Service Subscription Agreement
Definition of Terms:
Agreement or SSA – This Service Subscription Agreement
Celigo – Celigo, Inc. the legal entity providing the Services
Credentials – A user’s authentication information—typically a password, a token, or a certificate.
Customer – The legal entity identified on a Quote
Party— may refer to Celigo and/or Customer, as the context indicates, and “Parties” means both Celigo and Customer
Professional Services – services (such as implementation, configuration, and/or training) performed by Celigo for Customer in accordance with a Quote
Quote – A written and mutually executed document, governed by the terms and conditions of this Agreement, describing the Service and Customer’s entitlement to those Service and/or the Professional Services to be performed by Celigo in order to support and enable Subscription Service for Customer.
Subscription Service – iPaaS based software tools enabling the Services identified on the Quote
Services – The Subscription Service and/or the Professional Services
Trial – Any trial, evaluation, or other unpaid term of use of the Subscription Service
This Agreement is a binding, contractual agreement between the Customer and Celigo and it governs Customer’s and its agents’ use of the Services identified on a Quote. This Agreement also governs all use of the Subscription Service by any Customer during any Trial.
Customer’s use of the Services is subject to Customer’s acceptance of the terms and conditions of this Agreement. By entering into this Agreement and/or installing or using any Subscription Service, Customer agrees to be bound by the terms and conditions set forth herein.
- Terms of Service.
Celigo hereby grants Customer a non-exclusive, non transferable, worldwide right and license to use the Subscription Service solely for Customer’s internal business purposes, subject to the terms of this Agreement and the Quote. Celigo will provide the following to Customer with respect to the Subscription Service:
- Customer Support. As part of the Subscription Service, Celigo grants Customer with the Essential Customer Success Plan and Celigo will provide Customer with support pursuant to the Essential Customer Success Plan as set forth in Celigo’s Support Policies which are available online at:www.celigo.com/support-policies. If Customer chooses to purchase a supplemental Customer Success Plan, Celigo will provide Customer with support pursuant to the Customer Success Plan purchased, as set forth in Celigo’s Support Policies. Celigo will use commercially reasonable efforts to respond to and resolve all customer support issues that are attributable to the Subscription Service. Additional information on Celigo’s support obligations, including target response times, is set forth in Celigo’s Support Policies. Notwithstanding the foregoing, during any Trial, Celigo shall only be obligated to provide such support as Celigo deems appropriate, in its sole business discretion.
- Professional Services. Celigo may agree to perform work for Customer pursuant to a Quote, which specifies the scope and schedule of Professional Services to be performed by Celigo for Customer, and the applicable fees. Unless otherwise expressly stated in the applicable Quote, Professional Services shall be provided on a time and materials (“T&M”) basis at Celigo’s T&M rates specified on the Quote, Time will be billed in 15-minute increments, and all Professional Services will be deemed accepted upon delivery. Any changes to the scope of work under a Quote shall be made by written change order or amendment to the Quote signed by an authorized representative of each party prior to implementation of such changes.
- Customer’s Obligations.
- Proper Use. Customer shall use the Subscription Service in accordance with generally available user documentation and any other instructions or guidance provided by Celigo. Customer shall not, and shall ensure that its users shall not, use, submit, or enter any data, information or other materials in the course of using the Subscription Service that (i) violate any applicable laws, rules or regulations, (ii) infringe upon or misappropriate any intellectual property or proprietary rights of others, or (iii) violates the privacy rights of others.
- Restrictions. Customer shall not and shall not allow any third party to: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, or interoperability interfaces of the Subscription Service by any means whatsoever; (ii) remove any product identification, copyright or other notices; (iii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use the Subscription Service to or for the benefit of third parties; (iv) reproduce the Subscription Service or any component thereof; (v) modify, adapt, alter, translate or incorporate into or with other software or create a derivative work of any part of the Subscription Service nor any service or product that is similar to or a substitute in whole or in part for the Subscription Service; (vi) disclose information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Subscription Service; or (vii) resell, sublicense, distribute, or transfer the Subscription Service or any component thereof to any third party (including, without limitation, sharing Customer’s username(s) and password(s) for the Subscription Service with any third party).
- Professional Services; Cooperation. Each Party agrees to cooperate reasonably and in good faith with the other in the performance of the Professional Services and acknowledges that delays may otherwise result. Customer agrees to provide, or provide access to, the following: complete and accurate information and data from its employees and agents, coordination of onsite, online and telephonic meetings, Credentials with sufficient permissions for Celigo’s personnel to install and/or configure the Subscription Service where necessary for all applications being integrated, and other resources as reasonably necessary for satisfactory and timely performance of the Professional Services.
