CIRCLE PRIMARY SERVICES AGREEMENT
THIS CIRCLE PRIMARY SERVICES AGREEMENT (“CPSA” or “AGREEMENT”) GOVERNS A CUSTOMER’S ACQUISITION AND USE OF THE SERVICES. IF A CUSTOMER REGISTERS FOR A FREE TRIAL OF SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS CPSA WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
YOU CAN ACCEPT THIS CPSA BY (1) CLICKING A DESIGNATED AREA INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS CPSA, OR (3) USING THE SERVICES. ONCE ACCEPTED, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS CPSA IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes. Circle’s direct competitors are absolutely prohibited from accessing the Services. The only exception is if such competitor obtains the prior written consent of Circle’s CEO.
This CPSA was last updated on March 23, 2023. It is effective between Customer and Circle as of the date of Customer’s acceptance of this Agreement (the “Effective Date”) as described in Section 3.1. herein.
1. DEFINITIONS
In addition to terms defined above and elsewhere herein, the following capitalized terms shall have the definitions set forth below:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, the subject entity.
“Beta Services” means Circle services or functionality that may be made available to Customer to try at its option at no or mutually agreed additional charge(s) which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Circle” means Circle The People Inc., a California corporation, or any Affiliate of Circle that is designated on an Order Form.
“Content” means information obtained by Circle from publicly available sources or its third-party content providers and made available to Customer through the Services, Beta Services, or pursuant to an Order Form, as more fully described in the Documentation.
“Customer” means in the case of an individual accepting this CPSA on his or her own behalf, such individual, or in the case of an individual accepting this CPSA on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
“Customer Data” means electronic data and information submitted by or for Customer to Circle in connection with the Services, excluding Content and Non-Circle Applications.
“Documentation” means the applicable this CPSA, the Circle Privacy Policy, the Circle Terms of Service, and the Circle End User License Agreement, all of which can be found at https://www.circlethepeople.com/companyServices agreement, and Circle’s policy statements and usage guidelines, all as may be updated by Circle from time-to-time.
“Free Services” means Services that Circle makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.
“Non-Circle Application” means Web-based, mobile, offline, or other software functionality that interoperates with a Service, that is provided by Customer or a third party and/or listed on a Marketplace or under similar designation.
“Order Form” means an ordering document or online order specifying the Services to be provided Customer hereunder that is entered into between Customer and Circle or any of Customer’s or Circle’s Affiliates, including any addenda and supplements thereto. By accessing a Service provided by Circle, an Affiliate of Customer agrees to be bound by the terms of this Agreement and the Documentation as if it were an original party hereto.
“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal or provided to Customer free of charge or under a free trial (as applicable), and made available online by Circle, including associated Circle offline or mobile components, as described in the Documentation. The term “Services” excludes Content and Non-Circle Applications.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Circle without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Circle at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors, representatives, and agents of Customer, and third parties with which Customer transacts business.
2. CIRCLE RESPONSIBILITIES
2.1. Provision of Purchased Services. Circle will (a) make the Services and Content available to Customer pursuant to this CPSA, the applicable Order Forms, and Documentation; (b) provide applicable Circle standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased; (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Circle shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Circle’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, criminal acts, act of terror, strike, or other labor problem (other than one involving Circle employees), Internet service provider failure or delay, Non-Circle Application, or denial of service attack; and (d) provide the Services in accordance with laws and government regulations applicable to Circle’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s and Users’ use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
2.2. Protection of Customer Data. Circle will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users) as found in the Circle Privacy Policy, the Circle End User License Agreement, the Circle Security Policy Statement, and the Circle Acceptable Use Statement, which can be found at Circle’s website (https://www.circlethepeople.com/company). The versions of these documents in force as of the Customer’s Effective Date (and as may be amended from time-to-time) are hereby incorporated herein by this reference. For the purposes of this CPSA, the Order Form, and the Documentation, Customer and its applicable Affiliates are each considered to be the “data exporter,” and Customer’s acceptance of this Agreement, and Customer’s or an applicable Affiliate’s execution of an Order Form, shall be treated as Customer’s and its Affiliate’s execution and acceptance of Circle’s Documentation. Upon request by Customer made within 45 days after the effective date of termination or expiration of this Agreement, Circle will make Customer Data available to Customer for export or download as provided in the Documentation. After such 45-day period, Circle will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.3. Circle Personnel. Circle will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Circle’s obligations under this CPSA, except as otherwise specified herein.
