General Terms And Conditions

These General Terms and Conditions (“Terms”) govern all access to and use of the services and other offerings (“Offerings“) set forth in one or more Order Forms (“Order”) entered into by and between Censia, Inc., a Delaware corporation, with an address at 450 Geary Street (Suite 450), San Francisco, CA 94115 (“Censia”) and the “Customer” specified on each Order (“Customer”). Together, these Terms and all Orders entered into by a Customer form the entire agreement between Censia and the Customer regarding access to and use of the Offerings set forth in those Orders (the “Agreement”).  

1. Definitions.  All capitalized terms used in this Agreement will have the meanings given to them herein. All other terms used in this Agreement will have their plain English (U.S.) meaning.
2. Term.  This Agreement begins on the date Censia accepts Customer’s first Order or provides Customer with access to or use of any Offerings (the “Effective Date”) and will continue in effect so long as any Order remains in effect, unless terminated as specified herein (“Term”).  Each Order begins on the Order Effective Date for that Order and will continue in effect so long as any Subscription Term for an Offering under that Order remains in effect, unless terminated as specified herein or therein.  
3. Orders.  Customer may enter into additional Orders with Censia following the Effective Date.  Any additional Orders will be effective and become a part of this Agreement only when accepted by authorized representatives of Customer and Censia.  All accepted Orders are incorporated by reference into this Agreement.  To the extent of any conflict between these Terms and an Order, these Terms will control.  All Orders are non-cancellable.  
4. Platform Services.  
   1. Grant of Rights.  If an Order provides for an Offering including access to Offerings provided through Censia’s hosted platform (“Platform Services”), then, subject to Customer’s compliance with this Agreement, including payment of all Fees (as defined below) and compliance with all restrictions set forth in the Order (“Restrictions”), during the applicable Subscription Term for such Offering, Censia will provide Customer with a limited, non-exclusive, non-transferable, non-sublicensable right to access and use those Platform Services as specified in the Order solely for Customer’s own internal business purposes.  
   2. Authorized User Accounts.  Customer may be required to establish an account to access the Platform Services (an “Account”). The identification and password associated with each Customer Account (the “Account ID”) is personal in nature and may only be used by the employee or contractor of Customer (“Authorized User”) associated with that Account, provided that each Account ID may be transferred from one individual to another if the original Authorized User is no longer permitted to use the Platform Services. Except for the foregoing, Customer will not, and shall ensure that each Authorized User does not, distribute or transfer any Account or Account ID or provide any third party the right to access any Account or Account ID.  Customer is solely responsible for all use of the Platform Services through each Account and for compliance by each Authorized User with the applicable terms of this Agreement and any other agreement to which the Authorized User agrees in connection with Censia’s Offerings. Customer will ensure that all information about each Authorized User provided to Censia is and remains accurate and complete and that all Account IDs issued to Customer or any Authorized User are kept secure and confidential.  Customer will notify Censia immediately if any Account ID is lost, stolen, or otherwise compromised, or upon becoming aware of any unauthorized access to our use of the Censia Offerings or any Account ID or Customer Account.  
5. APIs.  
   1. Grant of Rights.  If an Order provides for an Offering including access to an application programming interface for the Censia platform (“API”), then, subject to Customer’s compliance with this Agreement, including payment of all Fees and compliance with all Restrictions, during the applicable Subscription Term for such Offering, Censia will provide Customer with a limited, non-exclusive, non-transferrable, non-sublicensable right to access and use those APIs solely to enable software and services owned and controlled by Customer (“Customer Applications”) to access the APIs solely for Customer’s own internal business purposes.  
   2. Access to the API.  Before accessing or using the API, Customer may be required to obtain API credentials (“Token”) from Censia.  Each Token is unique in nature and may be used by Customer alone.  Customer may not distribute or transfer any Token or provide a third party with the right to access or use any Token.  Customer is solely responsible for all use of the API through any Token, including by any third party.  Customer will ensure the security and confidentiality of each Token and will notify Censia immediately if any Token is lost, stolen, or otherwise compromised.
