THIS CANDU SUBSCRIPTION SERVICES AGREEMENT (“AGREEMENT”) CONTAINS THE TERMS FOR USE FOR THE SERVICE AND IS BETWEEN CANDU, INC. (“CANDU”), A DELAWARE CORPORATION HAVING A PLACE OF BUSINESS AT S340 S LEMON AVENUE, #7720, WALNUT, CA 91789 AND THE PARTY AGREEING TO THE TERMS OF THIS AGREEMENT (“CUSTOMER”). BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CLICKING AN "ACCEPT" OR SIMILAR BUTTON, OR OTHERWISE USING THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CUSTOMER MAY NOT USE THE SERVICE WITHOUT AGREEING TO THIS AGREEMENT FIRST. IF A WRITTEN AGREEMENT REGARDING CUSTOMER’S USE OF THE SERVICE EXISTS BETWEEN AND HAS BEEN EXECUTED BY BOTH CANDU AND CUSTOMER, THE TERMS OF THAT WRITTEN AGREEMENT SHALL TAKE PRECEDENCE OVER THIS AGREEMENT.
1. CANDU SERVICE
1.1 Provision of Service. Candu provides a proprietary platform service designed to allow customers to personalize experiences within their SaaS apps (the “Service”). The Service is described more fully in the then-current version of the documentation available on Candu’s website at https://docs.candu.ai/ (“Documentation”). The Service is provided on a subscription basis for the Subscription Term.
1.2 Access to the Service. Subject to the terms and conditions of the Agreement, Candu hereby grants to Customer a non-exclusive, non-transferable, worldwide right, during the Subscription Term, to access and use the Service solely for Customer’s internal business purposes, in accordance with applicable Laws, and pursuant to the Documentation, including any restrictions in the order form executed by the parties (“Order Form.”)
1.3 Permitted Users. Users will receive user IDs and passwords to access the Service from Customer (“Permitted Users”). Customer will ensure that all Permitted Users keep these credentials strictly confidential. Customer is responsible for any and all actions taken by Permitted Users or by anyone using Customer’s accounts and passwords and shall ensure that Permitted Users are only Customer’s employees and contractors.
1.4 Restrictions. Customer shall not use the Service in a manner that violates any applicable Laws. Customer shall not, and shall not allow or assist any Permitted User or third party to: (a) grant third parties permission to use the Service, resell, transfer, pledge, lease, rent, or share Customer`s rights under this Agreement; (b) modify, remove or amend Candu’s name or logo, update, reproduce, duplicate, copy all or any part of the Service; (c) make the Service or content generated by the Service available to anyone other than Customers employees and consultants for use for its benefit as intended pursuant to this Agreement, or use the Service for the benefit of any entity other than Customer; (d) access or attempt to access any of Candu’s systems, programs or data that are not made available for public use, or attempt to bypass any of the Service security and traffic management devices; (e) use the Service for benchmarking or to developing a product which is competitive with any Candu product offering; or (f) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, object code or underlying ideas, structure, know-how, algorithms, file formats or programming or interoperability interfaces relevant to the Service or any software, documentation or data related to the Service by any means whatsoever. “Laws” refers to any statute, regulation, rule, ordinance or ruling by a foreign, federal, state or local government including, but not limited to data transfer, intellectual property rights and privacy laws.
2. CUSTOMER DATA AND CUSTOMER OBLIGATIONS
2.1 Customer Data. “Customer Data” means electronic data and information submitted by or for Customer to the Service or collected and processed by or for Customer using the Service and any output from the foregoing.
2.2 Customer Obligations. Customer represents and warrants to Candu that Customer has sufficient rights in the Customer Data to authorize Candu to input, process, distribute and display the Customer Data as contemplated by this Agreement.
2.3 Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Candu. Subject to the terms of this Agreement, Customer hereby grants to Candu a non-exclusive, worldwide, royalty-free right to use, process, and store the Customer Data solely to the extent necessary to provide the Service and to comply with applicable Laws.
2.4 Aggregated and Anonymized Data. Notwithstanding anything to the contrary contained herein, Candu may process aggregated and anonymous general platform usage data and Customer Data on an anonymized basis for Candu's legitimate business purposes, including for machine learning and testing, product development and enhancement, controls, and operation of the Service, and may retain and share such data at Candu's discretion (“Aggregated and Anonymized Data”). For clarity, nothing in this Section 2.4 gives Candu the right to publicly identify Customer or any individual user as the source of Aggregated and Anonymized Data.
