ACKNOWLEDGMENT OF TERMS OF SERVICE:
By accessing or using a CPM Service you agree to be bound by these Terms. By registering for, accessing or using any CPM Service, or otherwise accepting these Terms, or ‘clicking’ accept (if applicable), you acknowledge that you have read, understood and agree to be bound by these Terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MUST NOT REGISTER FOR, ACCESS OR USE ANY CPM SERVICES, OR ALLOW ANYONE ELSE TO DO SO. If you register for or access or use a CPM Service on behalf of an organization (such as an organization identified as part of the registration process or on an invoice or subscription order): (a) you are agreeing to the Terms for and on behalf of that organization and promising to us that you have the authority to bind that organization to the Terms; and (b) other than in this sentence, which applies to you individually, the references to “you”, “your” will mean that organization that you represent.
Notwithstanding anything to the contrary, we reserve the right to update and revise the Terms at any time. We will make sure that the “Last Updated” date at the top of this page is changed so you can tell when the Terms were last changed. If we choose to notify you about the modification of the Terms, we may do so via our preferred form of notice which may include by email, on our website, or within a third-party application. Notwithstanding whether we provide any notice of modifications to the Terms, by continuing to access and/or use any CPM Service after the Terms are modified, you are agreeing to the modifications to the Terms. If you do not agree with a modification to the Terms, you must cease accessing and using the CPM Service.
If you: (a) have any comments or questions regarding the Terms, (b) wish to report any violation of the Terms, or (c) encounter content or activity you find inappropriate or otherwise believe to be a violation of the Terms, please contact us at http://www.cpmarine.pro/assistance1 DEFINITIONS
The use of “for example”, “includes” and “including” are not limiting and “all” includes “any” and “any” includes “all”. Capitalized terms used but not defined elsewhere in the Terms will have the following definitions:
” means any party directly or indirectly controlling, controlled by or under common control with CPM.
” means an express written amendment to these Terms signed by CPM’s authorized signatory in which additional and/or different terms and conditions may apply to you.
” mean the following users that you authorize to access or use the CPM Service on your behalf: (a) your employees, agents, or independent contractors; or (b) others such as clients, students, or subscribers where the CPM Service is provided to your end user customers together with your other services and not on a standalone basis; or (c) other users expressly authorized to use and access the CPM Service by CPM in an Amendment.
1.4 “Branding Elements
” means all trademarks, service marks, trade names, domain names, slogans, logos, screenshots (including screenshots of the CleverPoint Device and CleverPoint Mask), sounds, and other indicia of origin that appear on or in connection with any aspect of the CPM Services including: “CPM”, “CLEVERPOINT”, “CLEVERPOINT MARINE”, “REALITY OF YOUR MIND”, “PHYSIOLOGY MATTERS”, “PHYSIOLOGICAL DIVERSITY”, “CLEVERPOINT EVA”, “PSYPHY EVA”, “CPMARINE”, “MENTAL FITNESS”, “PHYSIOLOGICAL FITNESS”, “IMMERSIVE BIOFEEDBACK PREVENTION PLATFORM”, “PHYSIOLOGY-DRIVEN”, and all related branding elements, the status indicator of the Sensor Device (or similar status indicator), use of “STRESS”, “CONCENTRATION”, “RESONANS”, and “INHALE”, “EXHALE” in relation to states of physiological and/or brain signal arousal and/or recovery.
1.5 “Branding Guidelines
” means our branding guidelines and conditions for using our trademarks, trade names, service marks, and logos. We may modify the Branding Guidelines at any time. The Branding Guidelines may be made available to you through the CPM Service or our websites, or otherwise can be requested at http://www.cpmarine.pro/assistance
1.6 “Intellectual Property Rights
” includes all intellectual property and proprietary rights of any nature or kind, whether protected, created, or arising under any applicable law, and all worldwide common law, statutory, and other rights in, arising out of, or associated therewith including trademarks, copyrights, patents, domain names, and trade secrets.
1.7 “CPM Materials
” means: (a) all materials that were created by or on behalf of CPM including the layout and flow of the CPM Service; and (b) any other materials created under the scope of the Terms. CPM Materials includes: (i) all originally created or licensed audio or visual assets, computer software, code, routines, tools, application engines, algorithms, inventions and other technology contained in or used by us in the development of any CPM Service; (ii) the technical documentation, if any, of or concerning any CPM Service; (iii) any analytics data (other than User Content) generated from the use of any CPM Service; and (iv) any training or other materials made available pursuant to the Terms.
