Cultivate SaaS Agreement
This SAAS Agreement, including all attachments, exhibits, schedules, addenda, (this “Agreement”), is entered into by and between Cultivate Technology Inc., a Delaware corporation with its principal place of business at 326 Ritch Street, San Francisco, CA 94107, USA (“Cultivate”) and the organization on whose behalf you are agreeing to this Agreement, as set forth in the Order Form or online purchasing form that references this Agreement (“Customer”). This Agreement is effective on the date the initial Order Form is fully executed by the parties or when the purchase is completed by you (the “Effective Date”).
You represent and warrant that you have: (a) all necessary rights and authority necessary to enter into this Agreement on behalf of Customer; and (b) read, understood, and agree to be bound by this Agreement on Customer’s behalf, as well as all other agreements referenced herein and any future modification hereto.
“A.I. Learnings” are essentially Cultivate’s “machine learning” capabilities and means, with respect to Customer’s use of and the operation of Cultivate’s products and services, all learnings, insights, ideas or improvements with regard to or related to such products and services (including the T therein) or derivative works or improvements thereto.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means power to direct the affairs of an entity, and “ownership” means beneficial ownership of more than 50% of the voting equity or other equivalent voting interests of the entity.
“Anonymous Data” means anonymous data derived from Customer’s use of the Service.
“Customer Data” means all data either provided by Customer or entered, collected or generated on Customer’s behalf in connection with the Service, including (i) account content such as email messages, chat messages and calendar data submitted through the Service (ii) employee information required to implement the Service such as employee contact details and department and (iii) information collected from third party integrations such as user IDs.
“Customer Environment” means the computing environment separately procured, prepared and maintained by Customer for the access to and use of the Service, where such environment meets Cultivate’s then-current minimum requirements.
“Documentation” means the help materials, including technical specifications, describing functionality of the Service provided by Cultivate.
“Feedback” means comments, questions, ideas, suggestions or other feedback provided by Customer and its Affiliates relating to the Service.
“Intellectual Property Rights” means all current and future worldwide intellectual property (or “IP”) rights, including all patents, copyrights, trademarks, service marks, trade names, domain name rights know-how and other trade secret rights, and all other IP rights and similar forms of protection, and all applications and registrations for any of the foregoing.
“Access Term” means the permitted term specified in an Order Form during which Customer is authorized to use the Service, subject to this Agreement.
“Order Form” means an ordering document entered into by and between Cultivate and Customer that references this Agreement and details the Service to be provided by Cultivate, associated fees, and any other transaction specific terms and conditions.
“Personal Data” means any information relating to an identified or identifiable natural person, except for data of representatives of Customer with whom Cultivate has a business relationship.
“Scope of Use” means the authorized use pursuant to which the Service is made available to Customer, as specified in the applicable Order Form, which may include: (a) number of employees, or (b) other restrictions or billable units.
“Service” means Cultivate’s hosted or cloud-based solution.
“Service Usage Information” means information needed to enable an end user’s interaction with the Service such as device information, log files, metadata, and location information.
2.1. Access to Service. This Agreement is for Customer’s access to and use of the Service, and Customer is not granted a license to any software by this Agreement. Subject to the terms of this Agreement, Cultivate grants to Customer a limited, revocable, non-exclusive, nontransferable and non-sublicensable right to access and use, solely for internal business purposes, the Service in accordance with the purchased Scope of Use as set forth in the Order Form. Customer may permit its Affiliates to access and use the Service and Documentation solely on behalf of and for the benefit of Customer or Affiliates, provided that Customer shall be liable for the compliance of all Affiliates with this Agreement, Documentation, and the Order Form(s).
2.2. Delivery and Acceptance. Cultivate will enable the Customer to access the Service, at which point the Service will be deemed delivered to and accepted by Customer. Customer is responsible for procuring and maintaining the Customer Environment and agrees to engage with Cultivate to provide access to the Service by making necessary employees, resources and information available to Cultivate.
2.3. Restrictions. Except as otherwise expressly set forth in this Agreement, Customer may not, nor permit any third party to (a) modify, adapt, or create any derivative works based on the Service or Documentation; (b) market, sell, sublicense, distribute, publish, display, reproduce, rent, lease, loan, assign, provide access or otherwise transfer to a third party the Service or Documentation or any copy thereof, in whole or in part; (c) decompile, disassemble, reverse engineer, translate or otherwise attempt to derive source code from the Service, in whole or in part; (d) operate the Service for the benefit of any third party; (e) remove or obscure any product identification, proprietary copyright or other notices contained in the Service; (f) access or use the Service for competitive analysis or the purpose of building a product or service in competition with the Service; (g) publicly disseminate information regarding the performance of the Service; (h) circumvent or attempt to circumvent contractual usage restrictions; (i) incorporate the Service into a product or service that Customer provides to a third party (j) introduce viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm (k) send or store material that is harmful, unlawful, or infringes the proprietary or privacy rights of any person or contains any sensitive or “special categories” of Personal Data, such as financial or health information or (l) interfere with the integrity or performance of the Service.
