Terms and Conditions
These Subscription Terms and Conditions (the “Agreement”), which govern use of Croma Services (defined below), are entered into between Overprint LLC., a Delaware company (“Croma”) and the organization on whose behalf the individual accepting this Agreement is, registering for use of, or otherwise setting up, accessing or using, the Croma Services (defined below) (such entity, the “Customer”), and is effective as of the earlier of Customer’s registration or first use of Croma Services (the “Effective Date”). You, the individual registering for access to, or otherwise accessing or using the Croma Services on behalf of a Customer, and the Customer on whose behalf you are registering for or accessing the Croma Services, represent and warrant that you have the full right and authority to bind the Customer to this Agreement, and that the Customer is fully aware of, understands, and agrees to be bound by all the terms and conditions of this Agreement.
BY CLICKING “I ACCEPT,” REGISTERING FOR AN ACCOUNT ON THE CROMA SERVICES, OR OTHERWISE ACCESSING OR USING CROMA SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTANDS, AND AGREES TO ACCEPT AND BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING ANY ADDITIONAL TERMS INCORPORATED BY REFERENCE HEREIN. CROMA SERVICES ARE AVAILABLE ONLY TO THOSE WHO CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW. BY AGREEING TO THIS AGREEMENT, CUSTOMER REPRESENTS AND WARRANTS: (I) THAT CUSTOMER CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW; (II) THAT CUSTOMER HAS NOT PREVIOUSLY BEEN SUSPENDED OR REMOVED FROM THE CROMA SERVICES; AND (III) THAT CUSTOMER’S REGISTRATION AND USE OF THE CROMA SERVICES IS IN COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. IF CUSTOMER DOES NOT QUALIFY FOR THE CROMA SERVICES, OR DOES NOT AGREE TO THIS AGREEMENT, CUSTOMER SHOULD NOT AND MAY NOT REGISTER FOR, ACCESS, OR USE THE CROMA SERVICES.
1.1. “Aggregate Information” means any information or data derived from Customer Data or Customer’s or its end user’s use of the Croma Services (including, without limitation, metrics and analytics related to such use), which is not specific to a person, does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person.
1.2. “Administrative Interface” means the online interface or portal made available by Croma, on which Customer may access and use the features or functionality that Croma may make available to Customer in accordance with this Agreement.
1.3. “Administrative Users” means those individuals who Customer specifically identifies by name, email, Twitter handle, and/or other identification method approved by Croma on an Order or through the Administrative Interface to access and use the Croma Services on behalf of Customer pursuant to this Agreement.
1.4. “Business Day” means a day that is not a Saturday, a Sunday or a public or bank holiday in Argentina or the United States.
1.5. “Customer Data” means all electronic data or information submitted, provided, or made available to Croma by or on behalf of Customer through the Purchased Services.
1.6. “Order” means any physical, electronic, or online order or other applicable ordering document or transaction, including addenda and supplements thereto, issued by Customer to Croma from time to time and accepted by Croma, which describes the Purchased Services, including the Subscription Term and applicable fees. Each such Order is hereby deemed to be incorporated by reference into, and made a part of, this Agreement.
1.7. “Purchased Services” means Croma Services that Customer obtains from under an Order accepted by Croma.
1.8. “Social Media Content” means content that is posted or uploaded by end users directly to Third Party Services (for example, a tweet on Twitter) and made available to Customer by Croma in connection with the Croma Services.
1.9. “Subscription Term” means the period of time selected by Customer in an Order for a Purchased Service, during which Croma will make the Purchased Service available to Customer and its end users.
1.10. “Third Party Services” means third party applications, products or services (such as social medial platforms) and open source software.
1.11. “Croma Services” means those of Croma’s social media distribution analytics products and services that are made generally available to customers by Croma.
2. Use of the services.
Croma Subscription Terms and Conditions.
2.1. Purchased Services. Subject to full and ongoing compliance with the terms and conditions of the Agreement, Croma authorizes Customer to access and use the Purchased Services pursuant to this Agreement and the relevant Orders during the Subscription Term.
2.2. Administrative Users. Administrative Users may access the Purchased Services with unique credentials through the Administrative Interface and use Purchased Services on Customer’s behalf in accordance with this Agreement (“Authorized Access”). Customer represents and warrants that all Users have the necessary authority to access and use Purchased Services on Customer’s behalf, and to bind Customer to the terms of this Agreement. Customer is solely responsible at all times for ensuring that all Authorized Access and any other Customer access is used solely in accordance with this Agreement.
