SaaS Services Agreement

This SaaS Services Agreement (the “SSA”) is entered into as of the Effective Date between CueZen Pte Ltd. (“CueZen”) and customer using NudgeStream Services (as defined (“Customer”, “you,” or “your”) and forms part of the Agreement that governs Customer’s use of the NudgeStream Services. Unless otherwise indicated, capitalized terms have the meaning assigned to them in the Agreement.

You acknowledge that no term in any Order entered into via a reseller will be deemed to modify the Agreement unless pre-authorized in writing by CueZen.

1. Definitions.

Defined terms are set out below. Capitalized terms used but not defined in a Schedule or an Order will have the meaning assigned to them, if any, within this SSA.

1.1. “Acceptable Use Policy” means the acceptable use policy governing the NudgeStream Services located in Exhibit A.
1.2. “Affiliate” of a party means an entity that controls, is actually or in effect controlled by, or is under common control with such party.
1.3. “Agreement” means this SSA, the Service Specific Terms, the referenced or attached Schedules and addenda, and any accompanying or future Order you enter into under this SSA.
1.4. “Authorized User” means employees or agents of Customer or its Affiliates selected by Customer to access and use the NudgeStream Services.
1.5. “Beta Service” means any feature of the NudgeStream Services that is clearly designated as “beta”, “experimental”, “preview” or similar, that is provided prior to general commercial release, and that CueZen at its sole discretion offers to Customer, and Customer at its sole discretion elects to use.
1.6. “Cloud Environment” means a cloud or other compute or storage infrastructure controlled by a party or by an external user (as may be defined where appropriate by schedule or amendment hereto) according to context and used under the Agreement.
1.7. “Cloud Service Provider” means a cloud service provider on whose platform CueZen directly provides the Platform Services.
1.8. “Course” means an instance of Training Services.
1.9. “Course Materials” means the training materials and other information and content provided by CueZen in conducting the Training Services.
1.10. “Customer Content” means all data which is shared by Customer for processing by CueZen on behalf of the Customer in the course of providing the NudgeStream Services including, without limitation, End User data provided by Customer.
1.11. “CueZen Materials” means any software programs, tools, know-how, expertise, utilities, processes, inventions, devices, methodologies, specifications, documentation, analysis, techniques, training materials, reports, and any other materials of any kind used, created, developed or delivered by CueZen or its personnel in connection with the NudgeStream Services.
1.12. “Deliverable” means any work product, deliverables, reports, databases, analyses, recommendations, programs, applications, or other documentation or inventions provided, created, or developed by CueZen in the performance of Training Services under an Order. For avoidance of doubt, no part of the Platform Services will be deemed to be incorporated into the Deliverables.
1.13. “Documentation” means the documentation related to the Platform Services that is provided separately.
1.14. “DPA” unless you have separately executed this document means the Data Processing Addendum located in Exhibit B.
1.15. “Effective Date” means the effective date of the initial Order that references this SSA.
1.16. “End User” means the individual whose data is provided by Customer to CueZen for processing under the Agreement in relation to receiving NudgeStream Services.
1.17. “Environment” means a Platform Services environment.
1.18. “Fees” means all amounts payable by Customer for NudgeStream Services.
1.19. “Intellectual Property Rights” means all worldwide intellectual property rights available under applicable laws including without limitation rights with respect to patents, copyrights (registered or unregistered), moral rights, trademarks (registered or unregistered), trade secrets, know-how, databases, proprietary and Confidential Information in relation to the NudgeStream Service, service name, service structure, technology, designs, methods and processes, software, content, materials, trade secrets, lay-outs, graphics, know-how, website, images, fonts, logos, illustrations, photographs, compositions, artworks, interfaces, text, literary or code files or any analogous rights to those set forth above (registered or unregistered) and any other intellectual property rights in any jurisdiction.
1.20. “NudgeStream Services” means (a) the NudgeStream platform services (the “Platform Services”), (b) support services (“Support Services”), (c) training services (“Training Services”), and any other services provided by CueZen.
1.21. “Order” means an order form (“Order Form”), online order (including the provisioning of any NudgeStream Services), statement of work (pursuant to an Order Form), private/public offer on Microsoft or Amazon marketplace, or similar agreement for the provision of NudgeStream Services, entered into by the parties or any of their Affiliates, incorporated by reference into, and governed by, the Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of the Agreement as if it were an original party hereto.
1.22. “Schedule” means any of the schedules referenced herein (if applicable) or otherwise set forth in an Order.
1.23. “Scheduled Maintenance” means the time period allocated for the maintenance activities that has been informed in advance to the Customer.
1.24. “Subscription Term” means the period of authorized access to and use of the Platform Service, as set forth in the Order including the Renewal Subscription Term.
1.25. “Support Services Policy” means the available Support Services offerings, and related processes and terms located in Exhibit C.
1.26. “System” means any application, computing or storage device, or network.
1.27. “Usage Data” means data generated by CueZen relating to Customer’s use of the Platform Services which may contain aggregated metrics of the de-identified/anonymised End User data to be used solely for the purpose of improving the quality of Platform Services but does not contain Personal Data or any other Customer’s Environment information.
1.28. “Updates” are releases (including patches and hotfixes) of the Platform Services to Customer’s instances of the Platform Service that provide problem fixes, enhancements or new features.
1.29. “Supported Release” at a particular time means the then-current release.

