Last Updated: July 2020 (V2020.1)
CONTENTSQUARE FREE SOLUTION TERMS OF SERVICE
THIS DOCUMENT, THE CONTENTSQUARE FREE SOLUTION TERMS OF SERVICE (“AGREEMENT”), OUTLINES THE TERMS REGARDING YOUR USE OF CS SOLUTION. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU (“YOU” OR “CUSTOMER”) AND CONTENT SQUARE, INC. A DELAWARE CORPORATION, ON BEHALF OF ITSELF, CONTENT SQUARE SAS. AND "CONTENTSQUARE AFFILIATES" (WHICH ARE CONTENT SQUARE SAS’S DIRECT AND INDIRECT SUBSIDIARIES (COLLECTIVELY, “CONTENTSQUARE”). THE CS SOLUTION IS PROVIDED FOR THE PURPOSE OF ENTERPRISE USE. BY DOWNLOADING, INSTALLING, ACTIVATING, AND/OR OTHERWISE USE (“USE”) ANY PART OF A CS SOLUTION, YOU ARE REPRESENTING TO CONTENTSQUARE THAT YOU HAVE THE AUTHORITY TO BIND THAT ORGANIZATION AND AGREEING ON BEHALF OF SUCH ORGANIZATION (THEREFORE "YOU" AND "YOUR" WILL REFER ALSO TO THAT ORGANIZATION) THAT YOU HAVE READ AND THAT YOU AGREE TO COMPLY WITH AND ARE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (IN PARTICULAR THE LIMITATIONS OF LIABILITY AT CLAUSE 9) AND ALL APPLICABLE LAWS AND REGULATIONS. PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MAY NOT USE ANY PART OF THE CS SOLUTIONS.
- DEFINITION AND RULES OF INTERPRETATION
1.1. “Account” means an account with Contentsquare to use the CS Solution.
1.2. “Affiliate” means any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, a Party. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
1.3 “Agreement” means these Terms of Services.
1.4. “Confidential Information” means any oral, written, graphic or machine-readable information disclosed by Contentsquare or included in the CS Solution that should be reasonably understood to be confidential, including all features, capabilities and related problems encountered by Customer, are Contentsquare Confidential Information. For purposes of this Agreement Customer Data shall be deemed to be Confidential Information of Customer.
1.5. “CS Solution” means such Contentsquare’s free solution used by the Customer, including upgrades and updates thereto that are made available by Contentsquare from time to time.
1.6. “Customer Data” means (i) the data or information provided or inputted by or on behalf of Customer or a User for the purpose of accessing and using CS Solution, in any all forms; (ii) Visitor Data; and (iii) all information derived from the foregoing, including results of processing the foregoing through CS Solution.
1.7. “Customer Site(s)” means those website URL(s) owned and/or operated (under proper authorization) by Customer or a Customer Affiliate identified in Customer Account on which Customer elects to implement the Script and use the CS Solution. For the avoidance of doubt, domains for any Customer website not provided by Customer and included in their Account will not operate within the CS Solution.
1.8. “Data Protection Laws” means any U.S. federal, state and local laws, as well as foreign laws and government-issued rules, regulations, guidelines, directives and requirements currently in effect or later implemented, modified, or amended, as they become effective that relate in any way to the privacy, security and processing of personal data, including data protection laws and their regulation in any jurisdiction applicable to the Parties.
1.9. “Documentation” means any and all guides, user manuals, and other documents provided by Contentsquare to Customer, including any updates made by Contentsquare from time to time.
1.10. “Effective Date” means the earliest date in which the CS Solution was first: (i) downloaded; (ii) installed; (iii) implemented in the Customer Site(s); or (iv) used by the Customer.
1.11. “Intellectual Property Rights” means all intellectual property rights in any part of the world, including patents, rights to inventions, utility models, copyright and related rights, trade and service marks, trade, business and domain names, rights in trade dress, rights to goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semiconductor and topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection which subsist or may subsist now or in the future.
