CRAIT TEAM PACKAGE MONTHLY SUBSCRIPTION SERVICE AGREEMENT
This Subscription Service Agreement is entered into by and between Creaitiv Inc. (“Crait '') and the customer identified in an Order Form (''Customer”) on the Customer’s business account on Crait’s platform. The parties are bound by this Agreement as of the Effective Date when the Order From is executed between the parties. As used herein, references to the “Agreement” means this Subscription Service Agreement, all Order Forms hereunder, subsequent amendments, and such other attachments and exhibits that are mutually executed by the parties’ authorized representatives.
1. DEFINITIONS
1.1 “Affiliate” means, with respect to a party, any entity that, directly or indirectly through one or more intermediaries, is controlled by, or is under common control with, such party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such an entity.
1.2 “Customer Material” means any data, fonts, images, templates, information, content, or material uploaded and submitted to the Platform by the Customer or its Users in the course of using the Service.
1.3 “Design” means any design output created by the Customer or a User on the Service.
1.4 “Login” means a username and password created by the Customer and/or User assigned to an individual for purposes of accessing the Platform.
1.5 “Order Form” means Crait’s standard order form available on the Customer’s business account specifies the Customer’s details such as full name, address and billing information provided by the Customer. For the avoidance of any doubt, any information on that business account given by the Customer shall be deemed an Order Form.
1.6. “Platform” means Crait’s web site as well as any other media form, mobile application, web application, media channel, mobile website, linked, or otherwise connected thereto offering the Service.
1.7 “Service” means the software-as-a-service subscribed to by Customer which allows Customer and its User to create unique and most targeting marketing visuals including any updates thereto, as may be available online, via mobile application, or other forms provided by Crait.
1.8 “Subscription Fee” means the recurring fee paid for access to the Service on a monthly basis. The Subscription Fee is 99.00 USD (ninety nine US Dollars) per month.
1.9 “Subscription Term” means the duration for which Customer has subscribed to the Service and every renewal period collectively.
1.10 “Team” means a group of Users administered by the Customer.
1.11 “Usage Credit” means total number of Design Customers can create on Platform for a monthly period. The Usage Credit in this Agreement is unlimited.
1.12 “User” means an individual who is authorized by Customer to use the Service and who has a Login. Users may include Customer’s and its Affiliates’ employees, contractors, or agents. The number of Users which Customer can authorize is maximum 3 (three).
2. USING THE SERVICE
2.1 Provision of Service. Subject to the terms and conditions of this Agreement, Crait will provide Customer with access to and use of the Platform for the duration of the Subscription Term. Crait may, at its sole discretion, modify, remove, add, or enhance features of the Service and the Platform from time to time, provided however, Crait will not materially decrease the overall functionality of the Service during the Subscription Term.
2.2. Software Subscription License Grant. Subject to the terms and conditions of this Agreement, Crait hereby grants to Customer, during the Subscription Term, a limited, non-exclusive, non-transferable, non-sublicensable right and license (“Subscription License”) to access and use Crait’s marketing visual creating software which uses specialized artificial intelligence (whether deployed on a software-as-a-service (“SaaS”) basis through APIs or using other integration models which may be agreed upon by the Parties from time to time) (collectively, the “Software”) for internal business purposes limited to the Usage Credit.
2.3 Logins. Each individual accessing the Service must have a unique Login (each, a “User”). The number of individual User accounts Customer can create and/or manage is limited by the number of Users in Clause 1.12 above. The Customer shall not allow or authorize anyone other than the applicable individual to use such Login. Customer shall promptly notify Crait in the event Customer becomes aware of any unauthorized use of a Login.
2.4 Use Restrictions. Customer shall not itself or through any employee, contractor, agent, or other third-party;
a) rent, lease, sell, distribute, offer in service bureau, sublicense, or otherwise make available the Service and/or the Platform to any third party other than Users;
b) copy or replicate the Software onto any public or distributed network, except for an internal and secure cloud computing environment;
c) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover any source code or underlying algorithms or other operational mechanisms of the Software (except where such restriction is expressly prohibited by law without the possibility of waiver, and then only upon prior written notice to Crait);
d) modify, adapt, translate or create derivative works based on all or any part of the Software;
e) modify any proprietary rights notices that appear in the Software or components thereof;
f) access the Service for purposes of performance benchmarking and publish any result of it;
g) use any Software in violation of any applicable laws or regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope;
h) use the Software to (i) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware, or (ii) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity, (iii) interfere with or disrupt the integrity or performance of third party systems, or the Software or data contained therein, or (iv) attempt to gain unauthorized access to the Software or Crait’s systems or networks, or (v) perform, or engage any third party to perform, authenticated or unauthenticated penetration testing, vulnerability assessments or other security assessments on the SaaS deployment of the Software;
i) export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof (i) in violation of any applicable laws and regulations, (ii) to any country for which the United States or any other government, or any agency thereof, at the time of export requires an export license or other governmental approval, including Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or any other Group D:1 or E:2 country (or to a national or resident thereof) specified in the then current Supplement No. 1 to part 740 of the U.S. Export Administration Regulations (or any successor supplement or regulations, without first obtaining such license or approval) or (iii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders;
(j) use the Service to store or transmit a virus or malicious code.
