These Prepay Terms of Service are made between Selerum (as defined in Section 2 (Defined Terms)) and the customer who orders Selerum services (“you” or “Customer”).
- THE AGREEMENT
Your use of the Services is governed by these Prepay Terms of Service which includes the Acceptable Use Policy and the terms of your Order. Your Order may have additional Product Terms and Conditions that apply to the particular services in your Order. When we use the term “Agreement” in any of the Order, Prepay Terms of Service, Acceptable Use Policy, and Product Terms and Conditions we are referring collectively to all of them. Your use of the Services includes the ability to enter into agreements and make purchases electronically. You acknowledge that your electronic assent constitutes your acceptance to the Agreement for each electronic purchase or transaction you enter. Selerum may accept or reject any Order you submit in its sole discretion. Selerum’s provisioning of the Services described in an Order shall be Selerum’s acceptance of the Order.
If you are entering into this Agreement on behalf of a legal entity, such as the company you work for, you warrant and represent to us that you have the legal authority to bind that entity to this Agreement. Other than with respect to free, introductory, student, developer or pro bono accounts approved by Selerum (the “Exceptions”), you acknowledge and agree you will use the Services for commercial purposes only. The individual who submits an Order for Services warrants and represents that they do so on behalf of a business, company or other legal entity and not as a consumer, unless under Sub-section 24.1.2 or one of the Exceptions. If the individual placing the Order is a consumer, save under Sub-section 18.1.1 or one of the Exceptions, Selerum reserves the right to cancel the Order at any time at its sole discretion.
- DEFINED TERMS
Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Acceptable Use Policy set out at http://www.selerum.com/legal/aup as of the date you submit the Order, as it may be amended.
“Affiliate” means any and all legal entities which now or hereafter the ultimate parent of a party to this Agreement controls. For the purpose of this definition, “control” means an entity, directly or indirectly, holding more than fifty percent (50%) of the issued share capital, or more than fifty percent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity.
“API” means application programming interface.
“Business Day” means Monday to Friday, excluding public holidays, in the applicable jurisdiction set forth in Section 24.1 below.
“Business Hour” means 8:00 a.m. – 6:30 p.m. on a Business Day.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, non-public information of the parties relating to their business activities or financial affairs, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through breach of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Customer Data” means all data (including software, text, sound files and Personal Data) and other content that are stored by you or your end-user(s) on the Hosted System or otherwise processed by you or your end-user(s) through your use of the Services.
“Data Processing Addendum” means the terms and conditions that are incorporated by reference in these Prepay Terms of Service in Sub-section 19.2 (Customer Data Privacy).
“Hosted System” means a combination of hardware, software and networking elements that comprise an information technology system.
“Order” means (i) the online order that you submit or accept for the Services, (ii) any other written order (either in electronic or paper form) provided to you by Selerum for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and (iii) your use or provisioning of the Services through the Selerum cloud control panel or through an API.
“Personal Data” means any information that is referred to as personal identifiable information, personal data or personal information (or other like term) under applicable data protection or privacy law. It includes information that by itself or combined with other information can be used to identify a person.
“Product Terms and Conditions” means the terms and conditions that are incorporated by reference in your Agreement and that state additional terms and conditions for the particular Services you are buying.
“Selerum” or “we” unless otherwise expressly agreed in writing in your Order, means Selerum Inc.
“Service Level Agreement” means (i) a service level guarantee or guarantees identified as a “Service Level Guarantee” in the Agreement and/or (ii) any provision which provides a specified credit remedy for an identified failure to deliver or provide the Services.
“Services” means the Selerum cloud software and services described in the Order, and includes any services which you self-provision through the Selerum cloud control panel or which you utilize via an API.
“Support” means (i) Selerum employees with training and experience relative to the Services will be available during business hours and on-call outside of business hours and (ii) any additional level of assistance offered by Selerum for the specific Services you are purchasing, and described in the applicable Product Terms and Conditions or Order.
- SELERUM’S OBLIGATIONS
Selerum shall provide to you the Services and Support subject to the terms and conditions of Agreement. Selerum’s obligation to begin providing the Services and Support is contingent on your satisfaction of Selerum’s credit approval criteria. Selerum will comply with all laws applicable to its provision of the Services.
- CUSTOMER’S OBLIGATIONS
4.1 General. You agree to do each of the following: (i) comply with applicable law and the terms and conditions of the Agreement, (ii) pay the fees for the Services when due, (iii) ensure that your customer account information as it appears in your invoices is true, accurate, current and complete; and (iv) cooperate with Selerum’s reasonable investigation of service outages and any suspected breach of the Agreement.