1.12. “Restricted Personal Data” means information that identifies or can be used to identify, contact or locate a specific individual including, without limitation, name, physical address, telephone number, fax number, email address, financial information (including, bank account numbers, credit or debit card information, PINs, or information regulated under The Gram-Leach-Bliley Act (GLBA)), health information (including any health insurance information or information regulated under the Health Insurance Portability and Accountability Act (HIPAA), government issued IDs (including driver’s license number, passport number, national ID number, TIN or EIN number, social security number), medical information, biometric or genetic information, information regarding children (e.g. under the age of sixteen (16) or information subject to the Children Online Privacy Protection Act (COPPA)) and any information defined as ‘Special Categories of Data’ under Article 9 of the General Data Protection Regulation 2016/679 (GDPR), and any “Personal Information” as defined under the California Consumer Privacy Act (CCPA). For the purpose of this Agreement, Restricted Personal Data shall not include IP addresses and other unique, non-personal identifiers such as cookie IDs.
1.14. “Term” means the period starting as of the Effective Date and until the early termination or expiration of this Agreement in accordance with the terms of this Agreement.
1.15. “Users” means such employees, agents and independent contractors of Customer or a Customer Affiliate who are given access to the CS Solution in accordance with this Agreement, authorized to that purpose either by Customer or by a Customer Affiliate and provided with a dedicated User Account.
1.16. “Visitor” means a visitor of the Customer Site(s).
1.17. “Visitor Data” means the data relating to a Visitor collected or received by Contentsquare in connection with Customer’s use of the CS Solution including (i) such technical information of a Visitors system (e.g., OS, IP, cookie ID, Screen Resolution, Time Zone), (ii) information related to a Visitor’s activity on Customer Site(s) (e.g., mouse clicks, scroll moves, clicks, taps, browsed pages), (iii) Visitor browser backend data (e.g. JS error logs, network communication, etc.) and (iv) without derogating from Section 6, Restricted Personal Data.
2. SUBSCRIPTION AND ACCOUNT
2.1. Contentsquare shall, during the Term, provide Customer with access to the CS Solution, in accordance with the terms of this Agreement.
2.2. To access and use the CS Solution, Customer must set up an Account for each of its Users. When setting up the Account, Customer must provide current, complete, and accurate information. Customer shall be responsible for maintaining the security of the Account and shall take all necessary steps to protect the Account password from loss, theft, or unauthorized disclosure. Customer is fully responsible for its own and its Users’ and Representatives’ use of the Account. Without limiting its information security obligations under this Agreement, Contentsquare shall not be liable for any loss and/or damage resulting from Customer’s failure to comply with this section. Customer agrees to notify Contentsquare immediately upon learning of any known unauthorized access or use of the Account or any other breach of security of the Account.
3. CUSTOMER'S USE OF THE CS SOLUTION
3.1. Subject to the terms of this Agreement, Contentsquare hereby grants Your personal, limited, non-exclusive, non-transferable, non-sublicensable, and non-assignable right and license to (i) copy, install and integrate the Script with the Customer Site(s), and (ii) access and use the CS Solution as a software as a service (SaaS) solution for enterprise, in each case, in accordance with the terms of the Agreement and any Documentation, during the Term only. Customer acknowledges and accepts that (i) the implementation of the Script on Customer Site/s and the use by Customer of the CS Solution is on Customer’s own risk and responsibility after understanding such risk associated with such implementation and use; and (ii) if such is required by Customer’s internal corporate governance, Customer has obtained all necessary approvals for such implementation and use prior to the Effective Date.
3.2. Customer hereby agrees that Customer shall not, nor shall Customer allow any third party, its Users or Representatives to (or attempt to): (i) copy, modify, adapt, frame, mirror, display, republish, download, translate or otherwise create derivative works of the CS Solution; (ii) reverse engineer, de-compile, disassemble, reverse compile or otherwise attempt to discover the source code of the Script or the CS Solution or any part thereof; (iii) rent, lease, sell, assign, sublicense or otherwise transfer rights in the CS Solution; (iv) use the CS Solution or any part thereof to provide services to third parties; (v) remove any proprietary notices or labels on the CS Solution or placed by the CS Solution or any part thereof; (vi) use, post, transmit or introduce any device, software or routine in a manner intended to interfere or attempt to interfere with the operation of the CS Solution or any part thereof; (vi) use the CS Solution or any part thereof for illegal purposes; (vii) use the CS Solution to collect any Restricted Personal Data (viii) introduce any computer viruses, malware, or similar malicious software into Contentsquare’s computing and network environment and shall take reasonable steps to ensure such viruses are not introduced through the CS Solution.
