Terms of Service

Last updated December 11, 2023

These CR8DL Terms of Service (this “Agreement”) is entered into by and between CR8DL INC (referred to herein as “CR8DL,” “we,” “us,” or “our”) and the customer purchasing access to the Services pursuant to this Agreement (referred to herein as “Customer,” “your,” or “you”), and contains the terms and conditions that govern your access to and use of the Services as described in the applicable Order, unless there exists a separate signed written agreement between CR8DL and you that specifies that it governs your use of the Services.

Terms and Acceptance. This Agreement becomes a binding contract upon the earlier of (a) you registering and clicking to accept this Agreement or (b) when you begin to use any of the Services (the “Effective Date”). You represent to us that you have read and understand this Agreement and are lawfully able to enter into contracts. If you are entering into this Agreement on behalf of your employer or another entity (which will be deemed to the case if you sign up for Services using an email address from your employer or such entity), (a) you represent to us that you have legal authority to bind your employer or that entity and you agree to this Agreement on behalf of your employer or that entity, and (b) for purposes of the remainder of this Agreement, references to “Customer,” “your,” or “you” will be to such employer or entity. Capitalized terms are defined in Section 20.
Services. Subject to the terms of this Agreement, CR8DL will use commercially reasonable efforts to provide you the Services during the Term of this Agreement. Customer and any End Users may access and use the Services in accordance with this Agreement, the CR8DL Acceptable Use Policy and any other CR8DL published Policies.
Technical Support. Subject to the terms hereof, Company will provide Customer with reasonable technical support services.
Changes to Services. CR8DL may update, change, discontinue, or deprecate the Services, or change or remove features or functionality of the Services from time to time. If CR8DL changes the Services in a manner that adversely reduces the functionality of the Services, CR8DL will inform Customer with at least 30 days’ prior notice via the email address associated with the account.
Beta Services. CR8DL reserves the right to offer features or functionalities that CR8DL is still testing and evaluating. These features or functionalities will be identified as “Beta Services.” Notwithstanding anything to the contrary in this Agreement, the following terms apply to all Beta Services: (a) you may use or decline to use any Beta Services at your own discretion; (b) Beta Services may not be supported and may be changed at any time without notice to you; (c) Beta Services may not be as reliable or available as Services; and (d) CR8DL will have no liability arising from or in connection with the use of Beta Services.
Legal Requirements. You may not use the Services if you are a person barred from receiving the Services under the laws of the United States or other countries, including the country in which you are a resident or from which you use the Services. If you are an individual, you affirm that you are over the age of 18, as the Services are not intended for children under 18.
Security and Privacy
1. Security. Without limiting the provisions of Sections 9 and 14, CR8DL will use commercially reasonable technical and organizational security measures to transfer, store, and process Customer Content. These measures are designed to protect the integrity of Customer Content and guard against unauthorized or unlawful access to, use of, and processing of Customer Content.
2. Privacy. CR8DL does not and will not access or use Customer Content except as necessary to maintain or provide the Services, or as may be necessary to comply with the law or a binding order of a governmental body. CR8DL will not disclose Customer Content to any third-party (other than CR8DL’s contractors and service providers) unless required by law. Account Information will be used in accordance with the CR8DL Privacy Policy.
3. DPA. To the extent that CR8DL processes any Personal Data (as defined in the DPA referenced below) contained in Customer Content that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Services, the Data Processing Addendum (“DPA”) currently available at: https:// https://www.cr8dl.ai/dpa/ is hereby deemed incorporated herein by reference.
Use of the Services.
1. General Restrictions. Customer and all End Users may not use or access the Services, in any manner or for any purpose, in violation of this Agreement or outside the scope permitted in the applicable Order. Customer and End Users may not: (i) resell or sublicense the Services or access credentials; (ii) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services; (iii) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services; (iv) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (v) use or access the Service: (A) in any way prohibited by law, regulation, governmental order or decree; (B) to violate any rights of others; (C) to try to gain unauthorized access to, test the vulnerability of, or disrupt the Services or any other service, device, data, account or network; (D) to spam or distribute malware; (E) in any way that could harm or impair the use of the Services; (F) in any way intended to work around the Service’s technical limitations, recurring fees or usage limits; (G) in any application or situation where failure of the Services could lead to the death or serious bodily injury of any person.