2.3. Customer Responsibilities. Customer shall (i) not allow any unauthorized access to or use of the Purchased Services (including, without limitation, by maintaining the confidentiality of all usernames, passwords, API keys, and similar access credentials), and Customer will be solely liable to Croma for any and all activity use of the Croma Services by end users or under access credentials issued to Customer or any Administrative Users. Customer will notify Croma promptly of any unauthorized access or use, and (ii) use the Croma Services only in accordance with the user guide made available by Croma (as may be amended from time to time by Croma), applicable privacy policies, and applicable laws and government regulations. Customer shall not (a) sell, resell, rent or lease the Croma Services, or make the Croma Services available to any third party on a service bureau basis, (b) use the Croma Services in violation of any law, regulation, contract, or third-party privacy rights, (c) use the Croma Services to store or transmit malicious code, (d) interfere with or disrupt the integrity or performance of the Croma Services or third-party data contained therein, or (e) attempt to gain unauthorized access to the Croma Services or their related systems or networks.
2.4. Usage Limitations. The Croma Services may be subject to other limitations as described in more detail in the applicable Order and/or documentation and such limitations shall be deemed to be incorporated by reference into and made a part of this Agreement.
2.5. Support Service. If Customer purchased the Purchased Services from Croma, Croma will provide basic support services (in the English and Spanish languages only) to Customer to address reported incidents of the Purchased Services not performing materially in accordance with applicable specifications when used by Customer and end users in accordance with this Agreement and all applicable documentation at no additional charge, in accordance with Croma’s standard support procedures. Croma may also provide upgraded support if mutually agreed upon and purchased separately.
3. Third party services.
3.1. Access to and Use of Third Party Services. The Croma Services may contain features designed to interoperate with Third Party Services (e.g., Twitter applications or other social platforms). To use such features, Customer, Administrative Users, and/or end users may be required to obtain access to such Third Party Services, or Croma may be required to obtain access to such Third Party Services on behalf of Customer, from the providers of such Third Party Services and Customer agrees to the terms and conditions on which such third party provider offers such services. If Customer chooses to use such features and Croma is required to obtain access to Third Party Services on behalf of Customer, Customer authorizes Croma to access the applicable Third Party Services on Customer’s behalf and obtain, access, store, and use the data made available to Croma by the Third Party Services in accordance with this Agreement, including without limitation the full name of each Administrative User. Customer is solely responsible for compliance with the terms and conditions applicable to any Third Party Services accessed by or on behalf of Customer in connection with the Croma Services and will indemnify Croma from any and all harms, damages, costs, and expenses incurred by Croma in connection with a breach of the foregoing. Croma shall not be responsible for any disclosure, modification or deletion of data resulting from any such access by such Third Party Services and their providers. If the provider of any such Third Party Service ceases to make the application available for interoperation with the corresponding feature of the Croma Services on reasonable terms, Croma may cease providing such features without entitling Customer to any refund, credit, or other compensation
4. Fees and payment for purchased services.4.1. Fees. Customer shall pay all fees specified in the applicable Orders (“Fees”) to Croma. Except as otherwise specified herein or in an Order, (i) fees are based on Croma Services purchased and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
4.2. Invoicing and Payment. Fees will be invoiced by Croma, as set forth in the applicable Order, and payable by Customer in accordance with the Order. Unless otherwise stated in the Order, invoices will be submitted on or about the Croma Subscription Terms and Conditions first day of each billing period, and are due net fifteen (15) days from the date of the invoice. Customer is responsible for providing complete and accurate billing and contact information to Croma, and notifying Croma of any changes thereto.
4.3. Overdue Charges. Except as otherwise set forth in an applicable Order, if any fees payable are not received from Customer by the due date, then at Croma’s discretion: (a) interest on such unpaid amounts may be assessed at the lesser of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, from the date such payment was due until the date paid, and/or (b) Croma may suspend the Purchased Services and accelerate any of Customer’s unpaid fee obligations to Croma, and/or (c) Croma may condition future subscription renewals and Orders on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
4.4. Payment Disputes. Customer must notify Croma in writing of any fees or charges disputed in good faith within thirty (30) days following the invoice date, providing reasonable detail identifying the basis for the dispute, and any fees or charges not so disputed within such thirty (30) day period shall be considered valid and undisputed and no adjustment will be made.
