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Certent Terms and Conditions

Last Updated: July 2020

1. DEFINITIONS

  • 1.1 “Administrative Services” means the administrative services provided by Certent to Customer, as set forth in the Administrative Services Attachment(s) to an Order, if any.

  • 1.2 “Certent Platform” means Certent’s software platform consisting of Modules and any updates provided by Certent pursuant to this Agreement, each as available at websites designated by Certent.

  • 1.3 “Consulting Services” means the consulting services provided by Certent to Customer, as set forth in the Consulting Services Attachment(s) to an Order, if any.

  • 1.4 “Customer Data” means all data provided by Customer to Certent in connection with Customer’s use of the Subscription Services.

  • 1.5 “Documentation” means release notes applicable to the Subscription Services.

  • 1.6 “Fees” means the fees due by Customer to Certent for the Services as set forth on an Order and any subsequent invoice submitted in accordance with this Agreement; all Fees are in U.S. Dollars.

  • 1.7 “Filing Services” means the filing services provided by Certent in connection with SEC mandates, regulations and requirements, which may include XBRL filings, submissions and EDGARization services.

  • 1.8 “Implementation Services” means the services to implement the Subscription Services provided by Certent to Customer, as set forth in the Implementation Services Attachment(s) to an Order, if any.

  • 1.9 “Module” means one or more modules of the Certent Platform, including disclosure management modules, equity management modules, or both, as listed on an Order and described in the Subscription Services-Module Attachment to an Order, which may be subject to special terms and conditions as set forth on the Subscription Services-Module Attachment to an Order, if any. 1.10 “Order” means an order signed by both parties for Customer’s purchase of Services, including access to Modules or Products.

  • 1.11 “Participant” means any individual or entity listed by Customer or its agent as a “Participant” of any of Customer’s stock plan(s) in the Subscription Services.

  • 1.12 “Public” means the completion of an initial public offering, which shall be deemed to have occurred upon the earlier of (i) the effectiveness of a registration statement for Customer’s sale of securities under the Securities Act of 1933; or (ii) upon Customer becoming subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934.

  • 1.13 “Products” shall mean any additional features or functionality ordered by Customer and delivered by Certent pursuant to this Agreement and an Order that is in addition to the Modules and Services.

  • 1.14 “Services” shall mean the Administrative Services, Consulting Services, Filing Services, Implementation Services, Subscription Services, Support Services, Training Services, and any other services provided by Certent pursuant to this Agreement or any Order.

  • 1.15 “Subscription Services” means access to the Modules listed on an Order, access to the services listed as part of the Subscription Services on an Order and access to any Products listed on an Order, as set forth in this Agreement.

  • 1.16 “Subscription Term” means the Subscription Term indicated on the initial Order between the parties and any renewal of that term in accordance with this Agreement.

  • 1.17 “Support Hours” means Certent’s standard support hours as notified by Certent to Customer.

  • 1.18 “Support Services” means the services provided by Certent to Customer to support Customer’s access to the Subscription Services and Modules as set forth in this Agreement.

  • 1.19 “Training Services” means the standard services provided by Certent to Customer to train Customer in the use of the Subscription Services and, if designated on an Order and described in the Order or a statement of work signed by both parties, “Custom Training”.

  • 1.20 “Users” means any individual identified by Customer as authorized to access the Subscription Services.

2. SUBSCRIPTION SERVICES

  • 2.1 This Agreement shall commence on the Effective Date and shall remain in effect for the Subscription Term, unless terminated earlier in accordance with this Agreement. The Subscription Term indicated on the initial Order between the parties will automatically renew for consecutive 1-year periods, on the same terms and conditions as set forth in this Agreement and the applicable Order(s), as either may have been amended by the parties, unless either party gives the other a written notice of nonrenewal at least 30 days before the end of the then current Subscription Term.

  • 2.2 Subject to Customer’s compliance with this Agreement, Certent will provide the Subscription Services so as to enable Customer to access and use the Modules indicated in the Order in accordance with this Agreement by up to the number of Users indicated in the applicable Order for disclosure management modules or for up to the number of Participants indicated in the applicable Order for equity management modules (such number of Users or Participants referred to as the “Usage Capacity”). Customer acknowledges that in certain situations, the Usage Capacity may vary dependent on the Module to be accessed and used, as indicated in the Order.

