Last updated: 30th September, 2019
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Curation Zone that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use or authorize any use of the Services.
The purpose of this Agreement is to establish the terms and conditions under which Subscriber may purchase Curation Zone’s Services and Consulting and Production Services as described in an Order Form or in a Statement of Work signed by You. This Agreement, including all Order Forms, Exhibits, Supplemental Terms, and Statements of Work, (each, where applicable), constitutes the entire agreement between You and Curation Zone with regard to the Services to be provided and/or Consulting and Production Services to be performed by Curation Zone and supersedes all prior agreements, understandings, statements, proposal(s) and representations, whether written or oral, between the Parties. In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall prevail.
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Agent: means an individual (including those of Your Affiliates) authorized to use the Service(s) through Your Account as an agent and/or administrator as identified through a unique login.
Applicable Data Protection Law: means the following data protection law(s): (i) where You (acting as Data Controller or Data Processor as defined under the GDPR) are established in an European Economic Area (“EEA”) member state or where Your Agents or End-Users access the Services from an EEA member state the EU Regulation 2016/679 entitled “On the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation or GDPR)” and any applicable national laws made under it; and (ii) where You are established in Switzerland, the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded).
API: means the application programming interfaces developed and enabled by Curation Zone that permit Subscribers to access certain functionality provided by the Services,.
Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but are not included in the Service Plan to which You subscribe.
Beta Services: means a product, service or functionality provided by Curation Zone that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
Confidential Information: means all information disclosed by You to Curation Zone or by Curation Zone to You which is in tangible form and labeled “confidential” (or with a similar legend) or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Curation Zone’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.
Consulting and Production Services: means consulting, content production and other professional services (including any training, success or implementation services) provided by Curation Zone or its authorized subcontractors as indicated on an Order Form or other written document such as a SOW.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Curation Zone to You in the applicable Curation Zone help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact while using a Service.
Order Form: means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of Agents authorized to use a Service under Your subscription and the Service Plan applicable to Your subscription.
Payment Agent: means Curation Zone or a payment agent designated by Curation Zone.
Personal Data: means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
Personnel: means employees and/or non-employee service providers and contractors of the Curation Zone Group engaged by the Curation Zone Group in connection with performance hereunder.
Processing/to Process/Processed: means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Service(s): means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, updates, API, Documentation, and all applicable Associated Services that You have purchased or to which You have subscribed (“Purchased Associated Services”) that are provided under this Agreement. “Services” exclude (i) Third Party Services as that term is defined in this Agreement; and (ii) any Associated Services that are not provided under this Agreement or Your Service Plan. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services.
Site: means a website operated by the Curation Zone Group, including www.curationzone.com, as well as all other websites that the Curation Zone Group operates.
Subscription Term: means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.
Supplemental Terms: means the additional terms and conditions that are (a) contained in Exhibit B to this Agreement entitled, “Supplemental Terms and Conditions”; (b) included or incorporated on an Order Form via hyperlink or other reference (e.g. when a Deployed Associated Service is purchased); (c) applicable to Consulting and Production Services when purchased by You; and (d) applicable to Additional Features when activated by You.
[Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Third Party Services which may be integrated directly into Your Account by You or at Your direction.]
“We,” “Us” or “Our”: means Curation Zone as defined below.
Curation Zone: means Curation Zone Limited, a UK company, or any of its successors or assignees.
Curation Zone Group: means Curation Zone, together with all its Affiliates.
2. General Conditions; Access to and use of the Services
2.1 During the Subscription Term and subject to compliance by You, Agents and End-Users with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Purchased Associated Services, for Your internal business purposes (subject to Section 2.4). You may extend Your rights, benefits and protections to Your Affiliates and to contractors or service providers acting on Your or Your Affiliates’ behalf, so long as You remain responsible for Your compliance hereunder.
2.2 We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Third Party Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”).
