Terms of Service

Last updated: September 23, 2024

These are the standard Terms of Service (the “Terms”) applicable to all customers that purchase the Callosum Solution through the Callosum Platform (both as defined below) or other online purchasing mechanism and not pursuant to an Order Form (collectively “Self-Serve customers”), and all customers that use Callosum Solution under a free trial (collectively “Free customers”).

Please read these Terms carefully as they affect your legal rights. By creating or administering a Callosum account and accessing or using the Callosum Solution, you agree to be bound by these Terms, which, together with the Data Processing Addendum (only if and as applicable to you) comprise the “Agreement” between you and Callosum. If you do not agree to these Terms, do not use the Callosum Solution. If you are entering into the Agreement on behalf of a company, organization, or similar entity, you are agreeing to the Agreement for that entity and representing to Callosum that you have the authority to bind such entity to the Agreement.

Definitions.

Some capitalized terms are defined in this Section 1 and others are defined contextually elsewhere in the Agreement. For purposes of the Agreement, “Callosum,” “6A, “we,” “our” or “us” means 6A LLC, a North Carolina Limited Liability Company, doing business as “Callosum”, and “Customer”, “you” or “your” means the individual or entity that is purchasing, accessing or using the Callosum Solution, and can mean either Self-Service customers or Free customers as the context dictates. If you are purchasing or using the Callosum Solution on behalf of your company or using a company domain, all references to “you” reference such company. Each of Callosum and you may also be referred to in the Agreement as a “party” or collectively as the “parties.”
1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party.
2. “Customer Data” means any data, information, records, files, communications and other content that is transmitted from a Customer Endpoint to one or more other Network Server(s) using the Callosum Solution and can be encrypted/decrypted by the Customer or Network Server(s).
3. “Customer Endpoint” means a device of Customer or a Permitted User that has the Callosum Client Software installed upon it.
4. “Documentation” means the online documentation, guidelines and policies provided by Callosum in relation to the Callosum Solution, including our service descriptions, acceptable use policies, technical documentation, user guides and support documentation, and any Updates thereto.
5. “Integrations” means any software application, functionality, website, product or service that will connect to or integrate with the Callosum Solution or embed certain functionality into a third party platform or service, including via an API or SDK. You and your Permitted Users choose which Integrations to activate with respect to your use of the Callosum Solution.
6. “Network Server” means a device connected to a local network of a Customer or Permitted User, that the Customer or Permitted User has selected and voluntarily decided to connect to using the Callosum Client Software.
7. “Order Form” means an ordering document regarding the Callosum Solution to be provided under our Main Service Agreement that is entered into between Callosum or any of its Affiliates and a customer, or between Callosum or any of its Affiliates and any of such customer’s Affiliates.
8. “Permitted User” means an individual human who is authorized by Customer to access and use the Callosum Solution.
9. “Plan“ means a subscription package for the Callosum Solution. We offer several Plans for both personal and business use at different price points, each with a slightly different mix of available features, functionality, limits, support and configuration options. For more information on our available Plans, please visit our Purchase page. We reserve the right to modify our Plans and any applicable service fees at any time.
10. “Callosum Client Software” means Callosum’s proprietary software that is installed on Customer Endpoints and any Updates thereto.
11. “Callosum Platform” means Callosum’s proprietary Internet-accessible software and service that is hosted and maintained by Callosum.
12. “Callosum Solution” means the totality of Callosum’s proprietary service that includes the Callosum Platform and Callosum Client Software, as well as any other software, information or services related thereto provided by Callosum to Customer.
13. “Updates” means any version updates, bug fixes, patches, error corrections, and other similar software or content updates to the Callosum Client Software or Documentation.
Service Terms.
1. Provision and Access. In accordance with the terms and conditions of the Agreement, Callosum shall grant you and your Permitted Users access to and use of the Callosum Solution as detailed in Documentation solely for your own personal use or internal business purposes (as applicable depending on your Plan). This includes a limited, revocable, worldwide, non-exclusive, non-transferable, license to download and use the Callosum Client Software on Customer Endpoints solely in connection with your use of the Callosum Solution. You agree that your purchase of the Callosum Solution is not contingent on the delivery of any future features or functionality, or dependent on any oral or written public comments made by us regarding future functionality or features.
