“Affiliate” means any entity which 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.
“Customer Data” means all electronic data or information submitted by Customer to the Services, whether that data or information is submitted by Customer, Users, or general public users of the Network.
“Gross Revenue” means any and all sums invoiced by and/or owed to the Customer and its Affiliates in respect of any Network website, application or any other services derived from the use of the Services.
“Network” means the network of websites or web services operated by Customer, and Customer’s Users, and used in connection with the Services, including but not limited to the Customer’s own website, or web services, and third party web sites or web services that directly or indirectly are using the Services.
“Order Form” means the ordering documents for purchases hereunder that are entered into between Customer and Cxense from time to time. Order Forms shall be deemed incorporated herein by reference.
“Royalty Report” means a report generated by Cxense from Customer’s traffic and click-through data that include total numbers for a given time period and any aggregated calculations on revenue or conversion data.
“Services” means the online, Web-based applications and platform provided by Cxense via https://login.cxense.com and/or other designated websites as described in the User Guide, that are ordered by Customer under the Agreement, including any associated offline components.
“User Guide” means the online user guide for the Services, including a definition of the different Services offered by Cxense, accessible via Cxense Support Portal, as updated from time to time.
“Users” means individuals or entities that are authorized by Customer to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by Cxense at Customer’s request). Users may include but are not limited to third parties with which Customer transacts business and/or has a contractual relationship.
2.1. Provision of Services. Cxense shall make the Services available to Customer pursuant to this Agreement and the relevant Order Forms during the subscription term.
2.2. Subscriptions. Unless otherwise specified in the applicable Order Form, Services are purchased as subscriptions and the Services are limited to the specified capacity as described in the Order Form.
3. USE OF THE SERVICES
3.1. Cxense Responsibilities. Cxense shall: (i) provide to Customer basic support for the Services, (ii) use commercially reasonable efforts to make the critical support available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Cxense shall give at least 2 business days notice via the Cxense customer blog and which Cxense shall schedule to the extent practical during the weekend hours from 9:00 p.m. Pacific Standard Time (PST) Friday to 2:00 pm (PST) Sunday, or (b) any unavailability caused by circumstances beyond Cxense’s reasonable control, including without limitation force majeure events such as acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labor problems (other than those involving Cxense employees), Internet service provider failures or delays, or legal restrictions in accordance with applicable laws and government regulations. For further description of the Cxense support, see the SLO available Cxense Support Portal About Support.
3.2 Customer Responsibilities. Customer is responsible for (a) Customer’s and Users’ use of the Cxense Services, and (b) the appropriateness and legality of all Customer Data. Customer acknowledges that Cxense acts as a mere technological carrier and is not responsible for the content of the Customer Data or for evaluating the appropriateness of the Customer Data in relation to the environment where they are disclosed or published.
4. FEES AND PAYMENT FOR PURCHASED SERVICES
4.1. Fees. Customer shall pay all fees specified in all Order Forms hereunder in consideration for Cxense’s provision of the Services. Customer must pay to Cxense all fees that are owed under this Agreement even if the Customer has not received payment outstanding from the transactions utilizing the Services. Except as otherwise specified in this Agreement or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are payable based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the amount of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. If fees owed to Cxense are based on revenue share, Cxense will issue to Customer a Royalty Report on a monthly basis. Customer will have five (5) business days after receipt of the Royalty Report to dispute any amounts owed to Cxense. If Customer fails to dispute a Royalty Report within such time period, the Customer is deemed to have agreed to the amount owed to Cxense.
4.2. Invoicing and Payment. Cxense will issue quarterly invoices to Customer in advance of Customer’s use of the Services based on the applicable fixed and minimum monthly fees, as specified in the Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date.
If Customer is subscribing to Cxense Advertising and/or Cxense Display, Customer will pay Cxense a percentage of the Gross Revenue (“Royalty”) generated from the use of Cxense Advertising, with a monthly minimum amount as specified in the Order Form. If Customer receives a monthly Royalty Report, which shows that the minimum monthly fee is below the amount in the Royalty Report, Cxense will invoice Customer the minimum plus the Royalties.
