Cadmium Service Terms and Conditions

These Cadmium Service Terms and Conditions (these “Terms”) located at https://www.gocadmium.com/terms-and-conditions together with any applicable Order Form or SOW, all as periodically amended, restated, or supplemented in accordance with these Terms, are collectively the “Agreement”. The Agreement establishes the terms and conditions under which Cadmium will provide Services to Customer (defined in Section 1) and under which Customer will use and access the Services. The Agreement constitutes a legally binding agreement between Cadmium and the Customer.

BY SIGNING AN ORDER FORM OR SOW THAT REFERENCES THESE TERMS, BY USING ANY OF THE SERVICES, OR BY CLICKING A BOX INDICATING ACCEPTANCE OF THESE TERMS, CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THE AGREEMENT. IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THAT INDIVIDUAL REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS. IF THE INDIVIDUAL ACCEPTING THESE TERMS DOES NOT HAVE THAT BINDING AUTHORITY OR DOES NOT AGREE WITH THESE TERMS, THAT INDIVIDUAL MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.

These Terms were last updated on, June 20, 2023. The Agreement is effective between Customer and Cadmium as of the date Customer accepts the Agreement in the manner stated above (the “Effective Date”).

Terms and Conditions

1. Definitions.

In the Agreement:

 

“Affiliate” means with respect to a Party, any Person that controls, is controlled by, or is under common control with the Party.

 

“Aggregate Data” means data of multiple Cadmium customers (including Customer Data) that are de- identified and anonymized.

 

“Authorized Customer End-User” means an End-User that meets all of the following qualifications: (i) is Customer’s Representative or Customer’s client or customer; (ii) is authorized, in accordance with the Agreement, to use a SaaS Service on Customer’s behalf to perform tasks not otherwise available to End-Users; and (iii) has been supplied a password by Customer or by the Customer’s identity management system(s).

 

“Cadmium Account” means an End-User account consisting of a username, email address, password, and optional phone number, as well as other internal metadata, necessary to authorize and identify an End-User, so that the End-User can use or access some or all of the SaaS Services.

 

“Cadmium Identity Management System” means a multi-tenant database of Cadmium Accounts included in the SaaS Services and used to authenticate a Person’s identity as an authorized End-User.

 

 

“Customer” means (i) in the case of an individual accepting these Terms on his or her own behalf, that individual or (ii) in the case of an individual accepting these Terms on behalf of a company or other legal entity, the company or other legal entity for which the individual is accepting these Terms, and Affiliates of that company or entity (while they remain Affiliates) that have entered into any Order Forms or SOWs.

 

“Customer Content” means all data, graphics, text, information, or material that Customer provides to Cadmium in connection with the Customer’s use of Services, including content uploaded through the SaaS Services or provided or made available to Cadmium to upload to or use in connection with the Customer’s use of the SaaS Services and any modifications to that content that Customer or Cadmium makes.

 

“Customer Data” means (i) all information (other than Aggregate Data or Excluded Data) processed or stored through the SaaS Services by Customer or on Customer’s behalf or (ii) output (such as course completion records) that the SaaS Service generates for the Customer’s or an Authorized Customer End-User’s use. Customer Data does not include payment records, credit cards or other information Customer uses to pay Cadmium, or other information and records related to Customer’s account, including identifying information related to Customer staff involved in payment or other management of Customer’s account.

 

“Deliverables” means any software or other deliverable created through Professional Services.

 

“Documentation” means Cadmium’s user guides, training manuals, instructions, usage information, and other similar documentation (as periodically updated or revised by Cadmium) that Cadmium provides to Customer.

 

“End-User” means a natural person (either as an administrative or non-administrative user) who, through an authorized Cadmium Account furnished through the SaaS Services, uses or has access to all or some of the SaaS Services.

 

“Excluded Data” means (i) Social Security numbers, other tax identification numbers, military identification numbers, student identification numbers, passport numbers, driver’s license numbers, other government identification numbers, financial account data, payment card numbers, biometric information, health or medical information, insurance information, educational information, (ii) personal health information under HIPAA, or (iii) any information that if compromised could permit a person to assume the identity of the data subject.

 

“Feedback” means any suggestion or idea for improving or otherwise modifying any of Cadmium’s products or services.