1.8 “CPM Service(s)
” means CPM’s services, including additional subscription services through the use of CleverPoint devices and associated hardware equipment and software applications, CleverPoint software, CleverPoint EVA application, CleverPoint BT application and our website located at www.cpmarine.pro. The CPM Services may be varied from time to time by CPM. Subject to the licenses granted to you pursuant to these Terms, the CPM Services include the documentation and materials and access to or use of CPM’s Websites and Branding Elements.
1.10 “CleverPoint Device
” means any device or system of devices designed and/or developed by or on behalf of CPM, in whole or in part, which includes sensors that monitor users’ electrical activity of the brain, electrical activity of the cardiovascular system, muscle activity, heart rate, heart rate variability, motion, respiration rate, eye movement, and other signals. CleverPoint Devices may include sensing devices such as headbands and/or Virtual Reality (VR) headset facial masks.
” means our proprietary software including any updates and upgrades to such software.
1.12 “Third Party Application(s)
” means any software, application, in-application purchases, technology, standard or specification, product, service or website developed by or on behalf of a third party for installation and/or use in conjunction with any CPM Services.
1.13 “User Content
” means anything generated by you, anyone authorized by you, your clients or on your behalf through or as a result of the use of any CPM Service including written text, software, music, graphics, photographs, images, sounds, videos, messages, data, data feeds, metadata and personally identifiable information.
” means any domain or website provided by CPM used for the CPM Services.2. RIGHT TO USE CPM SERVICES
2.1 Software License Grant. In compliance with these Terms, and subject to your payment of all applicable fees (including applicable fees for all of your Authorized Users), we grant you a limited personal, non-transferable, non-sublicensable, and non-exclusive right during the Term for you and your Authorized Users to access and use the applicable CPM Service(s).
2.2 Scope of Use. You may access and use, or authorize your Authorized Users to access and use, the CPM Service only for your and your Authorized Users’ personal and internal business and research purposes. Except to the extent that you are authorized by CPM in an Amendment (in which case additional and/or different terms and conditions may apply to you), you are not permitted to provide or resell the CPM Service to anyone on a standalone basis. You agree to ensure that Authorized Users comply with these Terms and that all applicable fees for the CPM Service are paid to CPM in relation to the use of the CPM Service by all Authorized Users. We may, by Amendment, change the scope of your use of the CPM Services. If you wish to develop any applications for use with CleverPoint Device(s), or any other devices that use our Intellectual Property Rights, you may not do so under these Terms, and you must contact us at http://www.cpmarine.pro/assistance and enter into an appropriate agreement with us. You agree to use the CPM Service only for purposes as permitted by these Terms and in compliance with any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. We reserve the right to modify or impose any limitations on the use of the CPM Service at any time, with or without notice to you. Notwithstanding anything to the contrary, unless authorized by an Amendment, the CPM Service may not be accessed by a direct competitor of CPM.
2.3 Software License. Our Software is subject to the applicable Software License Agreement in effect from time to time as located at www.cpmarine.pro/legal (or as may otherwise be made available to you through the CPM Service or the Software from time to time).
2.4 Informational Purposes Only. You acknowledge that you are aware that: (a) content generated or found through the CPM Service and the CleverPoint Devices is for informational purposes only and is not intended to replace the relationship between a user and the researcher or the user’s physician or other healthcare professionals; (b) the Sensor Device is not a medical device and the information generated by the CleverPoint Device is not medical information; (c) the CleverPoint Device and associated applications are not designed to treat or diagnose any disease or medical condition; and (d) we are not a licensed medical or healthcare care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind. As of the Last Updated Date, our products and services are not General Data Protection Regulation (GDPR) certified.3. OBLIGATIONS
3.1 Service Level Terms. Subject to the Terms, we will use commercially reasonable efforts to provide you access to the CPM Service. We do not make any commitment that any CPM Service will be available at all times and you agree that you are not eligible for any refunds, credits, or other compensation for any downtime.
