THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL OR FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL AND/OR SERVICE(S).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 30, 2015. It is effective between you and us as of the date of you accepting this Agreement (the date this Agreement becomes effective, the “Effective Date”).
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Agreement” means this Cloud Services Agreement.
- “Authorized User” means each individual end user whom Customer has authorized to access and use the Subscription Services, as designated by Customer, and who have been issued user IDs and passwords for the Subscription Services. Authorized Users may include Customer’s employees, consultants, contractors and agents. The maximum number of Authorized Users will be specified in the applicable Order Form.
- “Canto”, “we”, “us” or “our” means Canto, Inc., a Delaware corporation with offices at 116 New Montgomery Street, Suite 810, San Francisco, California 94105.
“Confidential Information” means (a) for Customer, all Customer Data; (b) for Canto, pricing and other terms, marketing and sales information relating to the Services, the Software, “know-how,” audit and security reports, product development plans, or other information, technology, ideas or algorithms derived from the Services, Software, or the use thereof; and (c) for both Customer and Canto, any other information provided by one party to the other and designated in writing as “Confidential.”
- “Cloud” means a combination of hardware, software and networking elements provided by or on behalf of Canto or its contractors in connection with the Services that comprise an information technology system.
- “Customer”, “you” or “your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
- “Customer Data” means all data and information you use or store in the Cloud or otherwise upload to or transmit through the Services.
- “Documentation” means Canto’s user guide for the Services, as may be updated from time to time, and any other guides, reference materials or other documentation made available to you in connection with the Services.
- “Guest Users” means individual end users whom Customer has authorized to access, preview and/or download Customer Data from a website, which does not require authentication and is provided by Canto in connection with the Subscription Services (if Customer chooses to enable this function). Unless otherwise specified in the applicable Order Form, there will be no limit on the number of Guest Users.
- “Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- “Scheduled Downtime” has the meaning set forth in Section 2.8.
- “Services” means the Subscription Services, Set-up Services, Support Services, Consulting Services and any other services provided by Canto as described in one or more Order Forms or this Agreement.
“Set-up Services” means any services Canto provides to enable you to use the Subscription Services, including those services relating to configuration of the Subscription Services and training, as described in the Order Form.
- “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form provided by or on behalf of Canto in connection with the Services. Software includes software locally installed on your systems and software accessed through the Internet or by other remote means including websites, portals, and “cloud-based” solutions to utilize the Services in accordance with this Agreement.
- “Subscription Services” means a cloud-based offering of Canto’s Flight digital asset management system operated by Canto, as described in the Order Form.
- “Subscription Services Availability” in a particular calendar month means the percentage calculated by dividing the total number of minutes of fully functional Subscription Services availability in such month by the total number of minutes in such month (excluding the total number of minutes of unavailability during any Scheduled Downtime) and multiplying the result by one hundred.
- “Support Services” means the support services described in Section 2.3.
- Set-up Services. In consultation with Customer, Canto will perform the Set-up Services and will advise Customer of the completion of the Set-up Services.
- Subscription Services. Within five (5) business days of the Effective Date and during the applicable Term of Service, Canto will make the Subscription Services available to Customer, in accordance with this Agreement and the applicable Order Form. Subject to and conditioned upon Customer’s compliance with the terms and conditions of this Agreement, Canto hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right, during the Term of Service, to permit its Authorized Users to access and use the Subscription Services as made available by Canto, solely for Customer’s internal business use, and solely in accordance with the Documentation. Subject to availability of this functionality to Customer, Guest Users may be permitted by Customer to access, preview and download Customer Data on or from an unauthenticated website provided by Canto in connection with the
Subscription Services (if Customer chooses to enable this function). Guest Users will have only read-only rights and have no rights to upload or modify any Customer Data or to otherwise use the Subscription Services.
