Terms and Conditions
January 15, 2025
THESE STANDARD TERMS AND CONDITIONS (THESE "STANDARD TERMS") ARE BETWEEN KAMBRIUM GMBH ("KAMBRIUM") AND THE ENTITY IDENTIFIED AS "CUSTOMER" IN THE ORDER FORM, CHECKOUT PAGE, OR ORDER CONFIRMATION EMAIL REFERENCING THESE STANDARD TERMS (THE "ORDER"). THESE STANDARD TERMS, THE ORDER, AND ANY OTHER TERMS INCORPORATED BY REFERENCE INTO THESE STANDARD TERMS OR THE ORDER (COLLECTIVELY, THE "AGREEMENT") APPLY TO THE PROVISION OF ACCESS TO AND USE OF THE KAMBRIUM TECHNOLOGY (AS DEFINED BELOW) AND RELATED SERVICES UNLESS CUSTOMER HAS ENTERED INTO A SEPARATE ENTERPRISE AGREEMENT WITH KAMBRIUM FOR THE USE OF THE KAMBRIUM TECHNOLOGY, IN WHICH CASE SUCH ENTERPRISE AGREEMENT WILL GOVERN SUCH USE. KAMBRIUM AND CUSTOMER ARE EACH A "PARTY" AND, COLLECTIVELY, THE "PARTIES." CAPITALIZED TERMS USED BUT NOT DEFINED IN THESE STANDARD TERMS WILL HAVE THE MEANINGS SET FORTH IN THE ORDER. ACCEPTANCE OF THESE STANDARD TERMS IS A CONDITION TO ACCESSING AND USING THE KAMBRIUM TECHNOLOGY.
1. Overview
Subject to the terms and conditions of this Agreement, Kambrium will make available to Customer Kambrium's software-as-a-service platform available at https://kambrium.com, which provides (a) AI visibility analytics and brand monitoring concerning certain third-party artificial intelligence platforms' ("AI Platforms") treatment of specified products, services, and brand assets, (b) tools for creating Generated Content (as defined below), and (c) other features and functionality as further described in the applicable Order (collectively, the "Services"). Use of the Services may be subject to certain limitations, such as limits on the number of prompts that may be submitted for analysis on AI Platforms ("Prompts") or the number of responses collected from AI Platforms ("Responses"), as further described in the applicable Order.
2. Services
2.1. Ordering Process; Agreement.
Subscriptions to Services are purchased pursuant to one or more Orders. Each Order will identify the Services to which Customer is subscribing and, as applicable, the number of queries permitted, limitations around the structure or scope of data to be returned in response to queries, and the time period for which such Order applies.
2.2. Access Grant.
During the Term, subject to Customer's compliance with the terms of this Agreement, Customer may access and use the Services only for Customer's internal business purposes in accordance with the Documentation, this Agreement, and any limitations set forth in the Order.
2.3. Users.
"User" means an employee or contractor of Customer that Customer allows to use the applicable Kambrium Technology on Customer's behalf, using the mechanisms designated by Kambrium ("Log-in Credentials"). Customer will not make available the Kambrium Technology to any person or entity other than Users. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users' compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Kambrium's breach of this Agreement). Customer will promptly notify Kambrium if it becomes aware of any compromise of any Log-in Credentials. Kambrium may collect, access, use, disclose, transfer, transmit, store, host, or otherwise process ("Process") Log-in Credentials in connection with Kambrium's provision of the Services or for Kambrium's internal business purposes.
2.4. Documentation.
During the Term, subject to Customer's compliance with the terms of this Agreement, Kambrium hereby grants to Customer a limited, non-exclusive, non-transferable (except as set forth in Section 18.1), and non-sublicensable right and license to internally use the then-current version of Kambrium's usage guidelines and standard technical documentation for the Services that Kambrium makes generally available to its customers ("Documentation"), solely in connection with Customer's exercise of the rights granted in Section 2.2.