3.2 Updates. From time to time, we may (but are under no obligation to) provide upgrades, patches, enhancements, or fixes for the CPM Services to our users generally without additional charge (“Updates”), and such Updates will become part of the CPM Service and subject to these Terms. We may cease supporting old versions or releases of CPM Services at any time at our sole discretion.4. USE OF THE SERVICE
4.2 Unlawful and Restricted Uses. You agree to use CPM Service only for lawful purposes and that you are responsible for your use of the CPM Service and your communications and User Content (if applicable). You may not and will not permit or facilitate any other person to:
- except as expressly permitted under Section 2.1 (Software License Grant), reproduce, copy, duplicate, license, rent, lease, loan, pledge, trade, sublicense, sell, resell, transfer, assign, convey, distribute, export or otherwise commercially exploit or make available to any third party any CPM Service or otherwise grant or transfer rights to any CPM Service, or any rights granted herein, in any form or by any media (electronic, mechanical, photocopy, recording, or otherwise);
- directly or indirectly: (a) reverse engineer, decompile, disassemble, debug, hook, spoof, pirate or otherwise attempt to discover or reconstruct the source code, object code or underlying structure, ideas, know-how, techniques, or algorithms relevant to any CPM Service or CleverPoint Devices; (b) modify, adapt, alter, edit, correct, publish, enhance, translate or create derivative works based on any CPM Service (except to the extent expressly authorized in an Amendment or expressly authorized within the Service); or (c) alter, remove, cover or otherwise obscure any copyright notices, trademark notices, other proprietary notices or labels, or any other intellectual property rights attaching to, displayed on or within any CPM Service, or any associated software, documentation or other materials or on or within the CleverPoint Device;
- access the CPM Service in order to: (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of any CPM Service, or (c) copy any ideas, features, functions or graphics of any CPM Service;
- interfere with or disrupt the integrity or performance of any CPM Service;
- attempt to gain unauthorized access to any CPM Service or its related systems or networks;
- use any CPM Service in any manner that interferes with its normal operation or with any other user’s use of the CPM Service or our other products and services;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
- send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material including material harmful to children or in violation of privacy rights;
- send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs;
- interfere with or disrupt the integrity or performance of any CPM Service or the content or the data contained therein;
- attempt to gain unauthorized access to any CPM Service or its related systems or networks;
- access, tamper with, or use non-public areas of the Websites, our computer systems, or the technical delivery systems of its providers;
- access or search or attempt to access or search the Websites by any means other than through our currently available, published interfaces that are provided by us unless you have been specifically allowed to do so in an Amendment;
- forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use any CPM Service, to send altered, deceptive, or false source-identifying information;
- interfere with, or disrupt, the access of any user, host, or network including sending a virus, overloading, flooding, spamming, mail-bombing any CPM Service, or otherwise creating an undue burden on any CPM Service; or
- use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Websites.
4.4 Local Law. CPM makes no representation that materials contained, described, or offered via any CPM Service are accurate, appropriate, or available for use in all jurisdictions, or that these Terms comply with the laws of any particular country. Users of the CPM Service use the CPM Service on their own initiative and are responsible for compliance with all applicable laws. Notwithstanding anything to the contrary, you agree that you and your users will not access the CPM Service from any territory where it is illegal and that you and your users, and not CPM, are responsible for compliance with applicable law.5. COMPENSATION
5.1 Compensation. You will pay the amounts specified in each invoice or subscription. You must make payments in advance unless the applicable invoice or subscription contains payment terms that are different. Unless otherwise specified in the invoice or subscription, unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination and/or cancellation of your access or use of the CPM Service. You will be responsible for all taxes associated with the CPM Service other than taxes based on our net income. Your access to and/or use of the CPM Service may be terminated or canceled without notice for any unpaid and due amount. We reserve the right to impose a reconnection fee in the event you are suspended and thereafter request access to the CPM Service. Unless otherwise specified in the invoice or subscription, all amounts under the Terms are payable in euros (EUR). Any amounts paid by you are non-refundable.6. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership. As between you and us, we will at all times be and remain, the sole and exclusive owner of the CPM Materials and all Intellectual Property Rights pertaining thereto. Nothing in the Terms will be deemed to grant or assign to you any proprietary or ownership interest or Intellectual Property Rights in or to any CPM Service, CPM Materials or any derivatives of such, other than the license rights specifically set forth herein. Your sole rights thereto will be only those rights granted by CPM under these Terms.