2. Ownership. As between the Customer and Callosum, the Callosum Solution and Documentation, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Callosum. Nothing in the Agreement shall be interpreted to provide Customer with any rights in the foregoing, except the limited right to use the Callosum Solution subject to the Agreement. You may not, directly or indirectly, do or attempt any of the following: (i) misappropriate or otherwise commercially exploit any part of the Callosum Solution; (ii) modify, disassemble, decompile, reverse engineer, copy, reproduce, or create derivative works from the Callosum Solution; (iii) damage, tamper with or circumvent any part of the Callosum Solution; (iv) breach or circumvent any security measure for the Callosum Solution; (v) access or use the Callosum Solution to compete with Callosum or build a competitive product, service or solution; or (vi) access or use the Callosum Solution for illegal or illicit purposes.
3. Customer Data. Customer retains all right, title and interest including all intellectual property rights in and to Customer Data. You grant us a limited, nonexclusive, revocable, worldwide, royalty-free right to transmit Customer Data solely to enable us to provide the Callosum Solution to you during the Term. Subject to the limited license granted herein, Callosum acquires no right, title or interest in or to any Customer Data. For the avoidance of doubt, you and your Permitted Users choose what Customer Data to transmit using the Callosum Solution; Callosum does not have access to, use of or control over Customer Data, and only you can encrypt/decrypt Customer Data. Callosum will not make any change to the Callosum Solution that would enable it to decrypt Customer Data. Callosum has no general obligation to monitor, and does not monitor, your Customer Data. You are solely responsible for the content of your Customer Data, and represent and warrant that your Customer Data does not violate applicable laws.
4. Customer Responsibilities. You will use the Callosum Solution in accordance with our Documentation and applicable laws. You are solely responsible for: all actions taken through your account by you or your Permitted Users; timely accepting, installing and using Updates; and acquiring, maintaining and securing your own hardware, software, networks and computer systems, which are not included in the Callosum Solution. You are also responsible for the activity of your Permitted Users and the confidentiality of your and their login credentials. Customer will promptly notify Callosum of any actual or suspected unauthorized use of the Callosum Solution. We reserve the right to suspend, deactivate, or replace a Permitted User account if we determine that such account may have been used to violate any applicable law or not in accordance with the Agreement or Documentation. Any breach of the Agreement by your Permitted Users shall be deemed to be a breach by Customer.
5. Third Party Services. The Callosum Solution may contain, enable or link to third party websites, applications, services or content, including via Integrations (collectively “Third Party Services”). We do not own or operate the Third Party Services and cannot guarantee their continued availability or compatibility. We have not reviewed, and cannot review, all of the material made available through Third Party Services. We do not warrant or support the Third Party Services. The availability of such links through the Services does not represent, warrant or imply that we endorse any Third Party Services or any content, materials, opinions, goods or services available on or through them. Our Documentation does not apply to Third Party Services. Your decision to visit or link to a Third Party Service, or to activate an Integration, is your decision and your responsibility. We are not responsible for any security breach of Customer Data or any data or information that is transmitted to, or accessed by, a Third Party Service. If you choose to use an Integration with the Callosum Solution, you grant us permission to transmit data to the Integration and/or to allow the Integration to access data as necessary for the interoperation of that Integration with the Callosum Solution.
Payment.

This Section 3 only applies to Self-Serve customers.
1. Fees. In consideration of the rights granted to Customer and the performance of Callosum’s obligations under these Terms, you agree to pay Callosum the fees and rates associated with your Plan and any add-on services that you choose to purchase (the “Fees”). The Fees for your chosen Plan and payment period (typically monthly or annually) will be specified at the time of purchase when you “check-out” on the Callosum Platform. Unless explicitly indicated otherwise in these Terms, our Documentation or at the time of “check-out”, all payments will be made by credit card. Payments are non-cancelable, non-transferable, non-refundable, and not subject to acceptance, except as expressly stated elsewhere in these Terms. Any permitted suspension of the Callosum Solution by Callosum pursuant to these Terms will not excuse you from your obligation to make payments under these Terms.
