Cerri Project Subscription Agreement
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SOFTWARE.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
YOU ACCEPT THIS AGREEMENT, EITHER BY CLICKING ON THE BOX INCLUDED WHEN YOU FIRST LOG IN TO YOUR ACCOUNT OR IN THE OFFER THAT REFERENCES 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 is effective between You and Us as of the date of You accepting this Agreement.
1. Definitions
"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 Subscription Agreement.
"Beta Services" means Cerri Project services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
"Content" means information obtained by Cerri from publicly available sources or third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Offer, as more fully described in the Documentation.
"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
"Marketplace" means an online directory, catalog or marketplace of applications that interoperate with Cerri.
"Non-Cerri Application" means a Web-based, mobile, offline or other software application functionality that is provided by You or a third party and interoperates with a Service.
"Offer" means an Order document or online order 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.
"Purchased Services" means Services that You or Your Affiliate purchase under an Offer, as distinguished from those provided pursuant to a free trial.
"Services" means the products and services that are ordered by You under an Offer or provided to You under a free trial.
"User" means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password.
"We," "Us" or "Our" means the Cerri company described in Section 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed the Offer.
"Your Data" means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-Cerri Applications.
2. Free Trial
If You register on Our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in our sole discretion.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
3. Our Responsibilities
3.1 Provision of Product. We will (a) put our Product and Content available to You pursuant to this Agreement and the applicable Offer, (b) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Our reasonable control.
3.2 Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation.
3.3 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement.
3.4 Beta Services. From time to time, We may make Beta Services available to You at no charge. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms.
4. Use of Services and Content
4.1 Subscriptions. Unless otherwise provided in the applicable Offer, (a) Product and access to Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing.
4.2 Usage Limits. Services and Content are subject to usage limits of 10GB per user and maximum file transfer size of 250 MB.
4.3 Your Responsibilities. You will (a) be responsible for Users' compliance with this Agreement and Offer, (b) be responsible for the accuracy, quality and legality of Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content.
5. Additional Terms for HCL Domino Users
5.1 Absence of HCL Subscription. If You do not hold a direct subscription for HCL Domino, the necessary licenses will be provided to You at an additional fee.
5.2 Existing HCL Subscription. Should You already possess an HCL Domino subscription independent of Cerri, You are required to demonstrate ownership of a number of HCL licenses equal to or exceeding the number of Cerri licenses.
6. Fees and Payment for Purchased Services
6.1 Fees. You will pay all subscription fees corresponding to your subscription plan, plus any applicable tax. Payment obligations are non-cancelable and fees paid are non-refundable.
6.2 Invoicing and Payment. You will sign a valid offer. Charges will be billed in advance, either annually or in accordance with any other billing frequency. Unless otherwise specified, charges are due net 15 working days from the date of invoice.
6.3 Overdue Charges. If any invoiced amount is not received by Us by the due date, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month.
6.6 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments. You are responsible for paying all Taxes associated with Your purchases.
7. Proprietary Rights and Licenses
7.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all right, title and interest in and to the Services and Content.
7.6 Intellectual Property Ownership. Cerri alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Cerri Technology, the Content and the Service.
8. Confidentiality
8.1 Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
9. Representations, Warranties, Exclusive Remedies and Disclaimers
9.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
11. Term and Termination
11.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
11.2 Term of Subscriptions. The term of each subscription shall be as specified in the applicable Offer. Subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
12. Who You Are Contracting With
You are contracting with: Cerri.com AG, a Swiss corporation
Notices should be addressed to: Winkelriedstrasse 35, 6003 Luzern, Switzerland
The governing law is: Lausanne, Switzerland
The courts having exclusive jurisdiction are: Lausanne, Switzerland
13. General Provisions
13.1 Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations.
13.2 Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement.
13.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.