Terms of Service

Effective Date: 4 January 2024

These Cercling Terms of Service (the"Agreement") are entered into by and between the Cercling entity set forth below ("Cercling") and the entity or person placing an order for, or accessing, any Services ("Customer” or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to"you” or"Customer” reference your company.

This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Cercling pursuant to Order Form(s) (defined below) and sets forth the terms and conditions under which those products and services will be provided. This Agreement includes the Additional Product Terms, incorporated by reference herein.

The"Effective Date” of this Agreement is the date that is the earlier of: (a) Customer's initial access to any Services (as defined below) through any online provisioning, registration, or order process or (b) the effective date of the first Order Form referencing this Agreement.
As used in this Agreement,"Cercling” means
(a) Cercling, Inc., a Delaware corporation with a mailing address at 221 W 9th St Ste 484 Wilmington, DE 19801 USA, if Customer's shipping address on the applicable Order Form is located in the United States of America;
or (b) Cercling R&D Unlimited Company, a Canadian company with offices at 6B- 8 Rosebank Drive, Toronto, if Customer's shipping address on the applicable Order Form is located anywhere else in the world.
Modifications to this Agreement: From time to time, Cercling may modify this Agreement. Unless otherwise specified by Cercling, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below), or entry into a new Order Form. Cercling will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. Customer may be required to click to accept or otherwise agree to the updated Agreement before renewing a Subscription Term or entering into a new Order Form, but in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If Cercling specifies that changes to the Agreement will take effect prior to Customer's next renewal or new Order Form (such as for legal compliance, product or pricing change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term on notice in writing to Cercling and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term, commencing on the date notice of termination was received.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.
1. Definitions
"Affiliate” means any entity under the control of Customer where "control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
"AUP” means Cercling’s Acceptable Use Policy, available at https://cercling.com/acceptable-use-policy or a successor URL, incorporated into these terms by this reference.
"Beta Offerings” means pre-release services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings.
"Contractor” means an independent contractor or consultant.
"Customer Data” means any data, content or other information of any type that is submitted to the Services by or on behalf of Customer, including without limitation:
(a) data, content or other information submitted, uploaded, instructed to be used for or imported to the Services by Customer (including from Third Party Platforms)
(b) data, content or other information provided by or about People (including chat and message logs) that are collected from the Customer Properties using the Services.
"Customer Properties” means Customer's websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services to communicate with People
"Dashboard” means Cercling’s user interface for accessing and administering the Services that Customer may access via the web or the Cercling Apps.
"Documentation” means the technical user documentation provided with the Services.
"Feedback” means comments, questions, suggestions or other feedback relating to any Cercling product or service, including, without limitation, integrations with Third Party Messaging Apps. Feedback does not include any Customer Data.
"Intellectual Property Rights” include all valid patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country or other jurisdiction.
"Cercling Apps” means any integrations and applications created or developed by Cercling or its Affiliates that are made available in Cercling’s App Store (located at https://www.cercling.com/app-store or any successor thereof) or a third-party app store as designated by Cercling.
"Cercling Code” means certain JavaScript code, software development kits (SDKs), application programming interfaces (APIs), other code or libraries provided by Cercling for deployment on Customer Properties.
"Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
"Order Form” means a written or electronic form referencing this Agreement that is used to order the Services, including, without limitation, an online registration or payment process completed through Cercling’s website. The Order Form may contain details about your order, the applicable service plan, contracted usage quantity (e.g., seats or other usage quantity metric identified in the Order Form) and Subscription Term. Upon execution by the parties (or, in the case of electronic orders, confirmation and placement of the order), each Order Form will be subject to the terms and conditions of this Agreement.
"People” (in the singular,"Person") means Customer's end user customers, potential end user customers, and other users of and visitors to the Customer Properties.
"Permitted User” means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
"Sensitive Personal Information” means any of the following:
(i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS");
(ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA") not authorized or covered by a duly executed Business Associate Agreement with Cercling;
(iii) any other personal data of an EU citizen deemed to be in a"special category” (as identified in EU General Data Protection Regulation or any successor directive or regulation).
"Services” means Cercling’s proprietary software-as-a-service solution(s), including the Dashboard, Cercling Code and Cercling Apps and, if applicable, those services and features covered by the Additional Product Terms, as described in the applicable Order Form.