2. Renewals. Your Callosum account will remain open under your chosen Plan and payment period, and your payment method will continue to be charged applicable Fees, unless and until you change your Plan or close your account. You may change your Plan at any time by following the instructions in our applicable Documentation. If you choose to change your Plan before the close of a payment period, the Fees due at the next payment period will be prorated accordingly, you will remain responsible for any unpaid Fees under the prior Plan, and our services under the prior Plan will be deemed fully performed and delivered. Notwithstanding anything to the contrary, renewal of any free, complimentary, promotional or one-time priced services will renew at our applicable list price in effect at the time of the applicable renewal.
3. Taxes. The Fees set out in these Terms do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes (collectively “Taxes”). Customer will be responsible for and pay all applicable Taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with these Terms, other than Taxes based on the net income or profits of Callosum. If Customer is a tax-exempt entity or claims exemption from any Taxes hereunder, Customer will provide a certificate of exemption upon agreement to these Terms and, after receipt of valid evidence of exemption, Callosum will not charge Customer any Taxes from which Customer is exempt.
4. Invoices. Unless set forth otherwise in our Documentation or your invoice, Callosum will invoice you as of the first day of each payment period for the Fees and Taxes due for that payment period. Invoices may be issued by a Callosum Affiliate. Unless set forth otherwise in your invoice, all invoices are issued in United States dollars, and each invoice is due and payable thirty (30) days from the invoice date according to the payment instructions provided on the invoice. You agree that we may invoice you for any unpaid Fees at any time during the payment period. You may add a purchase order number to an invoice, if necessary for your internal payment processing requirements. If Customer disputes any amount set forth in any invoice, you must notify Callosum within fifteen (15) days of the invoice date or you will be deemed to have waived your right to dispute such amount. The parties agree to work in good faith to resolve any payment dispute.
5. Delinquent Accounts. In the event of late payments or non-payments of undisputed amounts (collectively, “Delinquent Accounts”), Callosum reserves the right to suspend Customer’s access to and use of the Callosum Solution and/or charge interest on such past-due amounts until those amounts are paid in full, to be decided by us in our sole discretion. If, after working in good faith with the Customer, Callosum is not successful in resolving the Delinquent Account, any interest will accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Callosum. Customer will reimburse Callosum for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
Term; Termination.
1. Term. These Terms will remain in effect from the day you open your Callosum account until the earlier of (i) you closing your account or (ii) termination of these Terms by one of the parties as provided herein. The full duration of these Terms is the “Term.”
2. Closing your account. You may close your account at any time by following the instructions in our Documentation. Any outstanding invoices will become immediately due and payable in accordance with the payment terms set forth in these Terms or on the applicable invoice. Any prepaid fees are non-refundable.
3. Termination for cause. Either party may terminate these Terms immediately upon written notice if the other party materially breaches the Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach. In addition, if a party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver, or makes an assignment for the benefit of any creditor, then the other party may terminate these Terms immediately upon written notice. If Customer terminates for cause under this Section 4.3, Callosum will refund to you on a pro rata basis any prepaid Fees after the effective date of termination. If Callosum terminates for cause, Customer will remain liable to pay all Fees outstanding as of the effective date of termination, including any unpaid Fees covering the remainder of the payment period had these Terms not been terminated.
4. Termination by Callosum. We reserve the right to terminate these Terms and close your account upon notice to you in the event that we determine we are required to do so by law, in which case we will refund to you any prepaid Fees covering the remainder of your payment period as of the effective date of such termination.
