BY ACCEPTING THIS AGREEMENT, EITHER BY SIGNING A COPY OF THIS AGREEMENT OR SIGNING AN ORDER THAT REFERENCES THIS AGREEMENT (EACH DEFINED BELOW), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (E.G., YOUR EMPLOYER), YOU REPRESENT THAT YOU ARE AUTHORIZED TO DO SO (AND, AS USED HEREIN, THE TERMS “SUBSCRIBER,” REFER TO YOU AND, IF APPLICABLE, ANY SUCH ENTITY). IF YOU ARE NOT SO AUTHORIZED, OR IF YOU DISAGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT OR USE THE SOLUTION OR PROVIDED DATA. CIRCULOR’S WILLINGNESS TO ENTER INTO THIS AGREEMENT IS CONTINGENT ON YOUR ACCEPTING THIS AGREEMENT WITHOUT MODIFICATION.

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This Circulor Master Subscription and Services Agreement, including any Orders entered into by the Parties hereunder, and any exhibits and attachments hereto or to such Orders (all of the foregoing, collectively, this “Agreement”), is made effective (a) as of the date the last Party signs this Agreement, if it is being executed through signature or (b) on the date that the initial Order is executed by CSCS (Ireland) Limited, a limited liability company incorporated in Ireland with an address at North Point House, North Point Business Park, Cork T23 AT26, Ireland with business number 651067 (“Circulor”) and the Subscriber (such date, the “Effective Date”). Subscriber and Circulor may be referred to herein individually as a “Party” and collectively as the “Parties.” The Parties hereby agree to the foregoing and as follows:

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1.    DEFINITIONS

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1.1.     “Affiliate” means any person or entity that, directly or indirectly, controls, is controlled by, or is under common control with a Party. For this purpose, “control” means the possession of the power to direct, or to cause the direction of, the day-to-day management, operation, and policies of any given person or entity.

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1.2.    “Aggregate Data” means any Data that: (a) is derived or aggregated in de-identified form (i) from any Stored Data, Processed Data and/or industry or other data, or (ii) from a Subscriber’s use of the Solution (including but not limited to any usage data or trends with respect to the Solution); and (b) does not constitute Subscriber-Specific Data.

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1.3.    “Customer Data” means Data other than Raw Data, Aggregate Data, Processed Data, Regulated Data, Solution-Provided Data, Stored Data, and Subscriber-Specific Data that Subscriber or a User runs on or through the Solution, causes to interface with the Solution, uploads to the Solution, or otherwise transfers, processes, uses or stores in connection with the Solution, such as User information and support request information. 

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1.4.    “Data” means any information, content, or other data.  

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1.5.    “Internal Use” means use in relation to Subscriber’s internal business operations as may be permitted and further restricted in the relevant Order but shall not include or permit Subscriber or any User: (a) to use all or any part of the Solution, Related Services, or Solution-Provided Data to provide any service or product to any third party (including its Affiliates) unless otherwise expressly permitted by Circulor; or (b) to give or allow access to, or to otherwise disseminate, all or any part of the Solution, Related Services, or Solution-Provided Data in any manner whatsoever to any third party (including its Affiliates) unless expressly permitted by this Agreement or otherwise by Circulor.

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1.6.    “Processed Data” means Data generated by Circulor by processing, calculating, running analytics on, and/or making inferences from Stored Data.

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1.7.    “Raw Data” means Data input to the Solution by a Subscriber in a standard format (such as JSON) required by the Solution and consisting of certain factual data about the Subscriber and its activities and raw data generated or extracted by the Subscriber concerning various components or information received by the Subscriber as input from one or more upstream members (such as a Subscriber’s suppliers) of a supply chain, and various components, products or information output by the Subscriber to one or more downstream members (such as its customers) of a supply chain.

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1.8.    “Regulated Data” means any data, information, classification, categorization, status, permit, or license, and information related thereto, pertaining to a Subscriber or any of its components, products or information output by the Subscriber to one or more downstream members of a supply chain that is (a) required by a governmental body, entity, agency, law or regulation to be disclosed, calculated, obtained, or maintained and (b) is available or required to be made available to the public without obligations of confidentiality.

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1.9.    “Solution-Provided Data” means the following Data provided to Subscriber through its Subscription to the Solution: Aggregate Data, Regulated Data, and Processed Data that does not reveal information or data specific to a particular Subscriber or to its components, products or information output by it to downstream members of a supply chain, or to components, materials or information supplied to it by its upstream suppliers.

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1.10.    “Stored Data” means Data generated by Circulor as a result of intaking, checking, validating, indexing, and/or applying rules to Raw Data and stored by Circulor in one or more databases and/or blockchains operated or controlled by Circulor.

