1. Agreement. BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE, CUSTOMER AGREES THAT CUSTOMER HAS CAREFULLY READ, FULLY UNDERSTOOD, AND AGREES TO BE BOUND BY THESE TERMS OF SERVICE, (the “Terms”), THE PRIVACY POLICY LOCATED AT https://www.funnelenvy.com/privacy/ AND THE TERMS ON AN ORDER FORM, together, the “Agreement”. The Agreement is between that Customer documented on the applicable Order Form (“Customer”, “youor “yours”) and Celerius Group, Inc. (“FunnelEnvy”, “we”, or “us”). This Agreement provides the terms and conditions which govern your access to and use of the FunnelEnvy proprietary technology platform and services, together the “Services”. FunnelEnvy may update the Terms from time to time and will alert you to changes by placing a notice on the FunnelEnvy website (“Site”). It is therefore important that Customer regularly checks the Site for any notices about revisions. Any such changes will take effect twenty (20) days from the time such changes are posted. An Order Form may be amended only by written agreement of the parties. Multiple Order Forms may be effective simultaneously. In the event of any conflict of terms between the Terms and the terms on the Order Form, with respect to the Services on the applicable Order Form, the terms on the Order Form shall so govern. Use of information we collect is subject to the Privacy Policy in effect at the time such information is collected. ANY AND ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY FUNNELENVY.
  1. Services. Services include the consultation with Customer, the test development and related services provided by FunnelEnvy that facilitates Customer to generate and analyze Customer data. If Customer orders FunnelEnvy professional services assistance, no work for hire shall be performed hereunder and Customer may need to have active, current accounts with third party providers. When so ordered by Customer and under the Agreement, Services include access to the FunnelEnvy proprietary technology platform (the “Platform”). The features and capabilities included in the Services available to Customer shall be limited to those detailed in the then active Order Form. Subject to the terms and conditions of the Agreement and all payment obligations, Customer may access the Services solely for Customer’s internal, lawful, business operations in the United States, up to the number of users (“Users”) and other limitations as documented on the applicable Order Form. For clarity, “Users” means the named individuals, the Customer employees or consultants, authorized or assigned by Customer to use or access the Services as provided for herein. Customer is liable for any misuse of the Services and/or breach of this Agreement by its Users. Customer understands that the Service may change over time as FunnelEnvy refines and adds more features. FunnelEnvy reserves the right to update and modify the Service at any time, with or without notice, in its sole discretion. Services are hosted on a cloud web hosting solution provided by Amazon Web Services (“AWS”) on servers located in the United States and are subject to the AWS terms and conditions of service. Use of information collected is subject to the FunnelEnvy Privacy Policy in effect at the time such information is collected https://www.funnelenvy.com/privacy/. Except for the limited rights and licenses expressly granted hereunder, no other right, license or option is granted, no other use is permitted. FunnelEnvy owns and retains all rights, title and interests, including all intellectual property rights, in and to the Services, the Platform and FunnelEnvy documentation.
  1. Customer Responsibilities and Obligations. Except as specifically document in the Agreement, (i) Customer has no right to disclose, rent, lease, loan, sublicense or otherwise transfer or provide access to the Platform to any third parties nor copy, modify or distribute any portion of the Platform other than as specified herein; (ii) Except as expressly authorized in this Agreement, Customer shall not share any information related to the Services with anyone other than employees of Customer. (iii) Customer agrees that Customer will not (and will not permit or encourage any Users or other third party to directly or indirectly): (a) use the Service in any manner or for any purpose other than as expressly permitted by this Agreement; (b) misuse, modify, alter, tamper with, repair or otherwise create derivative works of the Platform; (c) remove, obscure or alter any proprietary right notice on or in connection with the Service; (d) use the Service to store or transmit malicious code, files, scripts, agents, or programs, including without limitation viruses, worms, and trojan horses; (e) interfere with or disrupt, compromise, or degrade the integrity or performance of the Service; (f) interfere with or materially adversely affect other Users’ use of the Service; (g) use the Service to attempt to access, acquire or otherwise obtain data to which Customer is not legally entitled; (h) access or use the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas; (i) use the Service in violation of applicable laws, rules, or regulations; or (j) use the Service to infringe the Intellectual Property Rights, or otherwise violate the rights of others. For purposes herein, “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world. (k) Customer will immediately notify FunnelEnvy of any suspected or known security breaches, incidents, threats, or vulnerabilities of the Service or this Agreement. In the event of any unauthorized use of a Customer’s account or breach of this Agreement, Customer will take all steps necessary to terminate unauthorized use and will provide FunnelEnvy with assistance regarding either or both of such. (l) Customer represents and warrants that it is authorized to share data with FunnelEnvy as needed to fulfill the Services in the Order Form. (m) As a condition to FunnelEnvy’s obligations hereunder, Customer shall at all times provide FunnelEnvy with good faith cooperation and access to such information as may be reasonably required by FunnelEnvy in order to provide the Services, including, providing registration information and access to only that Customer infrastructure. (n) Customer’s use of the Services is dependent upon access to telecommunications and Internet services. Customer shall be solely responsible for acquiring and maintaining such and any third party