CERULEAN AI, INC.
CLIENT SERVICES AGREEMENT
Last Updated Date: Dec 1, 2025.
This Client Services Agreement (including each Service Order (as defined below) and any and all exhibits, documents and policies attached or referenced herein or therein, this “Agreement”) is between Cerulean AI, Inc., a Delaware corporation (“Cerulean”) and the person or entity listed on the signature page of the applicable Service Order (“Customer”). Cerulean and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
By accepting this Agreement, either by executing this Agreement, a Service Order, or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the Customer; and (2) represent that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.
The parties agree as follows:
Definitions.
"Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Applicable Law” means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, or either Party’s performance under this Agreement, including, without limitation, Data Privacy Laws.
“Authorized Users” means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased under a Service Order.
“Confidential Information” means information or data that either Party (“Discloser”) discloses to the other Party (“Recipient”) under this Agreement, and that is marked as confidential or identified in writing as confidential within thirty (30) days of disclosure to Recipient or would normally be considered confidential information under the circumstances; provided, however, that (1) information or data related to or regarding the Services, Documentation, Usage Data or Cerulean’s business plans, strategies, technology, research and development, billing records and products or services, and related features, functionality and performance, will be deemed Confidential Information of Cerulean and (2) Customer Data will be deemed Confidential Information of Customer; in each case even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in the following sentence. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient without reference to Discloser’s Confidential Information; (2) is known to Recipient prior to receipt from the Discloser directly or indirectly from a source other than one having an obligation of confidentiality to Discloser; (3) is rightfully given to Recipient directly or indirectly by a third party source without confidentiality obligations to Discloser; or (4) becomes public through no fault of Recipient.
“Customer Data” means information, data, and other content that is (1) supplied by Customer to Cerulean for purposes of the Implementation Services; and (2) submitted, uploaded, or imported to the Services by or on behalf of Customer or its Authorized Users.
“Data Privacy Laws” means all applicable laws and regulations relating to privacy, data protection, data security, communications secrecy, breach notification, or the processing of Personal Information, including, without limitation, the Federal Trade Commission Act through the FTC’s rulemaking authority and enforcement actions (collectively, the “FTC”), the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 and implementing regulations thereto (collectively, "CCPA"), and their respective implementing rules, procedures, exceptions, guidelines and administrative interpretations, and regulations, together with any amendments or supplements to and/or replacements or modifications of the foregoing.
“Documentation” means any manuals, handbooks, and guides relating to the Services provided by Cerulean to Customer.
“Implementation Services” means any implementation, configuration, design, onboarding, training, or consulting services relating to the Services that are specified in a Service Order or otherwise provided by Cerulean to Customer.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Order Term” means the Service Order term length specified in the contract term within the applicable Service Order.
“Personal Information” has the meaning assigned to it under applicable Data Privacy Laws.
“Scope Limitations” means any limitations on Customer’s use of the Services specified in a Service Order.
“Service Order” means an ordering document or online order specifying the Services to be provided under this Agreement that is entered into between Customer and Cerulean, including any addenda and supplements thereto.
“Services” means Cerulean’s software-as-a-service platform, including any related applications; in each case, identified in the applicable Service Order.
“Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Cerulean.
“Usage Data” means data (1) relating to the Authorized Users’ use of and interactions with the Services or Cerulean’s other products and services that is aggregated or de-identified in such a way that it is not associated with Customer and cannot reasonably be used to personally identify an Authorized User; and/or (2) generated by Cerulean through the aggregation and transformation of certain values calculated from, or inferred from Customer Data. For the avoidance of doubt, Usage Data does not constitute Customer Data.
Services.
Service Orders. Throughout the Term, Customer may order Services and Implementation Services pursuant to one or more Service Orders. Each Service Order is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and a Service Order, this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order, in which case such provision of such Service Order will control with respect to such Service Order.
Changes to Service Orders. Either Party may, at any time, reasonably request a change to any Service Order. Any requested change that the Parties mutually accept (a “Change”) will be described in a written change order prepared by Cerulean and signed by both Parties.