"Taxes” means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Cercling.
"Third Party Messaging App(s)” means a separate, stand-alone application or service accessible apart from the generally available Services to which Customer subscribes. A Third-Party Messaging App allows Customer to integrate Customer's Cercling App account(s) with Customer's Third Party Messaging App services account(s).
"Third-Party Platform(s)” means any software, software-as-a-service, data sources or other products or services not provided by Cercling that are integrated with or otherwise accessible through the Services.
2. Cercling Services
2.1. Services Overview
Cercling’s Services are a suite of customer service-oriented software-as-a-service solutions offered through an online platform. The Services are designed to enable Customer to manage interactions with People through the entire lifecycle of their relationship.
2.2. Provision of Services
Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a"Subscription Term"). Customer will purchase and Cercling will provide the specific Services as specified in the applicable Order Form.
Some Services may be subject to Additional Product Terms. By accessing or using a product or feature covered by the Additional Product Terms, Customer hereby agrees that their use of those Services is governed by the applicable Additional Product Terms.
2.3. Access to Services
Customer may access and use the Services solely for its own benefit (and for the benefit of People) and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including, without limitation, the usage quantity tracked). Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on Cercling’s systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs and related credentials are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will promptly delete such user ID and otherwise terminate such Permitted User's access to the Service. Cercling reserves the right to suspend access to any Services or features (including, without limitation, in-app messaging and integrations with Third Party Platforms and Third Party Messaging Apps) if Customer has exceeded applicable usage limits (if any) or if Cercling otherwise determines, in its sole discretion, that Customer is using the applicable Service in a manner that has become excessive (e.g., substantially exceeds typical use projections or exceeds usage by similar-sized customers (where customer size is defined by number of seats), including, but not limited to, storage and bandwidth consumption) and/or negatively impacts the operability, integrity, or security of the Service until usage is reduced to reasonable levels, as determined by Cercling and/or such impact is resolved to Cercling’s satisfaction. We may change usage limits at any time, in our sole discretion, without notice.
2.4. Cercling Apps
To the extent Cercling provides Cercling Apps for use with the Services, subject to all of the terms and conditions of this Agreement (unless otherwise indicated in the specific Cercling App), Cercling grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Cercling Apps internally, but only in connection with Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.5. Cercling Code
The right to use the Services includes the right to deploy Cercling Code on Customer Properties in order to enable messaging, calling, chat and other functionality and to collect Customer Data for use with the Services as further described herein. Subject to all of the terms and conditions of this Agreement, Cercling grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to copy and implement the Cercling Code in the form provided by Cercling on Customer Properties solely to support Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement. Customer must implement Cercling Code on the Customer Properties in order to enable the relevant features of the Services. Customer will implement all necessary Cercling Code in strict accordance with the Documentation and other instructions provided by Cercling. Customer acknowledges that any changes made to the Customer Properties after initial implementation of Cercling Code may cause the Services to cease working or to function improperly and that Cercling will have no responsibility for the impact of any such Customer changes.
2.6. Contractors and Affiliates
Customer may permit its employees and Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement and any use of the Services by such Permitted Users is for the sole benefit of Customer.
2.7. General Restrictions
Customer will not (and will not permit any third party to):
(a) rent, lease, provide access to or sublicense the Services to a third party;
(b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party other than the Customer Properties;
(c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Cercling);
(d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing;
(e) remove or obscure any proprietary or other notices contained in the Services and/or on any reports or data printed from the Services (unless otherwise expressly permitted by Cercling in advance);
(f) publicly disseminate information regarding the performance of the Services;
(g) use the Services for competitive analysis purposes; or (h) otherwise violate our AUP.
2.8. Cercling APIs
If Cercling makes access to any APIs available as part of the Services, Cercling reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Cercling may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if Cercling believes that Customer's usage is in breach of this Agreement or may negatively affect the security, operability, or integrity of the Services (or otherwise impose liability on Cercling).