2.5. Restrictions.
Customer will not (and will not permit anyone else to), directly or indirectly, do any of the following: (a) provide access to, distribute, sell, or sublicense the Services, Documentation, or related processes, configurations, or technology provided by or on behalf of Kambrium (collectively, "Kambrium Technology") to a third party (other than Users); (b) use the Kambrium Technology to develop a similar or competing product or service or to provide products or services to a third party; (c) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Kambrium Technology, except to the extent such a restriction is not permitted under applicable Law (and then only with prior notice to Kambrium); (d) modify or create derivative works of the Kambrium Technology or copy any element of the Kambrium Technology; (e) remove or obscure any proprietary notices in the Kambrium Technology; (f) publish benchmarks or performance information about the Kambrium Technology; (g) interfere with the operation of the Kambrium Technology, circumvent any access restrictions, or conduct any security or vulnerability test of the Kambrium Technology; (h) transmit any viruses or other harmful materials to the Kambrium Technology; (i) take any action that risks harm to others or to the security, availability, or integrity of the Kambrium Technology; or (j) access or use the Kambrium Technology in a manner that violates any applicable relevant local, state, federal or international laws, regulations and conventions, including those related to data privacy or data transfer, international communications, or export of data ("Law").
3. Support
During the Term, Kambrium will use commercially reasonable efforts to provide the applicable Kambrium Technology in a manner that minimizes errors and interruptions in accessing the Kambrium Technology. During the Term, Kambrium may provide technical support to Users for issues and questions arising from the operation of the Kambrium Technology.
4. Data and Artificial Intelligence
4.1 Use of Customer Data
Customer hereby grants Kambrium a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to contractors and service providers), non-transferable (except as set forth in Section 18.1) right to use, copy, store, disclose, transmit, transfer, publicly display, modify, create derivative works from, and Process any materials that Customer (including its Users) inputs or makes available to Kambrium, including any Prompts or other queries submitted through the Services ("Customer Data") solely as necessary: (a) to perform its obligations set forth in this Agreement; (b) to derive or generate Telemetry; or (c) to comply with applicable Laws. "Telemetry" means information generated from use of the Service, such as technical logs, data, metrics, and learnings related to Customer's and Users' use of the Services, which information does not identify Users, Customer, or any natural human persons as the source thereof. Kambrium may use and exploit Telemetry without restriction. For the avoidance of doubt, Kambrium does not train the artificial intelligence or machine learning models used in the Services, nor does it authorize any AI Platform to train its applicable artificial intelligence or machine learning models, on any (i) Prompts or Responses from or provided to Customer in connection with Customer's use of the Services, or (ii) Customer Data which is collected by Kambrium through third-party APIs.
4.2 Output
Kambrium (including its service providers) collects and receives certain data, including Responses, by Processing certain Customer Data in connection with the Services. This data generation and collection process may be conducted, in whole or in part, using technologies that use or rely upon artificial intelligence, machine learning techniques, and other similar technology and features, including AI Platforms. In response to Customer's (including its Users') Prompts or other queries submitted through the Services, Kambrium may make available to Customer certain of these data, as well as reports, information, content, and other materials (collectively, "Output"). For the avoidance of doubt, Output does not include Generated Content (as defined below). Customer acknowledges and agrees that Output may be comprised of proprietary and third-party data, information, and content, and Customer may use the Output solely in accordance with the terms and conditions of this Agreement and applicable Laws.
4.3 Generated Content.
The Services may generate or otherwise provide to Customer words, phrases, images, and other works of authorship for marketing, promotional, or other similar purposes ("Generated Content"). Customer is responsible for reviewing all Generated Content to ensure it is suitable for use by Customer, and Kambrium does not guarantee that the Generated Content will be true or accurate. Customer acknowledges and agrees that Kambrium will not be liable for Customer's use of any such Generated Content or any other content generated by the Services. Customer relies on the Generated Content at its sole risk as further described in Section 9 (Warranties and Disclaimers). Kambrium may, at its discretion and as applicable, remove from the Services any Customer Data or Generated Content, or any part thereof, for any reason.
4.4 AI Platforms
The Services may provide Output from AI Platforms as further described in the applicable Order. Notwithstanding the foregoing, Kambrium does not guarantee that Output from any specific AI Platform will be available on the Service at any time. The inclusion of Output from any specific AI Platform on the Service is at Kambrium's sole discretion and may change at any time.
5. Customer Obligations
Customer is responsible for its Customer Data, including its content and accuracy, and will comply with applicable Laws when using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Kambrium to Process Customer Data and exercise the rights granted to it in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.
6. Suspension of Service
Kambrium may immediately suspend Customer's access to any or all of the Kambrium Technology if: (a) Customer breaches Section 2.5 (Restrictions) or Section 5 (Customer Obligations); (b) Customer's account is 30 days or more overdue; (c) changes to Laws or new Laws require that Kambrium suspend the Kambrium Technology or otherwise may impose additional liability on the part of Kambrium; or (d) Customer's actions risk harm to any of Kambrium's other customers or the security, availability, or integrity of any of the Kambrium Technology. Where practicable, Kambrium will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Kambrium will restore Customer's access to the applicable Kambrium Technology.