- Support Services. Support services are defined as telephone, email and web support. Telephone support services are available Monday-Friday 8am-5pm PST (excluding US holidays). Customer may use such telephone support to ask technical questions relating to the use of the Services and to report errors or problems with the Services. Such inquiries may also be submitted to Canto using Canto’s web support form canto.com/flight/support, or by email to firstname.lastname@example.org. Provision of “How-To” email or web support beyond the foregoing, including training and consultation services relating to the Subscription Services, assistance with data migration, configuration and customization of the Subscription Services may be acquired from Canto under a Statement of Work, as set forth in Section 2.10.
- Registration; User Names and Passwords. Customer will be required to register in order to access and use the Services. As part of the registration process, Customer will be required to designate the Authorized Users and provide their respective names, titles and contact information (if not already provided in the applicable Order Form), and will obtain a user ID and password for each. Each Authorized User must use his or her own user ID, and Customer will not permit any person to use a user ID unless it is his or her own user ID. Customer may change its Authorized Users by written notice to Canto, and Canto will then arrange for the replacement (and the replaced Authorized User will no longer have access to the Subscription Services). In any event, the number of Authorized Users will not exceed the number of Authorized Users specified in the applicable Order Form. The Services (or certain areas or features of the Services, as determined by Canto) may only be accessed or used by Authorized Users with valid user IDs and passwords granted by Canto. You are responsible for maintaining the confidentiality of any user ID and password you may use to access the Services, and you agree not to transfer or disclose such user IDs and passwords to any third- party. You agree to immediately notify Canto of any unauthorized use of your user IDs, passwords, or any other breach of security related to your account. Canto is not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.
- Restrictions on Use of Services. Customer will not (a) sell, resell, rent, lease or otherwise provide access to the Services to any third-party, except as expressly permitted in this Agreement; (b) use the Services to store or transmit infringing, libelous, obscene or otherwise unlawful or tortious material, or to store or transmit materials in violation of third-party rights; (c) use the Services to store or transmit any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; or (d) interfere with or disrupt the integrity or performance of any services provided by Canto to third-parties.
- Usage Limitations. Canto may impose reasonable limits, in its sole discretion, on uses of the Services in order to prevent degradation of the performance of the Services for you and other parties.
- Third-Party Software and Services. Canto may offer web-based online software or services provided by third-parties that interoperates with or supplements the Services. Any acquisition or use by you of such third-party software or services, and any exchange of data between you and any third-party provider, is solely between you and the applicable third-party provider and subject to the third-party provider’s terms and conditions, and Canto will not be responsible for any disclosure, use, modification or deletion of your data resulting from any access to the data by the third-party provider.
- Service Level.
- Subject to the terms and conditions of this Agreement, Canto will use commercially reasonable efforts to make the Subscription Services available to Customer 24 hours a day, 7 days a week, with a Subscription Services Availability of 99.8% (the “Service Level”). Customer acknowledges that from time to time Canto (or its subcontractors) may schedule downtime for periodic maintenance procedures or repairs, during which the Subscription Services may be fully or partially disrupted, inaccessible or inoperable (“Scheduled Downtime”). Although Canto cannot guarantee that you will always receive advance notice of repairs or maintenance, Canto will use commercially
reasonable efforts to provide at least five (5) days’ advance notice (including by email) to you of any scheduled downtime.
- If Canto is unable to meet this Service Level in any calendar month during the term of the Agreement, Customer will be entitled to a credit of 1% of the applicable monthly subscription fees for every 0.1% that the Subscription Services Availability falls below the Service Level, up to a maximum of 50% of the applicable monthly subscription fees for that month. In order to receive such credit, Customer must submit a request for credit to Canto within 15 days after the end of the month in which the Subscription Services Availability fell below the Service Level. Notwithstanding the foregoing, Customer will not be entitled to credit if the failure to meet the Service Level is directly attributable to (i) acts, errors, omissions, or breaches of this Agreement by Customer; (ii) failure or malfunction of any third party hardware, equipment or service not under the operational control or management of Canto or its subcontractors; or (iii) causes beyond Canto’s or its subcontractors’ reasonable control, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion. The foregoing sets forth Customer’s exclusive remedy and Canto’s entire liability with respect to any failure to meet the Service Level.
