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Celigo Terms of Service Agreement

This document describes terms of service for the Celigo platform, integrator.io.

For terms of use of the Celigo.com website, see our Terms of Use page.

For terms of service for the Celigo Free Trial, see our Celigo Free Trial Terms of Service page.

This Celigo Terms of Service Agreement (the “Terms of Service”; together with the Quote and all other supplemental Product Terms, the “Agreement”) is entered into by and between Celigo, Inc. (“Celigo”) and the “Customer” entity identified on the Quote or Statement of Work (“Customer” or “you”). Certain capitalized terms are defined in Section 1 (“Definitions”) and others are defined contextually in this Agreement.

The Quote may also be subject to supplemental product terms and conditions referenced in the applicable Quote (“Supplemental Product Terms”). This Agreement consists of the terms and conditions set forth below Quote, and any applicable Supplemental Product Terms, Support Terms, Statements of Work, and any change orders. The Quote may only be amended in a writing signed by both parties, but Celigo reserves the right to modify these Terms of Service. Celigo will post the most current version of these Terms of Service at the URL referenced in the Quote, and your continued use of Services after Celigo publishes or notifies You about Celigo’s changes means You consent to the updated Terms of Service. Any conflict or inconsistency will be resolved in the following order of precedence: (1) the Quote, (2) the Supplemental Product Terms, (3) the body of this Agreement, (4) the Support Terms, and (5) the Statement of Work.

The “Effective Date” of this Agreement means the start date stated on the Quote or Statement of Work or, if there is no Quote, then the date on which the Products are first made available to Customer. This Agreement will govern Customer’s purchases of Products, Support, and Professional Services.
If you are accessing or using Products on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company. All references to “you” reference your company. BY SIGNING A QUOTE OR A STATEMENT OF WORK OR INSTALLING, ACCESSING, OR USING ANY PRODUCTS THAT ARE SUBJECT TO THIS AGREEMENT, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

1.0 Definitions.

1.1 “Affiliate” means an entity that controls, is controlled by or is under common control with Celigo or Customer. Customer’s rights in this Agreement related to an Affiliate will continue only for so long as the affiliation continues to exist.

1.2 “Authorized User” or “User” means any type of user authorized by Customer to access and use the Products on Customer’s behalf, including any additional requirements as set forth in the Quote or Supplemental Product Terms.

1.3 “Celigo Software Components” means any object code made available by Celigo to Customer for use in connection with a Product as specified in a Quote, including the CloudExtend Platform.

1.4 “CloudExtend Platform” Refers to Celigo’s CloudExtend platform made available as an application add-insolution as described in the applicable Quote.

1.5 “Customer Data” means electronic data and information, including any Personal Information, that Customer or its Users transmit or otherwise supply to the Products under Customer’s account.

1.6 “Deliverable” means a deliverable to be provided by Celigo in the performance of Professional Services as expressly described in the relevant Statement of Work.

1.7 “Documentation” means Celigo’s then-current operating manuals, user instructions, technical literature, and user guides for the Products.

1.8 “integrator.io Platform” refers to Celigo’s integration platform made available as an online, internet-based technology solution as described in the applicable Quote.

1.9 “iPaaS Integration App” refers to a standalone application designed to operate on the integrator.io Platform. An iPaaS Integration App contains prebuilt workflows able to be configured via settings to address specific Customer needs. iPaaS Integration Apps may be developed by Celigo or a third party and made commercially available via the Marketplace.

1.10 “iPaaS Template” refers to a collection of integration flows that may be acquired by Customer for installation into Customer’s instance of the integrator.io Platform. iPaaS Templates may be developed by Celigo or a third party and made commercially available via the Marketplace.

1.11 “Marketplace” refers to the library of commercially available iPaaS Templates and iPaaS Integration Apps made available at https://www.celigo.com/integrations/ or any successor site.

1.12 “Personal Information” means any data related to an identified or identifiable natural person to which Celigo is exposed during the provision of the Products that is protected by various legislation and directives relating to privacy and security requirements for its protection and processing in the applicable jurisdiction.

1.13 “Products” refers to the integrator.io Platform, Celigo iPaaS Integration Apps, Celigo Software Components, and other platforms, add-on, integrations, optional features, or offerings provided or sold by Celigo with any of the foregoing as specified in a Quote.

1.14 “Professional Services” refers to any training, enablement, configuration, or other professional consulting services provided by Celigo related to the Products, as specified in a Quote or Statement of Work.

1.15 “Statement of Work” refers to a document that describes the Professional Services to be provided by Celigo to Customer, the scope of the Professional Services and Deliverables (if any), the term during which the Professional Services will be provided, responsibilities of each party, the estimated schedule, fees due, and other relevant details. Customer and Celigo agree to a Statement of Work by signing it.

1.16 “Subscription Term” means the duration of a subscription to Products as specified in the relevant Quote.

1.17 “Third Party Platform” means any platform, add-on, service, or product not provided or authored by Celigo that Customer elects to integrate or enable for use with the Products, including any iPaaS Templates or iPaaS Integration Apps made commercially available via the Marketplace.

1.18 “Use Restrictions” means any specific User or configuration restrictions applicable to Customer’s use of the Products, as specified in this Agreement including in the Supplemental Product Terms or the applicable Quote.

2.0 Products

2.1 License to Use Specific Products. The following provisions apply specifically to the respective Products.

(a) Availability and Use of the integrator.io Platform. Celigo will provide Customer with online access to and use of the integrator.io Platform. The integrator.io Platform will be hosted on a web-based cloud platform that is maintained by Celigo’s designated third party processor. Customer is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the integrator.io Platform, including but not limited to Customer’s Internet access, encryption technology, and adequate bandwidth. Subject to timely payment of the applicable fees and compliance with the terms of the Agreement, Celigo grants Customer the limited, non-transferable, non-exclusive (i) access to and use of the integrator.io Platform, and (ii) license to run and install the Celigo Software Components provided by Celigo, if any, that are part of the integrator.io Platform solely as necessary and intended for use in conjunction with the integrator.io Platform.

(b) Celigo Software Components. With respect to Celigo Software Components and subject to the terms of this Agreement, Celigo hereby grants Customer a non-transferable, non-sublicensable, non-exclusive license during the Term specified in the applicable Quote, to install and use the Celigo Software Components on systems or devices under Customer’s control solely for Customer’s internal business purposes in accordance with the applicable Documentation, Use Restrictions, Supplemental Product Terms (if any), and this Agreement.

2.2 Customer Obligations regarding Use of the Products. Customer agrees:

(a) that use of the Products is solely by Authorized Users for Customer’s internal business purposes for the scope and use limitations specified in the applicable Quote. User IDs are granted to individual, named persons, and each Authorized User will keep login credentials confidential and not share them with anyone else, Notwithstanding the forgoing, accounts setup for system use are permitted so long as secure credential management is in place;

(b) to use commercially reasonable efforts to prevent unauthorized access to or use of the Products and to notify Celigo promptly of any such unauthorized access or use. In the event an Authorized User is no longer authorized to use a Product on Customer’s behalf, Customer will promptly de-activate the Authorized User’s access;

(c) to ensure that the Products are used only in accordance with the Documentation, and in compliance with the terms of the Agreement and applicable laws. Customer acknowledges that it is responsible for any User’s breach of this Agreement as if that breach were committed by Customer;

(d) where applicable, to ensure that Use Restrictions, parameters and other limitations on use of the Products, as specified in the Quote or Supplemental Product Terms, are not exceeded;

(e) to ensure that secure endpoints or sftp/FTPS services are used to provide access to Customer Data processed by the integrator.io Platform;

(f) to back up the Customer Data and maintain standard disaster recovery and business continuity plans. Customer acknowledges that Celigo is not a content-archiving service and does not sell Customer Data storage services;

(g) To manage rotation of end point API access tokens or Credentials;

(h) to notify Celigo at [email protected] if you detect or suspect a security incident related to the Products;

(i) to ensure that Payment Card Data (as defined in PCI-DSS) in the Customer Data consists of tokenized data only (i.e., no PAN or other PCI sensitive data as defined by PCI-DSS), and

(j) to ensure that it has entered into a business associate agreement with Celigo, as required by The Health Insurance Portability and Accountability Act of 1996, before submitting any patient, medical or other protected health information (collectively, “PHI”) to the integrator.io Platform. Celigo expressly prohibits Customer from submitting any other PHI to Celigo or any Products other than the integrator.io Platform.

2.3 Restrictions regarding Use of the Products. Customer will not (and will not permit, encourage, or assist anyone else to) do any of the following:

(a) provide access to, distribute, resell, or sublicense the Products to a third party (except by Authorized Users for Customer);

(b) use the Products on behalf of, or to provide any product or service to, third parties;

(c) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Products or the data contained in the Products;

(d) modify, copy or create derivative works based on the Products;

(e) reverse assemble, reverse compile, reverse engineer or otherwise attempt to derive or seek to access the source code or non-public APIs to any element of the Products, except to the extent expressly permitted by Law (and then only after providing prior written notice to Celigo;

(f) breach or attempt to breach the security of any Product or any network, servers, data, computers or other hardware relating to or used in connection with any Product, or any third party that is hosting or interfacing with any part of any Product;

(g) use or distribute through the Products any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Products or the operations or assets of any other customer of Celigo or any third party;

(h) interfere with or disrupt the integrity or performance of the Products;

(i) transmit any malicious or hidden mechanism, viruses or other harmful materials to the Products; or

(j) use the Products to develop a similar or competitive product or service or copy its features or user interface.

2.4 Security Measures. Celigo will implement reasonable and appropriate technical and organizational measures which equal or exceed then-current industry standards and which are designed to secure Customer Data against accidental or unlawful loss, access or disclosure. Celigo will verify annually that its designated third party processors utilized in the provision of the integrator.io or CloudExtend Platforms have SOC 2 Type 2 reports and, upon request, will provide Customer with a copy of that certification. Customer acknowledges and agrees that all such certifications constitute Confidential Information of Celigo.

2.5 Intellectual Property Rights. Celigo (and its licensors, where applicable) owns all right, title, and interest in the Products and Deliverables, including to any and all data files in the Products (other than Customer Data), algorithms, user interfaces, software, techniques, designs, and other tangible or intangible technical material, information, proprietary technology, and other intellectual property rights, and derivative works of the Products, provided or utilized (other than the Customer Data) by Celigo to make the Products available for access and use by Customer. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the any of the Products or Deliverables. Except for the limited rights and licenses expressly granted in this Agreement, no other license is granted and no other use is permitted. Celigo reserves all rights not expressly granted to Customer.

2.6 Suspension of Access to Products. Celigo may suspend Customer’s access to the Products, Support, and/or Professional Services, without liability, and in whole or in part, if (a) Customer breaches Sections 2.2 (“Customer Obligations regarding Use of the Products” or 2.3 (“Restrictions regarding Use of the Products”), (b) Customer’s account is ten days or more overdue, or (c) Customer’s actions risk harm to other customers or the security, availability, or integrity of the Products. Where practicable, Celigo will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, Celigo will promptly restore Customer’s access to the Products in accordance with this Agreement.

3.0 Data Ownership and Rights.

3.1 Customer Data.

(a) Rights to Use Customer Data. Customer is solely responsible for the Customer Data, including its content, accuracy, and compliance with applicable laws. Customer represents and warrants that it has made all disclosures and has all rights, consents, and permissions necessary to use its Customer Data with the Products and grant Celigo the rights in Section 3.1(b) (“Limited License Grant to Customer Data”), all without violating or infringing any laws (including applicable Data Protection Legislation), third-party rights (including intellectual property, publicity, or privacy rights), this Agreement, or any other terms or privacy policies that apply to the Customer Data.

(b) Limited License Grant to Customer Data. Customer hereby grants to Celigo the non-exclusive, worldwide, royalty-free right to (A) use Customer Data during the Subscription Term to provide the Products, Support, and Professional Services to Customer, and (B) use and disclose Customer Data as otherwise permitted pursuant to any written consent or instructions of Customer.

3.2 Processing Personal Information in Customer Data.

(a) Definitions.

(i) “Controller,” “Processor,” and “Processing” have the meanings accorded to them in the Data Protection Legislation, and their cognate terms shall be construed accordingly.

(ii) “Data Protection Legislation” refers to the laws, rules, and regulations relating to privacy and data protection applicable to Customer at Customer’s principal place of business as specified in the Quote or to Celigo at Celigo’s principal place of business.

(iii) “GDPR” means the General Data Protection Regulation ((EU) 2016/679) or the Data Protection Act 2018 of the United Kingdom.

(b) Compliance with Data Protection Legislation. For clarity, this Section 3.2 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the applicable Data Protection Legislation.

(c) Generally. Each party will comply with all applicable requirements of the Data Protection Legislation.

(d) Additional Obligations of Celigo. When processing the Customer Data in the Products, Celigo shall treat Personal Information in accordance with applicable Data Protection Laws, and will only process Personal Information on behalf of and in accordance with Customer’s documented instructions which are deemed given for the following purposes: (i) processing in accordance with this Agreement and the applicable Quote, (ii) processing initiated by Users in their use of the Products, and (iii) processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of this Agreement.