5. Effect of termination. Upon termination of these Terms, Customer’s right to access and use the Callosum Solution will immediately end, and Customer and its Permitted Users will immediately cease all use of the Callosum Solution. We will have no further obligation to maintain or provide you with access to the Callosum Solution, including for transition purposes, and may thereafter, unless legally prohibited, delete any associated data in our systems or otherwise in our possession or under our control pursuant to our standard data retention policies and procedures. The parties also will cease any and all use of Confidential Information belonging to the other party, and return or destroy any such Confidential Information upon request. In no event will any termination or expiration relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Expiration or termination of these Terms will not limit either party from pursuing any other remedies available to it, including injunctive relief, nor will any such expiration or termination relieve either party’s obligation to pay all amounts and Fees that have accrued or are otherwise owed by such party under these Terms up to the effective date of termination.
6. Survival. The rights and obligations of Callosum and Customer contained in the following sections will survive expiration or termination of these Terms: Sections 3 (Payment), 4.5 (Effect of termination), 4.6 (Survival), 6 (Confidentiality), 7.3 (Warranty disclaimer), 11 (Indemnification), 12 (Limitations of liability), and 14 (Miscellaneous).
Data Protection.
1. Applicable terms. For business entities or individuals using the Callosum Solution for business purposes, the Callosum Data Processing Addendum (“DPA”) is incorporated by reference for compliance with global laws and regulations related to the processing of Personal Data (defined in the DPA) in connection with the Callosum Solution and the Agreement. If you are an individual using the Callosum Solution for personal or household purposes, then our Privacy Policy applies.
2. Security. Callosum has adopted and will maintain administrative, technical, physical, and organizational security measures that are at least as robust as those described in our DPA as of the effective date of these Terms. Callosum will not knowingly introduce into the Callosum Solution any viruses, worms, time bombs, Trojan horses or other malicious code that might harm, or any “copyleft” open source license that would require the open licensing of, any Customer systems.
3. Usage Data. Customer acknowledges that Callosum securely processes information, data and metadata resulting from the ordinary course operation and use of the Callosum Solution for limited internal business purposes related to the ongoing operation, development and protection of the Callosum Solution, including security and fraud prevention, product analytics, research, debugging and improvement, and billing and customer account management (collectively “Usage Data”). Callosum processes Usage data for such purposes as an independent data controller or business in accordance with applicable Data Privacy Laws (defined in the DPA). Customer acknowledges and agrees that Callosum may process Usage Data for such purposes, and that such purposes are compatible with, reasonably necessary, and proportionate to providing the Callosum Solution to Customer. To the extent Usage Data includes any identifying information, Callosum will de-identify and/or aggregate the Usage Data whenever possible. For the avoidance of doubt, Usage Data does not include Customer Data.
4. Acknowledgement. You acknowledge that: (a) Callosum is not a “Business Associate” as defined in HIPAA and the Callosum Solution is not HIPAA compliant; (b) Callosum is not a “bank service provider” as defined in the Bank Service Company Act; and (c) Callosum does not act as a “school official” as defined under FERPA, and customers are solely responsible for using the Callosum Solution only for non-FERPA covered purposes. As a reminder, you and your Permitted Users choose what Customer Data to transmit using the Callosum Solution; Callosum does not have access to, use of or control over Customer Data. If you choose to transmit any sensitive information (including information associated with (a)-(c) above, any special categories of data as enumerated in GDPR Article 9(1), and any tax identification numbers, Social Security numbers, driver’s license numbers, or other similar government identification numbers), you are solely responsible for ensuring that suitable safeguards are in place prior to transmitting or processing such information using the Callosum Solution.
Confidentiality.

The provisions of this clause shall supersede any non-disclosure agreement by and between the Parties entered prior to this Agreement with respect to the subject matter hereto.
1. Definition. “Confidential Information” means all information disclosed by a party to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Callosum Confidential Information includes: the software for the Callosum Solution, whether in source or executable code; Research (as defined in Section 8.2) materials and information; nonpublic business, product, marketing, pricing and sales information; audit materials and reports; internal policies, procedures and controls; and the results of any performance tests of the Callosum Solution. Confidential Information does not include any information that: (i) is or becomes generally known to the public through no breach of any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) is received from a third party without knowledge of any breach of any obligation owed to the disclosing party; or (iv) is independently developed by the receiving party. For the avoidance of doubt, the parties acknowledge that Personal Data (defined in the DPA) is not considered Confidential Information and the terms of the DPA or our Privacy Policy (as applicable to you), not this Section 6, shall govern the parties’ obligations with respect to Personal Data.