   3. Testing.  Prior to distributing or making any Customer Application available for release to End Users (whether commercially or for evaluation purposes), Customer will self-test the Customer Application to ensure that it operates in compliance with all applicable documentation, specifications, and test suites for the API made available by Censia (“Tests”).  Customer will not provide access to, or use of, a Customer Application prior to confirming that such Customer Application has successfully completed all applicable Tests.  Customer will provide the results of such Tests to Censia at Censia’s reasonable request.  Censia may require the Customer to cease access to any API through any Customer Application if Censia reasonably believes that such Customer Application fails to comply with this Agreement or any applicable Tests.  
   4. Modifications.  Censia reserves the right, at any time, to update or modify any API.  Censia will use commercially reasonable efforts to notify Customer 30 days in advance of any update or modification.  Censia will provide Customer with any updates or modifications to any API that Censia makes commercially available, however, Censia reserves the right to charge additional fees for new APIs, or the availability of substantially new data or datasets through any API. 
6. Restrictions.  The Offerings, APIs, Censia Data (as defined below), and Documentation (as defined below), as well as all software, hardware, data, databases, and other technology used to provide the foregoing (collectively, the “Technology”), constitute the valuable intellectual property of Censia. As an express condition to the rights granted to Customer under this Agreement, Customer will not and will not permit any Authorized User or other third party to: (1) use or access the Technology or any portion thereof for any purpose except as expressly provided in this Agreement; (2) modify, adapt, alter, translate, or create derivative works from the Technology; (3) distribute, lend, loan, lease, license, sublicense, transfer, or make available the Technology, or any rights in or to the Technology to any third party other than as expressly provided in this Agreement; (4) access or use the Technology in any unlawful, illegal, or unauthorized manner; (5) access or use the Technology in any manner that could damage, disable, overburden or impair the Technology; (6) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Technology; (7) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to the Technology; (8) interfere in any manner with the operation of the Technology or attempt to gain unauthorized access to the Technology; (9) use automated scripts or processes to collect information from or otherwise interact with the Technology; or (10) alter, obscure, or remove any copyright notice, copyright management information or proprietary legend contained in or on any Technology.  All use of the Technology will be solely in accordance with this Agreement and any applicable Documentation. Censia may monitor use of the Technology to verify compliance with the terms of this Agreement. Customer consents to all such monitoring and to the use by Censia of all data and information collected through such monitoring. 
7. Consulting Services.  Censia will provide consulting services, such as implementation, configuration, custom development, and training relating to the other Offerings solely as specified in Orders under this Agreement or under additional agreement between the parties.  
8. Support.  Censia will provide Customer with support for the Offerings as set forth in Exhibit A.  Customer is solely responsible for all support for each Customer Application.  Censia is under no obligation to provide any support services for any Customer Application.  Censia retains the right, however, to provide any support services it deems necessary or appropriate directly to Customer or any Authorized User.  
9. Fees and Payment.  Customer will pay the fees specified in each Order (“Fees”) when due.  Unless specified in the Order, Censia will invoice Customer for all Fees in advance and all Fees are due and payable by Customer within 30 days of the date of each applicable invoice. Censia may increase the Fees applicable to any Offering effective upon renewal of the Subscription Term for such Offering, by providing Customer notice at least 45 days prior to the end of the then-current Subscription Term for such Offering. In the case of late payment, after prior written notice, Censia may suspend Customer’s use of the applicable Offering until payment is made in full. Customer may not withhold, reduce, or offset Fees owed to Censia under this Agreement against any amounts owed to Customer. All Fees are non-refundable.  Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law.  Customer agrees to pay any taxes and other fees and charges imposed by any government entity on the Offerings or arising from this Agreement, excluding taxes based on Censia’s net income and payroll taxes. Customer must provide to Censia any direct pay permits or valid tax-exempt certificates prior to signing each Order. If Censia is required to pay taxes (other than its income and payroll taxes), Customer will reimburse Censia for those amounts and indemnify Censia for any taxes and related costs paid or payable by Censia attributable to those taxes.
10. Ownership and Rights.  
    1. Technology.  As between Censia and Customer, Censia and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Technology, any updates, upgrades, enhancements, modifications, and improvements thereto, and any other materials provided or developed by or on behalf of Censia under this Agreement.  Customer receives no ownership interest in or to any Technology or any intellectual property rights therein or related thereto. Customer is not granted any right or license to use any Technology or any intellectual property rights therein or related thereto (whether by implication, estoppel, or otherwise), apart from Customer’s ability to access and use the Offerings as specified in this Agreement.  The Censia name, logo and all product and service names associated with the Offerings are trademarks of Censia, and Customer is granted no right or license to use them.  Customer covenants, on behalf of itself and its successors and assigns, not to assert against Censia any rights, or any claims of any rights, in any Technology. 