2.4. Affiliates. Where Affiliates of the parties conduct business hereunder, references to Customer shall include any applicable Affiliate of Customer. Customer will provide Cultivate with prompt notice of each such Affiliate.
2.5 Use of Customer Data. Customer instructs, and grants Cultivate a non-exclusive, worldwide right to: use, copy, store, transmit, display, modify, and create derivative works of the Customer Data, to the extent necessary to provide, maintain, and improve the Service and related services. Cultivate, its Affiliates, and service providers may use Customer Data in furtherance of this Agreement. Between the parties, Cultivate acts as a “processor” or “service provider” of Customer Data.
Cultivate will provide general maintenance and support to Customer for the Service, provided that Customer: (i) notifies Cultivate of issues; (ii) engages with Cultivate to resolve issues by making necessary employees, resources and information available to Cultivate; and (iii) makes reasonable efforts to apply the Cultivate-recommended solution. Customer shall have direct access to Cultivate via standard telephone, email and/or web support services during Cultivate’s normal business hours (M-F 9-5 Pacific).
4.1 Customer Data. The Customer Data, all copies and portions thereof, and all Intellectual Property Rights therein, including, derivative works therefrom, are and shall remain the sole and exclusive property of Customer notwithstanding any other provision in this Agreement. Cultivate is not authorized to use (and shall not permit any third party to use) the Customer Data or any portion thereof except as expressly authorized herein.
4.2 Cultivate Property. The Service, Documentation, A.I. Learnings, Service Usage Information, Anonymous Data, Feedback, all copies and portions thereof, and all Intellectual Property Rights therein, including, derivative works therefrom (“Cultivate Property”) are and shall remain the sole and exclusive property of Cultivate notwithstanding any other provision in this Agreement. Customer is not authorized to use (and shall not permit any third party to use) the Service, Documentation or any portion thereof except as expressly authorized herein.
5. THIRD-PARTY PRODUCTS
Customer’s receipt or use of any third-party products or services is subject to a separate agreement between Customer and the third-party provider. If Customer enables or uses third-party products or services with the Service, Customer acknowledges that the third-party providers may access or use Customer Data as required for the interoperation of their products and services with the Service. Customer (and not Cultivate) is responsible for any access to or use of Customer Data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. Cultivate disclaims all liability and responsibility for any third-party products or services or for the acts or omissions of any third- party providers or vendors.
6. PAYMENT; TAXES
6.1. Fees and Payment. All fees are set forth in the applicable Order Form and shall be paid by Customer within thirty (30) days from the date of the invoice. Except as expressly set forth in an Order Form: (a) payment obligations are non-cancelable and fees are non-refundable, unless specifically provided herein; and (b) Customer may not decrease the access fees, platform fees, or other fees due during the applicable Access Term. Where Customer designates use of a third-party payment processor network, Customer shall be responsible for all related fees and charges.
6.2. Effect of Nonpayment. If Customer’s account falls into arrears and remains unpaid for ten (10) days after Cultivate provides notice to Customer, Cultivate reserves the right to suspend or terminate this Agreement, Customer’s right and access to the Service and Customer’s access to support. In the case of termination, Customer shall delete all copies of the Documentation immediately after the termination. Unpaid amounts may be subject to interest at the lesser of one and one- half percent (1.5%) per month or the maximum permitted by law, plus collection costs.
6.3. Taxes. All fees stated on an Order Form are exclusive of any taxes, and Customer is responsible for payment of all such taxes excluding taxes based solely on Cultivate income. Unless Customer provides Cultivate a valid state sales/use/excise tax exemption certificate, Customer will pay and be solely responsible for all taxes. Customer will be responsible for any taxes, penalties or interests that might apply based on Cultivate’s failure to charge appropriate tax due to incomplete or incorrect location information provided by Customer. If Customer is required by any foreign governmental authority to deduct or withhold any portion of the amount invoiced for the delivery or use of the Service, Customer shall increase the sum paid to Cultivate by an amount necessary for the total payment to Cultivate equal to the amount originally invoiced.