  • 2.3 The Subscription Services will be available 24 hours per day, 7 days per week, including holidays. Certent will use reasonable efforts consistent with prevailing industry standards to maintain the Subscription Services in a manner which minimizes errors and interruptions in the Subscription Services. Subscription Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Certent or by third-party providers, or because of other causes beyond Certent’s reasonable control. Certent shall provide notification of scheduled service interruptions 24 hours in advance through notice in the “Announcements” section of the home page of the Certent Platform. Certent conducts scheduled maintenance approximately 12 times per year in connection with a new release or service pack. Certent will not schedule service interruptions during Support Hours. Upon receipt of notice that the availability of the Subscription Services has been interrupted, Certent will promptly take all reasonable steps to restore the Subscription Services as soon as is practicable. The Subscription Services will not be considered unavailable if the interruption is caused by scheduled or emergency maintenance, or causes beyond Certent’s reasonable control. If the Subscription Services are available less than 99.4% in any given month (excluding any scheduled or emergency maintenance or interruptions beyond Certent’s reasonable control), Certent will provide Customer with a credit, equal to 3 days of the Fees paid for the Subscription Services for each increment of 4 consecutive hours during which the Subscription Services were unavailable during the previous month. This credit is Customer’s sole and exclusive remedy for a service interruption to the Subscription Services. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SUBSCRIPTION SERVICES ARE PROVIDED ON AN “AS AVAILABLE” BASIS.

  • 2.4 Certent is currently compliant with the Statement on Standards for Attestation Engagements No. 16 (“SSAE 16”) as it pertains to the Modules that are owned by Certent (and excluding those Modules provided by a third party service provider of Certent as expressly indicated in an Order). Certent shall maintain its SSAE 16 compliance throughout the Subscription Term.

  • 2.5 If Certent uses a third party Internet service provider or hosting facility for the Subscription Services, Certent will use a reputable third party Internet service provider and hosting facility to prevent unauthorized access to the hosted environment. Certent may subcontract portions of the Subscription Services to its third party service providers. Certent will remain fully liable for the acts and omissions of its third party service providers as if performed by Certent.

  • 2.6 Certent shall use all commercially reasonable efforts in accordance with industry accepted standards used or observed by comparable suppliers of similar services/applications, which standards shall in no event be less than reasonable standards of care in all circumstances, to protect the security and integrity of the Certent Platform. Certent shall promptly inform Customer of all high or critical security-related issues that threaten the security of Customer Data discovered or brought to Certent’s attention (“Security Issue”). Remediation of Security Issues will be provided in a timely manner appropriate to the risk. High risk Security Issues will receive immediate attention and focus until resolved. Certent will appropriately protect information relating to Security Issues and its associated documentation to help limit the likelihood that vulnerabilities in the Certent Platform are exposed. Certent shall use all commercially reasonable efforts consistent with sound software development practices, taking into account the severity of the risk, to resolve all Security Issues as quickly as possible.

  • 2.7 As part of Customer’s registration process, Certent will notify Customer of an administrative username and password for Customer’s Certent account (“Account”). Also as part of Customer’s registration process, Customer will work with Certent to create access controls for authorized users within Customer (each with a unique user name and password combination), which for disclosure management modules shall be limited to the number of Users indicated in the applicable Order and for equity management modules shall be limited to a reasonable number. Customer is responsible for all activity occurring under its Account other than activity by Certent. If any of Certent’s third party service providers requires access to Customer’s Account for purposes of enabling Certent to provide the Subscription Services, Customer consents to Certent providing that access. Customer will: (i) maintain the accuracy, completeness, and timeliness (within 30 days of any change) of the information provided in any Order or at any time during the registration process; and (ii) notify Certent immediately of any unauthorized use of the Account or any other known or suspected breach of security.

  • 2.8 All financial market data accessible by accessing the Subscription Services (“Market Data”) is delayed data provided by Certent for convenience only and originates from a third-party source. The Certent Platform provides two scheduled price feeds of Market Data: the first feed is at 2pm Pacific and the second feed is at 6pm Pacific. Market Data should not be relied upon if real-time financial market data is required or preferred. Certent will not be responsible for any losses of any kind resulting from reliance on the Market Data.

3. RESTRICTIONS

  • 3.1 Customer shall not: (i) use the Subscription Services or Modules except as expressly authorized in this Agreement and the applicable Order; (ii) use any device, software, or routine that interferes with any application, function, or use of the Subscription Services or Modules, or is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; (iii) distribute, resell, sublicense, rent, lease, loan, time-share, or otherwise share the Subscription Services or Modules with any third party; (iv) frame or mirror the Subscription Services or Modules; (v) copy, modify, decompile, disassemble or reverse-engineer the underlying software that is part of the Subscription Services or Modules or otherwise attempt to derive its source code; (vi) use the Subscription Services or Modules either directly or indirectly to support any activity that is illegal; (vii) access the Subscription Services or Modules for any benchmarking or competitive purposes; or (viii) authorize any third parties to do any of the above.