    2. Documentation. Censia retains all right title, and interest, including all IPR, in and to the technical and functional documentation Censia provides with its Offerings (“Documentation”). Subject to Customer’s compliance with this Agreement, during the Term, Censia will provide Customer a nonexclusive right to access and use the Documentation, as made available to Customer in connection with the Offerings.  
    3. Customer Data. Customer is responsible for all data and information provided to Censia by or on behalf of Customer through the Platform Services or API (“Customer Data”).  As between Customer and Censia, Customer retains all right, title, and interest, including all intellectual property rights, in and to (a) the Customer Data and (b) all analyses or results generated by the Platform Services based upon the Customer Data, excluding any portion thereof including or based upon any Censia Data (“Customer Analyses”).  Customer grants Censia a nonexclusive right to process Customer Data and Customer Analyses solely to provide and support the Offerings and to otherwise perform its obligations and exercise its rights under this Agreement.  Customer represents, warrants, and covenants to Censia that Customer has and will maintain all consents, permissions, approvals, and rights necessary to grant Censia the foregoing rights.  Customer commits to Censia that neither the Customer Data nor Censia’s use of Customer Data as permitted under this Agreement will cause Censia to infringe, misappropriate, or violate the intellectual property rights or other rights of any third party or violate any applicable laws, rules, or regulations.  Customer is solely responsible for the Customer Data and Censia is under no obligation to review any Customer Data.  Censia will not be responsible or liable for the accuracy of any Customer Data or any deletion, destruction, or loss of any Customer Data.  
    4. Access to Customer Data.  During the Term, Customer may export and retrieve its Customer Data from the Offerings in an industry standard format, provided that export and retrieval may be subject to technical limitations, in which case Censia and Customer will determine a reasonable method to facilitate Customer’s access to Customer Data. At the end of the Term, Censia will delete the Customer Data, unless otherwise required by law. Retained Customer Data will remain subject to the confidentiality provisions of this Agreement. 
    5. Analyses and Learning.  Customer authorizes Censia to de-identify and aggregate Customer Data with data from other Censia customers and third parties in a manner that does not identify Customer (or any user or client of Customer) and to use that aggregated data for providing services to customers, improvement of the Censia platform (in particular, product features and functionality, workflows and user interfaces), development of new Offerings, improving resource allocation and support, internal demand planning, training and developing machine learning algorithms, verification of security and data integrity, identification of industry trends and developments, creation of indices, and benchmarking. For clarity, unless otherwise agreed, Censia will only use any personally identifiable data contained in the Customer Data to provide the Offerings. 
    6. Censia Data.  As between Censia and Customer, Censia retains all right, title, and interest, including all intellectual property rights, in and to all data and information provided through the Offerings or APIs, excluding only Customer Data (“Censia Data”).  Subject to Customer’s compliance with this Agreement, including payment of all Fees and compliance with all Restrictions, Censia grants Customer a nonexclusive right to (a) use the Censia Data obtained by Customer through the Offerings during the term of this Agreement and (b) continue to use any Censia Data in the form contained in any reports generated by Customer through the Offerings following the Term of this Agreement, in each case solely for the internal business purposes of Customer and the client of Customer for which such Censia Data was obtained. All Censia Data is provided to the Customer solely for informational purposes.  Customer is solely responsible for verifying the accuracy, completeness, and applicability of all Censia Data before using or relying upon any Censia Data.  Except as set forth in this Agreement, Customer is granted no licenses or rights in or to any Censia Data.  
11. Feedback.  If either party provides any general suggestions, ideas, or other feedback about the other party or the other party’s products, services, or offerings (“Feedback”), the other party may use and otherwise act on Feedback with no financial, credit, confidentiality or other obligation to such party, but is not obligated to use Feedback in any way.