 

“Force Majeure Event” means any event or circumstance, whether foreseen or unforeseen, that meets all of the following conditions: (i) prevents a Party, in whole or in part, from performing any of its obligations under the Agreement; (ii) is beyond the reasonable control of the affected Party; and (iii) is not the fault of the affected Party. To further, but not limit, the definition of Force Majeure Event, each of the following events or circumstances is considered a Force Majeure Event: (A) war, flood, lightning, drought, earthquake, fire, volcanic eruption, landslide, hurricane, cyclone, typhoon, tornado, explosion, civil disturbance, act of God or the public enemy, terrorist act, military action, epidemic, pandemic, virus, famine, plague, actions of a court of public authority third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks or cyber attacks as well as (B) strike, work-to-rule action, go-slow or similar labor difficulty, in each case on an industry-wide, region-wide, or nation-wide basis. But the definition of Force Majeure Event does not include changes in market conditions or insufficiency of funds.

 

“Loss” means any liability, loss, settlement payment, interest, award, judgment, damages, fines, fees, penalties, filing fees, and court costs, witness fees, reasonable attorneys’ and other professionals’ fees, other reasonable investigation and defense costs, and any other fees, costs, expenses, and charges.

 

“Malicious Code” means any computer code, file, script, agent, or program designed to do harm, including viruses, worms, time bombs, and Trojan horses.

 

“Order Form” means Cadmium’s sales order form or other document (as well as each exhibit, schedule, and annex attached to each such order form or other document) in each case, signed by an authorized signatory of Cadmium and Customer or electronically accepted by Customer that references the Terms and that details any one or more SaaS Services that Cadmium is to provide, the fees and expenses associated with the SaaS Services, and any other transaction-specific terms and conditions.

 

“Party” means each of Cadmium and Customer.

 

“Person” means any natural person or any business or government entity.

 

"Privacy/Security Law” means privacy and security laws governing Cadmium’s handling of Customer Data (if any). For the avoidance of doubt, Privacy/Security Laws do not include laws applicable to Customer or its data to the extent not described in the preceding sentence.

“Professional Services” means consulting services that Cadmium provides to Customer under a SOW.

 

“Representative” means a Party’s director, officer, employee, consultant, advisor, representative, or agent.

 

“SaaS Service” means any one or more of Cadmium’s hosted software-as –a-service solutions that consist of technology hosted on Cadmium’s (or its third party providers’) computers and accessed remotely, via the Internet.

 

“Services” means the SaaS Services, Support Services, and Professional Services specified in one or more Order Forms and SOW(s), as applicable.

 

“Statement of Work” or “SOW” means Cadmium’s statement of work form or other similar document (as well as each exhibit, schedule, and annex attached to each such statement of work or other similar document), in each case, signed by an authorized signatory of Cadmium and Customer or electronically accepted by Customer that references the Terms and that details the Professional Services that Cadmium is to provide, the fees and expenses associated with the Professional Services, and any other transaction-specific terms and conditions.

 

“Subscription Term” means the subscription period specified in an Order Form, during which Customer and its Authorized Customer End-Users may use the SaaS Service specified in that Order Form, subject to the terms of the Agreement.

“Support Services” means the maintenance and support services that Cadmium provides to Customer during the Subscription Term for a specified SaaS Service, if and to the extent set forth in the Order Form pertaining to that SaaS Service.

 

2. Provision and Use of the Services.

2.1. Access to SaaS Service. During the applicable Subscription Term for a SaaS Service, Cadmium grants to Customer and to each Authorized Customer End-User the right to access and use the subscribed-for SaaS Service in accordance with these Terms and the Order Form applicable to that SaaS Service.

2.2. Professional Services. Customer may request, and Cadmium may agree to provide, Professional Services to Customer under any one or more SOWs or Statements of Work.

 

2.3. Changes to SaaS Service. Customer acknowledges that each SaaS Service is an on-line, subscription- based service and that, to provide improved customer experience, Cadmium may make changes to the SaaS Services, and Cadmium will update the applicable Documentation accordingly.

 

3.3. Taxes. Except as the applicable Order Form or SOW expressly provides otherwise, Cadmium’s fees do not include any taxes. Customer is responsible for paying all taxes associated with its purchases under the Agreement. If Cadmium has to pay or collect any taxes that are Customer’s responsibility under the Agreement, Cadmium will invoice Customer and Customer will promptly pay that amount. Cadmium is responsible only for taxes assessable against it based on its income, property, and employees.

