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.

For past terms of use of the Celigo platform, integrator.io, see Terms of Service archives.

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.