4.5. Taxes. Unless otherwise stated, the fees do not include, and Customer is solely responsible for any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction, other than taxes assessed on Croma’s net income (collectively, "Taxes"). Where required, Croma may invoice applicable Taxes to Customer, unless Customer provides Croma with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary rights.
5.1. Reservation of Rights in Croma Services. Croma reserves all right, title and interest in and to the Croma Services, including all related intellectual property rights. No rights are granted to Customer other than as expressly set forth herein, whether by implication, estoppel, or otherwise.
5.2. Restrictions. Customer shall not (a) modify or create derivate works based on the Croma Services, (b) reverse engineer the Croma Services, or (c) access the Croma Services in order to (i) build a similar or competitive product or service, (ii) for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes or (iii) copy any features, functions or graphics of the Croma Services.
5.3. Customer Data. As between the parties, Customer owns the Customer Data, and hereby grants Croma a nonexclusive, royalty-free right to access and use Customer Data (a) as may be reasonably necessary in connection with performing, providing, developing, enhancing, supporting, and maintaining the Croma Services and (b) in connection with the creation of Aggregate Information, including as may be required to develop, deliver and provide ongoing innovation to the Croma Services.
5.4. Suggestions. Customer may, but is not obligated to, provide suggestions, enhancement requests, recommendations or other feedback provided by Customer (“Suggestions”). Customer hereby grants Croma a royalty-free, worldwide, irrevocable, sublicensable, transferable, perpetual license to use, disclose, reproduce, license, distribute and exploit such Suggestions, and incorporate Suggestions into the Croma Services and its other services, products, technologies, documentation or other development with no obligation to pay, attribute, license or to make available to, Customer or any other person or entity.
5.5. Publicity. During the term of this Agreement and subject to explicit, advance written consent to be obtained on a case by case basis, (a) Croma may publicly refer to Customer as a customer of Croma and may use Customer’s name, trade names, screen captures brands and logos orally and in written materials, including on its websites, in connection therewith, and (b) Customer may publicly refer to Croma orally, in writing, and on web sites operated by Customer, as a service provider of Customer. Subject to Customer’s satisfaction with Croma Services, Customer may choose to cooperate with Croma’s requests to participate in a press release. Customer will have the opportunity to request review of the press release and/or customer testimonial prior to issuance, and the Parties will work together to agree the final version before it may be released. Customer may be asked to be the subject of a case study about Customer’s experience and success with Croma Services; participation will only be upon Customer’s approval and if given, Customer further grants Croma the right to use Customer Data, Aggregate Information and Customer related data in connection with the case study.
6. Limited warranty; disclaimer.
6.1. Limited Warranty. Each party represents and warrants to the other party that it has validly entered into this Agreement and has the legal power to do so, and that it will comply with all applicable laws and regulations in connection with its performance. Customer’s sole remedy for performance issues with respect to Purchased Services shall be any support services Croma is obligated to provide in accordance with this Agreement.
6.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CROMA AND ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AUTHORIZED USERS, AND CONTRACTORS (COLLECTIVELY, THE “CROMA ENTITIES”) MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE CROMA ENTITIES SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION: THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE; OR WITH RESPECT TO ANY SOCIAL MEDIA CONTENT OR OTHER THIRD PARTY CONTENT THAT MAY BE ACCESSED, PROVIDED, OR MADE AVAILABLE; OR ANY THIRD PARTY SERVICES ACCESSED OR USED, IN CONNECTION WITH THE CROMA SERVICES; AND HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT THERETO.