Access to the Services. Subject to Customer’s payment of all Fees and compliance with this Agreement, Cerulean grants to Customer a worldwide, non-exclusive, non-transferable (except as expressly permitted by Section 16.D below), non-sublicensable right during the Order Term to use the Services by its Authorized Users solely as necessary in connection with Customer’s internal business purposes in accordance with any Scope Limitations and the Documentation.
Documentation. Subject to Customer’s payment of all Fees and compliance with this Agreement, Cerulean grants to Customer a worldwide, non-exclusive, non-transferable (except as expressly permitted by Section 16.D below), non-sublicensable license during the Order Term to internally use the Documentation solely as necessary for the purpose of enabling Customer’s authorized use of the Services.
Support. Subject to Customer’s payment of all Fees and compliance with this Agreement, Cerulean will use commercially reasonable efforts to provide support in accordance with the Service Levels set forth in Exhibit A.
Subcontractors. Cerulean may use subcontractors or other third parties to perform its obligations under this Agreement, but Cerulean will remain responsible for all such obligations.
Implementation Services
Customer Obligations and Responsibilities. Customer will: (1) cooperate with and assist Cerulean in the performance of Implementation Services; (2) provide the resources specified in the Service Order; and (3) perform all obligations required by Customer under the terms of the Service Order. Cerulean is not responsible or liable for any delay or failure of performance arising in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement. Without limiting the foregoing, Customer will ensure that the following responsibilities are met:
All data required to perform the Implementation Services under a Service Order will be supplied by Customer and is assumed to be accurate and publishable and must be provided in a consistent format as agreed with Cerulean.
Such data will be supplied by Customer as soon as possible after the effective date of a Service Order but in all cases within ten (10) days after such effective date. Should Customer not be in a position to deliver such data within this timeframe, then Cerulean may at its sole discretion place a hold on the Implementation Services until such time Customer provides all such data and Cerulean has resources available to resume such Implementation Services.
All users and entitlements shall be administered and maintained by Customer as applicable.
Management of any required third parties.
Timely review of and feedback on deliverables, including user acceptance testing (“UAT”) during the Implementation Services.
Provision of any required language translations, document generation, and data calculations, as applicable.
B. Customer Acceptance. For Final UAT sign-off, Customer will have up to ten (10) business days to test the Services under a Service Order and confirm in writing that the Implementation Services meet the acceptance criteria and all requirements set out in the Service Order. If Customer does not reject any specific deliverables of the Services in writing within this review period, the Services are deemed accepted. In addition, the Services are deemed accepted if at any time it is used for commercial purposes, is approved for production deployment or is used by Customer’s end users. Once accepted, the Services will be made available on production basis for Customer use. Any revisions to completed work beyond the revision period specified by Cerulean may be subject to the prevailing Cerulean day rate. Both Parties must agree to any additional changes and out-of-scope work by providing written sign-off.
C. Performance; Delays. Cerulean will use commercially reasonable efforts to provide the Implementation Services to Customer as described in the applicable Service Order. The ability of Cerulean to perform its responsibilities depends on the fulfillment of the assumptions and the Customer and third party responsibilities described in a Service Order or otherwise in this Agreement. To the extent any assumptions are unmet or delays in the Implementation Services arise as a result of Customer’s or a third party’s delay, or if Customer fails to perform any of its obligations under this Agreement or any Service Order, including any payment obligations then, without prejudice to its other rights and remedies, Cerulean may extend the performance schedule under any Service Order and charge additional amounts in respect to incremental effort or expense incurred, provided that Cerulean first provides prior notice to Customer regarding the potential schedule or fee impact as soon as such an impact is reasonably foreseeable. Cerulean reserves the right to reassign resources due to Customer delays, and Cerulean will determine when resources can resume after Customer has satisfied its obligations, which will also result in extensions to project timelines. Cerulean will have no liability for any costs or expenses resulting from such delays. Any and all schedules or dates provided by Cerulean with respect to Implementation Services or otherwise are estimates only.
D. Implementation with Third-Party Company. If Customer requests Cerulean to perform Implementation Services on or with respect to any Third-Party Materials, Customer represents and warrants to Cerulean that Customer has all necessary rights to allow Cerulean to do so. Customer will ensure that while Cerulean employees, agents, or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
Restrictions and Responsibilities.