2. Compliance. Customer is responsible for all End Users and shall ensure such End Users comply with the terms of this Agreement. You agree that if you become aware of any violation of the terms of this Agreement by any End User, you will immediately terminate that End User’s access and use of the Services. If CR8DL has reason to believe that you or any End User(s) have breached this Agreement, CR8DL will have the right (but not the obligation), in our sole discretion and determination, to temporarily or permanently suspend Services. All rights granted to you in this Agreement are conditional on your continued compliance with this Agreement; if you do not comply with any term or condition of this Agreement, then CR8DL will have the right, but not the obligation, in CR8DL’s sole discretion and determination, to immediately terminate this Agreement.
3. Trademarks. Customer may only use CR8DL’s trademarks strictly in accordance with the Trademark Use Guidelines and upon the approval of CR8DL. If Customer is a commercial account, CR8DL may disclose the name and logo of Customer in a list of customers on CR8DL’s website and for similar marketing purposes. CR8DL will comply with Customer’s trademark guidelines if provided by Customer to CR8DL.
4. Content Restrictions. You will take steps to ensure that you or any End User does not post content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to anyone; (ii) may create a risk of loss or damage to any other person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is illegal or unlawful; or (v) contains any information or content that you do not have a right to make available under any law or under any contractual or fiduciary relationships.
5. Third-Party Content. Unless explicitly stated herein, you are responsible for any software, product or service that a third-party licenses, sells or makes available to you that you install or use in conjunction with your Customer Content and/or use of the Services (“Third-Party Content”). Your use of Third-Party Content is governed by separate terms between you and that third-party; we are not a party to and are not bound by any of those separate terms. You represent and warrant that Customer Content does not and will not violate any third-party rights, including, without limitation, any Intellectual Property Rights. If Customer becomes aware that any Third-Party Content or Customer Content violates any provision of this Agreement, Customer agrees to immediately remove the applicable part of Customer Content from the Services. You are solely responsible for maintaining licenses and adhering to the license terms of any software you run related to your use of the Services.
Customer Responsibilities
1. Customer Content. Customer is solely responsible for the development, security, content, maintenance and use of Customer Content and all activities and actions occurring under Customer’s account(s). Customer responsibilities include, but are not limited to, the following: (i) compliance of Customer Content with this Agreement and any Policies; (ii) compliance with all laws or regulations applicable to Customer Content; (iii) any loss or other consequence arising from failure to encrypt or backup Customer Content; and (iv) any claims relating to Customer Content.
2. Third-Party Requests. Customer is responsible for appropriately addressing any Third-Party Request relating to Customer Content or any End User’s use of the Services. Customer will diligently seek to obtain information needed to respond to Third-Party Requests and will notify CR8DL promptly if it cannot obtain such information despite diligent efforts. CR8DL will use commercially reasonable efforts and to the extent allowed by law and by the terms of this Agreement to: (i) promptly notify Customer of CR8DL’s receipt of any Third-Party Request; (ii) comply with Customer’s commercially reasonable requests regarding its efforts to oppose or address a Third-Party Request; and (iii) provide Customer with information, support and/or tools required for Customer to respond per the terms hereof (if Customer is otherwise unable to obtain the information). If CR8DL is notified of Customer’s failure to promptly respond to any Third-Party Request, CR8DL may, but will not be obligated to, do so.
3. Unauthorized Access. Customer will take reasonable precautions to prevent unauthorized access to the Services, including, without limitation, utilizing multi-step authentication, protecting passwords and other login credentials. Customer shall notify CR8DL immediately of any known or suspected unauthorized access to the Services or breach of its security related to use of the Services.
4. Customer Administration of the Services. If applicable, Customer may designate specified End User accounts as “Administrators” through the administrative console. Administrators may have the ability to access and remove Customer Content in or from other End User accounts. Administrators may also have the ability to restrict, or terminate, certain End User access to Services accounts. CR8DL is not responsible for internal management or administration of the Services. Customer is solely responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that its Administrators’ use of the Services complies with this Agreement.
5. Encryption and Backup. Customer is solely responsible for proper configuration and use of the Services. Customer is solely responsible for maintaining appropriate security, protection, archives and backup of Customer Content, which may include, but is not limited to, the use of encryption technology and implementation of routine backups of Customer Content and changing account passwords.