3.3. Customer shall use the CS Solution solely for Customer's internal business operations, in accordance with the Terms and conditions of this Agreement and the Documentation. Customer shall not (i) make the Script or the CS Solution available for timesharing, application service provider or service bureau use for the benefit of third parties; (ii) use the Script or the CS Solution outside of the scope of the license granted hereunder; (iii) use the Script or the CS Solution on a domain that is not a Customer Site; or (iii) use the Script or the CS Solution after the expiration or termination of this Agreement. Customer acknowledges and understands that continued use of the CS Solution not in accordance with the above limitations may cause irreparable harm to Contentsquare, and accordingly, Contentsquare may take any and all actions necessary and appropriate to protect its rights. Contentsquare may, at its sole and absolute discretion, at any time, without notice and without liability and without being subject to damages, or prejudice to its other rights under this Agreement, (i) disable Customer’s and/or any Users’ access to the Script or the CS Solution in the event of any breach or reasonably suspected breach of this Section 3 by Customer or its Users.
3.4. Customer may permit its applicable third party consultants and contractors and/or its Affiliates (“Representatives”) to exercise all of the rights and licenses to the CS Solution and the Script granted to them herein solely for the benefit of Customer’s internal business needs. Use of, or access to the CS Solution by such Representatives shall not be deemed to modify any of the subscription terms, limitations or restrictions as set forth in this Agreement and shall be subject to each Representative using a separate Account. If Customer permits Representatives to access or use the CS Solution pursuant to the foregoing, Customer shall ensure such Representatives comply with the terms of the Agreement and shall remain in any event liable for any acts or omissions of its Representatives in breach of this Agreement with respect of their use of the CS Solution.
3.5. Customer shall comply with all applicable laws and regulations in its provision, use of or access to the CS Solution, the Script.
3.6. Contentsquare may use third-party service or product including as listed and found at the following URL: https://contentsquare.com/privacy-center/subprocessors/, in support of the CS Solution and Additional Services. Contentsquare shall remain responsible for the performance by such subcontractors, and their compliance with all obligations under this Agreement.
3.7. If Customer is an agency or is otherwise providing services for the benefit of a third party (“Third Party” ), Customer represents and warrants that (i) Customer is authorized to act on behalf of the Third Party, and (ii) collect and view Customer Data belonging to the Third Party in connection with Customer’s use of the C. Customer shall ensure that each Third Party agrees to comply with the terms of the Agreement, provided however, that Customer shall remain liable for any acts, omissions or breaches of the Agreement by such Third Party.
3.8 Notwithstanding anything to the contrary in this Agreement, Contentsquare does not provide maintenance and support, professional services, warranties, or indemnification for the CS Solution.
3.9 Contentsquare can make necessary deployments of changes, updates, or enhancements to the CS Solution at any time and without notice. We may also add or remove functionalities or features, or we may suspend or stop the CS Solution altogether at any time and without notice.
4. PROPRIETARY RIGHTS
4.1. Customer acknowledges and agrees that the Script and the CS Solution and all Intellectual Property Rights in the Script and the CS Solution, including any and all updates, enhancements, derivatives, modifications or improvements thereof, are, and shall remain, the sole property of Contentsquare and/or its licensors. Except as expressly stated in this Agreement, this Agreement does not grant Customer any Intellectual Property Rights or any other rights or licenses in respect of the Script or the CS Solution. Contentsquare expressly reserves all right, title, and interest in and to any Intellectual Property Rights not specifically granted to Customer herein. It is clarified that All reports, testing data or results, feedback, benchmarking or other analysis developed or provided in conjunction with usage by Customer of the CS Solution shall be deemed part of the CS Solution and owned by Contentsquare.