- Backup. Canto will routinely back up all Customer Data stored by Customer on the Cloud onto machine- readable storage medium, in accordance with Canto’s back-up policies. Canto will provide Customer with an electronic copy of all such Customer Data back-up upon reasonable request by Customer and at Customer’s expense.
- Customer and Canto may from time to time jointly execute statements of work (each, an “Statement of Work”) for additional services, which may include provision by Canto of certain technical assistance (including installation, configuration, integration, customization or data migration in connection with the Subscription Services), consulting services and training. Subject to Customer’s payment in full of the applicable fees, Canto will use commercially reasonable efforts to perform (or cause to be performed) for Customer the services described in the executed Statement of Works (“Consulting Services”).
(b) Unless otherwise indicated in a Statement of Work, all Consulting Services will be performed on a time-and-materials basis at Canto’s then-current fees and charges therefor. Accordingly, Customer will pay Canto for all time spent performing the Services, plus the cost of any materials, taxes, travel, lodging, communications, shipping charges and out-of-pocket expenses incurred by Canto in connection with providing the Consulting Services. All such fees and costs will be invoiced monthly and will be payable within thirty (30) days of the date of invoice.
(c) Customer will provide in a professional manner, and at no cost to Canto, assistance, cooperation, complete and accurate information and data, equipment, computer and telecommunications facilities, programs, files, documentation, test data, sample output, a suitable work environment, and other resources requested by Canto to enable it to perform the Consulting Services (collectively, “Assistance”). Canto will not be liable for any deficiency in performing the Consulting Services if such deficiency results from Customer’s failure to provide full Assistance as required hereunder. Assistance includes, but is not limited to, designating a project manager to interface with Canto during the course of the Services.
- Modification of Services. You acknowledge and agree that Canto may upgrade, update or otherwise modify the Subscription Services, including its functionality and features, at any time. Canto will use commercially reasonable efforts to notify you of any material modifications made to the Subscription Services during the Term of Service. Canto will not be liable to you or any third-party for any modification.
- Suspension of Services. Canto may suspend all or part of the Services or your access to or use of data stored in the Cloud, (a) if you are delinquent on your payment obligations for thirty (30) days or more; (b) upon receipt
of a subpoena or law-enforcement request; or (c) when Canto believes that you have breached this Agreement or that your use of the Services poses an imminent security risk or may subject Canto or its affiliates, contractors, licensors or customers to liability. Canto will use commercially reasonable efforts to give you at least twenty-four (24)-hour notice of a suspension unless Canto determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Canto or its affiliates, contractors, licensors or customers from security risks.
- Use of Subcontractors. Customer hereby acknowledges and agrees that Canto may engage and use subcontractors to provide and perform any or all of the Services. Canto will remain primarily liable for and obligated to Customer for the performance of Canto’s obligations under this Agreement, whether or not such obligations are delegated to its subcontractors.