2. Confidentiality.

2.1. Confidential Information.
“Confidential Information” means any business or technical information disclosed by or on behalf of either party or their Affiliates to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary including without limitation information relating to the disclosing party’s present and contemplated products and services, product designs, inventions, improvements, standards, specifications, systems, software, hardware, methods and operating procedures, techniques, features, formulations, merchandising, marketing plans and strategies, tests and reports, profits and costs, pricing, product sourcing and sales policies and strategies, preferences of the present as well as prospective customers of the disclosing party, their names and addresses, know-how data, research and development, patents, trademarks, copyright, licenses and other Intellectual Property Rights. Without limiting the foregoing, all non-public elements of the NudgeStream Services are CueZen’s Confidential Information, Customer Content is Customer’s Confidential Information, and the terms of the Agreement and any information that either party conveys to the other party concerning data security measures, incidents, or findings constitute Confidential Information of both parties. Confidential Information will not include information that the receiving party can demonstrate (a) is or becomes publicly known through no fault of the receiving party, (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others, (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others or (d) was independently developed by the receiving party without use of or reference to the Confidential Information.

2.2. Confidentiality.
All Confidential Information received by the receiving party relating to the disclosing party must be held in confidence by the receiving party to the same extent and with at least the same degree of care as that with which the receiving party protects its own confidential or proprietary information of like kind and import, but in no event using less than a reasonable degree of care. A receiving party will not use the disclosing party’s Confidential Information except as permitted under the Agreement or to enforce its rights under the Agreement and will not copy, exploit, use, duplicate, analyze or have it analyzed and/or reverse engineer the Confidential Information and will not disclose such Confidential Information to any third party except to those of its employees, Affiliates and/or subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of the Agreement; provided that each such employee, Affiliate and/or subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 2.2 (Confidentiality). Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to those that the receiving party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, that a party may disclose such Confidential Information as required by applicable laws, subject to the party required to make such disclosure giving reasonable notice (if legally permitted to do so) to the other party to enable it to contest such order or requirement or limit the scope of the disclosure to strictly on a “need to know” basis. The receiving party will take into account any reasonable comments the disclosing party may have in relation to the content, timing and manner of dispatch of the disclosure and take such steps as the disclosing party may reasonably require to enable the disclosing party to mitigate the extent of or avoid the requirement of any such disclosure to the extent permitted by applicable law. The provisions of this Section 2.2 (Confidentiality) will supersede any non-disclosure agreement by and between the parties (whether entered into before, on or after the Effective Date) and such agreement will have no further force or effect with respect to Confidential Information.

2.3. Equitable Relief.
Each party acknowledges and agrees that the other party may be irreparably harmed in the event that such party breaches Section 2.2 (Confidentiality), and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereto hereby agrees that the non-breaching party will be entitled to seek injunctive relief to prevent or stop such breach, and to obtain specific enforcement thereof. Any such equitable remedies obtained will be in addition to, and not foreclose, any other remedies that may be available.

3. Intellectual Property.

3.1. Ownership by CueZen.
Except for the limited licenses expressly set forth in the Agreement, CueZen retains all rights, title and interest in and to (i) the NudgeStream Services, Documentation, Deliverables, CueZen Materials, Course Materials, telemetry data, and any and all related and underlying technology and documentation (including but not limited to products, software tools, algorithms, know-how, processes, methodologies, databases, and architecture) created by or for, or licensed to CueZen; (ii) any new software, applications, inventions or other technology developed in connection with the NudgeStream Services, (iii) any Updates, improvements, modifications, or enhancements thereto or derivative works of any of the foregoing and (iv) all Intellectual Property Rights in and related to any of the foregoing ((i) to (iv) collectively the “CueZen Technology”), including all Intellectual Property Rights in any of the foregoing. You will not delete or alter the copyright, trademark, or other proprietary rights notices or markings appearing within the CueZen Technology as delivered to you. You agree that the CueZen Technology is provided on a non-exclusive basis and not sold, and that no transfer of ownership of Intellectual Property Rights will occur. You further acknowledge and agree that portions of the CueZen Technology, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets and other Intellectual Property Rights of CueZen and its licensors.

3.2. Ownership of Customer Content.
As between Customer and CueZen, Customer retain all ownership or license rights in Customer Content.