2.5 Acceptable Use Policy. Customer and User’s use of the Service, Customer Materials, and Customer’s Designs must comply with Crait’s Terms of Use Policy (available in here). Customer solely responsible to Crait for User’s acceptance and comply with Crait’s Terms of Use Policy. Crait reserves the right to (but is not obligated to) remove from the Service any Customer Material or Design at any time that, in Crait’s sole opinion, is in violation of Crait’s Terms and of Policy, this Agreement, or any applicable law or regulation. Where legally permissible, Crait will make reasonable efforts to provide Customer with notice upon removal of any such Customer Material.
2.6. Usage Credit. Customer shall have a certain number of Designs that the Customer can use during each Subscription period specified in Section 1.11 above. The number of Usage Credit per month is valid for one (1) month. Unused Usage Credits shall not roll over to the next month, and no repayment will be done for the unused amount.
2.7 Customer Obligations.
2.7.1. Customer is responsible for providing all hardware, software, networking, and communications capabilities necessary for Customer’s access to the Service.
2.7.2. Customer is responsible for all activities conducted by each of its Users and each User’s compliance with the terms of this Agreement.
2.7.3. Customer is solely responsible for any and all unlawful acts of its employees, contractors, agents and representatives who use the Customer’s business account for entering prompts into the Service Provider’s software. The Company is responsible for keeping the login and User information of its account secure and any person who uses the Company’s account.
2.7.4. Customer is solely responsible for the accuracy, quality, integrity, and legality of Customer Material and the means by which it acquired Customer Material and the contents thereof.
2.7.5. Customer represents and warrants that it has provided all legally required disclosures and obtained all legally required consents from individuals prior to adding such individuals to a Team.
2.7.6. The Customer further undertakes and warrants the following:
a) while performing its obligations and during the term of this this Agreement, to act in accordance with all laws and regulations applicable to the Agreement,
b) to comply with applicable any applicable anti-corruption laws,
c) not to engage in any activity or omission that may cause the Service Provider to violate any applicable anti-corruption laws;
d) not to give, promise, receive or demand any Illicit Payment directly or indirectly to any Government Authority official or their Close Family Members or political parties. For the purposes of this article, “Illicit Payment” shall mean any direct or indirect bribing, offering, paying, promising, authorizing the giving of, or otherwise acting to promote or further a bribe, gift, loan, fee, consideration, reward or advantage of any kind or anything of value to a Governmental Authority or political party for their benefit or the benefit of another, as an inducement to obtain or retain actual or proposed business, to secure any improper influence, or to secure any improper advantage or forbearance, or as a reward for such conduct;
e) to comply with, including but not limited to, all the laws and regulations with regard to the laws, regulations, embargoes, decisions, measures or restrictive measures (“Economic Sanctions”) or trade restrictions (“Trade Restrictions”) about trade and financial sanctions in particular regulated and/or implemented by the Republic of Turkey and the United Nations, United Kingdom, European Union, United States of America and other relevant countries and international bodies and organizations;
f) to comply with Economic Sanctions and/or Trade Restrictions;
g) not to take any deliberate action that may cause the Crait to violate Economic Sanctions and Trade Restrictions;
h) to immediately notify the Crait in writing about any investigation/violation that has occurred or is likely to occur, and/or the concrete status changes occurring in the following matters:
(i) status changes related to Economic Sanctions, e.g., being added to the list of Economic Sanctions/Trade Restrictions in any of the relevant country/body/ organizations; and
(ii) status changes regarding Trade Restrictions, e.g., loss of license/authorizations under Economic Sanctions or Trade Restrictions.