7. TERM AND TERMINATION
7.1. Term. This Agreement commences on the Effective Date and unless earlier terminated pursuant to the terms herein, will continue for so long as an Order Form is in effect between the Parties.
7.2. Termination for Cause. Either party may terminate this Agreement (or any affected Order Schedule) (a) upon the other party’s material breach that remains uncured for thirty (30) days following notice of such breach, except that termination will take effect on notice in the event of a breach of Section 2.3 (“Restrictions”) or 12 (“Confidential Information”); or (b) immediately in the event 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 (and not dismissed within sixty (60) days thereafter). In no event shall Cultivate Property be an asset of Customer.
7.3. Termination for Convenience. Either party may terminate this Agreement for any reason or for no reason, by providing the other party at least sixty (60) days’ prior written notice.
7.4. Effect of Termination. Upon early termination of this Agreement by Customer for Cultivate’s uncured material breach pursuant to Section 7.2 or by Cultivate pursuant to Section 7.3 or 8.2, Customer is entitled to a prorated refund of prepaid fees relating to the Service applicable to the remaining period in the applicable Access Term. Upon expiration or termination of this Agreement by Cultivate for Customer’s uncured material breach pursuant to Section 7.2 or by Customer pursuant to Section 7.3, fees relating to the Service applicable to the duration of any applicable Access Term will be immediately due and payable. Notwithstanding the terms and conditions of an Order Form, Cultivate reserves the right not to renew any Order Form. In addition, upon expiration or termination of this Agreement for any reason: (a) all rights granted to Customer under this Agreement, and Cultivate’s obligation to provide support and the Service will terminate; and (b) any payment obligations accrued pursuant to this Agreement, as well as the provisions of Section 2.3 (“Restrictions”), 4 (“Ownership”), 5 (“Third-Party Products”), 6 (“Payment; Taxes”), 7.4 (“Effect of Termination”), 8.4 (“Warranty Disclaimer”), 9 (“Limitation of Liability”), 10.1.1 (“Indemnification by Cultivate”) but only with respect to claims arising from Customer’s use of the Services during the Access Term, 10.1.2 (“Indemnification by Customer”), 12 (“Confidential Information”), and 13 (“General Terms”) of this Agreement will survive such expiration or termination. Within thirty (30) days after termination of this Agreement, the Recipient shall return or destroy (or in the case of electronic data, use commercially reasonable efforts to delete or render practicably inaccessible by Recipient) all Confidential Information and materials containing any Confidential Information of the Discloser. However, Recipient may retain one copy of Discloser’s Confidential Information in accordance with Recipient’s commercially reasonable backup procedures.
8. LIMITED WARRANTY
8.1. Mutual Warranties. Each party represents and warrants that it has the power and authority to enter into this Agreement.
8.2. Performance Warranty. Cultivate warrants to the Customer that the Service will substantially conform to the applicable Documentation, provided that the Customer is not in breach of any payment or other obligations herein and that: (a) the Service has been properly used at all times and in accordance with the applicable Documentation; (b) the Service has not been altered or modified by anyone other than Cultivate or its designee; (c) the Customer Environment meets Cultivate’s then-current minimum requirements and (d) the Service is not provided on a no-charge, beta or evaluation basis. Cultivate will endeavor to maintain the Service in accordance with the service levels displayed on cultivate.com as of the Effective Date. Cultivate will, at its own expense correct any reproducible error in the Service reported to Cultivate by Customer in writing. If Cultivate determines that it is unable to correct the error, Cultivate will terminate the applicable Order Form. This Section 8.2 represents Customer’s exclusive remedy, and Cultivate’s entire liability, for any breach of the warranties set forth herein.
8.3. Malicious Code. Cultivate will not knowingly introduce viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm.
8.4. Warranty Disclaimer. EXCEPT FOR THE EXCLUSIVE WARRANTIES SET FORTH IN THIS SECTION 8, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICE, DOCUMENTATION AND SUPPORT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND CULTIVATE MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING OR RELATING TO THE SERVICE, DOCUMENTATION OR SUPPORT. CULTIVATE SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. CULTIVATE DOES NOT WARRANT THAT SERVICE WILL BE ERROR FREE OR THAT USE OF THE SERVICE WILL BE UNINTERRUPTED.
8.5. Customer Warranties. Customer warrants that: (i) Processing of Customer Data in accordance with this Agreement will not violate any intellectual property, proprietary, privacy, or other right of any person (ii) all required notices have been given to, and required consents and rights have been obtained from, the relevant data subjects and any other party as may be required for processing under this Agreement (iii) Customer Data is accurate and complete and (iv) Customer will comply with all laws.