4.2. Contentsquare acknowledges and agrees that Customer (or Customer Affiliate(s) as applicable) remains at any time the sole owner of (or where applicable, must ensure it has a valid license to) the Customer Data and the Customer Site(s). Customer hereby grants Contentsquare and its Affiliates a non-exclusive, worldwide royalty-free license to use the Customer Data solely to the extent necessary to perform its obligations or enforce its rights under this Agreement. Customer also grants Contentsquare and its Affiliates a non-exclusive, perpetual, worldwide, royalty-free license to compile, use anonymous, aggregated statistics derived from Customer Data in order to research, develop, modify, improve and support the services provided by Contentsquare, provided that no such information will directly identify and cannot reasonably be used to identify Customer, Customer’s Users or Visitors. In no event shall Contentsquare sell or transfer Customer Data to third parties for marketing or advertising purposes.
5.1. Customer shall only use Contentsquare Confidential Information for the purposes of this Agreement and shall not reproduce, disseminate, or disclose Confidential Information to any person, except to its employees and authorized representatives (i.e., temporary employees, consultants, and contractors) who need to know the Confidential Information for the purposes of this Agreement and are bound by confidentiality obligations at least as restrictive as those in this section 5 (Confidentiality). Customer shall treat all Contentsquare Confidential Information with at least the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care.
5.2. Customer shall advise Contentsquare immediately in the event it learns or has reason to believe that any person who has had access to Contentsquare Confidential Information has violated or intends to violate the terms of this Agreement and it shall cooperate with Contentsquare in seeking injunctive or other equitable relief against any such person.
5.3. Upon termination of the Agreement, in whole or in part, Customer shall, within thirty (30) calendar days from the date of termination, destroy all Contentsquare Confidential Information which are in Customer’s possession.
5.4. The provisions of this Section 5 shall survive the expiration or termination of the Agreement for a period of five years.
6. PERSONAL DATA AND CUSTOMER DATA
6.1. Contentsquare follows globally recognized data protection principles and industry- leading standards for the security of personal data. Contentsquare is self-certiﬁed with the U.S. Department of Commerce for the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks. Contentsquare’s data protection practices are set forth in https://contentsquare.com/privacy-center/ and include (as applicable) standard terms for the processing of Personal Data as deﬁned under GDPR and Personal Information as deﬁned under the CCPA. Customer hereby agrees that in case no separate Data Processing Agreement has been signed by the Parties, any processing of information performed by Contentsquare on Customer’s behalf in connection with the CS Solution shall be governed by the terms and conditions of the current Data Processing Agreement set forth in https://contentsquare.com/privacy-center/.
6.3. Customer agrees and acknowledges that the CS Solution is not intended for the collection of any Restricted Personal Data. For such purpose, Customer shall prevent the transfer of any such Restricted Personal Data to Contentsquare, including, but not limited to, by implementing the appropriate blocking Scripts or other available tools and methods on such relevant areas of the Customer Site(s) and browser back-end where Restricted Personal Data may be collected by the CS Solution or inserted by a Visitor or displayed. Customer also certifies and warrants that it will not use the CS Solution for any means of tracking of its Visitors outside of the Customer Site/s.
6.4. If it becomes known to either Party that Restricted Personal Data has been collected or is being displayed through the CS Solution, then, without limiting any of the rights or remedies available to a Party under the Agreement or under applicable law, the Parties agree to cooperate in good faith to delete any such Restricted Personal Data from the CS Solution. It is hereby clarified that if Restricted Personal Data is required to be removed pursuant to this Section and it is not commercially reasonable or technically feasible to delete only the Restricted Personal Data (as shall be determined by Contentsquare), other Customer Data collected may be deleted in the process.
6.5. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and copyright of all Customer Data. Customer acknowledges and agrees that Customer Data may be processed by Contentsquare, its Affiliates and subcontractors outside the US or the EU. List of locations of such Affiliates and subcontractors can be found at the following URL: https://contentsquare.com/privacy-center/subprocessors/.
7.1. Customer represents and warrants that (i) it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation; (ii) it has all requisite corporate power, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles; and, (iv) it shall comply with all applicable federal, state, local, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits, consents and licenses required of it in connection with its obligations under this Agreement.