Use Restrictions. Except as expressly permitted in this Agreement, Customer will not, and will not permit or authorize third parties to: (1) rent, lease, or otherwise permit third parties to use the Services or Documentation; (2) use the Services or Documentation to provide services to third parties (e.g., as a service bureau); (3) use Services or Documentation in any way that would violate the Scope Limitations or this Agreement; (4) circumvent or disable any security or other technological features of the Services; (5) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Services; (6) modify, translate, or create derivative works based on the Services or Documentation; (7) remove any proprietary notices or labels from the Services or Documentation; (8) copy, modify, or create derivative works or improvements of the Services or Documentation; (9) access or use the Services or Documentation for purposes of competitive analysis of the Services or Documentation, the development, provision, or use of a competing software service or product or any other purpose that is to the Cerulean's detriment or commercial disadvantage; (10) upload, submit, or use any content (including images) with the Services unless Customer has all rights, licenses, and permissions necessary for Customer and Cerulean to use such content as contemplated under this Agreement, or (11) use the Services in a manner that violates or attempts to circumvent Applicable Law.
Authorized Users; Accounts. Customer is responsible and liable for all actions and inactions by its Authorized Users or by any third party that Customer or an Authorized User permits to access or use the Services, as if such action or inaction were an action or inaction of Customer. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Customer’s account and its Authorized Users’ accounts.
Customer Systems and Back-Ups. Customer shall obtain and operate all systems and equipment needed to connect to, access or otherwise use the Services, and provide all corresponding back-up, recovery, and maintenance services. Customer shall ensure that all systems and equipment are compatible with the Services. Customer is solely responsible for maintaining the integrity and security of its systems and equipment (physical, electronic, and otherwise).
Changes. Cerulean reserves the right, in its sole discretion, to make any changes to the Services and Documentation that it deems necessary or useful to: (a) maintain or enhance: (1) the quality or delivery of Cerulean's services to its customers; (2) the competitive strength of or market for Cerulean's services; or (3) the Services' cost efficiency or performance; or (b) to comply with applicable Law. Cerulean will notify Customer of any such changes via email or through the Services.
AI Output Responsibility. Customer understands and agrees that the Services may produce content or results generated by artificial intelligence or machine-learning models (“AI Outputs”), which may contain errors, omissions, inaccuracies, or unpredictable results. Cerulean makes no representation or warranty that any AI Output will be accurate, complete, reliable, suitable for any purpose, or in compliance with applicable laws. Customer is solely responsible for the review, interpretation, and use of all AI Outputs, and Cerulean will have no liability arising from or relating to Customer’s use of or reliance upon any AI Outputs.
Third-Party Services.
Third-Party Services. Cerulean and third parties may make available third-party products or services, including plugins, integrations, and related services (“Third- Party Services”) that Customer may elect to purchase or use. Any use by Customer of such Third- Party Services and any exchange of data between Customer and any Third-Party Service or Third-Party Service provider is solely between Customer and the applicable Third-Party Service provider. Cerulean does not warrant or provide support for Third-Party Services, whether or not they are designated by Cerulean as “recommended,” “certified,” or otherwise. Cerulean is not responsible for any violations of Applicable Law relating to Third-Party Services, or arising from Customer’s use of Third-Party Services. If Customer uses any Third-Party Services with the Services, Customer grants Cerulean permission to allow the Third-Party Service and its provider to access Customer Data as required for the interoperation of that Third-Party Service with the Services. Cerulean is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Third-Party Service or its provider. Customer is responsible for negotiating any limits on the use of Customer Data by the Third-Party Services directly with the Third-Party Service provider. Cerulean does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Services features), and if such Third-Party Services or related features are discontinued, Customer will not be entitled to any refund, credit, or other compensation.
Ownership.