Customer shall provide the Credentials via a secure Enterprise Password Management System. Celigo will keep Customer’s Credentials strictly confidential and will only disclose Customer’s Credentials to Celigo personnel who require the Credentials for the performance of their business duties.
Except where the relevant Quote provides otherwise, scheduling of Celigo’s resources must be agreed to no later than ten (10) business days prior to the date work is scheduled to begin. If Customer subsequently requests scheduling changes or causes delays under a Quote to which Celigo has dedicated resources and begun work, then (i) in the case of a T&M or block of hours Quote, hours may be incurred to restart work, which may involve effort for information transfer, project re-planning, and other reasonable restart activities; or (ii) in the case of a fixed fee Quote, additional fees may apply and will be billed to Customer (a “Re-engagement Fee”, as further described below), and must be paid in full by Customer before Celigo will resume work.
The Re-engagement Fee shall be calculated to be 15% of the total estimated project price. Delays caused by Customer that exceed ten (10) business days shall entitle Celigo to terminate the relevant Quote for cause immediately upon written notice.
The Subscription Service and its software components, and anything developed by Celigo for Customer under this Agreement and/or made available to Customer in the course of delivering the Professional Services (collectively, “Contract Property”), is licensed (not sold). Celigo and its suppliers retain all copyright, trade secret, trademark, patent and other proprietary rights in the Subscription Service and the Contract Property, including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. This license confers no title to, or ownership in, the Subscription Service or any of its components or any Contract Property, and Celigo reserves all rights not expressly granted to Customer.
- Fees; Payment.
- Fees. Subject to the terms and conditions of this Agreement, Customer will pay Celigo the Subscription Service setup fees, migration fees and/or monthly Subscription Service access fees (collectively, the “Fees”) as set forth on a Quote.
- Payment Terms. The Fees shall be due at the beginning of each period for which the Customer desires to continue use of the Subscription Service. Payment terms are Net 15 days unless otherwise specified. Celigo shall have the right to suspend and/or terminate Customer’s access to the Subscription Service if Customer is delinquent on its payment obligations.
- Fees For Professional Services. Celigo shall invoice Customer for Professional Services as stated in the applicable Quote. Unless otherwise expressly stated in the applicable Quote, (i) charges shall be due and payable fifteen (15) days from the date of the invoice; and (ii) Customer shall reimburse Celigo for reasonable pre-approved travel-related expenses incurred in conjunction with the Professional Services.
- Taxes. Customer shall be responsible for all taxes and regulatory fees of any kind imposed by any federal, national, state, provincial, local, municipal or foreign government on any Services provided under this Agreement, other than taxes based solely upon Celigo’s income.
- Payments Upon Termination. Upon expiration or termination of this Agreement for any reason, Customer shall pay all earned and unpaid Fees and other amounts due Celigo hereunder, which shall be due and payable within fourteen (14) days following the date of expiration or termination of this Agreement.
- Term and Termination.
- Initial Term; Renewal. The initial term of this Agreement shall commence on the date that Customer signs a Quote. Thereafter, this Agreement and each Quote governed by this Agreement shall be automatically renewed from year to year provided that Celigo provides Customer with notice, at least sixty (60) days prior to the end of the then current term, of the upcoming renewal. Either Party may submit written notice of its intention not to renew to the other Party at least 30 days prior to the end of the-then current term.
- Termination For Cause. Either Party may terminate this Agreement if the other Party is in material breach of this Agreement and has not cured such breach within thirty (30) days of written notice specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, so long as the breaching Party has commenced cure during the thirty (30) day period and is pursuing such cure diligently and in good faith.
- Term and Termination of Trials. Notwithstanding the foregoing, the term of this Agreement with respect to any Trial shall be for the duration specified by Celigo at the commencement of the Trial (and if no such duration is specified, it shall be deemed to be ninety (90) days). This Agreement may be terminated by Celigo at any time during a Trial, at Celigo’s sole discretion, upon notice to Customer.
- Obligations on Termination. Upon termination of this Agreement, Customer shall, and shall ensure that its users shall, immediately, (i) cease all use of the Subscription Service, (ii) deliver to Celigo or destroy all copies of any Subscription Service related materials, and (iii) certify in writing to Celigo that such delivery or destruction has been accomplished. Upon termination of this Agreement by either Party, Celigo reserves the right to immediately terminate access to the Subscription Service and Customer acknowledges that it may be denied access to the Subscription Service.
- Survival. Termination of this Agreement shall not relieve either Party of its respective obligations to the other hereunder, including all payment obligations, which arose prior to the effective date of termination. Notwithstanding anything herein to the contrary, Sections 2(c), 3, 4, 5, 6, 7, 9 and 12 shall survive termination of this Agreement.
- Services Warranty.