  • 3.2 Customer shall use the Services solely for internal business purposes and shall not use the Services to (i) harvest, collect, gather or assemble information or data regarding other users without their consent; (ii) knowingly transmit unlawful, tortious, infringing, or harmful material; (iii) knowingly transmit material containing software viruses or other harmful or deleterious computer code; or (iv) knowingly interfere with, disrupt the integrity or performance, or attempt to gain unauthorized access to the Certent Platform, related systems or data contained in the Certent Platform or such related systems.

  • 3.3 Notwithstanding the restrictions set forth in this Section 3, Customer may provide third party access to the Subscription Services and the Modules indicated in an Order; provided that such third party accesses the Subscription Services and Modules solely on behalf of Customer in compliance with the terms and conditions of this Agreement; and provided further, that such third party’s use of the Subscription Services shall be in strict compliance with the provisions set forth in Sections 2, 3, 8 and 9.

4. IMPLEMENTATION, ADMINISTRATIVE, CONSULTING, SUPPORT, TRAINING, FILING AND OTHER SERVICES

  • 4.1 If Customer has selected Implementation Services in an Order, Certent will provide to Customer the Implementation Services set forth on the Implementation Services Attachment(s) to the Order. Customer will timely perform the responsibilities set forth on the Implementation Services Attachment(s).

  • 4.2 If Customer has selected Administrative Services in an Order, Certent will provide to Customer the Administrative Services set forth on the Administrative Services Attachment(s) to the Order. Customer will timely perform the responsibilities set forth on the Administrative Services Attachment(s). Customer will provide Certent with reasonable access to Customer’s personnel and equipment during normal business hours as necessary to provide the Administrative Services. If an Order includes Administrative Services for Certent’s administration of Customer’s equity plans, Customer must send data required by Certent for the administration of Customer’s equity plans in a format designated by Certent (e.g., hires, terminations, Participant updates, option grants, option exercises, etc.). Customer, and not Certent, is solely responsible for the accuracy of all such data provided to Certent and Customer will make every effort to ensure that such data is current and correct. Customer understands that a delay in delivering to Certent updates to such data may result in inaccurate reports being generated. Customer shall defend, indemnify and hold harmless Certent from any and all damages, losses, and expenses of any kind that may result from any third party claims related to the inaccuracy or incompleteness of such data.

  • 4.3 If Customer has selected Consulting Services in an Order, Certent will provide to Customer the Consulting Services set forth on the Consulting Services Attachment(s) to the Order. Customer will timely perform the responsibilities set forth on the Consulting Services Attachment(s).

  • 4.4 If Customer has selected Subscription Services by designating any Module in an Order, Certent will provide the Support Services described in this Section 4.4. Charges for Support Services are included in the Subscription Services Fees. Customer is responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other equipment and services needed for it to access the Subscription Services.

    • 4.4.1 Certent will provide access to support updates (error corrections, bug fixes, enhancements and/or improvements) or any compliance updates to the Subscription Services that are released by Certent for general availability to its other commercial customers. Any such updates released by Certent will be deemed to be part of the Certent Platform for purposes of this Agreement and subject to all of the terms, conditions and restrictions of this Agreement.

    • 4.4.2 If Customer experiences a problem with the Subscription Services, Customer may make a request for technical support to Certent’s technical support personnel by submitting a request (“Request”) during Support Hours by contacting the Certent support telephone desk at a phone number notified by Certent to Customer.

    • 4.4.3 In connection with submitting a Request, Customer will: (i) notify Certent promptly of problems with the Subscription Services, and provide Certent with information regarding the problem sufficient to enable Certent to reproduce the problem; (ii) provide Certent with reasonable assistance, as requested; and (iii) provide Certent with appropriate access to the applicable data or database consistent with Customer's confidentiality, safety and security procedures. Any such access or information obtained from such access under subsection (iii) shall be considered Confidential Information of Customer.

    • 4.4.4 Certent will respond within 4 business hours with respect to any Request. If the Request was made to report a failure of the Subscription Services to materially function in accordance with the Documentation (“Error”), then Certent will use reasonable efforts to promptly resolve the Error. If Certent becomes aware of any Error associated with the Subscription Services that Certent reasonably believes may materially impact the performance of the Subscription Services, Certent will use reasonable efforts to notify Customer of such Error and to promptly resolve the Error.

    • 4.4.5 Except as set forth above, no other support services are provided by Certent. Certent will have no obligation to provide Support Services of any kind for problems in the operation or performance of the Subscription Services to the extent caused by any of the following (“Customer-Generated Error”): (i) any data, files, database or non-Certent software used in conjunction with the Subscription Services; or (ii) Customer’s use of the Subscription Services other than as authorized in this Agreement. If Certent determines that it is necessary to perform services for a problem in the operation or performance of the Subscription Services that is caused by a Customer-Generated Error, then Certent will notify Customer thereof as soon as Certent is aware of such Customer-Generated Error. Certent will not commence any such services until approved by Customer. If such services are performed, Certent will have the right to invoice Customer at Certent's then-current published professional services rates for such services performed by Certent.