7.2. Contentsquare warrants that it has the legal power and authority to enter into this Agreement the CS Solution, as available to Customer, and the Additional Services shall not infringe upon any copyright, patent, trade secret, or other proprietary right; (ii) it shall provide the CS Solution and Addition Services in a competent, workmanlike, and professional manner; and (iii) it shall not knowingly introduce any computer viruses, malware, or similar malicious software into Customer’s computing and network environment and shall take reasonable steps to ensure such viruses are not introduced through the CS Solution. Our sole and exclusive liability, and your sole and exclusive remedy for any breach of these warranties, will be your right to terminate this Agreement.
7.3. YOU ACKNOWLEDGE THAT THE CS SOLUTION HAS NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS, AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE CS SOLUTION MEET YOUR REQUIREMENTS.TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SET OUT ABOVE IN THIS SECTION 7, CONTENTSQUARE MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS WARRANTIES, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER WITH RESPECT TO THE CS SOLUTION, SCRIPTS, DOCUMENTATION, OR ANY ADDITIONAL SERVICES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FOR THE AVOIDANCE OF DOUBT, CONTENTSQUARE DOES NOT WARRANT THAT THE CS SOLUTION, SCRIPTS, DOCUMENTATION, OR ANY ADDITIONAL SERVICES SHALL MEET CUSTOMER NEEDS, BE ERROR FREE, OR THAT THE OPERATION OF THE CS SOLUTION WILL BE UNINTERRUPTED. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE CS SOLUTION BY CUSTOMER AND FOR CONCLUSIONS DRAWN FROM SUCH USE. CONTENTSQUARE SHALL HAVE NO LIABILITY FOR ANY DAMAGES CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO CONTENTSQUARE BY CUSTOMER IN CONNECTION WITH THE CS SOLUTIONS OR ANY ACTIONS BY CONTENTSQUARE AT CUSTOMER’S DIRECTION. THE CS SOLUTION, SCRIPTS, DOCUMENTATION, OR ANY ADDITIONAL SERVICES ARE PROVIDED TO THE CUSTOMER ON AN “AS IS” BASIS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT.
7.4. ACCESS TO THE CS SOLUTION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT TO THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CONTENTSQUARE SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS FULL KNOWLEDGE OF THE CHARACTERISTICS AND CONSTRAINTS OF THE INTERNET AND IN PARTICULAR THAT INFORMATION AND DATA TRANSMISSION, AND ANTI-INTRUSION SYSTEMS, HAVE A LIMITED RELIABILITY AND TECHNICAL SAFETY LEVEL.
8.1. Contentsquare shall, subject to the remainder of this Section 8, defend or at its option settle, any claim or suit against Customer on the basis of infringement of any third party’s Intellectual Property Rights by the CS Solution (hereafter “Claim” ); and (ii) hold Customer indemnify and harmless against any damages, costs, and reasonable attorneys’ fees, if any, finally awarded against Customer in connection with such Claim, provided that: (a) Contentsquare is given prompt notice of any such Claim specifying the nature of the Claim in reasonable detail; (b) Customer provides reasonable co-operation to Contentsquare in the defense and settlement of such Claim; (c) Contentsquare is given sole authority to defend or settle the Claim; and (d) except with Contentsquare’s prior written permission, Customer makes no admission, agreement or compromise in relation to the Claim or otherwise takes any action which would compromise Contentsquare’s defense or settlement of the Claim.
8.2. In the defense or settlement of any Claim, Contentsquare shall, at its sole discretion and expense : (i) procure for Customer the right to continue to use the CS Solution in accordance with the terms of this Agreement; (ii) modify or replace the CS Solution, provided that any such modification and/or replacement shall not materially adversely affect or reduce the functionalities offered by the CS Solution, so as to avoid the infringement; or (iii) if Contentsquare reasonably determines that none of the actions detailed in the above sub-sections (i) and (ii) of this Section 8.1 are commercially feasible, Contentsquare may terminate this Agreement early, in which case Contentsquare shall repay to Customer any prepaid but unused Fees as at the date of termination.