3. SECURITY AND DATA PRIVACY
3.1 Information Security. Crait shall maintain industry-standard or better technical and organizational measures to maintain the security of the Service and Customer Material in Crait’s possession.
Crait has implemented and maintains security measures to keep User’s information and designs.
3.2 Data Privacy. Crait’s Privacy Policy describes how Crait collects, uses, transfers, discloses and stores your personal data. Crait’s Privacy Policy may be updated from time to time, but no such change will result in a material reduction in the level of protection provided for Customer Material. To the extent Personal Data subject to the Applicable Privacy Laws (as those terms are defined in the Appendix-A “Data Processing Addendum”) is processed by Crait under this Agreement.
4. CONTENT AND DESIGNS.
4.1 Designs. Crait is obliged only to deliver marketing visuals in accordance with the prompts entered by the Customer in the Crait’s specialized artificial intelligence software subject to the Agreement, regardless of the Company's taste. To be clear, in case the Customer is not satisfied with the visuals result from the prompt entered by the Customer and/or User this shall not be Crait’s responsibility and the design shall be deducted from the Usage Credits contained in the packages for which the Customer prepaid for the month.
4.2 Customer Material. Customer represents and warrants to Crait that Customer owns all rights, title, and interest in and to the Customer Materials or that Customer has otherwise secured all necessary rights in Customer Material as may be necessary to permit the access, use, and distribution thereof as contemplated by this Agreement. As between Crait and Customer, Customer owns all right, title, and interest in and to Customer Material. Customer hereby grants Crait, for the duration of the Subscription Term, a royalty-free license to display, host, copy, and use Customer Material solely to the extent necessary to provide the Service to Customer.
When Customer uploads content to Platform, the Customer is guaranteeing that he/she has the rights to it. Crait never obtains any ownership over Customer’s content, but does need Customer to give Crait certain rights to store it and have it ready for Customer to use in designs.
7. INTELLECTUAL PROPERTY.
7.1. Crait’s Intellectual Property. Crait owns and has good and exclusive title to the specialized Software that uses artificial intelligence herein and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark, and all other intellectual property rights, in and to the Software (and all derivatives, improvements or enhancements thereto). Customer acknowledges that the rights granted under this Agreement do not provide Customer with title to or ownership of the Software, in whole or in part.
7.2. Intellectual Property of the Designs. The Customer shall have all the intellectual property rights (whether or not copyrightable) on the Designs created via the Software using the artificial intelligence by the Customer and/or User. Crait does not guarantee that the Designs created using the Platform will not violate any intellectual or moral rights of a third party due to the outputs being the results of Customer and/or User’s prompts and/or uploads to the Platform. It is the Customer’s responsibility to check and be sure that the outputs do not violate any third party’s right before using.
8. BILLING
8.1 Subscription Fees. The Customer will be invoiced for the amount of the Subscription Fee described set forth in Clause 1.8. monthly. Unless explicitly stated otherwise, all fees and all references to “dollars”, “USD” or “$” are to United States Dollars.
8.2 Payment. Subscription Fees are invoiced on a monthly basis in advance. All invoices will be due and payable within ten (10) days of the invoice date. Except as otherwise provided for in this Agreement, all fees are non-refundable. Crait can decide to collect the payments via credit card or may use third party payment service such as Stripe. Either way the Customer is obligated to keep track of the payment dues and pay the amount on time.
8.3. Failing of Payment. Any fees remaining unpaid for more than fifteen (15) days past their due date shall accrue interest at a rate of the lesser of 1.5% percent per month or the highest rate allowed by law. Crait has the right, at its discretion and in addition to other remedies, to suspend access to the Service or not to renew the Subscription Term for another month if any invoice remains unpaid for more than 20 days after its due date. Crait will provide Customer with notice whether via e-mail or notification on the Customer’s page on the Platform at least five (5) days in advance of any such suspension.
8.3 Taxes. The fees do not include sales, use, value-added, or other similar taxes or duties, and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of Crait. Crait will invoice the Customer for any applicable tax.
9. WARRANTIES AND DISCLAIMER
9.1.Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement and that it has no outstanding agreement or obligation that conflicts with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof.
9.2.Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS AGREEMENT, CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IS PROVIDED "AS IS" AND CRAIT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CRAIT EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE, DOCUMENTATION, MAINTENANCE OR SUPPORT CRAIT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER’S HARDWARE, OTHER SOFTWARE, THIRD PARTY SERVICES, OR CUSTOMER MATERIAL. Crait makes reasonable efforts to ensure the Service is free of viruses or other harmful components, but cannot guarantee that the Service will be free from unknown viruses or harmful components. Crait cannot guarantee that the Service will not incur delays, interruptions, or other errors that are outside of Crait’s reasonable control and are inherent with the use of the internet and electronic communications.