2.3 A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Curation Zone, including the Transport Layer Security (TLS) protocol or other protocols accepted by Curation Zone, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Curation Zone. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.4 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Curation Zone or the Curation Zone Group, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, other forms of duplicative or unsolicited messages, or messages that directly or indirectly support pyramid schemes or other fraudulent activities; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is (or directly or indirectly supports activities that are) unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as defined in 45 C.F.R 160.103 provided that You are a “business associate” or “covered entity” as defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Curation Zone; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (n) attempt to use, or use the Services in violation of this Agreement.
2.5 As between You and Curation Zone, You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account. Without limiting the foregoing, You are solely responsible for ensuring that the use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified number of individual Agents permitted under Your subscription to the applicable Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. Traditional or full-time Agent subscriptions are for designated individuals only and a Login cannot be shared or used by more than one individual but may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account. You agree and acknowledge that You may not use the Services, including but not limited to the API, to circumvent the requirement for an individual Agent Login for each individual who (a) leverages the Services to interact with End-Users; (b) Processes data related to interactions with End-Users; or (c) absent a license from Us otherwise, Processes data related to interactions originating from a Third Party Service that provides functionality similar to functionality provided by the Services and which would, pursuant to this Agreement, require an individual Agent Login if utilizing the Services for such interaction. Curation Zone reserves the right to periodically verify that Your use of the Curation Zone Services complies with the Agreement and the Service Plan features and limitations on Our Site including, without limitation, by assuming into Your Account. Should Curation Zone discover that Your use of a Curation Zone Service is not in compliance with this Agreement or the Service Plan features and limitations on Our Site, Curation Zone reserves the right to charge You, and You hereby agree to pay for, said usage in addition to other remedies available to Us.
2.6 In addition to Our rights as set forth in Sections 2 and 8.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Agents or End-Users.
2.7 You acknowledge that Curation Zone may modify the features and functionality of the Services during the Subscription Term.
2.8 You may not access the Services if You are a direct competitor of the Curation Zone Group, except with Curation Zone’s prior written consent. You may not access the Services for competitive purposes.
2.9 If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in Our sole discretion. Trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.
ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD.
2.10 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to Supplemental Terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Third Party Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. Confidentiality; Security and Privacy
3.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3.1 shall control over any non-disclosure agreement by and between the Parties and such agreement shall have no further force or effect with respect to the exchange of Confidential Information after the acceptance of this Agreement. To be clear, any exchange of Confidential Information prior to the acceptance of this Agreement shall continue to be governed by such non-disclosure agreement.
3.2 The Curation Zone Group will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data, as described in the Agreement, the Supplemental Terms entitled, “How We Protect Your Service Data” attached hereto, and Supplemental Terms for the Purchased Associated Services, as applicable. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Service Data by Personnel except (a) to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Sections 3.1(b) or 3.1(c); (c) in accordance with the provisions of Section 3.4; or (d) as You expressly permit in writing. The Curation Zone Group’s compliance with the provisions of Sections 3.2 through 3.5 and the Security Measures set forth in Exhibit B, Section 2 (“How We Protect Your Service Data”) shall be deemed compliance with the Curation Zone’s Group’s obligations to protect Service Data as set forth in the Agreement.
3.3 To the extent Service Data constitutes Personal Data, You and the Curation Zone Group hereby agree that You shall be deemed to be the Data Controller and the relevant entity in the Curation Zone Group Party shall be deemed to be the Data Processor as those terms are understood under the Applicable Data Protection Law. Unless otherwise specifically agreed to by Curation Zone, Service Data may be hosted by the Curation Zone Group or their respective authorized third-party service providers in the United States, the EEA or other locations around the world. In providing the Services, Curation Zone will engage entities within the Curation Zone Group and other authorized service providers, to Process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the EEA, the United States and in other countries and territories. Under no circumstances will any entity in the Curation Zone Group be deemed a Data Controller with respect to Service Data under Applicable Data Protection Law or any relevant law or regulation of any Member State as defined in Applicable Data Protection Law.
3.4 As between the Parties, all Service Data Processed under the terms of this Agreement shall remain the property of Subscriber. Except for where Curation Zone collects (i) the contact information of Your Agents, which may include Personal Data, in the ordinary course of Us providing the Services to You; and (ii) Personal Data about visitors to Our Site, under no circumstances will We act, or be deemed to act, as a “controller” (or equivalent concept) of the Service Data Processed within the Service under Applicable Data Protection Law. For the avoidance of doubt, Subscriber shall be considered the Data Controller of all End-User Personal Data under Applicable Data Protection Law.