Cerulean IP. Cerulean and its licensors own (a) the Services, Documentation, Usage Data, AI Outputs, and all improvements, enhancements or modifications thereto, whether or not developed based on Customer’s suggestions or other feedback, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all Intellectual Property Rights in or associated with, and any derivatives of, the foregoing (the “Cerulean IP”). The Cerulean IP is protected by copyright law and other Intellectual Property Rights and Applicable Law. No ownership rights in Cerulean IP are transferred to Customer by this Agreement. Customer does not have any rights in or to the Cerulean IP except for the limited express rights granted in this Agreement.
Customer Data. Customer owns all right, title, and interest in and to the Customer Data. No ownership rights in the Customer Data are transferred to Cerulean by this Agreement. Cerulean does not have any rights to the Customer Data except for the limited express rights granted in this Agreement. Customer is solely responsible for Customer Data, including, without limitation, its legality, reliability, completeness, accuracy, and appropriateness.
Feedback. Customer may elect from time to time to provide Cerulean with feedback, comments, or suggestions concerning the Services or Implementation Services or other actual or proposed Cerulean technology or services (collectively, “Feedback”). Cerulean will have full discretion to determine whether or not or how to proceed with the Feedback. Customer hereby assigns to Cerulean all right, title, and interest in and to the Feedback and all Intellectual Property Rights in or associated with the Feedback, and acknowledges that Cerulean is free to use the Feedback without payment, attribution, or restriction.
Data.
Customer Data License. Customer hereby grants Cerulean a worldwide, non-exclusive, royalty-free, fully-paid license, for the Term and any period during which Cerulean is making Customer Data available to Customer under Section 10.E, to host, store, transfer, display, perform, reproduce, and process Customer Data, in each case, except as otherwise set forth in this Agreement, solely as necessary to: (1) provide, maintain, secure, and support the Services; (2) perform Implementation Services and other obligations under this Agreement and any Service Order; and (3) prevent or address technical, security, or support issues and comply with Applicable Law. Cerulean may sublicense the foregoing rights solely to its affiliates and service providers that perform services on Cerulean’s behalf and are bound by confidentiality and data protection obligations no less protective of Customer Data than those set forth in this Agreement.
Usage Data. Cerulean may collect, generate and analyze Usage Data in connection with the provision, use, and performance of the Service. Cerulean may analyze, copy, process, collect, use, disclose, and reproduce Usage Data for any purpose, both during and after the Term.
Research and Model Training. Cerulean may use data derived from Customer Data that has been aggregated and/or de-identified (“De-Identified Data”) for any lawful purpose, including analytics, benchmarking, research, and the development, training, and improvement of the Services and related products and features, provided that such De-Identified Data does not reasonably identify Customer or any individual and Cerulean does not attempt to re-identify such data. Customer authorizes Cerulean to use Customer Data to improve and develop features and functionality within the Services and related offerings, including by training and tuning machine-learning models used by Cerulean to provide the Services, subject to Cerulean maintaining appropriate technical and organizational measures to protect Customer Data and Customer’s right to opt out of such training upon written notice.
Confidentiality & Data Security.
A. Confidentiality. Each Party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information, and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees, consultants, contractors, service providers and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’, consultants’, contractors’, service providers’ and representatives’ compliance with this Section 8, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information that is required to be disclosed by Applicable Law.B. Security. Cerulean will implement and maintain administrative, physical, and technical safeguards that are designed to (1) protect the security, confidentiality, and integrity of Customer Data; and (2) prevent unauthorized access to or use of the Services or Customer Data. Such safeguards will be no less protective than those used by Cerulean to secure its own confidential information of a similar nature and, in any event, will be consistent with industry-standard practices for SaaS providers of similar size and complexity.
C. Security Incidents. Cerulean will notify Customer without undue delay (and in any event within 48 hours) after becoming aware of any unauthorized access to or disclosure of Customer Data in Cerulean’s possession or control (“Security Incident”), to the extent required by Applicable Law. Cerulean will promptly take all commercially reasonable steps to contain, investigate, and remediate the Security Incident and will provide Customer with reasonable cooperation and information regarding the Security Incident. Cerulean’s obligations under this Section do not apply to incidents caused by Customer or its Authorized Users. Cerulean does not warrant or guarantee that Security Incidents will not occur, and disclaims all liability for any Security Incident except as expressly set forth in this Agreement.