10. CONFIDENTIALITY
10.1 Scope And Restrictions. “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms of this Agreement, the Software, any technical or other documentation relating to the Software, logins, passwords and other access codes and any and all information regarding Crait’s business, products and services are the Confidential Information of Crait. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its affiliates, employees, consultants, agents and professional advisers who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants, and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Clause 10; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and, to the extent within its control, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Clause 10 will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt without any restriction on its disclosure; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
10.2 Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
11. INDEMNIFICATION
11.1 By Crait. Crait agrees to defend, at its expense, Customer against (or, at Crait’s sole option, settle), any third-party claim to the extent such claim alleges that the Software infringes or misappropriate any patent, copyright, trademark or trade secret of a third party, and Crait shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Software is, or in Crait’s sole opinion is likely to become, subject to such a claim, Crait, at its option and expense, may (a) replace the applicable Software with functionally equivalent non-infringing technology, (b) obtain a license for Customer’s continued use of the applicable Software, or (c) terminate the applicable Subscription License and provide a pro-rata refund of the Subscription Fees under the this Agreement that have been paid in advance for the remainder of the Subscription Term (beginning on the date of termination).
The foregoing indemnification obligation of Crait will not apply: (1) if the Software is or has been modified by Customer or its agent; (2) if the Software is combined with other non-Crait products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or (3) to any unauthorized use of the Software, or (4) Customer Materials, or (5) the Designs created by the Customer’s prompts and/or contribution. The foregoing shall be Customer’s sole remedy with respect to any claim of infringement of third party intellectual property rights.
11.2 By Customer. Customer shall defend Crait and its Affiliates (and Crait and its Affiliates' employees, officers, and directors) (collectively, "Crait Indemnified Parties") from and against any claim, demand, or action brought by a third party (including without limitation any User) against Crait and indemnify and hold Crait harmless from any damages and costs finally awarded by a court of competent jurisdiction or otherwise owed in any settlement to the extent arising from: (i) use of the Service by Customer or any User in a manner that breaches Section 2.4 and/or 2.5 (Use Restrictions and/or Acceptable Use) of this Agreement; and (ii) any allegation that Customer Material infringes any patent, copyright, trade secret or personal data of a third party; and (iii) Customer’s gross negligence or willful misconduct.
11.3 Rights in the Event of Enjoinment. If Customer’s use of the Service is, or in Crait’s opinion is likely to be, enjoined, Crait may, at its sole option and expense:
(i) procure for Customer the right to continue using the same under the terms of this Agreement;
(ii) replace or modify the Service so that it is non-infringing; or
(iii) if options (i) and (ii) above cannot be accomplished despite Crait’s reasonable efforts, Crait may terminate this Agreement and Customer’s rights to the Service and refund a prorated portion of any pre-paid Subscription Fees for the period beginning on the effective date of termination through the end of the then-current Subscription Term.
11.4 Procedure. If one party (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other party (the “Indemnitor”) has an obligation of indemnity hereunder, the Indemnitee will, within fifteen (15) days of receipt of such notice, give the Indemnitor written notice of such claim or allegation setting forth in reasonable detail the facts and circumstances surrounding the claim. The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure. The Indemnitee shall not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim. The Indemnitor shall immediately assume full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorized costs and expenses of such defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement of the claim. The Indemnitor may not settle any claim that admits liability or fault on behalf of Indemnitee or that imposes financial liability on Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim. The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor.
12. LIMITATION OF LIABILITY
12.1 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE BY CUSTOMER TO CRAIT HEREUNDER DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITIES ARISING OUT OF CUSTOMER’S BREACH OF SECTION 2.4 (“USE RESTRICTIONS”) OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE, OR WILFUL MISCONDUCT.
12.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES, OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, OR LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITIES ARISING OUT OF CUSTOMER’S BREACH OF SECTION 2.4 (“USE RESTRICTIONS”) OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE, OR WILFUL MISCONDUCT.
13. TERM AND TERMINATION
13.1 Agreement Term. The term of this Agreement shall commence on the date of the Customer accept this agreement and subscribe to the Platform and shall continue in full force and effect until the expiration or termination of all initial and renewal subscription terms, unless otherwise terminated earlier as provided hereunder.