3.3. Telemetry Data.
Notwithstanding anything to the contrary in the Agreement, CueZen shall have all the ownership rights in the telemetry data which includes the Usage Data that CueZen may collect under the Agreement.

3.4. Feedback.
If you choose to offer feedback (“Feedback”) to CueZen, you hereby grant CueZen a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully-paid, sub-licensable, assignable license to use, incorporate, modify, distribute and commercialise the Feedback without restriction or obligation. You also irrevocably waive in favor of CueZen any moral rights which you may have in such Feedback pursuant to applicable copyright law. CueZen acknowledges that any Feedback is provided on an “as-is” basis with no warranties of any kind.

3.5. Updates to NudgeStream Services.
CueZen reserves the right to bring Updates to add, upgrade, or modify the NudgeStream Services, or make necessary adjustments to the technology, method, features, functionality, user interface, underlying infrastructure, and performance of the NudgeStream Services, and may conduct internal or external testing for new features or improvement of existing features provided that such Updates do not materially degrade the core functionality of the NudgeStream Services. Continued use of the NudgeStream Services by Customer following any such Updates shall constitute acceptance of the updated NudgeStream Services.

3.6. Training Services Licenses.
CueZen grants to the Customer a limited, non-sublicensable, non-transferable, license to the Course Materials, solely for the internal educational use by Customer.

4. Use of the Platform Services.

4.1. Access to Platform Services.
CueZen shall use commercially reasonable efforts to make the Platform Services available to Customer and its Authorized Users and provide them a non-exclusive, non-assignable, royalty free, worldwide right to access and use the Platform Services in accordance with the terms and conditions of the Agreement, the Documentation, and an applicable Order solely for Customer’s or their Affiliate’s internal business purposes.

4.2. CueZen Responsibilities.
4.2.1. Services. CueZen is responsible for (a) the operation of the Cloud Environment’s resources used to operate the Platform Services; (b) the CueZen software used to operate the Platform Services; (c) provide latest updates to the CueZen software used to operate the Platform Services; (d) ensuring the availability of the Platform Services in accordance with the Service Availability specified in the Support Services Policy; and (e) conducting an annual review of the Customer’s usage of the Platform Services.
4.2.2. Security Measures. CueZen shall implement reasonable administrative, physical, and technical safeguards to protect the security of the Platform Services and the Customer Content

4.3. Customer Responsibilities.
4.3.1. General Responsibilities. You acknowledge and agree that you are responsible for:
(a) checking that the Platform Services is suitable for your needs;
(b) ensuring that each Authorized User has their own credentials, protecting those credentials, and not permitting any sharing of credentials;
(c) obtaining and maintaining any System, equipment and ancillary services needed to connect to, access or otherwise use the NudgeStream Services, including, without limitation, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”);
(d) maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent;
(e) your Authorized User’s compliance with this Agreement and applicable laws;
(f) securing any Customer Cloud Environment, and any Customer System;
(g) backing up Customer Content;
(h) using commercially reasonable efforts to ensure that your Authorized Users review the portions of Documentation relevant to your use of the Platform Services;
(i) risks associated with all use of the Platform Services by an Authorized User under an Authorized User’s account (including for the payment of Fees related to such use), whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User, provided that such action was not (1) taken by CueZen or by a party acting under the direction of CueZen, or (2) an action by a third party that CueZen should reasonably have prevented;
(j) providing and paying for the Cloud Environment’s resources used to operate the Platform Services;
(k) setting up the Cloud Environment’s resources at Customer’s own cost if the Customer has specific needs for the architectural models that deviates from the ones offered by CueZen;
(l) identifying the use cases that will make use of the Platform Services;
(m) providing de-identified End User data that is required for the operation of the Platform Services in a timely manner and that it conforms to the pre-agreed interface contracts;
(n) accuracy, quality and legality of Customer Content;
(o) means by which Customer acquired Customer Content and shall have all rights, licenses, consents, and permissions to grant a license to CueZen to use Customer Content;
(p) obtaining all necessary rights to use the End User data in connection with NudgeStream Services, including without limitation, any required notices and consents in connection with any Personal Data included in End User data;
(q) ensuring that the full administrative access control of resources used to operate the Platform Services is limited only to CueZen;
(r) performing any activities that is deemed required by the Customer to commence adoption of the Updates of the CueZen software used to operate the Platform Services.

