1.1 Subject to the terms of this Agreement, Castor will use commercially reasonable efforts to provide Customer the Services in accordance with this Agreement and Service documentation at https://docs.castordoc.com/.
1.2 Subject to the terms hereof, Castor will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit B.
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Castor or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Castor hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Castor includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Castor to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Castor shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Castor shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Castor will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Castor offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 Customer Identification. Castor may identify Customer as a user of the Services and may use Customer’s name and logo in Castor's customer list, press releases, blog posts, advertisements, and website.
4.1 Customer will pay Castor the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Castor reserves the right to change the Fees or applicable charges and to institute new charges and Fees annually upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Castor has billed Customer incorrectly, Customer must contact Castor no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Castor’s customer support department.
4.2 Customer agrees to pay all Fees within 30 days following receipt of Castor’s invoice, which may be sent by email. 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 of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Castor’s net income.
5.1 Subject to earlier termination as provided below, this Agreement is for the initial subscription term specified in the Order Form, and shall be automatically renewed for additional one-year periods (collectively, the “Term”), unless either party notifies the other in writing of its intention not to renew at least thirty (30) days prior to the end of the then-current Term.
5.2 In addition to any other remedies it may have, either party may terminate this Agreement upon written notice to the other party, if the other party (i) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within 30 days after written notice describing the breach; or (ii) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.1 Authority. Each of Castor and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
6.2 Service Warranty. Castor shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Castor or by third-party providers, or because of other causes beyond Castor’s reasonable control, but Castor shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
6.3 Protection of Customer Data. Castor will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Castor personnel except (a) to provide the Services and to prevent or address service or technical problems, or (b) as Customer expressly permits in writing. To the extent applicable, Castor’s Data Processing Addendum (available at https://www.castordoc.com/policy/castor-dpa) is incorporated by reference into this Agreement.
6.4 DISCLAIMER. CASTOR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND CASTOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 By Castor. Castor will defend or settle any claims, actions and demands brought by third parties against Customer and Customer’s subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively “Related Parties”) where the third party expressly asserts that the Software: infringes such third party’s trademark or copyright, or Castor misappropriated such third party’s trade secrets in the development of the Software (collectively, “Claims”). Customer must give written notice of the Claim to Castor promptly after Customer becomes aware of the Claim, and Castor’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The foregoing obligations do not apply with respect to portions or components of the Services: (a) not supplied by Castor, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by Castor or combined with other products, processes or materials where the alleged infringement relates to such combination, (d) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (e) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Castor to be infringing, Castor may, at its option and expense (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for Customer a license to continue using the Services, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and provide Customer a refund of any prepaid, unused fees for the Services.
7.2 By Customer. Customer will indemnify, defend and hold harmless (by counsel reasonably satisfactory to Castor) Castor and its Related Parties against all liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorney’s fees and disbursements) alleging that the Customer Data or its use has infringed the rights of or otherwise caused harm to a third party, or violated applicable law; provided that in any such case Castor gives written notice of the Claim to Customer promptly after Castor becomes aware of such Claim, and Customer’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice.
8.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ITS RELATED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMER’S LIABILITY FOR MISAPPROPRIATION OF CASTOR’S INTELLECTUAL PROPERTY RIGHTS IN ITS SOFTWARE AND SERVICES.
8.2 DIRECT DAMAGES. THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY AND ITS RELATED PARTIES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO CASTOR DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM, EXCEPT THAT CASTOR’S AGGREGATE LIABILITY FOR CLAIMS ARISING FROM FREE TRIALS AND PRE-RELEASE FEATURES WILL BE LIMITED TO $100. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS.
9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.2 This Agreement is not assignable, transferable or sublicensable by Customer except with Castor’s prior written consent. Castor may transfer and assign any of its rights and obligations under this Agreement without consent.
9.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Castor in any respect whatsoever.
9.5 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.6 This Agreement shall be governed by the laws of France without regard to its conflict of laws provisions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
Last update: 22 March 2023