Celigo warrants that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. For any breach of this warranty, Customer’s exclusive remedy, and Celigo’s entire liability, shall be the re-performance of the Professional Services. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICE AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. CUSTOMER AGREES THAT ALL RISK PERTAINING TO THE USE OF THE SERVICES IS ASSUMED BY CUSTOMER. CELIGO AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CELIGO DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SUBSCRIPTION SERVICE WILL BE SECURE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CELIGO OR SUPPLIER OR THEIR EMPLOYEES OR AGENTS WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. CELIGO AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES DURING THE TERM OF ANY TRIAL.
- Definition. “Confidential Information” means information about the Customer’s or Celigo’s business, products, services or activities that is proprietary and confidential, which shall include, without limitation, all business, financial, technical, marketing and other information marked or designated by the Customer or Celigo as “confidential” or “proprietary;” together with all information which, by the nature of the circumstances surrounding the disclosure, ought in good faith be treated as confidential. Confidential Information shall include, without limitation, the Services and the software component(s) of the Subscription Service, as well as the specific terms, pricing, and fees set forth in this Agreement and the Quote.
- Mutual Obligations. Each party (“Receiving Party“) agrees that it will hold in strict confidence and not disclose the Confidential Information disclosed to Receiving Party by the other party (“Disclosing Party“) to any third party, and that Receiving Party will use the Confidential Information for no purpose other than as reasonably contemplated by this Agreement. Receiving Party shall only permit access to the Confidential Information to those of its employees, contractors or agents having a need to know and who have signed confidentiality agreements containing terms at least as restrictive as those contained in this Section 7 (Confidentiality). Receiving Party shall maintain the confidentiality and prevent accidental or other loss or disclosure of any Confidential Information with at least the same degree of care as used to protect its own confidential information (but in no event with less than reasonable care).
- For the avoidance of doubt, the Receiving Party may generally disclose the existence (but not the specific terms) of the Agreement and Customer agrees that Celigo may refer to Customer in its public and marketing communications as a customer, and use Customer’s corporate name and/or logo in customer lists, including presentations and on Celigo’s website.
- Exceptions. the Receiving Party’s obligation of confidentiality under this Agreement shall not apply to information which the Receiving Party can document (i) is in the public domain without the breach of any agreement or fiduciary duty or the violation of any law; (ii) was known to the Receiving Party prior to the time of disclosure (as evidenced by the Receiving Party’s records) without the breach of any agreement or fiduciary duty or the violation of any law; or (iii) is independently developed by the Receiving Party (as evidenced by the Receiving Party’s records) prior to receiving such Confidential Information or without use or reference to any Confidential Information. In addition, it will not be a breach of this Section 7 for the Receiving Party to disclose certain Confidential Information required to be so disclosed pursuant to a valid judicial order, a requirement of a governmental agency, or by operation of law; provided that the Receiving Party gives the Disclosing Party written notice of any such requirement immediately after learning of any such requirement, and takes all reasonable measures to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and have allowed the Disclosing Party to participate in the proceeding. Upon written request by Disclosing Party, the Receiving Party shall promptly return all documents and other tangible materials containing or representing Confidential Information and all copies thereof or destroy all such Confidential Information in intangible form.
- Security and Privacy.
The parties agree and intend that Celigo is a “service provider” as defined under the California Consumer Privacy Act of 2018 (CCPA) and other relevant data protection laws. With regard to the data Celigo may process in providing the service under this Agreement, Celigo will not (i) sell — as defined by the CCPA — any processed Customer Personal Data, (ii) collect, use, maintain or disclose processed Customer Personal Data except as necessary to perform the Services, or retain processed Customer Personal Data beyond the expiration or termination of this agreement except to the extent required by applicable laws and in accordance with this Agreement. Celigo certifies that it understands and will comply with the foregoing restrictions.
In the event of a Security Breach defined by applicable law as reportable to authorities and/or the Customer, or the owners of personal data the Customer has custody of, Celigo agrees to notify the Customer pursuant to applicable law.
As applicable, for Personal Data that belongs to residents of the EU economic area that the Customer is the custodian of, as defined under the definitions of Personal Data per the EU General Data Protection Regulation 2016/679 (GDPR) Article 4, a separate Data Protection Agreement (DPA) shall be provided by Celigo and executed between the parties.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY, FOR ANY INDIRECT, INCIDENTAL, COVER, SPECIAL, STATUTORY, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS OR DATA WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR THE OTHER PARTY’S USE OR RELIANCE UPON THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID AND PAYABLE FOR SUBSCRIPTION SERVICES TO CELIGO UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM. FOR THE AVOIDANCE OF DOUBT, EITHER PARTY AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO THE OTHER PARTY DURING THE TERM OF ANY TRIAL. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO EITHER PARTY.