6.3. SERVICES. THE CROMA ENTITIES DO NOT WARRANT THAT THE CROMA SERVICES WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CROMA SERVICES OR THE SERVERS THAT MAKE THE CROMA SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER UNDERSTANDS AND AGREES THAT IF CUSTOMER USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS ANY THIRD PARTY SERVICES OR CONTENT OR DATA THEREIN OR ANY SOCIAL MEDIA CONTENT, IT IS AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY THAT RESULTS FROM THE USE OF CROMA SERVICES. CROMA HAS NO CONTROL OVER ANY THIRD PARTY SERVICES OR SOCIAL MEDIA CONTENT, AND THEREFORE MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, LEGALITY, NATURE, AVAILABILITY, OR RELIABILITY OF THIRD PARTY SERVICES OR SOCIAL MEDIA CONTENT AVAILABLE IN CONNECTION WITH THE CROMA SERVICES. CROMA PROVIDES ACCESS TO THIRD PARTY SERVICES AND SOCIAL MEDIA CONTENT TO CUSTOMER ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK, REFERRAL, OR FEATURES ON THE CROMA SERVICE TO THIRD PARTY SERVICES OR SOCIAL MEDIA CONTENT DOES NOT IMPLY CROMA’S AFFILIATION, ENDORSEMENT, OR ADOPTION OF THE THIRD PARTY SERVICE OR ANY CONTENT OR DATA THEREIN OR ANY SOCIAL MEDIA CONTENT. ACCESS AND USE OF THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION THE CONTENT, MATERIAL, PRODUCTS, AND SERVICES AVAILABLE ON OR THROUGH THIRD PARTY SERVICES, AND ANY SOCIAL MEDIA CONTENT IS SOLELY AT CUSTOMER’S OWN RISK.
6.4 CUSTOMER REPRESENTS AND WARRANTS: (I) THAT CUSTOMER CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW; (II) THAT CUSTOMER HAS NOT PREVIOUSLY BEEN SUSPENDED OR REMOVED FROM THE CROMA SERVICES; AND (III) THAT CUSTOMER’S REGISTRATION AND USE OF THE CROMA SERVICES IS IN COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS.
7. Mutual indemnification.
7.1. Indemnification by Croma. Croma shall defend Customer against or settle (at Croma’s option) any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the Croma-authored software underlying the Croma Services (excluding Third Party Services and Social Media Content), when used by Customer as provided by Croma and in accordance with this Agreement and all applicable documentation, infringes or misappropriates the intellectual property rights of such third party (a "Claim Against Customer"), and shall pay any damages, attorney fees and costs finally awarded or agreed to in settlement of, a Claim Against Customer; provided that Customer (a) promptly gives Croma written notice of the Claim Against Customer; (b) gives Croma sole control of the defense and settlement of the Claim Against Customer (provided that Croma may not settle any Claim Against Customer without Customer’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed); and (c) gives Croma all reasonable assistance, at Croma’s expense in the defense and settlement of the Claim Against Customer. In the event of a Claim Against Customer, or if Croma reasonably believes the Croma Services may infringe or misappropriate any third party’s rights, Croma may in Croma’s discretion and at no cost to Customer (i) modify the Croma Services so that they no longer infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the Croma Services in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for such Croma Services upon ten (10) days’ written notice and refund to Customer a prorated portion of any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination. Croma shall have no liability or obligation for any Claim Against Customer or demand arising in connection with (x) the use or combination of the Croma Services or any part thereof with software, hardware, or other materials not provided by Croma (including without limitation the Third Party Services, Customer Data, or Social Media Content), (y) modification of the Croma Services by a party other than Croma, or (z) an allegation that is based on content passing through the Croma Services, including without limitation Customer Data or Social Media Content. The foregoing states Croma’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of any intellectual property rights.
7.2. Indemnification by Customer. Customer shall defend and settle (at Customer’s option) the Croma Entities from and against any claim, demand, suit or proceeding made or brought against any Croma Entity by a third party alleging that Customer Data or Social Media Content, when used in accordance with this Agreement, or Customer’s use or misuse of the Croma Services, infringes, misappropriates, or otherwise violates the intellectual property or privacy rights of a third party or applicable law, or otherwise arising in connection with Customer’s use of the Croma Services (including without limitation any claim brought by any end user), except and solely with respect to any claim that would have been a Claim Against Customer if brought directly against Customer (a "Claim Against Croma"), and shall pay any damages, attorney fees and costs finally awarded or agreed to in settlement of, a Claim Against Croma; provided that Croma (a) promptly gives Customer written notice of the Claim Against Croma; (b) gives Customer sole control of the defense and settlement of the Claim Against Croma (provided that Customer may not settle any Claim Against Croma without Croma’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed); and (c) gives Customer all reasonable assistance, at Customer’s expense in the defense and settlement of the Claim Against Croma. The foregoing states Customer’s entire liability and Croma’s exclusive remedy for intellectual property rights infringement.