4. Term & Termination.

4.1. Term of Agreement. The term of the Agreement begins on the Effective Date and continues until all Subscription Terms, Order Forms, and SOWs under the Agreement have expired or have been terminated.

 

4.2. Subscription Term. The initial Subscription Term for a SaaS Service will be specified in the Order Form applicable to that SaaS Service. Except as the Order Form for a given SaaS Service expressly provides otherwise, each Subscription Term for that SaaS Service will automatically renew for additional one-year terms. But a Party may opt not to renew a Subscription Term by giving the other Party a non-renewal notice in accordance with Section 12.1 at least 90 days before the relevant Subscription Term expires.

 

4.3. Termination. Either Party may terminate the Agreement (or any affected Service) upon the other Party’s material breach that remains uncured for 30 days following written notice of the breach, or effective immediately if the breach is not subject to cure. Without limiting Cadmium’s other rights and remedies, Cadmium may suspend or terminate a Customer or Authorized Customer End-User’s access to the SaaS Services at any time, without advanced notice, if Cadmium reasonably concludes that Customer or an Authorized Customer End-User has conducted (or is conducting) itself in a way that is not consistent with Section 5.1 or Section 5.2 or in a way that subjects Cadmium to potential liability.

 

4.4. Service Suspension. If any charge that Customer owes under the Agreement is more than 30 days overdue, without limiting its other rights and remedies, Cadmium may suspend Services until those overdue amounts are fully paid. Customer remains responsible for all fees and charges for suspended Services and for other Services to which Customer continues to have access.

 

(A) General Effects. Upon any termination of the Agreement:

(i) Except as set forth in Section 4.5(C)(Survival), all of Customer’s and its Authorized Customer End-User’s rights under the Agreement (including the right to use and access any SaaS Service) immediately terminate;

(ii) Customer remains liable for all fees, charges, expenses, and any other obligations Customer has incurred during the term of the Agreement; and

(iii) Cadmium may destroy or overwrite Customer Data, Customer Content, and Customer’s Confidential Information as provided in Section 4.5

(B) Deletion of Data.

(i) At Customer’s Request. Upon Customer’s written request (email acceptable) at any time during the term of the Agreement or during the 60 days after termination of the Agreement, Cadmium shall promptly destroy or overwrite all Customer Data, Customer Content, and Customer Confidential Information using the best erasure methods commercially feasible. If Customer requests Cadmium permanently destroy or overwrite any Customer Data, Customer Content, or Customer Confidential Information, Customer irrevocably releases Cadmium from all claims or liability relating to any such destroyed or overwritten data or information.

(ii) Upon Termination. If Customer does not request deletion of its Customer Data, Customer Content, or Confidential Information, then after termination or expiration of the Agreement, Cadmium will destroy or overwrite that data and information using the best erasure methods commercially feasible after the data or information is no longer reasonably necessary to fulfill obligations under the Agreement or for regulatory, legal, or audit compliance.

(C) Survival. Section 1 (Definitions), Section 3 (Fees and Payment), Section 4 (Term & Termination), Section 5 (Customer Responsibilities & Restrictions), Section 6 (Intellectual Property), Section 7 (Confidentiality), Section 8 (Customer Data), Section 9 (Warranties), Section 10 (Liability Limitations), Section 11 (Indemnification), and Section 12 (Miscellaneous) survive any expiration or termination of the Agreement.

5. Customer Restrictions & Responsibilities.

5.1. Use Restrictions. Customer shall not (and shall not permit or assist any third party to): (a) use any of the SaaS Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit any of the SaaS Services, except Authorized Customer End-Users as specifically authorized by this Agreement or except to the extent Customer is authorized in a writing signed by Cadmium, to resell any of the SaaS Services; (b) provide SaaS Service passwords or other log-in information to any third party, except Customer’s Authorized Customer End-Users as specifically authorized by this Agreement; (c) share non-public SaaS Services features or content with any third party; (d) access any of the SaaS Services to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of any of the SaaS Services, or to copy any ideas, features, functions or graphics of any of the SaaS Services or, except to the extent Customer is authorized in a writing signed by Cadmium, to resell any of the SaaS Services; (e) frame or mirror any part of any SaaS Service, other than framing on Customer's own intranets or otherwise for its own internal business purposes; (f) engage in web scraping or data scraping on or related to any of the SaaS Services, including collection of information through any software that simulates human activity or any bot or web crawler; (g) access or use any SaaS Services to send or store infringing, obscene, threatening, or otherwise unlawful material (including material that violates any third-party privacy rights or any applicable laws); (h) access or use any SaaS Services to send or store Malicious Code; or (i) violate or attempt to violate the security of the SaaS Services, including accessing data or materials that Customer is not authorized to access, logging into a server or account that Customer is not authorized to access, attempting to probe, scan, or test the vulnerability of a system or network through which the SaaS Services are provided or to breach security or authentication measures that Cadmium maintains in connection with the SaaS Services.