- TERM AND RENEWAL
5.1 Term. The initial term for each Order begins on the date that you place the order. Services performed from the Order day forward are billed at the reduced prepay rate available on that date. Every billing cycle (on the 1st and 15th of the month) we will charge your payment method to pay any open invoice balances.
5.2 Renewal. We will charge your payment method to pay all open invoice balances.
5.3 Cancellation. You can request the cancellation of your Prepay plan at any time. If there are any invoices that have not been billed at the time of your request these will be paid by your payment method. Your account will become NET 30 after that time.
Additional fees may apply to customers under Cloud Commitment or similar arrangements.
- FEES AND PAYMENT TERMS
6.1 Selerum will charge you and you agree to pay when due the fees for the Services in accordance with your Order. Unless you have made other arrangements, Selerum will bill your or charge your credit card per the Renewal plan you selected. Selerum may suspend all Services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason. Selerum may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and Selerum brings a legal action to collect, or engages a collection agency, you must also pay Selerum’s reasonable costs of collection, including legal fees (including legal fees) and court costs. Unless stated otherwise, fees are stated and will be charged in the same currency as per your Order. Any “credit” that we may owe you, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund. If there is a dispute with respect to any portion of an invoice, you shall pay the undisputed portion of the fees promptly and provide written details specifying the basis of any dispute. Each of us agrees to work together to promptly resolve any disputes. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You authorize Selerum to obtain a credit report at any time during the term of the Agreement.
6.2 For those Services provided on a periodic terms, we may increase fees at any time on thirty (30) days’ advance written notice. If your Order contains Services with a specified term longer than one (1) month, then we may increase your fees effective as of the first day of the renewal term following thirty (30) days from the day of our written notice of such fee increase.
6.3 EMERGENCY RATES. For Orders requiring immediate response which will include hours outside of a standard Business Day and Business Hour you agree to pay the Emergency Rate for the time outside of our standard Business Day and Business Hour.
- TAXES ON SERVICES
7.1 Sales Taxes. Unless otherwise expressly provided in the Agreement or included in the invoice for the Services, all amounts due to Selerum under the Agreement are exclusive of any value added, goods and services, sales, use, property, excise and like taxes, import duties and/or applicable levies (collectively, “Tax”). If Selerum is required by law to collect Taxes on the provision of the Service, Selerum will invoice you for such Tax and you must pay Selerum the amount of the Tax that is due or provide Selerum with satisfactory evidence of your exemption from the Tax. The obligation to pay any Taxes that Customer may be required to pay in connection with Customer’s use of Services or Customer’s payment of amounts due to Selerum under the Agreement shall be borne exclusively by Customer. You must provide Selerum with accurate factual and adequate information and documentation (as determined by Selerum), to help Selerum determine if any Tax is due with respect to the provision of the Services.
7.2 Withholding Taxes. All payments to Selerum shall be made without any withholding or deduction for any Taxes, except for any withholding (or similar) taxes imposed on income that may be attributed to Selerum in connection with its provision of the Services that you are legally required to withhold from such payment and remit to the applicable governmental or taxing authority (such taxes, “Local Withholding Taxes”). You agree to timely provide Selerum with adequate and accurate factual information and documentation (as determined by Selerum), including tax receipts, of your payment of any such Local Withholding Taxes. Selerum shall remit such cost to you in the form of a credit on your outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes as set forth above.
- SUSPENSION OF SERVICES
8.1 Grounds for Suspension. We may suspend the Services without liability if:
8.1.1 we reasonably believe that the Services are being used (or have been or will be used) in breach of the Agreement;
8.1.2 we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past;
8.1.3 you don’t cooperate with our reasonable investigation of any suspected breach of the AUP;
8.1.4 we reasonably believe that the Services have been accessed or manipulated by a third party without your consent;
8.1.5 we reasonably believe the suspension of the Services is necessary to protect our network or our customers;
8.1.6 a payment of any invoiced amount is overdue; or
8.1.7 we are required by law or a regulatory or government body to suspend your Services.
8.2 Notice of Suspension. We will give you reasonable advance notice of a suspension under this Sub-section and a chance to cure the grounds on which the suspension are based, unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Selerum or our other customers from imminent and significant operational, legal, or security risk.
8.3 Fees and Remedies. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (at our discretion) upon reinstatement of the Services. If your Services are compromised, then you must address the vulnerability prior to Selerum placing the Services back in service or, at your request, we may be able to perform this work for you at our standard hourly rates as a supplementary service.