2.4. Beta Services. From time-to-time, Circle may make Beta Services available to Customer at no charge or mutually agreed reduced charge. Customer may choose to try such Beta Services or not in its sole discretion. Any use of Beta Services is subject to the terms and conditions of this CPSA, and any other terms and conditions specified in Documentation concerning Beta Services.
2.5. Free Trial. If Customer registers on Circle’s or one of its Affiliate’s website for a free trial, Circle will make the applicable Service(s) available to Customer on a trial basis for a limited time free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by Circle in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this CPSA by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO ANY COMPETITOR’S SERVICE. IF CUSTOMER ELECTS NOT TO CONTINUE WITH THE SEWRVICES AFTER THE FREE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY CIRCLE” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS, WITH ALL FAULTS” WITHOUT ANY WARRANTY. CIRCLE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE, CIRCLE’S TOTAL LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED US$1,000.00. WITHOUT LIMITING THE FOREGOING, CIRCLE AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE, WITHOUT LIMITATION, UNDER THIS CPSA AND THE DOCUMENTATION TO CIRCLE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF (1) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, (2) ANY BREACH BY CUSTOMER OF THIS AGREEMENT OR THE DOCUMENTATION, AND (3) ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING ANY PURCHASE DECISION.
2.6. Free Services. Circle may, in its sole discretion, make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this CPSA and the Documentation. In the event of a conflict between this section and any other portion of this Agreement or the Documentation, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer to purchase additional resources or services. Customer agrees that Circle, in its sole discretion and for any reason or no reason at all, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Circle will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services, provided that, if Circle terminates Customer’s account, except as required by law, Circle will provide Customer a reasonable opportunity to retrieve its Customer Data.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY CIRCLE” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS, WITH ALL FAULTS” WITHOUT ANY WARRANTY AND CIRCLE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WHATSOEVER WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE, CIRCLE’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED US$1,000.00. WITHOUT LIMITING THE FOREGOING, CIRCLE AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE, WITHOUT LIMITATION, UNDER THIS CPSA AND THE DOCUMENTATION TO CIRCLE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF (1) CUSTOMER’S USE OF THE FREE SERVICES, (2) ANY BREACH BY CUSTOMER OF THIS AGREEMENT OR THE DOCUMENTATION, AND (3) ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3. USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, without proration for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments, express or implied, made by Circle, its agents, or representatives, regarding future functionality or features.
3.2. Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, Circle may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Circle’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Circle’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below. Failure to promptly do so may result in Circle terminating Customer’s access to the Services.
3.3. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation, and Order Forms; (b) be responsible for (i) the accuracy, quality, and legality of Customer Data, (ii) the means by which Customer acquired Customer Data, (iii) Customer’s and User’s use of Customer Data with the Services, and (iv) the interoperation of any Non-Circle Applications with which Customer uses Services or Content; (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Circle promptly of any such unauthorized access or use; (d) use Services and Content only in accordance with this Agreement, Documentation, the Circle Acceptable Use Policy at https://www.circlethepeople.com/company, Order Forms, and applicable laws and all government regulations; and (e) comply with terms of service of any Non-Circle Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that, in Circle’s sole discretion and judgment, threatens the security, integrity, or availability of Circle’s services, may result in Circle’s immediate suspension of the Services; however, Circle will use commercially reasonable efforts under then existing circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension. Circle shall solely determine any time frame for such remedy by Customer.
3.4. Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or authorized Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation and accepted by Circle; (b) sell, resell, license, sublicense, distribute, rent, or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering; (c) use a Service or Non-Circle Application to store or transmit infringing, libelous, or otherwise harmful, unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use a Service or Non-Circle Application to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein; (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks; (g) permit direct or indirect access to, or use of, any Services or Content in a way that circumvents a contractual usage limit; (h) use any Services to access, copy or use any of Circle intellectual property except as clearly specified and permitted under this Agreement, an Order Form, or the Documentation, and accepted by Circle; (i) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof; (j) copy Content except as permitted herein or as clearly specified in an Order Form or the Documentation, and accepted by Circle; (k) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; or (l) except to the extent permitted by applicable law and clearly specified in a Work Order as accepted by Circle, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions, or graphics of the Service, (3) copy any ideas, features, functions, or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
3.5. Removal of Content and Non-Circle Applications. If Customer receives notice, including from Circle, that Content or a Non-Circle Application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Circle Acceptable Use Policy, Customer will promptly, without delay, conform to Circle’s notice and directions. If Customer does not timely take the required action, including deleting any Content Customer may have downloaded from the Services, in accordance with the above, or if in Circle’s sole discretion and judgment, a continued violation is likely to occur or reoccur, Circle may disable the applicable Content, Service and/or Non-Circle Application. If requested by Circle, Customer shall confirm in writing deletion and discontinuance of use of such Content and/or Non-Circle Application and Circle shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Circle is required by any third-party rights holder to remove Content or receives information that Content provided to Customer may violate applicable law or third-party rights, Circle may discontinue Customer’s access to such Content through the Services and will use reasonable commercial efforts to timely notify Customer of such action.