4.3.2. Platform Services Use Limits. You will not, and will not permit your Authorized Users to:
(a) violate the Acceptable Use Policy or use the Platform Services other than in accordance with the Documentation;
(b) copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of the Platform Services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by the Agreement or by law to (i) build a competitive product or service, or (ii) copy or distribute all or part of the Platform Services; (iii) copy, distribute and/or allow third parties to copy, distribute and/or use all or part of the Platform Services;
(c) modify, translate or create derivative works based on the Platform Services;
(d) assign, transfer, sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the Platform Services to any third party except to the extent explicitly authorized in writing by CueZen;
(e) alter, destroy or delete references to the ownership of Intellectual Property Rights or any other references to CueZen’s ownership that appear in the CueZen Materials;
(f) use the Platform Services to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party’s possible purchase of any Platform Services;
(g) use the Platform Services in any manner to assist or take part in the development, marketing or sale of any product potentially competitive with the Platform Services;
(h) transfer or assign any of your rights hereunder except as permitted under Section 12.4 (Assignment);
(i) during any trial period granted by CueZen, including during the use of any Beta Service, use the NudgeStream Services for any purpose other than to evaluate whether to purchase the NudgeStream Services; or
(j) provide access to NudgeStream Services to CueZen’s direct or indirect competitors without CueZen’s prior written consent.

4.3.3. CueZen may monitor the Customer’s use of the NudgeStream Services on an ongoing basis to ensure compliance with the Agreement and detect or prevent any unauthorized use or activities. Such monitoring may include, but is not limited to, analysis of usage patterns, access logs, user activity, and data storage volumes.

4.3.4. Usage of Service Capacity.
(a) Customer agrees that if it anticipates that its usage of the Services will exceed the applicable Service Capacity, Customer shall provide CueZen with written notice of such anticipated overage at least thirty (30) days in advance. Upon receipt of such notice, both parties shall cooperate in good faith to determine the appropriate course of action, which may include, without limitation: (i) execution of a new Order Form, (ii) amendment of the existing Order Form, and/or (iii) adjustments to the Equipment or infrastructure supporting the Service Capacity. Any such increase in usage shall be subject to the add-on usage rates set forth in the applicable Order Form (each, an “Add-On Order Form”). Each Add-On Order Form shall have a subscription period coterminous with the then-current Initial or Renewal Subscription Term.
(b) In the event of persistent overuse—defined as Customer’s usage exceeding the Service Capacity for more than one (1) calendar month without the required advance notice—Customer acknowledges and agrees that such overuse may result in performance degradation, reduced availability of the Services, or increased security risks. CueZen shall have no liability for any such defects, failures, or service interruptions resulting from Customer’s unnotified or unresolved overuse, and CueZen’s obligations with respect to Service availability (as per the SSA) shall be deemed waived to the extent impacted thereby.
(c) If Customer fails to provide the required advance notice on two (2) or more occasions within any rolling twelve (12) month period, CueZen shall have the right to take one or more of the following actions: (i) suspending Customer’s access to the Services until such time as the overage is resolved through the execution of an appropriate Order Form; and/or (ii) modify the applicable pricing tiers or service terms upon providing thirty (30) days’ prior written notice to the Customer.

4.4. Shared Responsibilities.
Customer acknowledges that the Platform Services may be implemented in a manner that divides the Platform Services between the Customer Cloud Environment and the CueZen Cloud Environment, and that, in such instances, each party must undertake certain technical and organizational measures in order to protect the Platform Services and the Customer Content.

4.5. Customer Content.
4.5.1. Limits on what Customer Content may contain. You agree that you will not include in Customer Content any data for which you do not have all rights, power and authority necessary for its collection, use and Processing as contemplated by the Agreement.
4.5.2. CueZen is not responsible for any claims related to the ownership of any Customer Content or damages from any third person. The consent of usage of Customer Content by CueZen is an implied consent to use the NudgeStream Services.

4.6. Architectures and Services Updates.
CueZen provides the Platform Services according to different architectures (e.g. where computing resources are deployed into Customer Cloud Environment and computing resources are deployed into CueZen Cloud Environments or a hybrid) depending on the specific feature being used by Customer. Accordingly, Customer acknowledges and agrees that different portions of the Platform Services are and may in the future be subject to changes reflected in the Documentation or terms and conditions that provide for different rights and responsibilities of the parties for their use.

4.7. Data Protection.
All Personal Data (as defined in Exhibit B) that is collected, used or disclosed by a Party during the term of this Agreement or in connection with this Agreement shall be treated in a confidential manner, and that Party shall in collecting, using and/or disclosing any such Personal Data comply with all Data Protection Laws, as well as with the terms set out at Exhibit B.