  • 4.5 If Customer has selected Subscription Services by designating any Module in an Order, Certent will provide the following Training Services:

    • 4.5.1 The Standard Administrative Training is web-based and covers all of the administrative functions of the Subscription Services. This training is offered online and its charges are included in the Subscription Services Fees.

    • 4.5.2 The Standard Accounting Training is web-based and covers all of the accounting functions of the Subscription Services. This training is offered regularly and its charges are included in the Subscription Services Fees. Sign-ups for each webinar are “first come first serve” and may be repeated. As part of the Standard Accounting Training, Customer will work with a training database.

  • 4.6 If Customer has selected Custom Training in an Order, the parties must either describe in the Order the training, schedule and Fees to be paid by Customer for the Custom Training or enter into a separate statement of work with such information. Certent will not provide any Custom Training without both parties having executed such an Order or statement of work. Custom Training may be conducted on-site or remotely as indicated in such Order or statement of work. Any such statement of work will be governed by this Agreement.

  • 4.7 If Customer has selected Filing Services in an Order, Certent will provide to Customer the Filing Services set forth in the Order and Customer will timely perform the responsibilities set forth in the Order.

  • 4.8 If Customer has selected any other Services in an Order (e.g., Support Services in addition to those in Section 4.4 or Training Services in addition to those in Section 4.5 or 4.6) Certent will provide to Customer those other Services set forth on the Attachment(s) mentioned in to the Order. Customer will timely perform the responsibilities set forth on those Attachment(s).

  • 4.9 Certent may subcontract the Administrative Services, Consulting Services, Filing Services, Implementation Services, Support Services, Training Services or other Services to its third party service providers. Certent will remain fully liable for the acts and omissions of its third party service providers as if performed by Certent.

  • 4.10 Any services other than those outlined above or in any Order (including any attachments of an Order) require the parties to enter into a statement of work pertaining to those other services signed by both parties before Certent commences any such other services. Such other services may be subject to an additional charge by Certent. Such statement of work will be governed by this Agreement.

5. FEES

  • 5.1 Upon execution of the order Certent will invoice Customer for the annual Fees for the first year of the Subscription Term specified in the initial Order and for the non-recurring Fees, each as set forth in the initial Order between the parties. For any multi-year Subscription Term, and for any renewal of the Subscription Term, Certent will invoice Customer the then applicable annual Fees at least 30 days in advance of the anniversary of the Effective Date. For any Order after the initial Order, Certent will invoice Customer for the Fees set forth in that Order upon execution by both parties of that Order or as otherwise provided in that Order. If Customer’s use of the Subscription Services or a Module exceeds the Usage Capacity for the Subscription Services or that Module, Certent will invoice Customer the then applicable Fees for that Usage Capacity as prorated over the remaining annual period of the Subscription Term from the date such use exceeded that Usage Capacity.

  • 5.2 Certent will invoice Customer for Certent’s reasonable travel expenses associated with any on-site Services that have been pre-approved by Customer, in writing (which may be via email). Certent will invoice these expenses as they are incurred, but no more frequently than monthly.

  • 5.3 Certent reserves the right to change the Fees on an annual basis, upon 45 days prior written notice to Customer (which may be sent by email) prior to each anniversary of the Effective Date. At least 45 days prior to the end of each Subscription Term, Certent will send Customer a notice of annual Fees to be in effect during the first annual period of any renewal of the Subscription Term.

  • 5.4 Unless otherwise stated, Fees do not include any direct or indirect local, provincial, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including, good and services tax, retail sales tax, value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Certent’s income or property.

  • 5.5 Customer will immediately pay the invoice submitted by Certent for the annual Fees for the first year of the Subscription Term specified in the initial Order and for the non-recurring Fees, each as set forth in the initial Order between the parties. Customer will pay all other invoices that conform to this Agreement and the applicable Order net 30 days from receipt of the applicable invoice; provided that any invoice for annual Fees for any multi-year Subscription Term (other than the first year), or for any renewal of the Subscription Term, must be paid prior to the anniversary of the Effective Date. Late payments on any undisputed amounts will bear interest at 1.5% per month or the maximum rate permitted by law, whichever is less, calculated from the date such amount was due until the date that payment is received by Certent.

  • 5.6 Customer understands that the XBRL tagging resides in the disclosure management Modules of the Certent Platform. Customer will retain the XBRL tagging during the course of editing documents. If Customer changes a document causing dropped XBRL tags, Certent has the right to charge for the additional XBRL tagging to correct dropped tags.