2.9. Trial Subscriptions
If Customer receives free access or a trial or evaluation subscription to the Service (a"Trial Subscription"), then Customer may use the Services in accordance with the terms and conditions of this Section (and any other supplemental trial terms agreed by Customer) for a period of fourteen (14) days or such other period granted by Cercling (the"Trial Period"). Trial Subscriptions are permitted solely for Customer's evaluation to determine whether to purchase a paid subscription to the Services or an upgrade to a service plan. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term and may be subject to usage limits. If Customer does not enter into a paid Subscription Term prior to the expiration of the Trial Period, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period, except as otherwise set forth herein. If stated in the Order Form or Additional Product Terms for a specific Service or otherwise communicated in advance by Cercling to Customer, a paid Subscription Term will commence automatically once the Trial Period expires, and Customer will be charged for any continued use of the Services. Cercling has the right to terminate a Trial Subscription at any time for any reason.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CERCLING WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, SERVICE LEVEL AGREEMENT ("SLA"), OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
2.10. Beta Offerings
Customer may choose to use Beta Offerings in its sole discretion. Use of Beta Offerings may be subject to additional terms. Cercling, in its discretion, may offer a Beta Offering with or without charge. Cercling reserves the right to start charging and/or modify the pricing for a Beta Offering upon prior written notice to Customer. Beta Offerings may be changed at any time without notice and may not be maintained and/or become generally available. Beta Offerings are to be used for Customer's internal testing and evaluation purposes only and are not subject to the same security measures specified in the Security Policy. Cercling will have no liability arising out of or in connection with Beta Offerings and disclaims any warranty, indemnity, support, SLA, or other obligations with respect to its Beta Offerings.
CUSTOMER USES BETA OFFERINGS"AS IS” AND AT ITS OWN RISK.
3. Customer Data and Customer Obligations
3.1. Data Processing by Cercling
All data processing activities carried out as part of the Services will be governed by the Data Processing Addendum ("DPA") incorporated by reference herein.
3.2. Rights in Customer Data
As between the parties, Customer will retain all of Customer's Intellectual Property Rights in and to the Customer Data provided to Cercling. Subject to the terms of this Agreement, Customer hereby grants to Cercling a non-exclusive, worldwide, royalty-free right to access, use and display the Customer Data in order to provide the Services to Customer.
3.3. Storage of Customer Data
Cercling does not provide an archiving service. Cercling agrees only that it will not intentionally delete any Customer Data from the Services prior to termination of Customer's applicable Subscription Term and expressly disclaims all other obligations with respect to storage.
3.4. Anonymized Data
Notwithstanding anything to the contrary herein, Customer agrees that Cercling may use: certain technical and other data about Customers and People's use of the Services; and/or Customer Data, which, in all cases, is anonymized to remove any personal data of People ("Anonymized Data") to analyze, improve, support and operate the Services during and after the term of this Agreement, and Customer agrees that Cercling is permitted to anonymize Customer Data to use for the aforementioned purposes.
3.5. Customer Obligations
a) In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Cercling that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting Cercling the rights under Section 3) and that no Customer Data will violate or infringe: (i) any third party Intellectual Property Rights or, publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy or other policies and/or any other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.
b) No Sensitive Personal Information. Except as otherwise expressly agreed between the Parties in writing by entering into a business associate agreement for HIPAA data, Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Cercling is not a payment card processor and that the Services are not PCI DSS compliant. Except for Cercling’s obligations under any business associate agreement entered into with Customer, Customer shall be responsible for any Sensitive Personal Information it submits to the Service, and Customer acknowledges that Cercling is not subject to any additional obligations that may apply to any Sensitive Personal Information submitted to the Services.
c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including, without limitation, any activities that, to the extent applicable, violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other applicable anti-spam laws and regulations.
d) Disclosures on Customer Properties. Customer acknowledges that the Cercling Code causes a unique cookie ID to be associated with each Person who accesses the Customer Properties, which cookie ID enables Cercling to provide the Services. Customer will include on each Customer Property a link to a privacy policy that discloses Customer's use of third-party tracking technology to collect data about People and how, and for what purposes, the data collected will be used or shared with third parties. Customer must also provide People with clear and comprehensive information about the storing and accessing of cookies or other information on the Peoples' devices where such activity occurs in connection with the Services and as required by applicable Laws. For clarity, as between Customer and Cercling, Customer will be solely responsible for obtaining the necessary clearances, consents and approvals from People under all applicable Laws.