8.3. Notwithstanding the foregoing, Contentsquare shall not be liable for any infringement, where such infringement arises as a result of (i) any combination of services, software or other materials with the CS Solution and/or the Script, to the extent the infringement relates to such combination, (ii) Customer’s use of the CS Solution in a manner not permitted by this Agreement or the Documentation; or (iii) modification of the CS Solution or the Script by anyone other than Contentsquare or Contentsquare’s sub-contractors.
8.4. This section 8states the entire liability of Contentsquare and the exclusive remedy of Customer with respect to any infringement or alleged infringement of any third party’s Intellectual Property Rights by the CS Solution any part thereof.
8.5 Unless expressly prohibited by applicable law, Customer will defend and indemnify Contentsquare, and pay all damages (including attorneys’ fees and costs) awarded against Contentsquare, or that are agreed to in a settlement, to the extent a claim, demand, suit or proceeding is made or brought against Contentsquare or its Affiliates by a third party (including those brought by a government entity) that: (i) alleges that the Customer Data infringes or misappropriates such third party’s patent, copyright, trademark or trade secret, or violates another right of a third party; or (ii) alleges that your Customer Data or your use of CS Solution violates applicable law or regulation.
9. LIMITATION OF LIABILITY
9.1. This section 9 sets out the entire financial liability of Contentsquare (including any liability for the acts or omissions of Contentsquare ’s employees, agents or sub-contractors) to the other arising under this Agreement, including in respect of: (a) any breach of any obligation (whether implied or express) arising out of or in connection with this Agreement; (b) any use of the CS Solution and the Script by the Customer or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) or breach of statutory duty arising under or in connection with this Agreement.
9.2. Subject to section 9.4, neither Party shall under any circumstances whatsoever be liable to the other for any loss of profit, loss of sales, loss of contracts, loss of business opportunities, loss of revenue, loss of operation time, loss of operational effectiveness, loss of anticipated savings or loss of use of any equipment or process, loss or damage to goodwill and or similar losses or corruption of data or information, pure economic loss or for any incidental, special, consequential or indirect loss or damage howsoever arising under this Agreement.
9.3. Subject to section 9.4, Contentsquare’s total aggregate liability arising under or in connection with this Agreement or the performance or contemplated performance of this Agreement shall be limited to the higher of: (i) Fees actually paid by Customer for the CS Solution during the twelve (12) months immediately preceding the date on which the claim arose; or (ii) USD 1,000.
9.4. Nothing in this Agreement excludes or limits the liability of either Party for: (a) fraud, gross negligence or willful misconduct; (b) death or personal injury caused by either Party’s negligence; or (c) any other liability which may not be limited or excluded by applicable law.
9.5. Notwithstanding anything to the contrary under this Agreement, Contentsquare shall have no liability for any damage relating to: (i) any integration or use by Customer of the Script within the Customer Site(s); (ii) Customer Data or any errors or omissions in any information, instructions or scripts provided to Contentsquare by Customer in connection with this Agreement ; (iii) any content published on a Customer Site(s) by, or on behalf of, Customer; or (iv) any actions taken by Contentsquare at Customer's direction.
10. TERM AND TERMINATION
10.1. This Agreement shall commence on the Effective Date and shall continue until terminated by either Party in accordance with the terms of this Agreement.
10.2. Either Party may terminate this Agreement without liability to the other upon giving a fourteen (14) days prior written notice to the other Party.
10.3. Either Party may terminate this Agreement, in whole or in part, immediately upon written notice (i) if required by law, and (ii) If the other Party is in breach of any confidentiality provisions of this Agreement. Contentsquare may suspend the use of the CS Solution by the Customer at any time at its sole and absolute discretion.
10.4. Upon termination of this Agreement, (i) all rights granted to Customer under this Agreement shall immediately terminate;, (ii) Customer shall delete all copies of the Script from Customer Site(s) and certify thereto in writing to Contentsquare; ; and (iii) Customer shall immediately cease all use of the CS Solution and or the Script.
.5. All obligations under this Agreement which are expressed, or by their nature are intended, to survive beyond the termination or expiry of this Agreement shall survive the termination or expiry of this Agreement.