13.2 Subscription Term. The initial Subscription Term shall be one (1) month starting from the date the Customer sign in to the Platform under this Agreement. Upon the expiration of the initial Subscription Term, the Subscription Term will automatically renew for successive one (1) month terms, unless either party provides the other party with written notice of non-renewal at least ten (10) days prior to the end of the then-current Subscription Term. Crait will provide notice of an upcoming renewal and any applicable increase to pricing fifteen (15) days or more prior to the end of the then-current Subscription Term. The initial Subscription Term and any Renewal Term are collectively the "Subscription Term."
13.3 Termination for Cause. Either party may terminate the Agreement immediately upon written notice via email (i) in the event the other party commits a non-remediable material breach of the Agreement; (ii) the other party fails to cure any remediable material breach within fifteen (15) days of being notified in writing of such breach; (iii) the other party becomes insolvent, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding.
13.4 Effect of Termination for Cause. In the event of termination by the Customer for any reason, Crait shall be entitled to claim payment for unpaid and accrued Fees up and until the termination date, on a pro-rata basis. In the event of termination of this Agreement due to a default by Crait, Crait shall refund, on a prorated basis, any prepaid fees for the Service for the period beginning on the effective date of termination through the end of the then-current Subscription Term.
13.5 Survival. Sections titled “Definitions”, “Term and Termination”, “Fees”, “Intellectual Property,”, “Limitation of Liability,” “Indemnification,” “Confidential Information”, and “Miscellaneous” inclusive, shall survive any termination of this Agreement.
14. MISCELLANEOUS
14.1 Compliance with Applicable Law. Each party agrees to abide by all applicable local, state, national and foreign laws, treaties and regulations, in connection with i) in the case of Customer, Customer’s use of the Service; and ii) in the case of Crait, Crait’s provision of the Service.
14.2 Governing Law and Jurisdiction. This Agreement shall be construed, interpreted and enforced in accordance with the laws of the State of Delaware, USA.
14.2.1. The parties agree that in the event that any suit or proceeding is brought in connection with this Agreement whether in contract, tort or equity, such suit or proceeding shall be brought in the state or federal courts located in New Castle County, Delaware, and the parties shall submit to the exclusive jurisdiction of such courts and waive any and all jurisdictional, venue and inconvenient forum objections to such courts.
14.2.2. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF.
14.3 Relationship of Parties. The parties are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent.
14.5 Equitable Relief. Both parties agree that a material breach of the confidentiality provisions of this Agreement or restrictions set forth herein may cause irreparable injury to other party for which monetary damages alone would not be an adequate remedy, and therefore the party shall be entitled to seek equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
14.6 Publicity. Customer permits Crait to use Customer’s name and logo to identify Customer as a customer on Crait’s website and in its marketing materials in accordance with any trademark guidelines or instructions provided by Customer. Customer permits Crait to issue a press release announcing Customer as a customer, provided Crait obtains Customer’s approval of the text of any such press release prior to publication. Following an agreed-upon press release, Crait may use the content of the press release on Crait’s website and in marketing materials.
14.7 Force Majeure. Neither party shall be deemed to have breached any provision of the Agreement as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences which are beyond such party’s reasonable control. This Section does not excuse Customer’s payment of fees due under this Agreement provided that Crait continues to provide the Service as set forth in the Agreement.
14.8 Assignment. Neither party may assign this Agreement or any of its rights or obligations under this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may transfer and/or assign this Agreement, without the other party’s consent, to any successor by way of a merger, acquisition, or change of control. For the purposes of this Agreement, “change of control” means consolidation, or any sale of all or substantially all of the assignee’s assets or any other transaction in which more than 50% of its voting securities are transferred.
14.9 Headings and Explanations. Headings in this Agreement are provided for convenience only and will not in any way affect the meaning or interpretation of the Agreement or any portion thereof.
14.10 Severability. If a particular provision of this Agreement is found to be invalid or unenforceable, it shall not affect its other provisions and this Agreement shall be construed in all respects as if such invalid or unenforceable provision had been omitted.
14.11 Waiver. The failure of either party to enforce at any time the provisions of the Agreement, the failure to require at any time performance by the other party of any of the provisions of the Agreement, or the express waiver by either party of any provision, condition or requirement of the Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter.