 

5.2. Security Obligations. Customer shall install and maintain commercially reasonable measures designed to prevent the introduction of Malicious Code into Customer’s information technology systems. Customer shall take commercially reasonable steps to prevent unauthorized access to any of the SaaS Services, including by protecting its passwords and other login information. Customer shall notify Cadmium promptly of any known or suspected unauthorized use of any SaaS Services or breach of its security and shall use commercially reasonable efforts to stop any such breach. Customer is responsible for and liable for all access and use of each SaaS Service by Customer and each Authorized Customer End-User. Customer is responsible for maintaining the security of all its issued user credentials and otherwise taking reasonable action to secure and protect Customer accounts and Customer Data. Customer shall promptly notify Cadmium if Customer becomes aware of any unauthorized use of the Customer’s account or of an Authorized Customer End-User’s account. Cadmium has no liability for any Loss arising from Customer’s failure to comply with this Section.

 

5.3. Compliance with Laws. In its use of any of the SaaS Services, Customer shall comply with all applicable laws.

 

(A) Customer understands and acknowledges that an Authorized Customer End-User may be an End-User with a Cadmium Account authorizing the End-User to access and use some or all of the SaaS Services other than through the Services that Cadmium provides the Customer under the Agreement. As a result, Cadmium may have and maintain a relationship with an End-User independent of Cadmium’s relationship with the Customer and may, subject to compliance with applicable privacy laws, communicate directly with End-Users for purposes unrelated to Customer’s business with Cadmium.

(B) Customer understands and acknowledges that when an End-User creates a Cadmium Account, the End-User may use a personal email address or other email address, including an email address with a Customer-owned domain. Customer understands and acknowledges that Cadmium does not control what email address may be associated with an End-User’s Cadmium Account. The Customer’s ownership or other rights in an email domain associated with an End-User’s Cadmium Account does not grant Customer any interests in and to an End-User’s Cadmium Account. Accordingly, as between the Customer and an End-User, each End-User retains all its interests in that End-User’s Cadmium Account.

(C) Customer is not entitled to change any aspect of an End-User’s Cadmium Account in the Cadmium Identity Management System. Customer is not entitled to view, access, download, modify, or delete any data arising from or relating to an End-User’s use of or access to the SaaS Services, other than an End-User’s use of and access to the Services that Cadmium provides the Customer under the Agreement.

(D) Despite anything contained in this Section to the contrary, Customer, through the Customer system it uses to authenticate its Authorized Customer End-Users (but not through any of the SaaS Services) is entitled to terminate an End-User’s status as an Authorized Customer End- User or otherwise modify an End-User’s access and use of the Services that Cadmium provides the Customer under the Agreement.

 

6. Intellectual Property.

6.1. IP Rights in the SaaS Services. Cadmium (and, where applicable, Cadmium’s licensors) retains and owns all right, title, and interest in and to (i) the SaaS Services and all technology and intellectual property that Cadmium uses to provide the SaaS Services, including computer software programs, websites, networks, and equipment and (ii) all enhancements or improvements to, or derivative works of, any item described in the preceding clause (i). Nothing in the Agreement transfers or conveys to Customer any intellectual property license or rights in anything described in the preceding sentence.

 

6.2. IP Rights in Deliverables. Cadmium will retain and own all right, title, and interest in and to any Deliverables. To the extent that ownership of any Deliverables does not automatically vest in Cadmium, Customer hereby irrevocably assigns and will assign to Cadmium all right, title, and interest in and to the Deliverables that Customer may have now or in the future. Upon full payment of all fees and expenses owing to Cadmium under the applicable SOW, Cadmium hereby grants to Customer a non- exclusive, worldwide, non-transferable, non-sublicensable, royalty-free license to access and use the Deliverables provided to Customer for the purposes specified in the SOW pertaining to those Deliverables or in connection with Customer’s use of the SaaS Services to which the Deliverables relate.