Fees and Payment.
Fees and Payment.
Customer will pay Cerulean all fees described in all Service Orders (the “Fees”) in accordance with the terms therein. Unless otherwise agreed in a Service Order, Cerulean will bill via ACH monthly in advance. Unpaid amounts are subject to a finance charge of 2.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Implementation Services or access to the Services. All amounts paid under this Agreement will be paid in U.S. Dollars. At its discretion, Cerulean may increase the pricing stated on any Service Order for any Renewal Term (as defined below) upon giving Customer at least ninety (90) days’ notice (which may be sent by email) prior to the end of the then-current Term; not to exceed 5% or the trailing 12-month inflation rate as measured by the Consumer Price Index (CPI), whichever is higher, annually.
Travel and related expenses will be fully reimbursed to Cerulean subject to pre-approval by Customer.
If Customer believes that Cerulean has billed Customer incorrectly, Customer must contact Cerulean no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive any adjustment or credit, otherwise the dispute is waived.
Taxes. Other than federal and state income taxes imposed on Cerulean, Customer will bear, and invoices are subject to, all taxes, duties, and other governmental charges relating to the Services and Implementation Services.
Payment Processing. ACH payment information is required upon execution of the Service Order and Customer hereby consents to having its ACH account be charged automatically for any and all fees due hereunder.
Term and Termination.
Term. The term of this Agreement will commence on the effective date of the first Service Order between the Parties and will continue until terminated in accordance with this Agreement (the “Term”). Upon expiration of a Service Order, the Order Term thereof will automatically renew for a term equivalent to the initial Order Term (each, a “Renewal Term”), unless otherwise specified in such Service Order or if either Party notifies the other in writing of its desire to terminate the applicable Service Order at least sixty (60) days before the expiration of the then-current Order Term.
Termination for Breach, Insolvency, or Illegality. (1) Either Party may terminate this Agreement or any Service Order effective upon written notice to the other Party, if the other Party materially breaches this Agreement (or any Service Order) and such breach is incapable of cure, or (if such breach capable of cure) the breaching Party does not cure such breach within 30 days of receiving notice of it. (2) Cerulean may terminate or suspend this Agreement or any part of it immediately upon written notice to Customer without a cure period if Customer breaches any of the terms of this Agreement relating to Cerulean’s Intellectual Property Rights or Cerulean’s Confidential Information, or if Customer or any Authorized User is, has been, or is involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services or this Agreement. (3) Either Party may terminate this Agreement, effective immediately upon written notice, if the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Early Termination. Notwithstanding anything to the contrary in this Agreement or any applicable Service Order, Customer may terminate this Agreement or any individual Service Order for convenience by providing sixty (60) days’ prior written notice to Cerulean. In the event of such termination, Customer shall be responsible for payment of all Fees incurred up to the effective date of termination, including any implementation or subscription fees prorated on a daily basis through the termination date, and Cerulean shall refund to Customer any prepaid Fees for Services not yet rendered beyond the termination date within thirty (30) days of the effective termination date.
Effect of Termination. Termination of this Agreement will automatically terminate all active Service Orders, but termination of a single Service Order will not result in termination of this Agreement or any other Service Orders. Upon the termination of this Agreement, or a Service Order, all rights and licenses granted by Cerulean to Customer under this Agreement or the applicable Service Order will terminate. Either Party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either Party of liability for breaches occurring prior to the effective date of termination.
Post-Termination Obligations. Upon any termination of this Agreement, or any Service Order, Cerulean will make all Customer Data then held on Customer’s behalf by Cerulean pursuant to this Agreement or the applicable Service Order available to Customer for electronic retrieval for a period of 30 days. After such period, Cerulean may, but is not obligated to, delete any such Customer Data. If Customer terminates this Agreement for material breach under Section 10.B, Customer will pay a pro rata amount of the Fees for any terminated Services and Implementation Services up to and including the last day on which the Services or Implementation Services are provided. If this Agreement is terminated for any other reason (other than by Customer under Section 10.C), Cerulean will not refund Customer any Fees paid in advance of such termination, and within 10 days after such termination, Customer will pay Cerulean all remaining Fees owed under any terminated Service Orders.