3.6. Indemnification by Customer
Customer will indemnify, defend and hold harmless Cercling from and against any and all third party (including, without limitation, People) claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising from or relating to any Customer Data, Customer's use of a Third-Party Messaging App, Third-Party Platform or breach or alleged breach by Customer of Section 3.5 (Customer Obligations). This indemnification obligation is subject to Customer receiving
(i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice);
(ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Cercling at Customer's expense.
Notwithstanding the foregoing sentence, (a) Cercling may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Cercling’s prior written consent, unless the settlement fully and unconditionally releases Cercling and does not require Cercling to pay any amount, take any action, or admit any liability.
4. Security
Cercling agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access to or use of the Services, as described in Cercling’s Security Policy attached as Schedule 2 to the DPA. However, Cercling will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Cercling’s control.
5. Third-Party Platforms and Third Party Messaging Apps
5.1. Integration with Third Party Platforms
The Services may support integrations with certain Third-Party Platforms. Customer may import and export Customer Data between the Services and certain Third-Party Platforms through supported integrations. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes Cercling to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Cercling has no responsibility or liability for any Third-Party Platform, including, without limitation, any beta releases or pre-release features of a Third-Party Platform, or how a Third-Party Platform uses or processes Customer Data after it is exported to such Third-Party Platform. Cercling does not guarantee that the Services will maintain integrations with any Third-Party Platform, and Cercling may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.
5.2. Third Party Messaging Apps
Customer represents and warrants that Customer has agreed to the terms of service associated with any Third Party Messaging App(s) and has created, or has authorized Cercling to create on Customer's behalf, a Third Party Messaging App account in accordance with such terms and conditions, which govern Customer's use of such Third Party Messaging App account. Cercling will have no liability for and the Third Party Messaging App provider is solely responsible for the Third Party Messaging App's network, functionality, clients, and APIs.
6. Ownership
6.1. Cercling Technology
This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words"purchase","sale” or like terms in this Agreement, no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Cercling or its suppliers retain all right, title and interest (including all Intellectual Property Rights) in and to the Services and all Documentation, integrations with the Services, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including any Feedback (collectively, "Cercling Technology"). Except as expressly set forth in this Agreement, no rights in any Cercling Technology are granted to Customer.
6.2. Feedback
Customer, from time to time, may submit Feedback to Cercling. Cercling may freely use or exploit Feedback in connection with the Services and Cercling Technology. Customer hereby grants to Cercling a perpetual, non-exclusive, transferable, irrevocable, worldwide, royalty-free license (with rights to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose and otherwise commercially exploit the Feedback.
7. Subscription Term, Fees & Payment
7.1. Subscription Term and Renewals
a) Monthly Subscription Term. For a month-to-month subscription, the Subscription Term will automatically renew on a monthly basis. Each successive contract month will be considered a "renewal term.” Customer may cancel a month-to-month subscription at any time by going to the"Settings” page in the Dashboard, and the effective termination date will be the last day of the then-current renewal term.
b) Yearly or Multi-Year Subscription Term. For a yearly or multi-year subscription, the initial Subscription Term is set forth in the Order Form. The Subscription Term will automatically renew for additional, successive twelve month periods (each, a"renewal term"), unless either party gives the other written notice of intent not to renew at least thirty (30) days prior to expiration of the initial Subscription Term or then-current renewal term. Customer will send written notice of intent not to renew to accountsreceivable@cercling.com.
7.2. Fees and Payment
a) Monthly Subscription Term. All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via a Recurring Payment Method (as defined below) or (b) otherwise specified in the applicable Order Form. Cercling reserves the right to adjust pricing for any service plan and/or any Service(s) to the then-current list price upon the start of any renewal term.
a) Baseline Monthly Fee. Cercling will charge Customer the monthly subscription fee in advance of each billing period. The monthly subscription fee will be based on the contracted quantity of full seats purchased for the applicable service plan plus any upgrades (e.g., Proactive Support Plus), if applicable. Customer's invoice will also include any fees for one-time services (e.g., onboarding services) ordered by Customer.
c) Additional Usage Charges. In addition to the monthly subscription fee, if Customer uses any Services that are subject to additional usage charges and/or if Customer's actual usage exceeds Customer's contracted usage quantity, Customer will be charged additional usage fees (calculated based on published pricing and/or applicable unit price set forth in the Order Form).