- CUSTOMER RESPONSIBILITIES
In addition to any of your other obligations set forth in this Agreement:
- You must provide and maintain one dedicated email address for the receipt of notices and other communications related to the Services. You are also responsible for keeping your billing and other account information up to date at all times;
- You will provide reasonable cooperation to Canto in the implementation of the Set-up Services and any Support Services;
- You will be solely responsible to ensure that your hardware, network, system, Internet connection and other equipment meet or exceed the requirements for the Services specified in the Documentation or otherwise by Canto, and you will be solely responsible for the maintenance of your own local network systems, hardware and other equipment;
- You are responsible for the use of the Subscription Services by any Authorized Users, Guest Users (if applicable), and any person who gains access to your data or the Subscription Services as a result of your failure to use reasonable security precautions, even if the use was not authorized by you. You will ensure that Authorized Users and Guest Users (if applicable) comply with your obligations under this Agreement;
- You will be solely responsible for the accuracy, quality, integrity and legality of the Customer Data and any third-party claims regarding the same. You understand and agree that Canto has no control over the content of any Customer Data;
- You are responsible for using commercially reasonable efforts to prevent unauthorized access to or use of the Services, notifying Canto promptly of any such unauthorized access or use of which you become aware, and properly configuring and using the Services and taking your own steps to maintain appropriate security and protection of the Customer Data, including the use of appropriate encryption, back-up and archiving. You remain responsible for properly handling and processing notices claiming that any Customer Data violates a person’s rights; and
- You are solely responsible for compliance with applicable laws and regulations related to the manner in which you choose to use the Services, including your transfer of data, the provision of data to Authorized Users or Guest Users (if applicable), and any applicable import, re-import, export, and re-export control laws and regulations. Data or software that you provide in connection with the Services, or that you transmit or process using the Services or Software will not contain any information that is not permitted under applicable laws or regulations.
- Pricing. The fees payable for Subscription Services (including any excess storage and/or traffic fees for use that exceeds the base usage limits listed in the Order Form), Set-up Services and Support Services, and other amounts due to Canto in connection with the Services, are as set forth in the applicable Order Form.
- Payment Terms. Customer must pay Canto the fees for Set-up Services and the first year of Subscription Services in a one-time initial payment by the due date set forth in the applicable invoice or Order Form. Subsequent fees for Subscription Services and for any excess storage and/or traffic fees will be invoiced annually in advance and are due and payable within thirty (30) days from the invoice date. All payments under this Agreement must be made in U.S. dollars by credit card, wire transfer or other prearranged payment method acceptable to Canto. Canto reserves the right to charge a late payment interest of 1.5% per month against overdue amounts, or the maximum rate permitted by law, whichever is less. Late penalties are recalculated every thirty (30) days based on the Customer’s then-current outstanding balance.
- Taxes. All taxes and duties attributable to this Agreement or the Services (except taxes relating to Canto’s income), including sales, use, and any other tax assessed by local, state, federal or foreign authorities, will be borne by Customer, and Customer will reimburse Canto for any such taxes and duties paid by Canto.
- TERM AND TERMINATION
- Term. The “Term of Service” for any Service commences on the date Canto provides Customer (by email or otherwise) with the User ID and password or other instructions, as applicable, that enable Customer to activate the Services and extends for the period indicated in the applicable Order Form. The term of this Agreement will commence on the Effective Date and end when Canto is no longer obligated to provide Customer with Services under any Order Form.
- Renewal. Unless you decline auto-renewal in writing at least thirty (30) days prior to the expiration of the Term of Service or unless auto-renewal is explicitly disclaimed in the applicable Order Form or the applicable Documentation, Canto may automatically renew the Service(s) for a successive Term of Service at Canto’s then-current list price. By continuing to use the Service(s) beyond the expiration of the applicable Term of Service, you renew the related Service(s) for a successive Term of Service at Canto’s then-current list price.
- Termination. Canto may terminate this Agreement if Customer commits a material breach and the breach is not cured within thirty (30) days of receipt of written notice. In addition, Canto may terminate this Agreement or the affected Services if (a) you are delinquent on your payment obligations for sixty (60) days or more;
- ) a change in Canto’s relationship with a third-party software or technology provider has had a material adverse effect on Canto’s ability to provide the Services; (c) Canto is no longer licensed or permitted to provide the Services or Software due to a change in law, expiration or revocation of Canto’s existing licenses, or otherwise; or (d) you declare bankruptcy, are adjudicated bankrupt or a receiver or trustee is appointed for you or substantially all of your assets. If Customer purchased multiple Services, termination of an individual Service will not terminate this Agreement.