(e) Additional Obligations of Customer. Without prejudice to the generality of Section 3.2(c) Customer will ensure that it has all necessary and appropriate consents and notices or other legal basis in place (i) to enable lawful transfer of the Personal Information to Celigo for the duration and purposes of this Agreement, and (ii) to enable Celigo to lawfully use, process, and transfer the Personal Information in accordance with this Agreement, including on Customer’s behalf.

(f) Processing Personal Information. The parties acknowledge that: (i) if Celigo processes any Personal Information under this Agreement, it is on Customer’s behalf when performing its obligations under this Agreement, and (ii) the Personal Information may be transferred, stored, and accessed from outside of the country where Customer’s principal place of business is located in order to provide the Services or to otherwise perform any of Celigo’s other obligations under this Agreement. In addition, if required pursuant to applicable Data Protection Legislation, upon Customer’s request, the parties will execute Celigo’s data processing addendum, which sets forth each party’s obligations with respect to compliance with the Legislation.

3.3 Aggregated Data. “Aggregated Data” refers to statistics, benchmarks, measures, and other information or data which relates to the provision, performance, operation, and use of the Products or is generated by Customer’s use of the Products (such as metadata and records about integration flows) and that, using commercially reasonable efforts or as required by applicable Data Protection Legislation, is: (i) anonymized by removing Personal Information, or other information or data, so that it cannot be attributable to Customer or Authorized Users, (ii) combined with other data or information so it cannot be attributable to Customer or any Authorized Users, or (ii) presented in a way which does not reveal Customer or any Authorized Users. For the avoidance of doubt, Aggregated Data does not include any data based on or derived from Customer Data.

3.4 Data Ownership. Except for Celigo’s use rights set forth in this Agreement, as between the parties, Customer owns all right, title, and interest in the Customer Data (including, without limitation, the intellectual property rights). Celigo owns all right, title, and interest in the Aggregated Data (including, without limitation, any and all intellectual property rights).

3.5 Conflicting Terms. In the event of any conflict between the terms of Section 8 (“Confidentiality”) and this Section 3 (“Data Ownership and Rights”), the terms of this Section 3 will control.

3.6 Credentials. Customer may need to supply Celigo personnel with access to Customer’s account or authentication credentials (for example, a user ID, password, or token) (“Credentials”) as reasonably necessary for Celigo to provide Support or Professional Services. Supplying Celigo with Credentials is at Customer’s sole discretion; however, if Customer does not do so, Celigo’s ability to provide Support, resolve a problem in the Products or provide Professional Services may be inhibited. In no event will the total and cumulative liability of Celigo and its Affiliates for claims of any nature arising out of or related to Customer’s Credentials exceed the General Liability Cap as that term is defined in Section 11 (“Limitation on Liability and Exclusions”) except as prohibited by applicable law.

4.0 Support and Professional Services.

4.1 Support. During the Term, Celigo will provide the type of support for the Products applicable to the option selected by Customer as specified in the Quote and in accordance with Celigo’s then current description and service level commitments which may be accessed through a link made available by Celigo (“Support”). Celigo will not materially degrade the level of Support available to Customer during the Subscription Term.

4.2 Professional Services.

(a) Provision of Professional Services. Celigo will use commercially reasonable efforts to provide Professional Services to Customer as described in a Quote or Statement of Work by the specified delivery dates, if any. Any changes in the scope of the Professional Services must be made in a writing signed by authorized representatives of Customer and Celigo.

(b) Fees for Professional Services. Celigo ordinarily bases the fees charged for Professional Services on the hourly rates of the consultants performing the Professional Services under the applicable Quote or Statement of Work (referred to as “Time-and-Materials Services”). However, for certain matters, Celigo may charge a fixed fee for the Professional Services based on such factors as the results achieved, the novelty or difficulty of the Professional Services to be performed, the amount at stake, or the time limitations under which Celigo is to perform (referred to as “Fixed-Fee Services”). All Professional Services provided by Celigo under this Agreement are Time-and-Materials Services unless the applicable Quote or Statement of Work specifies that the Professional Services are Fixed-Fee Services.

(c) Customer Materials. Customer agrees to provide Celigo with reasonable access to Customer’s technical data, documentation, and other materials (collectively, “Customer Materials”) as necessary for the performance of Professional Services. Customer will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness, competence, or consistency of Customer Materials or its personnel. If Customer does not timely provide the items or access required for Celigo to perform the Professional Services, Celigo’s performance may be delayed until Customer provides Celigo with the items or access. Customer hereby grants Celigo a limited and revocable right to use the Customer Materials for the sole purpose of performing the Professional Services for Customer. Customer owns and will retain ownership (including all intellectual property rights) in the Customer Materials and assumes all risk and liability regarding any use of (or results obtained through) the Customer Materials.

(d) Deliverables. Celigo hereby grants Customer a worldwide, royalty-free, non-exclusive license to use the Deliverables for Customer’s internal business purposes in connection with the Products solely during the applicable Subscription Period. Unless expressly stated otherwise in the applicable Statement of Work, Celigo owns and will retain ownership (including all intellectual property rights) in and to the Deliverables (excluding any Customer Materials) and any modifications and improvements to, and derivative works of, the Deliverables.

(e) Termination of a Statement of Work. Either party may terminate a Statement of Work for Professional Services on ten business days’ written notice to the other. Upon termination, neither party will have any obligation to the other on account of such termination except that Customer will pay Celigo for Professional Services satisfactorily rendered through the date of termination.

5.0 Third Party iPaaS Templates and iPaaS Integration Apps.

5.1 Use of Third Party iPaaS Templates and iPaaS Integration Apps with the integrator.io Platform. Customer acknowledges that the integrator.io Platform may be used with iPaaS Templates and iPaaS Integration Apps which are developed or provided by third parties (and not Celigo) even if those iPaaS Templates and iPaaS Integration Apps are made available through the Marketplace. Celigo makes no endorsements, representations, or warranties (including representations or warranties regarding compliance with applicable laws) regarding any third party iPaaS Templates and iPaaS Integration Apps. Rather, it is Customer’s sole obligation to ensure that it has valid license agreements for all third party iPaaS Templates and iPaaS Integration Apps and permission to develop interfaces with respect to them, and agrees that Celigo is not responsible for the operation or performance of any third party iPaaS Templates and iPaaS Integration Apps, or for costs associated with the development of interfaces to such iPaaS Templates and iPaaS Integration Apps (unless the development of such interfaces is provided by Celigo as part of the Professional Services).

5.2 Access by Providers of Third Party iPaaS Templates and iPaaS Integration Apps to Customer Data. If Customer installs or enables third party iPaaS Templates and iPaaS Integration Apps for use with the integrator.io Platform, Customer hereby agrees that Celigo may allow providers of those iPaaS Templates and iPaaS Integration Apps to access the Customer Data as required for the interoperation of the iPaaS Templates and iPaaS Integration Apps with the integrator.io Platform. Celigo has no liability for any disclosure, modification or deletion of Customer Data resulting from any such access by the providers of the third party iPaaS Templates and iPaaS Integration Apps.

5.3 Interoperation of Third Party iPaaS Templates and iPaaS Integration Apps with the integrator.io Platform. The integrator.io Platform may contain features designed to interoperate with third party iPaaS Templates and iPaaS Integration Apps. To use such features, Customer may be required to obtain access to the iPaaS Templates and iPaaS Integration Apps from third party providers and may be required to grant Celigo Credentials to access Customer’s accounts on the integrator.io Platform. If the third party provider of an iPaaS Template or iPaaS Integration App ceases making the third party iPaaS Templates or iPaaS Integration Apps available for interoperation with the integrator.io Platform features on terms acceptable to Celigo, Celigo may cease providing the features.

5.4 Issues with respect to the Functionality of Third Party iPaaS Templates and iPaaS Integration Apps. To the extent that Customer advises Celigo that a third party iPaaS Template or iPaaS Integration App is not functioning as intended with the integrator.io Platform, Celigo will use commercially reasonable efforts to identify whether the failure was caused by the integrator.io Platform or the third party iPaaS Template or iPaaS Integration App. Except with respect to the failure of the integrator.io Platform (which Celigo will address pursuant to Section 7.1 (“Limited Warranties”)), upon Customer’s request, Celigo will use commercially reasonable efforts to assist Customer (and the third party licensor, if applicable) to resolve the failure at Celigo’s then current time-and-materials rates. In addition, if Customer upgrades or otherwise modifies the third party iPaaS Template or iPaaS Integration App, Customer may be required to reconfigure the interfaces to the integrator.io Platform, which will require a suitably qualified and trained resource. If Customer does not have appropriately qualified personnel, Customer may engage Celigo Professional Services to provide such services on a time and materials basis. Alternatively Customer may separately engage a third party Celigo partner.

6.0 Fees and Payment Terms.

6.1 Quotes and Statements of Work. The Quote or Statement of Work attached to or referencing this Agreement sets forth Customer’s Product and Professional Services order. Customer may purchase additional Products and Professional Services to those initially ordered under the Quote by issuing an order. Celigo accepts Customer’s order by providing a Quote or Statement of Work, as applicable, confirming the specific details of the order. To be effective, each Quote and Statement of Work must be signed by both parties.

6.2 Fees. Customer agrees to pay Celigo the fees specified in the applicable Quote or Statement of Work in accordance with the payment terms or milestones specified in the Quote or Statement of Work. Any extension or increase in Customer’s access to or use of Products will require the payment of additional fees in accordance with the applicable Quote. All fees are noncancellable and nonrefundable.

6.3 Additional Payment Obligations. Payments will be made in the currency and by the due date set forth in the applicable Quote. Past due amounts will incur interest at a rate equal to the lower of 1.5% per month or the highest rate permitted by law. In addition, Customer will reimburse Celigo for all reasonable and actual costs incurred by Celigo in collection of delinquent amounts not subject to a reasonable and good faith dispute. The late fees, collection costs, and ability to suspend access to the Products under Section 2.6 (“Suspension of Access to Products”) of this Agreement will not apply to the extent a payment is the subject of a good faith dispute between the parties provided that Customer has notified Celigo of such dispute in writing and is working with Celigo to expeditiously resolve the dispute.

6.4 Taxes. Amounts charged by Celigo do not include applicable taxes or similar fees now in force or enacted in the future resulting from any transaction under this Agreement. Customer is responsible for all such amounts and will pay them in full (except for taxes based on Celigo’s net income). If Celigo has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.

6.5 Expense Reimbursement. Customer agrees to reimburse Celigo for all reasonable and appropriately documented travel and related expenses incurred by Celigo in performing Professional Services at Customer’s location provided such expenses have been pre-approved by Customer.

7.0 Warranties; Warranty Disclaimer.

7.1 Limited Warranties.

(a) Products. Unless otherwise specified in the Supplemental Product Terms, Celigo warrants to Customer that, during the applicable Term, the Products will perform materially as described in the Documentation. In the event a Product is nonconforming, Celigo will fix, provide a work around, or otherwise address the nonconformance. If Celigo is unable to do so, Celigo may terminate Customer’s access to the Products and return Subscription Fees for the nonconforming Products previously paid to Celigo for the period beginning with Customer’s notice of nonconformity through the remainder of the applicable Term.

(b) Professional Services. Celigo will perform the Professional Services and deliver the Deliverables as scoped in a Quote or Statement of Work in a professional and workmanlike manner. Celigo will re-perform any non-conforming Professional Services or re-deliver any non-conforming Deliverables at no additional cost to Customer; provided Customer provides Celigo with written notice of the nonconformity within ten days of delivery of the applicable Professional Services or Deliverables, including reasonably sufficient documentation to enable Celigo to understand the reason Customer believes the Services or Deliverables are non-conforming.

7.2 Disclaimers.

(a) General. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 (“LIMITED WARRANTIES”) OR IN ANY SUPPLEMENTAL PRODUCT TERMS, PRODUCTS, SUPPORT, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS.” CELIGO AND ITS SUPPLIERS MAKE NO (AND HEREBY DISCLAIM ALL) OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING ITS EXPRESS OBLIGATIONS IN SECTION 4 (“SUPPORT AND PROFESSIONAL SERVICES”), CELIGO DOES NOT WARRANT THAT CUSTOMER’S USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. Celigo is not liable for delays, failures, or problems inherent in use of the internet and electronic communications or other systems outside Celigo’s control. Celigo will not be liable in any manner for the output obtained through use of the Products or Customer’s reliance on such output. Customer is responsible for the supervision, management, and control of Customer’s use of the Products.

(b) Third Party Software. Third Party Platforms and other software authored by a third party that Customer elects to enable for use with the Products are provided “AS IS” and Customer assumes all risk and liability regarding any use of (or results obtained through) them. Celigo and its suppliers make no warranty or guarantee regarding them, including regarding their accuracy or continued availability or compatibility.

(c) Products Acquired through the Marketplace. Products acquired through the Marketplace are not warranted under this Agreement. Rather, any warranty will be set forth in the Marketplace terms and conditions.