software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. FunnelEnvy shall not be responsible for any lost communications, inability to integrate, or any other loss or damage of any kind arising from any such telecommunications and Internet services. (o) In the event of any delay in Customer’s performance of any of the obligations set forth in herein or any other delays caused by Customer, FunnelEnvy may suspend Customer’s access to the Services as reasonably necessary to account for such delays, but such suspension shall not relieve Customer of the obligation to pay any fees. (p) Customer shall indemnify FunnelEnvy for any breach by Customer, including their Users, of Customer responsibilities and/or obligations which gives rise to a claim against FunnelEnvy. (q) Customer access to the Platform may require the development of certain documented application program interfaces (“API”). Customer will cooperate with FunnelEnvy to enable integration into the Platform through the development of such APIs, as needed.
  1. Fees; Payment; Taxes. Customer shall pay FunnelEnvy all applicable fees for the Service documented on the applicable Order Form. Fees may be paid by credit card through FunnelEnvy’s website or upon receipt of an invoice by FunnelEnvy as specified in the Order Form. Except as otherwise document on the applicable Order Form, payment obligations are non-cancelable and fees paid are non-refundable. The pricing during any automatic Renewal Term will be no more than five percent (5%) higher than that during the immediately prior term for the same functionality unless FunnelEnvy has provided Customer with written notice of a different price increase at least ninety (90) days prior to the commencement of the next Renewal Term or unless the Fees in such prior period were designated on the Order Form as ‘promotional’ or ‘pilot’. Customer agrees and acknowledges that FunnelEnvy may, from time to time, add newly engineered additional features or functionalities to the Service for which FunnelEnvy may charge an additional fee. All Fees are in US dollars and payable as documented on the Order Form. In the event Customer has received any type of discount and payment is overdue, such discount shall be forfeited. All fees documented on the Order Form are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on FunnelEnvy’s net income. As applicable, Customer shall reimburse FunnelEnvy for any sales or use taxes that FunnelEnvy is required to collect in connection with Customer’s use of the Services and the provision of services under this Agreement.
  1. Third Party Services. FunnelEnvy may make available to Customer certain third party products or services for use in connection with the Service which may be subject to additional terms and conditions and policies that are specific to such third party services. Customer shall be bound by such terms and conditions and policies if Customer elects to use such third party services. Customer is solely responsible for determining the suitability of any third party services that Customer elects to use in connection with the Service. Any and all use of such Third Party Services shall be at Customer’s sole risk. FunnelEnvy makes no representations or warranties with respect to any third party services, whether express or implied.
  1. Data Collection and Use. For purposes herein, “Data” means data or information that results from the tests run on Platform. Customer represents and warrants that it has obtained all necessary consents, and is in compliance with applicable laws, with respect to any user-level data provided or made available hereunder. FunnelEnvy shall have the right to collect and analyze data and information related to the provision of the Services including without limitation the Data and any information derived from the Data, collectively, the “Content”. Customer grants to FunnelEnvy the right to use the data obtained pursuant to providing the Service and in an aggregated, anonymous form, in order to enhance, or troubleshoot, FunnelEnvy’s ability to deliver the Service.
  1. Confidentiality. By provision of the Services, the parties may have access to each other’s Confidential Information. “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials, whether labeled as proprietary, confidential, or with words of similar meaning or not, and all information that is orally or visually disclosed, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, without limitation personally identifiable information. FunnelEnvy Confidential Information includes, without limitation, the Platform and Services, including any documentation, pricing, business plans, techniques, methods, processes. Neither party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either execute a binding agreement to keep such information confidential or be subject to a professional obligation to maintain the confidentiality of such information. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, which independent development can be shown by written evidence. During the Term and for a period of five (5) years after expiration or termination of this Agreement, except as permitted hereunder or with prior written authorization, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees, Users, agents, subcontractor in violation of the terms of this Agreement and will remain liable for any breach by such. In no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like nature. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided if so permitted thereunder, the receiving party provides prompt written notice of such to the disclosing party. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
  1. Feedback. FunnelEnvy appreciates it when Customer, Users or individuals (each a “Submitter”) in any form or any manner, sends or communicates to FunnelEnvy, or post to FunnelEnvy forums, comments or suggestions about our Service or Site (“Feedback). Should any Submitter choose to make a submittal, FunnelEnvy may use or utilize any Feedback without any obligation or any kind to the Submitter. Further, by submitting Feedback to FunnelEnvy, Submitter hereby assigns, to FunnelEnvy all of their right, title and interest in Feedback. In the event such assignment may not be valid, the Submitter agrees and grants to FunnelEnvy a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other information provided by the submitter relating to the Service.
  1. Term; Termination; Effect of Term or Termination; Survival.

