CHEERS TERMS AND CONDITIONS
Version 1.0
These “Cheers” Terms and Conditions apply to the agreement entered into between the Customer (as identified on the Quote) and the Service Provider (as identified on the Quote) (“Master Agreement”) and set forth the terms and conditions under which Service Provider will provide the Customer with access to certain applications as set forth on the Quote (“Application(s)”) and user documentation that Service Provider makes generally available in hard copy or electronic form to its general customer base in conjunction with the subscription of such Applications (“Documentation”). The Applications and the Documentation will hereinafter collectively be referred to as the “Software” or “Software Product(s).”
1. SUBSCRIPTION GRANT AND RIGHT OF USE
1.1 Subscription Grant. Subject to all limitations and restrictions contained herein and the Quote, Service Provider grants Customer a subscription, software as a service (“SaaS”), nonexclusive, and nontransferable right to access and operate the object code form of the Applications (and use its Documentation) as hosted by Service Provider as described in the Quote (“Use”) and solely to perform those functions described in the Documentation. For clarity, an “Application” means Service Provider’s proprietary software that is specifically subscribed to by Customer pursuant to a Quote.
1.2 Use. Customer will have a limited right to Use the Application solely for its internal business purposes, to perform the functions described in the Documentation. Customer shall not allow any website that is not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer’s website that provides direct or indirect access to the Application. Customer shall not allow any website that is not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer’s website that provides direct or indirect access to the Software. Unless otherwise expressly permitted in the Quote and subject to Section 1.5, Customer shall not permit any subsidiaries, affiliated companies, or third parties to access the Software.
1.3 Subscription Type. Unless otherwise specifically stated in the Quote, the type of license granted is a Node Based Subscription. A “Node Based Subscription” means that the Application subscribed to pursuant to the Quote may be Used by a limited number of individual Nodes, which denotes a computer hardware device (of any type, form, or configuration) identified by a unique device ID (the “Node”), the maximum number of which is specified in the Quote. Customer may designate different Nodes at any time without notice to Service Provider as long as the permitted number of Nodes is not exceeded. If the Quote identifies the scope of the subscription to be a “Site Subscription,” a “Site Subscription” means that the Application subscribed to under the Quote may be Used by an unlimited number of individual users solely for the internal Use and benefit of Customer, subject to these SaaS Terms. A “Server Subscription” means that the Application subscribed to under the Quote may be Used on no more than the number of servers indicated in the Quote. The scope of any subscription other than a Node Based Subscription, Site Subscription, or Server Subscription must be expressly designated and defined in detail in a Quote. In no event will any of the subscriptions be construed to mean a concurrent user subscription.
1.4 General Restrictions. Customer shall not, and shall not permit any Affiliate, User, or other third party to: (a) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Software or any part thereof or otherwise attempt to discover any source code or modify the Software in any manner or form unless expressly allowed in writing; (b) obtain unauthorized access to the Software (including without limitation permitting access to or use of the Software via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized Users); (c) use the Software in a manner that is in violation of any third-party rights of privacy or Intellectual Property Rights; (d) issue or participate in any press release or other public statement related to this Agreement or the Software without prior written consent of Service Provider; (e) publish, post, upload, or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files, or other computer programming routines intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information, or property of another. “Customer Data” means all electronic data or information submitted by Customer and stored by Service Provider for Customer.
1.5 Additional Restrictions. In no event will Customer disassemble, decompile, or reverse engineer the Application or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Application from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Application by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Application’s operation and creating the original source code or any approximation thereof by, for example, studying the Application’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Application that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof will be deemed Confidential Information subject to the requirements of these SaaS Terms.
1.6 Authorized Users. Unless otherwise specifically provided in the Quote, “Authorized Users” will only consist of: (i) employees of Customer, and (ii) subject to Section 5 (Confidentiality), third-party contractors of Customer who do not compete with Service Provider (“Permitted Contractors”), each of whom shall have rightful access to Nodes. Permitted Contractors may Use the Software only at Customer’s place of business or in the presence of Customer personnel. Customer is fully liable for the acts and omissions of Permitted Contractors under these SaaS Terms and the applicable Quote. Customer shall not permit any parent, subsidiaries, affiliated entities, or third parties to access the Software.