8.0 Confidentiality.

8.1 Definition. “Confidential Information” means information disclosed by Customer (as the disclosing party) to Celigo (as the receiving party) or by Celigo (as the disclosing party) to Customer (as the receiving party) that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Customer’s Confidential Information specifically includes Customer Data and Customer Materials (but does not include Aggregated Data). Celigo’s Confidential Information specifically includes the terms and conditions of this Agreement and any security, technical or performance information about the Products.

8.2 Obligations. As a receiving party, each party will (i) use reasonable care to protect the disclosing party’s Confidential Information from being disclosed to third parties except as permitted in this Agreement, and (ii) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, Affiliates, contractors, and other representatives having a legitimate need to know, provided the receiving party remains responsible for their compliance with this Section and binds them to confidentiality obligations no less protective than this Section.

8.3 Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (i) is or becomes public knowledge through no fault of the receiving party, (ii) it rightfully knew or possessed prior to receipt under this Agreement, (iii) it rightfully received from a third party without breach of confidentiality obligations, or (iv) it independently developed without using the disclosing party’s Confidential Information.

8.4 Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section.

8.5 Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures if required by law, subpoena, or court order, provided (if legally permitted) it notifies the other party in advance and reasonably cooperates in any effort to obtain confidential treatment.

9.0 Indemnification.

9.1 Indemnity by Celigo.

(a) Indemnity. Celigo will defend Customer from and against all claims, suits or actions arising out of or resulting from a third party claim that Celigo’s technology used to provide the Products (excluding any open source software) infringes or misappropriates any United States patent, copyright, trademark or trade secret of that third party, and will pay the amount of any final judgment awarded (including reasonable attorney’s fees and costs) or final settlement made with respect to such claim. Notwithstanding the foregoing, in no event shall Celigo have any obligations or liability under this Section arising from: (i) use of Products in a modified form, (ii) use of Products in combination with materials not furnished by Celigo but solely to the extent that the alleged infringement is caused by such combination, (iii) any Customer Data or Customer Materials, or (iv) Customer’s use of Products other than in accordance with this Agreement.

(b) Possible Infringement. If a Product becomes or, in Celigo’s opinion, is likely to become the subject of a claim of infringement, Celigo will, at its sole option and expense, (i) obtain the right for Customer to continue using the Product, (ii) provide a non-infringing functionally equivalent replacement, or (iii) modify the Product to be non-infringing. If Celigo does not believe the foregoing options are commercially reasonable, Celigo may terminate Customer’s access to the Product in which event Celigo will refund to Customer all prepaid fees for the remainder of the then-current Subscription Term on a pro rata basis.

9.2 Indemnity by Customer. Customer will (i) defend Celigo from and against any third party claim, suit or action arising out of or resulting from (A) the Customer Data or Customer Materials, or (B) any breach by Customer of applicable Data Protection Legislation or of Sections 2.2 (“Customer Obligations regarding Use of the Products”) or 2.3 (“Restrictions regarding Use of the Products”), and (ii) pay the amount of any final judgment awarded (including reasonable attorney’s fees and costs) or final settlement made with respect to such claim.

9.3 Conditions to Indemnification. The obligations of a party to provide indemnification under this Section 9 are contingent on the party who has the right to be indemnified (the “Indemnified Party”) (i) promptly notifying the party providing the indemnification (the “Indemnifying Party”) in writing of the existence of any such action; provided, however, that the failure of the Indemnified Party to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations except to the extent the Indemnifying Party is prejudiced by such failure, (ii) granting the Indemnifying Party exclusive control and sole authority for the defense or settlement of such action, except that the Indemnifying Party shall not settle an action without the Indemnified Party’s consent when the settlement imposes obligations of payment or admissions of guilt, or any other material obligation (except customary obligations of confidentiality) on the Indemnified Party, and (iii) providing the Indemnifying Party with reasonable assistance for the defense or settlement of such action at the Indemnifying Party’s expense. The Indemnified Party, at its own expense, may participate in the defense of any such action.

9.4 Sole Remedy. This Section 9 sets forth Celigo’s and its Suppliers’ sole liability, and Customer’s sole and exclusive remedy, with respect to any claim of intellectual property infringement and/or misappropriation.

10.0 Limitation on Liability and Exclusions.

10.1 Limitation of Liability.
(a) EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY WILL BE LIABLE FOR LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.

(b) Except with respect to Excluded Claims and as set forth in Section 10.3 (Data Breach Claims Cap), in no event will either party’s liability arising out of or related to this Agreement, regardless of the form of action that imposes liability (and whether such liability arises under any statute or in contract, tort (including negligence) or otherwise), exceed, in the aggregate, the total payments made by Customer to Celigo during the twelve months prior to the first event giving rise to the claim (“General Liability Cap”).

10.2 Excluded Claims. An “Excluded Claim” refers to (i) a party’s obligation of indemnification under Section 9 (Indemnification), (ii) liability resulting directly from a party’s gross negligence, willful misconduct, criminal acts, or fraud, (iii) liability which, by applicable law, cannot be limited, or (iv) Customer’s obligation to pay amounts owed to Celigo under this Agreement.

10.3 Data Breach Claims Cap. Notwithstanding anything to the contrary in this Agreement, in no event will the liability of Celigo and its Affiliates resulting directly from a breach by Celigo of its obligations in Section 3.2 (Processing Personal Information in Customer Data), exceed, in the aggregate, two times (2x) the General Liability Cap.

11.0 Term; Termination.

11.1 Term. This Agreement will remain in effect until all Quotes and Statements of Work entered into by the parties have expired or been terminated unless earlier terminated as set forth herein (“Agreement Term”). Each Quote will specify the applicable Subscription Term. If none is specified, the Subscription Term will be for a period of twelve months from the date specified on the Quote. Upon expiration of the Subscription Term of a Quote, the Subscription Term will terminate unless it is renewed by the issuance of another Quote which is signed by both parties.

11.2 Termination. Either party may terminate this Agreement upon 30 days’ written notice to the other party if the other party materially breaches this Agreement and fails to cure the breach within 30 days after delivery of the written notice. Upon such termination, all Quotes and Statements of Work under it will automatically terminate as well. Termination of a Quote or a Statement of Work will not, by itself, terminate this Agreement. Otherwise, this Agreement may only be terminated upon written notice to the other when there are no Quotes or Statements of Work in effect under it.

11.3 Effect of Termination. Upon any termination of this Agreement, (i) Celigo will cease providing Customer with the Products, (ii) Customer’s use of the Products and any Deliverables will cease, and (iii) Celigo will delete any remaining Customer Data from Celigo’s systems within 30 days of termination. Customer will not have access to any Customer Data in the Products after such 30-day period. In addition, each party will return to the other the original and all copies of the Confidential Information in the other’s possession, custody or control or, in lieu of returning such Confidential Information, destroy all copies of such Confidential Information, and certify to such destruction in a writing signed by its officer. With respect to any Confidential Information of the disclosing party regarding which return or destruction is not feasible, the receiving party will continue to maintain its confidentiality in accordance with the terms of this Agreement.

11.4 Survival. Customer’s obligation to pay Celigo amounts due hereunder will survive any expiration or termination of this Agreement. The terms of any other Sections that by their nature are intended to extend beyond termination, including Sections 7.1 and 7.2 (under “Warranties; Warranty Disclaimer”), 8 (“Confidentiality”), 9 (“Indemnification”), 10 (“Limitation on Liability and Exclusions”), 11 (“Term; Termination”), and 12 (“General Provisions”), will survive termination of this Agreement for any reason.

12.0 General Provisions.

12.1 Governing Law. This Agreement is governed by the laws of the State of California, without giving effect to its conflict of laws principles. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act applies to this Agreement. Each party irrevocably agrees that the federal and state courts located in San Francisco County or San Mateo County, California shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with this Agreement and its subject matter. If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs from the other party.

12.2 Assignment. Neither party may assign or transfer its rights or obligations under this Agreement without the other party’s prior written consent except to an Affiliate or in connection with a merger, acquisition or sale of all or substantially all of its assets upon written notice to the other party. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any other purported attempt to do so is void.

12.3 Compliance with Laws. Celigo will comply with applicable laws in the provision of the Products and Services.

12.4 Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by law. Celigo may include Customer and its trademarks in Celigo’s customer lists and promotional materials but will cease this use upon Customer’s written request.

12.5 Independent Contractors; Supervision of Personnel. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement. Celigo is responsible for the supervision, direction, and control of its personnel engaged in providing Services under this Agreement.

12.6 Suggestions. Customer may from time to time provide suggestions, comments or other feedback (“Feedback”) to Celigo with respect to the Services. Celigo is free to use the Feedback for any purpose, without obligation.

12.7 Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations under this Agreement (excluding payment obligations) if the delay or failure arises from any cause or causes beyond that party’s reasonable control.

12.8 Waiver; Severability. A party’s failure to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, then such provision will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.

Celigo Terms of Service – Archive

Version April, 2016

Service Subscription Agreement

This Service Subscription Agreement (the “Agreement”) is a binding, contractual agreement between the legal entity (“Licensee”) identified on an order, proposal or quotation (each an “Ordering Document”) and Celigo, Inc. (“Licensor”), and it governs Licensee’s and its agents’ use of the Celigo software and/or service) (collectively, the “Service”) identified on an Ordering Document linked to or referencing this Agreement , where the Service is procured through NetSuite Inc. (“Authorized Third Party”).

Licensee’s use of the Service is subject to Licensee’s acceptance of the terms and conditions of this Agreement. By entering into this Agreement and/or installing or using any Service, Licensee agrees to be bound by the terms and conditions set forth herein.

  • Terms of Service

    Licensor hereby grants Licensee a nonexclusive, non transferable, worldwide right and license to use the Service solely for Licensee’s internal business purposes, subject to the terms of this Agreement. Licensor will provide the following to Licensee with respect to the Service:

      • Customer Support. While licensing the Service procured through Authorized Third Party, Licensee may submit a support request for the Service under this Agreement in accordance with the terms and conditions set forth at at https://www.celigo.com/support-policies/ns/. Submission of a support request gives Authorized Third Party permission to then share the submitted information with Licensor, with such submission being Authorized Third Party’s sole support obligation under this Agreement. Licensor will use commercially reasonable efforts to respond to and resolve all customer support issues that are attributable to the Service..
      • Professional Services. Licensor may agree to perform work (“Professional Services”) for Licensee pursuant to a written and mutually executed Statement of Work (“SOW”), which is incorporated into and made a part of this Agreement. The SOW defines Licensee’s entitlement to use the Service, and specifies the scope and schedule of Professional Services to be performed by Licensor for Licensee, and the applicable fees. Unless otherwise expressly stated in the applicable SOW, Professional Services shall be provided on a time and materials (“T&M”) basis at Licensor’s T&M rates in effect at the time the Professional Services are performed. All Professional Services will be deemed accepted upon delivery. Any changes to the scope of work under an SOW shall be made by written change order or amendment to the SOW signed by an authorized representative of each party prior to implementation of such changes.
      • Upgrades; Compatibility. If NetSuite releases a version of its application that is incompatible with the Service, then Licensor will use all commercially reasonable efforts to promptly develop and make available a modified and upgraded version of the Service for Licensee. The foregoing is not binding on Licensor during any Trial.
  • Licensee’s Obligations
    • Proper Use. Licensee shall be responsible for its users’ use of the Service in accordance with the applicable user manuals and other documentation, which may be amended from time to time (and any such amendments provided to Licensee in advance and in writing shall be binding upon Licensee), and any other instructions or guidance provided by Licensor. Licensee 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 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. Licensee 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 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 Service to or for the benefit of third parties; (iv) reproduce the 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 Service nor any service or product that is similar to or a substitute in whole or in part for the Service; (vi) disclose information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Service; or (vii) resell, sublicense, distribute, or transfer the Service or any component thereof to any third party (including, without limitation, sharing Licensee’s username(s) and password(s) for the 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. Licensee agrees to provide, or provide access to, the following: office workspace, telephone and other facilities, suitably configured computer equipment, complete and accurate information and data from its employees and agents, coordination of onsite, online and telephonic meetings, and other resources as reasonably necessary for satisfactory and timely performance of the Professional Services. Except where the relevant SOW provides otherwise, scheduling of Licensor’s resources must be agreed to no later than ten (10) business days prior to the date work is scheduled to begin. If Licensee subsequently requests scheduling changes or causes delays with SOW to which Licensor has dedicated resources and begun work, then additional effort, which may include information transfer, project re-planning, and other reasonable restart activities, may be required to re-engage with Licensee. Additional fees may apply and will be billed by Licensor or Authorized Third Party to Licensee as a Re-engagement Fee, or in the case of a T&M or block of hours SOW, Re-engagement Activities, and must be paid in full by Licensee before Licensor will resume work. The Re-engagement Fee shall be 15% of the total estimated project price; or in the case of a T&M or block of hours SOW, hours incurred to complete the Re-engagement Activities. Delays caused by Licensee that exceed ten (10) business days shall entitle Licensor to terminate the relevant SOW for cause immediately upon written notice.
  • Ownership
    • The Service and its software components, and anything developed by Licensor for Licensee under this Agreement (“Contract Property”), are licensed (not sold). Licensor and its suppliers retain all copyright, trade secret, trademark, patent and other proprietary rights in the 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 Service or any of its components or any Contract Property, and Licensor reserves all rights not expressly granted to Licensee.
  • Fees; Payment
    • Fees. Subject to the terms and conditions of this Agreement, Licensee will pay Licensor or Authorized Third Party (as invoiced) the setup fees, migration fees and/or monthly service access fees (collectively, the “Fees”) as set forth on an Ordering Document.
    • Payment Terms. The Fees shall be due at the beginning of each period for which the Licensee desires to continue use of the Service. Payment terms shall be as set forth in the Ordering Document. Licensor or Authorized Third Party shall have the right to suspend and/or terminate Licensee’s access to the Service if Licensee is delinquent on its payment obligations.
    • Fees For Professional Services. Licensor or Authorized Third Party shall invoice Licensee for Professional Services as stated in the applicable Ordering Document or SOW. Unless otherwise expressly stated in the applicable Ordering Document or SOW, (i) charges shall be due and payable fifteen (15) days from the date of the invoice; and (ii) Licensee shall reimburse Licensor for reasonable travel-related expenses incurred in conjunction with the Professional Services.
    • Taxes. Licensee 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 Licensor’s (or Authorized Third Party’s) income.
    • Payments Upon Termination. Upon expiration or termination of this Agreement for any reason, Licensee shall pay all earned and unpaid Fees and other amounts due to Licensor or Authorized Third Party 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 Licensee submits an Ordering Document. Thereafter, this Agreement shall be automatically renewed from year to year unless either party sends 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, unless earlier terminated as provided in Paragraph 5(b) or as a result of Licensee’s non-payment of amounts due under this Agreement.
    • 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 a cure during the thirty (30) day period and is pursuing such cure diligently and in good faith.
    • Obligations on Termination. Upon termination of this Agreement, Licensee shall, and shall ensure that its users shall, immediately, (i) cease all use of the Service, (ii) deliver to Licensor or destroy all copies of any related materials, and (iii) certify in writing to Licensor that such delivery or destruction has been accomplished. Upon termination of this Agreement by either party, Licensor reserves the right to immediately terminate access to the Service and Licensee acknowledges that it may be denied access to the 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, 8 and 10 shall survive termination of this Agreement.
  • Services Warranty
    • Licensor 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, Licensee’s exclusive remedy, and Licensor’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 SERVICE AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. LICENSEE AGREES THAT ALL RISK PERTAINING TO THE USE OF THE SERVICE IS ASSUMED BY LICENSEE. LICENSOR 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. LICENSOR DOES NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR 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 LICENSEE. LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES DURING THE TERM OF ANY TRIAL.
  • Confidentiality
    • Definition. “Confidential Information” means information about Licensor’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 Licensor 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 Service and the software component(s) of the Service, as well as the specific terms, pricing, and fees set forth in this Agreement and the Ordering Document.
    • Obligations. Licensee agrees that it will hold in strict confidence and not disclose the Confidential Information to any third party and that it will use the Confidential Information for no purpose other than as reasonably contemplated by this Agreement. Licensee 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). Licensee 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, either party may generally disclose the existence (but not the specific terms) of the Agreement and Licensee agrees that Licensor may refer to Licensee in its public and marketing communications as a customer, and use Licensee’s corporate name and/or logo in customer lists, including presentations and on Licensor’s website.
    • Exceptions. Licensee’s obligation of confidentiality under this Agreement shall not apply to information which Licensee 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 Licensee prior to the time of disclosure (as evidenced by Licensee’s records) without the breach of any agreement or fiduciary duty or the violation of any law; or (iii) is independently developed by Licensee (as evidenced by Licensee’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 Licensee 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 Licensee gives Licensor 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 Licensor to participate in the proceeding. Upon written request by Licensor, Licensee shall promptly return all documents and other tangible materials containing or representing Confidential Information and all copies thereof and destroy all such Confidential Information in intangible form.
  • Limitation of Liability
    • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR DEATH OR PERSONAL INJURY, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE, 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 LICENSEE’S USE OR RELIANCE UPON THE SERVICE OR ANY PROFESSIONAL SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE 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 TO LICENSOR OR AUTHORIZED THIRD PARTY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM. FOR THE AVOIDANCE OF DOUBT, LICENSOR AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO LICENSEE 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 LICENSEE.
  • Hosted Services
    • With respect to any Service that is to be hosted by Licensor for Licensee’s use, the following additional terms and conditions apply:
    • Operation; Management. Licensor will host and operate the Service on Licensor’s computer server. Licensee may monitor and manage the operation of the Service from Licensee’s dashboard. Licensee must provide Licensor an ID and password for an administrator-level role for Licensee’s NetSuite account, in addition to other system access as required. Licensee shall provide the ID and password via a secure Enterprise Password Management System. Licensor will keep Licensee’s ID and password strictly confidential and will only disclose Licensee’s ID and password to Licensor personnel who require the ID and password for the performance of their business duties. Licensee shall be responsible for the maintenance of user logon information for access to the Service, which shall be done via the Licensor dashboard.
    • Availability. Licensor will use all reasonable commercial efforts to make the Service available to Licensee. Licensor’s obligations shall be as set forth in the Service Level Agreement, which is available at: https://www.celigo.com/legal/service-level-agreement/ns/.
    • Maintenance. Licensor may, from time to time, perform maintenance on the Service and related infrastructure. Licensor shall use all reasonable efforts to perform maintenance services during off-peak hours (10:00 p.m. to 5:00 a.m. Pacific). Licensee acknowledges that the performance of maintenance may cause the Service to be temporarily unavailable.
    • Prerequisite Applications; Internet Access. Licensee shall be solely responsible for procuring, at its expense, the necessary environment to use the Service via the Internet, including, without limitation, (i) a valid license to the NetSuite, 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 Service shall be as Licensor deems appropriate, in Licensor’s sole business discretion.
  • 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, Licensor may bring an action to protect or enforce its intellectual property rights in any applicable jurisdiction.
    • No Export. Licensee will not export or reexport from anywhere any part of the 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. Department of Commerce. Licensee warrants that it is not on the United States’ prohibited party list and is not located in or a national resident of any country on the United States’ prohibited country list.
    • Relationship. Neither party is, nor represents itself to be, an agent, employee, partner or joint venturer of the other, nor will either party 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. Licensee agrees that Licensor may, in its sole discretion, use any feedback, suggestions, and ideas about the Service or any of its components, in any manner, including in future modifications of the Service 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. Licensee shall comply with all laws and regulations applicable to this Agreement or the transactions contemplated hereby.
    • Assignment. Licensee may not assign this Agreement without the prior written consent of Licensor.
    • Entire Agreement; Modification. This Agreement, together with the Ordering Document and applicable SOW 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, Licensee shall not directly or indirectly solicit any Licensor personnel that have performed Services under this Agreement to terminate his or her employment with Licensor, for any reason.
Version March, 2019

Service Subscription Agreement

V201903a

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: 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.

  • Ownership.
    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.
  • Confidentiality.
    • 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.Under the terms of this agreement, and in the natural processing of Customer Data, where the Customer is processing data using Celigo’s data management tools, and taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing the Customer’s data Celigo will secure that data using reasonable technical solutions and according to the Celigo Security Policy and Celigo’s Privacy Policy

    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 LiabilityTO 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 ServiceWith 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/legal/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.

  • Indemnification.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.
    • Electronic Signature and Communication Consent: Customer hereby confirms and consents to receiving or signing for electronic information relating to any transaction or transactions in or affecting interstate or foreign commerce be provided by the use of electronic records. This consent applies to: All agreement(s), orders, or terms of use, or other related information or contractual agreements, or other communications from Celigo to the customer such as updates, breach notice, or Agreement changes.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.
Version November, 2021

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 http://www.celigo.com/legal/agreements-support-policies-2017-02/. 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.
  • Ownership.
    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.
      • If Celigo terminates the Agreement because of Customer’s material breach, Customer (a) agrees to pay Fees for Professional Services rendered up to the effective termination date, accrued expenses Customer approved, and a Fee to be determined at Celigo’s sole discretion for resources allocated to SOWs not yet expired or completed, and (b) remain liable for all Subscription Service and Support Fees until the Subscription Period end dates.  If Customer terminates the Agreement because of Celigo material breach, Celigo will refund Customer prepaid Fees for Services not rendered or not used after the effective termination date.  Outstanding Fees shall be paid by each party to the other party within 15 days of the effective termination date.
    • 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.
  • Confidentiality.
    • 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.Under the terms of this agreement, and in the natural processing of Customer Data, where the Customer is processing data using Celigo’s data management tools, and taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing the Customer’s data Celigo will secure that data using reasonable technical solutions and according to the Celigo Security Policy and Celigo’s Privacy PolicyThe 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/legal/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.
  • Indemnification.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.
    • Export Controls and Sanctions.  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 and sanctions laws and regulations, including without limitation, those of the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) and/or Department of Commerce’s Bureau of Industry and Security (BIS).  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. Customer further warrants that it will not conduct any transactions with persons or entities on OFAC’s SDN list in violation of applicable U.S. laws.
    • 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.
    • Electronic Signature and Communication Consent:  Customer hereby confirms and consents to receiving or signing for electronic information relating to any transaction or transactions in or affecting interstate or foreign commerce be provided by the use of electronic records.  This consent applies to: All agreement(s), orders, or terms of use, or other related information or contractual agreements, or other communications from Celigo to the customer such as updates, breach notice, or Agreement changes.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.
  • Signatures
    Customer   Celigo, Inc  
    Signature   Signature  
    Name   Name  
    Address   Address 1820 Gateway Dr. Ste 260
    San Mateo, CA 94404
    Title   Title  
    Date   Date  
Version October, 2022

Terms of Service

CELIGO, INC. TERMS OF SERVICE

Effective as of October 10, 2022

For terms of service regarding free trial, see Celigo Free Trial Terms of Service.

These Celigo, Inc. Terms of Service, outline the terms regarding Your use of Celigo Services.

These Terms are a legally binding contract between You and Celigo. If You do not agree with these Terms, do not register for a Celigo account, or purchase or use Services.

By using or accessing the Services, or registering for a Celigo account, You agree to be bound by these Terms.

If You use the Services on behalf of an entity, You agree to these Terms for that entity and represent and warrant to Celigo that You have the authority to bind that entity to these Terms (in which event, “You” and “Your” refer to that entity), unless that entity has a separate paid contract in effect with Celigo, in which event the separate paid contract governs Your use of the Services.

  1. DEFINITIONS

    • General. The following capitalized terms have the following meanings:“Affiliates” means, with respect to each party, entities that Control, are controlled by, or are under common Control with such party.“Aggregated Data” means statistics, benchmarks, measures, and other information or data that is: (a) anonymized by removing Personal Data, or other information so the data cannot be attributable to a specific Celigo customer or user, or You (using commercially reasonable efforts or as required by Applicable Laws), or (b) combined with the other data, or (c) presented in a way which does not reveal a specific Celigo customer or user, or Your identity (using commercially reasonable efforts or as required by Applicable Laws).“Applicable Laws” means applicable national, federal, state, and local laws, rules, guidelines, court or government agency orders, and regulations in the United States and the country in Your address on the Quote.“BAA” means a Business Associate Agreement, as defined by HIPAA, governing the parties’ respective obligations with respect to HIPAA Data uploaded by You to the Subscription Services in accordance with the Terms.

      “CCPA” means California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq. and related regulations, as amended.

      “Celigo” means Celigo, Inc.

      “Celigo Community” means a free community site accessible at https://docs.celigo.com/hc/en-us/community/topics and related Sites for Celigo customers, users, and prospects to have discussions, share ideas, get help from each other, and suggest and vote on enhancements to Celigo products and services.

      “Claim” means claim, demand, lawsuit, dispute, or proceeding.

      “Confidential Information” means non-public information (a) labeled or identified “confidential” (or the like), or (b) (either in writing or verbal) of a type that a reasonable person should understand to be confidential, including without limitation, Customer Process Data, Customer Data, Personal Data, a third party’s information, discounts, pricing, strategic roadmaps, product plans, product designs, architecture, technology and technical information, security processes and reports, audit reviews, business and marketing plans, business processes, credit card/banking information, and information contained in Your account. Confidential Information does not include information a receiving party’s written records show was: (1) already known to receiving party at the time of disclosure; (2) disclosed to the receiving party by a third party who had the right to make such disclosure without confidentiality restrictions; (3) or through no fault of the receiving party has become, generally available to the public; or (4) independently developed by receiving party without use of the disclosing party’s Confidential Information.

      “Content” means files and meta-data associated with all files, information, text, software, music, sounds, graphics, videos, messages, tags, interactive features, photos, drawings, documents, data, or other materials or media.

      “Control” means the beneficial ownership of more than fifty percent (50%) of the voting power or equity in an entity.