12. Confidentiality; Privacy and Security.  
    1. Confidentiality.  Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the Term of this Agreement.  Each Recipient agrees to: (a) hold the Confidential Information in strict confidence; (b) not use the Confidential Information for any purpose other than fulfilling its obligations under this Agreement; (c) not disclose the Confidential Information to any third party without Discloser’s prior written consent; and (d) limit access to the Confidential Information to those of its employees (if any) having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business, technology, personnel, or affairs, that is either designated as confidential or of a nature or disclosed under circumstances such that a reasonable person would recognize it as confidential.  Customer’s Confidential Information includes: (i) the Customer Data, (ii) Customer marketing and business requirements, (iii) Customer implementation plans, and (iv) Customer financial information.  Censia’s Confidential Information includes the Technology, Documentation and any information regarding research and development, Offerings, pricing or availability. The terms and conditions of this Agreement constitute the Confidential Information of each of the parties.  Confidential Information of either party disclosed prior to the start of this Agreement will be subject to this Section.  The following information will not be considered Confidential Information: (1) information that is independently developed by the Recipient without reference to the Discloser’s Confidential Information; (2) information that is generally known to the public without breach of this Agreement by the Recipient; (3) information that, at the time of disclosure, was known to Recipient free of confidentiality restrictions; or (4) information that the Discloser agrees in writing is free of confidentiality restrictions. In the event of legal proceedings relating to the Confidential Information, the Recipient will cooperate with the Discloser and comply with applicable law (all at Discloser’s expense) with respect to handling of the Confidential Information.  
    2. Privacy.  Both parties will process any Personal Data (as the term is defined in Exhibit C) in accordance with the Personal Data Processing Agreement for Censia Services (“DPA”) attached to these Terms as Exhibit C and all applicable data privacy and protection laws. 
    3. Security.  Each Recipient will use commercially reasonable efforts to protect: (a) the security, confidentiality, and integrity of the Discloser’s Confidential Information in its possession or control; (b) against any reasonably anticipated threats or hazards to the security or integrity of the Discloser’s Confidential Information; and (c) against unauthorized access to or use of the Discloser’s Confidential Information that could result in substantial harm or inconvenience to the Discloser. Customer will not conduct or authorize penetration tests of the Offerings without advance written approval from Censia, which may be given or withheld at Censia’s sole discretion.
13. Termination and Suspension
    1. Suspension.  Censia may suspend or limit use of the Offerings where it reasonably believes that Customer’s continued use of the Offering may be in violation of this Agreement or applicable law or present a risk of harm, loss, or liability to Customer or Censia, the Technology, or any third parties. Censia will use commercially reasonable efforts to (a) limit the extent and duration of any suspension, (b) notify Customer of any suspension (in advance if possible), and (c) reinstate any suspended Offerings as soon as possible.
    2. Termination.  Either party may terminate this Agreement effective on written notice to the other Party if the other Party: (a) materially breaches this Agreement and such breach (i) is incapable of cure, or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or (b) files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors.  
    3. Refund and Payments.  If Customer terminates this Agreement due to Censia’s material breach or insolvency under Section 13.2, Customer will be entitled to: (a) a pro-rata refund in the amount of any unused portion of prepaid Fees under this Agreement, calculated as of the effective date of termination; and (b) a release from the obligation to pay Fees due under this Agreement for periods after the effective date of termination. If this Agreement is terminated for any other reason, including Customer’s material breach or insolvency, Customer will not be entitled to any refund and will remain obligated to pay all Fees due.
    4. Effect of Expiration or Termination.  Termination or expiration of this Agreement will terminate all Orders then pending under this Agreement.  Upon the effective date of any expiration or termination of this Agreement: (a) except as otherwise stated above, all Fees under this Agreement will become due and payable; (b) Censia may cease providing access to any Offerings; (c) all rights and licenses under this Agreement will terminate, including any right to access or use to any Offerings or APIs; (d) if requested by Customer, Censia will make available to Customer the Customer Data held by Censia; and (e) except as permitted under this Agreement, each party will return to the other party or, at the option of the other party, permanently destroy any other Confidential Information of the other party in such party’s possession or control. At the request of the other party, each party will certify in writing to its compliance with this Section.
    5. Survival.  The following Sections shall survive termination or expiration of this Agreement: 1, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21.
14. Warranties and Disclaimer. 
    1. Mutual.  Each Party represents and warrants: (a) such Party has full power and authority to enter into this Agreement and to perform its obligations under this Agreement; (b) this Agreement is a legal and valid obligation binding upon such Party and enforceable in accordance with its terms; (c) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such Party is a Party or by which such Party is bound; and (d) such Party’s performance under this Agreement will not violate any applicable laws, rules, or regulations.  