1.7 Customer License Grant. Customer grants to Service Provider a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display, and distribute Customer data as is reasonable or necessary for Service Provider to perform or provide the Application or any Support Services.
2. PAYMENT
2.1 Fees. Customer shall pay Service Provider the fees indicated on the Quote. Unless otherwise provided in a Quote, all fees are to be paid to Service Provider within thirty (30) days of the date of invoice. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If Customer has set up a direct debit, Service Provider will not debit Customer’s designated account before seven (7) days have elapsed from the date of the invoice. If Customer is delinquent on a payment of fees for fifteen (15) days or more, Service Provider may suspend access to the Application. Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by Customer; additional fees will apply.
2.2 Taxes. The subscription, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levies (including interest and penalties). Customer shall reimburse Service Provider and hold Service Provider harmless for all sales, use, VAT, excise, property, or other taxes or levies which Service Provider is required to collect or remit to applicable tax authorities. This provision does not apply to Service Provider’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Service Provider with a valid tax exemption certificate. The Customer will pay all import duties, levies, or imposts, and all goods and services sales, use, value added, or property taxes of any nature, assessed upon or with respect to the SaaS Terms. If the Customer is required by law to make any deduction or withholding, the sum payable by the Customer will be increased to ensure Service Provider receives a net amount equal to the amount Service Provider would have received in the absence of such deduction or withholding. If Customer is required by law to make any such deduction or withholding, Customer shall promptly effect payment thereof to the applicable tax authorities and provide official tax receipts or other evidence sufficient to enable Service Provider to support a claim (if applicable) for income tax credits in Service Provider’s applicable taxable country.
3. HOSTING
3.1 Service Availability. Service Provider will use reasonable efforts to achieve Service Provider’s availability goals described in the “Service Level Addendum for SaaS” located at https://www.acceldata.io/service-level-agreement (or another designated link if specified in the Quote).
3.2 Support Services. Upon payment of the relevant fees in advance, Customer may receive certain support services for the Application as specified in the Quote and subject to any additional terms stated therein.
3.3 Services Remedy. If Service Provider’s performance of its obligations fails to conform to the warranty set forth in Section 3.2, then Customer’s exclusive remedy and Service Provider’s sole obligation with respect to Support Services will be as follows: (a) following notice of non-conformance, Service Provider will have thirty (30) days in which to correct the non-conformance at no additional charge; and (b) if Service Provider has not corrected the non-conformance within such period, then Service Provider will refund Customer the fees paid to Service Provider for the non-conforming services.
4. OWNERSHIP
4.1 Reservation of Rights. By signing the Quote, Customer irrevocably acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the Software, Service Provider’s Software Products, or Service Provider materials provided to Customer. Service Provider will own all right, title, and interest in such Software and Service Provider materials, subject to any limitations associated with third-party intellectual property rights. Service Provider reserves all rights not specifically granted herein.
4.2 Marks and Publicity. Service Provider’s and Customer’s trademarks, trade names, service marks, and logos (collectively, “Marks”) are the sole and exclusive property of the respective owning party. Service Provider may (i) use Customer’s name and/or logo in product literature, press releases, social media, and other marketing materials; (ii) quote Customer’s statements in one or more press releases with prior consent; (iii) make other use of Customer’s name and/or logo as may be agreed between the parties. Additionally, Service Provider may include Customer’s name and/or logo in its list of customers for general promotional purposes. Service Provider shall comply with Customer’s trademark use guidelines as communicated in writing, and neither party grants the other any title, interest, or other right in any Marks except as provided in this Section.
5. CONFIDENTIALITY
5.1 Definition. “Confidential Information” includes all information marked as such or designated in writing, whether disclosed before or after the Quote Term Start Date, and not publicly known. Service Provider may access or disclose Customer information only to (a) comply with the law, (b) protect Service Provider’s or customers’ rights/property, (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid legal violation.
5.2 Confidentiality of Software. All Confidential Information in tangible form will be marked or designated as “Confidential.” Without such marking, the following is deemed Service Provider Confidential Information: (i) the Software and related materials; (ii) oral/visual information relating to the Application; and (iii) these SaaS Terms.