- TERMINATION FOR BREACH
9.1 Our right to terminate. We may terminate the Agreement for breach on written notice if:
9.1.1 we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete;
9.1.2 you did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer;
9.1.3 your payment of any invoiced amount is overdue and you do not pay the overdue amount within four (4) Business Days of our written notice;
9.1.4 you have made payment arrangements via credit card or other third party, and the third party refuses to honor or reverses our charges, or you initiate a charge-back;
9.1.5 you fail to comply with any other obligation stated in the Agreement and do not remedy the failure within thirty (30) days of our written notice to you describing the failure;
9.1.6 you breach the AUP more than once even if you remedy each breach;
9.1.7 a credit report indicates that you no longer meet our reasonable credit criteria, provided that we will give you a reasonable opportunity to migrate your environment out of Selerum in an orderly fashion before we terminate on these grounds;
9.1.8 you use the Services in violation of the AUP and fail to remedy the breach within ten (10) days of our written notice; or
9.1.9 your agreement for any other Selerum service is terminated for breach of the AUP applicable to that service.
9.2 Termination for insolvency. Either of us may terminate the Agreement with immediate effect on written notice if the other party (or we reasonably believe that the other party) (i) is unable to pay its debts; (ii) enters into compulsory or voluntary liquidation; (iii) compounds with or contravenes a meeting of its creditors; (iv) has a receiver or manager or an administrator appointed (or an application is made to the court for the same); or (v) ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts (each an “Insolvency Event”). Notwithstanding anything to the contrary in the Agreement, the fees for the Services shall become due immediately upon the occurrence of an Insolvency Event.
- DISCLAIMERS
10.1 We disclaim any and all warranties or terms or conditions not expressly stated in the Agreement to the maximum extent permitted by law including the implied terms, conditions or warranties relating to satisfactory quality or fitness for a particular purpose, and non-infringement.
10.2 Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an AS IS basis.
10.3 Selerum has no obligation to provide security other than as expressly stated in the Agreement.
10.4 Some of the Services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the legal and regulatory requirements applicable to you and your use of the Services, and for selecting and using those Services in a manner that complies with your obligations under the Agreement and the applicable legal and regulatory requirements.
10.5 Selerum personnel may from time to time recommend third-party software or other products and services for your consideration and may also make available to you third-party products or services, including third-party applications through deployment or implementation tools. Selerum makes no representation or warranty whatsoever regarding products and services that are not purchased from Selerum or produced/manufactured by Selerum. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.
- EXPORT MATTERS
You represent and warrant that you are not located in or a national of any country that is embargoed or highly restricted under export regulations or are otherwise a person to whom Selerum is legally prohibited to provide the Services. You represent and warrant and undertake that you will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any information or technical data provided by Selerum to you under the Agreement in any manner which would cause Selerum or its Affiliates to breach any applicable export control laws, rules, or regulations of any jurisdiction (including those under UK and US law). Without limitation, you represent and warrant and undertake that you will not provide or facilitate administrative access to or permit use of the Services by any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under applicable export laws, rules or regulations (including but not limited to UK and US export regulations).
- CONFIDENTIAL INFORMATION
12.1 Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us may disclose the other’s Confidential Information as follows:
12.1.1 to a law enforcement or government agency if requested or if either of us reasonably believes, in good faith, that the other’s conduct may violate applicable criminal law;
12.1.2 as required by law;
12.1.3 in response to a subpoena or court order or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this Sub-section (or prompt notice in advance of disclosure, if seven (7) days’ advance notice is not reasonably feasible), unless the law forbids such notice; or
12.1.4 to our respective employees, service providers, Affiliates, suppliers, agents and representatives (“Representatives”), provided such Representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement.
- LIMITATION ON DAMAGES
13.1 Subject to Sub-section 13.5, the maximum aggregate liability of Selerum and any of its Representatives for loss or damages in connection with the Services or the Agreement under any theory of law shall not exceed the greater of (i) the amount of fees you paid for the Services for the six (6) months prior to the occurrence of the event giving rise to the claim, or (ii) five hundred US dollars (US$500.00) or the equivalent sum in the currency applicable to your Order.
13.2 Subject to Sub-section 13.5 and notwithstanding the foregoing, neither of us (nor any of our Representatives) shall be liable to the other for:
13.2.1 any indirect, special, incidental, exemplary, or consequential loss or damages of any kind;
13.2.2 any loss of profit or income;
13.2.3 any loss of business or business opportunity;
13.2.4 any loss or corruption of data;
13.2.5 any anticipated savings or revenue;
13.2.6 any punitive damages;
13.2.7 any loss of goodwill or reputation; or
13.2.8 any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages.