- Refund or Payment upon Termination. If Customer terminates this Agreement or certain Services for cause, Canto will refund to Customer any prepaid fees covering the remainder of the Term of Service of the terminated Services after the effective date of termination. If Canto terminates this Agreement or certain Services for cause, no fees will be refunded to Customer and all unpaid fees for the remainder of the Term of Service of the terminated Services after the effective date of termination will immediately become due and payable by Customer.
- Return of Customer Data. Upon termination of this Agreement for any reason, Customer may request the return of its Customer Data within thirty (30) days after the effective date of termination. Following such request and provided that Customer has no outstanding financial obligations to Canto under this Agreement, Canto will make available to Customer for download or will otherwise transmit to Customer a file (or multiple files) containing the Customer Data. Customer will reimburse Canto for any reasonable costs incurred in connection with returning the Customer Data to Customer, and Canto may require Customer to pay for such costs in advance. If Customer does not request the return of the Customer Data within such thirty (30)-day period, Canto or its contractors may, in its or their sole discretion, delete or destroy the Customer Data.
- Ownership. All right, title and interest, including all patents, copyrights, trade secret rights and any other intellectual property rights, in and to the Services, including any Software, Documentation, work product and any know-how and methods that make up the Services or by which the Services are provided, are and will be owned solely and exclusively by Canto (and its licensors), and Customer will have no rights whatsoever, directly or by implication, estoppel or otherwise, in any of the above, except as expressly granted in this Agreement. Any know-how, technology, software, work product or intellectual property rights developed by or on behalf of Canto during the provision of the Services will belong solely and exclusively to Canto.
- Restrictions. Customer will not: (a) decompile, reverse engineer, modify, reproduce, mirror, frame or distribute any portion of the Subscription Services, including any Software and Documentation; (b) create derivative works based on the Subscription Services, the Software or the Documentation; (c) access or use the Subscription Services or Software in order to (i) build a competing service or develop competing software, (ii) benchmark the Subscription Services or the Software, or (iii) copy or modify any features, functions or graphics of the Subscription Services or the Software.
- Customer Data. As between Customer and Canto, all Customer Data belongs to Customer, and Canto makes no claim to any right of ownership in any Customer Data. You consent to Canto’s use of Customer Data to provide the Services to you and any Authorized Users or Guest Users (if applicable). Canto may obtain information related to your use of the Services, and may analyze Customer Data solely as aggregated with data of multiple additional customers. You agree that Canto may use such information in aggregate form in an anonymous manner in support of Canto’s marketing activities related to the Services and Canto’s efforts to improve and enhance its services and products. Further, Canto may observe and report back to you on your usage of the Services and make recommendations to you for improved usage of the Services.
- Customer Logo. Customer grants to Canto the non-exclusive right to use the Customer‘s symbols (registered or non-registered national trademarks of a word and/or figurative nature, or company symbols and/or logos) only for Canto‘s marketing purposes, as a reference in the interests of customer acquisition, but not as a trademark. In particular, this right applies to the publication of press releases regarding Canto‘s success stories, in printed or electronic form, advertisements, marketing brochures, and other articles which Canto publishes. This permission from Customer is limited to this intended use, and no provision in this section grants Canto any further- reaching rights to Customer’s respective intellectual property.
- Feedback. Customer grants to Canto a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable and perpetual license to use or incorporate into the Services (including the Software and Documentation) any suggestions, enhancement requests, recommendation or other feedback provided by Customer (including Authorized Users) relating to the Services.
- WARRANTIES AND DISCLAIMERS
- Canto’s Warranties. Canto represents and warrants to Customer that (a) Canto has the legal power to enter into this Agreement; (b) Canto owns or otherwise has the right to provide the Subscription Services under this Agreement; and (c) Canto will perform the Set-up Services and any Consulting Services in a workmanlike manner and with diligence and skills consistent with industry standards.
