Ceres Imaging terms of service

MASTER SAAS AGREEMENT

This Master SaaS Agreement sets forth the terms by which Ceres will perform aerial spectral imagery services (“Imagery Services”) and allow Customer to access and use data and reports generated in connection with such Imagery Services (“Output”) through the online portal of Ceres’ proprietary software platform (the “Online Services” and, together with the Imagery Services, the “Subscription Services”). In consideration of the mutual obligations specified in this Agreement, and any fees paid to Ceres hereunder, the Parties agree to the following:

WHEREAS, Ceres is the owner of, or has acquired the rights to, the Subscription Services; and

WHEREAS, Customer and Ceres want to specify the terms and conditions under which Ceres shall grant Customer the right to access the Subscription Services.

NOW THEREFORE, in exchange for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

 

1. Definitions.  In addition to the terms defined in the Subscription Order Form, the following terms shall have the meanings set forth below:

a. “Affiliate” means, with respect to either Party, a corporation or any other entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party.  As used herein, the term “control” means possession of direct or indirect power to order or cause the direction of the management and policies of a corporation or other entity whether (i) through the ownership of more than fifty percent (50%) of the voting securities of the other entity, or (ii) by contract, Law or otherwise.

b. “Bankruptcy Event” means that (i) Customer becomes insolvent, (ii) voluntary or involuntary proceedings by or against Customer are instituted in bankruptcy or under any insolvency law, (iii) a receiver or custodian is appointed for Customer, (iv) proceedings are instituted by or against Customer for corporate reorganization or the dissolution of Customer, which proceedings, if involuntary, shall not have been dismissed within thirty (30) days after the date of filing, (v) Customer makes an assignment for the benefit of creditors, or (vi) substantially all of the assets of Customer are seized or attached and not released within thirty (30) days thereafter.

c. “Claim” means any actual or threatened disputes, claims, actions, lawsuits or proceedings which arise out of or relate to this Agreement.

d. “Ceres Core Technology” means: (a) the Subscription Services, Operations Data, Outputs, Documentation, and technology and methodologies (including products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects, and documentation) created by or for, or licensed to, Ceres; and (b) updates, upgrades, improvements, configurations, extensions, and derivative works of the foregoing and related technical or end user documentation or manuals.

e. “Customer Data” means all data that is uploaded, inputted, imported, or stored by Customer or its End Users (as defined below) in connection with access to the Subscription Services.

f. “Confidential Information” means: (a) Ceres Core Technology (which is Confidential Information of Ceres); (b) Customer Data (which is Confidential Information of Customer); (c) any information of a party that is disclosed in writing or orally and is designated as Confidential or Proprietary at time of disclosure (and, for oral disclosures, summarized in writing within 30 days of initial disclosure and delivered in written summary form to the receiving party), or that, due to the nature of the information or circumstances of disclosure, receiving party would understand it to be disclosing party’s confidential information; and (d) the specific terms of this Agreement, any Subscription Services Order Form, and any amendment or attachment to any of these, between the parties (which will be deemed Confidential Information of both parties). Confidential Information excludes any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by receiving party; (ii) was already rightfully in receiving party’s possession, without restriction on use or disclosure, when receiving party received it under this Agreement; (iii) is independently developed by receiving party without use of disclosing party’s Confidential Information; or (iv) was or is rightfully obtained by receiving party, without restriction on use or disclosure, from a third party not under a duty of confidentiality to disclosing party.

g. “Documentation” means the then-current Ceres product documentation relating to the operation and use of the Subscription Services published by Ceres.

h. “End Users” means any of Customer’s employees that Customer permits to access the Subscription Services.

i. “Government Authority” means a legislature, executive, administrative or regulatory entity, judicial body, or other public agency or authority of any country, state, territory, or international governmental entity (e.g., the European Union), or of any political subdivision of a country, state, territory, or international governmental entity, or a person or entity acting under a grant of authority from or under contract with such public agency or authority.

j. “Intellectual Property Rights” means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.

k. “Law(s)” means any applicable constitution, treaty, statute, regulation, order, directive, law, administrative guidance, judgment, decision, or agreement, whether with, of, or by any legislative, administrative, judicial, or other Government Authority, as well as all generally applicable industry or self-regulatory standards.

