Circes, Inc.
PLEASE READ THESE CIRCES SELF-SERVICE CUSTOMER TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY CIRCES, INC. (“CIRCES”). BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF, OR OTHERWISE ELECTRONICALLY ACCEPTING OR EXECUTING, ONE OR MORE ORDER FORMS WITH CIRCES (INCLUDING THROUGH CIRCES’S ONLINE SIGN-UP OR ORDERING PROCESS) WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), OR BY ACCESSING OR USING THE SERVICES, YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS, EFFECTIVE AS OF THE DATE OF SUCH ACCEPTANCE (THE “EFFECTIVE DATE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SERVICES. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Order Forms; Access to the Services. Upon Customer’s acceptance (or, if applicable, mutual execution), each Order Form will be incorporated into and form a part of this Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Circes grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Circes product(s) and/or service(s) identified as Services in such Order Form (collectively, the “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Circes's applicable official user documentation for such Services (the “Documentation”).
Implementation. Upon payment of any applicable fees set forth in each Order Form, Circes agrees to use commercially reasonable efforts to provide implementation assistance for the Services only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Circes provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Circes otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Circes at its then-current hourly rates for consultation.
Professional Services. From time to time the parties may agree to have Circes provide certain professional services to Customer (the “Professional Services”). Any such Professional Services, including the fees and timeline therefor, will be set forth in a mutually executed statement of work referencing this Agreement, and upon mutual execution, such statement of work will be incorporated into and form part of this Agreement.
Support. Subject to Customer’s payment of all applicable fees, Circes shall use commercially reasonable efforts to provide standard support 24 hours a day, seven (7) days a week, 365 days a year through email and other designated support channels.
Customer Obligations. Customer will comply with the customer obligations set forth in all applicable Order Forms (the “Customer Obligations”). Customer understands and agrees that Circes’s performance of the Services depends on Customer’s timely satisfaction of the Customer Obligations and that Circes shall have no responsibility for delays or non-performance based on Customer’s failure to satisfy the Customer Obligations.
Services Updates. From time to time, Circes may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Circes will have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Circes may make improvements and modifications to the Services at any time in its sole discretion; provided that Circes will use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
Ownership; Feedback. As between the parties, Circes retains all right, title, and interest in and to the Services, and all software, products, works, artificial intelligence or machine learning models (“AI Technologies”), and other intellectual property and moral rights related thereto or created, used, or provided by Circes for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) will be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Circes with respect to the Services (“Feedback”). Circes acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Customer shall, and hereby does, grant to Circes a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Circes’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
Fees; Payment. Customer will pay Circes the fees set forth in each Order Form (“Fees”), in accordance with the payment schedule set forth for the applicable Fee in the applicable Order Form (the “Payment Schedule”). If no Payment Schedule is specified in an Order Form, all Fees will be invoiced monthly in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer will be responsible for all taxes associated with the Services (excluding taxes based on Circes’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (a) Circes will invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Circes’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (b) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below), such renewal will include the additional fees for such excess users and usage.
Restrictions. Except as expressly set forth in this Agreement, Customer will not (and will not permit any third party to), directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (b) modify, translate, or create derivative works based on the Services; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (d) use the Services for the benefit of a third party; (e) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (f) use the Services or any output generated by the Services for any benchmarking purposes or to build an application or product that is competitive with any Circes product or service; (g) use any output generated by the Services to train any other artificial intelligence, machine learning, or similar tool or service that is or reasonably could be competitive with the Services; (h) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (i) bypass any measures Circes may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services. Customer (y) will use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services, and (z) will not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights. Circes may suspend or limit Customer’s access to or use of the Services immediately and without liability if Customer breaches this Section 9.
Confidential Information. From time to time during the Term (as defined below), either party may disclose or make available to the other party nonpublic information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”). For the avoidance of doubt, Circes’s Confidential Information includes without limitation the Services and any product roadmap information. Confidential Information does not include information that, at the time of disclosure is: (a) generally available to the public; (b) known to the receiving party at the time of disclosure without restriction; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without access to or use of the Confidential Information. As the receiving party, each party will hold Confidential Information in confidence and not disclose it to any person or entity, except to the receiving party’s employees, consultants, agents or representatives who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and will only use Confidential Information to fulfill its obligations and exercise its rights under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (y) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (z) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party will promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date such Confidential Information is first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations will survive for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Usage Data. Circes may collect, retain and use during and after the term of this Agreement, usage data that is derived from the operation of the Services, including patterns identified through the provision and use of the Services and data regarding the performance of the Services (“Usage Data”). Circes is free to use Usage Data for any lawful purpose, including to develop and improve the Services.