All products are invoiced from Cxense except Cxense Display that will be invoiced from our legal entity Emediate ApS (in Denmark).
4.3. Overdue Charges. If any charges are not received from Customer by the due date, then at Cxense’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) charge a 50 USD fee for invoice reminders sent on the 30, 45, and 60 day anniversary of the due date, and/or (c) charge a fee of 1000 USD for reestablishing suspended services following a 70 day reminder, and/or (c) Cxense may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Clause 4.2, and/or (d) Cxense may charge Customer for any legal fees and/or collection costs incurred by Cxense in collecting any amounts due from Customer.
4.4. Suspension of Services and Acceleration. If any amount owed by Customer under this or any other agreement for the Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized Cxense to charge to Customer’s credit card), Cxense may, without limiting Cxense’s other rights and remedies under this Agreement and/or applicable laws, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services to Customer until the fees are paid in full.
4.5. Taxes. Unless otherwise stated, the Cxense fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes“). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Cxense has the legal obligation to pay or collect Taxes for which Customer is responsible under this clause, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Cxense with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Cxense is solely responsible for Taxes assessable against it based on Cxense’s income, property, and employees.
6. LIMITATION OF LIABILITY
6.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF (A) THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR (B) THE ACTUAL DIRECT DAMAGES SUSTAINED BY SUCH PARTY OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF (C) $250,000, (D) THE ACTUAL DIRECT DAMAGES SUSTAINED BY SUCH PARTY RELATED TO SUCH SINGLE INCIDENT, OR (E) THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER CLAUSE 4.
6.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE ABOVE DOES NOT APPLY IF THERE IS GROSS NEGLIGENCE OR INTENTIAL MIS-CONDUCT FROM EITHER PARTY.
7. TERM AND TERMINATION
7.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated.
7.2. Term of Purchased Subscriptions. Subscriptions purchased by Customer commence on the Effective Date if a start date is not otherwise specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall 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. The per-unit pricing or revenue share during any such renewal term shall be the same as that during the prior term unless Cxense has given Customer written notice of a pricing change at least 30 days before the end of such prior term, in which case the pricing change shall be effective upon renewal and thereafter.
7.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such 30-day period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.4. Refund or Payment upon Termination. Upon any termination for cause by Customer according to Clause 7.3, Cxense shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Cxense, Customer shall pay any unpaid fees covering the balance of the remaining term of all Order Forms that were valid up to the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Cxense for the period prior to the effective date of termination.
7.5. Return of Customer Data. Upon request by Customer made within 30 days after the effective date of termination of a purchased Services subscription, Cxense will make available to Customer for download a file of Customer’s Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Cxense shall have no obligation to maintain or provide any of Customer’s Data and may thereafter, unless legally prohibited, delete all of Customer’s Data in Cxense’s systems or otherwise in Cxense’s possession or under Cxense’s control.
7.6. Surviving Provisions. Clauses 4, 6, 7.4, 7.5, 8, 9, and 10 shall survive any termination or expiration of this Agreement.
8. INDEMNIFICATION AND LIABILITY
Subject to Sections 6.1 and 6.2 above, the Parties make the following representations, warranties and indemnities:
8.1 Representations, warranties and Indemnities by Cxense. Cxense warrants and represents at all times that Cxense (i) has the right and full power and authority to enter into this Agreement, to grant the rights herein granted and to fully perform its obligations hereunder, and (ii) that, to the best of its knowledge, the Services will not infringe the copyright held by any third party. In the event that a third party initiates any action against Cxense based on an infringement claim in respect of intellectual property rights of that third party, Cxense may, at its sole option, either (a) obtain for Customer the right to continue using the Services, (b) replace or modify the Services so that the Services no longer infringe or misappropriate the intellectual property rights of a third party; however, providing substantially the same functionality, or (c) terminate the Services. Cxense shall indemnify, defend and hold Customer harmless from and against any and all claims, actions, losses, damages, liabilities, reasonable costs and expenses (including reasonable outside attorneys’ fees) resulting from or arising out of or in connection with any breach of the foregoing representations and warranties. Customer shall promptly notify Cxense of all claims and proceedings related thereto of which Customer becomes aware.