2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The receiving party will: (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care); (b) not use or disclose any Confidential Information of the disclosing party for any purpose outside the scope of the Agreement; and (c) limit access to Confidential Information of the disclosing party, except as otherwise authorized by the disclosing party in writing, to only those employees, agents and contractors (including its Affiliates, legal counsel, auditors and accountants) who (i) need that access for purposes consistent with the Agreement and (ii) are bound to obligations of confidentiality that are not materially less protective of the Confidential Information than those contained in these Terms. Upon the expiration or termination of these Terms, the receiving party shall have no further rights to the disclosing party’s Confidential Information and shall promptly destroy all materials (whether maintained electronically or otherwise) containing such information, together with all copies thereof in whatever form; provided however that the receiving party may retain copies for archival purposes as required by applicable law or to the extent such copies are electronically stored in accordance with the receiving party’s document retention or back-up policies or procedures. The receiving party’s obligations relating to protection of Confidential Information under these Terms shall continue for three (3) years following the expiration or termination of this Agreement, except that in the case of Confidential Information that is a trade secret under applicable law, the obligations of confidentiality shall continue for so long as such Confidential Information remains a trade secret.
3. Compelled disclosures. Notwithstanding the foregoing, Confidential Information may be disclosed to the extent required by any competent court or governmental agency. Before disclosing such information, the receiving party must (if permitted by law) provide the disclosing party with sufficient advance notice of the request for the information to enable the disclosing party to exercise, at its own cost, any rights it may have to challenge or limit the request to receive such Confidential Information.‍ If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to that Confidential Information.
4. Availability of injunctive relief. The parties acknowledge that disclosure of any Confidential Information in violation of this Section 6 will give rise to irreparable injury to the owner of such information that is not adequately compensated by damages. Accordingly, each party will be entitled to seek equitable relief, including injunctive relief and specific performance against the breach or threatened breach of the undertakings in this Section 6, in addition to any other legal remedies which may be available.
Warranties & Disclaimers.
1. Mutual warranties. Each party represents and warrants that: (a) it is duly authorized to enter into these Terms; (b) it is duly organized and validly existing under the laws of its relevant jurisdiction; (c) it has the full right, power and authority to enter into these Terms and perform its obligations hereunder; (d) these Terms are a valid and binding obligation of such party; and (e) it will comply with all applicable laws and regulations with respect to its activities related to the Callosum Solution and the Agreement.
2. Limited warranty. Callosum represents and warrants that: (a) the Callosum Solution will operate in material and substantial conformity with the Documentation; and (b) Callosum will not materially decrease the overall functionality of the Callosum Solution; ((a)-(b) collectively the “Limited Warranty”)). If Customer notifies Callosum of a breach of the Limited Warranty, Callosum will correct the nonconformity. The foregoing constitutes Customer’s sole and exclusive remedy for any breach of the Limited Warranty. The Limited Warranty will not apply to any Third Party Service, if caused by any events, systems or circumstances outside our reasonable control, or if caused by Customer’s use of the Callosum Solution in an unlawful manner or not in accordance with the Agreement or our Documentation.
3. Warranty disclaimer. Except as expressly provided for in these Terms and the SLA (if and as applicable to you), and to the maximum extent permitted by law, the Callosum Solution is provided warranty free, on an “as is” and “as available” basis. We make no further representations, warranties or conditions of any kind, whether express, implied, collateral or statutory, including any warranties of merchantability, merchantable quality, compatibility, title, security, reliability, non-infringement, accuracy, quality, completeness, quiet enjoyment, integration or fitness for a particular purpose or use. We further disclaim any and all warranties or conditions arising out of course of dealing or usage of trade.
Feedback; Research.
1. Feedback. If you or any of your Permitted Users voluntarily send us feedback, suggestions or recommendations about the Callosum Solution (“Feedback”), we may freely use Feedback without duty or obligation to you. We are not obligated to use Feedback, but if we do then it becomes part of the Callosum Solution and our property. Unless in the context of Research, all Feedback will be treated as non-confidential and non-proprietary and we will not be liable for any use or disclosure of any Feedback, nor will the submitter be entitled to any compensation for our use of their Feedback.