- Hosted Service
With respect to any Subscription Service that is to be hosted by Celigo for Customer’s use, the following additional terms and conditions apply:
- Operation Management: Celigo will host and operate the Subscription Service on Celigo’s computer server environment. Customer shall be responsible for the maintenance of user Credentials for access to the Subscription Service.
- Availability. Celigo will use all reasonable commercial efforts to make the Service available to Customer. Celigo’s obligations shall be as set forth in the Service Level Agreement, which is available at: https://www.celigo.com/service-level-agreement/.
- Prerequisite Applications; Internet Access. Customer shall be solely responsible for procuring, at its expense, the necessary environment to use the Subscription Service via the Internet, including, without limitation, (i) a valid license to the applications being integrated, and if applicable, other external applications, (ii) Internet access, and (iii) telecommunications services.
Notwithstanding the foregoing, during any Trial the Service Level Agreement shall not apply, and monitoring, management and maintenance of the Subscription Service shall be as Celigo deems appropriate, in Celigo’s sole business discretion.
Celigo shall defend or settle, at its expense, any claim or action (“Claim”) against Customer that the Subscription Service, as delivered by Celigo to Customer and used within the scope of this Agreement and/or the relevant Quote, infringes any copyright, trade secret, patent or other proprietary right established under the laws of the United States. Celigo shall pay all final judgment awards against Customer or settlement costs in connection with any such Claim.
Celigo’s obligations shall be conditioned on Customer (i) giving Celigo prompt written notice of each such Claim; (ii) granting Celigo sole control over the defense, negotiation and settlement of each Claim; and (iii) providing Celigo with such assistance in the defense and settlement of each such Claim as Celigo may reasonably request.
If the Subscription Service is found to be infringing, or in Celigo’s opinion is likely to be found infringing, Celigo at its option may (i) re-deliver the Subscription Service so that it are no longer infringing; (ii) obtain the right for Customer to continue using the Subscription Service, without infringing; or (iii) terminate this Agreement and any Quote and refund any prepaid and unused fees for the infringing Subscription Service.
- General Provisions.
- Waiver and Remedies. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.
- Governing Law. This Agreement shall be governed in all respects by the substantive laws of the State of California, United States of America, without reference to any conflicts of law principles that would require the application of the laws of any other jurisdiction. The Parties agree that the U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts having jurisdiction over San Mateo County, California, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts. Notwithstanding the foregoing, Celigo may bring an action to protect or enforce its intellectual property rights in any applicable jurisdiction.
- No Export. Customer will not export or re-export from anywhere any part of the Subscription Service, or any component or direct product thereof, except in full compliance with and with all applicable export laws and regulations, including without limitation, those of the U.S. Treasury Department and/or Department of Commerce. Customer warrants that it is not on the United States’ Specially Designated Persons (SDN) list and is not located in or a national resident of any country on the United States’ Sanctions Programs and country list.
- Relationship. Neither Celigo or Customer is, nor represents itself to be, an agent, employee, partner or joint venturer of the other, nor will Celigo or Customer transact any business on the other’s behalf, nor in any form make promises, representations or warranties that incur any liability for or on behalf of the other party.
- Feedback. Customer agrees that Celigo may, in its sole discretion, use any feedback, suggestions, and ideas about the Services or any of its components, in any manner, including in future modifications of the Services and components thereof.
- Severability. If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of it being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
- Compliance with Laws. Customer shall comply with all laws and regulations applicable to this Agreement or the transactions contemplated hereby.
- Assignment. Neither Celigo or Customer may assign this Agreement without the prior written consent of the other party; provided, however, that either party may, upon written notice, assign this Agreement to (i) an affiliate or (ii) any entity which, whether by merger, purchase or otherwise acquires all or substantially all of the assets or business of such party. Any assignment in violation of the foregoing is null and void. The terms and conditions of this Agreement shall be binding on any assignee.
- Entire Agreement; Modification. This Agreement, together with each Quote and linked documents, constitutes the complete, final and exclusive statement of the terms of the Agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties. This Agreement may not be modified except pursuant to a written amendment, executed by an authorized representative of each party.
- No Solicitation. During the term of this agreement and for a period of twelve (12) months thereafter, Customer shall not directly or indirectly solicit any Celigo personnel that have performed any Services under this Agreement to terminate their employment with Celigo for any reason. The foregoing does not restrict any general solicitation for employment published on Customer’s or any third party’s website.
Customer has the right or option to have the record provided or made available on paper or in nonelectronic form, and the customer also has the right to withdraw the consent to have the record provided or made available in an electronic form. This may have the effect of terminating the agreement unless an alternative company contact is provided. To exercise the opt out of Electronic Signature or Communication, the Customer must contact the current Celigo Customer Service Representative, or Email to [email protected]. This opt out will not affect any prior signed contractual agreements by the Customer opting out. These electronic communications may be read by any current Browser or PDF reader.