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1.11.    “Subscriber” means a current paid subscriber of the Solution.

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1.12.    “Subscriber-Specific Data” means Stored Data or Processed Data that reveals information or data specific to a particular subscriber, to its components, products or information output by the subscriber to one or more downstream members (such as such subscriber’s customers) of a supply chain, or to components, materials or information supplied to such Subscriber by an upstream supplier.  Subscriber-Specific Data does not include Regulated Data.

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1.13.    “Usage Parameters” means the traceability features, covered materials and facilities, and other applicable scope and usage parameters and restrictions applicable to Subscriber’s Subscription as described in the applicable Order. 

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1.14.    “User” means Subscriber’s employees, and any third-party consultants, contractors, and agents engaged by Subscriber who have legal obligation to use the Solution and Solution-Provided Data solely in accordance with the terms of this Agreement. 

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2.    OVERVIEW 

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2.1.    Scope. This Agreement sets forth the terms pursuant to which Subscriber may purchase, and Circulor will provide, subscriptions to Circulor’s online-hosted traceability solution (the “Solution”) as described on the applicable Order (any such subscription, a “Subscription”) and set up and other services related to Subscriber’s Subscription (“Related Services”).

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2.2.    Orders. The Parties may from time to time execute Circulor orders (each, an “Order”) for Subscriptions to the Solution, Related Services, or other purchases. Each Order shall describe the applicable Solution, Subscription Term (as defined in Section 7.2 (Subscription Term and Renewals)), related fees, Subscription and other Usage Parameters, Related Services, and other relevant details. Each Order executed agreed to by the Parties shall reference and be subject to the terms of this Agreement and may contain additional terms applicable to a specific Solution, Subscription or Related Services.

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3.    SOLUTION AND RELATED SERVICES

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3.1.    Access and Permitted Use. Conditioned upon compliance with the terms of this Agreement and any applicable Orders, Subscriber shall have a non-exclusive right to access and use the Solution, and to permit its authorized Users to access and use the Solution, via one or more Subscriptions within the applicable Usage Parameters during the applicable Subscription Term solely for Subscriber’s Internal Use and in accordance with all applicable laws and regulations. All rights not expressly granted to Subscriber herein are reserved by Circulor and its licensors. Users may use Subscriber’s Subscription solely for Subscriber’s Internal Use. 

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3.2.    Customer Data. Subscriber grants to Circulor a non-exclusive, royalty-free right and license to use, reproduce, transmit, perform, display and store Customer Data for the purposes of the provision and support of the Solution for Subscriber’s benefit. As between Subscriber and Circulor, Subscriber retains all right, title and interest in and to the Customer Data and all intellectual property rights therein. Subscriber warrants and represents that the Customer Data does not and will not violate, infringe or misappropriate any third party’s intellectual property or other proprietary or privacy rights or violate any applicable law, order, rule or regulation.

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3.3.    Users. Subscriber shall be responsible for any actions or omissions of its Users in connection with this Agreement as if Subscriber had acted or failed to act. Subscriber is responsible and liable for all access to and use of the Solution and the Solution-Provided Data, including any actions occurring under Subscriber’s Subscriptions, logins, or IDs, regardless of by whom. Subscriber shall notify Circulor immediately of any unauthorized use of Subscriber’s Subscriptions or Solution-Provided Data or any actual or suspected breach of security regarding the Solution of which Subscriber become aware.

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3.4.    Prohibited Conduct. Except as expressly permitted by this Agreement, Subscriber shall not, directly or indirectly, without Circulor’s express prior written consent: (a) use or permit the use of, reproduce, distribute, modify, encumber, time-share, license, sublicense, rent, lease, sell, resell, transfer, or otherwise make available to any third party, any of the Solution or Data provided via the Solution except as expressly permitted under Section 3.1 (Access and Permitted Use) and Section 4 (Data); (b) reverse engineer, decompile, disassemble, extract, or otherwise derive or attempt to derive the source code of any Solution or other software provided or made available by Circulor; (c) defeat or attempt to defeat any security mechanism of the Solution or of any website(s) from which it is made available; (d) remove, obscure, or alter any trademark or copyright, confidentiality or other rights notice or legend appearing on or in any Solution, Data or other materials provided or made available by Circulor; or (e) knowingly permit any third party to do any of the foregoing. Subscriber shall not use any Solution: (i) to store, send, or provide access to obscene or otherwise illegal materials; (ii) to store, send, or provide access to materials that would infringe any intellectual property right or violate any privacy right of any third party; or (iii) in any manner that violates or does not comply with applicable laws and regulations. If, in Circulor’s reasonable determination, Subscriber’s or any User’s use of the Solution is not in accordance with this Agreement or is otherwise impairing or impeding the normal use of the Solution, or interfering with, jeopardizing, or creating risk to the security, confidentiality, integrity, operation, or use of the Solution, Circulor’s network or systems, any Data of Subscriber, Circulor, or any third party, or any third-party systems with which the Solution is interconnected (e.g., if a User uploads a corrupted file, or if initiation or use of a workflow developed by or specifically for Subscriber impairs use of the Solution), then  Circulor may suspend Subscriber’s (or any User’s) access to and use of the Solution or any affected portion or functionality of the applicable Solution, to the extent, and only for as long, as is reasonably necessary to resolve the issue.  Circulor will promptly notify Subscriber of any such suspension (via email or telephone, and in advance, except in urgent or emergency situations), explaining the reasons for the suspension, and the Parties shall diligently cooperate and work together in good faith to resolve the issue and restore Subscriber’s and all Users’ full use of the Solution, as soon as reasonably practicable.