2. Research. From time to time you or certain of your Permitted Users may be invited to participate in studies, focus groups, workshops, beta testing, or other research or testing of features, products or services related to the Callosum Solution, some of which may not yet be ready for general release (“Research”). Participation is completely voluntary. We are not forming a partnership, joint venture, agency, or employment relationship with you or your Permitted Users just by virtue of participating in Research. We are under no obligation to generally release the feature or functionality subject to Research, or to provide any special maintenance, technical support, or other service or support for Research. All materials associated with Research are provided on an “as is” and “as available” basis, without any warranties of any kind, express or implied.
Publicity.

Callosum may refer to you as one of Callosum’s customers for marketing or promotional purposes. You grant us the right to use your name and logo solely for such purposes. We will adhere to any trademark guidelines that you provide to us, and any goodwill that arises from our use of your name or logo shall inure solely to your benefit. Neither party will issue a press release about Customer becoming a Callosum customer or a case study about Customer’s experience with the Callosum Solution without the prior written consent of the other party.
Disputes; Choice of Law.
1. Choice of law. To the extent permitted by applicable law, the Agreement will be governed by and interpreted in accordance with the internal laws of the State of North Carolina, USA, without regard to conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
2. *Self-Serve customers using the Callosum Solution for business purposes. *In the event of any controversy or claim arising out of or relating to the Agreement, or its breach or interpretation, to the extent permitted by applicable law, Callosum and all Self-Serve customers using the Callosum Solution for business purposes will submit to the exclusive jurisdiction of and venue in state or federal courts located in North Carolina, USA. Each party waives all defenses of lack of personal jurisdiction and inconvenient forum. Notwithstanding the foregoing, this choice of jurisdiction does not prevent either party from: (i) electing to have any claims resolved in small claims court for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing party initially chose; (ii) seeking injunctive relief with respect to a violation of its intellectual property rights in any appropriate jurisdiction (“intellectual property rights” in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights) or for defamation; or (iii) seeking a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. The parties hereby waive their right to jury trial with respect to all claims and issues arising under, in connection with, touching upon or relating to the Agreement.
3. Statute of limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Callosum Solution or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Indemnification.
1. Indemnification by Callosum. Callosum will defend Customer and its Affiliates, and each of their respective officers, directors, employees, agents, successors and assigns, against any claim, demand, suit or proceeding made or brought against Customer by a third party (other than a Customer Affiliate) alleging that the Callosum Solution infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Callosum in writing of, a Claim Against Customer. In the event that our right to provide the Callosum Solution is threatened or enjoined, we may in our sole discretion either obtain the right to continue providing the Callosum Solution, or replace or modify the Callosum Solution so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate these Terms upon thirty (30) days written notice without liability to you and refund any prepaid Fees covering the Callosum Solution on a pro-rata basis following the effective date of such termination. The above defense and indemnification obligations will not apply to the extent the Claim Against Customer arises from: (i) Customer’s use of the Callosum Solution in an unlawful manner; (ii) Customer’s failure to timely install or use Updates when the Callosum Solution would not infringe had such Updates been so installed or used; (iii) Customer Data; (iv) Customer’s instructions, specifications or requirements to Callosum; (v) Customer’s combination of the Callosum Solution with any other software, system, equipment, component, process or material not provided by Callosum; or (vi) Customer’s use of the Callosum Solution not in accordance with the Agreement or Documentation.
2. Indemnification by Customer. Customer will defend Callosum and its Affiliates, and each of their officers, directors, employees, agents, successors and assigns, against any claim, demand, suit or proceeding made or brought against Callosum by a third party (other than a Callosum Affiliate) arising from: (a) Customer’s use of the Callosum Solution in violation of our Acceptable Use Policy; (b) Customer’s combination of the Callosum Solution with any other software, system, equipment, component, process or material not provided by Callosum; or (c) Customer Data; ((a)-(c) each a “Claim Against Callosum”); and will indemnify Callosum from any damages, attorney fees and costs finally awarded against Callosum as a result of, or for any amounts paid by Callosum under a settlement approved by Customer in writing of, a Claim Against Callosum. The above defense and indemnification obligations will not apply to the extent the Claim Against Callosum arises from Callosum’s material breach of the Agreement.