Proprietary Rights
1. Customer Content. Customer and its End Users, as applicable, own all right, title, and interest in and to Customer Content. Except as otherwise specified in this Agreement, CR8DL obtains no rights from Customer to Customer Content or any related Intellectual Property Rights. Customer consents to CR8DL’s use of, and hereby grants CR8DL the right to use, Customer Content (i) as may be necessary to provide the Services to Customer and End Users, and (ii) during and after the term hereof, to improve CR8DL’s products and services.
2. Services. CR8DL and our licensors own and retain all right, title and interest in and to the Services and any related software, including, without limitation, all improvements, enhancements, modifications and derivative works thereof (including, without limitation, any related Intellectual Property Rights). This includes any information that we collect and analyze in connection with the Services, such as usage patterns, user or product feedback and other information, to improve and evolve our products and services. Your rights to use the Services are limited to those expressly granted in this Agreement. No other rights with respect to the Services, any related software, or any related Intellectual Property Rights are implied.
3. Microsoft Software. In conjunction with the Services, you may select to be provided and allowed to use specific operating system software (including related documentation) owned and developed by Microsoft (“Microsoft Software”). If you opt to purchase Services with Microsoft Software, Microsoft requires, and you hereby agree, to the following additional terms and conditions: you may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Microsoft Software; you may not transfer or use the Microsoft Software outside the Services; the Microsoft Software is neither sold nor distributed to you and you may use it solely in conjunction with the Services; Microsoft disclaims, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Services; you may not reverse engineer, decompile or disassemble the Microsoft Software, except to the extent expressly permitted by applicable law; and Microsoft is not responsible for providing any support in connection with the Services. Microsoft is an intended third-party beneficiary of provisions related to the use of Microsoft Software, with the right to enforce such provisions. If Customer has chosen to purchase Services from CR8DL that do not provide Microsoft Software as the operating system of the Services provided, and you have chosen to bring your own Microsoft license (“BYOL”), you represent that you have determined that your use of the BYOL will comply with the applicable Microsoft licensing requirements. Usage of the Services in violation of your agreement(s) with Microsoft is not authorized or permitted.
Fees and Payment
1. Fees and Payment. Fees for Services are calculated by CR8DL and owed monthly by Customer (or as otherwise set forth in the applicable Order) based upon Customer account usage and subscriptions as more specifically set forth in the CR8DL Service Catalog posted on CR8DL’s website, subject to any promotional rates or discounts provided to Customer, or the applicable Order. CR8DL reserves the option to bill Customer more frequently for Fees accrued if we suspect that your account is fraudulent or at risk of non-payment. Fee calculations are based upon the pricing and charges for Customer’s use of the Services as listed in the CR8DL Service Catalog, including without limitation hourly metering. All amounts payable by you under this Agreement will be paid to CR8DL without deductions or withholdings and without setoff or counterclaim. For any new Service or new feature of a Service, Fees will be effective when we post updated fees and charges on the CR8DL website, unless we expressly state otherwise in a notice. CR8DL may increase or add new fees and charges for any existing Services you are using by giving you at least 30 days’ prior notice. Unpaid amounts are subject to a finance charge of one and a half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower. Customer’s failure to pay Fees in a timely manner as per the terms of this Agreement will be deemed a material breach of this Agreement, which may result in immediate termination of Customer’s access to the Services by CR8DL in CR8DL’s sole discretion and determination.
2. Collection. In the event CR8DL institutes collection activities and/or litigation to collect sums owed by Customer, CR8DL shall be entitled to its reasonable attorneys’ fees and costs incurred by CR8DL in connection with the collection activities and/or litigation.
3. Taxes. All Fees and other charges required by this Agreement for Services are exclusive of Taxes, all of which Customer will be solely responsible for and will pay in full, unless Customer provides us with a timely and applicable tax exemption certificate by the appropriate taxing authority. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement as calculated by CR8DL. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
Temporary Suspension
1. Generally. We may suspend Customer or any End User’s right to access or use any portion of or all of the Services immediately upon notice to you if we determine Customer or any End User’s use of the Services: (i) may subject us, our affiliates, or any third-party to liability; (ii) may be fraudulent; (iii) is in breach of this Agreement; (iv) breaches payment obligations; or (v) poses a security risk to the Services.