5.3 Exceptions. This confidentiality obligation does not apply to material or information that (i) is public without breach, (ii) is independently developed without use of the disclosing party’s Confidential Information, (iii) is rightfully obtained from a third party without confidentiality obligations, (iv) was already known by the receiving party without confidentiality obligations, or (v) is aggregate data used by Service Provider (in anonymized form) for product improvement. Neither party will be liable for disclosure if required by law, provided notice is given to the other party to seek a protective order.
5.4 Ownership of Confidential Information. Nothing in these SaaS Terms conveys ownership rights to the receiving party regarding Confidential Information or any associated patent, copyright, trademark, trade secret. Each party shall take all reasonable steps to prevent unauthorized copying, reproduction, or distribution of the Confidential Information.
5.5 Non-Disclosure. Each party agrees to use the same efforts to protect the other’s Confidential Information as it would use to protect its own Confidential Information, but in no event less than reasonable care. Access is restricted to those employees or Subcontractors who require access for assigned duties and who are bound by confidentiality obligations.
5.6 Injunctive Relief. Each party acknowledges that unauthorized disclosure or use of Confidential Information would cause irreparable injury, warranting injunctive relief in addition to all other available remedies.
5.7 Suggestions/Improvements to Software. Any suggestions, solutions, improvements, or corrections provided by Customer regarding the Software will be owned by Service Provider. Customer agrees to assign such rights to Service Provider.
6. WARRANTY
6.1 No Malicious Code. To Service Provider’s knowledge, the Application does not contain any malicious code intended to damage or disrupt. If Customer identifies nonconformance, Customer must notify Service Provider promptly, provide a reasonable opportunity to remedy, and offer reasonable assistance in identifying and remedying the nonconformance.
6.2 Authorized Representative. Each party warrants it has the right to enter these SaaS Terms and the Master Agreement, and that the signatory is an authorized representative.
6.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN SECTION 6, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY. SERVICE PROVIDER MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SERVICE PROVIDER DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR THAT INTERNET CONNECTIVITY ISSUES WILL NOT CAUSE DATA LOSS OR PRIVACY CONCERNS.
6.4 Modifications. Any warranties are void if Customer modifies the Software or allows modifications not authorized by Service Provider.
7. INDEMNIFICATION
7.1 Service Provider Indemnity. Service Provider will defend Customer against claims that the Application (as hosted) infringes a United States patent, copyright, or trade secret, and will pay costs/damages finally awarded if such settlement was approved by Service Provider. Customer may retain counsel at its own expense.
7.2 No Liability. Service Provider is not liable for infringement claims based on (i) modifications by parties other than Service Provider, (ii) combination with third party software/data not provided by Service Provider, or (iii) use outside the permitted scope.
7.3 Remedies. If the Software becomes infringing, Service Provider may: (i) obtain the right for Customer to continue using it, (ii) replace/modify it so it’s no longer infringing, or (iii) terminate access and refund fees paid for the prior twelve (12) months. THIS SECTION 7 STATES SERVICE PROVIDER’S ENTIRE LIABILITY FOR INFRINGEMENT.
7.4 Customer Indemnity. Customer will defend, indemnify, and hold Service Provider harmless from any claims arising from: (i) Customer’s breach of Section 10; (ii) gross negligence/willful misconduct; (iii) illegal or unauthorized use of the Application; (iv) infringement claims regarding data Customer inputs (including Customer Work Product); and (v) violation of third party service provider terms or laws.
7.5 Indemnification Procedures. Indemnification is contingent on: (i) prompt written notice, (ii) sole control of defense/settlement by indemnifying party, and (iii) cooperation from the indemnified party.
8. LIMITATION OF LIABILITY
8.1 Liability Cap. EXCEPT FOR INDEMNIFICATION CLAIMS, NEITHER PARTY’S TOTAL LIABILITY EXCEEDS THE FEES PAID BY CUSTOMER OVER THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
8.2 Disclaimer of Damages. NEITHER PARTY WILL BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUSINESS INTERRUPTION OR LOSS OF PROFITS, EVEN IF ADVISED OF THE POSSIBILITY AND NOTWITHSTANDING FAILURE OF ESSENTIAL PURPOSE.
9. TERM AND TERMINATION
9.1 Subscription Term. The term continues until the termination of the last Quote. Unless otherwise stated, it auto-renews for the same term at Service Provider’s current rates unless Customer opts out in writing at least sixty (60) days prior to expiration.