10.1 For Convenience: This Agreement shall be in effect for so long as any Order Form is active between the parties and shall remain in effect until terminated by thirty (30) days prior written notice. Unless otherwise documented on the applicable Order Form, the “Initial Term” of an Order Form shall be one (1) year from the effective date on the applicable Order Form and shall automatically renew for additional one (1) year periods (each a “Renewal Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

10.2 For Cause: Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement or the terms documented on an Order Form and fails to correct the breach within ten (10) days following written notice specifying the breach. If FunnelEnvy terminates this Agreement based on Customer’s failure to pay Fees, then Customer shall owe FunnelEnvy all fees due for the full Term pursuant to the most current Order Form. Additionally, subject to Title 11 of the United States Code, if either party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then the other party may terminate this Agreement for cause.

10.3 Effect of Term or Termination: Expiration or termination of this Agreement, Customer’s right to use the Services and Platform shall immediately terminate. Customer shall immediately cease all use of the Services and Platform, and each party shall make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.

10.4 Survival. Those clauses which by their nature are intended to survive termination of the Agreement shall so survive including sections 1; 3; 4; 5; 6; 7; 8; 9; 10.4; 11.1;12; 15; and 16.

  1. Indemnification.

11.1 By Customer: Customer shall defend (or settle), indemnify and hold harmless FunnelEnvy, its officers, directors and employees, agents from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Customer’s use of the Services (other than any claim for which FunnelEnvy is responsible under Section 11.2); (ii) Customer has breached any terms or conditions of, or caused any damage to, the Services; or (iii) Customer has breached any term or condition of this Agreement. Customer’s obligations under this Section 11.1 are contingent upon: (a) FunnelEnvy providing Customer with prompt written notice of such claim when it becomes aware of such; (b) FunnelEnvy providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.