Customer Data. For purposes of this Agreement, “Customer Data” will mean any data, information or other material provided, uploaded, submitted, or retrieved via authorized integrations by Customer to or through the Services in the course of using the Services. Customer will retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Circes, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Circes as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third-party rights (including, without limitation, intellectual property rights and rights of privacy). Circes will use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data to the extent any Customer Data is received by Circes. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Circes may (a) internally use and modify (but not disclose) Customer Data for the purposes of (i) providing the Services to Customer, (ii) training or improving artificial intelligence models, tools, technology, or services, and (iii) generating Aggregated De-Identified Data (as defined below), and (b) freely use, retain and make available Aggregated De-Identified Data for Circes’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Circes’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Circes in connection with Customer’s use of the Services, but only in aggregate, de-identified form which can in no way be linked specifically to Customer.
Personal Data. To the extent that the Customer Data includes any personal information (a) Circes will process, retain, use, and disclose such personal information only as necessary to provide the Services hereunder and as otherwise permitted under this Agreement, which constitutes a business purpose; and (b) Circes agrees not to sell such personal data, to retain, use, or disclose such personal data for any commercial purpose other than the foregoing purposes, or to retain, use, or disclose such personal data outside of the scope of this Agreement. Circes understands its obligations under applicable data protection laws and will comply with them.
Vendor Integrations. Customer acknowledges and agrees that (a) the Services may access, integrate with, connect to, or otherwise use platforms, products or services operated or provided by third parties (e.g., Amazon Seller Central, Amazon Advertising, or other vendors of Customer) (“Vendor Integrations”), including via use of application programming interfaces (“APIs”) provided by such Vendor Integrations; (b) the availability and operation of the Services or certain portions thereof may be dependent on Circes’s ability to access such Vendor Integrations, and (c) Customer’s failure to provide or maintain adequate access or any retraction of permissions relating to such Vendor Integrations may result in a suspension or interruption of the Services. Customer hereby represents and warrants that it has all rights, licenses, permissions and consents necessary to connect, use and access any Vendor Integrations that it integrates with the Services, and Customer will indemnify, defend and hold harmless Circes, its affiliates, and each of their respective employees, contractors, directors, suppliers, and representatives for all claims, damages and liabilities arising out of Customer’s use of any Vendor Integrations in connection with or through the Services. Customer is solely responsible for procuring any and all rights necessary for it to access Vendor Integrations (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions. Circes cannot and does not guarantee that the Services will incorporate (or continue to incorporate) any particular Vendor Integrations and does not make any representations or warranties with respect to Vendor Integrations.
Third Party Terms. Customer acknowledges and agrees that: (a) the Services may incorporate certain technology, information, data, and materials from third party providers (collectively, “Third Party Services”); (b) without limiting any rights that Customer may have under any separate agreement between Customer and any provider of a Third Party Service, Third Party Services may only be used by Customer in conjunction with the Services; and (c) Customer’s use of the Third Party Services hereunder will be subject to (and Customer agrees it is bound by) the third party terms and conditions referenced at https://circes.ai/go/providers (the “Third Party Terms Site”), as they may be modified from time to time by Circes and/or its third party licensors or suppliers at any time (collectively, the “Third Party Terms”). The Third Party Terms are hereby incorporated into this Agreement by reference. Customer is responsible for checking the Third Party Terms Site for updates. Any use by Customer of the Services following a change to the Third Party Terms will constitute acceptance of such change. Circes cannot and does not guarantee that the Services will incorporate (or continue to incorporate) any particular Third Party Services, and does not make any representations or warranties with respect to Third Party Services or any third party providers.
Term; Termination. This Agreement will commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, will last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” will begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (a) will continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (b) following the Order Form Initial Term, will automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, an “Order Form Renewal Term”, and together with the Order Form Initial Term, the “Term”) unless either party notifies the other party of such party’s intention not to renew no later than one (1) day prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. Circes may adjust its fees for any Order Form Renewal Term in its sole discretion by providing Customer at least sixty (60) days’ written notice prior to the start of the applicable Order Form Renewal Term. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Circes may suspend or limit Customer’s access to or use of the Services if (y) Customer’s account is more than sixty (60) days past due, or (z) Customer’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Circes’s ability to provide access to the Services to other customers; provided that in the case of subsection (z): (i) Circes will use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (ii) prior to any such suspension or limitation, Circes will use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (iii) Circes will reinstate Customer’s use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by Circes to Customer, including any assistance in exporting the Customer Data, will be billable at Circes’s standard rates then in effect.