6. TERMINATION

  • 6.1 This Agreement will expire upon the expiration of the Subscription Term that has not automatically renewed pursuant to Section 2.1.

  • 6.2 Either party may terminate this Agreement upon written notice if the other party: (i) materially breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach; or (ii) becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor (subject to Title 11 of the United States Code).

  • 6.3 Without limiting other available remedies, Certent may immediately issue a warning and/or suspend the Services either temporarily or indefinitely in the event that Customer breaches any material provision of Sections 2, 3, 4 or 5 and has not cured such breach within 10 days following written notice specifying the breach. Any suspension of Services pursuant to this Section 6.3 will not suspend Customer’s obligations under this Agreement (including its payment obligations).

  • 6.4 Upon expiration or termination of this Agreement: (i) Certent will cease providing the Services; (ii) Certent will delete all Customer Data from its production system within 90 days of such expiration or termination and from its backup system within 1 year of such termination or expiration and each party will either return or delete the other party’s other Confidential Information in such party’s possession; (iii) any payment obligations under Section 5 as of the expiration or termination date (or that relate to activity during the Subscription Term) shall remain in effect; and (iv) Sections 6.4, 7, 8, 9, 10.2, 11, 12, 13 and 16 will survive any expiration or termination of this Agreement. Certent’s customer service group will be available to Customer up to the expiration or termination date to assist Customer in accessing and retrieving its Customer Data from the Certent Platform.

7. PROPRIETARY RIGHTS

  • 7.1 Certent has obtained the necessary rights from its suppliers to provide access to the Modules or components of the Certent Platform they have supplied. Certent and its suppliers retain all right, title and interest in and to the Certent Platform and its underlying technology. This Agreement does not convey any proprietary interest in the Certent Platform or its underlying technology or rights of entitlement to the use thereof except as expressly set forth in this Agreement.

  • 7.2 All works of authorship generated by Certent in the course of performing the Services, including any associated intellectual property rights, but excluding any Customer Data that may be included in any reports exported from the Subscription Services (“Work Product”) will remain the property of Certent. Certent grants to Customer a non-exclusive, non-transferable, royalty-free license to use the Work Product solely in connection with its use of the Services.

  • 7.3 To the extent that Certent or its subcontractor utilizes any of its property (whether tangible or intangible) in connection with the performance of Services, such property shall remain the property of Certent or its subcontractor, and Customer shall not acquire any right or interest in such property. If Certent delivers to Customer spreadsheets, models or other software tools to assist Customer in reviewing the Services performed by Certent, they are being provided solely for Customer’s convenience and Certent grants to Customer the non-exclusive, non-transferable license to use the foregoing items solely in connection with its use of the Services. Since such items are only being provided for convenience, such items are provided to Customer in “as is” condition without warranty of any kind and Certent assumes no responsibility for results obtained by anyone other than Certent from the use of such items.

  • 7.4 If Customer provides Certent with any comments, suggestions or other feedback with respect to the Modules, or Services (“Feedback”), Certent has the right, but not the obligation, to use Feedback in any way without restriction or obligation to Customer. Certent shall be the exclusive owner of, and shall be free to use for any purpose, any ideas, concepts, know-how, or techniques resulting from Feedback, including, without limitation, any modifications or enhancements to the Modules or Services.

8. CONFIDENTIAL INFORMATION

  • 8.1 Each party understands that the other party may need to disclose certain non-public information relating to the disclosing party’s business (“Confidential Information”) in connection with the use and/or performance of the Services. If the parties have previously executed a non-disclosure or confidentiality agreement, the parties agree as of the Effective Date, this Agreement shall supersede that agreement for disclosures after the Effective Date. The receiving party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except as expressly permitted in this Agreement) or disclose to any third person any such Confidential Information.

  • 8.2 Confidential Information does not include any information that the receiving party can show: (i) is or becomes generally available to the public without a breach of the receiving party’s obligations hereunder, or (ii) was in its possession or known by it prior to receipt from the disclosing party without an obligation of confidentiality, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the disclosing party, or (v) is aggregate statistical data regarding Certent’s products and services that does not contain Customer Data.

  • 8.3 Neither party will disclose to third parties the other’s Confidential Information unless: (i) the other party has given its specific and express prior written approval, (ii) the disclosure is expressly allowed under this Agreement, or (iii) the disclosure is necessary to comply with a valid court order or subpoena (in which case the receiving party must promptly notify the disclosing party and cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed).

9. CUSTOMER DATA

  • 9.1 All Customer Data is owned by Customer and will be treated by Certent as the Confidential Information of Customer. Customer will control access to and the management of the Customer Data through the Account. Customer will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its provisioning of the Customer Data, including those related to export regulations, data privacy, international communications and the transmission of technical or personal data.