l. “Losses” means all damages, losses, liabilities, costs, fees and expenses including reasonable attorneys’ fees which arise out of or relate to this Agreement or a Subscription Services Order Form.

m. “Operations Data” means the data that is gathered during flight and any other information that is related to the operation of the Imagery Services, including but not limited to raw sensor data, flight and application logs, diagnostic information, performance information, and software application usage information.

n. "Subscription Services Order Form" means a document identifying the Subscription Services that Customer has the right to use according to the terms of this Agreement.

o. “Subscription Term” means the period of authorized access to the Subscription Services, as set forth in a Subscription Services Order Form.

p. “Territory” means the United States

q. “Third Party” means persons, corporations and entities other than Ceres, Customer or any of their respective Affiliates.

 

2. Grant of Rights.

a. Subscription.  Subject to the terms of this Agreement and provided that an applicable Subscription Services Order Form is in effect, Ceres authorizes Customer’s End Users to access the Subscription Services, Operations Data, Outputs and Documentation during the Subscription Term, solely: (i) for Customer's internal business purposes, (ii) in the Territory and (iii) in accordance with the Documentation and the applicable Subscription Services Order Form.  Customer will not access the Subscription Services, Operations Data, Outputs and Documentation in a manner that exceeds Customer's authorized access rights as set forth in this Agreement and the applicable Subscription Services Order Form.

b. Accounts. To access the Subscription Services, Operations Data, Outputs and Documentation, Customer must register for an account. When Customer registers for an account, Customer will be required to provide certain identifying information and agree to the Ceres Privacy Policy, which is available at http://www.ceresimaging.net/privacy-policy, as updated from time to time, and which is hereby incorporated herein by reference. Customer must ensure that the information Customer provides for registration is accurate, and Customer must keep such information accurate and up-to-date at all times. Customer accepts full responsibility for all activities that occur under Customer's account. If Customer has reason to believe that Customer's account is no longer secure, then Customer must immediately notify Ceres.

c. Restrictions.  With respect to the Ceres Core Technology, Customer will not (and will not assist or permit others to): (a) use the Ceres Core Technology, or any part thereof, other than as expressly authorized in this Agreement; (b) use the Ceres Core Technology for any illegal purpose or in violation of any local, state, national, or international law; (c) interfere with security-related features of the Ceres Core Technology, including by disabling or circumventing any such features; (d) obtain, attempt to obtain, or redistribute any data, materials or information available through the Ceres Core Technology through any means not intentionally made available by Ceres, including by any form of automated access, scraping, or similar process; (e) use it in excess of contractual usage limits (including as set forth in a Subscription Services Order Form), or in a manner that circumvents usage limits or technological access control measures; (f) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share, or otherwise make any of it available for access by third-parties, except as may otherwise be expressly stated in a Subscription Services Order Form; (g) access it for the purpose of developing or operating products or services for third-parties in competition with the Ceres Core Technology; (h) disassemble, reverse engineer, decompile it or otherwise seek to obtain the source code for it; (i) copy, create derivative works based on, or otherwise modify it, except as may be otherwise expressly stated in this Agreement; (j) remove or modify a copyright or other proprietary rights notice in it; (k) use it to reproduce, distribute, display, transmit, or use material protected by copyright or other Intellectual Property Right (including the rights of publicity) without first obtaining permission of the owner; (l) use it to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation; or (m) access or disable any Ceres or third-party data, software, or network (other than Customer's instance of the Subscription Services under this Agreement).

d. Authorization. Customer is solely responsible for securing the consent of the owner of the property on and over which the Imagery Services will be performed, and/or such other consents as may be necessary for Ceres to perform the Imagery Services. Customer represents and warrants that it has, or will have by the time the Imagery Services are scheduled to be performed, obtained all such consents.

e. No Rights to Reduce.  Customer will not have the right to reduce, decrease, retire or terminate licenses or use of the Subscription Services.