6.2 Marks and other Intellectual Property. All Branding Elements are either our property or the property of our Affiliates or licensors. We retain the right to rescind and terminate and/or cancel the limited license granted hereunder at any point, for any reason. All rights not expressly granted herein by us to you are fully reserved by us, our Affiliates and licensors. Some product names, logos, brands, and other trademarks featured or referred to within a CPM Service may not be owned by CPM, and are the property of their respective trademark holders. These trademark holders are not affiliated with, nor do they sponsor or endorse, CPM, the CPM Service and/or CPM’s products and services. Further, you are granted no right or license in any of the aforesaid Branding Elements, and further agree that you will not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) contained within the CPM Services. Each time you wish to use any of our Branding Elements, you must ensure that you comply with the then-current version of the Branding Guidelines. As between you and us, we will at all times be and remain, the sole and exclusive owner of the Branding Elements and all our Intellectual Property Rights. Nothing in the Terms will be deemed to grant or assign to you any proprietary or ownership interest or Intellectual Property Rights in or to Branding Elements or any derivatives of such. You will continually use your best efforts to protect CPM’s trademarks, trade names, patents, copyrights, and other proprietary rights, but will not initiate legal action against third parties for infringement thereof. You will promptly notify CPM of any infringement or improper or unauthorized use of which you have actual knowledge.7. CONFIDENTIALITY
7.1 Confidentiality. In connection with the products and services provided to you under these Terms, you may, from time to time, be exposed to and may be furnished with certain information, material, or data relating to CPM’s products and services that are either specifically identified as confidential prior to or at the time of disclosure or would reasonably be considered confidential in the industries in which CPM operates. During the term of the Terms and for a period of five (5) years thereafter, you will keep confidential and not reveal or disclose to any third party any such proprietary or confidential information, material, or data of CPM. You will be directly liable for the acts or omissions of your employees, agents, contractors, and other authorized parties with respect to such confidentiality obligations. You agree to protect the Confidential Information with the same standard of care and procedures which you use to protect your own trade secrets, proprietary information, and other confidential information and, in any case, not less than a reasonable standard of care. The provisions of this paragraph will not apply to information that is or becomes publicly available through no fault of your own or your representatives or information that is required to be disclosed pursuant to a court order or any applicable laws, rules or regulations. CPM’s Confidential Information includes: (a) any test results relating to the CPM Services; (b) CPM software’s source code; (c) technical specifications related to the CPM Services; (d) any non-publicly available pricing and CPM Materials; and (e) except for User Content, all technology, know-how, algorithms, testing procedures, software, structure, interfaces, specifications, reports, analysis and other technical information learned, accessed or derived by you pursuant to these Terms or pursuant to your use of or access to the CPM Service and/or CleverPoint Devices.
7.2 Publicity; Credit. Except where you are merely evaluating CPM’s software or products, CPM will have the ability to issue a press release in connection with the Terms and use your logo and/or freely expressed testimonials on the CPM website and other marketing materials.
7.4 User Content. All User Content is the sole responsibility of the person who originated such content. You acknowledge that all User Content you transmit (including any User Content you export from the CPM Service) or access using the CPM Service is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You remain solely responsible for all User Content that is transmitted (including any User Content you export from the CPM Service) in connection with the CPM Service, and you warrant that you possess all rights necessary to provide and share such User Content. CPM reserves the right to remove from any CPM Service any User Content that CPM, in its sole discretion, believes to be objectionable. You understand that, by providing User Content in connection with the CPM Service, you hereby grant CPM a non-exclusive, irrevocable, worldwide, royalty-free license to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use User Content in any media now existing or developed in the future only so far as required to deliver CPM services and products. You waive any rights of publicity, moral, or other similar such rights with respect to User Content while used in accordance with the preceding sentence. Further, you represent and warrant that: (a) you have all the rights necessary to grant CPM such license, and (b) you are responsible for User Content that may be lost or unrecoverable through your use of the CPM Service. We recommend that you create and maintain regular backups of all User Content and associated data. We reserve the right to place service limits (including as to the volume of data and time) on the User Content and associated data stored or retained by or on behalf of CPM.8. WARRANTIES; LIMITATION OF LIABILITY; INDEMNITY