11.1. Headings. The section headings herein are provided for ease of reference only and shall have no legal effect.
11.2. Force Majeure. Each Party shall not have any liability to the other if it is prevented from performing the Agreement on account of a Force Majeure Event. The term “Force Majeure Event” shall many any unavoidable cause, event or circumstances beyond a Party’s reasonable control, including, without limitation, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, earthquakes, fires, floods, epidemics, or pandemics. If a Party is not able to perform any obligation or duty hereunder due to a Force Majeure Event, which could not with the exercise of diligent efforts have been avoided, the affected Party shall use its best efforts to mitigate the effects of any such failure or delay in performance. In the event that a Party is subject to a Force Majeure Event, the Party subject to a Force Majeure Event shall promptly notify the other Party of the occurrence and details of the Force Majeure Event and fees shall be refunded on a pro-rata basis after a period of sixty (60) in the event the Force Majeure Event persists beyond the notice of the Force Majeure Event.
11.3. Commercial Reference. Customer hereby grants Contentsquare with the right to use and display Customer’s name, logo and/or any other identifying words or marks associated with Customer, in whole or in part, and in any media for the sole purposes of identifying Customer as a customer of Contentsquare. Customer may withdraw such right for any reason or no reason at all immediately upon written notice to Contentsquare.
11.4. Export Compliance. You will comply with all applicable export laws and regulations of the
United States and any other country (“Export Laws”) where your Users use the CS Solution. You certify that you are not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You will not export, re-export, ship, transfer or otherwise use the CS Solution in any country subject to an embargo or other sanction by the United States, including, without limitation, Iran, Syria, Cuba, the Crimea Region of Ukraine, Sudan and North Korea, and you will not use the CS Solution for any purpose prohibited by the Export Laws
11.5. Transfer and Assignment. Customer may not transfer or assign any of its rights or obligations under this Agreement without the prior written consent of Contentsquare.
11.6. Changes to Agreement. Contentsquare reserve the right to modify the terms of this Agreement. Contentsquare will post the most current version of this Agreement at www.contentsquare.com (the “Contentsquare Site”). If we make material changes to this Agreement, we will notify you via the CS Solution and/or by email to the address associated with your Account. If you do not accept the changes, you must stop using and cancel your Account. Your continued use of the CS Solution after we publish or send a notice about our changes to This Agreement means that you are consenting to the updated terms.
11.7. Severability. If any provision of the Agreement or the application thereof to any Party or circumstance shall to any extent be declared invalid, illegal or unenforceable in any jurisdiction, that provision shall be severed from the Agreement as to such jurisdiction (but, to the extent permitted by law, not elsewhere), and shall not affect the remaining provisions hereof. The Parties agree to substitute for such provision a valid provision that most closely approximates the intent and economic effect of such severed provision.
11.8. Nature of Relationship. The Parties are independent contractors and nothing in the Agreement shall be construed as constituting a partnership, joint-venture, common undertaking, or other association between the Parties. Neither Party shall be deemed to be an employee, agent, partner nor legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. The Parties shall take all necessary precautions to ensure that third parties cannot consider the other Party to be their representative or agent.
11.9. No Third-Party Beneficiary Rights. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the Parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
11.10. Notices. All notices must be in English, in writing, and addressed as follows (a) in the case of Contentsquare to [email protected] and (b) in the case of Customer to the postal address or email address detailed in the Account, or such other address as either Party has notified the other, in accordance with this Section.
11.11. Governing Law and Venue. This Agreement and any dispute(s) or claim(s) arising out of or in connection with it or its subject matter or formation (including non-contractual dispute(s) or claim(s)) shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provisions or rule (whether of the State of New York or any other jurisdiction). In relation to any dispute(s) or claim(s), each Party irrevocably agrees that the courts of New York shall have exclusive jurisdiction to settle any such dispute(s) or claim(s).
11.12. Entire Agreement. This Agreement, and any documents referred to in it, constitutes the whole agreement between the Parties and supersedes all previous agreements between the Parties relating to its subject matter (including any Customer purchase orders). Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), as expressly provided in this Agreement. Each Party represents and warrants that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings (or the failure or omission of the other Party to make statements, assurances, representations or undertakings) other than what is expressly set forth in this Agreement.