 

3. Compensation.

a. The fees due under this Agreement (“Fees”) shall be set forth in each Subscription Services Order Form. Customer will pay the Fees within thirty (30) days of Customer’s receipt of an invoice for such Fees unless a shorter period is set forth in the applicable Subscription Services Order Form.  All Fees are non-cancellable and non-refundable, except as set forth in an applicable Subscription Services Order Form.  Any acreage commitments made by Customer are non-cancellable and also may not be reduced by Customer.   If the applicable Subscription Services Order Form has an overall annual value of $10,000 or less, payment must be made via credit card. If the Customer does not pay by credit card, the Customer must choose annual or quarterly billing. Customers paying by credit card must choose annual or monthly billing.

b. Any past due amounts owing from Customer will bear interest at the rate of 1.5% per month, or the maximum amount permitted by law, whichever is lower. Customer will reimburse Ceres for all reasonable costs incurred (including reasonable attorney's fees) in collecting past due amounts owed by Customer. Customer will pay any applicable taxes, including, without limitation, sales, use, personal property or similar taxes, tariffs or governmental charges, exclusive of taxes on Ceres's net income and Ceres's corporate franchise taxes.

c. Ceres may remotely review Customer's use of the Subscription Services, and on Ceres's written request, Customer will provide reasonable assistance to verify Customer's compliance with the Agreement. If Ceres determines that Customer has exceeded its permitted access to the Subscription Services, Ceres will notify Customer and within 30 days thereafter Customer shall: (a) disable any unpermitted access and pay for any prior access that was not properly licensed; or (b) purchase additional subscriptions commensurate with Customer's actual use for going forward access and pay for any prior access that was not properly licensed.

 

4. Representations and Warranties.

Each Party represents and warrants to the other that (i) it has all requisite corporate power and authority (or if a Party is not a corporation, such Party represents and warrants that it has sufficient power and authority under its organizational documents or agreements) to enter into this Agreement and to carry out the transactions contemplated hereby, (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate (or, as applicable, other entity) action on the part of such Party, (iii) this Agreement has been duly executed and delivered by such Party and (assuming the due authorization, execution, and delivery hereof by the other Party) is a valid and binding obligation of such Party and enforceable against it in accordance with its provisions, and (iv) its entry into this Agreement does not violate or constitute a breach of any agreement to which it is a party or otherwise bound.

EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 4, TO THE MAXIMUM EXTENT ALLOWED BY LAW, CERES DISCLAIMS ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE). WITHOUT LIMITING THE FOREGOING, CERES SPECIFICALLY DOES NOT WARRANT THAT THE CERES PRODUCTS WILL BE SECURE, MEET THE REQUIREMENTS OF CUSTOMER OR OTHERS OR WILL BE ACCURATE OR OPERATE WITHOUT INTERRUPTION OR ERROR. CUSTOMER ACKNOWLEDGES THAT IN ENTERING THIS AGREEMENT, IT HAS NOT RELIED ON ANY PROMISE, WARRANTY, OR REPRESENTATION NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.

 

5. Intellectual Property.

As between the parties, Ceres and its licensors exclusively own all right, title, and interest in and to all Intellectual Property Rights in the Ceres Core Technology, notwithstanding anything in this Agreement purportedly to the contrary. Except for the access rights expressly granted in Section 2 of this Agreement, Ceres, on behalf of itself and its licensors, reserves all rights in the Ceres Core Technology and does not grant Customer any rights (express, implied, by estoppel, through exhaustion, or otherwise). Any Ceres Core Technology delivered to Customer or to which Customer is given access shall not be deemed to have been sold, even if, for convenience, Ceres makes reference to words such as “sale” or “purchase” in the applicable Subscription Services Order Form or other documents. All rights not expressly granted hereunder are reserved by Ceres.

As between the parties, Customer and its licensors will retain all right, title, and interest in and to all Intellectual Property Rights in Customer Data.  Customer hereby grants Ceres a worldwide, non-exclusive, fully paid-up, royalty-free license to reproduce, modify, display, and otherwise use the Customer Data to provide the Subscription Services to Customer.

Without limiting Ceres’ rights under this Agreement, Ceres has the right to use Operations Data, Output, and Customer Data to provide, support, and improve the Ceres platform and Ceres’s other products and services, and Ceres may use, sell, license, distribute, and disclose any and all Operations Data, Output, and Customer Data in a manner that does not identify Customer or any individual, consistent with Ceres’s privacy policy. Ceres has no obligation under this Agreement to deliver to Customer, or anyone else, any Operations Data other than Operations Data displayed in the Output generated in connection with the Imagery Services performed hereunder.