14.12 Notices. All legal notices required or permitted under the Agreement will be in writing and delivered by courier or overnight delivery service, certified mail, or electronic mail and in each instance will be deemed given upon receipt. All notices to Customer will be sent to the physical address and/or email addresses set forth in the Order Form. All notices to Crait shall be sent to the applicable notice address, Delaware 651 N Broad St, Suite 201, Middletown, 19709, New Castle, USA.
14.13 Entire Agreement. This Agreement and the associated Order Form(s) constitute the entire agreement of the parties with respect to the subject matter contemplated herein, and supersedes any prior representations, agreements, negotiations, or understandings between the parties, whether written or oral, with respect to the subject matter hereof.
14.14. Modifications. Crait may, at its sole discretion modify or change the provisions of this Agreement only for the renewal term provided that the modifications and the modified version of the Agreement is notified to the Customer at least fifteen (15) days before the renewal date. In this case the Customer has the right to not to renew the Subscription Term for the following months.
APPENDIX-A DATA PROCESSING ADDENDUM
This Data Processing Addendum ("Addendum") is supplementary to, and forms part of, the terms of use available [here] as updated from time to time, or the Crait Team Package Subscription Service Agreement (the "Agreement") between Creaitiv, Inc. with offices at Delaware 651 N Broad St, Suite 201, Middletown, 19709, New Castle, USA (as applicable) ("Crait'') and the entity or person(s) identified as Customer in the relevant customer account or Agreement referencing this Addendum (as applicable) ("Customer"). This Addendum applies where and to the extent that Crait is acting as a Processor or service provider (as applicable) of Personal Data on behalf of Customer under the Agreement.
1. Definitions and Interpretation
In this Addendum, the following terms shall have the following meanings:
(a) "Applicable Privacy Laws" means all worldwide data protection and privacy laws and regulations applicable to the Personal Data in question including, where applicable: (i) European Privacy Laws; (ii) the Personal Data Protection Code No. 6698 ("KVKK"); (iii) the California Consumer Privacy Act of 2018 and its regulations (the "CCPA") (iv) the Virginia Consumer Data Protection Act of 2021 (the “VCDPA"); in each case as amended, superseded or replaced from time to time.
(b) "Data Subject" means an identified or identifiable individual whose Personal Data is processed.
(c) "European Privacy Laws" means: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (the "GDPR"); (ii) the GDPR as incorporated into United Kingdom domestic law pursuant to Section 3 of the European Union (Withdrawal) Act 2018 (the "UK GDPR"); (iii) the Swiss Federal Data Protection Act of 19 June 1992 and its corresponding ordinances (the "Swiss DPA"); (iv) EU Directive 2002/58/EC on Privacy and Electronic Communications; and (v) any national law made under or pursuant to items (i) – (iv); in each case as amended, superseded or replaced from time to time.
(d) "Personal Data" means any information relating to an identified or identifiable individual or any other information defined as 'personal data' or 'personal information' under Applicable Privacy Laws.
(e) "Restricted Transfer" means (i) where the EU GDPR applies, a transfer of Personal Data from the EEA to a country outside the EEA which is not subject to an adequacy determination by the European Commission; (ii) where the UK GDPR applies, a transfer of Personal Data from the UK to any other country which is not based on adequacy regulations pursuant to Section 17A of the UK GDPR; and (iii) where the Swiss DPA applies, a transfer of Personal Data to a country outside of Switzerland which is not included on the list of adequate jurisdictions published by the Swiss Federal Data Protection and Information Commissioner.
(f) "SCCs" means the standard contractual clauses annexed to the European Commission’s Decision (EU) 2021/914 of 4 June 2021(opens in a new tab or window), as may be amended, superseded or replaced from time to time.
(g) "UK Addendum" means the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses (version B1.0) issued by the Information Commissioner's Office under s.119(A) of the UK Data Protection Act 2018, as may be amended, superseded or replaced from time to time.
(h) The terms "Controller/Exporter", "Processor/Importer", "Data Subject" and "processing" have the meanings given to them in Applicable Privacy Laws or, if not defined therein, the GDPR (and "process", "processes" and "processed" shall be interpreted accordingly) and the terms "Business" and "Service Provider" have the meanings given to them in the CCPA.
(i) “Licensed User” means the individuals whom the Customer creates and/or gives the right to create an account by their name under the Customer’s own account.
Any capitalized terms used but not defined in this Addendum shall have the meanings given to them under the Agreement.