Survival. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 3 (Restrictions and Responsibilities), 6 (Ownership), 7 (Data), 8.A (Confidentiality), 9 (Fees and Payment), 10 (Termination), 11 (Warranties and Disclaimer), 12 (Indemnification), 13 (Limitations of Liability), 15 (Compliance with Applicable Law; Export), and 16 (Miscellaneous).
Warranties and Disclaimer.
Mutual Warranties. Each Party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing Party in accordance with its terms; (2) no authorization or approval from any third Party is required in connection with the execution, delivery, or performance of this Agreement by the executing Party; (3) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party and (4) the execution, delivery, and performance of this Agreement by the executing Party do not violate the laws of any jurisdiction or the terms of any other agreement to which it is a Party or by which it is otherwise bound.
Cerulean Warranties. Cerulean represents and warrants to Customer that Cerulean will perform the Services and the Implementation Services in a good and workmanlike manner in accordance with industry standards.
Customer Warranties. Customer represents and warrants to Cerulean that: (1) Customer has the necessary rights to authorize Cerulean to use the Customer Data in accordance with this Agreement; and (2) Customer will use the Services in compliance with the Documentation and Applicable Law.
Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 11 (WARRANTIES AND DISCLAIMER), CERULEAN MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, IMPLEMENTATION SERVICES, DOCUMENTATION, USAGE DATA, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD- PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 11 (WARRANTIES AND DISCLAIMER), THE SERVICES, IMPLEMENTATION SERVICES, AND DOCUMENTATION ARE PROVIDED “AS IS.” CERULEAN DOES NOT WARRANT THAT THE SERVICES, IMPLEMENTATION SERVICES, OR DOCUMENTATION WILL SATISFY CUSTOMER’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, WILL BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, WILL BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED.
AI Output Disclaimer. AI Outputs may be inaccurate or incomplete. Cerulean does not warrant the accuracy, completeness, or reliability of any AI Outputs or other AI-generated content.
Use of Internet-Sourced and Generated Content. Customer acknowledges that certain features of the Services may allow Customer to request, transform, or incorporate content sourced from third-party websites, public data, or generated using artificial intelligence (“Third-Party Content”). Cerulean does not warrant that Customer’s use of Third-Party Content will be non-infringing or otherwise permissible under Applicable Law. Customer is solely responsible for ensuring that Customer’s use of any such Third-Party Content complies with all applicable Intellectual Property Rights, permissions, and licensing requirements.
No Rights Clearance. Cerulean does not provide rights clearance, intellectual property vetting, or licensing verification services. Customer is solely responsible for determining whether Customer’s use of any content generated, transformed, or processed by the Services requires licenses or permissions from any third party.
Indemnification.
Cerulean Indemnification. Cerulean shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from Action by a third party (other than an Affiliate of Customer) that Customer’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement (including any Service Order and the Documentation) infringes or misappropriates such third party’s United States Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (1) Third-Party Materials or Customer Data; (2) access to or use of the Services or Cerulean IP in combination with any hardware, system, software, network, or other materials or service not provided by Cerulean or specified for Customer’s use in the Documentation; (3) modification of the Services or Cerulean IP other than: (i) by or on behalf of Cerulean; or (ii) with Cerulean’s written approval in accordance with Cerulean’s written specification; (4) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Cerulean; or (5) act, omission, or other matter described in Section 12.B, whether or not the same results in any Action against or Losses by any Cerulean Indemnitee.
Customer Indemnification. Customer shall indemnify, defend, and hold harmless Cerulean and its subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Cerulean Indemnitee”) from and against any and all Losses incurred by such Cerulean Indemnitee resulting from any Action by a third party (other than an Affiliate of a Cerulean Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: (1) Customer Data, including any processing of Customer Data by or on behalf of Cerulean in accordance with this Agreement; (2) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Cerulean's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Cerulean; (3) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement. IP Infringement Mitigation.