8.1 Warranty and Disclaimer. YOUR USE OF THE CPM SERVICE IS AT YOUR SOLE RISK. THE CPM SERVICE AND THE ASSOCIATED SOFTWARE, MATERIALS, AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE, OUR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND OTHER REPRESENTATIVES (COLLECTIVELY, “CPM PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CPM PARTIES MAKE NO WARRANTY THAT: (I) ANY CPM SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE CPM SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE CPM SERVICE WILL BE ACCURATE OR RELIABLE OR APPROPRIATE OR APPLICABLE TO YOUR USE; (IV) THE QUALITY OF ANY AND ALL PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL INCLUDING ANY SOFTWARE, MERCHANDISE, GOODS, AND SERVICES, OBTAINED OR PURCHASED BY YOU DIRECTLY OR INDIRECTLY THROUGH ANY CPM SERVICE, WILL MEET YOUR EXPECTATIONS OR NEEDS; (V) ANY DATA STORED OR RETAINED BY CPM WILL BE FREE FROM LOSS OR CORRUPTION OR AVAILABLE INDEFINITELY; OR (VI) ANY ERRORS WILL BE CORRECTED. CPM DISCLAIMS ANY LIABILITY FOR ANY CONSEQUENCES DUE TO THE USE, MISUSE, OR INTERPRETATION OF INFORMATION CONTAINED, OR NOT CONTAINED, IN ANY CPM SERVICE. CLEVERPOINT DEVICES AND CPM SERVICES MAY NOT FUNCTION AS INTENDED OR EXPECTED. IF YOU CHOOSE TO USE THE CPM SERVICE AND CLEVERPOINT DEVICES, YOU ASSUME ALL RISK OF HARM OR LOSS ASSOCIATED WITH YOUR USE THEREOF.
8.2 Exclusion of Damages. CPM PARTIES WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO ANY DATA OR THE USE OF OR INABILITY TO USE ANY CPM SERVICE OR ANY CONTENT INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION OR ANY ‘BUG’ OF THE CPM SERVICE OR THE WEBSITES; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF TRANSMISSIONS OR DATA, OR FOR ANY LOSS OF DATA OR THE PROVISION OF INCORRECT DATA; (IV) FOR ANY LOSS OF INCOME, BUSINESS, PROFIT, ANTICIPATED REVENUE OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS (EVEN IF CPM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND REGARDLESS OF WHETHER SUCH LOSS IS DIRECT OR INDIRECT); OR (V) FOR ANY OTHER MATTER RELATING TO ANY CPM SERVICE OR ANY THIRD PARTY (INCLUDING (a) END USERS OF THE CLEVERPOINT DEVICE; AND (b) OUR LICENSORS, SERVICE PROVIDERS AND PAYMENT PROCESSORS). THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES CPM PARTIES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THE INFORMATION AND SERVICES OFFERED ON AND THROUGH THE CPM SERVICE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. NOTHING HEREIN IS INTENDED TO CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY CPM TO ANY THIRD PARTY (INCLUDING END USERS), DIRECTLY OR AS A THIRD-PARTY BENEFICIARY, WITH RESPECT TO ANY OF THE SERVICES PROVIDED HEREUNDER.
8.3 Limitation of Liability. NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF CPM PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE FEES PAID BY YOU DIRECTLY TO CPM FOR LICENSES GRANTED BY CPM HEREIN SOLELY AND DIRECTLY TO YOU PURSUANT TO THESE TERMS IN THE SIX MONTHS IMMEDIATELY PRIOR TO SUCH CAUSE OR CLAIM ARISING. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, TO THE EXTENT PROHIBITED BY APPLICABLE LAW, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. CPM PARTIES WILL NOT BE LIABLE FOR: (i) CLAIMS ASSOCIATED WITH MODIFICATIONS OR ADAPTATIONS PERFORMED BY ANYONE OTHER THAN CPM; OR (ii) USE OF THE CPM SERVICE WITH PRODUCTS OR SERVICES THAT ARE NOT PROPRIETARY TO CPM (EVEN IF SUCH PRODUCTS OR SERVICES DISPLAY CPM'S BRANDING ELEMENTS).
8.4 Indemnification. You (on behalf of the organization you represent (if applicable) and users of the CPM Service and the Sensor Devices) agree to indemnify, defend and hold harmless CPM Parties against all judgments, awards, settlements, liability, penalties, fines, claims, demands, causes of action, losses, expenses, damages and costs (including any court costs and reasonable attorneys’ fees), resulting or arising from or relating to: (a) your access to or use of any CPM Service, (b) any activity related to your account by you or any other person permitted by you, (c) your breach of the Terms, (d) your infringement or violation of any rights of another, or (e) your negligence or willful misconduct. We reserve the right to assume, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.