 

6.3. Feedback. Cadmium has not agreed to and does not agree to treat as confidential any Feedback that Customer, any End-User, or any other Person provides to Cadmium. Nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Cadmium’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer, any End User, or other person. Customer hereby grants Cadmium a perpetual, irrevocable right and license to exploit Feedback in any and every way. Feedback will not constitute Customer’s trade secret or Confidential Information.

 

6.4. License Grant in Customer Data & Customer Content. Customer hereby grants to Cadmium a non- exclusive, worldwide, royalty-free license to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data and Customer Content solely to the extent necessary to provide the Services to Customer and its Authorized Customer End-Users during the term of the Agreement and to otherwise perform Cadmium’s obligations under the Agreement.

7. Confidentiality.

7.1. Obligations. Except as expressly authorized under the Agreement, the Recipient shall hold in confidence and not disclose any of the Discloser’s Confidential Information to third parties and shall not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under the Agreement. The Recipient shall take precautions to prevent disclosure or use of the Discloser’s Confidential Information other than as authorized by the Agreement. Those precautions must equal those taken by the Recipient to protect its own Confidential Information of like kind or equal those that a reasonable person in the Recipient’s position would take, whichever is greater. Each Party retains all ownership rights in and to its Confidential Information. This Section does not apply to any information that the Recipient can establish: (i) is or becomes generally known to the public without the Recipient’s breach of any obligation owed to the Discloser; (ii) the Recipient has rightfully received from a third party without confidentiality restrictions; (iii) is known to the Recipient without any restriction as to use or disclosure before first receipt by the Recipient from the Discloser; or (iv) has been independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.

 

7.2. Permitted Disclosures. The Recipient may disclose the Discloser’s Confidential Information to the Recipient’s Representatives having a legitimate need to know, on condition that such Representatives are bound to confidentiality obligations no less protective of the Discloser than those in this Section and that the Recipient remains responsible for compliance by any such Representatives with the terms of this Section. The Recipient may also disclose the Discloser’s Confidential Information to the extent legally compelled to do so, on condition that, to the extent legally permissible, the Recipient gives the Discloser prior notice of the compelled disclosure and reasonable assistance, at the Discloser's cost, if the Discloser wishes to contest the disclosure. If the Recipient is legally compelled to disclose the Discloser’s Confidential Information as part of a civil proceeding to which the Discloser is a party, and the Discloser is not contesting the disclosure, the Discloser shall reimburse the Recipient for its reasonable cost of compiling and providing secure access to that Confidential Information.

 

7.3. Right to Enjoin Disclosures. A Recipient’s or its Representatives’ unauthorized use or disclosure of the Discloser’s Confidential Information will result in irreparable harm to the Discloser. The Discloser may therefore seek a temporary restraining order or other injunctive relief to protect its Confidential Information and, in doing so, need not post bond or other security or prove actual damages. The Recipient shall not raise the defense of an adequate remedy at law. This provision does not alter any other remedies available to any Party.

8. Customer Data.

8.1. Use of Customer Data. Unless an SOW or Order Form pertaining to a particular SaaS Service expressly provides otherwise, Cadmium shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Services or give Customer Data access to any third party, except Cadmium’s subcontractors that have a need for such access to facilitate the Services and are subject to a reasonable written agreement governing the use and security of Customer Data. Further, Cadmium shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data and shall comply in all material respects with all Privacy/Security Laws that are applicable both specifically to Cadmium and generally to data processors in the jurisdictions in which Cadmium does business and operates physical facilities.

 

8.2. Aggregate Data. Despite anything contained in the Agreement to the contrary, Cadmium may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.

 

8.3. Required Disclosure. Despite anything contained in the Agreement to the contrary, Cadmium may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Cadmium shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

 

8.4. Data Incidents. If Cadmium becomes aware that any Customer Data stored in the SaaS Services has been disclosed or revealed to, or accessed by, any unauthorized person, whether inadvertently or intentionally, then no later than 72 hours thereafter, Cadmium shall provide Customer with notice of any such incident, and for any Customer Data in Cadmium’s possession or control, Cadmium shall work with Customer to investigate and take all commercially reasonable steps to identify, prevent, and mitigate the effects of any such data incident. Further, Cadmium shall promptly work with the Customer to create a reasonably detailed description of the incident, the data accessed, the identity of affected individuals, and such other information as Customer may reasonably request concerning the incident. Despite anything to the contrary contained in the Agreement, Cadmium will have no liability under the Agreement or otherwise for (i) any unauthorized disclosure of or access to Customer Data or (ii) any security breach, in each case, arising from or related to any act or omission of Customer (including any breach of this Agreement), any End-User, or any Customer Representative.