3.1 Candu Technology. This is a subscription agreement for use of Service and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to use the Service on a hosted basis. Customer agrees that Candu or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Service, including and any and all related and underlying software (including but not limited to mobile applications, extensions and interfaces), databases, technology, and all copies, modifications and derivative works thereof, the Documentation, and all system performance data and machine learning, including machine learning algorithms, data used for optimization and services improvement, and the results and output of such machine learning (collectively, “Candu Technology”). Candu reserves all rights to the Service not expressly granted in this Agreement.
3.2 Feedback. Customer, from time to time, may submit comments, information, questions, data, ideas, descriptions of processes, or other information relating to the Service to Candu (“Feedback”). Candu may use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise, provided Customer shall not be identified in connection with any such Feedback without Customer’s consent in its sole discretion.
4. SUBSCRIPTION TERM; FEES AND PAYMENT
4.1 Subscription Term. Unless otherwise specified on the Order Form, each Subscription term shall begin on the effective date of the applicable Order Form and expire 12 months thereafter (“Initial Subscription Term”). Thereafter, the Initial Subscription Term will automatically be renewed for successive one-year renewal terms at its then-current fees from the end of the Initial Subscription Term unless Customer or Candu provides written notice of its intent not to renew no later than 60 days prior to the end of the current Term (each, a “Renewal Subscription Term”). The Initial Subscription Term and any Renewal Subscription Term are collectively referred to as the “Subscription Term.”
4.2 Fees and Payment. All fees are as set forth on the Order Form and shall be paid by Customer within 30 days of the effective date of the Order Form. Except as expressly set forth in Section 6.1 (Limited Warranty) and Section 7.1 (Candu Indemnification), payment obligations are noncancelable and fees are non-refundable. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, Customer will need to pay for all applicable taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax. Customer will make all payments free and clear of, and without reduction for, any withholding or other taxes; any such taxes imposed on payments by Customer hereunder will be Customer’s sole responsibility. Any late payments shall be subject to a service charge equal to 1.0% per month of the amount due or the maximum amount allowed by law, whichever is less.
5. CONFIDENTIAL INFORMATION
5.1 Confidentiality. Each party (as “Receiving Party”) hereto acknowledges that the Confidential Information of the disclosing party (“Disclosing Party”) constitutes valuable confidential and proprietary information. Each party will (i) hold the Confidential Information of the other party in confidence, (ii) not disclose to any other person or use such Confidential Information or any part thereof, except in connection with the limited purpose of performing its obligations pursuant to the terms of this Agreement and except if compelled to do so under applicable law and has delivered a written notice to that effect to the disclosing party and taken all reasonable steps to avoid the disclosure of such Confidential Information, and (iii) use at least the same degree of care with respect to the other party’s Confidential Information as it uses to avoid the unauthorized use, disclosure or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care. Each party will disclose the other party’s Confidential Information, to the extent such disclosure is permitted under the terms of this Agreement, to its employees and agents on a “need to know” basis; provided in each case that such employees and agents are bound by confidentiality obligations similar to those in this Agreement.
“Confidential Information” means any proprietary information, trade secret and other information, which is disclosed by a party to the other party, whether tangible or intangible, including, but not limited to, the terms of this Agreement and information relating to the Services, technical and financial information and any improvements, enhancements, product specifications and plans, technical data, know-how, show-how, techniques, algorithms, routines, compositions, processes, formulas, methods, designs, design rules, drawings, flow charts, samples, inventions (whether reduced to practice or not), discoveries, concepts, ideas, past, current and planned research, development or experimental work, hardware, software (object code and source code), databases, systems, structures, architectures, current and planned distribution methods and processes, customer lists, current and anticipated customer requirements, price lists and market studies, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information does not include information which (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
6. LIMITED WARRANTY
6.1 Limited Warranty. Candu shall use reasonable effort consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service and shall perform the Service in a professional and workmanlike manner. Further, Candu warrants that the Service, when used in accordance with this Agreement, will perform in substantial conformity with the applicable Documentation. Customer’s sole and exclusive remedy and Candu’s sole and exclusive obligation under such warranty shall be that Candu will use commercially reasonable efforts, to correct the reported non-conformity in accordance with the Service Level and Support Agreement attached hereto as Exhibit A, or if Candu determines such remedy to be impracticable, to terminate or allow Customer to terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Service that it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 6.1 shall not apply: (i) unless Customer makes a claim within 60 days of the date on which the condition giving rise to the claim first appeared and support it with documented evidence, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services or (iii) to use provided on a no-charge or evaluation basis.