  • 9.2 Certent will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Customer Data, including those related to export regulations, data privacy, international communications and the transmission of technical or personal data. Without limiting the foregoing, Certent adheres to the U.S.-EU Privacy Shield Framework concerning the transfer of personal data from the European Union to the United States of America, has self-certified compliance with the U.S.-EU Privacy Shield Framework and is included on the U.S.-EU Privacy Shield List accessible athttps://www.privacyshield.gov/list.

  • 9.3 Certent shall establish and maintain technical and organizational security measures, and other safeguards against the destruction, loss, alteration, unavailability and unauthorized access to Customer Data in the possession of or under the control of Certent. Certent will not use Customer Data for any purpose other than to provide Services, which may include accessing Customer Data as necessary to identify or resolve technical problems or respond to Customer’s complaints about the Services. Under no circumstances will Certent sell, share or disclose Customer Data for marketing or other commercial purposes. Notwithstanding any other provision, Certent may disclose Customer Data if Certent determines that such action is necessary to comply with the law, regulatory requirements, or legal or regulatory process. Unless prohibited by law or legal process, Certent will not disclose Customer Data without giving Customer notice of the request for such disclosure and a reasonable period of time to respond to such request. In addition, Certent shall at all times remain in compliance with its privacy policy that is available on its website.

10. WARRANTIES

  • 10.1 Certent warrants that the Subscription Services: (i) will achieve in all material respects the functionality described in the Documentation; and (ii) such functionality will not be materially decreased during the Subscription Term. Customer’s sole and exclusive remedy for Certent’s breach of this warranty shall be that Certent shall be required to use commercially reasonable efforts to modify the Subscription Services to achieve in all material respects the functionality described in the Documentation and if Certent is unable to restore such functionality, Customer shall be entitled to terminate this Agreement and receive a pro-rata refund of the annual Fees pre-paid under this Agreement for the Subscription Services for the terminated portion of the Subscription Term. Certent shall have no obligation with respect to a warranty claim unless notified of such claim within 60 days of the first instance of any material functionality problem. Any such notice must be sent to bills@Certent.com. The warranties set forth in this Section 10 are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Subscription Services have been utilized in accordance with this Agreement and applicable law.

  • 10.2 THE WARRANTIES STATED IN THIS SECTION 10 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY CERTENT. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. THE SERVICES ARE PROVIDED FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. CERTENT DOES NOT OFFER OR PROVIDE LEGAL, TAX, FINANCIAL OR ACCOUNTING ADVICE, INCLUDING WAYS THAT EQUITY COMPENSATION CAN/MAY BE USED TO ACHIEVE A PARTICULAR GOAL. CERTENT MAY PROVIDE GENERAL INFORMATION, BUT SUCH GENERAL INFORMATION IS INTENDED FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO BE RELIED UPON AS PROFESSIONAL LEGAL, TAX, FINANCIAL OR ACCOUNTING ADVICE. CERTENT DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICES AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE AVAILABLE, UNINTERRUPTED AND FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

11. INDEMNIFICATION

  • 11.1 Certent will, at its expense and under its control (including selection of counsel), defend and/or settle any claim, suit or proceeding brought by a third party against Customer alleging that the Subscription Services, as provided by Certent, infringe any patent, copyright, or trademark of a third party or misappropriate any trade secret of a third party. In addition, Certent will pay any judgment awarded against Customer for such claim, suit or proceeding or any settlement amount agreed by Certent and any documented expenses incurred by Customer that have been authorized by Certent prior to being incurred. Certent will have no obligation with respect to any claim, suit or proceeding to the extent arising out of or based upon (i) Customer’s modification of the Subscription Services or use in a manner not permitted by this Agreement, where such modification or use gives rise to such claim, suit or proceeding; or (ii) Customer Data or other materials supplied by Customer and used with or incorporated in the Subscription Services by Certent. If Customer’s use of the Subscription Services is or is likely, in Certent’s determination, to be enjoined, Certent may, at its own expense and without limiting its obligations hereunder, procure the right for Customer to continue to use the Subscription Services or modify the Subscription Services in a manner that has materially equivalent functionality so as to avoid such injunction. If the foregoing options are not available on commercially reasonable terms and conditions, Certent may terminate this Agreement and provide a pro-rata refund to Customer of all pre-paid annual Fees for the Subscription Services for the terminated portion of the Subscription Term.

  • 11.2 Certent will, at its expense and under its control (including selection of counsel), defend and/or settle any claim, suit or proceeding brought by a third party against Customer arising out of Certent’s or its agent’s breach of Section 8 or 9. In addition, Certent will pay any judgment awarded against Customer for such claim, suit or proceeding or any settlement amount agreed by Certent and any documented expenses incurred by Customer that have been authorized by Certent prior to being incurred.

