNDER THIS AGREEMENT. C1ST PROVIDES NO WARRANTIES, EXPRESS OR IMPLIED, THAT THE DOCUMENTATION, C1ST PRODUCTS & SERVICES, OR OTHER INFORMATION OR DATA PROVIDED IS ACCURATE, CURRENT, CORRECT, COMPLETE, OR APPROPRIATE FOR YOUR INTENDED USE. C1ST DOES NOT WARRANT ANY RESULTS FROM THE USE OF ANY C1ST PRODUCTS & SERVICES. IT IS EXPRESSLY UNDERSTOOD BY THE PARTIES THAT IT IS YOUR RESPONSIBILITY TO VERIFY INFORMATION OR DATA OBTAINED UNDER THIS AGREEMENT.
b. YOU UNDERSTAND THAT C1ST, INCLUDING ITS AFFILIATES, IS AN INFORMATION PROVIDER AND DOES NOT PROVIDE LEGAL, FINANCIAL OR OTHER PROFESSIONAL ADVICE. THE DOCUMENTATION WAS NOT NECESSARILY PREPARED OR COMPILED BY PERSONS LICENSED TO PRACTICE LAW IN A PARTICULAR JURISDICTION. THE DOCUMENTATION AND OTHER INFORMATION, MATERIALS AND OPINIONS (IF ANY) CONTAINED IN THE DOCUMENTATION OR PROFESSIONAL SERVICES ARE FOR GENERAL INFORMATION PURPOSES ONLY, ARE NOT INTENDED TO CONSTITUTE LEGAL OR OTHER PROFESSIONAL ADVICE, AND SHOULD NOT BE RELIED ON OR TREATED AS A SUBSTITUTE FOR SPECIFIC ADVICE RELEVANT TO PARTICULAR CIRCUMSTANCES. NEITHER C1ST NOR ITS AFFILIATES NOR ANY OF ITS THIRD PARTY SUPPLIERS SHALL BE LIABLE FOR ANY LOSS THAT MAY ARISE FROM ANY RELIANCE BY SUBSCRIBER, OR ANY THIRD PARTIES, ON THE DOCUMENTATION OR OTHER INFORMATION OR MATERIALS OBTAINED BY YOU THROUGH C1ST PRODUCTS & SERVICES.
c. YOU ALSO ACKNOWLEDGE THAT EVERY BUSINESS DECISION INVOLVES THE ASSUMPTION OF RISK AND THAT C1ST, IN FURNISHING THE DOCUMENTATION AND OTHER INFORMATION TO YOU, DOES OR WILL UNDERWRITE THAT RISK, IN ANY MANNER WHATSOEVER. YOU THEREFORE AGREE THAT C1ST WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY CAUSED IN WHOLE OR IN PART BY C1ST’S NEGLIGENCE IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR DELIVERING THE DOCUMENTATION OR OTHER INFORMATION.
8. Limitation of Liability
a. TO THE EXTENT PERMITTED BY APPLICABLE LAW, C1ST’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING THE C1ST PRODUCTS & SERVICES, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 1 MONTH PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
b. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL C1ST BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE C1ST PRODUCTS & SERVICES, OR THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. TO THE EXTENT PERMITTED BY APPLICALBE LAW, C1ST SHALL NOT BE LIABLE FOR ANY DEMAND, CLAIM, LOSS, LIABILITY, DAMAGE, COST OR EXPENSE REGARDLESS OF FORM OF ACTION, FOR ANY DAMAGES RESULTING FROM THE USE OF ANY DOCUMENTATION, INFORMATION, C1ST PRODUCTS & SERVICES, OR DATA PROVIDED UNDER THIS AGREEMENT.
9. Confidentiality.
a. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business, products, or services of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, including information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”).
b. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than exercising its rights or exercising its obligations under 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 the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty under this Section D(9)(b). 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.
c. The Receiving Party’s obligations under Section D(9)(b) with respect to any Confidential Information of the Disclosing Party will not apply if such information: (i) was already known to the Receiving Party without restriction at the time of disclosure by the Disclosing Party; (ii) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv) 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 (a) approved in writing by the Disclosing Party, (b) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (c) required by law or by the order of a court of similar judicial or administrative body, 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. Disclosure pursuant to Section (D)(9)(c) shall not render Confidential Information as non-confidential.
d. The Receiving Party will return to the Disclosing Party or use reasonable efforts to 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 upon the expiration or termination of the Agreement. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section D(9)(d).
10. Your Data. C1st does not own Your Data. You retain all right, title and interest in and to Your Data. You grant to C1st all necessary licenses and rights in and to Your Data solely as necessary for C1st to provide C1st Products & Services to You or as required by law. C1st will not knowingly use or access any of Your Data except as necessary to provide the C1st Products & Services or as otherwise allowed in the Agreement. You are solely responsible for Your Data including without limitation the accuracy, quality, integrity, legality, reliability, appropriateness of the foregoing, and obtaining any Intellectual Property Rights ownership or right to use the foregoing. You will not provide, post or transmit any of Your Data that: (a) infringe or violate any Intellectual Property Rights, publicity/privacy rights, law or regulation; or (b) contain any Malicious Code, or other elements that may damage, surreptitiously intercept or expropriate any system, data or personal information. C1st may take remedial action, including immediate suspension of Your access to the C1st Products & Services, if Your Data violates this Section D(10).