6.2 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES IN SECTION 6.1, THE SERVICE ARE PROVIDED “AS IS”. NEITHER CANDU NOR ANY OF ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE.
7.1 Candu Indemnification. Subject to Section 7.3 (Procedures) and the remainder of this Section 7.1, Candu shall (a) defend Customer and its shareholders, directors, officers, employees, successors and assigns, (collectively “Customer Indemnitees”) from and against any claim by a third party alleging that the technology underlying the Service, when used as authorized under this Agreement, directly infringes such third party’s copyright, U.S. patent, or trademark and (b) in relation to such claim, indemnify the Customer Indemnitees from any damages and costs finally awarded or agreed to in settlement by Candu (including reasonable attorneys’ fees). If Customer’s use of the Service is, or in Candu’s opinion is likely to be, enjoined due to the type of infringement specified above, if required by settlement, or if Candu determines such actions are reasonably necessary to avoid material liability, Candu may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using the Service; or if (i) and (ii) are not commercially reasonable, (iii) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term which was paid by Customer but not rendered by Candu after the date of termination. The foregoing indemnification obligations of Candu shall not apply: (1) if the Service is modified by any party other than Candu, but solely to the extent the alleged infringement is caused by such modification; (2) the Service is combined with other non- Service services or processes not authorized by Candu, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Service; or (4) to any action arising as a result of Customer Data or any third-party components contained within or uploaded to the Service. THIS SECTION 7.1 SETS FORTH CANDU’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
7.2 Customer Indemnification. Customer shall (a) defend Candu from and against any claim by a third party alleging that the Customer Data, or Customer’s use of the Service in breach of this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable Laws, and (b) in relation to such claim, indemnify and hold harmless Candu from any damages and costs finally awarded or agreed to in settlement by Customer (including reasonable attorneys’ fees).
7.3 Procedures. The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification: (i) prompt written notice of the claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of the indemnified party, at indemnifying party’s expense.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1 Liability. SUBJECT TO SECTION 8.2 (EXCEPTIONS TO LIMITATIONS):
8.1.1 NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR: (1) THE OTHER PARTY’S LOST REVENUES; (2) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES (WHETHER OR NOT FORESEEABLE OR CONTEMPLATED BY THE PARTIES AT THE EFFECTIVE DATE); OR (3) EXEMPLARY OR PUNITIVE DAMAGES; AND
8.1.2 EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO CANDU FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGE.
8.2 Exceptions to Limitations. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY RESULTING FROM ITS GROSS NEGLIGENCE OR THE GROSS NEGLIGENCE OF ITS PERSONNEL; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; (C) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS; OR (D) A PARTY’S LIABILITY UNDER SECTION 7 (INDEMNIFICATION).
9. DATA SECURITY. Candu will implement and maintain reasonable technical and organizational measures designed to keep the Customer Data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access. Customer acknowledges and agrees that no personally identifiable information is required for the Services and not share such information with Candu.
10.1 Termination. Either party may terminate this Agreement if the other party materially breaches its obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within 30 days after receipt of written notice from the non-defaulting party.
10.2 Effects of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, (i) all rights granted to Customer under this Agreement will immediately cease to exist and Customer shall immediately stop using the Service, and (ii) Candu will make Customers Data available for download, or export for 30 days following such termination.
10.3 Survival. Sections 2.4, 3, 4.2, 5, 6.2, 7, 8, 9, 10.2, 10.3, and 11.
11.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities.
11.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
11.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed under the laws of the State of California, U.S.A. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the competent federal and state courts in San Francisco, California.
11.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
11.5 Candu’s Customer List. Candu may disclose Customer as a customer of Candu and use Customer’s name and logo on Candu’s website and in Candu’s promotional materials.
11.6 Notice. All notices to Candu shall be valid only if sent via email to [email protected] Candu may give notice applicable to Candu software as a service customer base by means of a general notice on Candu portal for the SaaS Services, and notices specific to Customer by electronic mail to Customer email address on record in Candu account information or by written communication sent by first class mail or pre-paid post to the most recent Customer address provided by Customer to Candu. Customer’s current address shall be the address provided on the first page of the Agreement or the Order Form.
11.7 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other similar form employed by Customer, including any electronic invoicing portals and vendor registration processes, will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
11.8 Entire Agreement. This Agreement (including mutually agreed exhibits or attachments) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
11.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency (“Force Majeure.”)