9. LIMITATION OF LIABILITY
9.1. Liability Cap. EXCEPT FOR: (A) EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 12 (“CONFIDENTIAL INFORMATION”); (B) EITHER PARTY’S OBLIGATIONS UNDER SECTION 10 (“INDEMNIFICATION”); (C) CUSTOMER’S BREACH OF SECTION 2 (“ACCESS”) OR INFRINGEMENT OF CULTIVATE’S IP; AND (D) AMOUNTS OWED BY CUSTOMER UNDER ANY ORDERS: IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID BY AND/OR DUE FROM CUSTOMER FOR THE THEN-CURRENT ANNUAL ACCESS TERM, UNDER THE APPLICABLE ORDER FORM(S) RELATING TO THE CLAIM.
9.2. Consequential Damages. EXCEPT FOR EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 12 (“CONFIDENTIAL INFORMATION”) OR CUSTOMER’S BREACH OF SECTION 2 (“ACCESS”) OR INFRINGEMENT OF CULTIVATE’S IP, IN NO EVENT SHALL EITHER PARTY, OR PARTY’S AFFILIATES OR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Limitations Fair, Reasonable. PARTIES ACKNOWLEDGE THAT LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
10.1.1. By Cultivate. Cultivate shall defend Customer from and against any claim by a third party alleging that the Service, when used as authorized under this Agreement, infringes any trademark or copyright of such third party, enforceable in the jurisdiction of Customer’s use of the Service, or misappropriates a trade secret (but only to the extent that such misappropriation is not a result of Customer’s actions) (“Infringement Claim”) and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer by a court of competent jurisdiction or agreed in settlement by Cultivate (including reasonable attorneys’ fees) resulting from such Infringement Claim, provided that Customer abides by Section 10.1.3 (“Indemnification Requirements”).
10.1.2. By Customer. Customer shall defend Cultivate from and against any claim based upon Customer’s breach of Section 8.5 (“Customer Warranties”), and shall indemnify and hold harmless Cultivate from and against any damages and costs awarded against Cultivate by a court of competent jurisdiction or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim, provided that Cultivate abides by Section 10.1.3 (“Indemnification Requirements”).
10.1.3. Indemnification Requirements. A party (the “Indemnified Party”) may seek indemnification from the other party (the “Indemnifying Party”) only if the Indemnified Party: (a) promptly provides the Indemnifying Party with a written notice of the claim; (b) allows the Indemnifying Party sole control of the defense and settlement of the claim; and (c) reasonably cooperates in response to the Indemnifying Party’s requests for assistance and information. The Indemnified Party may participate in the defense of the claim, at the Indemnified Party’s sole expense (not subject to reimbursement). Indemnifying Party will not, without Indemnified Party’s prior written consent, which shall not be unreasonable withheld, settle, compromise or consent to the entry of any judgement that may adversely affect the Indemnified Party.
10.2. Exclusions. Cultivate has no obligation and assumes no liability under this Section 10 or otherwise with respect to any claim based on: (a) any modification of the Service that is not performed by or on behalf of Cultivate, or was performed in compliance with Customer’s specifications; (b) the combination, operation or use of the Service with Customer Data or any other products, services, or equipment not provided by Cultivate where there would be no Infringement Claim but for such combination; (c) use of the applicable Service other than in accordance with the terms and conditions of this Agreement and the Documentation; (d) any third-party deliverables or components contained within the Service; (e) any claim that relates to the open source software, freeware and any derivatives or other adaptations thereof; (f) Customer Data or circumstances covered by Customer’s indemnification obligations in Section 10.1.2 (Indemnification By Customer); (g) any Service provided on a no-charge, beta or evaluation basis or (h) Customer’s settlement or admission with respect to any Infringement Claim, without Cultivate’s prior written consent. This Section 10 states Customer’s sole and exclusive remedy and Cultivate’s entire liability for any Infringement Claims or actions.
10.3. Remedies. If Customer’s use of the Service is (or in Cultivate’s opinion is likely to be) enjoined, if required by settlement or if Cultivate determines such actions are reasonably necessary to avoid material liability, Cultivate may, at its option: (i) procure for Customer the right to use the Service in accordance with this Agreement; (ii) replace or modify the Service to make it noninfringing; or (iii) terminate Customer’s right to use the Service and discontinue the related support, and refund prorated pre-paid fees for the remainder of the applicable Access Term.