  • 11.3 Customer will, at its expense and under its control (including selection of counsel), defend and/or settle any claim, suit or proceeding brought by a third party against Certent: (i) alleging that the Customer Data or any use thereof infringes the copyright of a third party, misappropriates the trade secrets of a third party, otherwise violates the publicity, privacy or other proprietary rights of a third party, or has otherwise caused harm to a third party, (ii) arising out of Customer Data provided by Customer to Certent, including any Customer Data that is inaccurate or outdated, or (iii) arising out of Customer’s or its agent’s breach of Section 2, 3, 8 or 9. In addition, Customer will pay any judgment awarded against Certent for such claim, suit or proceeding or any settlement amount agreed by Customer and any documented expenses incurred by Certent that have been authorized by Customer prior to being incurred.

  • 11.4 A party’s obligations hereunder are contingent upon: (i) the other party providing prompt written notice of a claim, suit or proceeding that the other party asserts is covered by this Section 11; (ii) the other party providing reasonable cooperation, at the obligated party’s expense, in the defense and settlement of such a claim, suit or proceeding; and (iii) the obligated party having sole authority to defend or settle such claim, suit or proceeding.

12. LIMITATION OF LIABILITY

  • 12.1 CUSTOMER AGREES THAT THE CONSIDERATION WHICH CERTENT IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY CERTENT AND ITS SUPPLIERS AND SUBCONTRACTORS OF THE RISK OF CUSTOMER’S SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF, PROFITS. NEITHER PARTY OR THEIR SUPPLIERS OR SUBCONTRACTORS SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NEITHER PARTY OR THEIR SUPPLIERS OR SUBCONTRACTORS SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY LOSS OF PROFITS, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY OR FAILURE OF CONSIDERATION WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THE LIKELIHOOD THEREOF DISCLOSED TO THE OTHER PARTY.

  • 12.2 EXCEPT WITH REGARD TO AMOUNTS DUE UNDER THIS AGREEMENT, A PARTY’S BREACH OF SECTION 8 OR A PARTY’S OBLIGATIONS UNDER SECTION 11, THE MAXIMUM LIABILITY OF EITHER PARTY OR ITS OR THEIR SUBCONTRACTORS OR SUPPLIERS TO ANY PERSON, FIRM OR CORPORATION WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF 12 MONTHS IN SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT THAT GAVE RISE TO THE LIABILITY; AND IN THE EVENT OF A BREACH OF SECTION 8 OF THIS AGREEMENT, SUCH MAXIMUM LIABILITY OF EITHER PARTY AND ITS AND THEIR SUPPLIERS AND SUBCONTRACTORS SHALL IN NO CASE EXCEED 3 TIMES THE EQUIVALENT OF 12 MONTHS IN SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT THAT GAVE RISE TO THE LIABILITY. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES AND ITS AND THEIR SUBCONTRACTORS AND SUPPLIERS ARISING FROM THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 12 ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO CUSTOMER AND THAT, WERE CERTENT OR ITS SUBCONTRACTORS OR SUPPLIERS TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH IN THIS AGREEMENT, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.

  • 12.3 Exceptions. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.

13. DISPUTE RESOLUTION; ARBITRATION; GOVERNING LAW; JURISDICTION; AND FEES

  • 13.1 Except as otherwise specifically provided in this Agreement, the parties desire to resolve disputes arising out of this Agreement without court litigation. Accordingly, the parties agree to use the dispute resolution procedure set forth in this Section 13 with respect to any controversy or claim arising out of or relating to this Agreement or its breach (“Dispute Resolution”).

  • 13.2 Dispute Resolution shall commence upon the sending from one party to the other party of written notice of a controversy or claim arising out of or relating to this Agreement or its breach. No party may pursue any claim unless such written notice has first been given to the other party.

  • 13.3 When such a written notice has been given, as required by Section 13.2, each party will appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve any dispute arising under this Agreement. The location, form, frequency, duration, and conclusion of these discussions will be left to the discretion of the representatives. Upon agreement, the representatives may utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. Discussion and the correspondence among the representatives for purposes of settlement are exempt from discovery and production and will not be admissible in the arbitration described below or in any lawsuit without the prior written concurrence of both parties. Documents identified in or provided with such communications, which are not prepared for purposes of the negotiations, are not so exempted and, if otherwise admissible, may be admitted in evidence in the arbitration or lawsuit.