11.10 Subcontractors. Candu may use the services of subcontractors for performance of services under this Agreement, provided that Candu remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement, all applicable Laws as well as Customer’s reasonable safety standards and protocols as provided to Candu in writing, and (ii) the overall performance of the Service as required under this Agreement.
11.11 Third-Party Beneficiaries. No third party is intended to be a beneficiary of this Agreement entitled to enforce its terms directly.
11.12 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
11.13 Government End-Users. The Service is based upon commercial computer software. If the user or licensee of the Service is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. the Service was developed fully at private expense. All other use is prohibited.
11.14 Export Control. In its use of the Service, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) Customer shall not (and shall not permit any of its Permitted Users or others to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction.
SERVICE LEVEL AND SUPPORT AGREEMENT
This Service Level Agreement (“SLA”) is incorporated by reference into the Agreement and governs the provision of the Service by Candu to Customer pursuant to the Agreement. All capitalized terms not defined herein shall have the meanings given to them in the Agreement. “Service Levels” means Availability or Problem Resolution as specified below.
1. Service Availability.
1.1 Standards. “Availability” means that access to the Candu web application is available to Customer. The Service shall perform in accordance with the following standards:
System Availability Measure = Software Service monthly uptime
Standards = 99%*
* Excludes scheduled downtime (of which Candu will give at least 1 business day’s notice and which Candu will reasonable efforts to schedule during weekend hours from 5:00 p.m. PT Friday to 5:00 a.m. PT Monday), not to exceed 48 hours in any 12-month period; excludes unavailability attributed to the Customer’s own systems, failure due to external services and due to Force Majeure. In addition, Customer shall not have any remedies under this SLA to the extent any SLA claim is due to: (i) use of the Service outside the scope described in the Agreement and the Documentation; (ii) Customer equipment and/or third party software, hardware or network infrastructure outside of Candu’s data center and not under the direct control of Candu; (iii) failure of the external internet beyond Candu’s network; (iv) any actions or inactions of Customer or any other third party not under the direct control of Candu; or (v) attacks (i.e. hacks, denial of service attacks, malicious introduction of viruses and disabling devices) caused by third parties.
1.2 Failure to Achieve Service Levels. If Candu fails to meet the Availability service levels for any 2 consecutive months during a 12-month period, Customer may terminate the Agreement within 30 days of such occurrence and Candu will promptly refund any prepaid and unused fees for the Service as of the effective date of termination. As Customer’s sole and exclusive remedy.
2. Technical Support & Problem Resolution.
2.1 Technical Support. Candu will provide support during business hours, 9:00 a.m. – 5:00 p.m. PT Monday - Friday via email at [email protected] for general advice and technical support, as well as technical assistance and remediation for operational issues as further described below.
2.2 Problem Resolution. Candu will correct all problems that are reported by Customer, excluding problems attributed to the Customer’s own systems, to external services or to Force Majeure, in accordance with the following table:
Priority, Description, & Response and Fix Time Objective
Priority 1: A condition which makes the use or continued use of the Service impossible.
Candu will respond to and Candu’s senior engineers will commence efforts to fix Priority 1 problems no later than one hour after Customer’s report of such problem or Candu’s detection of such problem, whichever is earlier. Candu will use continuous efforts, 24 hours per day, 7 days per week to provide an acceptable workaround for the Priority 1 problem and will provide a permanent fix for the Priority 1 problem no later than 30 days after Customer’s report of such problem.
Priority 2: Other than any Priority 1 problem, any condition which makes the use or continued use of any one or more critical functions of the Service difficult and which Customer cannot reasonably circumvent or avoid on a temporary basis without the expenditure of significant time or effort.
Candu will respond to and Candu’s senior engineers will commence efforts to fix Priority 2 problems no later than one business day after Customer’s report of such problem. Candu will use continuous efforts to fix Priority 2 problems during normal business hours, and if an acceptable workaround is provided, will provide a permanent fix of the Priority 2 problem no later than 60 days after Customer’s report of such problem or Candu’s detection of such problem, whichever is earlier.
Priority 3: Other than any Priority 1 or Priority 2 problem, any limited problem condition which is not critical in that no loss of Customer Data occurs and with which Customer can continue to use the Service without the expenditure of significant time or effort.
Candu will respond to Priority 3 problems within 2 business days after Customer’s report of such problem, Candu will prioritize Priority 3 problems alongside other problems and feature requests.