2. Security Emergencies. Notwithstanding anything to the contrary in this Agreement, CR8DL may immediately suspend use of the Services if there is a Security Emergency. CR8DL will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.
3. Effect of Suspension. If CR8DL suspends Customer’s right to access or use any portion or all of the Services: (i) Customer remains liable for all Fees and charges incurred through the date of suspension; and (ii) CR8DL may delete any Customer Content as a result of suspension.
Term and Termination
1. Term. Subject to the termination terms as provided below, this Agreement will commence upon the Effective Date and will remain in effect until terminated under this Section 13. In addition, each Order will be in effect as set forth in such Order.
2. Voluntary Termination. Customer may terminate this Agreement for any reason by providing CR8DL notice and closing Customer’s account for all Services for which we provide an account closing option, with any such termination to be effective at the end of the applicable Services subscription period, provided that if there is no active Services subscription then such termination will be effective immediately. CR8DL may terminate this Agreement or any Order for any reason upon thirty (30) days advance written notice.
3. Termination for Cause. Either party may terminate this Agreement for cause upon thirty (30) days advance written notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the thirty (30) day termination notice period.
4. Immediate Termination for Cause. CR8DL may terminate this Agreement immediately upon notice to Customer if: (i) Customer or any End User accounts are suspended pursuant to this Agreement; (ii) by continuing to provide Services to you, CR8DL could experience a substantial economic or technical burden or material security risk, or (iii) required by law.
5. Effect of Termination. Upon any termination of this Agreement, CR8DL will make all Customer Content available to Customer for electronic retrieval for a period of fifteen (15) days, but thereafter CR8DL may, but is not obligated to, delete stored Customer Content. All sections of this Agreement, which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, ownership of Services and limitations of liability. Customer will be responsible for proportional Fees up to and including the last day on which the Services are provided and, except for termination by CR8DL pursuant to Section 13.c. or 13.d., any advanced Fee will be returned, prorated through last day of Services, to Customer within thirty (30) days after termination.
Disclaimers.
1. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITH NO WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, CR8DL AND ITS AFFILIATES AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES OF ANY KIND REGARDING THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, TITLE OR NON-INFRINGEMENT, OR THAT CUSTOMER CONTENT OR THIRD-PARTY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. YOU ARE RESPONSIBLE FOR UNDERSTANDING THE LEGAL AND REGULATORY REQUIREMENTS APPLICABLE TO YOU AND YOUR USE OF THE SERVICES, AND FOR SELECTING AND USING THOSE SERVICES IN A MANNER THAT COMPLIES WITH YOUR OBLIGATIONS UNDER THE AGREEMENT AND THE APPLICABLE LEGAL AND REGULATORY REQUIREMENTS.
Indemnity
1. Generally. Customer will indemnify, defend, and hold harmless CR8DL, our affiliates and licensors, and each of their respective employees, agents, officers, directors, and representatives, from and against all liabilities, damages, losses and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third-party arising in connection with: (i) Customer Content; (ii) Customer’s or any End User’s use of the Services in violation of this Agreement or applicable law; (iii) the combination of Customer Content with third-party software, applications, content or processes, including any claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by Customer Content, or (iv) a dispute between Customer and any End User.
2. CR8DL will indemnify, defend and hold harmless Customer against any third-party claims alleging that CR8DL’s technology used to provide the Services to Customer infringes or misappropriates that third-party’s intellectual property rights. In no event will CR8DL have any obligations under this section arising from: (i) designs, guidelines, configurations, plans or specifications provided by Customer, (ii) use of the Services not in accordance with this Agreement, (iii) any modification of the Services by or on behalf of Customer or combination, operation or use of the Services with products, services or materials not furnished by CR8DL or (iv) any content, information, or data provided by Customer, End Users, or other third- parties.
3. Process. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party’s request for assistance in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (II) the other party may join in the defense with its own counsel at its own expense.
Limitations of Liability
1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CR8DL AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF ANY OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER CR8DL NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (I) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (A) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (B) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR (C) WITHOUT LIMITING ANY OBLIGATIONS UNDER ANY SERVICE LEVEL AGREEMENTS, IF ANY, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (III) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (IV) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY CUSTOMER CONTENT OR OTHER DATA.