    2. Performance. Censia warrants that it will use commercially reasonable efforts to provide the Offerings in substantial conformance with the then-current Documentation.  Customer’s sole and exclusive remedy and Censia’s entire liability for breach of the foregoing warranty will be, in Censia’s discretion, re-performance of the deficient Offerings or termination of Customer’s subscription to the affected Offerings.  Any termination must occur within 3 months of Censia’s failure to re-perform.
    3. System Availability.  Censia will maintain an average monthly system availability for the production system of the Offerings as defined in the service level agreement, attached as Exhibit B hereto (the “SLA”). Customer’s sole and exclusive remedy for Censia’s breach of the SLA is the issuance of a service credit in the amount described in the SLA, which Customer must request within 30 days following the month in which the SLA was breached. When the validity of the service credit is confirmed by Censia in writing (email permitted), Customer may apply the credit to a future invoice for the Offering or request a refund for the amount of the credit if no future invoice is due.  
    4. Warranty Exclusions.  The warranties in Sections 14.2 and 14.3 will not apply where a failure or breach arises from: (a) the Customer Data or Customer Applications; (b) any support, modifications, or improvements not provided by Censia; (c) any product, service, or data not provided by Censia; (d) any instance where the Offerings were provided for no Fee; or (e) Customer’s or its Authorized Users’: (i) negligence, misuse, abuse or misapplication of the Offerings; (ii) use of the Offerings other than in accordance with this Agreement or the then-current Documentation; or (iii) breach of this Agreement.
    5. DISCLAIMER.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER CENSIA NOR ITS PROVIDERS OR CONTRACTORS MAKE ANY REPRESENTATION OR WARRANTY, AND CENSIA AND ITS PROVIDERS AND CONTRACTORS HEREBY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR  IMPLIED, WHETHER BY STATUTE, COMMON LAW, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE. CENSIA MAKES NO WARRANTIES THAT THE OPERATION OF THE OFFERINGS WILL BE SECURE, UNINTERRUPTED, OR ERROR FREE. CUSTOMER AGREES THAT IT IS NOT RELYING ON DELIVERY OF FUTURE FUNCTIONALITY, PUBLIC COMMENTS, OR ADVERTISING OF CENSIA OR PRODUCT ROADMAPS IN OBTAINING SUBSCRIPTIONS FOR ANY OFFERINGS OR PLATFORM SERVICES.
15. Third Party Claims.  
    1. Claims Against Customer.  Censia will defend Customer and its officers, directors, shareholders, employees, contractors, and agents against claims brought against Customer or its officers, directors, shareholders, employees, contractors, and agents by any third party alleging that Customer’s and its affiliates’ use of an Offering in conformance with this Agreement and the then-current Documentation infringes or misappropriates such third party’s intellectual property rights. Censia will indemnify Customer and its officers, directors, shareholders, employees, contractors, and agents from and against all damages finally awarded against Customer or its officers, directors, shareholders, employees, contractors, and agents (or the amount of any settlement Censia enters into) with respect to such claims.  Censia’s obligations under this Section will not apply if a claim results from: (a) use of an Offering in violation of this Agreement; (b) use of an Offering with other products, services, or offerings not furnished by Censia where the Offerings would not themselves be infringing without such use; (c) the modification or improvement of any Offerings other than by Censia; (d) any continued use of any Offering after Censia has notified Customer to cease use of the Offering; or (e) use of any Offering that Censia provides for no Fee.  If such a claim of infringement or misappropriation is made or likely to be made, Censia may (i) procure for Customer the right to continue using the affected Offering, or (ii) replace or modify the affected Offering to be non-infringing without a material decrease in functionality. If neither of these options is reasonably available, Censia may terminate Customer’s subscription to the affected Offering upon written notice.
    2. Claims Against Censia. Customer will defend Censia and its officers, directors, shareholders, employees, contractors, and agents against claims brought against Censia or its officers, directors, shareholders, employees, contractors, and agents by any third party relating to any Customer Data or Customer Application or any use thereof by Censia as permitted under this Agreement.  Customer will indemnify Censia and its officers, directors, shareholders, employees, contractors, and agents from and against all damages finally awarded against Censia and its officers, directors, shareholders, employees, contractors, and agents (or the amount of any settlement Customer enters into) with respect to such claims.