3. Indemnification procedures. Each party’s respective defense and indemnification obligations are contingent upon: (a) the indemnified party providing the defending party with prompt written notice of an eligible claim (no more than thirty (30) days after receipt of notice of the claim), as well as reasonable cooperation, assistance and information in the defense and settlement of any claim; and (b) the defending party having sole authority to defend or settle such claim (provided that the defending party will not enter into a settlement that is not confidential, requires an admission of fault, or imposes non-monetary relief without the indemnified party’s prior written consent, which shall not be unreasonably withheld). The indemnified party will have the right to participate in the defense with counsel of its own choosing at its own expense, provided that such representation does not interfere with the defending party’s right to control the defense.
4. Exclusive remedy. This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section notwithstanding anything to the contrary in these Terms.
Limitation of Liability.
1. Except for the Excluded Liabilities (defined below), notwithstanding anything in the Agreement to the contrary and to the maximum extent permitted by law, in no event shall either party be liable to the other party for any indirect, incidental, special, exemplary, consequential, or punitive damages, whether or not such party has been advised of the possibility of such damages, and whether any claim for recovery is based on theories of contract, warranty, tort (including negligence and strict liability), or otherwise. Some jurisdictions, including the Province of Quebec, do not allow the exclusion or limitation of certain damages. If you reside in one of those jurisdictions, the above limitations or exclusions may not apply to you.
2. Except for the Excluded Liabilities, notwithstanding anything in the Agreement to the contrary and to the maximum extent permitted by law, in no event shall either party’s aggregate liability to the other in connection with this Agreement or Customer’s access to and use of the Callosum Solution exceed the greater of: (i) $100; or (ii) the total fees paid or payable by Customer to Callosum under which the claim arose in the twelve (12) month period preceding the claim or action; regardless of the form or theory of the claim or action.‍ For greater certainty, the existence of one or more claims under the Agreement will not increase this maximum liability amount.
3. For purposes of this Section 12, the “Excluded Liabilities’’ are any liabilities arising from: (a) indemnification obligations under Section 11 (Indemnification); (b) breach of Section 6 (Confidentiality); (c) breach of Section 2.2 (Ownership); or (d) Customer’s obligation to pay all outstanding Fees.
Trade Compliance.
1. In connection with these Terms, each party agrees to comply with: all relevant export and import laws; and all laws relating to embargoes or sanctions, including the lists maintained by the United Nations Security Council, the Canadian Government, the United States Government, the European Union or its member states, or other applicable government authority (collectively “Sanctions”). By accessing and using the Callosum Solution, you represent, warrant, and covenant that you and your Permitted Users are not: a party on any Sanctions list; owned or controlled by any such party; or located in (or a national of) a country or jurisdiction on any Sanctions list. Any attempt to access or use the Callosum Solution in breach of the foregoing is considered a material breach of these Terms. We reserve full rights to change or limit access to the Callosum Solution as necessary to ensure compliance with applicable laws and regulations.
Miscellaneous.
1. Evaluation Periods. Callosum may, in its sole discretion, make the Callosum Solution or certain features or functionality available to you free of charge solely for evaluation purposes for a limited period of time as set forth in an Order Form (the “Evaluation Period”). Such Order Form may contain other requirements or limitations related to the Evaluation Period, such as the number of Permitted Users that may access the Callosum Solution. During the Evaluation Period you agree that you will use the Callosum Solution solely for internal evaluation purposes and not for commercial use. Notwithstanding anything in these Terms to the contrary, the parties expressly agree that, during and with respect to the Evaluation Period: (a) Callosum reserves the right to terminate your access to the Callosum Solution at any time for any reason; (b) the representations and warranties regarding the Callosum Solution set forth herein, including the Limited Warranty, are not applicable; and (c) Callosum’s aggregate liability to you shall not exceed $100.