11.2 By FunnelEnvy. FunnelEnvy shall defend (or settle) any suit or action brought against Customer to the extent that it is based upon a claim that the Services infringe or misappropriate a United States patent or copyright of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. FunnelEnvy’s obligations under this Section 12.2 are contingent upon: (a) Customer providing FunnelEnvy with prompt written notice of such claim; (b) Customer providing reasonable cooperation to FunnelEnvy, at FunnelEnvy’s expense, in the defense and settlement of such claim; and (c) FunnelEnvy having sole authority to defend or settle such claim. In the event that FunnelEnvy’s right to provide the Services is enjoined or in FunnelEnvy’s reasonable opinion is likely to be enjoined, FunnelEnvy may obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Customer. THE FOREGOING STATES THE ENTIRE OBLIGATION OF FUNNELENVY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES. FunnelEnvy shall have no liability hereunder to the extent that any third-party claims are based on use of the Services or Platform in a manner that violates this Agreement or the instructions given to Customer by FunnelEnvy.

  1. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL FUNNELENVY ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA; OR FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY CUSTOMER FOR THE APPLICABLE SERVICE IN THE TWO (2) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. Without limiting the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose. Some States do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Customer. In these States, FunnelEnvy’s liability will be limited to the greatest extent permitted by law.
  1. Notices. Notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses documented on the applicable Order Form. The notices shall be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.
  1. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for Customer’s payment obligations) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
  1. Legal Clause. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to its conflicts of law provisions. The parties hereby consent and agree that the sole and exclusive jurisdiction and venue for actions related to this Agreement shall be in the state or federal courts located in San Francisco, California. The Convention for the International Sale of Goods shall not apply. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which the party may be entitled. (b) Section headings are for ease of reference only. (c) In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and an enforceable term will be substituted reflecting the party’s intent as closely as possible. (d) Each party shall comply with all applicable local, state, national and foreign laws, rules and regulations (including applicable export laws and regulations) while performing under this Agreement and using the Service. Without limiting the foregoing: each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and Customer shall not permit Users to access or use Service in violation of any U.S. export embargo, prohibition or restriction. (e) Customer may not assign any of Customer’s rights hereunder without the prior written authorization of FunnelEnvy which shall not be commercially unreasonably withheld and any such attempt is void. FunnelEnvy may freely assign its rights to any successor in interest of any business associated with the Service. (f) An Order Form may be executed in counterparts, each of which shall be deemed an original, and taken together shall constitute one and the same agreement. (g) FunnelEnvy and Customer are not legal partners nor agents and neither party shall have the power or authority to bind the other; instead, the relationship is that of independent contractors. (h) All content on the Site, the Service, the trademarks, service marks, and logos contained on the Site and in the Service are owned by or licensed to FunnelEnvy subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. (i) The exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. (j) Each party represents that it has all necessary rights, powers, and authorities necessary to enter into this Agreement and perform its obligations hereunder. (k) Neither party may assign this Agreement (by operation of law or otherwise) hereunder without the prior written consent of the other party; provided, however, that FunnelEnvy may assign this Agreement to a successor to all or substantially all of its business or assets, whether by sale, merger, or otherwise. Any attempted assignment in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties. (l) These Terms create no third party beneficiary rights to the Services or to any third party product made available through the Service. FunnelEnvy ‘s failure to enforce a provision is not a waiver of its right to do so later. (m) Other than as set forth herein, in Section 1, no alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement, or any Order Form, shall be valid or binding on either party unless the same shall have been mutually assented to in writing signed by both parties. (n) The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
  1. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding Customer’s use of the Services. Terms on the Customer’s purchase orders or other ordering documentation or email which purports to modify or supplement this Agreement shall not add to or vary the terms and conditions of this Agreement and are of no force and affect even when signed by FunnelEnvy. This Agreement replaces and supersedes any prior verbal understanding, written communications or representations made by the Parties regarding the subject matter contained in this Agreement. This Agreement may be executed electronically or in counterparts, each of which will be considered an original, but all counterparts together will constitute one agreement.