 

8.5. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure. Accordingly, in accessing and using the SaaS Services, Customer assumes such risks. Cadmium offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

 

8.6. Data Collection and Accuracy. Customer has exclusive control and responsibility for determining what Customer Data is submitted to the SaaS Service and for obtaining all necessary consents and permissions for submission of Customer Data and processing instructions to Cadmium. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Cadmium has no responsibility or liability for the accuracy of data uploaded to the SaaS Services by Customer or any End-User, including Customer Data and any other data uploaded by any End-User.

 

8.7. Excluded Data. Customer warrants that (a) it has not and will not transmit Excluded Data, or permit transmission of Excluded Data, to Cadmium or its computers or other media and, (b) to the best of its knowledge, Customer Data does not and will not include Excluded Data. Customer shall inform Cadmium of any Excluded Data within Customer Data promptly after discovery (without limiting Cadmium’s rights or remedies). Customer recognizes and agrees that: (i) the provisions of this Agreement related to Customer Data do not apply to Excluded Data; (ii) Cadmium has no liability for any failure to protect Excluded Data; and (iii) Cadmium’s systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. Cadmium is not responsible or liable for any data exposure or disclosure or related Loss to the extent that it involves Excluded Data.

9. Warranties.

9.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it has the authority to enter into and perform its obligations under the Agreement; (ii) the Agreement is legally binding and enforceable against it; (iii) the Agreement does not conflict with any other agreement entered into by it; (iv) it does not conduct business for any unlawful purpose; and (v) in entering into the Agreement, it has not seen, heard, or relied upon any promise, statement, representation, warranty, or agreement (whether written or oral, express or implied) of the other Party or any other Person, except for the representations, warranties, statements, and agreements expressly contained in the Agreement.

 

9.2. Warranty Disclaimers. EXCEPT AS AN SOW FOR PROFESSIONAL SERVICES MAY EXPRESSLY PROVIDE OTHERWISE, CUSTOMER ACCEPTS THE SERVICES “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE: (A) EXCEPT AS SET FORTH IN SECTION 11.1, CADMIUM HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR ANY END-USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (B) CADMIUM DOES NOT REPRESENT OR WARRANT THAT THE SAAS SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (C) CADMIUM DOES NOT REPRESENT OR WARRANT THAT THE SAAS SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

10. Liability Limitations.

10.1. Damages Exclusions. EACH PARTY AND ITS AFFILIATES WILL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE AND REGARDLESS OF THE LIABILITY THEORY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE, AND EVEN IF A PARTY’S OR ITS AFFILIATES’ REMEDIES OTHERWISE FAILS OF THEIR ESSENTIAL PURPOSE.

 

10.2. Liability Cap. Subject to Section 10.3 (Liability Cap Exclusions):

(A) THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY, TOGETHER WITH THE PARTY’S AFFILIATES, ARISING FROM OR RELATED TO A SAAS SERVICE MUST NOT EXCEED THE LESSER OF ONE-YEAR’S WORTH OF SUBSCRIPTION FEES UNDER THE ORDER FORM PERTAINING TO THE SAAS SERVICE IN QUESTION OR THE TOTAL AMOUNTS CUSTOMER PAID CADMIUM FOR THE AFFECTED SAAS SERVICE DURING THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE CLAIM OR CAUSE OF ACTION AROSE, WHICHEVER IS LESS.

(B) THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY, TOGETHER WITH THE PARTY’S AFFILIATES, ARISING FROM OR RELATING TO A PROFESSIONAL SERVICE MUST NOT EXCEED THE TOTAL AMOUNTS CUSTOMER PAID CADMIUM FOR THE AFFECTED PROFESSIONAL SERVICE DURING THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE CLAIM OR CAUSE OF ACTION AROSE.

 

10.3. Liability Cap Exclusions. Section 10.2 (Liability Cap) does not apply to: (a) any payment obligations that Customer or its Affiliates owe Cadmium or its Affiliates under Section 3 (Fees and Payments); or (b) a Party’s infringement or misappropriation of the other Party’s intellectual property rights.