[3.5 If Personal Data originates from an Agent or End-User in the EEA, We will ensure, pursuant to Applicable Data Protection Law, to the extent that any Service Data constitutes Personal Data, if Service Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 26(1) of Directive 95/46/EC (or its equivalent under any successor legislation) is satisfied; (c) done so on the basis of Curation Zone’s approved binding corporate rules known as the Curation Zone Binding Corporate Rules (“Curation Zone’s BCRs”) which establish adequate protection of such personal information and are legally binding on the Curation Zone Group (Curation Zone’s BCRs can be accessed here and here); or (d) the transfer takes place pursuant to the EU-U.S. or Swiss-U.S. Privacy Shield Frameworks. Upon Your request and subject to Your entry into Curation Zone’s DPA, We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission, which have been incorporated into the DPA. As a Subscriber, You can execute Our DPA by emailing firstname.lastname@example.org.]
3.6 You agree that the Curation Zone Group and the third-party service providers that are utilized by the Curation Zone Group to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data and the Personal Data of Your Agents to the extent necessary to provide or improve the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by the Curation Zone Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Sections 3.1 and 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.4.
3.7 Whenever You, Your Agents or End-Users interact with Our Services, We automatically receive and record information on Our server logs from the browser or device, which may include IP address, “cookie” information, and the type of browser and/or device being used to access the Services. “Cookies” are identifiers We transfer to the browser or device of Your Agents or End-Users that allow Us to recognize Agent or End-User and their browser or device along with how Our Services are being utilized. When We collect this information, We only use this data in aggregate form, and not in a manner that would identify Your Agents or End-Users personally. For example, this aggregate data can tell Us how often users use a particular feature of the Services, and We can use that knowledge to improve the Services.
3.8 We receive and store any information that You knowingly provide to Us. For example, through the registration process for Our Services and/or through Your Account settings, We may collect Personal Data such as name, email address, phone number, credit card information and third-party account credentials (for example, log-in credentials for Third Party Services that integrate with the Service(s) as further detailed in Section 3.10) of You and Your Agents. We base the Processing of Personal Data of Your Agents on Our legitimate interest under Applicable Data Protection Law, to provide You with the necessary functionality required during Your use of the Service(s). In addition, We may communicate with You and Your Agents, send You and Your Agents product announcements and promotional offers, or contact You and Your Agents about the Service(s). If You or an Agent does not want to receive communications from Us, please indicate this preference by sending an email to email@example.com and provide Us with the name and email address of each Agent that no longer wishes to receive these communications.
3.9 We never sell, rent, or lease Your Service Data to any third party. We do not share Your Service Data with third parties, except as permitted by Section 3 of this Agreement and in order to provide and support the Services. The Parties agree that We may, however, share aggregated and/or anonymized information regarding Your use of the Service(s) with third parties for marketing purposes and as described in this Section, to the extent it is necessary for Our legitimate interest under Applicable Data Protection Law, in developing and improving the Service(s) and providing You with more relevant content and service offerings. To be clear, We never disclose aggregated and/or anonymized information to a third party in a manner that would identify You as the source of the information or Your Agents or End-Users personally.
We consistently endeavour to improve Our Services. In doing so, We use analytics techniques to better understand how Our Service(s) are being used as detailed below.
(i) Usage Data. We may engage third party analytics providers to collect metrics and information regarding Your use of the Service(s), including evaluating how Agents and End-Users use the Services (“Usage Data”). To be clear, when Curation Zone uses Usage Data, any Personal Data that was included in Service Data shall be anonymized and/or aggregated in such a manner that it no longer constitutes Service Data or Personal Data under Applicable Data Protection Law. Usage Data is used to develop new features or improve existing features, inform future sales and marketing strategies and to market and sell the Services. The third party analytics providers will not share or otherwise disclose Usage Data, although Curation Zone may make Usage Data publicly available from time to time. We base the Processing of Usage Data on Our legitimate interest to analyze trends in order to assess and improve the overall user experience in the Service(s) to the extent it is necessary for Our legitimate interest under Applicable Data Protection Law.