4.8. Suspension and Termination of Platform Services.
4.8.1. Suspension. CueZen may temporarily suspend any or all Environment at any time: (i) upon three (3) days’ prior written notice if CueZen reasonably suspects that you have violated your obligations under the Agreement including, without limitation, Section 4.3 (Customer Responsibilities), Section 4.5 (Customer Content), or Section 11 (Compliance with Laws) in a manner that may cause material harm or material risk of harm to CueZen or to any other party; (ii) there is unauthorized access to the Customer’s Account (iii) Customer’s use of the Platform Services poses a risk to the Platform Services or (iv) if you (or any third party responsible for making payment on your behalf) fail to pay undisputed Fees after receiving notice that you are delinquent in payment.
4.8.2. Termination. If the Agreement is terminated for any reason, as to all Orders or as to any specific Order, CueZen may cancel your access to the Platform Services under the terminated Order(s). Upon termination of the Agreement for any reason you shall delete or destroy, at the discretion of CueZen, all stored elements or data processed and obtained as part of the Platform Services from your Systems and may, subject always to the applicable laws, retain only the back-up of the Customer Content.
4.8.3. Notice. Notwithstanding Section 12.5 (Notice), notice under this Section 4.8 (Suspension and Termination of Platform Services) may be provided by email sent to a person as identified under relevant Order.

4.9. Support Services.
CueZen will provide you with the level or type of Support Services specified in an Order in accordance with the Support Services Policy. If Support Services are not specified in an Order, your support shall be limited to Documentation and fora.

5. Training Services.

5.1. Generally.
CueZen will generally provide the Training Services remotely, unless we agree to provide them at a mutually agreed location at your request. If our personnel travel at your request, you agree to reimburse our reasonable, actually-incurred travel and lodging expenses. While on Customer’s premises, CueZen personnel will adhere to customer’s reasonable onsite access policies (provided to CueZen in writing in advance). For the avoidance of doubt, no such policies will be deemed to modify the terms of the Agreement. Pre-purchased Training Services will expire after the period indicated on the Order. Training Services are quoted and provided on the basis of 8-hour service days.

5.2. Training Services Type.
Training Services may be delivered (i) in scheduled real-time session(s) by instructors (“Instructor-led Training Services”), either virtually (online) or in person (as a private Course); or (ii) as a self-paced online training Course (“Self-Paced Training Services”). For Training Services, we provide qualified training personnel and/or suitable training materials.

5.3. Responsibility of Customer in relation to Training Services.
In support of our delivering such Training Services, you will (i) be responsible for providing a reasonable training venue, and all training venue expenses and arrangements, including providing us access to appropriate contacts to assist in logistics coordination, audio-visual and the like; (ii) provide CueZen access to your designated training venue as reasonably required by CueZen to setup and perform the Instructor-led Training Services.

6. Warranties; Remedy.

6.1. Warranties.
Each party warrants that it is validly entering into the Agreement and has the legal authority to do so. In addition to the warranties provided by the parties as set forth in any applicable Schedule, CueZen warrants that: during the term of any Order for Platform Services: (a) the Platform Services will function substantially in accordance with the Documentation; and (b) CueZen will employ commercially reasonable efforts in accordance with industry standards to prevent the transmission of malware or malicious code via the Platform Services.

6.2. Disclaimer.
6.2.1 THE WARRANTIES PROVIDED BY CUEZEN IN SECTION 6.1 (WARRANTIES) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING CUEZEN, NUDGESTREAM SERVICES, AND DELIVERABLES PROVIDED HEREUNDER. CUEZEN AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.2.2 CueZen shall use reasonable efforts consistent with prevailing industry standards to maintain the NudgeStream Services in a manner which minimizes errors and interruptions in the NudgeStream Services and shall perform the NudgeStream Services in a professional and workmanlike manner. NudgeStream Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by CueZen or by third-party providers, or because of other causes beyond CueZen’s reasonable control, but CueZen shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN: (a) ANY SERVICES PROVIDED UNDER THE AGREEMENT ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND; (b) WITHOUT LIMITATION, CUEZEN DOES NOT MAKE ANY WARRANTY OF ACCURACY, COMPLETENESS, TIMELINESS, OR UNINTERRUPTABILITY, OF THE NUDGESTREAM SERVICES OR DELIVERABLES; AND (c), CUEZEN IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE NUDGESTREAM SERVICES OR DELIVERABLES, OR FOR CONCLUSIONS DRAWN FROM SUCH USE. FURTHER, CUEZEN EXPRESSLY DISCLAIMS ANY OBLIGATION TO SUPPORT, MAINTAIN, OR UPDATE ANY DELIVERABLE AFTER THE TERMINATION OR EXPIRY OF THE ORDER, UNLESS THE PARTIES EXPLICITLY AGREE OTHERWISE IN THE APPLICABLE ORDER.

6.3. Warranty Remedy.
FOR ANY BREACH OF THE WARRANTIES RELATED TO THE PLATFORM SERVICES PROVIDED BY CUEZEN IN SECTION 6.1 (WARRANTIES), YOUR EXCLUSIVE REMEDY AND CUEZEN’ ENTIRE LIABILITY WILL BE: (1) FOR PLATFORM SERVICES, THE MATERIAL CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, (2) IF WE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUEZEN WILL END THE DEFICIENT SERVICES AND REFUND TO YOU THE PORTION OF ANY PREPAID FEES PAID BY YOU TO CUEZEN APPLICABLE TO THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION (FOR PLATFORM SERVICES) FOR THE REMAINING SUBSCRIPTION TERM.