 

10.4. Essential Purpose. Customer acknowledges and agrees that Cadmium has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and damages in this Section 10 and disclaimers of warranties in Section 9 and that those terms form an essential basis of the bargain between the Parties. If applicable law limits the application of the provisions of Section 10, Cadmium’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Cadmium’s liability limits and other rights set forth in Section 10 apply likewise to Cadmium’s Affiliates, licensors, suppliers, advertisers, agents, sponsors, and other Representatives.

11. Indemnification.

11.1. By Cadmium.

(A) Cadmium shall indemnify and defend Customer, its Affiliates, and their respective employees, officers, directors (or similar governing authority), and owners from and against any Losses incurred because of a third-party claim or action that alleges the use of a SaaS Service in accordance with the Agreement infringes a copyright, registered trademark, issued patent, or other intellectual property right of such third party (an “Infringement”). If a SaaS Service is subject to a claim of Infringement and as a result, Customer’s use of the affected SaaS Service is enjoined, then Cadmium shall, at no cost to Customer, procure for Customer the right to continue using the affected SaaS Service or replace it with a non-infringing or modified SaaS Service of materially equivalent functionality. But if, in Cadmium’s reasonable opinion, none of the options in the preceding sentence are available on terms that are commercially reasonable for Cadmium, then Cadmium may terminate Customer’s right to access and use the affected SaaS Service, in which case Cadmium shall refund Customer the pro rata amount of any prepaid subscription fees applicable to the unused part of the Subscription Term for the terminated SaaS Service (excluding any activation or other one- time fees). If Customer was unable to use the terminated SaaS Service because of the Infringement, the unused part of the Subscription Term will be measured from the last date on which Customer was able to use the Service.

(B) Cadmium has no obligation and assumes no liability under this Section or otherwise to the extent the Infringement is caused or alleged to be caused by: (i) the SaaS Service’s being modified by any Person other than Cadmium; (ii) the SaaS Service’s being combined, operated, or used with any Customer Data or any Customer or third party products, services, hardware, data, content, or business processes not provided by or on behalf of Cadmium where there would be no Infringement but for that combination; (iii) any action arising because of Customer Data or any third-party deliverables or components contained within the SaaS Service; or (iv) any use of the SaaS Service provided on a no-charge or evaluation basis.

 

11.2. By Customer. Customer shall indemnify and defend Cadmium, its Affiliates, and their respective employees, officers, directors (or similar governing authority), and owners from and against any Losses incurred because of a third-party claim or action that alleges Customer’s use of a SaaS Service in breach of the Agreement infringes the intellectual property rights of a third party.

 

11.3. Indemnity Process. Each Party's indemnification obligations under this Section are conditioned on the Party seeking indemnity: (i) promptly giving to the indemnifying Party written notice of the claim, including a reasonably detailed description of the claim, the claim’s nature and basis, the damages (if known) claimed by the third party, and all legal pleadings for the claim; (ii) granting the indemnifying Party sole control of the defense of the claim; and (iii) providing to the indemnifying Party all available information and reasonable assistance in connection with the claim, at the indemnifying Party’s request and expense. The indemnified Party, at the indemnified Party’s sole expense, may participate in the defense of the claim. But no indemnifying Party may admit liability for or consent to any judgment or concede or settle or compromise any claim without the indemnified Party’s prior written consent, which the indemnified Party shall not unreasonably withhold, delay, or condition.

 

11.4. Exclusive Remedy. Section 11 (Indemnification) states each Party’s sole liability and exclusive remedy with respect to Infringement and any other type of third-party claim or action described in this Section, but does not apply to any direct claims between the Parties.

 

12. Miscellaneous.

12.1. Notices. The mailing address and email address to which Customer shall direct notices to Cadmium under the Agreement are: legal@gocadmium.com and

19 Newport Dr. Suite #101
Forest Hill, MD 21050

 The mailing and email address to which Cadmium shall direct notices to Customer under the Agreement are those that Customer periodically designates in writing (email acceptable) in accordance with this Section 12.1, except that Customer’s initial mailing and email address will be those specified in Customer’s initial Order Form or SOW. All notices to a Party shall be in writing, with a copy sent by email and sent to the Party’s addresses specified above and shall be deemed to have been duly given after both (1) having been sent by email and (2) when received, if personally delivered; 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. Either Party may periodically change its mail or email address for notices under this Section 12.1 by giving the other Party at least 30 days’ prior written notice of the change.