Ceres encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to the Ceres Products (collectively, “Feedback”). If Customer provides such Feedback, Customer grants to Ceres a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to use, license, and commercialize Feedback (including by incorporation of such Feedback into Ceres Core Technology) without restriction.

 

6. Confidentiality.

a. The receiving Party shall only use, disclose or otherwise process the Confidential Information for purposes of and in connection with this Agreement.  Each Party agrees to protect the confidentiality of the Confidential Information of the other in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information.  Access to the Confidential Information shall be restricted to (i) the receiving Party’s personnel engaged in a use permitted hereby and (ii) service providers solely for use in connection with the provision of services to the receiving Party; provided that all receiving Party personnel and any service providers shall in advance sign a confidentiality agreement that includes reasonable nondisclosure provisions or otherwise have committed themselves to maintaining the confidentiality of Confidential Information.  The receiving Party shall not duplicate any material containing Confidential Information except in the direct performance of its obligations under the Agreement.  The receiving Party shall return or destroy all copies of materials containing Confidential Information upon reasonable request of the disclosing Party or upon any earlier termination of this Agreement for any reason whatsoever.

b. The receiving Party may disclose Confidential Information of the disclosing Party as required to comply with any Law(s).  In such case, the receiving Party shall, except where prohibited by Law(s), notify the disclosing Party promptly in writing within at least ten (10) days of the receipt of the disclosure request or such shorter time as necessary to provide the disclosing Party reasonable time to oppose the disclosure request.  In connection with such a disclosure request, the receiving Party shall comply with all lawful directions of the disclosing Party, limit the nature and scope of the requested disclosure to the extent permitted by Law(s), disclose the minimum amount of Confidential Information necessary to comply with Law(s), and, upon the disclosing Party’s request, cooperate fully with the disclosing Party in resisting the disclosure request to the full extent permitted by Law(s).

c. Each Party acknowledges that, in the event of any breach of the provisions of this Section 6 (Confidentiality), the disclosing Party may suffer damages that are not easily determinable, and shall be entitled to seek equitable relief, including an injunction or an order for specific performance.

 

7. Term and Termination.

a. The term of this Agreement shall commence as of the Effective Date and continue for twelve (12) months following the Effective Date.  The term of the Agreement thereafter shall automatically renew for successive 12-month renewal periods, unless either Party provides written notice of termination sixty (60) days in advance of commencement of a 12-month renewal period or the Agreement is otherwise terminated as permitted below in this Section 7.

b. Either Party may terminate this Agreement, immediately upon written notice to the other Party in the event of a material breach by the other Party of any provision of this Agreement that remains uncured thirty (30) days following receipt of notice of such breach from the non-breaching Party.

c. Ceres may also terminate this Agreement or any or all Subscription Services Order Forms: (i) immediately, if Customer becomes subject to a Bankruptcy Event; or (ii) upon 60 days’ prior, written notice for any reason or no reason.

d. Upon termination of this Agreement, all Subscription Services Order Forms and all rights granted to Customer under this Agreement shall automatically terminate and, as a result, Customer shall no longer have any rights to access the Subscription Services, Operations Data, Outputs and Documentation and Customer shall promptly pay to Ceres all remaining amounts due under all terminated Subscription Services Order Forms through the originally contemplated duration of such Subscription Services Order Forms.

 

8. Indemnification.

Customer shall defend, indemnify and hold harmless Ceres, Ceres’ Affiliates and its and their respective directors, officers, employees, independent contractors, agents, successors and assigns (each, an “Indemnified Party”) from and against all Claims and Losses to the extent arising out of or in any way related to: (a) Customer’s access to or use of any Ceres Core Technology; (b) Customer Data; or (c) Customer’s negligence or violation of any term or condition of this Agreement or any Subscription Services Order Form.

 

9. Liability.

IN NO EVENT WILL CERES OR ITS SUPPLIERS, LICENSORS OR SUBCONTRACTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY SUBSCRIPTION SERVICES ORDER FORM (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF CERES HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CERES OR ITS SUPPLIERS, LICENSORS OR SUBCONTRACTORS BE LIABLE FOR ANY DAMAGE TO PROPERTY, LOSS OF OR DAMAGE TO DATA, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY. THE LIABILITY OF CERES AND ITS SUPPLIERS, LICENSORS AND SUBCONTRACTORS FOR CLAIMS RELATED TO THIS AGREEMENT OR ANY SUBSCRIPTION SERVICES ORDER FORM, WHETHER FOR BREACH OR IN TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), WILL BE LIMITED TO $100 USD. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

 

10. Insurance.  Customer will obtain and maintain for at least the duration of the Agreement, at its own cost and expense, all insurance coverages, with sufficient limits, as necessary to cover Customer’s obligations and potential liabilities to Ceres.