8.2 Representations, warranties and Indemnities by Customer. Customer warrants and represents at all times that Customer (i) has the right and full power and authority to enter into this Agreement, to grant the rights herein granted and to fully perform its obligations hereunder, (ii) owns and/or has the right to use any and all Customer Data, and all materials contained on the Customer and/or its Affiliates websites and/or applications, including, without limitation, all copyrights, trademarks and other proprietary rights in and to such materials, (iii) has secured the requisite permission to use any person’s name, voice, likeness and performance, and any Customer Data, as embodied in such materials, (iv) has secured that the Customer Data does not contain any messages or images that are in violation of applicable laws, (v) will use the Services in accordance with the terms and conditions hereof and applicable laws and in a manner that, to the best of its knowledge, will not infringe or misappropriate the intellectual property rights held by any third party. In furtherance of the foregoing, Customer agrees to indemnify and hold Cxense harmless from and against any and all claims, actions, losses, damages, liability, reasonable costs and expenses (including reasonable outside attorneys’ fees) arising out of or in connection with the breach of the foregoing representations and warranties. Cxense shall promptly notify Customer of all claims and proceedings related thereto of which Cxense becomes aware.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CXENSE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE SERVICES HEREUNDER FOR A PARTICULAR PURPOSE OR APPLICATION.
9. NOTICES, GOVERNING LAW, AND JURISDICTION
9.1. General. This Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, and all questions with respect thereto will be determined by the laws of Norway. Both parties hereby irrevocably submit any disputes under this Agreement to the non-exclusive jurisdiction of the courts located in Oslo, Norway. Each party agrees to the governing law above without regard to choice or conflicts of law rules.
9.2. Notices. All notices permitted or required to be given hereunder shall be addressed as follows:
Notices, except notices of termination or indemnification claims, shall be addressed to: Sales Operations, Email: firstname.lastname@example.org.
Cxense Inc Legal address:
22 Prospect Hill Rd.
Stockbridge, MA 01262, USA
Standard correspondence should be sent to:
P.O.Box 1464, San Carlos
CA 94070, USA
Legal correspondence should be sent to (with a copy to Cxense Inc. P:O.Box):
Mr. John Vaneria
Vaneria & Spanos
530 Fith Avenue, 23rd floor
NYC, NY 10036, USA
All Contracts, terminations and other original documents should be sent to:
Attn: Legal Council
Karenslyst Allé 4, 0278 Oslo
P.O.Box 2920 Solli, N-0230
Notices to Customer shall be addressed to the system administrator designated by Customer for Customer’s relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by Customer.
Notices of termination or indemnification claims shall be addressed as follows: Address of registered seat of Customer, Attn.: CEO.
9.3. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the date of delivery if sent by registered post or courier, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnification claim, see Clause 9.2 above).
10. GENERAL PROVISIONS
10.1. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party under applicable laws.
10.2. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10.3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this clause shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination by Customer, Cxense shall refund to Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Cxense for the period prior to the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.4. Confidentiality. Both parties agree to keep the terms and conditions of this Agreement confidential and not to inform any third party about its content unless required to do so by law or regulation or mutually agreed upon by the parties.
10.5. Entire Agreement. This Agreement, including all exhibits and addenda hereto, and all Order Forms, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions inserted by Customer in Customer’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
10.6 Marketing and PR.
Cxense reserves the right to publish a stock exchange notice about this agreement, and list Customer on cxense.com.