2. IN ANY CASE, CR8DL AND ITS AFFILIATES’ AND LICENSORS’ MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT CUSTOMER ACTUALLY PAID CR8DL UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE.
Agreement Modifications
1. CR8DL may revise this Agreement (including any Policies) from time to time and the most current version will be made available on CR8DL’s website. If deemed by CR8DL, in CR8DL’s sole discretion, that a modification is materially adverse to Customer, we will notify Customer. The modified terms will become effective upon posting to the CR8DL website or, if we notify you by email, as stated in the email message, except that if you have prepaid for a subscription to the Services, then such modifications will become effective upon the date of the next renewal of such subscription. By continuing to use the Services after the effective date of any modifications to this Agreement, you acknowledge and agree to be bound by the modified terms. We last modified this Agreement on the date listed at the beginning of this Agreement.
Confidential Information
1. Scope of Protection. The Confidential Information of either party may be used by the other party solely to exercise its rights and perform its obligations under this Agreement or as otherwise permitted herein. Each party will only disclose Confidential Information of the other party to the employees, service providers or contractors (collectively, “Representatives”) of the recipient party who need to know the Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than each party’s duty under this Agreement. Each party shall be responsible for the breach of this Section 18 by its respective Representatives. Both CR8DL and the Customer will diligently protect the confidentiality of the other party’s Confidential Information.
2. Exceptions. The above protections of Confidential Information will not apply if the recipient can show by written records that the information: (i) was already rightfully known to the recipient at the time of disclosure; (ii) was disclosed to the recipient by a third-party who had the right to make the disclosure without any confidentiality restrictions; (iii) is, or, through no fault of the recipient, has become generally available to the public; or (iv) was independently developed by the recipient without access to, or use of, discloser’s Confidential Information. The recipient may disclose Confidential Information to the extent the disclosure is required by law or regulation or the listing rules of any stock exchange. The recipient will provide the other party notice, when practicable.
Miscellaneous
1. No Third-Party Beneficiaries. Unless expressly stated herein, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement. Without limiting this section, a Customer’s End Users are not third- party beneficiaries to Customer’s rights under this Agreement.
2. Force Majeure. We will not be liable for any failure or delay to perform under this Agreement due to any cause beyond our reasonable control, including without limitation acts of God, acts of terrorism or war, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government or a local, national or international public health emergency.
3. Independent Contractors. The relationship between the parties is that of independent contractors and nothing in this Agreement shall be construed as creating an employment relationship, agency, partnership, or joint venture. Customer does not have any authority of any kind to bind CR8DL in any respect whatsoever.
4. Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
5. Entirety. This Agreement, and the documents referenced herein, all of which are incorporated herein by reference, constitute the complete and exclusive statement of the agreement between Customer and CR8DL and supersede all prior or contemporaneous proposals, oral or written, and all other communications between Customer and CR8DL related to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control, if applicable, in the following order: the Order (if applicable), the main body of this Agreement, and the Policies. Notwithstanding the foregoing, the indemnification and limitation of liability provisions of the main body of this Agreement will control in the event of any conflict with the Order, unless the Order expressly states that a provision in the Order overrides one of those provisions and specifies which provision it overrides.
6. Import and Export Compliance. Customer shall comply with all applicable export control and economic sanctions laws and regulations (collectively, “Trade Control Laws”) applicable to the Customer in the use of the Services. CR8DL shall not be required under this Agreement to be directly or indirectly involved in the provision of software, services and/or technical data that may be prohibited by applicable Trade Control Laws. Customer represents and covenants that it (i) is not identified on, or owned or controlled by or acting on behalf of any individuals or entities identified on, applicable government restricted party lists (“Restricted Parties”) or using the goods or services for any restricted end uses; (ii) is not located in, organized under the laws of or ordinarily resident in Cuba, Iran, North Korea, Sudan, Syria or Crimea (region of Ukraine/Russia) or any other country that may be placed under economic sanctions programs by the U.S. government (“Restricted Countries”); or (iii) will not directly or indirectly export, re-export or otherwise transfer any goods, technology or services covered by the Agreement to or for use in or from Restricted Countries or Restricted Parties.