  • 13.4 If the parties are unable to resolve the dispute through the informal procedure described above, then either party may invoke the following formal Dispute Resolution procedures by submitting to the other party a written demand for arbitration. Unless agreed upon by the parties, formal dispute resolution procedures, including arbitration or other procedures as appropriate, may be invoked not earlier than 30 days after the date of the letter initiating dispute resolution under Section 13.2. All claims will be subject to arbitration if, and only if, the claim is not settled through informal dispute resolution and both parties agree to arbitration. If both parties do not agree to arbitration, then either party may proceed with any remedy available to it pursuant to law, equity or agency mechanism.

  • 13.5 The parties agree that any dispute subject to arbitration shall be held in Sacramento County, California in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court having jurisdiction. The parties shall each pay one-half of the costs and expenses of such arbitration, and each of the parties shall separately pay its counsel fees and expenses.

  • 13.6 Notwithstanding anything to the contrary in this Section 13 or elsewhere in this Agreement, in the event that either party seeks injunctive or other equitable relief under this Agreement (“Equitable Relief Claim”), such party shall not be required to use the Dispute Resolution procedure or arbitrate such Equitable Relief Claim and may file such Equitable Relief Claim in any court having jurisdiction.

  • 13.7 This Agreement will be governed under the laws of the State of California, without regard to the conflict of law provisions. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement.

  • 13.8 If any suit, action or proceeding is instituted by a party in connection with this Agreement, the prevailing party in such suit, action or proceeding shall be entitled to such reasonable attorneys' fees, costs, and expenses as may be fixed by a court of competent jurisdiction.

14. ASSIGNMENT

Either party may assign this Agreement to a subsidiary or affiliate of the party or in the context of a merger, acquisition, or sale of all or substantially all of the party’s assets or stock, provided that in the event of an assignment, the assignee shall agree to all provisions of this Agreement, including but not limited to the protection of Confidential Information, and must not be deemed a competitor of the non-assigning party. Any attempt to assign this Agreement other than as permitted above will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

15. FORCE MAJEURE

Neither party shall be held responsible or deemed to be in default under this Agreement for any delay in performance or failure in performance of any of their respective obligations hereunder if such delay or failure is the result of causes beyond the control of the party with respect to whose obligations such delay or failure in performance has occurred. Such causes shall include, without limitation, acts of God, strikes, lockouts, riots, insurrections, civil disturbances, sabotage, embargoes, blockades, acts of war, acts of terrorism, acts or failures to act of any governmental or regulatory body (whether civil or military, domestic or foreign), governmental regulations imposed after the fact, power failures, fires, explosions, floods, accidents, epidemics, earthquakes or other natural or man-made disasters, and all occurrences similar to the foregoing beyond the party’s control (collectively, “Force Majeure”). The party affected by an event of Force Majeure, upon giving prompt notice to the other party, shall be excused from performance hereunder on a day to day basis to the extent of such prevention, restriction, or interference (and the other party shall likewise be excused from performance of its obligations on a day to day basis to the extent that such obligations relate to the performance so prevented, restricted, or interfered with); provided that the party so affected shall use commercially reasonable efforts to avoid or remove such cause of non performance and to minimize the consequences thereof and both parties shall resume performance hereunder forthwith upon removal of such cause.

16. GENERAL

This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. The parties are independent contractors, and no agency, partnership, fiduciary, or joint venture relationship is created by this Agreement. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All notices hereunder will be in writing and will be sent to the other party’s address set forth on the signature page of this Agreement (or any replacement address notified by the addressee party in accordance with this Section 16) or delivered in person. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. By signing and delivering this Agreement and/or any Order, attachment to an Order, statement of work, amendment, or addendum, each party will be deemed to represent to the other that the signing party has not made any changes to such document from the draft(s) most recently provided to the other party by the signing party, or vice versa, unless the signing party has expressly called such changes to the other party’s attention in writing (e.g., by “redlining” the document or by a comment memo or email). Certent reserves the right to identify and list Customer on its website as a user of the Services in accordance to Customer’s trademark usage guidelines as provided to Certent from time to time. This Agreement may be executed in counterparts, which execution may be made by facsimile, each of which shall be an original, but all of which shall constitute one, and the same, document. This Agreement, including all Orders, attachment(s) to any Orders, special terms and conditions in an Order or attachment to an Order, and any statements of work executed by both parties, constitutes the complete and exclusive understanding and agreement between the parties regarding their subject matter. This Agreement supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter, as well as all other pre-printed or standardized provisions that may otherwise appear in any other paper or electronic record of either party (including provisions in any purchase order submitted by Customer to Certent that are in conflict with or in addition to the terms and conditions in this Agreement, even if Certent commences performance after receipt of that purchase order,) which provisions shall be null and void. To the extent the terms and conditions in this document and any special terms and conditions in an Order or attachment to an Order conflict with one another, the special terms and conditions shall govern.