(ii) Curation Zone uses Service Data in an anonymized manner, such as conversion to numerical value, for the training of the machine learning models to support certain features and functionality within the Service(s).
4. Intellectual Property Rights
Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Curation Zone and belong exclusively to Curation Zone. The Curation Zone Group shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf. Curation Zone®, and the Curation Zone Group’s other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of one or more members of the Curation Zone Group (collectively, “Marks”), and You may only use applicable Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.
5. Third Party Services
If You decide to enable, access or use Third Party Services, be advised that Your access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between You and the provider of such Third Party Services. We cannot guarantee the continued availability of such Third Party Service features, and may cease enabling access to them without entitling You to any refund, credit, or compensation, if, for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Curation Zone with respect to such Third Party Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Third Party Services, or Your reliance on the privacy practices, data security processes or other policies of such Third Party Services. You may be required to register for or log into such Third Party Services on their respective websites. By enabling any Third Party Services, You are expressly permitting Curation Zone to disclose Your Login, as well as Service Data as necessary to facilitate the use or enablement of such Third Party Services.]
6. Billing, Plan Modifications and Payments
6.1 Unless otherwise indicated on an Order Form or SOW referencing this Agreement or in the Supplemental Terms or as otherwise agreed for Usage Charges, and subject to Section 6.2, all charges associated with Your access to and use of a Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term, or, with respect to a Deployed Associated Service, at the time such Deployed Associated Service is purchased, subscribed to or otherwise deployed. If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within five (5) business days of Our notice to You that payment is delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You, Agents and End-Users. “Usage Charges” means additional Subscription Charges that are incurred by Subscriber related to the use of certain features and functionality that Subscriber enables within the Service.
6.2 If You choose to upgrade Your Service Plan or increase the number of Agents authorized to access and use a Service during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
6.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Curation Zone does not accept any liability for such loss.
6.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against the Curation Zone Group measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
6.5 If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each acceptance of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services and for periodic Subscription Charges applicable to Purchased Associated Services to which You subscribe until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize Curation Zone and the Payment Agent to charge Your credit card or other payment instrument to establish such prepaid credit. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
6.6 Payments made by credit card, debit card or certain other payment instruments for the Curation Zone Service are billed and processed by Curation Zone’s Payment Agent. To the extent the Payment Agent is not Curation Zone, the Payment Agent is acting solely as a billing and processing agent for and on behalf of Curation Zone and shall not be construed to be providing the applicable Service.
6.7 If You mandate Curation Zone use a vendor payment portal or compliance portal which charges Curation Zone a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, You shall be invoiced by Curation Zone for, and You are obligated to pay, the cost of this fee.
7. Promotional Credits Policy
We may, at Our sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns and referrals for Curation Zone services such as training. Curation Zone reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges for the applicable Service. Credits may only be applied to Subscription Charges due for the Service specifically identified by Curation Zone when issuing the credit. Credits can only be used by You and are non-transferable. To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.
8. Cancellation and Termination
8.1 Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, no less than thirty (30) days prior to the end of such Subscription Term. Unless Your Account and subscription to a Service is so terminated, Your subscription to a Service (including any and all Purchased Associated Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and Purchased Associated Services to which You have subscribed or which You have deployed, as applicable, as of the time such subsequent Subscription Term commences.
8.2 Except for Your termination rights under Section 8.5, no refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term.
8.3 Except for Your termination under Section 8.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 8.4 and 8.5, in addition to other amounts You may owe Curation Zone, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to a Service or cancel Your Account as a result of a material breach of this Agreement by Curation Zone.
8.4 We reserve the right to restrict functionality, suspend or terminate the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable and quarantine any Service Data if We reasonably believe that You, Agents or End-Users have violated this Agreement. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.
8.5 A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such notice; or (b) 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. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
8.6 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Service Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, will delete all copies of Service Data in Our possession or control in accordance with Our Data Deletion Policy, unless prohibited by law.