- Customer Warranties. Customer represents and warrants to Canto that (a) Customer has the legal power to enter into this Agreement; and (b) Customer’s decision to purchase the Services is not based upon any oral or written representation by Canto or any other party regarding proposed or potential features, functionality or scope of the Services or Software.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES (INCLUDING ANY SOFTWARE AND DOCUMENTATION) ARE PROVIDED “AS-IS” AND WITH ALL FAULTS, AND CANTO (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS) MAKES NO AND DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE SERVICES (INCLUDING ANY SOFTWARE AND DOCUMENTATION), INCLUDING WITHOUT LIMITATION, ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (2) RELATING TO THE PERFORMANCE OF SUBSCRIPTION SERVICES (INCLUDING WHETHER THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR WITHOUT ERROR) OR THE SECURITY OF THE SUBSCRIPTION SERVICES; (3) REGARDING THE RESULTS TO BE OBTAINED FROM THE SERVICES; OR (4) ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE. ALL THIRD-PARTY PRODUCTS PROVIDED IN CONNECTION WITH THE SERVICES ARE “AS IS.” THE ENTIRE RISK AS TO SATISFACTORY USE, PERFORMANCE AND QUALITY OF THE SERVICES IS WITH THE CUSTOMER.
Confidential Information of a party (the “disclosing party”) may not be disclosed by the other party (the “receiving party”) except on a “need-to-know” basis to its affiliates, employees, agents and contractors who have agreed in writing to treat the Confidential Information under terms at least as restrictive as those in this Agreement. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient will provide advance notice to the other party before making the disclosure. The foregoing confidentiality restrictions will not apply to Confidential Information of the disclosing party to the extent that the receiving party can demonstrate that: (a) such information is generally available for use and disclosure by the public without any charge or license and without a breach of an obligation of confidentiality to the disclosing party; (b) such information was in the possession of the receiving party without an obligation of confidentiality prior to its disclosure by the disclosing party; (c) the receiving party rightfully obtained such information from a third-party without restriction as to use or disclosure or the breach of an obligation of confidentiality to the disclosing party; or (d) the receiving party developed such information without use of or access to software, technology, ideas, algorithms or other data derived from such information or the use thereof.
- By Customer. Customer will defend, indemnify and hold harmless Canto and its affiliates, contractors and agents from and against all claims, actions, suits, losses, costs, expenses, liabilities and damages (including attorneys’ fees) brought against or incurred by any of them as a result of or in connection with: (a) the infringement or alleged infringement of any copyright, trade secret right or other intellectual property right of any third-party by any Customer Data or Customer’s use of the Subscription Services; (b) the violation or alleged violation of any law, regulation or order by any Customer Data or Customer’s use of the Subscription Services; or (c) any breach of Customer’s obligations under this Agreement.
- By Canto. Canto will defend Customer against any third-party claim brought against Customer during any Term of Service and alleging that the Subscription Services as provided to Customer infringe the third-party’s copyrights, and pay any amounts (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction to the extent based on such claim or pay any settlement of such claim that is agreed to by Canto. In the event a claim of infringement arises or is likely to arise, Canto may, at its sole option and expense: (a) procure for Customer the right to continue using the affected Subscription Services; (b) replace or modify the affected Subscription Services so that it does not or is less likely to infringe: or (c) if Canto reasonably determines that (a) or (b) are not commercially practicable, terminate Customer’s right to access and use the affected Subscription Services. If Canto so terminates Customer’s right to access and use such Subscription Services, Canto will refund to Customer the fees pre- paid hereunder for such Subscription Services prorated over the applicable Term of Service. Canto will have no liability for any claim based upon (i) use, operation or combination of the applicable Subscription Services with non-Canto software, service, data, hardware or documentation if such infringement would have been avoided but for such use, operation or combination; (ii) any third-party software; or (iii) unauthorized use of the Subscription Services. THIS SECTION 9.2 CONSTITUTES THE ENTIRE LIABILITY OF CANTO, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OF THIRD–PARTY RIGHTS.