9.2 Termination by Service Provider. Service Provider may terminate (i) if Customer fails to pay within fifteen (15) days of due date, (ii) on thirty (30) days written notice if Customer fails to cure material breach, or (iii) if Customer files for bankruptcy.
9.3 Termination by Customer. Customer may terminate on ninety (90) days notice if Service Provider fails to cure material breach within that period.
9.4 Effect of Termination. Customer will cease accessing the Software and not circumvent any security measures.
9.5 Other Remedies. Termination does not relieve Customer of payment obligations or prevent pursuing other available remedies.
10. CUSTOMER OBLIGATIONS
10.1 No Individual Agreement Requirement. Customer agrees no Service Provider employee must individually sign any agreement to provide services.
10.2 Compliance with Laws. Customer agrees to comply with all laws, including those related to privacy, electronic communications, and anti-spam. Customer shall ensure its website contains a privacy policy covering data collection.
10.3 Authorized Users Compliance. Customer must inform Authorized Users of their obligations and is liable for any violation by them.
10.4 Credentials. Customer must keep login credentials confidential and instruct Authorized Users to observe copyright regulations.
10.5 Virus Precautions. Customer must ensure data is virus-free before uploading. Customer is responsible for entering and maintaining its data.
10.6 Suspension. Service Provider may suspend access if it reasonably believes the Application is used in violation of these terms, if legally required, or to prevent harm.
10.7 Audit Rights. During the term and for two (2) years after, Customer must maintain records of its usage. Service Provider may audit to verify compliance. If material excess usage is found, Customer will pay for it and reimburse audit costs.
10.8 License to Product Feedback. Customer grants Service Provider a perpetual, royalty-free license to use product-related feedback and anonymized usage analytics.
11. MISCELLANEOUS
11.1 Assignment. Customer may not assign or transfer these SaaS Terms without Service Provider’s written consent. Service Provider may assign or subcontract without Customer’s consent.
11.2 Foreign Nationals. Service Provider may employ foreign nationals to fulfill obligations.
11.3 Affiliates and Third Parties. Service Provider Affiliates may perform tasks for Service Provider. Customer agrees that only Service Provider and Customer are parties to the Master Agreement. Service Provider remains responsible for compliance.
11.4 Technical Data (ITAR). Customer will not provide Service Provider any technical data under ITAR. Customer will ensure any data is scrubbed of ITAR content.
11.5 Compliance with Laws. Both parties will comply with all applicable laws.
11.6 Survival. Sections 2, 4, 5, 6.4, 8, 9.3, 9.4, 11 survive termination/expiration.
11.7 Notices. Must be in writing, deemed effective on delivery, addressed as specified in the Quote.
11.8 Force Majeure. Neither party liable for delays or failures due to causes beyond its control.
11.9 Restricted Rights. Government use of the Software is subject to Restricted Rights. Customer will ensure compliance.
11.10 Entire Agreement. These SaaS Terms and referenced documents constitute the entire agreement and supersede prior discussions.
11.11 Modifications. Must be in writing and signed by both parties.
11.12 Non-solicitation. During the term and for two (2) years after, Customer will not solicit or hire Service Provider employees. Violation triggers liquidated damages of 200% of the solicited person’s gross annual compensation.
11.13 Headings. Headings are reference only, with no substantive effect.
11.14 No Waiver. No failure or delay in enforcing any right constitutes a waiver.
11.15 Severability and Reformation. Unenforceable terms will be reformed minimally as needed to preserve enforceability.
11.16 Independent Contractor. Service Provider is an independent contractor.
11.17 Interpretation. Both parties are sophisticated; no term will be interpreted against Service Provider as “drafter.”
11.18 Governing Law; Venue. Governed by California law. Courts in Santa Clara County, California have exclusive jurisdiction. Mediation held in San Francisco, California.
11.19 Dispute Resolution.
• Negotiations. The aggrieved party must notify the other in writing, and senior management will meet within five (5) business days to attempt resolution.
• Mediation. Any unresolved dispute is submitted to mediation under WIPO Mediation Rules (in English).
• Opportunity to Cure. Service Provider must have 30 days to cure an alleged breach.
• Injunctive Relief. Parties can seek injunctive/interim relief without prejudice to other rights.