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3.5.    Circulor’s Responsibilities.  Circulor shall use commercially reasonable efforts to: (a) make the Solution available for access and use by Subscriber over the internet in accordance with this Agreement, the Order, and the Subscriber usage guides, services descriptions, and policies, as updated by Circulor, from time to time (together the “Documentation”), (b) provide support for the use of the Solution through the Solution itself and by email and other means selected by Circulor in accordance with Circulor’s then-current policies, and (c) provide access to improvements to features or performance improvements in the Solution if and when Circulor makes any such improvements available to its subscriber base at no additional charge.  If Subscriber’s subscription includes service-level commitments for Solution availability and support (“Service Level Agreement”), and the Order accordingly specifies that a Service Level Agreement applies, Subscriber will be entitled to the commitments and remedies set forth in such Service Level Agreement as attached to or referenced in the Order. The remedies expressly provided in the Service Level Agreement are Subscriber’s sole and exclusive remedy, and Circulor’s entire obligation, with respect to any service-level violation.

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3.6.    Pilots.  From time to time, Circulor may make Pilots available to Subscriber. “Pilots” means a product, service or functionality provided by Circulor that may be made available to Subscriber to try at Subscriber’s option which is designated as such on an Order or otherwise clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description. Subscriber may try offered Pilots in sole discretion. Pilots are intended only for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Pilots are not considered a Solution or Related Services under this Agreement; however, all restrictions, disclaimers, Circulor’s reservation of rights and Subscriber’s obligations concerning the Solution and Related Services shall apply to the use of Pilots. Unless otherwise stated in an Order, any Pilot trial period will expire upon 30 (thirty) days from the Pilot start date (unless extended in writing by Circulor). Either Party may terminate a Pilot for any reason with 5 (five) days’ notice. Circulor may discontinue or change Pilots at any time in Circulor’s sole discretion and may never make a Pilot generally available.

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3.7.    Related Services. Subscriber acknowledges that Circulor does not have sufficient knowledge or understanding of Subscriber’s systems, software, and hardware (“Systems”) and the Related Services do not include support or services for changes or development for Systems required for Subscriber’s use of the Solution and Subscriber agrees it is responsible for such requirements, including operations such as opening the firewalls and developing API connections. All third-party vendors engaged by Subscriber that have any involvement in the project will be exclusively managed by Subscriber. The performance of Related Services does not contemplate any development work or creation of software or other works of authorship (collectively “Work Product”), nor any form of software license nor Work Product deliverable to be provided by Circulor to the Subscriber. To the extent Circulor is required by the Subscriber to perform Related Services, such Related Services and respective fees shall be described in the applicable Order. 

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4.    DATA

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4.1.    Circulor Use and Disclosure Rights. 

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4.1.1.    Blockchain. The Solution uses blockchain technology. Subscriber acknowledges that Data stored on Circulor’s blockchain technology cannot reasonably be deleted or returned to Subscriber and Circulor has no obligation to do so even if such information contains Subscriber Confidential Information. 

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4.1.2.    Use of Raw Data. Circulor can copy and use Raw Data to generate Stored Data and to provide the Subscription and Related Services to Subscriber. 

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4.1.3.    Use of Stored and Processed Data. Circulor can copy and use Stored Data and Processed Data to generate Aggregate Data.

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4.1.4.    Use of Solution-Provided Data. Circulor can copy, disclose and use Solution-Provided Data without restriction.

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4.1.5.    Use of Subscriber’s Subscriber-Specific Data. 