11. Aggregated Data. C1st reserves the right to de-identify or aggregate (or both) any data, information or content obtained by C1st from You or arising from Your use or receipt of C1st Products & Services, including, without limitation, Your Data (“De-identified Data”). C1st may use De-identified Data for any lawful purpose. You hereby by expressly, perpetually, and irrevocably authorize C1st to collect, create, and use De-identified Data for any lawful purpose.
12. Legal Requests. C1st may access and share any information you provide us or that we collect about you under this Agreement, including without limitation, Your Data, if we have a good faith belief we are required to do so under applicable law. For instance, we may share Your information in response to a search warrant, court order or subpoena. Also, C1st may also access and share information when we have a good faith belief it is necessary to detect, prevent and address illegal activity, to protect C1st from legal or civil liability; or to prevent death or imminent bodily harm. To the extent C1st has a good faith belief it is required to testify in any proceeding or deposition or is required to respond to requests for information or documents about You or Your data in any legal or administrative proceeding or otherwise, whether at Your request or that of a third-party, you agree to indemnify and hold harmless C1st for all costs, expenses, expert fees, liabilities and attorneys’ fees incurred in connection with such work. These costs may include, but are not limited to: (a) the costs and attorneys’ fees incurred in objecting or responding to a request for documents, information, or testimony; (b) the costs and attorneys’ fees associated with gathering, reviewing, and producing documents, testifying or preparing to testify in a deposition or other proceeding, or preparing any privilege log relative to a response for documents or information by C1st; and (c) reasonable compensation to C1st for the time spent by C1st’s employees or independent contractors in regard to any such request.
13. Assignment; Change in Control. This Agreement may not be assigned by You without the prior written approval of C1st. Any purported assignment in violation of this section shall be void.
14. Publicity. You grant C1st a limited and revocable license and right to use Your name and logo on customer lists and related advertising materials in any commercially reasonable manner.
15. Compliance with Law. You shall comply with all applicable laws and regulations in connection with Your use of the C1st Products & Services, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data and export control laws and regulations.
16. Force Majeure. C1st shall not be liable for any failure by C1st to perform its obligations under this Agreement because of circumstances beyond the reasonable control of C1st, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government, governmental authority or third party, declarations of governments, transportation delays, power failure, computer failure, telecommunications failure, third party technology, Your failure to cooperate with the reasonable requests of C1st and any other events reasonably beyond the control of C1st.
17. General. This Agreement shall be governed by the laws of the State of Colorado without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Procurement shall be subject to the exclusive jurisdiction of the state and federal courts located in Denver, Colorado USA. No text or information set forth on any other purchase order, preprinted form or document (other than an associated C1st quote or invoice, if applicable) shall modify the terms and conditions of this Agreement. In the event of a conflict between the terms in the main body of this Agreement and the terms in any C1st quote or invoice, the quote or invoice will prevail and control. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between You and C1st. The failure of C1st to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by C1st in writing. This Agreement, together with any associated C1st quote, order form, statement of work, or invoice, comprises the entire agreement between You and C1st and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein, including any previously executed electronic version of a C1st subscription agreement, commonly known as a clickthrough or EULA (“Clickthrough”). In the event of a conflict between the terms of an order form or statement of work and this Agreement, the terms of the order form or statement of work shall govern. All notices, required or permitted under this Agreement must be delivered in writing by courier, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement. Notice hereunder will be effective (a) upon receipt or 3 days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner, or (b) if delivered by email, upon receipt of email if delivered by email with a fax confirmation sent on the same day. Any notice to C1st will be delivered to Lewis Brisbois Bisgaard & Smith, ATTN: Jon Olafson, 1700 Lincoln St. #4000, Denver, Colorado 80203. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure.
As used in this Agreement the following terms have these meanings:
“Affiliate” means any entity (now existing or hereafter formed or acquired), which, directly or through one or more intermediaries, controls, is controlled by, or is under common control with, another entity. Ownership of fifty percent (50%) or more of the voting stock, membership interests, partnership interests, or other equity of an entity shall be deemed to be in control over such entity.
“Business Hours” shall mean the hours between 7 a.m. and 6 p.m., Mountain Time, Monday through Friday in North America.
“Content” means the visual information, documents, software, products and services contained or made available to You in the course of using the Procurement, other than Your Data.
“Force Majeure” means events or circumstances beyond a party’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving C1st’s employees), telecommunications or network failures or delays, service or computer failures involving services, hardware, or software not within C1st’s possession or reasonable control, and acts of vandalism (including network intrusions and denial of service attacks).
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Support Incident” means (i) a basic question related to the use or configuration of the Procurement where the use or configuration is consistent with guidance in the User Documentation, (ii) a reproducible non-conformity in the Procurement causing the Procurement not to operate in substantial conformance with the applicable User Documentation.
“Support Services” means technical assistance provided by C1st personnel to address Support Incidents.
“User(s)” means Your named employees, representatives, consultants, contractors, partners, or agents who are authorized to use the Procurement by You.
“User Documentation” means C1st’s published documentation, knowledge base articles and other content that are generally made available by C1st to all customers.
“Your Data” means any information provided, made available, or submitted by You to C1st, the SAAS Services, or any component of the Procurement.