8.5 Third-Party Indemnification. You agree to indemnify, defend and hold harmless CPM Parties against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from any such claims made against the CPM Parties by third parties.9. TERMINATION AND/OR CANCELLATION
9.1 Term. Subject to earlier termination and/or cancellation in accordance with these Terms, these Terms will continue for the initial term as specified in the application form of invoice or subscription order, if any, and if no term is specified, the Terms will have an initial term of 12 months commencing on the date you are first provided access to the CPM Service pursuant to the Terms (“Initial Term”) and, unless otherwise specified in the applicable invoice or subscription, these Terms will be automatically renewed for additional periods of the same duration as the Initial Term, on the same terms and conditions as the Terms, except for any changes to fees and any modifications CPM makes to these Terms unless either Party terminates and/or cancels the Terms prior to the end of the then-current term. The Initial Term and any subsequent renewals will collectively be referred to as the “Term”. For clarity, if you are participating in a trial immediately preceding your paid subscription, the first day of your Initial Term will start on the earlier of a) the first day following the end of the Trial Period; and b) the first day of your paid subscription.
9.2 Termination and/or Cancellation. These Terms will terminate in each of the following events:
(a) if the other party materially defaults in the performance or observance of any of its obligations under these Terms and does not remedy the default within 15 days after receiving notice;
(b) at the option of either party, if the other party becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or if a receiver or trustee in bankruptcy is appointed for the other party, or if any proceeding in bankruptcy, receivership, or liquidation is instituted against the other party and is not dismissed within 30 days following commencement thereof; or
(c) at the option of either party, upon 30 days written notice, delivered to the other Party in accordance with Section 10.1 (Notices), provided that no amounts previously paid are refundable.
9.3 Effect of Expiration or Termination and/or Cancellation. Upon expiration or earlier termination and/or cancellation of the Terms, unless otherwise specified in the Terms, all rights granted to each Party herein shall forthwith revert to the granting Party, including the following consequences: (a) any compensation accrued but not paid will become immediately due and payable; and (b) your right to access and use the CPM Service will immediately terminate and/or cancel, you will immediately cease all use of the CPM Service, and you will destroy or return to us and make no further use of any confidential information or proprietary materials, or other items (and all copies thereof) belonging to us including any Software. All sections of the Terms which by their nature should survive termination and/or cancellation will survive termination and/or cancellation including accrued rights to payment, confidentiality obligations, governing law, disclaimers, and limitations of liability. Further, you will have no right to receive any refund of any prepaid amounts if you terminate and/or cancel during the applicable Term or if we terminate and/or cancel for a cause. If the Sensor Device and the CPM Service were acquired as a “bundle”, upon termination or expiration of these Terms, notwithstanding CPM’s Limited Warranty for the CleverPoint Device, CPM may be relieved of its obligations to repair or replace the CleverPoint Device.
9.4 Payments Due before Termination and/or Cancellation. Payments due before the termination and/or cancellation of the Terms will still be payable by you at the time of such termination and/or cancellation. In addition, if you breach any of the Terms including failing to pay any sum that is due, in addition to any other remedies, you will reimburse us for all attorneys’ fees, court, collection, and other costs incurred by us in the enforcement of our rights under these Terms.10. MISCELLANEOUS
10.1 Notices. All notices, requests, demands, approvals, requests for approvals or other communications under the Terms will be in writing. Notice will be sufficiently given for all purposes as follows: (i) upon delivery when personally delivered to the recipient, (ii) upon receipt when mailed by certified mail, return receipt requested if confirmed by return receipt, (iii) upon delivery when delivered by a recognized international overnight courier, (iv) upon receipt when sent by fax with confirmation, provided, however, that it will be deemed delivered the next business day if sent on a non-business day or after 5pm Riga, Latvia time on a business day; and (vi) by email to you if sent by us to any email address provided to us. Notwithstanding anything to the contrary, notice will be sufficiently given to you, if provided by us to you via any email address provided to us or through the CPM Service, or by posting communications on http://www.cpmarine.pro. Addresses for the purpose of giving notice may be set forth on the applicable form of invoice or subscription. Copies of any notice given by you to us must also be delivered to: CleverPoint Marine Ltd. Lencu street 2-8, LV-1010, Riga, Latvia. A party’s address for notice may be changed by that party providing notice to the other party in accordance with this Section 10.1 (Notices).