9. Representation and Disclaimers
9.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2 THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10. Limitation of Liability
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF CURATION ZONE), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING AND PRODUCTION SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE CURATION ZONE GROUP’S AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR CONSULTING AND PRODUCTION SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR CONSULTING FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR CONSULTING AND PRODUCTION SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, THE CURATION ZONE GROUP’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10.4 Any claims or damages that You may have against Curation Zone shall only be enforceable against Curation Zone and not any other entity or its shareholders officers, directors, representatives or agents.
You will indemnify and hold Curation Zone harmless against any claim (i) arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement; or (ii) alleging that Your use of the Service or Your Service Data infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret; provided (a) We promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.
12. Assignment, Entire Agreement and Amendment
12.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior written consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement to any member of the Curation Zone Group or in connection with any merger or change of control of Curation Zone or the Curation Zone Group or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
12.2 This Agreement constitutes the entire agreement, and supersede any and all prior agreements between You and Curation Zone with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein.
12.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Curation Zone as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14. Relationship of the Parties
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
All notices provided by Curation Zone to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or by mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Curation Zone in writing by Courier or by mail to [insert address for Curation Zone]. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
16. Governing Law
This Agreement shall be governed by the laws of England and Wales, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in England and Wales. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users.
You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at firstname.lastname@example.org.
Sections 1, 3.1, 3.7-3.10, 4 and 9-18 shall survive any termination of this Agreement with respect to use of the Services by You, Agents or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
SUPPLEMENTAL TERMS AND CONDITIONS
SECTION 1: How we protect your Service Data
The Curation Zone Group is committed to providing a robust and comprehensive security program including the security measures set forth in these Supplemental Terms (“Security Measures”). During the Subscription Term, these Security Measures may change without notice, as standards evolve or as additional controls are implemented or existing controls are modified as We deem reasonably necessary.
Security Measures Utilized by Us
As provided for in Section 3.2 of Exhibit A: General Terms and Conditions, We will abide by these Security Measures to protect Service Data as is reasonably necessary to provide the Services:
1. Security Policies and Personnel. We have and will maintain a managed security program to identify risks and implement preventative technology, as well as technology and processes for common attack mitigation. This program is and will be reviewed on a regular basis to provide for continued effectiveness and accuracy. We have, and will maintain, a full-time information security team responsible for monitoring and reviewing security infrastructure for Our networks, systems and services, responding to security incidents, and developing and delivering training to Our employees in compliance with Our security policies.
2. Data Transmission. We will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data at rest and in transmission with Our UI’s or API’s (using TLS or similar technologies) over the Internet, except for any Third Party Services that does not support encryption, which You may link to through the Services at Your election.
3. Audits and Certifications. Upon Customer’s request, and subject to the confidentiality obligations set forth in this Agreement, Curation Zone shall make available to Subscriber that is not a competitor of Curation Zone (or Subscriber’s independent, third-party auditor that is not a competitor of Curation Zone) information regarding Curation Zone’s compliance with the obligations set forth in this Agreement in the form of the Curation Zone’s ISO 27001 certification and/or SOC 2 or SOC 3 reports.
4. Incident Response. We have an incident management process for security events that may affect the confidentiality, integrity, or availability of Our systems or data that includes a response time under which Curation Zone will contact its subscribers upon verification of a security incident that affects Your Service Data. This process specifies courses of action, procedures for notification, escalation, mitigation, and documentation. The incident response program includes 24×7 centralized monitoring systems and on-call staffing to respond to service incidents. Unless ordered otherwise by law enforcement or government agency, You will be notified within seventy-two (72) hours of a Service Data Breach. “Service Data Breach” is defined as an unauthorized access or improper disclosure that has been verified to have affected Your Service Data.
5. Access Control and Privilege Management. We restrict administrative access to production systems to approved personnel. We require such personnel to have unique IDs and associated cryptographic keys. These keys are used to authenticate and identify each person’s activities on Our systems, including access to Service Data. Upon hire, Our approved personnel are assigned unique keys. Upon termination of personnel, or where compromise of said key is suspected, these keys are revoked. Access rights and levels are based on Our employees’ job function and role, using the concepts of least-privilege and need-to-know to match access privileges to defined responsibilities.