8. Limitation of liability.
8.1. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE CROMA ENTITIES HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING AS A RESULT OF STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE CROMA ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
8.2. Limitation of Croma Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY CROMA ENTITY'S AGGREGATE TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING CAP IS AN AGGREGATE TOTAL CAP, REGARDLESS OF ANY MULTIPLE OR OVERLAPPING TWELVE (12) MONTH PERIODS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
8.3. Limitation of Customer Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CUSTOMER’S AGGREGATE TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY (INCLUDING THE INDEMNITY SET OUT AT SECTION 7.2) EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING CAP IS AN AGGREGATE TOTAL CAP, REGARDLESS OF ANY MULTIPLE OR OVERLAPPING TWELVE (12) MONTH PERIODS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CROMA’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
9. Term and termination.
9.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions to Purchased Services have expired, unless earlier terminated as set forth herein.
9.2. Term of Purchased Subscriptions. Subscriptions purchased by Customer commence on the start date specified in the applicable Order and continue for the Subscription Term specified therein. Except as otherwise specified in the applicable Order, all subscriptions shall automatically renew on the same terms for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term.
9.3. Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.4. Refund or Payment upon Termination. Upon any termination by Customer for Croma’s uncured breach of this Agreement, Croma shall refund Customer a prorated portion of any prepaid fees covering the remainder of the applicable Subscription Term after the effective date of termination. Upon any termination for cause by Croma, Customer shall pay any unpaid fees covering the remainder of the applicable Subscription Term of all Orders accepted prior to the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Croma for the period prior to the effective date of termination.
9.5. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1, 3, 4, 5, 6, 7, 8, 9.6, 10, and 11.
10. Modifications to the agreement
Croma reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. Customer should check this Agreement periodically for changes. In the event that a change to this Agreement materially modifies Customer’s rights or obligations, Croma will make reasonable efforts to notify Customer of such change. Croma may provide notice through a pop-up or banner within the Croma Services or Administrative Interface, by sending an email to any address Customer may have used to register for access, or through other similar mechanisms. Additionally, if the changed Agreement materially modifies Customer’s rights or obligations, Croma may require Customer to provide consent by accepting the changed Agreement. If Croma requires Customer’s acceptance of the changed Agreement, changes are effective only after Customer’s acceptance. If Customer does not accept the changed Agreement, Croma may terminate Customer’s access to and use of the Croma Services. All other changes are effective upon the earlier of Customer’s acceptance of the modified Agreement, Customer’s use of the Croma Services with actual knowledge of the change, or thirty (30) days following publication of the modified Agreement. Disputes arising under this Agreement will be resolved in accordance with the Agreement in effect at the time the dispute arose.
11. General provisions.
11.1. Relationship. The parties are independent contractors, and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship.
11.2. Notices. All notices under this Agreement shall be in writing and shall be delivered to the address set forth in the Order, provided that Croma may provide notices to Customer via the email address provided at the time of registration for access.
11.3. Waiver and Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be interpreted to effect the original intent to the fullest extent possible, if at all, and the remaining provisions of this Agreement shall remain in full force and effect.
11.4. Assignment. Customer may not assign any of its rights or obligations hereunder, whether by sale of stock or assets, merger, change of control, operation of law, or otherwise, without the prior express written consent of Croma. Croma may assign this Agreement together with all rights and obligations hereunder, without Customer’s consent without restriction, including to a successor entity resulting from a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement and Customer has the right to terminate this agreement on the basis that it does not wish to enter an agreement with such successor entity. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.5. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of England and Wales, without regard to the United Nations Convention on Contracts for the International Sale of Goods. Each party submits to the exclusive jurisdiction of the courts of England and Wales in the event of any claim or dispute in connection with this Agreement.
11.6. Force Majeure. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strikes or other labor problems, fire, flood, civil unrest, acts of terror, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
11.7. Headings. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. The words “include” and “including” as used in this Agreement are to be read as if they were followed by the phrase “without limitation.”
11.8. Integration. This Agreement as may be modified from time to time as set forth herein, together with any Orders, other documents or additional terms referenced herein, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement, including without limitation, any foreign language translation of this Agreement.
11.9. Modification and Waiver. Except as expressly provided herein, no modification, amendment, or waiver of any provision of this Agreement (or any Order) shall be effective unless in writing and signed by both parties. In the event of any conflict between the provisions in this Agreement and any Order, the terms of the Agreement shall prevail.
11.10. Translations. For the avoidance of doubt, any foreign language translations of this Agreement provided by Croma are solely for reference and convenience purposes, and are not binding in any way, and the English language version of this Agreement controls in all cases, regardless of any deviation or inaccuracy in any foreign language translation provided.Back to top