13.3 Subject to Sub-section 13.5, the service credits stated in the Service Level Agreement are your sole and exclusive remedy for Selerum’s failure to meet the guarantees for which service credits apply.
13.4 The parties agree that the limitations on damages set out in the Agreement are agreed allocations of risk constituting in part the consideration for Selerum’s provision of the Services, and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy.
13.5 Nothing in this Agreement limits or excludes either party’s liability for (i) death or personal injury caused by its negligence; (ii) any fraud or fraudulent misrepresentation; and (iii) any loss or damages where such limitation or exclusion is expressly prohibited by applicable law.
13.6 Neither of us will be in breach of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
- INDEMNIFICATION
14.1 If we, our Affiliates, or any of our or their respective employees, agents, or suppliers (the “Indemnitees”) are faced with a legal claim by a third party arising out of your actual or alleged negligence, breach of law, failure to meet the security obligations required by the Agreement, failure to meet your privacy or data protection obligations under applicable law, breach of the AUP, breach of your agreement with your customers or end users, or breach of Section 13 (Export Matters) or Sub-section 17.2 (Software) of these Prepay Terms of Service, then you will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine, or other amount that is imposed on the Indemnitees as a result of the claim. Your obligations under this Sub-section include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services.
14.2 We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld, delayed or conditioned.
14.3 You must pay reasonable legal fees, and expenses, due under this Section as we incur them. You must also pay reasonable legal fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with Selerum, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
- INTELLECTUAL PROPERTY
15.1 Ownership of Intellectual Property. Each of us retains all right, title and interest in and to our respective trade secrets, inventions, trademarks, copyrights, and other intellectual property. Any intellectual property developed by Selerum during the performance of the Services shall belong to Selerum unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property. We do not acquire any ownership interest in or right to the Customer Data.
15.2 Software. All software that we provide for your use is subject to the terms of the Agreement, including software that we may authorize you to install on devices located outside of our data center. You may not use any software we provide after the expiration or termination of the Agreement, or the particular service for which it was provided, and you may not copy the software unless expressly permitted by the Agreement. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide you. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days’ advance written notice to us. Any additional restrictions which may apply to software we utilize in the performance of the Services will be specified in the applicable Order. In addition to the terms of the Agreement:
15.2.1 Your use of any Microsoft® software is governed by: (i) Microsoft’s license terms for client or redistributable software, (ii) Microsoft’s license terms for use of Microsoft software on the Selerum cloud under the license mobility program, and (iii) any use restrictions on your use of the Microsoft software as indicated in your Order, such as a limitation on the number of users (a “SAL” license).
15.2.2 In the event that we distribute any open source software to you as part of the Services (including for example Linux based software, OpenStack software, and software licensed under the Apache, GPL, MIT or other open source licenses) then such open source software is subject to the terms of the applicable open source license. There are no warranties provided with respect to any open source software and all implied warranties are disclaimed. In the event of any conflict between the terms herein and the applicable open source license with respect to any open source software, the terms of the applicable open source license shall control.
15.3 Customer Provided Licenses. If you use any non-Selerum provided software on your Hosted System you represent and warrant to Selerum that you have the legal right to use the software in that manner. If Selerum has agreed to install, patch or otherwise manage software in reliance on your license with a software vendor (rather than Selerum’s license with the software vendor), then you represent and warrant that you have a written license agreement with the software vendor that permits Selerum to perform these activities. On Selerum’s request you will certify in writing that you are in compliance with the requirements of this Sub-section and any other software license restrictions that are part of the Agreement, and will provide evidence of your compliance as we may reasonably request. If you fail to provide the required evidence of licensing, Selerum may, at its option, either: (i) charge you its standard fee for the use of the software in reliance on Selerum’s licensing agreement with the vendor until such time as the required evidence is provided; or (ii) suspend or terminate the Agreement.
15.4 Intellectual Property Infringement. If Selerum or any of its customers is faced with a credible claim that the Services infringe the intellectual property rights of a third party, and Selerum is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then Selerum may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
15.5 Publicity. You agree that we may publicly disclose that we are providing Services to you and may use your name and logo to identify you as our customer in promotional materials, including press releases. We will not use your name or logo in a manner that suggests an endorsement or affiliation.
- WHO MAY USE THE SERVICES
16.1 Third Party Beneficiaries. There are no third party beneficiaries to the Agreement, meaning that third parties (including your customers, subsidiaries, and Affiliates) do not have any rights against either of us under the Agreement.