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(a) Disclosure to Downstream Subscribers. Circulor can disclose, via the Solution, Subscriber-Specific Data for Subscriber to Subscriber’s downstream purchasers who are also Subscribers, but only to the extent such Subscriber-Specific Data pertains to purchases made by such downstream purchasers from Subscriber.

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(b) Disclosure to Upstream Subscribers. Circulor can disclose, via the Solution, Subscriber-Specific Data for Subscriber to Subscriber’s upstream suppliers who are also Subscribers, but only to the extent such Subscriber-Specific Data pertains to components, products or information of Subscriber manufactured or generated using components, materials or information supplied by such upstream supplier.

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4.2.    Subscriber Use and Disclosure Rights. Subject to Subscriber’s compliance with all Applicable Laws and Regulation: 

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4.2.1.    Internal Use. Except as expressly allowed in Section 4.2.2 and 4.2.3, Solution-Provided Data may be used by Subscriber and Users solely for Subscriber’s Internal Use and only during the Subscription Term. Subscriber’s Affiliates and any other third parties must have their own separate Subscription for use and disclosure of Solution-Provided Data. Subscriber acknowledges that as a reasonable protection of Circulor’s proprietary rights in the use or disclosure of the Solution-Provided Data, and to avoid a breach to Circulor’s obligations to third parties, any use or disclosure of the Solution-Provided Data other than as expressly permitted under this Agreement shall be deemed a material breach of this Agreement and Subscriber agrees to use commercially reasonable means to protect the rights of Circulor in the Solution-Provided Data.

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4.2.2.    Downstream and other Public Disclosures. Subscriber can disclose brief high-level summaries of its Subscriber-Specific Data, together with Solution-Provided Data that is pertinent to such high-level summaries, to its own customers or to members of the press, whether or not they are Subscribers, in response to questions from such persons about Subscriber’s efforts, or to demonstrate its efforts, to conduct business responsibly and sustainably or to improve its sustainability outcomes but, notwithstanding anything to the contrary herein, may not make such disclosures in any regulatory filings or similar public communication.  For example, Subscriber might disclose a high-level summary of its pertinent Subscriber-Specific Data together with certain Aggregate Data in the form of an industry report to describe where Subscriber’s conduct falls relative to other anonymous members of a supply chain in that industry.

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4.2.3.    Upstream Disclosures. Subscriber can disclose, under appropriate restrictions on confidentiality and use or reuse by the recipient, its Subscriber-Specific Data together with Solution-Provided Data that is pertinent to such Subscriber-Specific Data, to its suppliers, whether or not they are Subscribers, in order to conduct discussions or efforts to understand risks and improve sustainability metrics collaboratively.  For example, Subscriber might disclose pertinent Subscriber-Specific Data together with Aggregate Data in the form of an industry report to describe where its conduct currently falls relative to other anonymous members of a supply chain in that industry and ways that its relative position might be improved through collaborative efforts with Subscriber’s supplier.

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4.3.    Subscriber Warranties. Subscriber represents and warrants that it will not provide any personal data as a part of Raw Data or Customer Data unless specifically allowed under the applicable Order and then only in accordance with the Documentation. Subscriber warrants and represents that the provision of Subscriber’s Raw Data and Customer Data to Circulor and Circulor’s rights to use Raw Data and Customer Data as described in this Agreement do not violate, infringe or misappropriate any third party’s intellectual property or other proprietary or privacy rights or violate applicable law, order, rule or regulation. Subscriber is responsible for the accuracy, quality, and legality of all Raw Data and Customer Data that Subscriber provides to Circulor and Subscriber’s use of Solution-Provided Data.

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4.4.    Supply Chain Data. Subscriber acknowledges that Data provided to Subscriber through the Solution may be derived from or include Data provided by third parties, including upstream supply chain participants (“Supply Chain Data”). NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CIRCULOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO, AND IS NOT RESPONSIBLE FOR, ANY SUPPLY CHAIN DATA PROVIDED THROUGH THE SOLUTION OR ANY DERIVATIONS THEREOF AND SHALL HAVE NO LIABILITY OR OBLIGATIONS WITH RESPECT TO SUCH DATA.  SUBSCRIBER ASSUMES ALL RISK AND LIABILITY WITH RESPECT TO THE USE OF SUPPLY CHAIN DATA.

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5.    CONFIDENTIAL INFORMATION

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5.1.    Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving 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. Subscriber’s Confidential Information includes Customer Data, Subscriber’s Raw Data and Subscriber-Specific Data, but excludes Solution-Provided Data and Supply Chain Data; Circulor’s Confidential Information includes the Solution and Processed Data, and Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information of a Disclosing Party does not include any information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was rightfully known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is rightfully received from a third party without breach of any obligation owed to the Disclosing Party or (d) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.