6.4. Beta Services.
Some Beta Services offered by CueZen are still in testing phase and are provided on an “as is”, with ‘all faults’ and “as available” basis and are believed to contain defects with the primary purpose of this beta testing license being to obtain Feedback on performance and the identification of defects. From time to time, CueZen may invite the Customer to use a new version or feature that CueZen has designated as beta, trial, pilot, limited release, pre-release, non-production, evaluation or similar designation. Beta Services are for CueZen’s evaluation and testing purposes. The Customer is advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of the beta version and/or accompanying materials. Beta Service are excluded from the Service Availability and all limited warranties provided in the Agreement. Beta Service may not be covered by customer support. CueZen may change or discontinue Beta Service at any time without notice. CueZen also may choose not to release a Beta Service into general availability.

7. Indemnification.

7.1. Indemnification by CueZen.
Subject to Section 7.5 (Conditions of Indemnification), CueZen will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party (a “Claim Against Customer”) to the extent that it alleges that the NudgeStream Services as provided to Customer by CueZen, or Customer’s use of the NudgeStream Services in accordance with the Documentation and the Agreement, infringes or misappropriates such third party’s Intellectual Property Rights (an “IP Claim”), and will indemnify Customer from and against any damages, attorney fees and costs finally awarded against Customer to the extent they are based upon such Claim Against Customer, or for amounts paid by Customer under a settlement approved in writing by CueZen resulting from such Claim Against Customer. Notwithstanding the foregoing, CueZen will have no liability for any infringement or misappropriation claim of any kind if such claim arises from: (a) the combination, operation or use of the NudgeStream Services with equipment, devices, software or data (including without limitation your Confidential Information) not supplied by CueZen if a claim would not have occurred but for such combination, operation or use;(b) acts or omission of the Customer, Authorized Users, representatives, agents, or contractors, including, without limitation, (a) misuse of the NudgeStream Services by Customer; (c) Customer’s or an Authorized User’s use of the NudgeStream Services other than in accordance with the Documentation and the Agreement (d) unauthorized modifications or integrations by Customer; or (d) use of the Platform Services with any System, software, or data not provided or approved by CueZen; (e) portions or components of the NudgeStream Service (i) not supplied by CueZen, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by CueZen, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, or (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.

7.2. Other Remedies.
If CueZen receives information about an infringement or misappropriation claim related to a NudgeStream Service or otherwise becomes aware of a claim that the provision of any of the NudgeStream Services is unlawful in a particular territory, then CueZen may at its sole option and expense: (a) replace or modify the applicable NudgeStream Services to make them non-infringing and of substantially equivalent functionality; (b) procure for you the right to continue using the NudgeStream Services under the terms of the Agreement; or (c) if CueZen is unable to accomplish either (a) or (b) despite using its reasonable efforts, terminate your rights and CueZen’ obligations under the Agreement with respect to such NudgeStream Services and refund to you any Fees prepaid by you to CueZen for NudgeStream Services not yet provided.

7.3. Indemnification by Customer.
Subject to Section 7.5 (Conditions of Indemnification), Customer will defend CueZen against any claim, demand, suit or proceeding made or brought against CueZen by a third party (a “Claim Against CueZen”) (a) arising from or related to Customer’s use of the NudgeStream Services in violation of any applicable laws, the rights of a third party, or the Agreement, (b) arising from or related to Customer Content or its use with the NudgeStream Services, and / or (c) arising from any instructions provided by Customer to CueZen in the creation by CueZen of the Deliverables (each (a)-(d) a “Data Claim”), and will indemnify CueZen from and against any damages, attorney fees and costs finally awarded against CueZen to the extent they are based upon, or for amounts paid by CueZen under a settlement approved by Customer in writing of, a Claim Against CueZen.

7.4. Sole Remedy.
SUBJECT TO SECTION 7.5 (CONDITIONS OF INDEMNIFICATION) BELOW, THE FOREGOING SECTIONS 7.1 (INDEMNIFICATION BY CUEZEN) AND 8.2 (OTHER REMEDIES) STATE THE ENTIRE OBLIGATION OF CUEZEN AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE NUDGESTREAM SERVICES.

7.5. Conditions of Indemnification.
As a condition to an indemnifying party’s (each, an “Indemnitor”) obligations under this Section 7 (Indemnification), a party seeking indemnification (each, an “Indemnitee”) will:
(a) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification (but late notice will relieve Indemnitor of its obligation to indemnify only to the extent that it has been prejudiced by the delay);
(b) grant the Indemnitor sole control of the defense (including selection of counsel) and settlement of the claim;
(c) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim; and
(d) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim in a manner that does not fully discharge the claim against an Indemnitee or that imposes any obligation on, or restricts any right of, an Indemnitee without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.