- NOTICES
Your routine communications to Selerum regarding the Services, including any notice of non-renewal, should be sent to your Selerum account team via email to [email protected]. If you want to give a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first-class post (within the US, first-class United States mail) to:
Selerum, Inc.
618 South 8th Street, Suite B
Richmond, CA 94804Selerum’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, first class post (within the US, first-class United States mail), or overnight courier, except that Selerum may give notice of an amendment to the AUP by posting the notice on the Selerum cloud control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to the Selerum cloud control panel after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
- GOVERNING LAW AND JURISDICTION
18.1 Unless otherwise agreed in writing, this Agreement is governed by the law and jurisdiction according to the following:
18.1.1 If you are contracting with Selerum, Inc., then the Agreement is governed by the laws of the State of California, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each of us agrees that any dispute or claim, including, statutory, contract or tort claims, relating to or arising out of the Agreement or the alleged breach of the Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration. The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the State and county (or equivalent geographic location) of the non-asserting party’s principal business offices and shall be conducted in the English language. The arbitration shall proceed in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) in effect at the time the claim or dispute arose. The arbitration shall be conducted by one arbitrator from the AAA or a comparable arbitration service, and who is selected pursuant to the applicable rules of the AAA. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either you or we may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. We will pay the fee for the arbitrator and your filing fee, to the extent that it is more than a court filing fee. We agree that we will not seek reimbursement of our fees and expenses if the arbitrator rules in our favor. Each of us waives any right to a trial by jury, and agrees that disputes will be resolved through arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
18.2 No claim may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant.
18.3 Selerum reserves the right to terminate your Services in the event you assert, or authorize or encourage any third party to assert or assist any third party in asserting, any claim for intellectual property infringement (including patent infringement) against Selerum or any of our Affiliates regarding any of the Services or any open source software contained or utilized therein.
18.4 Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
18.5 In the event of a dispute between us regarding the interpretation of applicable law or the AUP, Selerum’s reasonable determination shall control.
- ADDITIONAL TERMS
19.1 Assignment and Subcontracting. Neither party may assign the Agreement in whole or in part without the prior written consent of the other party except that Selerum may assign the Agreement in whole or in part to an Affiliate with sufficient financial standing in order to meet its obligations under the Agreement or as part of a bona fide corporate reorganization or a sale of its business, and we may transfer your Confidential Information as part of any such transaction. Selerum may use Affiliates and third party service providers to perform all or any part of the Services, but Selerum remains responsible to you under the Agreement for Services performed by its Affiliates and third party service providers to the same extent as if Selerum performed the Services itself.
19.2 Changes Not Made Known. If you have made any change to the Agreement that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
19.3 Changes to Terms on Website. These Prepay Terms of Service may have been incorporated in your Order by reference to a page on the Selerum website. In the event that we revise the Prepay Terms of Service posted on our website, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision, and your Order will continue to be governed by the Prepay Terms of Service posted on the effective date of the Order until the earlier of: (i) your acceptance of any amended Prepay Terms of Service or (ii) thirty days after the date Selerum posts amended Terms of Service on the Selerum website. In addition, if over time you sign multiple Orders for a single account, then the Prepay Terms of Service incorporated into the latest Order posted on the effective date of the latest Order will govern the entire account.
19.4 Complete Agreement. The Agreement constitutes the complete and exclusive agreement between the parties regarding the subject matter and supersedes and replaces any prior understanding or communication, written or oral. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of Selerum which is not set out in the Agreement.
19.5 Execution. Your acceptance of these Prepay Terms of Service via using your account shall constitute your agreement thereto. If physically signed, the Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
19.6 Interpretation. The headings or captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation”.
19.7 Modifications. An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, which includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order. Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
19.8 No Partnership. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other, and neither party has the right to bind the other to any agreement with a third party.
19.9 No Waiver. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.
19.10 Order of Precedence. If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Product Terms and Conditions, Prepay Terms of Service, Data Processing Agreement, and the Acceptable Use Policy.
19.11 Survival. Sections 1 (The Agreement), 2 (Defined Terms), 6 (Fees and Payment Terms), 7 (Taxes on Services), 10 (Disclaimers), 12 (Confidential Information), 13 (Limitation on Damages), 14 (Indemnification), 15.1 (Ownership of Intellectual Property), 17 (Notices), and 18 (Governing Law and Jurisdiction) and all other provisions of the Agreement that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
19.12 Unenforceable Provisions. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable but still consistent with the business and financial objectives of the parties underlying the Agreement.
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