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5.2.    Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the Confidential Information of the Disclosing Party as it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party will (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of and as permitted in this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing or permitted in this Agreement, disclose Confidential Information of the Disclosing Party only to those of its and its Affiliates’ employees and contractors who (i) need that access for purposes consistent with this Agreement and (ii) have confidentiality obligations with respect to the Disclosing Party’s Confidential Information consistent with those contained herein. Neither party will disclose the terms of this Agreement to any third party other than (y) its Affiliates, legal counsel and accountants or (z) in connection with a bona fide due diligence inquiry for a financing, acquisition or similar transaction, in each case subject to confidentiality obligations consistent with this Agreement, without the other party’s prior written consent. A Receiving Party shall be responsible for any breaches of confidentiality obligations hereunder by any third party to whom it discloses the Disclosing Party’s Confidential Information. Notwithstanding anything to the contrary set forth herein, Circulor may collect and use data regarding use and performance of the Solution to analyze and improve the Solution.

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5.3.    Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest or limit the scope of the disclosure. 

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6.    FEES AND PAYMENT 

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6.1.    Fees. Subscriber shall pay Circulor the fees specified or described in any Order for the corresponding Solution and Related Services. Unless expressly otherwise provided in the applicable Order, Circulor may adjust the pricing applicable to any renewal of any Subscription, by providing Subscriber with written notice thereof at least forty-five (45) days prior to the scheduled end of the then-current Subscription Term. 

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6.2.    Invoicing and Payment.  Circulor will invoice Subscriber for the fees payable hereunder in accordance with the payment schedule stated on the applicable Order. If no payment schedule is stated, then Subscription fees are due annually in advance on the anniversary of the applicable Subscription Term start date, and Related Services fees may be invoiced immediately on execution of the Order. Unless expressly otherwise provided in the applicable Order, all invoiced amounts are due and payable within thirty (30) days after the date of the applicable invoice or the due date otherwise indicated in the applicable Order. Any amount due hereunder and not received by Circulor by the applicable due date shall bear an additional charge of one and one-half percent (1.5%) per month (or the maximum rate permissible under applicable law, if less than the foregoing) from the date due until paid. Circulor reserve the right to suspend Subscriber’s use of the Solution or performance of the Related Services, if Subscriber fails to pay any undisputed, past-due fees within thirty (30) business days after receiving written notice thereof from Circulor, until all then-unpaid, past-due fees are paid in full. Except as expressly provided herein, all fees are nonrefundable, and payment obligations cannot be canceled, regardless of actual usage of the Solution. 

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6.3.    Taxes. Fees do not include, and Subscriber shall pay, all sales, use, value added, and other taxes, all customs and import duties, and all similar levies, duties, and taxes imposed at any time (now or in the future) by any relevant jurisdiction (whether national or local in any applicable jurisdiction) in connection with this Agreement or the purchase, sale, or provision of any Subscription or Related Services to Subscriber hereunder (unless Subscriber provide Circulor with a valid tax exemption certificate), excluding taxes on Circulor’s income and employment. Subscriber will pay all fees free and clear of, and without reduction for, any such taxes, including withholding taxes. Upon Subscriber requests, Subscriber will promptly provide receipts issued by the appropriate taxing authority to establish that such taxes have been paid.

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6.4.    Third Party Payor. Subscriber agrees that if a third party, including a downstream supply chain customer, agrees to pay any fees on behalf of Subscriber (such third party being “Payor”), and Payor fails to pay such fees and applicable taxes in accordance with this Agreement and the applicable Order, Circulor may suspend Subscriber’s use of the Solution and any Related Services until such payment has been received by Circulor in full. 

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7.    TERM AND TERMINATION 

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7.1.    Agreement Term. The term of this Agreement (the “Agreement Term”) shall commence on the Effective Date and shall continue until no Subscriptions remain in force and effect, including any renewals, and all Related Services are completed or this Agreement otherwise is terminated or expires in accordance with its terms.

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7.2.    Subscription Term and Renewals. The term of any given Order for Subscriptions shall commence on the start date indicated in the Order for the applicable Subscriptions and, unless earlier terminated or renewed in accordance with this Agreement, will continue for the period specified therein (the “Initial Subscription Term”). If a Subscription term is not stated on the Order Form, the Initial Subscription Term is three years from the Subscription start date, or Order execution date if not start date is listed, of the applicable Order. The Initial Subscription Term with any renewals thereof constitute the “Subscription Term”. Unless and until terminated by either Party in accordance with this Agreement or either Party provide written notice of non-renewal to the other Party at least thirty (30) days prior to the then current prior to the end of the then-current Subscription Term, the Subscription Term of each Order shall automatically renew and be extended upon its expiration (regardless of whether previously renewed or extended) for one year.