10.2 Merger/Modification. Each Party acknowledges that it has read the Terms, it understands them, and agrees to be bound by them, and further agrees that this is the complete and exclusive statement of the Terms between the Parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to the Terms. We are not, and will not be, bound by any provision of your purchase order, correspondence, or otherwise. CPM reserves the right to change, amend or modify the terms of these Terms, or the availability of any CPM Service from time to time. In such instance, you may be required to accept and agree to the new terms of these Terms. If you do not agree to any such new terms, you must cease or terminate your use of the CPM Service. Your continued use of the CPM Service after any modification to any of these Terms will be deemed to constitute your acceptance of any such new terms, conditions or modifications.
10.3 Limitations on Use. CPM may impose certain limitations on the use of the CPM Service including allocating certain levels of storage capacity to your account, restricting the number of accounts you may register, restricting the number of clients connected to your account, and/or restricting the amount of data available to you from each client or user. You agree to use the CPM Service only for purposes as permitted by the Terms and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. CPM reserves the right to modify or impose any limitations on the use of the CPM Service at any time, with or without notice to you.
10.4 Governing Law. These Terms shall be governed by and construed in accordance with the laws as specified below (“Governing Law”), excluding conflicts of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods. Each Party irrevocably consents and submits to the exclusive jurisdiction of the courts as specified below and waives any objection thereto on the grounds of venue, forum non-convenience or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. The parties waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. No action arising out of the Terms or your use of the CPM Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).
10.5 Severability. If any provision of the Terms is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted and all other terms and provisions of the Terms will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will negotiate in good faith to modify the Terms so as to effectuate the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
10.6 Feedback. You may (but are not required to) provide feedback, comments and suggestions, including in respect of or concerning any improvements, errors, modifications, corrections, enhancements or derivatives (collectively, “Feedback”) to CPM concerning the CPM Service, CleverPoint Devices or any other intellectual property of CPM. You hereby grant to CPM a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose. CPM may develop technology, modifications, corrections, enhancements, derivatives or extensions (collectively, “Improvements”), and further may also develop branding elements based on such Feedback, and such Improvements and branding elements, and any intellectual property rights therein, as well as any related intellectual property registrations, will be owned exclusively by CPM. You agree to execute such further documents and instruments as may be required to confirm such ownership by CPM. You represent that the Feedback: (i) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; (ii) will not violate any law, statute, ordinance or regulation; (iii) will not be obscene or contain child pornography; and (iv) will not be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate.
10.7 Force Majeure. The CPM Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. CPM is not responsible for any delays, deliver failures, or other damage resulting from such problems. In addition, neither you nor CPM will be liable for any failure or delay in performance of these Terms which are caused by something that is in the control of third parties or circumstances beyond the reasonable control of a party (collectively, “Force Majeure”). Force Majeure events shall include (but not be limited to) acts of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment, software or services (including the internet and telecommunication services); or material or something else required for the performance of obligations under this Agreement. Notwithstanding the forgoing, under no circumstances will a party’s obligation to pay any amount under these Terms be obviated by an event of Force Majeure.
10.8 Miscellaneous. We may assign the Terms in whole or in part. You may not assign the Terms in whole or in part. A waiver by either Party of any terms or conditions of the Terms in any instance will not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach thereof. All remedies, rights, undertakings, obligations and agreements contained in the Terms will be cumulative, and none of them will be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party. The Parties are not employees, agents, partners or joint venturers of each other. Neither Party will have the right to enter into any agreement on behalf of the other. The headings and titles of the Terms are not part of the Terms, but are for convenience only and are not intended to define, limit or construe the contents of the various sections. Notwithstanding any termination, cancellation or expiration of the Terms, the provisions hereof that are intended to continue and survive, will continue and survive, including Sections 5 (Compensation), 6 (Intellectual Property Rights), 7 (Confidentiality), 8 (Warranties; Limitation of Liability; Indemnity), 9 (Termination and/or Cancellation) and 10 (Miscellaneous). Except as otherwise specified in the Terms, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with the Terms and the transactions contemplated in the Terms will be paid by the Party incurring such costs and expenses. The entire understanding between the Parties hereto relating to the subject matter hereof is contained herein and the Parties make no warranties, representations, or undertakings hereto except as expressly provided herein. If these terms are translated into a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.