- Procedures. The indemnified party must (a) promptly notify the indemnifying party in writing of any claim, (b) allow the indemnifying party to have sole control of the claim, and (c) fully cooperate with the indemnifying party in the defense and settlement of the claim.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CANTO AND ITS AFFILIATES, CONTRACTORS, AGENTS AND LICENSORS WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES, SOFTWARE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR (1) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS; (2) LOST OR CORRUPTED DATA OR SOFTWARE OR THE RECOVERY OF SUCH; (3) LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (4) LOSS OF BUSINESS OPPORTUNITY; (5) BUSINESS INTERRUPTION OR DOWNTIME; OR (6) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, WHETHER SUCH DAMAGES ARE BASED ON OR AROSE FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE. CANTO’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IN ANY 12–MONTH PERIOD WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER DURING THE PRIOR TWELVE (12) MONTHS OF THIS AGREEMENT FOR THE SPECIFIC SERVICE GIVING RISE TO SUCH CLAIMS OR DAMAGES. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR CANTO’S PROVISION OF SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
- Assignment. Customer may not assign this Agreement or any rights or obligations under this Agreement to a third-party without Canto’s prior written consent and any attempt to do so will be null and void.
- Notices. Any notice required or permitted hereunder will be in writing and will be deemed to have been duly given if mailed by international overnight express mail service to the applicable address set forth below; or, in the case of notices from Canto to Customer, also if provided by e-mail. Notices to Canto will be sent to Canto’s address indicated at the preamble to this Agreement (or to such other address as Canto may designate by notice hereunder) and must be marked: “Attention: Licensing Department.” Notices to Customer will be sent to Customer’s address indicated at the preamble to this Agreement or to such other address or email address as Customer may designate during registration or by notice hereunder.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder.
- Entire Agreement; Severability. This Agreement and the Order Forms constitute the entire agreement between Customer and Canto with respect to its subject matter and supersede all prior oral and written understandings, communications, or agreements between Customer and Canto for the Services. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the provision and this Agreement will otherwise remain in full force and effect and enforceable.
- Amendments. Any amendments of or waivers with respect to this Agreement will be valid or binding only if made in writing and signed by a representative of the respective parties authorized to bind the parties.
- Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of California, without regard to conflicts of laws provisions thereof. The provisions of the United Nations Convention on the International Sales of Goods are hereby disclaimed and excluded. All disputes arising under or relating to this Agreement will be resolved exclusively in the state and federal courts sitting in San Francisco, California, and Customer hereby irrevocably waives any objection to the exercise of such court’s jurisdiction in such proceedings. Notwithstanding the foregoing, Canto reserves the right to bring suit against Customer in any court with competent jurisdiction over Customer. Customer recognizes and agrees that there may not be adequate remedy at law for a breach of this Agreement by Customer, that such a breach could irreparably harm Canto, and that Canto is entitled to seek equitable relief (including, without limitation, injunctions) with respect to any breach or potential breach in addition to any other remedies. The prevailing party in any action to enforce this Agreement will be entitled to recover costs and expenses including, without limitation, reasonable attorneys’ fees.
- Independent Contractor Relationship. The parties are independent contractors. No provision of this Agreement creates an association, trust, partnership, or joint venture or imposes fiduciary duties, obligations, or liability between Customer and Canto. Neither party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement.
- Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which the performance is delayed by circumstances beyond its reasonable control, such as systemic electrical, telecommunications, or other utility failures, earthquake, storms, fire, flood or other elements of nature, embargo, strike, riot, terrorism, change in law or policy, or the intervention of any governmental authority (a “Force Majeure”). The delayed party will promptly provide the other party with written notice of the Force Majeure.
- U.S. Government Restricted Rights. The Software and Documentation provided with the Services are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as these terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R.
12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the Software and Documentation with only those rights set forth herein.