Indemnification Procedure. Each party shall promptly notify the other Party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.A or Section 12.B, as the case may be. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 12.C will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
Mitigation. If any of the Services or Cerulean IP are, or in Cerulean's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or Cerulean IP is enjoined or threatened to be enjoined, Cerulean may, at its option and sole cost and expense: (1) obtain the right for Customer to continue to use the Services and Cerulean IP materially as contemplated by this Agreement; (2) modify or replace the Services and Cerulean IP, in whole or in part, to seek to make the Services and Cerulean IP (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Cerulean IP, as applicable, under this Agreement; or by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Cerulean IP, and require Customer to immediately cease any use of the Services and Cerulean IP or any specified part or feature thereof.
Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND CERULEAN'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND CERULEAN IP OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability.
Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN THIS 13 OR TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, OR LOSS OF DATA, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
Damages Cap. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 13 OR TO THE EXTENT PROHIBITED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO CERULEAN UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Basis of the Bargain. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered by Cerulean to Customer and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 13 (Limitations of Liability) will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
Publicity.
Cerulean may publicly list Customer as a Customer of Cerulean and use Customer’s trademark, trade name, and logo for marketing or promotional purposes and in other communication with existing or potential Cerulean customers or investors, unless Customer notifies Cerulean in writing that it opts out.
Compliance with Applicable Law; Export.
Each Party will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement, including applicable export laws. As defined in FAR section 2.101, the Services and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
Miscellaneous.
Governing Law; Venue. This Agreement is governed by New York State law without reference to its conflict of laws principles. All claims arising under this Agreement will be litigated exclusively in the federal or state courts of New York City, New York. The Parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
Non-Solicitation. During the Term and for one year thereafter, Customer will not directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employee or contractor of Cerulean to terminate their engagement with Cerulean. This Section 16.B will apply solely to the extent permitted by Applicable Law. This restriction will not apply to general solicitations or advertisements not specifically directed at Cerulean personnel.
Injunctive Relief. If either Party breaches Sections 6 (Ownership), 8 (Confidentiality) or 16.B (Non-Solicitation), the other Party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching Party. Accordingly, either Party may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
Assignment. Customer may not assign its rights or delegate its performance under this Agreement without Cerulean’s prior written consent, and any attempt to do so is null and void. Cerulean may assign its rights or delegate its performance under this Agreement without Customer’s consent. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the Parties’ permitted successors and assigns.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
No Waiver. Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
Entire Agreement. This Agreement (including any Service Orders and any and all exhibits, documents and policies attached or referenced herein or therein, whether by URL or otherwise) constitutes the entire agreement and supersedes any other agreement of the Parties relating to its subject matter. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, or supplement the terms of this Agreement.
Amendment. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each Party; and any such amendment to or rescission, termination, or discharge of this Agreement will be effective upon the date specified therein or if not date is specified in such writing then as of the date it is fully executed by the Parties. Notwithstanding the forgoing, Cerulean may change the terms set forth in this Agreement from time to time, provided that the terms and conditions of this Agreement in effect as of the effective date of a Service Order or, if subsequently renewed, the most recent renewal date of a Service Order, will apply for the performance of that Service Order and that any such changes will not apply retroactively to any Service Order. If any such change materially and adversely affects Customer, Customer may elect not to renew the applicable Service Order by providing written notice prior to the end of the then-current Order Term. Cerulean will post an updated version of this Agreement containing any such changes at www.joincerulean.com/csa as designated in “Last Updated Date” section at the top of this Agreement and will notify Customer thereof via email notice or a notice posted to Customer’s account within the Services. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Amendment. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each Party; and any such amendment to or rescission, termination, or discharge of this Agreement will be effective upon the date specified therein or if not date is specified in such writing then as of the date it is fully executed by the Parties. Notwithstanding the forgoing, Cerulean may change the terms set forth in this Agreement from time to time, provided that the terms and conditions of this Agreement in effect as of the effective date of a Service Order or, if subsequently renewed, the most recent renewal date of a Service Order, will apply for the performance of that Service Order and that any such changes will not apply retroactively to any Service Order. If any such change materially and adversely affects Customer, Customer may elect not to renew the applicable Service Order by providing written notice prior to the end of the then-current Order Term. Cerulean will post an updated version of this Agreement containing any such changes at www.joincerulean.com/csa as designated in “Last Updated Date” section at the top of this Agreement and will notify Customer thereof via email notice or a notice posted to Customer’s account within the Services. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Notices. All notices under this Agreement must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either Party may update its notice address by notice to the other Party in accordance with this Section. All notices to Cerulean will be sent to:: Cerulean AI, Inc., 1178 Broadway, 3rd Floor #1210, New York, NY 10001, Email: finance@joincerulean.com, Attn: Kieran Luke, CEO
Force Majeure. Cerulean will not be liable for any delay or failure to perform under this Agreement as a result of (1) any fire, explosion, unusually severe weather, natural disaster or Act of God; (2) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (3) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (4) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities or hacking; (5) any strike, lockout or other labor dispute or action; (6) any action taken in response to any of the foregoing events by any civil or military authority or (7) any other cause or condition beyond Cerulean’s control (each, a “Force Majeure Event”).