6. Network Management and Security. The Sub-processors utilized by Us for hosting services maintain industry standard fully redundant and secure network architecture with reasonably sufficient bandwidth as well as redundant network infrastructure to mitigate the impact of individual component failure. Our security team utilizes industry standard utilities to provide defense against known common unauthorized network activity, monitors security advisory lists for vulnerabilities, and undertakes regular external vulnerability audits.
7. Data Center Environment and Physical Security. The Sub-processors which are utilized by Us for hosting services in connection with Our provision of the Service employ the following security measures:
- A security organization responsible for physical security functions 24x7x365.
- Access to areas where systems or system components are installed or stored within data centers is restricted through security measures and policies consistent with industry standards.
- N+1 uninterruptible power supply and HVAC systems, backup power generator architecture and advanced fire suppression.
Technical and Organizational Security Measures for Third-Party Service Providers Who Host, Process, or Have Access to Service Data.
As provided for in Section 3.5 of the General Terms and Conditions, any third-party service providers that are utilized by the Curation Zone Group will only be given access to Your Account and Service Data as is reasonably necessary to provide the Service and will be subject to, among the other requirements in Section 3.5, their implementing and maintaining compliance with the following appropriate technical and organizational security measures:
1. Physical Access Controls. Third-party service providers shall take reasonable measures, such as security personnel and secured buildings, to prevent unauthorized persons from gaining physical access to data processing systems in which Service Data is Processed.
2. System Access Controls. Third-party service providers shall take reasonable measures to prevent data processing systems from being used without authorization. These controls shall vary based on the nature of Processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and/or logging of access on several levels.
3. Data Access Controls. Third-party service providers shall take reasonable measures to provide that Service Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to access Service Data only have access to Service Data to which they have the privilege of access; and, that Service Data cannot be read, copied, modified, or removed without authorization in the course of Processing.
4. Transmission Controls. Third-party service providers shall take reasonable measures to ensure that it is possible to check and establish to which entities the transfer of Service Data by means of data transmission facilities is envisaged so Service Data cannot be read, copied, modified, or removed without authorization during electronic transmission or transport.
5. Input Controls. Third-party service providers shall take reasonable measures designed to ensure that it is possible to check and establish whether and by whom Service Data has been entered into data processing systems, modified or removed; and, any of transfer of Service Data to a third-party service provider is made via a secure transmission.
6. Data Protection. Third-party service providers shall take reasonable measures designed to ensure that Service Data is secured to protect against accidental destruction or loss.
7. Logical Separation. Third-party service providers shall logically segregate Service Data from the data of other parties on its systems to ensure that Service Data may be Processed separately.
SUPPLEMENTAL TERMS AND CONDITIONS SECTION
2: Consulting and Production Services
If Subscriber has engaged Curation Zone for the provision of professional services (including any training, success, and implementation services, “Consulting and Production Services”) as indicated a Statement of Work (“SOW”) or other written document such as a “Description of Consulting and Production Services” on an Order Form, the provision of such Consulting and Production Services will be governed by the Agreement. Unless otherwise agreed to in a SOW or Order Form, Subscriber agrees that any Consulting and Production Services purchased by Subscriber must commence within six (6) months of the execution of the SOW or Order Form. In consideration of the foregoing, Subscriber and Curation Zone, intending to be legally bound, agree to the terms set forth below.
1. Scope. All Consulting and Production Services pursuant to the Agreement provided by Curation Zone to Subscriber will be outlined in one or more mutually agreed-upon and jointly executed SOW(s) or Order Form(s), each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Consulting and Production Services to be provided.
2. Retention. Subscriber hereby retains Curation Zone to provide the Consulting and Production Services described in one or more SOWs or Order Forms, subject to the terms and conditions set forth in the Agreement. Curation Zone shall not be obligated to perform any Consulting and Production Services until both Parties have mutually agreed upon and executed a SOW or Order Form with respect to such Consulting and Production Services. After execution of a SOW or Order Form, the Consulting and Production Services to be provided under that SOW or Order Form may only be changed through a change order mutually executed by the Parties (“Change Order”).”