Cultivate will maintain commercially reasonable physical, technical and administrative security measures designed to protect Customer Data from unauthorized access, destruction, use, modification, or disclosure. Further details of such security measures are updated from time to time on cultivate.com.
12. CONFIDENTIAL INFORMATION
“Confidential Information” means information and/or materials provided by one party (“Discloser”) to the other party (“Recipient”) which is identified as confidential at the time of disclosure or should be reasonably known by the Recipient to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. The following information shall be considered Confidential Information of Cultivate whether or not marked or identified as such: this Agreement, the Service, Documentation, pricing information, any Cultivate technology, product roadmap or strategic marketing plans, non-public material relating to the Service. Except as expressly authorized herein, the Recipient shall (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 Recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosure than this Section 12 and that the Recipient remains responsible for compliance by any such representative with the terms of this Section 12. The Recipient’s confidentiality obligations shall not apply to information that the Recipient 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 Recipient ; (iii) is rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Recipient who had no access to such information. The Recipient may make disclosures to the extent required by law or court order, provided the Recipient notifies the Discloser in advance and cooperates in any effort to obtain confidential treatment. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Recipient, the Discloser shall be entitled to seek appropriate equitable relief in addition to other legal remedies.
13. GENERAL TERMS
13.1. Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assignor under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially of the assigning party’s assets, provided that the assignee has agreed to be bound by all of the terms of this Agreement and all fees owed to the other party are paid in full. If Customer is acquired by, sells substantially all its asses to, or undergoes a change of control in a favor of, a direct competitor of Cultivate, then Cultivate may terminate this Agreement upon thirty (30) days prior written notice.
13.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.3. Governing Law; Jurisdiction; Venue. This Agreement is governed by the laws of the state of Delaware, USA, without regard to conflicts of law provisions thereof. Claims arising out of or in connection with this Agreement are subject to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco, California, USA. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
13.4. Notice. Notices to a party will be sent (i) by email (to Cultivate at the email address below, and to Customer at the email address listed on the Order Form) or (ii) first-class mail, overnight courier or prepaid post (to Cultivate at the address as identified on the first page of this Agreement and to Customer at the address listed on the Order Form) and will be deemed given seventy-two (72) hours after mailing or upon confirmed delivery or receipt, whichever is sooner. For mailed notices, Customer will address notices to Cultivate Legal Department, with a copy to email@example.com and firstname.lastname@example.org. Either party may change its address for notices by giving the other party at least thirty (30) days prior written notice of the change.
13.5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. 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 writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
13.6. Entire Agreement; Interpretation. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement. Headings are for convenience only and “including”, “e.g.”, and similar terms will be construed without limitation. In the event of a conflict between the terms of this Agreement and the terms of any Order From or other exhibit or addendum hereto, such conflict will be resolved in the following order: (a) any Order Form; (b) a mutually executed data protection addendum (c) this Agreement and (d) any other exhibit or addendum. Any preprinted terms on any Customer ordering documents or terms referenced or linked therein have no effect on the terms of this Agreement and are hereby rejected, including where such Customer ordering document is signed by Cultivate.
13.7. Feedback. Cultivate is free to use Feedback, irrevocably, in perpetuity, for free, for any purpose.
13.8. Independent Contractors. Parties are independent contractors. No partnership, joint venture, employment, franchise or agency is created between the parties. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.9 Publicity. Cultivate may use Customer’s name and logo (so long as in accordance with any mark guidelines provided by Customer to Cultivate) in Cultivate’s promotional materials, including, without limitation, press releases, customer lists, and presentations to third parties.
13.10. Beta Releases. Cultivate may grant Customer access to “beta” or other early-stage products (“Beta Releases”). Cultivate may provide assistance with Beta Releases in its discretion. Customer acknowledges and agrees that Beta Releases may not be complete or fully functional and may contain bugs, errors, omissions, and other problems for which Cultivate will not be responsible. Cultivate makes no promises that future versions of a Beta Release will be released. Cultivate may terminate Customer’s right to use any Beta Release at any time for any reason or no reason in Cultivate’s sole discretion, without liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, OR SERVICE LEVEL, OR INDEMNIFICATION OBLIGATIONS OF ANY KIND BY CULTIVATE.
13.11. Export Control. In its use of the Service, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, and (ii) Customer shall not (and shall not permit any of its users to) access the Service in violation of any U.S. export embargo, prohibition or restriction.
13.12. Government End-Users. Elements of the Service are commercial computer software. If the user of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data and manuals, is restricted by a use agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
13.13. Counterparts. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. Parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement shall be legally binding with the same force and effect as manually executed signatures.
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