2. Modifications. From time to time, Callosum may revise these Terms or the other documents comprising the Agreement. Unless otherwise specified by Callosum, changes become effective for Customer on the date we publish the updated terms or as set forth in any notice we may provide about the changes. We will use reasonable efforts to notify you of material changes through communications via Customer’s account, email or other means, and Customer may be required to click to accept or otherwise agree to the updated terms. If you do not agree to the updated terms, you may close your account as set forth in Section 4.2 above. Continued use of the Callosum Solution after the updated terms go into effect will constitute Customer’s acceptance of such updated version.
3. Assignment. Neither party may assign or transfer these Terms, in whole or in part, without the prior written consent of the other party (not to be unreasonably withheld) except in the event of either: (1) the direct or indirect acquisition of either (a) the majority of voting stock of such party or (b) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (2) the merger of such party with another entity. Any attempted assignment or transfer in violation of this Section 14.3 will be null and void. Subject to the foregoing restrictions, these Terms will inure to the benefit of the successors and permitted assigns of the parties.
4. Notice. Unless otherwise specified: notice to Callosum must be in writing and sent by email to legal@callosum.dev; and notice to Customer will be in writing and sent to the admin email address associated with Customer’s account. You are solely responsible for keeping your contact information on file with Callosum current at all times during the Term. Notice will be deemed given and received on the business day following the day of actual delivery of the email, unless there is a specific notification that it was not received on the day of actual delivery thereof (ex a bounce back). Nothing herein shall constitute a waiver of formal requirements for service of process for initiating litigation or arbitration.
5. Force Majeure. Callosum will not be liable for any failure or delay in the performance of our obligations on account of any events beyond our reasonable control that make it impossible or commercially impracticable for us to perform our obligations hereunder, including strikes or other labor problems, material shortages, epidemics, pandemics, civil unrest, riots, insurrection, fires, flood, earthquakes, storms, explosions, cyber attacks, or acts of God, war, terror or government.
6. No third party beneficiaries. The Agreement is intended for the sole and exclusive benefit of the parties; there are no third party beneficiaries, and only the parties may enforce the Agreement.
7. Relationship of the parties. Nothing in the Agreement will be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
8. Waiver and severability. The waiver by either party of any default or breach of the Agreement will not constitute a waiver of any other or subsequent default or breach. The Agreement operates to the fullest extent permissible by law. In the event any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect.
9. Titles and headings. The section titles and headings are for convenience only and have no legal or contractual effect. The word “will” shall be construed to have the same meaning as “shall.” The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” The word “or” will not be exclusive. The phrase “to the extent” will be construed to mean the degree to which a subject or other matter extends, and such a phrase will not simply mean “if.” Where a word is defined herein, references to the singular will include references to the plural and vice versa. All references to “days” will be deemed to refer to calendar days unless otherwise specifically provided. All references to “$” and “dollars” will be deemed to refer to United States currency unless otherwise specifically provided.
10. Customer Affiliates. Permitted Users of Customer Affiliates may use the Callosum Solution as Permitted Users of Customer. In such a case, Customer shall remain fully responsible for such Affiliates’ acts and omissions under the Agreement.
11. Entire agreement. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements, written or oral, concerning its subject matter. Notwithstanding any language to the contrary, no terms or conditions stated in any software, onboarding, support, marketing or other materials, will be incorporated into or form any part of the Agreement, and all such supposed terms or conditions shall be null and void.
12. Order of precedence. To the extent of any conflict or inconsistency between the documents comprising the Agreement, the following order of precedence will apply: (1) any applicable Special Terms; (2) the DPA and SLA (if and as applicable to you); and (3) these Terms. Any terms and conditions stated on a purchase order or similar document issued by Customer for payment purposes shall be null and void.
13. English language. It is the express wish of the parties that the Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
14. Execution. The parties will be bound by signatures made by electronic means, including without limitation clicking a button or similar, and which may be transmitted to the other party by email and/or any electronic method and will have the same binding effect as any original ink signature.