7. Third-Party Platforms
The Services may support integration with third-party platforms, add-ons, services, or products not provided by Kambrium ("Third-Party Platforms"), including but not limited to various AI platforms and data sources. Use of any Third-Party Platforms integrated with or made available through the Services is subject to Customer's agreement with the relevant provider and not this Agreement. Kambrium does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Kambrium Technology or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Kambrium Technology, Customer authorizes Kambrium to access and exchange Customer Data with such Third-Party Platform on Customer's behalf. To the extent an integration with a Third-Party Platform requires that Kambrium use Customer's access credentials for such Third-Party Platform, Customer: (a) agrees to provide such credentials, (b) represents and warrants that Customer has all necessary rights to provide such credentials, and (c) authorizes Kambrium to use such credentials on Customer's behalf in connection with the provision of the Services.
8. Fees and Taxes
8.1 Fees
Customer will pay the fees for the Kambrium Technology set forth in each Order ("Fees"). All Fees will be paid in Euro unless otherwise provided in the Order. Fees are invoiced as described on the schedule in the Order. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. Fees for Renewal Terms are at Kambrium's then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees are non-refundable except as may be set out in Section 9.2 (Warranty Remedy) and Section 13.4 (Mitigation).
8.2 Taxes
Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Kambrium's income tax ("Taxes"). Fees are exclusive of all Taxes.
9. Warranties and Disclaimers
9.1 Limited Warranty
Kambrium warrants to Customer that the Services will perform materially as described in its Documentation and Kambrium will not materially decrease the overall functionality of the Services ("Limited Warranty") during the Term ("Warranty Period").
9.2 Warranty Remedy
If Kambrium breaches the Limited Warranty during the Warranty Period and Customer makes a reasonably detailed warranty claim in the manner required by Kambrium within 30 days of discovering a breach of the Limited Warranty, then Kambrium will use reasonable efforts to correct the non-conformity. If Kambrium cannot do so within 30 days of receipt of Customer's warranty claim, either party may terminate the Agreement as it relates to the non-conforming Service. Kambrium will then refund to Customer any pre-paid, unused fees for the terminated portion of the Term. This Section sets forth Customer's exclusive remedy and Kambrium's entire liability for breach of the Limited Warranty. The Limited Warranty does not apply to: (a) issues caused by Customer's or Users' misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by AI Platforms or Third-Party Platforms or other third-party systems; (c) use of the applicable Kambrium Technology other than according to the Documentation; or (d) Trials and Betas (as described in Section 16) or other free or evaluation use of the Kambrium Technology.
9.3 Disclaimers
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1 (LIMITED WARRANTY), THE KAMBRIUM TECHNOLOGY, ANY SUPPORT, OR TECHNICAL SERVICES, OUTPUT, GENERATED CONTENT, AND ALL OTHER KAMBRIUM SERVICES ARE PROVIDED "AS IS". KAMBRIUM, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. KAMBRIUM DOES NOT WARRANT THAT CUSTOMER'S USE OF THE KAMBRIUM TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE, THAT KAMBRIUM WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. KAMBRIUM IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE KAMBRIUM'S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. Without limiting the foregoing, Customer acknowledges and agrees that: (a) the Services, Output, and Generated Content are not professional advice; (b) the Services may produce inaccurate or erroneous Output or Generated Content; (c) Customer is responsible for independently evaluating the Output, Generated Content, and any other information Customer receives from the Services; and (d) due to the nature of the Services and artificial intelligence technologies generally, Output and Generated Content may not be unique and other users of the Services may receive output from the Services that is similar or identical to the Output or Generated Content (and, notwithstanding anything to the contrary, such similar or identical output will not be understood to be Output or Generated Content, as applicable, hereunder).
10. Term and Termination
10.1 Term
Unless earlier terminated in accordance with the terms of this Agreement, the "Initial Term" of this Agreement will be as set forth on the Order. Thereafter, unless this Agreement terminates earlier in accordance with the terms of this Agreement, this Agreement will automatically renew for additional successive "Renewal Terms" having the length set forth on the Order (the Initial Term and any Renewal Terms, collectively, the "Term"), unless either party gives the other party notice of non-renewal at least 30 days before the end of the Initial Term or applicable Renewal Term. If no Renewal Term is specified in the Order, then the Term of this Agreement will end at the conclusion of the Initial Term. Kambrium may, from time to time, amend these Standard Terms, and will post such amended Standard Terms on Kambrium's website at https://kambrium.com/terms-conditions, noting the date of the last such amendment. Such amendments will be effective on the earlier of acceptance by Customer or 30 days following the date on which they are posted. Upon the commencement of any Renewal Term, this Agreement will renew on the then-current version of these Standard Terms.