Interpretation. If Cerulean provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”
Counterparts. This Agreement and any Service Order may be executed in counterparts (which may be exchanged by email, DocuSign or similar electronic process). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.
Exhibit A
CERULEAN SERVICE LEVELS
All capitalized terms used but not defined in this Exhibit A have the meanings given in the Client Services Agreement between the parties.
Definitions.
"Available” or “Availability” means the ability to access and use the Services.
“Excused Downtime” means when the Services are not Available due to:
(1) Scheduled Maintenance; (2) Customer’s use of the Services in violation of the Agreement; (3) failures of Customer’s internet connectivity or Customer’s equipment, services, systems, or other technology (excluding the Services); (4) failures of Cerulean’s third-party service providers (e.g., AWS, Heroku, etc.); or (5) a Force Majeure Event.
C. “Scheduled Maintenance” means any scheduled outages or downtime for maintenance, upgrades, enhancements, or changes to the Services.
D. “Service Interruption” means that the Services are not Available.
Support. During Cerulean’s standard business hours, Cerulean will use commercially reasonable efforts to make available to Customer and its Authorized Users qualified personnel knowledgeable in the Services via telephone numbers and/or email addresses designated by Cerulean from time to time to: (A) provide advice on the configuration and use of the Services; (B) respond to Service Interruptions and error reporting; and (C) troubleshoot other issues relating to the Services.
Availability. During the Order Term, Cerulean will use commercially reasonable efforts to make the Services Available 24 hours a day, seven days a week, at least 99.5% of the time as measured on a monthly basis, excluding Excused Downtime (the “Availability Requirement”). Cerulean will use commercially reasonable efforts to provide advance notice of any Scheduled Maintenance, which may be done via email, or via the Services. Scheduled Maintenance will be performed during a maintenance window expected to least disturb Customer’s Authorized Users where possible.
Services are considered “unavailable” when no Authorized Users can log in to the Services.
B. Availability in a particular month will be calculated as follows: a = [(b - c) - d] x 100 / (b - c).
"a" = the percentage of Availability in such month;
"b" = the total number of hours in such month;
"c" = the total number of Excused Downtime hours in such month; and
"d" = the total number of hours the Services are unavailable for reasons other than Excused Downtime in such month.
Service Credits. If Cerulean fails to meet the Availability Requirement in any given calendar month, Customer notifies Cerulean of such failure within 24 hours of the end of the month, and Cerulean confirms the failure, Cerulean will provide Customer a credit to Customer’s account equal to 2.5% of the fees paid by Customer attributable to the month in which the failure occurred (each, a “Service Credit”) per incident that caused the service failure. An incident is only eligible for a Service Credit if the incident lasts more than 45 consecutive minutes. Accrued Service Credits may be applied to a future purchase or amount owing only. Service Credits may not be redeemed for cash payments.
Sole and Exclusive Remedy. Service Credits constitute Customer’s sole and exclusive remedy for Cerulean’s failure to meet the Availability Requirement or otherwise to conform to the requirements of this Exhibit.