 

11. Support. Ceres will provide support for its Subscription Services according to commercially reasonable support service practices.

 

12. Scheduling. Customer understands and agrees that it will need to collaborate with Ceres with regard to the scheduling of flights.  While Ceres makes efforts to honor requests made by Customers with regard to flight times and frequencies, Customer understands and agrees that there may be times when Ceres is unable to honor a request for a particular flight at a particular time (for example, without limitation, due to weather) and Customer hereby discharges Ceres of (and Ceres hereby disclaims) any and all liability as a result of Ceres’ inability to complete a flight so long as Ceres reasonably collaborates with Customer to re-schedule the flight. If a flight is missed, then Ceres will automatically schedule a flight for the following week unless notified otherwise by the Customer before such week begins. Ceres targets completion of post-flight processing within 12-48 hours; and (ii) Ceres require a minimum of 5 business days prior notice of any flight add-on or change.  A failure to provide Ceres with adequate notice of a flight add-on or change may result in additional re-scheduling charges for the Customer and the Customer agrees to pay such charges no later than thirty (30) days following the invoice date.  If acting reasonably, Ceres has the right to decline any particular flight or imaging order.

 

13. Additional Incentives. Access to additional client incentives, such as free flight promotions, will be provided by Ceres at Ceres sole discretion. 

 

14. Export Controls. Each Party shall be responsible for ensuring that its actions with respect to the Subscription Services are incompliance with the export control Laws of the United States. Customer represents and warrants to Ceres that: (a) no relevant agency has suspended, revoked or denied Customer’s export and/or import privileges; (b) Customer is not located in or under the control of a national or resident of a jurisdiction where this transaction is prohibited; and (c) Customer shall not, in any manner whatsoever, either remove, convey, export, import or transmit the Subscription Services from or to Customer’s jurisdiction in violation of the applicable laws and regulations. Each party will comply with local and foreign export control Laws, including U.S. export control Laws. Customer acknowledges that the Subscription Services are subject to U.S. Export Administration Regulations ("EAR") and that Customer will comply with EAR. Without limiting the foregoing, Customer represents and warrants that: (a) it is not located in, and will not use the Subscription Services from, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) Customer will not use the Subscription Services in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, sounding rockets, or unmanned air vehicle systems; and (c) Customer is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, Customer is responsible for complying with any local Laws that may impact Customer's right to import, export, or use the Subscription Services.

 

15. Miscellaneous.

a. Assignment.  Customer shall not assign this Agreement, any Subscription Services Order Form, or any of its obligations or liabilities hereunder without the prior written consent of Ceres, which Ceres may withhold in its sole discretion.  Any attempted assignment or delegation in violation of the foregoing will be void.  Ceres may assign this Agreement or any Subscription Services Order Form, in whole or in part, without the consent of Customer.  This Agreement will be binding upon and inure to the benefit of the successors and assigns of each Party hereto. Any attempted or purported assignment in violation of this Section 16(a) will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

b. Compliance with Laws.  Customer will comply with all Laws applicable to its use of the Subscription Services, including, without limitation, those applicable to collection and processing of Customer Data in Ceres systems through the Subscription Services. Customer agrees to provide any required disclosures to and obtain any required consents for the transfer of Customer Data to Ceres.

c. Notice.  Except as otherwise provided in this Agreement, all notices will be in writing and deemed given on: (a) personal delivery; (b) when received by the addressee if sent by a recognized overnight courier (receipt requested); (c) the third business day after mailing; or (d) the first business day after sending by email with confirmation of receipt, except that email will not be sufficient for notices regarding a Claim or alleged breach. Notices will be sent as set forth on the first page of this Agreement or as subsequently updated in writing.