Services. For any Services that are subject to additional usage charges, the applicable charges will be calculated based on the actual amount of usage of each Service in the given contract month. These additional usage charges will be billed in arrears in the next invoice that Customer receives following the date when the charges were incurred.
Seats. With respect to charges for full seats specifically, if Customer exceeds the originally contracted quantity, the additional seats activated by Customer will be billed as additional usage charges. In the month the additional seats are activated, these charges will be prorated as of the effective date of the change and included in the next invoice that Customer receives. Thereafter, these additional usage charges will be pre-billed for each month that the additional seats remain activated, unless Customer's Order Form specifies otherwise. At any time, Customer may reduce the then-current full seat quantity (but no lower than the originally contracted quantity), in which case, Customer will receive a credit on their account for the prorated portion of the pre-paid additional usage charges for the number of days that the removed seats were not activated during the contract month.
d) Taxes. Except as expressly set forth in this Agreement, all fees are non-refundable. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. Cercling will invoice Customer for Taxes as well as any legally required fees arising from Customer's use of Services if Cercling believes it has a legal obligation to do so, and Customer will pay such Taxes and fees if invoiced. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Cercling receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Recurring Payment Method
If you are purchasing the Services via credit card, debit card or any other recurring payment method accepted by Cercling ("Recurring Payment Method"), the following terms apply:
a) Recurring Billing Authorization. By providing Recurring Payment Method information and agreeing to purchase any Services, Customer hereby authorizes Cercling (or its designee) to automatically charge Customer's Recurring Payment Method on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's usage of the Services and may include adjustments to monthly subscription fee, upgrade fees, one-time service fees, additional usage charges, taxes and other fees as described above.
b) Foreign Transaction Fees. Customer acknowledges that for certain Recurring Payment Methods, the provider/issuer may charge a foreign transaction fee or other charges.
c) Invalid Payment. If a payment is not successfully settled due to expiration of a Recurring Payment Method, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Cercling and Cercling may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Recurring Payment Method once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
d) Changing Recurring Payment Method Information. At any time, Customer may change its Recurring Payment Method information by entering updated information via the "Settings” page on the Dashboard.
e) Payment of Outstanding Fees. Upon any termination or expiration of the subscription, Cercling will charge Customer's Recurring Payment Method (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Term, after which payment, Cercling will not charge Customer's Recurring Payment Method for any additional fees.
7.4. Suspension of Service
If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Cercling reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. Cercling also reserves the right to suspend Customer's access to the Services, without liability, if Customer's use of the Services is in violation of the AUP or this Agreement.
8. Term and Termination
8.1. Term
This Agreement is effective as of the Effective Date and expires on the date of the last to expire Subscription Term under any Order Form, unless earlier terminated as set forth herein.
8.2. Termination for Cause
Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination
Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Cercling Technology) and delete (or, at Cercling’s request, return) any and all copies of the Documentation, any Cercling passwords or access codes and any other Cercling Confidential Information in its possession. Customer acknowledges that following termination, it will have no further access to any Customer Data input into any Service, and that Cercling may delete any such data as may have been stored by Cercling at any time. Except where an exclusive remedy is specified, the exercise by either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4. Survival
The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 2.10 (Beta Offerings), 3.3 (Storage of Customer Data), 3.4 (Anonymized Data), 3.6 (Indemnification by Customer), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Recurring Payment Method), 8.3 (Effect of Termination), 8.4 (Survival), 9.2 (Warranty Disclaimer), 12 (Limitation of Liability), 13 (Indemnification), 14 (Confidential Information) and 16 (General Terms).
9. Limited Warranty
9.1. TermLimited Warranty
Cercling warrants, for Customer's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Cercling’s sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Cercling to use commercially reasonable efforts to correct the reported non-conformity, or if Cercling determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) if Services are provided to Customer to use on a no-charge, trial, beta or evaluation basis.