8. Limitation of Liability.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUEZEN AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B)LOST PROFITS OR REVENUE; (C) LOSS OF GOODWILL; (D) LOSS ARISING FROM INACCURATE OR UNEXPECTED RESULTS ARISING FROM THE USE OF THE NUDGESTREAM SERVICES (E) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (F) FOR ANY MATTER BEYOND CUEZEN’S REASONABLE CONTROL; OR (G) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO CUEZEN FOR THE NUDGESTREAM SERVICES UNDER THIS AGREEMENT WITHIN A PERIOD OF 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT CUEZEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. Term.

9.1. Term of Agreement.
The Agreement will become effective on the Effective Date and will continue in full force and effect until the end of the Subscription Term (“Term”) as specified in the Order. An initial Subscription Term in any Order shall be automatically renewed for additional periods of the same duration (“Renewal Subscription Terms”), unless either party requests termination at least thirty (30) days prior to the end of the then-current Subscription Term.

9.2. Termination for cause.
In addition to any other remedies it may have, either party may also terminate this Agreement immediately, if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure the breach within a period of ninety (90) days for notification of such breach.

9.3. Effect of termination.
In case of termination of the Agreement by the Customer for any reason other than as per Section 9.2, the Customer shall pay in full for the NudgeStream Services to CueZen up to and including the last day of the Subscription Term.

9.4. Return of material.
Upon any termination, Customer will stop using the deployed Software. Upon written request of CueZen or upon termination of this Agreement, Customer shall immediately return all CueZen’s Confidential Information to CueZen together with any copies thereof or destroy all such Confidential Information and provide written certification of the destruction thereof to CueZen and the Customer shall be permitted to retain copies of the CueZen’s Confidential Information solely for being compliant with legal and/or regulatory requirements.

9.5. Right of access.
The Customer shall ensure that CueZen at all times has the access to Customer Environment to enable (a) CueZen to manage the Platform Services; (b) for decommissioning process in case of suspension of the NudgeStream Services for checking, verifying and/ or deleting by itself all Customer Content contained within Customer Environment within three (3) days following the cancellation of Customer’s right to access the Platform Services.

9.6. Survival.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

10. Payment.

10.1. Unless your usage of the NudgeStream Services is being paid for by a third party under contract with CueZen, you will pay all Fees specified in the applicable Order. With respect to direct Orders, except as otherwise specified in such Order(s): (a) all Fees owed to CueZen will be paid in U.S. Dollars; (b) invoiced payments will be due within thirty (30) days of the mailing date of each invoice; (c) Fees for all prepaid committed NudgeStream Services will be invoiced in full upon execution of the applicable Order; and (d) all excess Platform Services usage (and related Support Services, if any) will be invoiced monthly in arrears. To the extent that you enter into an order with a reseller or accept an Order via a Cloud Service Provider’s marketplace, your payment terms will be as you separately arrange with such third party, provided that should you fail to pay Fees when due to a CueZen-authorized reseller or through the nominated Cloud Service Provider, CueZen may seek payment directly from you. All past due payments, except to the extent reasonably disputed, will accrue interest at the highest rate allowed under applicable laws but in no event more than one and one-half percent (1.5%) per month. You will be solely responsible for payment of any applicable sales, value added or use taxes, or similar government fees or taxes. All amounts due under this Agreement or any Order shall be paid in full (which shall include, as relevant, payments to CueZen, a Cloud Service Provider, or CueZen-authorized reseller) without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10.2. CueZen reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Subscription Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that CueZen has billed Customer incorrectly, Customer must contact CueZen no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries shall be directed to CueZen’s customer support department.

11. Compliance with Laws.

11.1. By CueZen Generally.
CueZen will provide the NudgeStream Services in accordance with its obligations under laws and government regulations applicable to CueZen’ provision of the NudgeStream Services to its customers generally, including, without limitation those related to data protection and data privacy, irrespective of Customer’s particular use of the NudgeStream Services.

11.2. By Customer.
Generally. You shall use the NudgeStream Services in compliance with all applicable laws and government regulations, including without limitation those related to data protection and data privacy.

11.3. Export Controls; Trade Sanctions.
The NudgeStream Services may be subject to export controls and trade sanctions administered or enforced by the United States and other jurisdictions. Customer acknowledges and agrees that it will comply with all applicable export controls and trade sanctions laws, regulations and/or any other relevant restrictions in Customer’s use of the NudgeStream Services, including that you will not permit access to or use of any NudgeStream Services in any country where such access or use is subject to a trade embargo or prohibition, and that you will not use NudgeStream Services in support of any controlled technology, industry, or goods or services, or any other restricted use, without having a valid governmental license, authority, or permission to engage in such conduct. Each party further represents that it (and with respect to Customer, each Authorized User and / or Affiliate accessing the NudgeStream Services) is not named on any governmental or quasi-governmental denied party or debarment list relevant to this Agreement, and is not owned directly or indirectly by persons whose aggregated interest in such party is 50% or more and who are named on any such list(s).