4. NON-CIRCLE PRODUCTS AND SERVICES
4.1. Non-Circle Products and Services. Circle or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Circle Applications and implementation and other related services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-Circle provider, product, or service is solely between Customer and the applicable Non-Circle provider. Circle does not warrant or support Non-Circle Applications or other Non-Circle products or services, whether or not they are designated by Circle as “certified” or other similar term, unless expressly provided otherwise in an Order Form. Circle is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Non-Circle Application or its provider.
4.2. Integration with Non-Circle Applications. The Services may contain features designed to interoperate with Non-Circle Applications. Circle cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Circle Application ceases to make the Non-Circle Application available for interoperation with the corresponding Service features in a manner or on terms acceptable to Circle.
5. FEES AND PAYMENT
5.1. Fees. Customer will timely pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) Services purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. Customer will provide Circle with valid, current, and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Circle. If Customer provides credit card information to Circle, Customer authorizes Circle to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Circle will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due within 30 days from the invoice date without deduction or offset. Customer is responsible for providing complete and accurate billing and contact information to Circle and notifying Circle of any changes to such information.
5.3. Overdue Charges. If any invoiced amount is not received by Circle by the due date, then without limiting any of Circle’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Circle may condition future subscription renewals and Order Forms on prepayment in full or payment terms shorter than those specified in the “Invoicing and Payment” section above.
5.4. Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized Circle to charge to Customer’s credit card), Circle may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Circle will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.
5.5. Payment Disputes. Circle will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6. Taxes. Circle’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is solely responsible for paying all Taxes associated with its purchases hereunder. If Circle has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Circle will invoice Customer and Customer will pay that amount unless Customer provides Circle with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Circle is solely responsible for all taxes assessable against it based on its income, property, and employees.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Circle, its Affiliates, its licensors, and Content providers reserve all their right, title, and interest in and to the Services and Content, including all of their related intellectual property rights. No intellectual property or other rights are granted by Circle to Customer or any user hereunder other than as otherwise expressly set forth herein.
6.2. Access to and Use of Content. Customer has the right to access and use applicable Content during the subscription period subject to the terms of applicable Order Forms, this Agreement, and the Documentation.
6.3. License by Customer to Circle. Customer grants Circle, its Affiliates, and applicable contractors, a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Circle Applications, Content, and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for Circle to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-Circle Application with a Service, Customer grants Circle permission to allow the Non-Circle Application and its provider to access Customer Data and information about Customer’s usage of the Non-Circle Application as appropriate for the interoperation of that Non-Circle Application with the Service. Subject to the limited licenses granted herein, Circle acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-Circle Application, or such program code.
6.4. License by Customer to Use Feedback. Customer grants to Circle and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Users relating to the operation of Circle’s or its Affiliates’ Services.
7. CONFIDENTIALITY
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Circle includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing), and applicable Documentation. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Circle services.
7.2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that, a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Circle may disclose the terms of this Agreement and any applicable Order Form to a contractor or Non-Circle Application Provider to the extent necessary to perform Circle’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so; provided, the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS
8.1. Representations. Each party represents that (i) it has validly entered into this Agreement, (ii) has the legal power to do so, and (iii) once executed, this CPSA becomes a legally binding obligation on such party.
8.2. Circle Warranties. Circle warrants that during the applicable subscription term, (a) this Agreement, the Order Forms and the Documentation will accurately describe, in all material respects, the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, (b) Circle will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-Circle Applications” section above, Circle will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED FREE OF CHARGE, CONTENT, AND BETA SERVICES ARE PROVIDED “AS IS, WITH ALL FAULTS,” AND IS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Circle. Circle will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees, and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Circle in writing resulting from, a Claim Against Customer; provided, Customer (a) promptly gives Circle written notice of the Claim Against Customer, (b) gives Circle sole control of the defense and settlement of the Claim Against Customer (except that Circle may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Circle all reasonable assistance, at Circle’s expense. If Circle receives information about an infringement or misappropriation claim related to a Service, Circle may in its sole discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Circle’s warranties under “Circle Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and, if applicable, refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Circle, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim Against Customer arises from Content, a Non-Circle Application or Customer’s breach of this Agreement, the Documentation or applicable Order Form(s).