7. US Government Regulations. For purposes of sales of access or subscriptions to government entities in the U.S., as defined in FAR section 2.101, the Services and related documentation are deemed to be “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
8. Assignment. Customer may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without CR8DL’s prior written consent. CR8DL may not assign this Agreement without providing notice to Customer, except that CR8DL may assign this Agreement or any rights or obligations under this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice.
9. No Waiver. CR8DL will not be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation, other than by CR8DL’s explicit written waiver. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default.
10. Severability. In the event any provision of this Agreement is held by a court of competent jurisdiction to be invalid, then to the greatest extent possible, the remaining provisions of this Agreement shall remain in full force and effect.
11. Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the state of Arizona without regard to conflicts of laws principals.
12. Dispute Resolution. The parties agree to exercise reasonable efforts to resolve any dispute in good faith. If a dispute is not resolved within thirty (30) days of notice, either party may resort to a formal proceeding.
13. Notices. Notice may be sent to the Customer to the email address associated with Customer’s account and to CR8DL at legal@CR8DL.ai or as otherwise provided in writing by either party to the other. Unless otherwise provided in this Agreement, all notices under this Agreement must be in writing and will be deemed to have been duly given when the day after it is sent by email.
14. Headings. The paragraph and section headings contained in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.
15. Signatures. Customer acknowledges and agrees that by creating a customer account and or accessing any Services by any means, it will act as the Customer’s electronic signature to this Agreement and will constitute Customer’s acceptance of and agreement with all of the terms and conditions set forth herein.
Definitions
1. “Account Information” means information provided by you in connection with your customer account setup and/or administration, including without limitation, contact information, usernames, email addresses and billing information.
2. “Confidential Information” means all non-public information disclosed by one party to the other, whether before or after the Effective Date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all Customer Content and information required for account activation; (ii) for CR8DL, unpublished prices and other terms of service, audit and security reports, product development plans, solution diagrams, data center designs and other proprietary information or technology; and (iii) for both parties, information that is marked or otherwise designated as confidential or proprietary.
3. “Customer Content” means any and all applications, software, files, information, data or other content transferred via, stored by, download/uploaded to or published or displayed directly or indirectly by the use of the Services by Customer and End Users and any computational results that Customer or any End User derives from the foregoing through use of the Services. Customer Content does not include Account Information.
4. “End User” means any individual, employee, contractor or agent that: (i) uses or accesses Customer Content under your account; or (ii) otherwise accesses or uses the Services under your account.
5. “Fees” means the service charge(s) established by the CR8DL for the Services.
6. “Intellectual Property Rights” means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, and moral rights, whether registered or unregistered.
7. “Order” means an ordering document or online order for access to the Services, which includes pricing therefor, and that references this Agreement.
8. “Policies” means our Acceptable Use Policy, Privacy Policy, Cookie Policy, Disclaimer, Trademark Use Guidelines and any other policy or terms referenced or incorporated into this Agreement that are then-currently published on the CR8DL website or otherwise made available to you by CR8DL.
9. “Security Emergency” means a credible threat to the security of the Services from (i) use of the Services that do or could disrupt the Services, other Customers’ use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third- party access to the Services.
10. “Services” means each of the cloud and web-based services or computer resources provided by CR8DL. These Services are accessed through authorized account(s) using login credentials through www.CR8DL.ai. Services do not include Third-Party Content. Services are more fully described in the CR8DL Service Catalog set forth on the CR8DL website.
11. “Taxes” means any duties, customs fees, or taxes (other than CR8DL’s income tax) associated with the purchase of the Services, including without limitation VAT, excise taxes, sales and transactions taxes, and any related penalties or interest.
12. “Third-Party Content” means any software (including machine images), product, service, data, text, audio, video, or images made available to you in any manner by any third-party or that you install or use in conjunction with your Customer Content and/or use of the Services.
13. “Third-Party Request” means any request from a third-party relating to Customer Content or Customer’s use of the Services in conjunction with third-party software, product(s) or service(s), including without limitation requests for records relating to Customer’s or an End User’s use of the Services, search warrants, court orders, or subpoenas.
14. “Trademark Use Guidelines” means any guidelines published and located at “www.CR8DL.ai,” as may be updated by us from time to time.