    3. Procedure. The party against whom a third-party claim covered by this Section 15 is brought (the “Indemnitee”) will timely notify the other party (the “Indemnitor”) in writing of such claim (provided that a failure to so timely notify will not waive any defense or indemnification obligations of the Indemnitor, except to the extent the Indemnitor is materially prejudiced thereby).  The Indemnitee will reasonably cooperate in the defense of such claims, and may appear (at its own expense) through its counsel reasonably acceptable to the Indemnitor, however, the Indemnitor will have the right to fully control the defense. Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by the Indemnitee without its prior written consent, which it agrees to not unreasonably withhold.
    4. Exclusive Remedy. The provisions of this Section 15 state the sole, exclusive, and entire liability of the parties, their affiliates, and providers and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third-party claims and to the infringement or misappropriation of third-party intellectual property rights.
16. Limitation of Liability.  
    1. Special Damages and Cap.  REGARDLESS OF THE BASIS OF LIABILITY (WHETHER ARISING UNDER BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, BREACH OF STATUTORY DUTY, BREACH OF WARRANTY, OR CLAIMS BY THIRD PARTIES), UNDER NO CIRCUMSTANCES SHALL: (A) EITHER PARTY (OR ITS RESPECTIVE AFFILIATES OR CONTRACTORS) BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LIABILITY, LOSS, OR DAMAGE (WHETHER OR NOT THE OTHER PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY, LOSS, OR DAMAGE) IN ANY AMOUNT, TO THE EXTENT THAT SUCH LIABILITY, LOSS OR DAMAGE IS (I) CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE, OR (II) FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, LOSS OF GOODWILL, LOSS RESULTING FROM WORK STOPPAGE, OR LOSS OF REVENUE OR ANTICIPATED SAVINGS, WHETHER ANY SUCH LOSS OR DAMAGE IS DIRECT OR INDIRECT; OR (B) THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY (OR ITS RESPECTIVE AFFILIATES OR CONTRACTORS) TO THE OTHER PARTY OR ANY OTHER PERSON RELATING TO THIS AGREEMENT OR THE OFFERINGS EXCEED THE FEES PAID FOR THE OFFERING THAT CAUSED THE DAMAGE DURING THE 3-MONTH PERIOD PRECEDING THE EVENTS (OR SERIES OF CONNECTED EVENTS) GIVING RISE TO SUCH LIABILITY $5, IF NO FEES WERE PAID FOR THE APPLICABLE OFFERING IN SUCH PERIOD. 
    2. Exclusions.  The exclusions and limitations in Section 16.1 will not apply as to any damages or other liability based upon or resulting from (a) Customer’s failure to pay any Fees due under this Agreement or (b) either party’s: (i) indemnification obligations under Section 15; (ii) breach of its confidentiality obligations under Section 12; (iv) fraud or fraudulent misrepresentation;(v) grossly negligence or willful misconduct resulting in death or bodily injury; or (vi) any other liability that cannot be excluded or limited by applicable law.
    3. Risk Allocation.  Each Party acknowledges that this Agreement allocates risk between the parties and that the Fees for the Offerings reflect this allocation of risk and foregoing limitations of liability.
17. Dispute Resolution.  The Parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”) through discussion between the Parties.  Except as otherwise provided in Section 18, if any Dispute cannot be resolved through negotiations between the Parties within 5 days of notice from one Party to the other of the Dispute, either Party may submit such Dispute for final settlement through binding arbitration under the arbitration rules of the American Arbitration Association then in effect (the “Rules”).  Either Party may commence the arbitration by delivering a request for arbitration as specified in the Rules.  The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the Parties.  If the Parties cannot agree on the appointment of a single arbitrator within 30 days after either Party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules.  The arbitration will be conducted in the English language at a site specified by Censia in San Francisco, California.  The arbitrator will apply the law set forth in Section 19 to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein.  The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator.  The award of the arbitrator may not require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party.  Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof.  Any additional costs, fees or expenses incurred in enforcing the award may be charged against any Party that resists its enforcement.   