9.2. Warranty Disclaimer
EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL SERVICES ARE PROVIDED"AS IS". NEITHER CERCLING NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CERCLING DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES CERCLING WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY. CERCLING SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. CERCLING SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS, THIRD PARTY APPS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CERCLING. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. Availability
The Services are available subject to Cercling’s Service Level Agreement ("SLA").
11. Support
During the Subscription Term of each Service, Cercling will provide end user support in accordance with Cercling’s Support Policy ("Support Policy").
12. Limitation of Liability
12.1. Consequential Damages Waiver
EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.2. Liability Cap
EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), EACH PARTY'S ENTIRE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO CERCLING UNDER THE AGREEMENT GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
12.3. Excluded Claims
"Excluded Claims” means any claim arising (a) from Customer's breach of Section 2.7 (General Restrictions); (b) under Section 3.5 (Customer Obligations) or 3.6 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 14 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service or relating to Customer Data).
12.4. Nature of Claims and Failure of Essential Purpose
The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12.5. Applicable Law
The limitations on liability under this Section 12 will not apply to the extent such liability cannot be limited under applicable law.
13. Indemnification
Cercling will defend Customer from and against any claim by a third party alleging that a Service when used as authorized under this Agreement infringes any Intellectual Property Rights and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by Cercling (including reasonable attorneys' fees) resulting from such claim, provided that Cercling will have received from Customer:
(i) prompt written notice of such claim (but in any event notice in sufficient time for Cercling to respond without prejudice);
(ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim;
(iii) all reasonable necessary cooperation of Customer.
If Customer's use of a Service is (or in Cercling’s opinion is likely to be) enjoined, if required by settlement or if Cercling determines such actions are reasonably necessary to avoid material liability, Cercling may, in its sole discretion:
(a) substitute substantially functionally similar products or services;
(b) procure for Customer the right to continue using such Service; or if (a) and (b) are not commercially reasonable;
(c) terminate this Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by Cercling.
The foregoing indemnification obligation of Cercling will not apply:
(1) if such Service is modified by any party other than Cercling, but solely to the extent the alleged infringement is caused by such modification;
(2) if such Service is combined with products or processes not provided by Cercling, but solely to the extent the alleged infringement is caused by such combination;
(3) to any unauthorized use of such Service;
(4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Service;
(5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service;
(6) to any action arising from Customer's use of Third Party Messaging Apps;
or (7) if Customer settles or makes any admissions with respect to a claim without Cercling’s prior written consent.
THIS SECTION 13 SETS FORTH CERCLING’S AND ITS SUPPLIERS' SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
14. Confidential Information
Each party (as"Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Cercling Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Cercling without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Cercling, the subcontractors referenced in Section 16.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14.
The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document:
(i) was rightfully in its possession or known to it prior to receipt of the Confidential Information;
(ii) is or has become public knowledge through no fault of the Receiving Party;
(iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation;
or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
15. Confidential Information
15.1. AI-Driven Communication
Use Restrictions: Users agree to employ Cercling’s AI-driven communication tools only for lawful and ethical purposes. Any misuse, including manipulation of information or unauthorized data extraction, is strictly prohibited.
15.2. Data Handling in Cercling
Data Processing Agreement: Users consent to Cercling’s data processing methods as outlined in our Data Processing Agreement, available upon request. Cercling acts as a data processor, handling data in accordance with user instructions and applicable laws.
15.3. Keyword Detection and Workflow Automation
Proprietary Technology: Cercling’s keyword detection and workflow automation are proprietary technologies. Users must adhere to specific guidelines regarding their usage, ensuring no infringement of Cercling’s intellectual property rights.
15.4. Integration with ERP, TMS, and CRM
Compatibility and Agreements: Integrations with external Enterprise Resource Planning (ERP), Transportation Management Systems (TMS), and Customer Relationship Management (CRM) systems are subject to compatibility checks. Additional agreements may be required to facilitate these integrations.
16. Publicity
Cercling may, upon Customer's prior written consent, use Customer's name to identify Customer as an Cercling customer of the Services, including on Cercling’s public website. Cercling agrees that any such use shall be subject to Cercling complying with any written guidelines that Customer may deliver to Cercling regarding the use of its name and shall not be deemed Customer's endorsement of the Services.