d. Force Majeure.  Ceres is not, and may not be construed to be, in breach of this Agreement for any failure or delay in fulfilling or performing the Subscription Services, when and to the extent such failure or delay is caused by or results from acts beyond Ceres's reasonable control, including: strikes, lock-outs, or other industrial disputes; trespass, sabotage, theft or other criminal acts export bans, sanctions, war, terrorism, riot, civil unrest, or government action; failure of Internet connectivity or backbone or other telecommunications failures, in each case outside of Ceres's local network; breakdown of plant or machinery; nuclear, chemical, or biological contamination; fire, flood, natural disaster, extreme adverse weather, or other acts of God (each a "Force Majeure Event"). Ceres will use reasonable efforts to mitigate the effects of such Force Majeure Event.

e. High Risk Activity.  The Subscription Services is not designed for any purpose requiring fail-safe performance, including stock trading, financial transaction processing, operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems, or other management or operation of hazardous facilities or applications for which failure could result in death, personal injury, or severe physical, property, or environmental damage (each, a "High Risk Activity"). Ceres, its licensors, and suppliers expressly disclaim all warranties of fitness for any such use.

f. Execution.  This Agreement may be executed in counterparts, by electronic means to accurately send images, such as via email, or by electronic signature service. Neither Party will contest the Agreement's validity solely because a signature was faxed or sent through other permitted electronic means. Each Party will deliver to the other an original executed copy of the Agreement promptly after execution.

g. Waiver and Amendment.  Failure by a Party to enforce any part of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. A waiver of any right is effective only if in a writing signed by an authorized representative of the waiving Party. Any modification of this Agreement must be in writing and signed by authorized representatives of both Parties.

h. Severability.  If any term of this Agreement is held invalid, unenforceable, or void by a court of competent jurisdiction, such term will be enforced to the maximum extent permissible, such holding will not affect the remaining terms, and the invalid, unenforceable, or void term will be deemed amended or replaced by a valid, legal, and enforceable term that matches the intent of the original language as closely as possible.

i. Relationship.  The Parties are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, agency, or other relationship. Neither Party has any right or authority to assume or create any obligation of any kind, express or implied, in the other Party's name or on its behalf.

j. Governing Law.  This Agreement will be governed by the Laws of the State of California, without regard to its conflict of laws principles. The Parties irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Santa Clara County, California, for the purposes of adjudicating any dispute arising out of or related to this Agreement. Each Party expressly consents to service of process by registered mail. To the extent permitted by Law, choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods will not apply.

k. Equitable Remedies.  The receiving Party's disclosure of Confidential Information except as provided in this Agreement, or a Party's infringement or misappropriation of the other Party's Intellectual Property Rights may result in irreparable injury for which a remedy in money damages may be inadequate. In the event of such actual or threatened disclosure, infringement or misappropriation, disclosing party may be entitled to seek an injunction to prevent the breach or threatened breach without the necessity of proving irreparable injury or the inadequacy of money damages, in addition to remedies otherwise available to disclosing party at law or in equity.

l. Construction.  Lists of examples following "including", "e.g.", "such as", or "for example" are interpreted to include "without limitation", unless qualified by words such as "only" or "solely." URLs are understood to also refer to successor URLs, URLs for localized content, and information or resources linked from within the websites at such URLs.

m. Entirety. The terms and conditions of this Agreement, the Ceres Privacy Policy and all Subscription Services Order Forms entered into by the Parties, constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersede any previous and contemporaneous agreements and understandings, whether oral or written, between the Parties hereto with respect to the subject matter hereof. There are no other agreements, understandings, representations, or promises between the parties with respect to the subject matter of this Agreement. The terms of this Agreement apply to the exclusion of any other terms Customer seeks to impose or incorporate, or that may be implied by trade, custom, practice, or course of dealing. Customer acknowledges it has not relied on any statement, promise, or representation made or given by or on behalf of Ceres that is not expressly stated in this Agreement. Customer's orders are not contingent, and Customer has not relied, on the delivery of any future functionality regardless of any verbal or written communication about Ceres's possible future plans.

n. No Exclusivity. Nothing in the Agreement shall be construed as creating any type of exclusive relationship among the Parties.

o. Survival.  All provisions of this Agreement that are by their nature intended to survive the expiration or termination of this Agreement or a Subscription Services Order Form, including without limitation, obligations with respect to indemnification, confidentiality, limitation on liability, and Ceres’ Intellectual Property Rights, shall survive such expiration or termination.