2. Processing of Personal Data
2.1 Relationship of the parties: Customer is a Controller or Exporter or Business (as applicable) of the Personal Data and Crait shall process the Data solely as a Processor or Importer or Service Provider (as applicable) on behalf of Customer. Crait and Customer shall each comply with their respective obligations under Applicable Privacy Laws and further guidance from data protection authorities with respect to such processing. Where the concepts of Controller and Processor are not expressly contemplated by Applicable Privacy Laws, the parties’ obligations in connection with this Addendum shall be interpreted under those Applicable Privacy Laws to align as closely as possible with the scope of those roles while still complying fully with those Applicable Privacy Laws.
2.2 Purpose limitation: Crait shall process the Data as necessary to perform its obligations under the Agreement and strictly in accordance with the documented instructions of Customer (the "Permitted Purpose"). Crait shall not: (i) retain, use, disclose or otherwise process the Data for any purpose other than the Permitted Purpose (including for its own commercial purpose), except where otherwise required by any law applicable to Crait; or (ii) "sell" the Data within the meaning of the CCPA, VCDPA or otherwise. Crait shall immediately inform Customer if it becomes aware that Customer's processing instructions infringe Applicable Privacy Laws but without obligation to actively monitor Customer's compliance with Applicable Privacy Laws. The parties acknowledge that Customer's transfer of Data to Crait is not a "sale" of Personal Data within the meaning of Applicable Privacy Laws and Canva provides no monetary or other valuable consideration to Customer in exchange for the Data.
2.3 International transfers: To the extent that Crait transfers the Data (or permits the Data to be transferred) to a country other than the country in which the Data was first collected, it shall first take such measures as are necessary to ensure that the transfer is made in compliance with Applicable Privacy Laws. Such measures may include (without limitation) transferring the Data to a recipient that has executed standard contractual clauses adopted by the European Commission, UK Secretary of State or transferring the Data to a recipient that has executed a contract with Crait that ensures the Data will be protected to the standard required by Applicable Privacy Laws. Crait will also protect the Data in a way that overall provides comparable safeguards to the country in which the Data was first collected.
2.4 Accuracy: If the Crait as an Importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data Customer without undue delay. In this case, the Crait shall cooperate with the Customer to erase or rectify the data.
2.5 Confidentiality of processing: Crait will only grant access to Data only to the extent strictly necessary for the implementation, management and monitoring of the contract. Crait ensures that any person that it authorizes to process the Data (including Crait's staff, agents and subcontractors) (an "Authorized Person") shall be subject to a strict duty of confidentiality (whether a contractual duty or a statutory duty). Crait shall ensure that all Authorized Persons process the Data only as necessary for the Permitted Purpose.
2.6 Security: Crait shall implement appropriate technical and organizational measures to protect the Data from the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Data (a "Security Incident"). At a minimum, such measures shall include the measures identified in our privacy policy here. The Customer acknowledges that Crait may update or modify the Security Measures from time to time by publishing these on the web page provided that such updates and modifications do not result in a degradation to the overall level of security.
2.7Subprocessing: Customer authorizes Crait to engage third-party Processors ("Subprocessors") to process the Data for the Permitted Purpose provided that:
2.7.a Crait provides reasonable prior notice at least 14 days before the proposed addition or replacement of any Subprocessor by posting details in the cookie policy (available here) in order to allow Customer to raise any reasonable objections on grounds of data protection;
2.7.b Crait imposes data protection terms on any Subprocessor it engages that ensure substantially the same standard of protection provided under this Addendum.
2.8 Cooperation and Data Subjects' rights: Crait shall provide all reasonable and timely assistance to Customer to enable Customer to respond to: (i) any request from a Data Subject to exercise any of its rights under Applicable Privacy Laws (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, inquiry or complaint received from a Data Subject, regulator or other third party in connection with Crait's processing of the Data. In the event that any such request, correspondence, inquiry or complaint is made directly to Crait, Crait shall promptly inform Customer providing full details of the same.
2.9 Data Protection Impact Assessment: Crait shall provide Customer with all such reasonable and timely assistance as Customer may require in order to comply with its obligation under Applicable Privacy Laws to conduct data protection impact assessments and, if necessary, to consult with its relevant data protection authority.
2.10 Security Incidents: Upon becoming aware of a Security Incident, Crait shall inform Customer without undue delay and shall provide all such timely information and cooperation as Customer may reasonably require in order for Customer to fulfill its data breach reporting obligations under (and in accordance with the timescales required by) Applicable Privacy Laws. Crait shall further take all such measures and actions as are reasonably necessary to remedy or mitigate the effects of the Security Incident and keep Customer informed of all material developments in connection with the Security Incident.