11.4. Business Practices; Code of Conduct.
CueZen maintains a set of business practice principles and policies using principles of business ethics and social responsibility, which employees are required to follow. CueZen will abide by these principles and policies in the conduct of all business for Customer and expects your use of any NudgeStream Services to be conducted using the same principle and, with respect to any NudgeStream Services, in accordance with CueZen’ Acceptable Use Policy and the applicable NudgeStream Services terms set forth in the Agreement.

12. General.

12.1. Governing Law and Venue.
The governing law and exclusive venue applicable to any lawsuit or other dispute arising in connection with the Agreement will be determined by the location of Customer’s principal place of business (“Domicile”), as follows:

The parties hereby irrevocably consent to the personal jurisdiction and venue of the courts in the venues shown above. Unless prohibited by governing law or venue, each party irrevocably agrees to waive jury trial. In all cases, the application of law will be without regard to, or application of, conflict of law rules or principles, and the United Nations Convention on Contracts for the International Sale of Goods will not apply.

12.2. Entire Agreement, Construction, Amendment and Execution.
The Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes any prior or contemporaneous agreements regarding the subject matter. Customer acknowledges that, in entering this Agreement, it has not relied on any statement, warranty, representation or other promise of any nature not contained in this Agreement. CueZen may change and update the Platform Services, in which case CueZen may update the Documentation. To the extent there is a conflict or inconsistency among provisions of the following documents, the order of precedence shall be as follows: (a) the applicable Order, (b) the Service Specific Terms, and (c) this SSA. Customer’s Affiliates may receive the NudgeStream Services under this Agreement as Authorized Users. Alternatively, where a Customer Affiliate wishes to execute its own Order subject to the terms of this Agreement then Customer agrees to remain jointly and severally liable for such use. Without limiting the foregoing, no Customer purchase order, onboarding forms, terms of business or other documentation will be deemed to modify an Order or the Agreement unless expressly pre-authorized in writing by CueZen. If any provision of the Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. The headings in the Agreement are solely for convenience and will not be taken into consideration in interpretation of the Agreement. Any translation of the Agreement or an Order that is provided as a courtesy shall not be legally binding and the English language version will always prevail. Each party acknowledges and agrees that it has adequate sophistication, including legal representation, fully to review and understand the Agreement; therefore, in interpretation of the Agreement with respect to any drafting ambiguities that may be identified or alleged, no presumption will be given in favor of the non-drafting party. Except as set out elsewhere in this Agreement, any variation or waiver of this Agreement must be expressly agreed in writing signed by both parties. The Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which, taken together, will constitute one and the same instrument. A party’s electronic signature or transmission of any document by electronic means will be deemed to bind such party as if signed and transmitted in physical form.

12.3. Publicity.
Customer consents to CueZen’s use of Customer’s name and logo for public identification as a customer, along with general descriptions of any non-confidential matters CueZen has handled for Customer and a general statement that Customer has selected CueZen as its data platform, in public-facing materials. In addition, upon request, Customer consents to participating in a case study regarding its experiences with the NudgeStream Services (“Case Study”), and inclusion of the Case Study in public-facing materials.

12.4. Assignment.
No assignment, novation, or transfer of a party’s rights and obligations under the Agreement (“Assignment”) is permitted except with the prior written approval of the other party, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may freely make an Assignment to a successor in interest upon a change of control. If such Assignment, upon change of control, is a) to a direct competitor of the other party or b) would cause the other party to become in violation of applicable laws that is not reasonably addressable, such other party may terminate the Agreement upon written notice.

12.5. Notice.
Any required notice under the Agreement will be deemed given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested on such address and email address as identified under the Orders. You will send any required notice to CueZen’s address stated in the applicable Order, or to the alternative CueZen Affiliate (if any) identified in an applicable Order, and CueZen will send any required notice to you directed to the most recent address you have provided to CueZen for such notice. Save in respect of any notices pertaining to litigation, breach of the Agreement or material breach, the Customer may also send notices to CueZen legal department at [email protected] and CueZen may also send notices to Customer by using the last primary contact email as identified in Orders.

12.6. Force Majeure.
Neither party will be liable for a delay or failure to perform this Agreement, due to and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including without limitation the following force majeure events (“Force Majeure Event(s)”): (a) acts of God, (b) acts of government, including any changes in law or regulations, (c) acts or omissions of third parties, (d) flood, fire, earthquakes, civil unrest, wars, acts of terror, pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within the Impacted Party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the Impacted Party’s reasonable control. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery or business continuity procedures or either party’s payment obligations (unless that is prevented by a Force Majeure Event).