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7.3.    Termination for Breach. Either Party may terminate this Agreement and all Orders then in effect (or, at such Party’s  option, the individual Orders affected by the applicable breach), immediately and without penalty, upon providing written notice thereof to the other Party, if the other Party materially breaches this Agreement and, if such breach is curable, fails to cure such breach  within thirty (30) days after receiving written notice reasonably describing the breach from the non-breaching Party (except that the  applicable cure period shall be fifteen (15) days with respect to a breach of Subscriber’s, including Payor’s, payment obligations hereunder).

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7.4.    Effect of Termination. Upon termination of the Agreement or an applicable Subscription, (a) all Subscriptions and  rights and licenses granted to Subscriber herein to the associated Solution(s) shall automatically terminate and be revoked; (b) Subscriber shall immediately cease use of such Solutions; (c) Circulor shall, subject to Section 7.5 (Return of Subscriber Content) return or delete all Subscriber Confidential Information except as Circulor is otherwise allowed to use such under Section 4.1 (Circulor Use and Disclosure Rights);(d) Subscriber shall promptly pay to Circulor all outstanding amounts  that accrued or became payable under this Agreement through the effective date of termination or  expiration, plus, in the event of any termination of this Agreement other than by Subscriber pursuant to Section 7.3 (Termination for Breach), all of the Subscription fees that were to be payable for any then-remaining portion of the Subscription Term under any Order; and (e) for thirty (30) days after termination. Any termination of this Agreement shall simultaneously terminate any Orders then in effect. Sections 1, 4.1, 4.4, 5, 6, 7.4, 7.5, 8.4, and 9 through and including 11 shall survive any termination of this Agreement or an applicable Subscription.

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7.5.    Return of Subscriber Content. Subscriber may request a return of any Raw Data or Customer Data then in Circulor’s possession and Circulor will return or make available such data to Subscriber in the format it was received in by Circulor or a format reasonably acceptable to Circulor (such as csv file) and after such 30 day period or the return of the Data, Circulor may delete any such Data in their possession.

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8.    WARRANTIES 

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8.1.    Solution and Related Services. Circulor warrants, for Subscriber’s benefit alone, that (a) throughout the applicable Subscription Term, the Solution will perform in accordance with the Documentation without material defect or error in its principal features and functions, and (b) the Related Services will be performed in a competent and professional manner in material accordance with standards common and prevalent in the industry and with the requirements contained in the applicable Order (provided that, with respect to either clause (a) or clause (b) of this Section 8.1, Subscriber must notify Circulor in writing of any failure to conform to the foregoing warranties within thirty (30) days after the material defect or error was first encountered or within 24 hour hours of when the applicable Related Services were performed. 

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8.2.    Exclusive Remedies. As Subscriber’s sole and exclusive remedies for any failure of any Solution or Related Services, as applicable, to conform to their respective warranties set forth in Section 8.1, and as Circulor’s entire liability for any breach of those warranties, Circulor shall, if Subscriber notifies Circulor in writing and in reasonable detail of the nature and extent of such failure within the applicable period stated in Section 8.1: (a) in the case of a breach of the warranty set forth in clause (a) of Section 8.1, use commercially reasonable efforts to correct such failure; or (b) in the case of a breach of the warranty set forth in Section 8.1(b), re-perform the affected Related Services. If the foregoing remedies are not commercially reasonable or practicable, Circulor may, in its discretion, reperform the Related Services in the case of Section 8.1(b) or, for Section 8.1(a) and (b), terminate this Agreement (or the applicable Order or Subscription) upon providing Subscriber with written notice thereof, and, in such event (as Subscriber’s sole and exclusive remedy and Circulor’s entire liability), refund to Subscriber: (i) in the case of breach of the warranty set forth in of Section 8.1(a), any Subscription fees paid by Subscriber with respect to the then-remaining or unexpired portion of the current Subscription Term for the non-conforming Solution; or (ii) in the case of breach of the warranty set forth in Section 8.1(b), any fees paid by Subscriber for the portion of Related Services giving rise to the breach. 

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8.3.    Exclusions. The warranties in Section 8.1 and 8.2 shall not apply to the extent that any failure to conform with such warranties arises or results from causes outside of Circulor’s reasonable control, including: (a) misuse, modification, or configuration of a Solution by Subscriber or any third party not under the direction or control of Circulor; (b) use of the Solution in breach of the Agreement, (c) use of  Solution in a manner other than that described or recommended in the Documentation; (d) use of a Solution with computer software or equipment other than those recommended in Circulor’s published specifications; (e) other causes within Subscriber’s computing environment or otherwise within Subscriber’s control or the control of third parties that are not under Circulor’s direction or control, including problems or issues with third-party software applications, hardware, network, or Internet connectivity or (f) any delays or failures related to failures of Subscriber to provide required support as stated in an Order. 