10.2 Termination
Either party may terminate this Agreement (including the Order) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.
10.3 Effect of Termination
Upon expiration or termination of this Agreement, Customer's rights to access, and Kambrium's obligations to provide, the Kambrium Technology will cease. Following the date of expiration or earlier termination of this Agreement, Kambrium will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion. Customer Data and other Confidential Information (as defined in Section 14) may be retained in Recipient's (as defined in Section 14) standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement's confidentiality restrictions.
10.4 Survival
These Sections survive expiration or termination of this Agreement: 2.5 (Restrictions), 4 (Data), 5 (Customer Obligations), 8 (Fees and Taxes), 9.3 (Disclaimers), 10.3 (Effect of Termination), 10.4 (Survival), 11 (Ownership), 12 (Limitations of Liability), 13 (Indemnification), 14 (Confidentiality), 15 (Required Disclosures), and 18 (General Terms). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
11. Ownership; Feedback
Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in the Customer Data. Except for the rights and licenses granted in this Agreement, Kambrium and its licensors retain all intellectual property rights in and to the Kambrium Technology. To the extent Customer provides Kambrium with feedback (including suggestions and comments for enhancements or functionality) regarding the Kambrium Technology, Output (including underlying datasets), Generated Content, or Kambrium's products, services, or other technology ("Feedback"), Kambrium has (a) sole discretion to determine whether and how to proceed with Feedback and (b) the full and unrestricted right to use or incorporate Feedback into any of its products, services, technology, or other materials.
12. Limitations of Liability
12.1 Consequential Damages Waiver
EXCEPT FOR LIABILITY ARISING FROM EXCLUDED CLAIMS (AS DEFINED BELOW) NEITHER PARTY (NOR ITS SUPPLIERS OR LICENSORS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
12.2 Liability Cap
EXCEPT FOR LIABILITY ARISING FROM EXCLUDED CLAIMS, EACH PARTY'S (AND ITS SUPPLIERS' AND LICENSOR'S) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO KAMBRIUM PURSUANT TO THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM GIVING RISE TO THE LIABILITY AROSE UNDER THIS AGREEMENT.
12.3 Excluded Claims
"Excluded Claims" means: (a) Customer's breach of Sections 2.5 (Restrictions) or 5 (Customer Obligations); or (b) either party's breach of Section 14 (Confidentiality) (but excluding claims relating to Customer Data).
12.4 Nature of Claims and Failure of Essential Purpose
The waivers and limitations in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
13. Indemnification
13.1 Indemnification by Kambrium
Kambrium will defend Customer from and against any third-party claim to the extent alleging that the Kambrium Technology, when used by Customer in accordance with this Agreement, infringes or misappropriates a third party's European patent, copyright, trademark, or trade secret, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys' fees) or agreed in a settlement by Kambrium resulting from the claim.
13.2 Indemnification by Customer
Customer will indemnify and hold harmless and, at Kambrium's request will defend, Kambrium from and against any third-party claim, including any damages and costs awarded against Kambrium (including reasonable attorneys' fees) or agreed in a settlement by Customer resulting from the claim, to the extent resulting from Customer Data, Customer's breach of this Agreement, or Customer's use of Output or Generated Content.
13.3 Procedures
The indemnifying party's obligations in this Section 13 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party's expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party's prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Kambrium Technology, when Kambrium is the indemnifying party).
13.4 Mitigation
In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Kambrium determines necessary to avoid material liability, Kambrium may at its option: (a) procure rights for Customer's continued use of the applicable Kambrium Technology; (b) replace or modify the allegedly infringing portion of the applicable Kambrium Technology to avoid infringement or misappropriation without reducing such Kambrium Technology's overall functionality; or (c) terminate this Agreement and refund to Customer any pre-paid, unused fees for the terminated portion of the Term.
13.5 Exceptions
Kambrium's obligations in this Section 13 do not apply: (a) to infringement or misappropriation resulting from Customer's modification of Kambrium Technology or use of Kambrium Technology in combination with items not provided by Kambrium (including Third-Party Platforms); (b) to unauthorized use of the Kambrium Technology; (c) if Customer settles or makes any admissions about a claim without Kambrium's prior consent; or (d) to Trials and Betas or other free or evaluation use.