2.11. Dispute Resolution: In case of a dispute between a data subject and one of the Parties as regards compliance with this Addendum, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
2.12 Deletion or return of Data: Upon termination or expiry of the Agreement, Crait shall (at Customer's election) destroy or return to Customer all Data (including all copies of the Data) in its possession or control. This requirement shall not apply to the extent that Crait is required by any law to retain some or all of the Data, in which event Crait shall isolate and protect the Data from any further processing except to the extent required by such law until deletion is possible.
2.13. Standard contractual clauses: To the extent that the transfer of Data from Customer to Crait involves a Restricted Transfer, the SCCs shall be incorporated by reference and form an integral part of this Addendum with Customer as "data exporter" and Crait as "data importer". For the purposes of the SCCs: (i) the module two (controller to processor) terms shall apply and the module one, three and four terms shall be deleted in their entirety; (ii) in Clause 9, Option 2 shall apply; and (iii) in Clause 11, the optional language shall be deleted.
2.13.a. UK transfers: In relation to Data that is protected by the UK GDPR, the SCCs as incorporated under Section 2.13 shall apply with the following modifications: (i) the SCCs shall be amended as specified by the UK Addendum, which shall be incorporated by reference; (ii) Tables 1 and 3 in Part 1 of the UK Addendum shall be deemed completed using the information contained in the Annexes of this DPA; (iii) Table 2 in Part 1 of the UK Addendum shall be deemed completed using the information contained in the Clause 1/f of this DPA and (iv) Table 4 in Part 1 of the UK Addendum shall be deemed completed by selecting "importer".
2.13.b. Swiss transfers: In relation to Data that is protected by the Swiss DPA, the SCCs as incorporated under Section 2.13 shall apply with the following modifications: (i) references to “Regulation (EU) 2016/679” shall be interpreted as references the Swiss DPA; (ii) references to “EU,” “Union,” and “Member State” shall be replaced with “Switzerland”.
ANNEXES
ANNEX I. A. LIST OF PARTIES
Data exporter(s):
Name: The entity identified as the "Customer" on the Order Form or the name specified in Customer's account.
Address: The Customer’s Billing Address specified on the Order Form or the address specified in Customer's account.
Contact person’s name, position and contact details: The Primary Contact Name, Primary Contact Position and Primary Contact Email specified on the Order Form or the contact information specified in a Customer's account.
Activities relevant to the data transferred under these Clauses: The data exporter is a customer of the data importer and utilizing the data importer’s services to create unique, most relevant and most targeting marketing designs and any other visuals using prompts.
Role (controller/processor): Controller
Data importer(s):
Name: Creaitiv, Inc.
Address: Delaware 651 N Broad St, Suite 201, Middletown, 19709, New Castle, USA
Activities relevant to the data transferred under these Clauses: The data importer operates a graphic design platform used to create unique, most relevant and most targeting marketing designs and any other visuals using prompts.
Contact person’s name, position and contact details: CEO, Safiye Dinçtürk, privacy@crait.it
Role (controller/processor): Processor
Annex 1.B. DESCRIPTION OF TRANSFER
Categories of data subjects:
- Licensed Users of the Service pursuant to the Agreement between Crait and Customer, which may include Customer’s employees, contractors or agents.
- Third party individuals whose information is included in designs created in the Platform by Customer or Licensed Users.
Categories of personal data: The categories of personal data are determined and controller by Customer in its sole discretion and may include:
- Access credentials of Licensed Users;
- Contact details of Licensed Users (e.g. name, email address, phone number); and
- any other personal data that Customer or Licensed Users include in Designs created in the Service.
Sensitive data transferred (if applicable) and applied restrictions or safeguards:
Any sensitive data included by Customer or Licensed Users in Designs created in the Service, the extent of which is determined and controlled by Customer in its sole discretion. See the privacy policy (available here) for applied restrictions and safeguards.
Frequency of the transfer: Continuous
Nature of the processing: Processing of the Customer’s and Licensed Users’ usernames, passwords and contact details in order to access and manage the Services and upload Designs to the Service.
Purpose(s) of the data transfer and further processing: Provision of the Service pursuant to the Agreement.
Period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period: The personal data will be retained until termination or expiry of the Agreement, in accordance with Section 2.12 of this Addendum.
ANNEX 2 - TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Refer to our Privacy Policy (available here).
ANNEX 3 – LIST OF SUB-PROCESSORS
The Customer has authorized the use of the sub-processors set out at this url .