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8.4.    Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8 (WARRANTIES), NEITHER CIRCULOR NOR ITS LICENSORS, EMPLOYEES, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, RESELLERS, PARENT, AFFILIATES OR SUBSIDIARIES MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OR CONDITIONS (WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY) WITH RESPECT TO THE SOLUTION, ANY RELATED DOCUMENTATION, ANY RELATED SERVICES, SUPPLY CHAIN DATA, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTIES OR CONDITIONS (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) AND ANY WARRANTIES THAT MIGHT ARISE THROUGH USAGE OF TRADE OR CUSTOM, COURSE OF DEALING, OR COURSE OF PERFORMANCE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. CIRCULOR DOES NOT WARRANT THAT THE SOLUTION, RELATED SERVICES, SUPPLY CHAIN DATA, ARE WITHOUT DEFECT OR ERROR, WILL MEET SUBSCRIBER’S REQUIREMENTS, OR WILL BE CONTINUOUSLY AVAILABLE OR APPROPRIATE FOR SUBSCRIBER’S PARTICULAR USE.

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9.    INDEMNIFICATION

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9.1.    Indemnification by Circulor. Circulor will defend Subscriber against any claim, demand, suit or proceeding (“IP Claim”) made or brought against Subscriber by a third party alleging that Subscriber’s use of the Solutions in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify and hold harmless Subscriber from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Circulor under a settlement of, such IP Claim made in accordance with the terms of Section 9.5 (Indemnification Procedure). 

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9.2.    Exclusions. The foregoing obligations do not apply with respect to any IP Claim based on or arising from (a) Customer Data and Supply Chain Data; (b) the Solution and Solution-Provided Data or portions or components thereof: (i) used not strictly in accordance with this Agreement or in an environment or on a platform or with devices for which it was not designed or contemplated; (ii) made in whole or in part in accordance with Subscriber provided specifications; (iii) modified, altered or enhanced by a party other than Circulor; (iv) combined with other products, services, processes, content or materials not supplied by Circulor where the alleged infringement would not have occurred without such combination. The foregoing obligations also do not apply to (v) any continuing allegedly infringing activity after Subscriber is notified thereof or provided modifications that would have avoided the alleged infringement, or (vi) any IP Claims based on or arising out of Subscriber’s or Users breach of this Agreement ((i) through (vi) collectively, the “Excluded Claims”). 

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9.3.    Potential Infringement. If Circulor receives information about an infringement or misappropriation claim arising directly out of the Solution (and not arising out of an Excluded Claim), Circulor may in its discretion and at no cost to Subscriber (a) modify the Solution so that it no longer infringes or misappropriates; (b) obtain a license for Subscriber’s continued use of the Solution in accordance with this Agreement or (c) if (a) and (b) are not commercially practicable despite Circulor’s reasonable efforts, then Circulor may terminate Subscriber’s subscription for the Solution and refund Subscriber a pro-rated amount of any prepaid fees covering the remainder of the term of the terminated Subscription. This Section 9 (Indemnification) states Circulor’s sole liability, and Subscriber’s exclusive remedy, for any infringement or misappropriation of third-party intellectual property rights with respect to the Solution.

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9.4.    Indemnification by Subscriber. Subscriber will defend Circulor against any claim, demand, suit or proceeding made or brought against Circulor by a third party (“Other Claim”) alleging (a) that any Customer Data, Raw Data, or Subscriber’s use of the Solution or the Solution-Provided Data in breach of this Agreement, violates, infringes or misappropriates such third party’s intellectual property or other proprietary or privacy rights or violates applicable law, order, rule or regulation; or (b) any Excluded Claims, and will indemnify and hold harmless Circulor from any damages, attorney fees and costs finally awarded to such third parties as a result of, or for any amounts paid by Subscriber under a settlement of, such Other Claim made in accordance with the terms of Section 9.5 (Indemnification Procedure).

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9.5.    Indemnification Procedure. Any for indemnification hereunder requires that the indemnified party (a) promptly give the indemnifying party written notice of the IP Claim or Other Claim as applicable (either a “Claim”); (b) give the indemnifying party sole control of the defense and settlement of the Claim, provided that the indemnifying party may participate in the defense of the Claim with counsel of its choosing at its own expense and further provided that the indemnified party shall not be responsible for any settlement that it does not approve in writing, such approval not to be unreasonably withheld and (c) give the indemnifying party all reasonable assistance, at indemnifying party’s expense. 