9.2. Indemnification by Customer. Customer will defend Circle and its Affiliates against any claim, demand, suit, or proceeding made or brought against Circle by a third party (a) alleging that the combination of a Non-Circle Application or configuration provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form(s), (ii) any Customer Data or Customer’s use of Customer Data with the Services, or (iii) a Non-Circle Application provided by Customer (each a “Claim Against Circle”), and will indemnify Circle and its Affiliates from any damages, attorney fees, and costs finally awarded against Circle as a result of, or for any amounts paid by Circle under a settlement approved by Customer in writing resulting from, a Claim Against Circle; provided, Circle (A) promptly gives Customer written notice of the Claim Against Circle, (B) gives Customer sole control of the defense and settlement of the Claim Against Circle (except that Customer may not settle any Claim Against Circle unless it unconditionally releases Circle of all liability), and (C) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Circle arises from Circle’s breach of this Agreement, the Documentation, or applicable Order Form(s).
9.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, LOST REVENUE, DAMAGED OR REDUCED GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
11.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, all subscriptions will be for a period of one calendar month and shall automatically renew for additional one-month terms, unless either party gives the other written notice (email acceptable) of termination at least 30 days before the end of the relevant subscription term. Once paid, Customer shall have access to the Services and Content subscribed for unless Customer’s access and use is suspended or terminated by Circle as provided in this CPSA, the Order Form, or the Documentation. There will be no refunds or proration for periods of any subscription term if Customer determines to cease using the Services unless specifically authorized by Circle. Except as expressly provided in the applicable Order Form, renewal of any promotional, special, or one-time priced subscriptions will be at Circle’s applicable list price in effect at the time of the applicable renewal. Circle reserves the right to modify it’s pricing at any time and from time-to-time and such modified pricing shall be effective upon not less than 30 days’ advance notice to Customer.
11.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period (unless extended by the parties in good faith agreement), or (ii) immediately, without prior notice, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, Circle will cease collection subscription fees as of the effective date of termination and, if applicable, will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Circle in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the current subscription period and, if applicable, the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Circle for the period prior to the effective date of termination.
11.5. Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-Circle Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Circle retains possession of Customer Data.
12. GENERAL PROVISIONS
12.1. Export Compliance. The Services, Content, other Circle technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Circle and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, or Syria) or as may be updated from time-to-time, or in violation of any U.S. export law or regulation. Customer is responsible to ensure that it is in compliance with all such export rules, regulations, and laws.
12.2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Circle and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, express or implied, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) that modifies or negates any provision of this CPSA, the Order Form or Documentation, is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this CPSA are for convenience only and shall not affect the construction of any provision of this Agreement.
12.4. Relationship of the Parties. The parties hereto are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related and other local, state, or federal taxes. Except as specifically stated herein, neither party may legally bind the other party or any of such party’s Affiliates to any agreement, instrument, or obligation.
12.5. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement and no third party may enforce any provision of this Agreement against either party.
12.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right or any other right.
12.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be deemed to be null and void, and the remaining provisions of this Agreement will remain in effect.
12.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, Circle may assign this Agreement in its entirety (including all Order Forms), without Customer’s prior consent, to any of its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon 30 days written notice. In the event of such a termination, Circle will, if applicable, refund Customer any prepaid fees covering the remainder of the term of all subscriptions commencing after the month in which the termination is effective. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9. Circle Contracting Entity, Notices, Governing Law, and Venue. The Circle entity entering into this Agreement and the address to which Customer should direct notices under this Agreement will be as set forth in Order Form. California law will apply in any dispute or lawsuit arising out of or in connection with this Agreement and the courts that have exclusive jurisdiction over any such dispute or lawsuit are in San Diego County, CA. Each party agrees to the applicable governing law above without regard to rules concerning choice of law or conflicts of laws, and to the exclusive jurisdiction of the applicable courts stated above.
12.10. Manner of Giving Notice. Except as otherwise specified in this CPSA, all notices related to this Agreement must be in writing and will be effective upon (a) personal delivery, (b) the business day after the sender delivers such notice to any nationally recognized overnight carrier for overnight delivery, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices and must be sent in writing by overnight carrier, the day of sending by email. Billing-related notices to Customer will be submitted by email and addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