Indemnification. Each party (“Indemnitor”) will defend, indemnify, and hold harmless the other party, its affiliates and each of their respective employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all losses, liabilities, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim by an unaffiliated third party that (a) the Customer Data or Customer’s use of the Services (in the case of Customer as Indemnitor), or (b) the Services (in the case of Circes as Indemnitor), infringes, violates, or misappropriates any intellectual property or proprietary right of such third party; provided that the Indemnitee provides the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice will only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Circes do not apply (A) with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (1) not created or provided by Circes (including without limitation any Customer Data), (2) made in whole or in part in accordance to Customer specifications, (3) modified after delivery by Circes, (4) combined with other products, processes or materials not provided by Circes (where the alleged Losses arise from or relate to such combination), (B) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (C) to the extent Losses arise from Customer’s breach of this Agreement.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES MAY OPERATE ON THIRD PARTY ARTIFICIAL INTELLIGENCE-POWERED TOOLS (“THIRD PARTY AI TECHNOLOGIES”) AND CIRCES DOES NOT TEST, VERIFY, ENDORSE OR GUARANTEE TO BE ACCURATE, COMPLETE OR CURRENT ANY SUCH THIRD PARTY AI TECHNOLOGIES OR ANY RESULTS OF THE SERVICES. CIRCES DOES NOT CONTROL OR INFLUENCE THE TRAINING OR HOSTING OF ANY SUCH THIRD PARTY AI TECHNOLOGIES. CUSTOMER SHOULD INDEPENDENTLY REVIEW AND VERIFY ALL RESULTS FROM THE SERVICES AS TO APPROPRIATENESS FOR ANY OR ALL CUSTOMER USE CASES OR APPLICATIONS. RESULTS FROM THE SERVICES MAY NOT BE USED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE OR INFORMATION. THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT FOR THE SERVICES APPLY TO ANY SERVICES WHICH OPERATE ON, OR RESULT FROM, CIRCES’S AI TECHNOLOGIES OR THIRD PARTY AI TECHNOLOGIES. DUE TO THE NATURE OF ARTIFICIAL INTELLIGENCE, IT IS POSSIBLE THAT RESULTS OF THE SERVICES GENERATED THROUGH CUSTOMER’S USE OF ANY ARTIFICIAL INTELLIGENCE-POWERED COMPONENTS OF THE SERVICES MAY BE SIMILAR TO RESULTS GENERATED THROUGH ANOTHER USER’S USE OF THE SERVICES, OR THAT THE SAME END USER DATA MAY RESULT IN DIFFERENT RESULTS FROM ONE USE TO THE NEXT.
Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF THE SECTION ENTITLED “RESTRICTIONS”, IN NO EVENT WILL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (C) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO CIRCES HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
Governing Law; Arbitration. This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts, excluding its conflicts of law rules. Any dispute arising from or relating to this Agreement that cannot be resolved between the parties within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other, shall be finally settled by binding arbitration in the County of Suffolk, State of Massachusetts, United States pursuant to the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) then in effect by one commercial arbitrator with substantial experience in resolving complex commercial contract disputes. Customer hereby consents to the arbitration in the State of Massachusetts in the County of Suffolk. The arbitrator shall apply State of Massachusetts law to the merits of any dispute or claim, without reference to rules of conflict of law, and shall have the authority to award any and all available remedies, including legal and equitable relief. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original or true copy thereof. The prevailing party shall be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party shall be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding anything else, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator.
Miscellaneous. This Agreement represents the entire agreement between Customer and Circes with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Circes with respect thereto. In the event of any conflict between a specific term of these Terms and a specific term of an Order Form, the specific term of the Order Form will control. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form (or, in the case of notices to Customer, to the email address associated with Customer’s account). Either party may update its notice contact by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party will be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (a) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (b) Circes may utilize subcontractors in the performance of its obligations hereunder. Customer agrees that Circes may use Customer’s name and logo to refer to Customer as a customer of Circes on its website and in marketing materials. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither party has any authority of any kind to bind the other in any respect. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party will not constitute a waiver and will not limit such party’s rights with respect to such breach or any subsequent breaches.