18. Injunctive Relief.  Without prejudice to the parties’ right to proceed with arbitration, nothing in this Agreement will limit either Party’s right to seek immediate injunctive or other equitable relief in any court of competent jurisdiction.  Each party acknowledges and agrees that due to the unique nature of the Technology and the IPR relating thereto, there can be no adequate remedy at law for any breach by Customer of its obligations hereunder, that any such breach may cause Censia irreparable harm, and therefore, that upon any such breach of this Agreement or threat thereof, Customer will not oppose any attempt by Censia to obtain, in addition to whatever remedies it may have at law, an injunction or other appropriate equitable relief without making any additional showing of irreparable harm (and agrees to support the waiver of any requirement that Censia be required to post a bond prior to the issuance of any such injunction or other appropriate equitable relief).  
19. Choice of Law; Venue.  This Agreement and any claims relating to the subject matter hereof will be governed by and construed under the laws of the State of California, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in San Francisco, California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to this Agreement. Either party must initiate a cause of action for any claim(s) relating to this Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
20. Export.  Customer will comply with all export and import control laws, rules, and regulations applicable to the access to and use of the Offerings.  Customer will obtain all licenses, permits, and approvals required by the U.S. government or any other government and under any applicable laws.  Customer will not export or re-export any Technology without all such required licenses, permits, and approvals.  Customer will defend, indemnify, and hold harmless Censia from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by Censia as a result of any violation of such laws by Customer.
21. Miscellaneous.  
    1. Entire Agreement.  This Agreement, including these Terms, all Orders under these Terms, and the Exhibits referenced herein, constitutes the complete and exclusive statement of the agreement between Censia and Customer relating to the Offerings and the subject matter hereof and supersedes all prior agreements, arrangements, and understandings between the parties relating to that subject matter. Each party acknowledges that in entering into this Agreement it has not relied on any representation, discussion, collateral contract or other assurance except those expressly set out in this Agreement. The terms of this Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order furnished by one party to the other, and any additional terms and conditions in any such purchase order shall have no force and effect, notwithstanding the non-furnishing party’s acceptance or execution of such purchase order.
    2. Amendments and Modifications.  Except as permitted in these Terms, the Agreement may be modified only by a writing signed by both Parties. Censia reserves the right to modify any Offering at any time. Censia will inform Customer of modifications by email or through the Platform Services.  Modifications may include optional new features. Customer may use any modifications subject to this Agreement and the then-current Documentation.
    3. Notice.  All notices, consents, authorizations, and approvals to be given by a Party hereunder will be in writing and will be delivered to the Party’s address set forth in the Order, either via: (a) hand-delivery; (b) reputable overnight mail service; or (c) certified mail, return receipt requested, to the other Party; or (d) by electronic mail transmission, provided that receipt of such electronic mail is confirmed by the recipient. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused), except notice by electronic mail which will be effective only after receipt of the electronic mail is actually confirmed by the recipient. Either Party may change its address for notice by giving notice of the new address to the other Party.  
    4. Severability.  If any provision of this Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of this Agreement.
    5. Waiver.  A waiver of any breach of this Agreement is not deemed a waiver of any other breach.
    6. Counterparts.  This Agreement may be executed in two or more counterparts, whether to these Terms or an Order, including electronically, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.  
    7. Assignment.  Without Censia’s prior written consent, Customer may not assign or transfer this Agreement (or any of its rights or obligations) to any party, whether by operation of law or otherwise. Any purported assignment in violation of the foregoing will be null and void.  This Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement.
    8. Relationship of the Parties.  The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by this Agreement.
    9. Force Majeure.  Any delay or failure in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party, including, without limitation, acts of God or any governmental body, war or national emergency, epidemic, riots or insurrection, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power or telecommunications under third-party control is not a breach of this Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance. 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

Censia Inc		CUSTOMER
Signature		Signature
Printed Name		Printed Name
Title		Title
Date Signed		Date Signed

EXHIBIT A

CUSTOMER SUPPORT FOR THE PLATFORM SERVICES

Standard support is included in the subscription Fees for the Platform Services stated in the Order.  Issues which lead to a support case which is processed by specialized technical support engineers around the world or any support by a third party are in English only. 

Beginning on the Effective Date, Customer may contact Censia’s support organization as the primary point of contact for support services.  For contacting the support organization, the current preferred contact channel for is the Support Portal at https://support.censia.com.