3. Performance of Consulting and Production Services.
3.1 Each SOW or Order Form will include reasonable details about Consulting and Production Services, including, at a minimum, the Consulting Fees (defined below) charged and the Consulting and Production Services provided. Curation Zone and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting and Production Services in a timely and professional manner.
3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting and Production Services.
3.3 Curation Zone will perform the Consulting and Production Services through qualified employees and/or non-employee contractors of Curation Zone (“Subcontractors” and together with Curation Zone’s employees for the purposes of these Supplemental Terms, “Consulting and Production Services Personnel”). Subscriber agrees to provide, at no cost to Curation Zone, timely and adequate assistance and other resources reasonably requested by Curation Zone to enable the performance of the Consulting and Production Services (collectively, “Assistance”). Curation Zone, including its Subcontractors, will not be liable for any deficiency in the performance of Consulting and Production Services to the extent such deficiency results from any acts or omissions of Subscriber, including but not limited to, Subscriber’s failure to provide Assistance as required hereunder.
3.4 In performing the Consulting and Production Services, Curation Zone will utilize Consulting and Production Services Personnel as it deems necessary to perform the Consulting and Production Services or any portion thereof. Subscriber may object to Curation Zone’s use of a Subcontractor by specifying its reasonable objection to Curation Zone, in which case the Parties will cooperate in good faith to appoint another Consulting and Production Services Personnel to perform such Consulting and Production Services. Curation Zone may replace Consulting and Production Services Personnel in its normal course of business, provided that Curation Zone will be responsible for the performance of Consulting and Production Services by all Consulting and Production Services Personnel.
3.5 Curation Zone will control the method and manner of performing all work necessary for completion of Consulting and Production Services, including but not limited to the supervision and control of any Consulting and Production Services Personnel performing Consulting and Production Services. Curation Zone will maintain such number of qualified Consulting and Production Services Personnel and appropriate facilities and other resources sufficient to perform Curation Zone’s obligations under the Agreement in accordance with its terms.
3.6 Consulting and Production Services Personnel may enter (“assume into”) Subscriber’s production Account to provide the Consulting and Production Services as provided for in Curation Zone’s Customer Controlled User Assumption Policy found at: https://support.Curation Zone.com/hc/en-us/articles/115001753608-Granting-Curation Zone-temporary-access-to-your-account.
3.7 In the event that Subscriber seeks to change the scope of Consulting and Production Services to be provided under any SOW or Order Form (including, but not limited to, any changes to the project schedule described in the SOW or Order Form), Subscriber shall discuss such proposed changes with Curation Zone. If Curation Zone elects to perform such changes to the Consulting and Production Services, the Parties shall work together in good faith to execute a written Change Order. Curation Zone shall be entitled to an adjustment in Consulting Fees pursuant to the changes reflected in the Change Order. Curation Zone shall not be obligated to perform any differing or additional Consulting and Production Services unless the Parties have mutually agreed upon a written Change Order.
3.8 Unless otherwise agreed to in a SOW or Order Form, for Consulting and Production Services that are deliverable or milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW or Order Form, Curation Zone shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) days from the date of the Completion Notice to provide Curation Zone with written notice describing any deliverables that have not been provided or milestones not met. The SOW or Order Form shall be deemed complete and the deliverables accepted or milestones met absent Subscriber’s timely written notice of any deliverables not having been provided or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for Consulting and Production Services that are time and materials based.
4. Consulting Fees.
4.1 Subscriber will pay Curation Zone the fees to provide the Consulting and Production Services as detailed or described in an Order Form or SOW (the “Consulting Fees”).
4.2 All Consulting and Production Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW or Order Form. Each SOW or Order Form providing for time and materials based Consulting Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting and Production Services (“T&M Estimate”). Curation Zone will make a commercially reasonable effort to provide such Consulting and Production Services within such T&M Estimate, up to the number of hours agreed to by the Parties. If it appears that the T&M Estimate may be exceeded, Curation Zone will make a reasonable effort to notify Subscriber as soon as practicable and provide an amended T&M Estimate. Upon receiving such amended T&M Estimate, Subscriber will accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Consulting Fees associated with Consulting and Production Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is accepted by Subscriber shall be deemed a Change Order.