      “Credentials” means access designations or authentication information (e.g. multi-factor authentication or second access factors, user ID, password, token, certificate, or Single Sign On) to access Celigo Services, iPaaS Integration Apps, or a third party product or service.

      “Customer Data” means Your information that Celigo maintains for supporting You as a Celigo customer, consisting only of (a) names, emails, addresses, telephone numbers, photos or videos (i.e. recorded video conference meetings where You consent to recordings), and other business contact information of Your Representatives; (b) all information that controls the Processing of Customer Process Data for Your integrations; (c) communications between You and Celigo relating to the performance of Services, and (d) communications between You and Celigo relating to the negotiation of Quotes, SOWs, and other contracts governed by, incorporated into, and made part of the Terms.

      “Customer Process Data” means data that You provide to Celigo for Processing in connection with Celigo’s provision of the Services, which may include Customer Data and Personal Data.

      “Data Protection Claims” means any Claims arising from Celigo’s breach of Section 12 (Confidential Information) (except Customer Process Data that leverages unencrypted endpoints), where such breach results in the unauthorized disclosure of Confidential Information (except Customer Process Data that leverages unencrypted endpoints).

      “Data Protection Legislation” means Applicable Laws of the European Union, the European Economic Area and/or member states, United Kingdom, and Switzerland, including the GDPR and UK GDPR, relating to the Processing of Personal Data.

      “Deliverables” means the product of all work performed under the Terms, including without limitation notes, drawings, electronic files, reports, graphics, documentation, computer programs (e.g. source code, object code, listings), inventions, creations, equipment, devices, models, processes, ideas, methods, and work-in-progress.

      “Documentation” means Celigo’s then-current operating manuals, user instructions, technical literature, user guides, knowledge base, release notes, featured articles, and functional materials describing the features, plans, options, and functions of the Services made generally available by Celigo to its customers or users, and published at https://docs.celigo.com/hc/en-us and other Sites.

      “DPA” means a Data Processing Agreement between a data controller (such as You) and a data processor (such as Celigo) that governs the processing of Personal Data. The DPA regulates any Personal Data Processing.

      “Fees” means fees quoted to You.

      “Feedback” means suggestions regarding features, functionality, modifications, enhancements, improvements, or performance of Celigo services or products.

      “Force Majeure Event” means cause beyond the reasonable control of an affected party (including, without limitation, pandemic (e.g. COVID-19), war, wind, natural disaster, lightning, fire, earthquake, flood, hurricane, riots, tsunami, Internet service provider failures or delays, denial of Internet service attacks).

      “GDPR” means Regulation (EU) 2016/679 together with applicable legislation implementing or supplementing the same or otherwise relating to the processing of Personal Data of natural persons, each as amended and including any substantially similar legislation that replaces it.

      “HIPAA” means the The Health Insurance Portability and Accountability Act of 1996 of the United States.

      “HIPAA Data” means any patient, medical or other protected health information (PHI or ePHI) regulated and defined by the Health Insurance Portability and Accountability Act, as amended and supplemented or similar federal or state laws, rules or regulations.

      “Incident” means a breach of security or Section 12 (Confidential Information) (except Customer Process Data that leverages unencrypted endpoints)leading to accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access to Your Personal Data, or Customer Process Data, in Celigo’s possession, custody, or control. “Incident” does not include unsuccessful attempts or activities that do not compromise the security or confidentiality of Your Personal Data, or Customer Process Data, including, without limitation, unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.

      “Identifiers” means recognizable or distinguishing names, servicemarks, logos, identifiers, trademarks, symbols, words, phrases, designs, or a combination of these items that identify the source of goods or services.

      “Insolvency Proceeding” means bankruptcy or insolvency proceeding.

      “Intellectual Property” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights.

      “Issue” means a single reproducible problem affecting the features and functionality of the Services.

      “Losses” means damages, attorney fees, expert witness fees, and litigation costs.

      “Malware” means without limitation, viruses, worms, time bombs, Trojan horses, and other malicious code, files, scripts, agents, or programs. “Malware” does not include programs used by Celigo to terminate or suspend Your access to Services when You (a) violate Section 7 (Acceptable Use)or Services use restrictions detailed in the Documentation or these Terms, or (b) exceed the Subscription Period.

      “Marketplace” means the library of prebuilt Celigo and third party applications, products, or services (“iPaaS Integration Apps”) (i.e. templates, common business tools, and Business Process Automations) located at https://staging.celigo.com/integrations/

      “Outsourced Providers” means third parties to whom You or Your Affiliates outsource information technology functions.

      “Personal Data” means all data and information that constitutes “personal information,” “personal data,” “personally identifiable information,” and any comparable terms, as those terms are defined under applicable Data Protection Legislation and the CCPA.

      “Post” means post, upload, share, submit, email, provide, transmit, or publish.

      “Price List” means the official Celigo list Fees for its Services.

      “Process” means any operation or set of operations performed upon Your Personal Data, whether by automatic means, including collection, recording, organization, use, transfer, disclosure, storage, manipulation, combination, and deletion of Your Personal Data.

      “Professional Services” means implementation, configuration, education, or operational or technical consulting related to the Software. “Professional Services” does not generally include development of Software and/or Intellectual Property for the customer.

      “Proof of Entitlement” means a record (i.e. invoice, payment receipt, confirmation, license certificate or key, or product) of the SKUs, types, quantities, and other use metrics of Your purchases from Celigo.

      “Quote” means an enrollment or ordering document.

      “Representatives” means a party’s employees or independent contractors.

      “Services” means collectively the Site, products, services (including Professional Services, Subscription Services), Support, and other properties Celigo owns or operates.

      “Site” means Celigo websites (including https://www.celigo.com/, https://integrator.io/, https://www.cloudextend.io/, and the Celigo Community accessible at https://docs.celigo.com/hc/en-us/community/topics).

      “Software” means Celigo-branded software, releases, tools and utilities.

      “SOW” means a statement of work issued by Celigo that describes the Professional Services.

      “Subscription Period” means the duration of Your Subscription Services specified in a Quote, commencing on the start date, and continuing up to the renewal date or end date.

      “Subscription Services” means Celigo-branded software-as-a-service integration platform and personal productivity applications, including Software or downloadable related applications made available to You via the Internet from computer equipment owned or operated by or for Celigo.

      “Support” means telephone, email, chat, or web assistance in the resolution of an Issue You report to Celigo.

      “Taxes” means all transaction taxes, including foreign withholding taxes, and local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added taxes, excise, use, goods and services taxes, consumption taxes.

      “Terms” means the Terms of Service, which Celigo may refer to as Service Subscription Agreement or Enterprise Service Subscription Agreement (“SSA”) in other Celigo documents incorporated into, or made part of, these Terms.

      “Third-Party Products” means software, code, applications, services, products, files, or data from Third-Party Providers.

      “Third-Party Providers” means Celigo licensors or suppliers.

      “UK GDPR” means the retained Regulation (EU) 2016/679 in the United Kingdom, as incorporated by the European Union (Withdrawal Act 2020) and amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (as amended by The Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2020), each as amended and including any substantially similar legislation that replaces it.

      “You”, “Yourself”, and “Your” means a natural person or entity that is the customer, end user, or user of Services.

      “Your Personal Data” means Personal Data that You provide or make available to Celigo, or that Celigo otherwise Processes on Your behalf, in each case, in connection with the provision of or as a part of the Services pursuant to these Terms at any time until the expiration or termination of the Terms or the Services.

  1. CHANGES TO THESE TERMS

    • Celigo reserves the right to modify these Terms. Celigo will post the most current version of these Terms at the Site. Your continued use of Services after Celigo publishes or notifies You about Celigo’s changes to the Terms means You consent to the updated Terms.Notwithstanding the foregoing, if You enter into a paid transaction, the Terms existing on the effective date of Your Quote will govern until the Services expire or renew, after which the then-current Terms apply to any renewals.
  1. YOUR ACCOUNT

    • Certain aspects of the Services may require You to obtain an account by completing a registration form, selecting a data center, and designating Credentials. When registering with Celigo You must: (a) provide true, current, accurate, and complete information about Yourself on the registration form and (b) maintain such information so it continues to be true, current, accurate, and complete.You are entirely responsible and liable for all information You Post via the Services, and all activities occurring under Your account.You are responsible for maintaining the confidentiality of, and You agree not to share or transfer account Credentials. Celigo will not be liable for Losses You incur relating to Your non-compliance with this Section 3. Only You may use Your Celigo account. If You become aware of unauthorized use of the Services or Your account, or have questions about Your account, contact Celigo Support.If an entity (e.g. employer) provided You with Your account, this entity has rights to Your account and may: (a) manage Your account (including suspending or canceling); (b) reset Your password; and (c) view Your usage and data, including how and when Your account is used.
  1. ELECTRONIC COMMUNICATIONS

    • Electronic Notices; Emails.By registering an account with Celigo or purchasing or signing up for Services, You understand and agree that Celigo may send (including via email) You information regarding the Services, such as: (a) notices about Your use of the Services, including use violations; (b) updates to the Services and new features, functionalities, services, or products; (c) promotional information regarding Celigo or third party products and services; and (d) Proof of Entitlements. You may unsubscribe from promotional information by following the instructions in the notices. If You don’t consent to receive notices (other than promotional information) electronically, stop using the Services.Electronic Signatures.Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in the Terms, Quotes, SOWs, and other contracts governed by, incorporated into, and made part of these Terms, are intended to authenticate the writing and to have the same force and effect as manual signatures. Delivery of the Terms, Quotes, SOWs, and other contracts, bearing an original manual or electronic signature by facsimile transmission (including a facsimile delivered via the Internet), by electronic mail in “portable document format” (“.pdf”) or similar format intended to preserve the original graphic and pictorial appearance of a document, or through the use of electronic signature software (e.g. DocuSign, AdobeSign, HelloSign) will have the same effect as physical delivery of the paper document bearing an original signature.
  1. SECURITY AND PRIVACY

    • Celigo Security.To provide You the Services under the Terms, and in the processing of Customer Data and Customer Process Data, taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing the Customer Data and Customer Process Data, Celigo will implement and maintain appropriate technical and organizational measures to ensure a level of security of the Processing of Customer Data and Customer Process Data appropriate to the risk and in accordance with industry standards. In the event of a security Incident defined by Applicable Laws as reportable to authorities, Celigo will notify You, or the owners of Personal Data or Personal Information You have custody of, in accordance with Applicable Laws. For Customer Process Data, Celigo will notify You, for You to notify any affected persons.Your Security Responsibilities.You are responsible for:(a) ensuring the use of secure FTP services or endpoints for Your security and privacy requirements, including, but not limited to, API endpoints and FTP transfers, that Your integrations interact with via Celigo Tools and processes. (Specifically, You are responsible for (A) ensuring encryption for the Customer Process Data flowing to or from the endpoint, to or from Celigo service data center, and (B) selecting an appropriately encrypted endpoint).(b) managing the access to the Celigo Tools used and ensuring appropriate role-based access.

      (c) notifying Celigo at [email protected] if You detect or suspect a security Incident related to integrator.io.

      (d) Ensuring that any Payment Card Data (as defined in PCI-DSS) is tokenized data only (no PAN or other PCI sensitive data as defined by PCI-DSS.

      (e) Ensuring you have executed a BAA before initiating the Processing of any HIPAA PHI or ePHI.

      (f) Ensuring you have executed a DPA before initiating the Processing of any Personal Data where a DPA is required by Data Protection Legislation.

      Celigo Privacy Policy.

      You acknowledge Your use of the Services is subject to the Celigo Privacy Policy, and You agree to the Celigo Privacy Policy. The Celigo Privacy Policy identifies how Celigo collects, stores, protects, and uses certain information collected about You to operate and provide the Services.

      DPA.

      To the extent required by Data Protection Legislation, including GDPR and UK GDPR, and United States privacy laws, including CCPA, the parties will execute Celigo’s DPA (provided to You upon request) in order for Celigo to lawfully Process Personal Data that (a) belongs to residents of the European Union, the European Economic Area and/or member states, United Kingdom, Switzerland, and United States, and (b) You are the controller (defined in Data Protection Legislation) of. If the parties enter into a DPA, You shall submit to Celigo for Processing only the Customer Process Data specified in the DPA.

      Aggregated Data.

      Celigo will be free (during and after the expiration or termination of the Terms or the Services), without obligation to You, to collect, develop, create, extract, compile, synthesize, analyze, use, and/or commercialize, or share with third parties, Aggregated Data for any purpose, subject to any restrictions imposed by applicable Data Protection Legislation or United States privacy laws.

      Credentials.