13.6 Exclusive Remedy
THIS SECTION 13 SETS OUT CUSTOMER'S EXCLUSIVE REMEDY AND KAMBRIUM'S ENTIRE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
14. Confidentiality
14.1 Definition
"Confidential Information" means information disclosed to the receiving party ("Recipient") under this Agreement that is designated by the disclosing party ("Discloser") as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Kambrium's Confidential Information includes the terms and conditions of this Agreement, Output, and the Kambrium Technology (including any technical or performance information about the Kambrium Technology). Customer's Confidential Information includes Customer Data, Prompts, and Responses.
14.2 Obligations
As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser's request, Recipient will delete all Confidential Information, except, in the case where Kambrium is the Recipient, Kambrium may retain the Customer's Confidential Information to the extent required to continue to provide the Kambrium Technology as contemplated by this Agreement. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Kambrium, the subcontractors referenced in Section 18.8), provided it remains responsible for their compliance with this Section 14 and they are bound by written agreements (or, in the case of professional advisers like attorneys and accountants, ethical duties) imposing confidentiality and non-use obligations no less protective than this Section 14.
14.3 Exclusions
These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party or its representatives; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using or referencing Confidential Information.
14.4 Remedies
Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 14, without necessity of posting a bond or proving actual damages.
15. Required Disclosures
Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
16. Trials and Betas
If Customer receives access to Kambrium Technology or features thereof on a free or trial basis or as an alpha, beta, or early access offering ("Trials and Betas"), use is permitted only for Customer's internal evaluation during the period designated by Kambrium (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Kambrium may never release, and their features and performance information are Kambrium's Confidential Information.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, KAMBRIUM PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS, AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED EUR 50.
17. Publicity
Kambrium may include Customer and its trademarks in Kambrium's customer lists and promotional materials but will cease further use at Customer's written request.
18. General Terms
18.1 Assignment
Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its voting securities or assets to which this Agreement relates to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns.
18.2 Governing Law, Jurisdiction and Venue
This Agreement is governed by the laws of Germany without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the courts located in [City], Germany and both parties submit to the personal jurisdiction of those courts.
18.3 Notices
Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to [Company Address] if to Kambrium or to the address or email address specified on the Order if to Customer, and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered mail (return receipt requested); (c) one day after dispatch if by a commercial overnight delivery service; or (d) upon the earlier of the receipt of a confirmation email or one day after sending if by email. Either party may update its address with notice to the other party pursuant to this Section. Kambrium may also send operational notices to Customer by email or through the Service.
18.4 Entire Agreement
This Agreement is the parties' entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and "including" and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
18.5 Amendments
Except as permitted by Section 10.1, any other amendments, modifications, or supplements to this Agreement must be in writing and signed by each party's authorized representatives or, as appropriate, agreed through electronic means provided by Kambrium. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Kambrium; any of these Customer documents are for administrative purposes only and have no legal effect.
18.6 Waivers and Severability
Waivers must be signed by the waiving party's authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, such invalidity will not affect the remainder of this Agreement, and the invalid, illegal, or unenforceable provision will be replaced by a valid provision that has as near as possible an effect to that of the invalid, illegal, or unenforceable provision as is reasonably practicable without such replacement provision risking similar invalidity, illegality, or unenforceability.
18.7 Force Majeure
Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster.
18.8 Subcontractors
Kambrium may use subcontractors and permit them to exercise Kambrium's rights, but Kambrium remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
18.9 Independent Contractors
The parties are independent contractors, not agents, partners, or joint venturers.
18.10 Export
Customer will comply with all relevant European and foreign export and import Laws in using any Kambrium Technology. Customer: (a) represents and warrants that it is not listed on any government list of prohibited or restricted parties or located in (or a national of) a country that is subject to government embargo or that has been designated by any government as a "terrorist supporting" country; (b) agrees not to access or use the Kambrium Technology in violation of any export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under applicable export regulations.
18.11 Open Source
The Services may incorporate third-party open source software ("OSS"), including as listed in the Documentation or otherwise disclosed by Kambrium in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
18.12 Government End-Users
Elements of the Kambrium Technology may include commercial computer software. If the user or licensee of the Kambrium Technology is an agency, department, or other entity of any Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Kambrium Technology or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement. The Kambrium Technology was developed fully at private expense. All other use is prohibited.
18.13 Conflicts in Interpretation
If there are inconsistencies or conflicts between the terms of any Order and these Standard Terms the terms of the Order will control to the extent of the conflict.