4.3 As detailed in the applicable SOW or Order Form, the performance of Consulting and Production Services may be subject to an advance payment of Consulting Fees by Subscriber upon execution of the SOW or Order Form. Such advance payment will be applied against Consulting Fees which become payable by Subscriber. Curation Zone may refuse to perform Consulting and Production Services unless and until such advance payment is paid to Curation Zone.
4.4 In addition to any and all Consulting Fees, Subscriber will reimburse Curation Zone for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including changes to travel and accommodations resulting from Subscriber’s request incurred by Curation Zone in connection with providing the Consulting and Production Services (“Expenses”). Curation Zone will provide reasonable documentation for all Expenses as requested by Subscriber.
4.5 Any unpaid Consulting Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.
4.6 Cancellation/Changes: Any cancellations of or changes to the Consulting and Production Services less than five (5) days prior to the agreed upon Consulting and Production Services commencement date are subject to forfeiture of Consulting Fees paid and reserved date(s).
5. Relationship of the Parties. Curation Zone is an independent contractor and will maintain complete control of and responsibility for its Consulting and Production Services Personnel, methods and operations in providing Consulting and Production Services. Curation Zone will never hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Consulting Fees, Expenses or other amounts paid by Subscriber to Curation Zone hereunder shall not be considered salary for pension or wage tax purposes and neither Curation Zone nor its Consulting and Production Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Consulting Fees or Expenses paid for Consulting and Production Services any taxes, unemployment, social security or other such expense unless otherwise required by law.
6.1 Curation Zone hereby represents and warrants that:
the Consulting and Production Services provided pursuant to the Agreement will be performed in a timely and professional manner by Curation Zone and its Consulting and Production Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy for any breach of this warranty will be, at Curation Zone’s option, re-performance of the Consulting and Production Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to Curation Zone by Subscriber for the nonconforming portion of the Consulting and Production Services; and
it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting and Production Services.
6.2 The Parties hereby agree that:
EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6.1 ABOVE, CUSTOM APPLICATIONS THAT RESIDE WITHIN THE CURATION ZONE SERVICE FRAMEWORK, HELP CENTER CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED DELIVERABLES”) ARE PROVIDED TO SUBSCRIBER “AS IS” AND CURATION ZONE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. CURATION ZONE SHALL NOT BE RESPONSIBLE, IN LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY CURATION ZONE. CURATION ZONE DOES NOT WARRANT THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. CURATION ZONE EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, CURATION ZONE EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY CURATION ZONE OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO SUBSCRIBER AND ANY THIRD PARTY’S USE OF THE SERVICES.
7. Rights to Deliverables; Ownership.
7.1 The Parties hereby agree that the specified Consulting and Production Services to be completed pursuant to any SOW or Order Form primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW or Order Form, no deliverable provided in connection with the Consulting and Production Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Subscriber hereby assigns to Curation Zone all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Curation Zone a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, Curation Zone shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback Curation Zone receives from Subscriber.
7.2 Without limiting the foregoing, Curation Zone and its licensors reserve and retain ownership of all Pre-existing Technology, Developed Technology and Generic Components (each as defined below), and Curation Zone hereby grants to Subscriber a non-exclusive, fully-paid, limited license to use Pre-existing Technology, Developed Technology and Generic Components solely in connection with Subscriber’s use of the Service(s). “Pre-existing Technology” means all of Curation Zone’s inventions (including those of Curation Zone’s Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting and Production Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated Intellectual Property Rights thereto developed by Curation Zone and its Affiliates or their Consulting and Production Services Personnel in connection with providing Consulting and Production Services pursuant to the Agreement that derive from, improve, enhance or modify Curation Zone’s Pre-existing Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by Curation Zone and its Affiliates or their Consulting and Production Services Personnel in connection with providing Consulting and Production Services generally to support Curation Zone’s product and/or service offerings (including, without limitation the Services) and which can be so used without use of Subscriber’s Confidential Information..