      In providing Support or Professional Services, or allowing You to use features designed to interoperate with iPaaS Integration Apps, Celigo may need access to Your Credentials. If You agree to reveal to Celigo Your Credentials, You shall provide Credentials with sufficient permissions via a secure Enterprise Password Management System for Celigo Representatives to install and/or configure Subscription Services for all applications integrated, perform Support obligations, or allow access to iPaaS Integration Apps or other accounts on the Subscription Services. Upon providing Your Credentials to Celigo, You grant Celigo permission to access Your accounts to perform the actions mutually agreed. You acknowledge and agree there are risks in giving Celigo access to Credentials, including but not limited to damage, loss, or destruction to Your hardware, software, files, data (including Customer Process Data and Customer Data), or environments (technical, network, systems, servers, or computer), which may occur during, or as a result of, having access to Credentials. You acknowledge and agree that (a) Section 19 (Indemnification) on Celigo Indemnification does not apply to Claims involving Your Credentials, and (b) TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL CELIGO’S AND ITS AFFILIATES’ TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR RELATED TO YOUR CREDENTIALS EXCEED THE GENERAL LIABILITY CAP (DEFINED IN SECTION 20 (LIMITATION OF LIABILITY).

  1. LICENSE

    • Subscription Services.Subject to these Terms, Celigo grants You a worldwide, non-exclusive, non-transferable, non-assignable (except as set forth in Section 23 (Miscellaneous)), and non-sublicensable license to access and use the Subscription Services identified in a Quote solely to support the internal business operations of You and Your Affiliates for the Subscription Period according to these Terms and the Documentation. Celigo reserves all rights not specifically granted.Evaluation. If You use the Subscription Services for evaluation, internal testing, free trial, or proof of concept, without paying Celigo Fees, Celigo grants You a revocable, worldwide, non-exclusive, non-transferable, non-sublicensable, and non-assignable (except as set forth in Section 23 (Miscellaneous)) license to access and use the Subscription Services identified solely for Your own non-production, internal evaluation to test the Subscription Services according to the Documentation (“Evaluation Right”). Each Evaluation Right shall be for the Subscription Period mutually agreed by the parties at the commencement of the Evaluation Right, but if the parties do not specify a Subscription Period in a Quote, the Subscription Period shall not exceed thirty (30) days, subject to Celigo’s right to terminate the Evaluation Right in its sole discretion at any time. The Evaluation Right will be at no Fees, unless You exceed the Subscription Period or scope of the Evaluation Right, or do not comply with these Terms or the Documentation. Your Evaluation Right may be limited in functionality and features, and Celigo may change the limits at its sole discretion without notice. You acknowledge and agree that (a) Celigo provides Evaluation Rights “AS IS” with no warranties or Support, (b) Section 19 (Indemnification) on Celigo Indemnification does not apply to Evaluation Rights, and (c) TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL CELIGO’S AND ITS AFFILIATES’ TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF OR RELATED TO THE EVALUATION RIGHT EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100).
  1. ACCEPTABLE USE

    • You must not: (a) conduct activity designed to overload, harm, impede the normal functioning, damage, disable, overburden, or impair the Services (or network connected to the Services); (b) make generally available to third parties as a billable service, resell, redistribute, package, repackage, sell, rent, sub-rent, lease, sub-license, sublease, encumber, or otherwise transfer the Services or any part of it; (c) use unauthorized means to modify, reroute, or gain access to the Services (e.g. hacking, password mining) or attempt to carry out these activities; (d) use a malicious automated process or service (such as Malware bots, scripts, data gathering or extraction methods, spiders, or periodic cachings of information stored by Celigo) to access or use the Services, or accounts, computer systems, or networks connected to the Services; (e) violate the allocations and amounts, and the features and functionality provided in a Service; (f) use the Services to violate Applicable Laws or distribute Malware (You specifically agree not to upload files or Customer Process Data to Subscription Service for Celigo to Process that are infected with Malware); (g) distribute, Post, or use Content You don’t have the right to (i.e. securities violations, under contractual or fiduciary relationships (e.g. non-disclosure agreement breach) or is illegal (i.e. violates or infringes the Intellectual Property rights or the privacy or publicity rights of any natural person or entity (e.g. attempt to obtain unauthorized access to Services, or Celigo’s or Third-Party Providers’ accounts, systems, networks, servers, computers, or databases)); harm minors (e.g. child pornography); mine information to obtain Personal Information or Personal Data; discredit or disparage Celigo, Celigo Affiliates, Third-Party Providers, or a third party)); (h) disclose, conduct, perform, publicly display, publish, or republish the results of benchmark, performance, comparison, or competitive tests or analysis involving the Services for any reason or purpose without Celigo prior written approval; (i) reverse-engineer (including reverse compiling to ensure interoperability), decompile, disassemble, modify, translate, or make any attempt to discover or gain access to the source code, source files, underlying algorithms of Celigo Intellectual Property, or structure of all or any portion of Services, or create derivative works from Services; (j) violate Celigo’s copyright fair use policy (Section 11 (Copyright Complaints and Removal Policy); (k) forge TCP/IP packet or email headers or manipulate Celigo’s or a third party’s Identifiers or message or newsgroup posting in order to disguise the origin of Content; (l) Post Content that contains misrepresentations to the Site; (m) Post unsolicited or unauthorized advertising, promotions, junk mail, spam, chain letters, class action lawsuits, charitable appeals, pyramid schemes, or other solicitations to the Site; (n) impersonate a natural person, including a Celigo Representative, or misrepresent Your affiliation with a natural person or entity; (o) use meta tags or “hidden text” with Celigo’s or Third-Party Providers’ Identifiers; (p) remove Celigo proprietary or copyright notices from the Services; (q) reproduce the Subscription Services, or any component thereof; (r) build a similar or competitive product or service; or (s) use a Service in any manner not authorized by the Terms.To the extent required by Applicable Laws, Celigo will make available to You information reasonably required to ensure Services interoperability (such information considered Confidential Information and subject to Section 12 (Confidential Information)) with Your independently managed products or services, upon Your written request identifying relevant details of the products or services which interoperability is sought and the information needed, provided that You first pay Celigo any outstanding Fees.Celigo retains the right to block, delete, or otherwise prevent delivery of any file, email, or other communication to or from the Services.You agree to comply with Services use restrictions detailed in the Documentation for the specific Services.Integrator.io.With respect to Your use of integrator.io, You agree that You are responsible for (a) the establishment and termination of user accounts within integrator.io, or management of the OpenID connect based Single Sign On (“SSO”) environment; (b) keeping Your Credentials secure for integrator.io; (c) rotation of end point API access tokens or Credentials; (d) ensuring the supervision, management, and control of the use of Celigo Services by Your Representatives; (e) reviewing notifications from Celigo about changes to integrator.io; (f) any resources created with integrator.io; (g) backing up data, including Customer Process Data and Customer Data, within Your software as a service (“SaaS”) endpoints integrator.io is connecting to; (h) developing Your own disaster recovery and business continuity plans that address the inability to access or utilize Celigo Services; (i) notifying Celigo at Email: [email protected] if You detect or suspect a security Incident related to integrator.io.

      Content.

      Ownership. You agree that You are either the original owner of Content You Post to the Site or Services, or You have the necessary rights and permissions to authorize Celigo to use or processYour Content. You agree to provide Celigo evidence of such rights and permissions if Celigo requests.

      Back-up. You are responsible to back-up Your Content. Celigo is not a Content-archiving service and does not sell Content storage services. If Applicable Laws prohibit exclusion of liability for lost Content, Celigo will only be liable for cost of commercially reasonable and customary efforts to recover the lost Content from Your last available back-up.

      Site.You are solely responsible for the Content You Post to the Site, and the consequences thereof. You grant Celigo and Celigo Affiliates a royalty-free, fully-paid, transferable, sublicensable, irrevocable, worldwide, nonexclusive license to make, have made, sell, use, disclose, reproduce, modify, make derivative works based upon, distribute, perform and display the Content You Post to the Site. For clarity, Content does not include Customer Processed Data. You grant Site users a royalty-free, fully-paid, transferable, sublicensable, irrevocable, worldwide, nonexclusive license to make, have made, sell, use, disclose, reproduce, modify, make derivative works based upon, distribute, perform and display the Content You Post to the Site, subject to these Terms. Once You Post Content to the Site, the Content becomes public, and is not protected as Confidential Information under Section 12 (Confidential Information). Celigo does not promise to archive, retain, or store Content on the Site for any length of time. You are responsible for keeping a back-up of Content You Post on the Site.

      Permitted Third Party Usage.

      You may permit Your Affiliates, and Outsourced Providers to use the Services provided that: (a) You provide prior written notice to Celigo of the names and contact information of the Affiliates, and Outsourced Providers (b) the Affiliates and Outsourced Providers shall only use and/or operate the Services, in accordance with the rights granted herein and Services use restrictions (including Section 7 (Acceptable Use) and Section 24 (Specific Services Terms)), (c) the actual usage of Services by You, Your Affiliates, and Outsourced Providers, in aggregate shall not exceed the Proof of Entitlement You purchased, (d) You shall ensure that Your Affiliates and Outsourced Providers are aware of and comply with these Terms and the Documentation; and (e) You shall be responsible for the acts and omissions of Your Affiliates’, and Outsourced Providers’ use of the Services.

      License by You to Host and/or Process Customer Process Data and Customer Data.

      You own all right, title, and interest to Customer Process Data. You are solely responsible for the accuracy, completeness, appropriateness, quality, and legality of all Customer Process Data and Customer Data, and for obtaining all rights related to Customer Process Data required for Celigo to perform the Services. You hereby grant Celigo, Celigo Affiliates, and their Representatives a worldwide, fully paid, royalty-free, transferable, sub-licensable, non-exclusive license and right to use, reproduce, host, copy, Process, transmit, distribute, modify, translate, and create derivative works of Customer Process Data and Customer Data, and run, or display Customer Process Data and Customer Data, and any program code created by or for You using the Services (a) as necessary for Celigo to provide the Services, perform Agreement obligations, and exercise Celigo’s rights, titles, and interests under this Agreement; (b) as necessary to provide Support, address Services issues and requests, or enhance, maintain, or improve the Services; (c) as required by Applicable Laws; (d) as requested by You; or (e) to investigate or address a security Incident.

  1. SUSPENSION AND TERMINATION OF SERVICES

    • Celigo may suspend or terminate the Services at any time, in its sole discretion, if Celigo reasonably believes in good faith You are in violation of the Terms or Applicable Laws, and Your material breach cannot be cured within 30 days.
  1. CELIGO PROPRIETARY RIGHTS

    • All contents of the Site and Services, including but not limited to logos, designs, text, software, technical drawings, configurations, graphics, files, icons, images, audio clips, and their compilation (meaning the selection, collection, assembly, arrangement) and Celigo Confidential Information belong to Celigo, and/or its Third-Party Providers or Celigo Affiliates.Celigo or its Third-Party Providers or Celigo Affiliates own and reserve all right, title, and interest in and to the Services and all hardware, software, and other items used to provide the Services, other than the rights expressly granted to You to use the Services and Celigo Confidential Information. No title to, or ownership of, Intellectual Property or proprietary rights related to the Services or Celigo Confidential Information is transferred to You pursuant to these Terms.You shall not copy the Site, or any part of the Site.Feedback.In the event You make Feedback that Celigo adopts for its products or services, such Feedback shall be deemed automatically assigned under these Terms to Celigo, and become the sole and exclusive property of Celigo. Prior to submitting Feedback to Celigo, You agree to obfuscate Your Personal Data or Personal Information, and Confidential Information.Celigo Identifiers.

      “Celigo” and the Celigo logo are registered trademarks of Celigo, Inc. in the United States and other countries. “Integration App”, “Integrator”, “SmartConnector”, and “integrator.io” are unregistered trademarks of Celigo, Inc. in the United States and other countries. All other trademarks, service marks, registered trademarks, or registered service marks are the property of their respective owners.

      This Section 9 (Celigo Proprietary Rights) survives expiration or termination of the Terms or the Services.

  1. THIRD-PARTY PRODUCTS, CONTENT, WEBSITES; MARKETPLACE

    • Third-Party Products.The Services may include Third-Party Products. Celigo grants You the specific rights the Third-Party Providers provide Celigo in the Third-Party Products.Site User Content.Celigo generally does not review or endorse Content Posted by Site users. Celigo does not support, or make promises on the reliability of, views, opinions, recommendations, or advice in Site user Content. You agree Celigo shall not be responsible for Your use of Site user Content, including Your exposure to such Content.Third Party Websites.The Site provides links to third party websites for Your convenience. Celigo makes no representations or endorsements, and is not responsible for the reliability of statements made on third party websites. You access such third party websites at Your own risk.

      Marketplace.

      Celigo may provide You with access to the Marketplace. You acknowledge that iPaaS Integration Apps purchased or used by You through the Marketplace may be provided by third parties and not Celigo. Celigo makes no endorsements, representations, or warranties (including representations or warranties regarding compliance with Applicable Laws) regarding such third party iPaaS Integration Apps. You may need to enter into a relationship or agreement directly with the third parties for such iPaaS Integration Apps. iPaaS Integration Apps purchased or used through the Marketplace may be governed exclusively by third party terms and conditions You agree with the third parties, not by these Terms. Celigo does not provide advice, Services, or Support with respect to the iPaaS Integration Apps not built by Celigo, even when purchased or used from the Marketplace.