17. General Terms
17.1. Assignment
This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
17.2. Severability
If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
17.3. Governing Law; Dispute Resolution
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ( "Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute,” specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to Cercling it must be emailed to legal@cercling.com and sent via mail to:
Attn: Legal Department Cercling 221 W 9th St Ste 484 Wilmington, DE 19801
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute may subsequently be resolved in a court of law as set forth below.
b) Choice of Law and Jurisdiction. FOR ANY CLAIM WHICH IS NOT SUBJECT TO THIS DISPUTE RESOLUTION PROVISION, CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA. IN ANY DISPUTE, CALIFORNIA LAW SHALL APPLY.
c) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND CERCLING AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
d) Injunctive Relief. Notwithstanding the above provisions, Cercling may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
17.4. Notice
Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email on the first business day after we send it. You agree that any electronic communication satisfies any applicable legal communication requirements, including that such communications be in writing.
17.5. Amendments; Waivers
Except as provided under"Modifications to this Agreement” and otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer that may be referenced in the Order Form or otherwise issued by Customer will supersede or modify the terms and conditions of this Agreement (regardless of any statement to the contrary in such document), and any such document relating to this Agreement will be for Customer's convenience and administrative purposes only and will have no legal effect.
17.6. Entire Agreement
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Cercling may make changes to the Services, and Cercling will update the applicable Documentation accordingly. The support and service level availability terms described in the Security Policy, the Support Policy, and the SLA may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Cercling’s obligations as compared to those reflected in such terms as of the Effective Date).
17.7. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
17.8. Subcontractors
Cercling may use the services of subcontractors and permit them to exercise the rights granted to Cercling in order to provide the Services under this Agreement, provided that Cercling remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement, (ii) for the overall performance of the Services as required under this Agreement, and (iii) compliance with the terms of the DPA.
17.9. Subpoenas
Nothing in this Agreement prevents Cercling from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Cercling will use commercially reasonable efforts to notify Customer where permitted to do so.
17.10. Independent Contractors
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
17.11. Export Control and Economic Sanctions
Each party: (i) agrees to comply with all export control and economic sanctions and any relevant import laws and regulations of the United States and other applicable jurisdictions, and (ii) represents and warrants that it is not listed on any U.S. or other government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government export control embargo or economic sanctions. Without limiting the foregoing, (a) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export control or economic sanction, prohibition or restriction, and (b) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations or that is controlled under any Export Control Classification Number (other than EAR99) on the Commerce Control List of the Export Administration Regulations.
17.12. Government End-Users
Elements of the Services are commercial computer software. If Customer or end user of the Services is an agency, department, or other entity of the United States Government, then the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 (Computer Software) for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 (Rights in Commercial Computer Software or Commercial Computer Software Documentation) for military purposes. All Services were developed fully at private expense.
17.13. Counterparts
This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
18. Additional Clauses (Unique to Cercling)
18.1. Supply Chain Specifics
Communication Protocol: Users must adhere to standardized communication protocols, ensuring clear, consistent, and secure exchange of supply chain information.
Operational Compliance: All supply chain operations through Cercling must comply with relevant industry standards, including local and international regulatory requirements. Users are responsible for ensuring their operations meet these standards.
18.2. Advanced Analytics
Usage Policy: Analytics provided by Cercling are intended for internal business use, including decision-making and strategy development. Redistribution or commercial use of these analytics without prior consent is prohibited.
Data Accuracy: While Cercling strives to ensure accuracy, we do not guarantee the completeness of analytics data. Decisions based on this data are the sole responsibility of the user.
18.3. Custom Keyword and Workflow Automation
Creation Guidelines: Users can create custom keywords and automated workflows within the scope of their business needs, ensuring no violation of data privacy laws or interference with Cercling’s system integrity.
Usage Limitations: Cercling reserves the right to limit the number of custom workflows or keywords per account to ensure optimal system performance and security.
18.4. API Use
Access and Usage Restrictions: API calls are subject to rate limits to maintain system stability. Users must not use Cercling’s APIs in a manner that adversely affects other users' access or the platform's performance.
Developer Responsibilities: Developers using Cercling’s API are required to maintain the confidentiality of API keys, adhere to data privacy laws, and implement appropriate security measures to protect user data.