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10.    LIMITATION OF LIABILITY 

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NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANYTHING ELSE TO THE  CONTRARY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, DATA LOSS, DAMAGE OR DISCLOSURE, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY  SOURCE, REGARDLESS OF THE NATURE OF THE CLAIM OR THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF  SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR AGGREGATE LIABILITY THAT EXCEEDS THE CUMULATIVE AMOUNT ACTUALLY PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT FROM WHICH THE CLAIM AROSE UNDER THE APPLICABLE ORDER(S). THE FOREGOING EXCLUSIONS OF CERTAIN TYPES OF DAMAGES AND LIMITATIONS OF LIABILITY SHALL APPLY WITHOUT REGARD TO WHETHER ANY PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, HAVE PROVEN INEFFECTIVE, OR HAVE FAILED OF THEIR ESSENTIAL PURPOSE. The exclusions and limitations under this paragraph do not apply to liability or claims arising from or related to: (a) either party’s defense or indemnification obligations under Section 9 (Indemnification), (b) Subscriber’s payment obligations hereunder, or (c) a party’s fraud, willful misconduct, or gross negligence. 

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11.    GENERAL PROVISIONS

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11.1.    Changes to the Solutions. Circulor expressly reserves the exclusive right to, without prior notice, at any time and from time to time: (a) offer new, additional, or substitute Solutions; and (b) modify, amend, or discontinue offering all or any particular Solution. Nevertheless, during any given current Subscription Term, Circulor will not, except as expressly provided elsewhere in this Agreement: (y) materially reduce or decrease the functionality and features of the Solutions provided under the applicable Order; or (z) cease offering any of such Solution without offering a substitute of comparable functionality and features.

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11.2.    Relationship between Subscriber and Circulor. The relationship between the parties is that of independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Subscriber does not have any authority of any kind to bind or attempt to bind Circulor in any respect whatsoever. 

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11.3.    Audit. Subscriber shall permit Circulor (or a representative of Circulor), on reasonable notice, to attend the offices of Subscriber and/or to inspect the relevant books, records, systems and equipment of Subscriber and upon request from Circulor, Subscriber shall complete an audit questionnaire, in each case, to verify Subscriber’s: (a) compliance with the terms of this Agreement and any relevant Order and (b) physical and technical environment as it relates to the receipt, maintenance, use and retention of the Solution Solution-Provided Data. In conducting any such verification, Circulor use its reasonable efforts to limit disruption to the normal business activities of Subscriber. Subscriber’s failure to promptly comply with the foregoing shall be deemed a material breach of this Agreement.

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11.4.    Force Majeure. Neither party shall be liable for delays or any failure to perform under this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. This provision shall not excuse the payment of fees due under this Agreement, provided that Circulor continues to provide the Subscription(s) as set forth herein.

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11.5.    Notices. Any notice given pursuant to this Agreement shall be in writing and delivered to the parties at their respective addresses stated on an applicable Order or at such other address designated by written notice hereunder. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if sent by email or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. 

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11.6.    Export. The Solution, Data, and other Circulor technology and derivatives thereof may be subject to export laws and regulations of the European Union, the United States, and other jurisdictions. Each party represents that it is not on any government denied-party list. Subscriber will not permit any User to access or use the Solution or Data in violation of any applicable export law or regulation.

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11.7.    Publicity. Subscriber hereby consents to inclusion of its name and logo in client lists that may be published as part of Circulor’s marketing and promotional efforts. 

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11.8.    Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), upon providing notice to the other party, but without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

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11.9.    Entire Agreement, Severability, and Waiver. The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous and contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and shall control over any different or additional terms of any purchase order, acknowledgement or other non-Circulor ordering document, and no terms included in any such purchase order, acknowledgement, or other non-Circulor ordering document shall apply to any Order, the Solution, or any Related Services. This Agreement may only be amended by an instrument in writing signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. Section headings are for ease of reference only and do not form part of the Agreement. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

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11.10.    Counterparts; Execution. This Agreement and any Orders may be executed electronically and in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. 

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11.11.    Circulor reserves the right to amend this Agreement by posting the update version to https://www.circulor.com/standard-terms-and-conditions. Renewal of existing Subscriptions or the purchase of an additional Subscription constitutes acceptance of any updated terms

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11.12.    Governing Law; Third Parties. This Agreement, and any non-contractual obligations arising hereunder, shall be governed by and construed in accordance with the laws of England and Wales. Any dispute arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of England. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of competent jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights. No third party has any rights under this Agreement, and the Contracts (Third Party Rights) Act 1999 does not apply.