      If You install or enable the iPaaS Integration Apps, for use with the Subscription Services, You grant Celigo permission to allow the third party provider of the iPaaS Integration Apps to access Customer Data, Customer Personal Information or Personal Data, or Customer Process Data, as required for the interoperation of the iPaaS Integration Apps with the Subscription Services. Celigo is not responsible

      for disclosure, modification, or deletion of data resulting from access by iPaaS Integration Apps.

      Subscription Services may contain features designed to interoperate with iPaaS Integration Apps. To use such features, You may be required to obtain access to iPaaS Integration Apps from third party providers, and may be required to grant Celigo Credentials to access Your accounts on the Subscription Services.

      If the third party providers of iPaaS Integration Apps cease making the iPaaS Integration Apps available for interoperation with Subscription Services features on terms acceptable to Celigo, Celigo may cease providing the features.

  1. COPYRIGHT COMPLAINTS AND REMOVAL POLICY

    • Celigo respects the Intellectual Property of others and will respond to alleged copyright infringement notices that comply with Applicable Laws.Celigo reserves the right to close Your accounts or remove information alleged to violate copyright laws or these Terms.Report alleged copyright violations to: Attn: Copyright Agent, Celigo, Inc., 3 Lagoon Dr, #2130, Redwood City, CA 94065, Email: [email protected]
  1. CONFIDENTIAL INFORMATION

    • Customer Data and Customer Process Data Disclosures.You agree to disclose to Celigo and its Third Party Providers only Personal Information, Personal Data, Customer Data, and Customer Process Data in which You have obtained consent from data subjects (identified or identifiable natural persons), or otherwise have the right to disclose to Celigo for Processing.HIPAA Data.Unless the parties execute a BAA that is incorporated by reference into, and made part of, these Terms: (a) You agree not to upload to the Subscription Services any HIPAA Data, and (b) Celigo will have no liability for HIPAA Data, notwithstanding anything to the contrary in the Terms, HIPAA, or Applicable Laws. If You are permitted by the BAA to submit HIPAA Data to the Subscription Services, then You may submit HIPAA Data to the Subscription Services only by uploading it as Customer Process Data.Protection.Both parties agree to: (a) treat each party’s Confidential Information with the same degree of care a party treats its own Confidential Information, but not less than reasonable care; (b) use each party’s Confidential Information only in connection with these Terms and the Services; and (c) only share Confidential Information with Representatives and Affiliates who have a need to know to carry out these Terms or as needed for the Services, and signed a non-disclosure agreement to treat Confidential Information as confidential or have confidentiality obligations (e.g. professional responsibility rules) no less restrictive than this Section 12 (Confidential Information).

      Compelled Disclosures.

      If the receiving party is requested or compelled by Applicable Laws to disclose the disclosing party’s Confidential Information (“Compelled Disclosure”), the receiving party’s disclosure of such Confidential Information shall not constitute a breach of these Terms provided that the receiving party gives the disclosing party prompt written notice, unless notice is prohibited by Applicable Laws, so that the disclosing party may attempt to seek an appropriate remedy. The receiving party shall (a) disclose only that portion of the Confidential Information necessary to comply with Applicable Laws, (b) assert the privileged and confidential nature of Confidential Information against the third party seeking disclosure; (c) reasonably cooperate with disclosing party to protect against disclosure and/or obtain a protective order narrowing the scope of the Compelled Disclosure at disclosing party’s expense; and (d) continue to treat Compelled Disclosures as confidential in other respects.

      Confidential Information Return.

      Confidential Information always remains the property of its owner. Upon termination or expiration of the Terms, or upon written request of the disclosing party, the receiving party shall promptly return to the disclosing party or destroy, to the extent commercially and technically feasible, all tangible materials (e.g. notes) and copies thereof, containing the Confidential Information, except the receiving party may retain copies of disclosing party’s Confidential Information (a) stored electronically on data archives or back-up systems or (b) to comply with Applicable Laws applicable to the receiving party, provided that such copies shall be subject to the terms of these Terms while in receiving party’s possession.

      This Section 12 (Confidential Information) survives expiration or termination of the Terms or the Services.

  1. SUPPORT AND SERVICES UPDATES

    • Celigo describes its Support options at https://www.celigo.com/legal/agreements-support-policies/, which Celigo may update at its sole discretion.Celigo may end of life Services and related Support, add or remove functionalities or features, or suspend or stop the Services and Support altogether, (a) without notice for Services and Support Celigo provides for no Fees, (b) with notice according to the life cycle for the specific version or release of the Services and Support Celigo provides for a Fee, subject to Celigo continuing to provide Services and Support according to a Quote until the Subscription Period end date.
  1. PROFESSIONAL SERVICES

    • SOW.You may receive Professional Services, as further described in a mutually agreed SOW or Quote. Each SOW or Quote will include: (a) a description of the services, (b) a Fee for the services. The Fee will be as follows: (a) for Time and Materials, an hourly rate and the estimated number of hours; (b) for Fixed Price, a total Fee. Expense reimbursements, when applicable, will be in addition to the Fee. Celigo will perform Professional Services with Representatives under Celigo’s sole direction.Resources.Resources for Professional Services shall be mutually agreed no later than ten (10) business days prior to the Professional Services start date. You shall provide resources as reasonably necessary for Celigo to timely complete the Professional Services.Changes or Delays.If You request changes to a SOW or cause delays in the completion, additional Fees may apply, including (a) Fees for additional hours to transfer information, or re-plan or re-start the Professional Services, or (b) a Re-engagement Fee, calculated at 15% of the total fixed Fees estimated under a SOW. If You cause delays in the completion by more than ten (10) business days, Celigo may terminate the SOW or Quote for cause under Section 17 (Duration; Termination).

      Celigo Materials.

      Celigo shall own all rights, title and interest in and to the Documentation, templates, training materials, recordings, notes, drawings, designs, inventions, systems, processes, development, discovery, work of authorship, equipment, methods, and other items (collectively the “Celigo Materials”), including enhancements, improvements, and derivatives, Celigo may provide You as part of the Professional Services (including Intellectual Property therein, but excluding Your Confidential Information and Your Identifiers that may be included in the Celigo Materials, collectively, “Your Property”). Celigo shall have the right to use Your Property solely to provide Professional Services to You. Until the expiration or termination of these Terms or the Services, after Your full payment of the SOW for the Professional Services, Celigo will provide You a worldwide, royalty free, limited, non-exclusive, non-sublicensable, non-transferable, and terminable license to use Celigo Materials solely for Your internal operations in connection with Your authorized use of the Services.

      Celigo Tools.

      Celigo shall own any Intellectual Property in the tools, libraries, know-how, ideas, concept, techniques, and expertise Celigo uses to develop the Celigo Materials (“Celigo Tools”). Nothing herein shall be construed to assign or transfer Intellectual Property in the Celigo Tools. To the extent Celigo Tools are delivered with or as part of the Celigo Materials, they are licensed, not assigned, to You, on the same terms as the Celigo Materials.

      Customer Intellectual Property.

      Customer acknowledges and agrees Professional Services will not result in Customer Intellectual Property or Deliverables owned by Customer. In general, Professional Services relate to the configuration of Customer requested integrations in connection with Services, not custom Deliverables.

  1. FEES; TAXES

    • Fees.Celigo offers no cost and paid Services. If You choose a paid Service, You agree to pay the Fees according to the Quote or SOW. Celigo reserves the right to change its Fees and discounts, but such changes will not apply to completed purchases, or unexpired Quotes or SOWs pending Your acceptance. After a Subscription Period ends, Your use of the Services will be charged at the then-current Price List.Discounts. Any Fees discounts You receive in a Quote or SOW are one-time only, and do not apply to renewal terms.Taxes.All Fees for Services do not include Taxes. Celigo may calculate Taxes payable by You based on the billing information You provide at the time of purchase. All Fees are payable in full and without reduction for Taxes. You shall not withhold from Fees the Taxes imposed upon You by a taxing authority. You are responsible for paying all Taxes associated with Fees, excluding Celigo income and payroll taxes. If You are legally entitled to an exemption from the payment of Taxes, You will provide Celigo with legally sufficient tax exemption certificates for each taxing jurisdiction for which You claim exemption. Unless prohibited by law, Celigo will apply the benefits of a requested tax exemption to charges after the date Celigo receives and reasonably processes the tax exemption certificates.

      Currency.

      You will pay the Fees in the currency in the Quote. You are responsible for all charges related to using the purchased Services (including data charges and currency exchange settlements).

      Non-refundable and No Cancellation.

      Except as specifically set forth in these Terms, all payments are non-cancelable, and all payments made (including shipping, handling, and Taxes) are non-refundable, to the extent not prohibited by Applicable Laws, or except in jurisdictions where an item is refundable.

      This Section 15 (Fees; Taxes) survives expiration or termination of the Terms or the Services.

  1. BILLING/PAYMENT

    • If You select a paid Service, You must provide Celigo current, complete, accurate, and authorized payment method information. You authorize Celigo or its third-party payment processing service provider to charge Your payment method for the Services You select.After You sign a Quote and create a Celigo account (e.g. integrator.io Account), Celigo will provide You a Proof of Entitlement. If You do not create a Celigo account within three (3) business days of the Quote effective date, You hereby consent to Celigo creating the Celigo account for You.You shall pay Fees according to the payment terms in a Quote. Failure to pay expenses, Taxes, or Fees may result in Celigo suspending or terminating Services.At Celigo’s discretion, past due amounts may accrue a late Fee equal to the lesser of (a) 1.5% per month, or (b) the maximum Applicable Laws allow.This Section 16 (Billing/Payment) survives expiration or termination of the Terms or the Services.
  1. DURATION; TERMINATION

    • Subscription Services Renewals.The Quotes indicate the start (if not indicated, the last signature date on the Quote) and end dates for each Subscription Period. The Subscription Services and these Terms automatically renew for additional terms at the then-current Celigo Price List for the same duration as the initial Subscription Period, at the end of each Subscription Period, unless either party notifies the other party in writing of its intent not to renew the Subscription Services at least thirty (30) days’ prior to the end of the Subscription Period.Termination for Cause.Either party may terminate these Terms or the Services for cause with written notice to the other party of a material breach of the Terms (a) upon thirty (30) days’ written notice if such breach remains uncured after the expiration of such period, or (b) immediately if such breach cannot be cured. Outstanding Fees shall be paid by each party to the other party within 30 days of the effective termination date.Your Material Breach.If Celigo terminates the Terms or the Services because of Your material breach, You:

      (a) agree to pay Fees for Professional Services rendered up to the effective termination date, accrued expenses You approved, and a Fee determined as follows for resources allocated to SOWs not yet expired or completed:

      (1) Time and Materials (“T & M”), Invoiced On Delivery. For Professional Services invoiced upon delivery of Deliverables, and invoiced based on T & M, if a Statement of Work or the Terms terminates, You shall pay the hours Celigo delivered.

      (2) Fixed Fee, Invoiced in Advance (i.e. Self-Paced Implementation). For Professional Services invoiced based on fixed Fee, invoiced in advance of Celigo completing Professional Services, if a SOW or the Terms terminates, You shall pay the entire Professional Services Fee, and receive no refunds for Fees already paid.

      (2) Fixed Fee, Invoiced on Delivery. For Professional Services invoiced based on fixed Fee, invoiced upon delivery of Deliverables, if a SOW or the Terms terminates, You shall pay Celigo the hours for the delivered efforts at Celigo’s then-current Price List.

      (b) remain liable for all Subscription Services and Support Fees until the Subscription Period end dates.

      Celigo Material Breach.

      If You terminate the Terms or the Services because of Celigo material breach, Celigo will refund You prepaid Fees for Services not rendered after the effective termination date.

      Termination for Insolvency.

      Either party may immediately terminate these Terms or the Services if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to an Insolvency Proceeding. The Subscription Services is a service, not a good, provided pro rata over the Subscription Period on a daily basis. Your use of the Services after an Insolvency Proceeding commencement is an actual, necessary cost and expense of preserving Your estate. Nothing herein limits Celigo’s rights of offset or recoupment. Celigo is entitled to offset or recoup the value of Services provided after You become subject to an Insolvency Proceeding against any Claim brought by or on behalf of You, including state or federal preference, fraudulent transfer, or other avoidance action.

  1. LIMITED WARRANTIES AND DISCLAIMERS

    • Mutual Warranties.Each party represents and warrants that: (a) these Terms has been duly authorized, executed, and delivered, and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of these Terms; (c) the execution, delivery, and performance of these Terms does not violate any other agreement to which it is a party or by which it is otherwise bound; and (d) it has the right to disclose its Confidential Information.Your Warranties. You represent and warrant that: (a) You are not on the U.S.’ Specially Designated Persons (“SDN”) list and are not located in or a national resident of any country on the U.S.’ Sanctions Programs and country list; and (b) You will not conduct transactions with countries, persons or entities on OFAC’s SDN lists in violation of applicable U.S. laws.Celigo Warranty.Celigo warrants that it owns or has obtained all necessary rights from its Third-Party Providers to the Services. The Services are not warranted to be totally error-free.

      Limited Subscription Services Warranty.

      If You enter into a paid transaction for Subscription Services with Celigo as evidenced by a Proof of Entitlement, in the event You report to Celigo, during the Subscription Period, the Subscription Services do not materially conform with the Documentation under normal use, and such non-conformity is reproducible and verifiable, Celigo, at Celigo’s sole discretion, as Your sole remedy, shall either (a) respond to the non-conformity according to its Service Level Agreement and Celigo Support Policies, (b) cure the non-conformity within thirty (30) days of verifying and reproducing the non-conformity You report, or (c) terminate the Subscription Services, and refund the prepaid Subscription Services not rendered. This Limited Subscription Services Warranty excludes non-conformity resulting from accidents, abuse, modifications, misapplication, or use of Subscription Services in a manner materially inconsistent with the Terms or the Documentation.

      Limited Professional Services Warranty.

      If You enter into a paid transaction for Professional Services with Celigo as evidenced by a Proof of Entitlement, Celigo warrants that the Professional Services shall be performed in a professional and workmanlike manner with reasonable care, knowledge, experience, qualifications, resources, and skills. In the event You notify Celigo of non-conforming Professional Services within seven (7) days of receiving the non-conforming Professional Services, and such non-conforming Professional Services do not result from Your fault or delay, Celigo, at its discretion, as Your sole remedy, shall either (a) re-perform the non-conforming Professional Services at no additional charge, or (b) terminate the Professional Services, and refund the prepaid Professional Services not rendered.

      Disclaimer of Warranties.

      EXCEPT FOR EXPRESS WARRANTIES PROVIDED IN THIS SECTION 18 (LIMITED WARRANTIES AND DISCLAIMERS), CELIGO MAKES NO (AND CELIGO SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES OR CONDITIONS: (A) ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (B) OF: (I) SATISFACTORY QUALITY; (II) FITNESS FOR A PARTICULAR PURPOSE; (III) NON-INFRINGEMENT; OR (IV) INTEROPERABILITY WITH THIRD-PARTY PRODUCTS OR SERVICES; AND (C) THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OF IMPLIED WARRANTIES. IN SUCH AN EVENT, THE ABOVE EXCLUSIONS WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.

      This Section 18 (LIMITED WARRANTIES AND DISCLAIMERS) surives expiration or termination of the Terms or the Services.

  1. INDEMNIFICATION

    • Your Indemnification. You will defend,indemnify, and hold harmless Celigo, its Affiliates, and their respective officers, Representatives, directors, successors and assigns (“Celigo Indemnified Parties”), from and against any Claims and Losses arising out of or relating to: (a) Your, Your Affiliates’, Your Representatives’, or Outsourced Providers’ breach of these Terms; (b) Your, Your Affiliates’, Your Representatives’, or Outsourced Providers’ misappropriation or infringement of any Intellectual Property rights (to the extent such infringement or misappropriation is not the result of Celigo’s actions); (c) Your, Your Affiliates’, Your Representatives’, or Outsourced Providers’ use of the Services in violation of Services use restrictions (including Section 7 (Acceptable Use)); (d) Your Content, Your Personal Data, Customer Data, and Customer Process Data; or (e) the acts and omissions of You, Your Affiliates’, Your Representatives’, and Outsourced Providers.Celigo Indemnification.If You enter into a paid transaction with Celigo as evidenced by a Proof of Entitlement, Celigo will defend You, Your Affiliates, and their officers, Representatives, directors, successors and assigns (“Your Indemnified Parties”), against any third party Claim brought against Your Indemnified Parties alleging the Services infringe a United States registered patent, registered trademark, or copyright and indemnify Your Indemnified Parties from Losses finally awarded against Your Indemnified Parties by a court of competent jurisdiction as a result of, or for amounts paid by Your Indemnified Parties under a Claim settlement approved by Celigo in writing. If Celigo receives information about an infringement or misappropriation related to the Services, Celigo may in its discretion and at no cost to You (a) modify the Services so they are no longer claimed to infringe or misappropriate, (b) obtain a license for You to continue using the Services in accordance with these Terms, or (c) terminate Your rights to the Services upon thirty (30) days’ written notice and refund You prepaid Fees for Services not rendered after the effective termination date. Celigo shall have no indemnification obligations with respect to (1) Claims if Your Indemnified Parties are in material breach of this Agreement; (2) modification or alteration of the Services by anyone other than Celigo or without Celigo’s written approval, or (3) Claims arising out of use of the Services, or any part thereof, (A) in combination with software, technology, processes, equipment, services, or other products not supplied by Celigo, or explicitly supported in the Documentation, if such Claims would have been avoided without such combination, or (B) not in accordance with these Terms.Exclusive Remedy.Section 19 (Indemnification; Celigo Indemnification) states Celigo’s sole and exclusive remedy against, and Celigo’s sole liability to, You for Claims under Section 19 (Indemnification; Celigo Indemnification).

      Indemnification Process.

      Indemnification obligations shall be subject to the party seeking indemnification (“Indemnified Party”) (a) notifying the other party (“Indemnifying Party”) in writing within ten (10) days of receiving information of any threatened or actual Claim; provided, however, the failure to give notice by the Indemnified Party shall not relieve the Indemnifying Party’s obligations except to the extent that the Indemnifying Party is prejudiced by such failure; (b) giving the Indemnifying Party exclusive control and authority over the defense or settlement of such Claim, except the Indemnifying Party shall not settle a Claim without the Indemnified Party’s consent when the settlement does not release Indemnified Party of all liability, or requires the Indemnified Party to make admissions, perform actions, or pay moneys or other legal value; (c) not entering into any settlement or compromise of any Claim without the Indemnifying Party’s prior written consent; and (d) providing reasonable assistance requested by the Indemnifying Party at Indemnifying Party’s expense.

      This Section 19 (Indemnification) survives expiration or termination of the Terms or the Services.

  1. LIMITATION OF LIABILITY

    • EXCEPT (a) DATA PROTECTION CLAIMS, (b) SECTION 19 (INDEMNIFICATION) OBLIGATIONS, (b) LIABILITY WHICH, BY APPLICABLE LAWS, CANNOT BE LIMITED (E.G., SERIOUS BODILY INJURY OR DEATH CLAIMS ARISING FROM GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT), (c) YOUR PAYMENT OBLIGATIONS (SECTION 15), (d) YOUR BREACH OF SECTIONS 7 (ACCEPTABLE USE), 9 (CELIGO PROPRIETARY RIGHTS), 12 (CONFIDENTIAL INFORMATION), 18 (YOUR WARRANTIES) RELATING TO YOUR COMPLIANCE WITH APPLICABLE LAWS RELATING TO EXPORTS, AND (e) YOUR VIOLATION OF CELIGO INTELLECTUAL PROPERTY RIGHTS (“EXCLUDED CLAIMS”), TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EACH PARTY’S AND ITS AFFILIATES’ TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OR LOSSES OF ANY NATURE ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL FEES PAID BY YOU TO CELIGO FOR THE SPECIFIC SERVICES UPON WHICH THE FIRST EVENT GIVING RISE TO LIABILITY WAS BASED (“LIABILITY EVENT”) DURING THE TWELVE (12) MONTHS PRECEDING THE LIABILITY EVENT DATE (“GENERAL LIABILITY CAP”).IN NO EVENT WILL CELIGO BE LIABLE FOR YOUR COSTS TO PROCURE SUBSTITUTE GOODS OR SERVICES.THE LIMITATIONS AND EXCLUSIONS APPLY EVEN IF THIS REMEDY DOES NOT FULLY COMPENSATE A PARTY FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT WILL CELIGO OR ITS AFFILIATES BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, LOSS OF PROFITS OR REVENUE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOSS OR USE OF DATA (INCLUDING CUSTOMER DATA AND CUSTOMER PROCESS DATA)) HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE, OR OTHER LIABILITY THEORY, EVEN IF CELIGO HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH LOSSES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THE ABOVE EXCLUSIONS WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.IN THE CASE OF DATA PROTECTION CLAIMS, CELIGO’S AND ITS AFFILIATES’ TOTAL LIABILITY TO YOU AND YOUR AFFILIATES FOR ALL CLAIMS OR LOSSES OF ANY NATURE ARISING OUT OF OR RELATED TO THE DATA PROTECTION CLAIMS SHALL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (“DATA PROTECTION CLAIMS CAP”).This Section 20 (LIMITATION OF LIABILITY) survives expiration or termination of the Terms or the Services.
  1. GOVERNING LAW; VENUE; EQUITABLE RELIEF

    • Governing Law. These Terms will be construed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its choice of law rules, and without regard to the United Nations Convention on the International Sale of Goods.Venue. In the event of a Claim arising out of the Terms, the parties submit to exclusive venue in, and the exclusive jurisdiction of, federal and state courts, as applicable, located in San Francisco County or San Mateo County, California, U.S.A., subject to Section 21 (Governing Law; Venue; Equitable Relief) on Equitable Relief.Equitable Relief. Notwithstanding Section 21 (Governing Law; Venue; Equitable Relief) on Venue, either party may enforce a judgment, or seek equitable relief without having to prove actual damages or posting bond, from any court of competent jurisdiction.

      English is the language governing these Terms.

      This Section 21 (Governing Law; Venue; Equitable Relief) survives expiration or termination of the Terms or the Services.

  1. GOVERNMENT USERS

    • If You are a U.S. government entity or these Terms becomes subject to the Federal Acquisition Regulations, You acknowledge that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and licensed to the U.S. government as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212 (or successor sections).This Section 22 (Government Users) survives expiration or termination of the Terms or the Services.
  1. MISCELLANEOUS

    • Publicity. You hereby consent to Celigo using Your Identifiers in any customer or vendor lists, advertisements, websites, news or press releases, releases to professional or trade publications, or in any document that Celigo plans to file with the Securities and Exchange Commission or other government authority.Severability.In the event a provision of the Terms becomes or is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, the remainder of the Terms continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the parties’ intent.Force Majeure.In the event that either party is prevented from performing, or unable to perform obligations under the Terms due to a Force Majeure Event (except for Your obligations under Sections 15 (Fees; Taxes) and 16 (Billing/Payment)), the affected party’s performance will be excused and the time for performance extended for the period of delay or inability to perform due to such occurrence; provided that the affected party: (a) provides the other party prompt notice (to the extent possible) of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event. You understand that the Services may not be provided in countries listed on the Office of Foreign Assets Control sanction list and that Your rights to Services may be restricted in such countries and such prohibitions shall not constitute a Force Majeure Event.

      Integration.

      These Terms constitute the entire agreement between the parties and supersedes all prior agreements or communications between the parties with regard to the subject matter. Subject to Section 2 (Changes to These Terms), these Terms may not be amended or modified except by a writing signed by each party. The Terms supersedes and controls over conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation, or other document You issue. In the event of conflict, the following is the order of precedence: (a) Quote or SOW for the specific Quote or SOW only, (b) Terms, documents linked in the Terms for the subject matter only (e.g. Celigo Privacy Policy, Service Level Agreement, Celigo Support Policies).

      Assignment.

      You will not, directly, indirectly, by operation of law or otherwise, assign or transfer all or part of these Terms or its rights or delegate performance of its duties without the prior written consent of Celigo. Any attempted assignment or transfer by You without consent shall be void and of no effect. Either party may assign the Terms upon written notice, but without obtaining the other party’s consent: (a) to an Affiliate; or (b) in connection with a successor in interest in a merger, acquisition, reorganization, sale of all or substantially all of the assets, or other change of Control, provided however, if You assign the Terms to an assignee that Celigo does not want to do business with, Celigo may terminate the Terms and related Quotes and SOWs immediately with written notice. Subject to the foregoing, the Terms will be fully binding upon, inure to the benefit of, and be enforceable by, the parties and their respective permitted successors and assigns.

      Third Party Beneficiaries.

      Nothing in these Terms shall confer, or is intended to confer, on any third party any benefit or the right to enforce these Terms.

      Relationship.

      The parties enter into the Terms as independent contracting parties. Neither party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other party. These Terms will not be construed to create an association, joint venture, or partnership between the parties or to impose any partnership liability upon any party.

      Nonwaiver.

      The failure of either party to insist upon or enforce strict performance of any Terms provision or to exercise rights or remedies under the Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right, or remedy in that or any other instance; rather, the same will remain in full force and effect.

      Compliance with Laws.

      Celigo and You agree to comply with Applicable Laws, including but not limited to those relating to anti-corruption, anti-bribery (e.g. U.S. Foreign Corrupt Practices Act, as amended), and exports (including restrictions on destinations, end users, and end use, including without limitations, those of the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) and/or Department of Commerce’s Bureau of Industry and Security).

      Notices.

      Notice given by a party to any other party will be in writing and effective upon confirmed delivery as follows: (a) if to You, when sent via email or physical address specified in a Quote or otherwise on record for You; and (b) if to Celigo, when sent via email to [email protected] or

      3 Lagoon Dr., #130, Redwood City, CA 94065, Attn: Terms of Services Notices. A notice must specifically reference that it is a notice given under these Terms. Emailed notices will be considered given and received when the email is sent. You agree to accept service of process by mail.

      This Section 23 (Miscellaneous) survives expiration or termination of the Terms or the Services.